BFC18 v Minister for Home Affairs
[2020] FCCA 510
•10 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFC18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 510 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether IAA erred in not considering “new information” – whether the IAA failed to take into account a relevant consideration – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 5J, 36, 46A, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB, 476 |
| Cases cited: BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 GLD18 v Minister for Home Affairs [2020] FCAFC 2 |
| Applicant: | BFC18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 140 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 6 March 2020 |
| Date of Last Submission: | 6 March 2020 |
| Delivered at: | Perth |
| Delivered on: | 10 March 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr M P Sunits |
| 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 140 of 2018
| BFC18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 15 February 2018.
The IAA affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (the “visa”).
This application is brought 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 fell into jurisdictional error.
The Court had before it an application for judicial review filed 11 March 2018, an affidavit from the applicant affirmed 17 January 2020, a Court Book (“CB”) numbering 303 pages (marked as Exhibit 1), correspondence from the Minister (which confirmed the Minister’s written outline of submissions was sent to the applicant’s nominated email address) (marked as Exhibit 2) and an outline of written submissions from the Minister dated 14 February 2020.
The applicant was unrepresented before the Court. The Court confirmed with him that he had received (and had with him) a copy of the Court Book. The applicant indicated that he had not received a copy of the Minister’s submissions. In response, the Minister tendered Exhibit 2. That document indicated that the Minister had served written submissions on the applicant on 14 February 2020 at his nominated email address. The Court accepts that the Minister’s written submissions were sent to the applicant. In the circumstances, the Court asked Counsel for the Minister to summarise both the IAA’s decision and the contents of the Minister’s written submissions for the applicant. The Court is satisfied that the applicant was able to understand and participate in the proceedings.
Background
The background to this matter can be summarised as follows.
The applicant is a citizen of Iran (CB 3-20).
The applicant arrived in Australia as an unauthorised maritime arrival on 17 April 2013 (CB 193).
The Minister lifted the bar pursuant to s.46A of the Act. On 27 October 2016, the applicant applied for the visa.
The applicant feared harm in Iran as he had participated in the “Green Movement” (which had caused him to be harmed by the Basij), because he did not practise Islam and because he had converted to Christianity after arriving in Australia (CB 84-87).
The applicant attended an interview with a Ministerial delegate on 17 January 2017 (CB 127-129). On 7 February 2017, the applicant’s representative provided written submissions to the delegate (CB 150-188). In those submissions, the representative also claimed that the applicant would be returning as a failed asylum seeker.
On 2 May 2017, the Ministerial delegate refused to grant the applicant the visa (CB 190-218).
The applicant’s matter was referred to the IAA on 3 May 2017 (CB 220-232).
On 12 June 2017, the applicant’s representative provided written submissions to the IAA. Attached to those submissions were three documents (CB 248-258). Those documents included a medical certificate, a medical report and a letter of support from a bishop of a Church.
On 15 February 2018, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 281-297).
The IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act is unusually rigid and limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a 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 referred applicant’s contact details.
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.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. 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 set out in s.473DD of the Act.
Section 473DD of the Act states as follows:
For 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.
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.
In relation to this matter, the IAA’s decision is 17 pages long and spans 47 paragraphs.
The Minister’s submissions at [12]-[17] accurately summarise the IAA’s decision. The Court adopts those submissions, with some alterations, as follows.
The IAA noted that it had had regard to the material referred to it by the Secretary under s.473CB of the Act (CB 282 at [2]).
It will be necessary to return in greater detail to the IAA’s consideration of the “new information” provided by the applicant’s representative to the IAA when addressing grounds 1 and 2. For present purposes, however, the IAA relevantly found as follows (at [3]-[13]):
a)the claim that the symptoms of the applicant’s thyroid cancer contributed to discrepancies in the applicant’s evidence was new information and the IAA was not satisfied that it met the requirements of s.473DD(b) of the Act;
b)the supporting medical documents from the applicant’s treating doctors provided no obvious bearing in respect of the applicant’s claims for protection or the assessment of his evidence and therefore could not have affected the consideration of the applicant’s claims for protection before the delegate;
c)it was not satisfied that there were exceptional circumstances to justify considering the information relating to the applicant’s cancer diagnosis and treatment;
d)the Wikipedia links and country information to which the applicant’s submissions referred did not meet either of the requirements of s.473DD of the Act;
e)it was not satisfied that the new claim that the applicant could not attend church regularly because of his health met the requirements of s.473DD;
f)it was not satisfied that the letter from a Bishop at the applicant’s church met the requirements of s.473DD as the letter predated the delegate’s decision, was of little assistance to assessing the genuineness of the applicant’s claimed conversion and there were no “exceptional circumstances” to justify its consideration; and
g)the country information from the Immigration and Refugee Board of Canada published in 2015 (which discussed the treatment by Iranian authorities of failed refugee claimants) predated the delegate’s decision, was not credible personal information and there were not exceptional circumstances to justify its consideration.
At [14], the IAA summarised the applicant’s claims.
The IAA did not accept the applicant’s claims that he participated in Green Movement demonstrations because of dissatisfaction with the government. It also did not accept that, since leaving Iran, the Basij had come to the applicant’s house and asked for him or that he feared for the safety of his wife. The IAA also noted inconsistencies in the applicant’s entry interview and protection visa interview in relation to what he was doing when he was arrested (CB 285-286 at [16]-[17]).
The IAA noted that there was no corroborative evidence to support the applicant’s claim that he was questioned by authorities when he left to travel to Thailand on two occasions in 2010/2011. The IAA found that the travel “strongly suggests” the applicant was not of adverse interest to the authorities or was living in fear (CB 286 at [18]).
At [19], the IAA noted that the applicant had provided limited supporting evidence in relation to his claim of having been beaten and also of having partaken in demonstrations. The IAA found the applicant’s explanation as to why he could not provide this evidence to be unconvincing.
The IAA accepted that the applicant holds a political opinion against the Iranian regime but it did not accept that the applicant participated in the Green Movement demonstrations in 2009, was subsequently arrested by the Basij, detained for a week and then monitored by the Iranian authorities. The IAA stated that it was not satisfied on the evidence before it that the applicant had participated in any public political activities in Iran or in Australia or had any political profile with the Iranian authorities or would do so if he returned to Iran (CB 286 at [20]).
The IAA was concerned with the discrepancy in the applicant’s evidence between his entry interview and protection visa interview about a Protestant church he attended in Iran. The IAA was not satisfied that the applicant attended the church as he claimed (CB 286-287 at [21]).
The IAA accepted that the applicant stopped practising Islam when he was about 15 or 16 years old but that he continued to believe in God and that he was baptised in the Church of Jesus Christ of Latter-Day Saints on 17 August 2013. The IAA was satisfied that the applicant was agnostic. However, the IAA did not accept that the applicant showed an interest in Christianity whilst in Iran and attended a church. The IAA stated that it was not satisfied that the applicant attended a Christian church and was baptised in 2013 otherwise than for the sole purpose of strengthening his claims to be a refugee. The IAA also did not accept that the applicant genuinely believed in Christianity, despite the claim in his statement (CB 287-288 at [24]-[25]).
The IAA accepted the claim that the applicant departed Iran in January 2013 on his own genuine passport and that he threw the passport in the ocean on the way to Australia (CB 288 at [26]).
In relation to the post-interview written submissions to the delegate about the negative repercussions that would flow to the applicant’s Australian wife if the applicant was not granted a visa, the IAA stated that the assessment of the applicant’s visa status was only concerned with what would happen to the applicant if he returned to Iran and not the impact it could have on his Australian wife (CB 289 at [27]).
In relation to the post-interview written submissions to the delegate about the applicant’s medical condition and a statement that the applicant was anxious about how his immigration status would impact him mentally and physically, the IAA stated that the submission did not explain how his immigration status would impact his health and treatment. The IAA further noted that the applicant had not claimed that he would not be able to obtain medical treatment in Iran (CB 289 at [28]).
Having rejected the applicant’s claims that he participated in the Green Movement and was detained, and having found that the applicant had attended Church in Australia for the sole purpose of strengthening his claims, the IAA disregarded these matters (CB 289-290 at [31]-[32]).
At [33]-[34], the IAA discussed whether the applicant had a well-founded fear of persecution on the basis of him being agnostic and being discriminated against in employment because of his religious views. The IAA was not satisfied that the applicant would face a real chance of harm for these reasons having noted country information and the lack of evidence that the applicant had previously suffered harm for these reasons. The IAA found that the applicant had not publicised his religious opinion or had a genuine desire to do so, nor would he not do so in Iran due to a fear of persecution.
The IAA accepted that the applicant held a political opinion against the Iranian regime. However, in circumstances where the applicant had not come to the adverse attention of the authorities for this reason (and was never involved in political activities), the IAA found that the applicant did not have a real chance of harm. It was also noted that the applicant would not engage in any anti-regime activities out of a lack of interest, as opposed to a fear of harm (CB 290-291 at [35]).
At [36], the IAA found:
I am not satisfied the applicant faces a real chance of harm in Iran from the Iranian authorities or any other group or person because of his religious and political opinion, both individually and cumulatively.
At [37]-[40], the IAA considered the applicant’s claims relating to his return as a failed asylum seeker from a non-Muslim country. The IAA referred to the country information and found that the applicant did not have the profile of a person who would attract the attention of the Iranian authorities and that he would not face a chance of any harm for reason of being a failed asylum seeker.
The IAA was not satisfied that the applicant met s.36(2)(a) of the Act (CB 292 at [40]).
In relation to the complementary protection criterion, the IAA relied upon its findings in relation to the refugee assessment to determine that the applicant did not face a real risk of significant harm (CB 292 at [43]-[44]). At [45]-[46], the IAA continued:
45. For reasons already given, I have not accepted the applicant has genuinely converted to Christianity or that he will practise Christianity, attend church or identify as a Christian if he were to return to Iran. The post-interview written submission claims that if the applicant’s devout Muslim relatives were to discover his religious affiliations they may report him to the authorities. Although the applicant has attended church and been baptised in Australia I am not satisfied, on the evidence that the Iranian authorities or his family in Iran are, or will become, aware of this. The applicant has not provided any evidence to support the claim that his relatives would report him to the authorities because of his church attendance and baptism and I am not satisfied on the evidence that they would. I am not satisfied he will be perceived to be a Christian convert in Iran for any other reason. I am not satisfied the applicant faces a real risk of significant harm in Iran as a result of his church attendance and baptism in Australia.
46. Having considered the country information cited and the applicant's profile, including his religious and political opinion and church attendance and baptism in Australia, I am not satisfied the applicant will face a real risk of significant harm from the Iranian authorities on return to Iran as a failed asylum seeker from a western country. Even if he were to be questioned on return to Iran by the Iranian authorities, I am not satisfied he would face a real risk of significant harm during questioning for any reason and I am not satisfied that being questioned amounts to significant harm as it does not reach the level of pain, suffering or extreme humiliation required to amount to cruel or inhuman treatment or punishment or degrading treatment or punishment. It also does not involve torture, an arbitrary deprivation of life or the death penalty.
The IAA found that the applicant did not meet the criteria in s.36(2)(aa) of the Act (CB 292 at [47]).
The IAA affirmed the decision of the delegate.
Proceedings in this Court
The judicial review application contains seven grounds of review as follows:
1. The decision of the Immigration Assessment Authority (IAA) to affirm the decision not to grant the applicant protection visa and dated 15 FEB 2018 is affected by jurisdictional error because the IAA did not consider the Federal Court directions on 473DD of the Migration Act 1958 (Cth) and the IAA decision was affected by jurisdictional error by misconstruing or misapplying the term "exceptional circumstances".
2.New Information provided to the IAA was not considered
3. Evidence to prove incident in Home country cannot be produced as it had been destroyed due to the safety of Family and self.
4. The ongoing Cancer treatment (and its duration) is a compelling reason and his affiliation to embrace religion has not been considered by the Minister delegate
5. The partner of the Applicant is an Australian Citizen and no consideration has been given for the same.
6. The Reviewer failed to properly apply the provisions of law.
7. The decision of the IAA:
a. Is affected by error of law.
b. Failed to take into account relevant consideration as in S. No 3 and S. No 4
The applicant was provided an opportunity by the Court to file any amended application, further affidavit evidence and a written outline of submissions.
An affidavit affirmed 17 January 2020 was filed by the applicant. The affidavit provided as follows:
1. I and my wife [omitted] have a 10 month old baby boy together, he was born on [omitted] in Bentley Hospital Bentley. I would like to attach a copy of his birth certificate.
2. I would like to attach another letter from the Department of Nuclear Medicine Royal Perth Hospital that I will be required long term follow-up and monitoring given my risk of thyroid cancer relapse.
As noted above, the applicant did not have legal representation before this Court. He was assisted by a Farsi interpreter.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given 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 what this Court can and cannot do.
The Court explained that its task is to assess whether the IAA fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories of errors:
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 & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; 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) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was explained to the applicant that this Court cannot review the merits of the IAA’s decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court asked the applicant to explain what he thought the IAA “did wrong”. In effect, the applicant’s submissions were directed to the merits of the IAA’s decision. The applicant stressed that the IAA did not believe him and that the situation in Iran was now extraordinarily difficult. The applicant also referred to his wife and his son and indicated that he had been here for 10 years and “did not know what to do”.
The applicant’s situation is indeed difficult. He has cancer and, after almost 10 years in Australia, has an Australian partner and young child. This is a most unfortunate matter and the Court is sympathetic to the challenges the applicant now faces and will face if he returns to Iran. Unfortunately, for the reasons that follow, the Court cannot assist the applicant with the matters he raised at hearing or as articulated in his application for judicial review.
Consideration
Grounds 1 and 2
1.The decision of the Immigration Assessment Authority (IAA) to affirm the decision not to grant the applicant protection visa and dated 15 FEB 2018 is affected by jurisdictional error because the IAA did not consider the Federal Court directions on 473DD of the Migration Act 1958 (Cth) and the IAA decision was affected by jurisdictional error by misconstruing or misapplying the term “exceptional circumstances”.
2.New Information provided to the IAA was not considered
It is convenient to consider grounds 1 and 2 together as both concern the IAA’s treatment of new information under s.473DD of the Act.
While the applicant has referred only to s.473DD(a) and “exceptional circumstances”, the Court will consider whether the IAA erred in assessing the new information against s.473DD generally.
Here, there were various categories of new information that require analysis.
The first category of new information related to the applicant’s thyroid condition. That information was:
a)information from Royal Perth Hospital relating to the applicant’s treatment that commenced on 23 May 2017;
b)a claim that the discrepancies in the applicant’s evidence previously can be attributed to his illness and that the stress of his life cause triggered the thyroid cancer; and
c)various medical reports and certificates which outlined the applicant’s relevant history, diagnosis and treatment.
In relation to this information, the IAA found as follows:
6. I am satisfied the above is new information as these claims and documents were not before the delegate and may be relevant. However, I am not satisfied the claim that the applicant had been having symptoms of Thyroid cancer such as mental slowing and memory problems and depression for a long time and the claim that the stressful events of his life triggered the symptoms of Thyroid cancer, is credible personal information. These claims were not supported by the google search result provided. I note that the letter provided by [Dr T] indicates that the applicant developed a right lower neck firm nodule and his letter, and the other medical documents provided, did not refer to symptoms of mental slowing, memory problems and depression nor do the medical documents indicate that the stressful events of the applicant’s life triggered his symptoms of Thyroid Cancer. No other credible evidence has been provided to support these claims. In [Dr E’s] letter, he notes that the applicant was diagnosed with cancer on 2 February 2017 which was several months prior to the delegate’s decision on 2 May 2017. The post-interview submission to the delegate also referred to the applicant’s cancer diagnosis. Given the applicant was aware of his cancer diagnosis several months prior to the delegate’s decision, I am not satisfied that the above claims in respect of his alleged symptoms of cancer and that stressful events of his life triggered his symptoms could not have been provided to the Minister before the decision was made.
7. Although I am satisfied that the supporting medical documents from the applicant’s treating doctors is credible personal information which was not previously known, having considered the information provided in the reports, I find they provide no obvious bearing in respect of his claims for protection or the assessment of his evidence. I have already found that they do not support the applicant’s new claim that he displayed symptoms of mental slowing and memory problems and depression or that the stressful events of his life triggered the symptoms of Thyroid cancer. For this reason I am not satisfied the medical evidence provided may have affected the consideration of the applicant’s claims for protection.
8. Overall, I am not satisfied that there are exceptional circumstances to justify considering any of above new information or documents that have been provided in relation to the applicant’s Thyroid cancer diagnosis and treatment.
The Court does not consider the IAA to have erred in its assessment of this information as per s.473DD of the Act. There is nothing to suggest that the IAA took an unduly narrow view of exceptional circumstances or misconstrued and misapplied s.473DD of the Act.
The IAA’s reasons are detailed. While the IAA focusses on the matters in s.473DD(b) in [6]-[7], it is accepted that the matters in s.473DD(b) can inform the IAA’s assessment under s.473DD(a): BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958.
Here, the IAA found that the new information about the applicant’s medical condition could not have affected the consideration of the applicant’s claims for protection. While this implicitly relates to s.473DD(b)(ii), the fact that the IAA was not satisfied that the new information could have had an effect on the outcome, with the other matters it referred to including that the information did not support the claim that the applicant was raising, indicates that there was no error in finding that “exceptional circumstances” did not exist.
The IAA’s findings in relation to the other “new information” will be considered individually below.
At [10], the IAA found as follows:
10. It also refers to a Wikipedia links to “Apostasy in Islam” and “Freedom of Religion in Iran” and a 2014 report by the Iran Human Rights Documentation Centre on Apostasy in Iran in support of its argument that the applicant will be considered an apostate as he converted to Christianity, attended church in Iran and renounced Islam. I consider the above country information to be new information as it was not before the delegate and may be relevant. It is not credible personal information and noting the publication dates, the applicant has not satisfied me that this information was not, and could not have been provided, to the Minister before the decision. I am also not satisfied there are exceptional circumstances to justify considering this information.
Here, the information did not meet either limb of s.473DD(b) of the Act. In those circumstances, any error in the consideration of the “exceptional circumstances” is not material. Both s.473DD(a) and (b) must be met. The IAA’s reasons for finding s.473DD(b) were not met was sound and no error arises.
At [11], the IAA found as follows:
11. The submission further claims that the applicant could not attend church regularly because of his health issues. I consider this claim to be new information which was not raised before the delegate and may be relevant. The applicant was aware of his cancer diagnosis at the time his former representative wrote a post-interview submission to the delegate, but I note did not raise this claim in that submission. The applicant has not satisfied me that this information was not, and could not have been, provided to the Minister before the Minister made the decision. No supporting evidence has been provided to support this claim. I also note the applicant’s evidence in the protection visa interview where he claimed that he stopped attending church because he could pray at home and was comfortable communicating with God alone. Although this is not necessarily contradictory with his new claim, I am not satisfied on the evidence that he was suggesting that his decision to pray at home was health related. The applicant has not satisfied me that this new claim is credible personal information. I am also not satisfied there are exceptional circumstances to justify considering this new claim.
Arguably, the IAA has made an erroneous assumption here that, in order to be “credible personal information”, the information must be true. The new information need only be capable of being believed: CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 at [41]-[42]. Nonetheless, in DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22], the Court held that in determining whether “exceptional circumstances” exist, the IAA is entitled to go further and consider whether it is satisfied as to the truth or believability of the information in light of any supporting evidence. On that basis, no error arises and the IAA can be taken to have considered what exceptional circumstances exist here.
At [12], the IAA stated:
12. Also attached to the submission is a letter from Bishop [omitted] of The Church of Jesus Christ of Latter-Day Saints in [omitted], Western Australia, dated 20 January 2017. It states the applicant is one of their church members and was baptised on 17 August 2013. I am satisfied this is new information as this letter was not before the delegate and may be relevant. In his letter, Bishop [omitted] stated he would like to petition on behalf of their congregation to look favourably on the applicant’s application so he can continue to be a valuable and much loved member of their community. The submission states that “this matter” was only discussed during the protection visa interview and therefore any references could not be provided earlier. However, in his application for protection the applicant referred to being baptised in this church and provided a copy of his baptism certificate so I do not accept the claim that this matter was only discussed during the protection visa interview. The letter also pre-dates the delegate’s decision and the post-interview submission provided to the delegate on 7 February 2017. The applicant has not satisfied me that this letter was not, and could not, have been provided to the Minister before the decision. Although the letter states the applicant is a member of their church, the applicant has stated that he had not attended church for two years (since approximately 2015) and did not practise or believe in any religion. Whilst I accept the letter is from a credible source it provides no information in regards to when the applicant started attending church and any further detail in relation to the level of his engagement and practise within the church and I find it is of little assistance and value in assessing the genuineness of the applicant’s conversion to Christianity. The applicant has not satisfied me that this letter may have affected the consideration of his claims for protection. I am also not satisfied there are exceptional circumstances to justify considering this information.
Again, the information did not meet either limb of s.473DD(b) of the Act. Hence, any error evident in determining whether “exceptional circumstances” exist is not material. The IAA’s reasons for finding s.473DD(b) were not met do not contain any error.
At [13], the IAA found:
13. The submission also cites information from a report by the Immigration and Refugee Board of Canada published in 2015 about the treatment of Iranian authorities of failed refugee claimants. I am satisfied the report was not before the delegate and is new information. Much of information quoted from this report was reported in other sources of information that was before the delegate and the report itself pre-dated the delegate’s decision. The applicant has not satisfied me that this information could not have been provided to the Minister before the decision, or that it is credible personal information. I am also not satisfied there are exceptional circumstances to justify considering this information
As stated above, the IAA was not satisfied that the information met s.473DD(b) of the Act. Hence, whether “exceptional circumstances” existed was not relevant. Country information is not “personal information” and the new information pre-dated the delegate’s decision. As such, the IAA’s findings have a logical basis and are legally sound.
The IAA correctly understood and applied the test in s.473DD to determine if it could consider any of the new information put forward by the applicant.
No error arises in relation to grounds 1 and 2.
Ground 3
Evidence to prove incident in Home country cannot be produced as it had been destroyed due to the safety of Family and self.
The applicant appears to be referring to video recordings that showed him participating in political demonstrations that he advised were not available as evidence as they had been destroyed (out of fear that if anyone saw them he and his family would be harmed).
The IAA considered this issue at [19], as follows:
… The applicant claimed in his entry interview that he had a short film of him attending a demonstration at his home in Iran but during the protection visa interview he claimed he had destroyed such videos and pictures of him as he was concerned it could be found out. When the delegate noted that he had previously claimed that he could send such material to the Department, the applicant claimed he had two copies and had destroyed one and asked his family to destroy the other as he was concerned for them in case the authorities searched his house. I find it difficult to believe the applicant had retained another copy when he claims he destroyed one copy out of fear it could be found and I found the explanation he provided as to why he could not produce this evidence unconvincing.
It is unclear what error the applicant is claiming arose here.
Here, the IAA considered the reason why the videos had not been provided and was not satisfied that those reasons were convincing. It was open to the IAA to make this finding and the reasons it gave (namely, that the applicant’s explanation was “difficult” and unconvincing) were also open to it. The IAA’s assessment of the evidence is a matter for the IAA and the Court will not lightly interfere with findings of this sort. There is no reason to do so here.
Ground 3, accordingly, is dismissed.
Ground 4
The ongoing Cancer treatment (and its duration) is a compelling reason and his affiliation to embrace religion has not been considered by the Minister delegate
Insofar as this ground of review refers to the Minister’s delegate, the Court has no jurisdiction to review the delegate’s decision: s.476(2) and (4) of the Act.
The Court sympathises with the applicant and has very real concerns about how he will deal with his current health situation if he returns to Iran. His life in Iran will undoubtedly be extraordinarily difficult, particularly given the current health crisis facing that country as whole.
Unfortunately, the criteria for the grant of a protection visa do not require the IAA to consider if there is a “compelling reason”. Rather, the IAA is required to consider if the applicant’s claims give rise to real chance of serious harm or a real risk of significant harm.
In relation to the IAA’s decision, the Court notes that:
a)the IAA considered the applicant’s medical condition at [28], noting that the applicant had not indicated how the medical condition would impact him and whether he would need to, or would be able to, access medical services. The submissions to the IAA which referred to the medical condition in some detail were only made in the context of explaining discrepancies in the applicant’s evidence. It was not expressed as a fear of harm for reason of the medical condition or that the applicant would be at risk because of his medical condition; and
b)the IAA considered in great detail the applicant’s religious views (at [21]-[25] and [33]-[34]). It referred to the applicant’s evidence and country information in order to make the finding that the applicant would not be at risk or chance of harm for reasons of his religious views or religious activities in Australia.
The IAA considered the applicant’s claims as put and reached conclusions that have an evident and intelligible basis.
Ground 4, accordingly, is dismissed.
Ground 5
The partner of the Applicant is an Australian Citizen and no consideration has been given for the same.
At [27], the IAA stated as follows:
The post-interview written submission to the delegate states that if the applicant is not granted a Safe Haven Enterprise Visa the negative repercussions will flow to his Australian citizen fiancé. I accept he married his Australian fiancé on [omitted] as indicated in his marriage certificate provided in the referred materials. While the applicant’s visa status may well impact on his wife, this assessment is only concerned with what will happen to the applicant if he returns to Iran and not the impact that may have on his Australian wife.
Contrary to what is said in ground 5, the IAA did, in fact, consider the applicant’s partner. The IAA found that any repercussions for the applicant’s partner were not a consideration relevant to the visa sought here. The IAA’s finding was sound.
Further, as was recently stated by the Full Court in GLD18 v Minister for Home Affairs [2020] FCAFC 2, an applicant will not satisfy the criterion in s.36(2)(aa) because of any harm arising from the separation from family members who will not return with that person to their country of nationality.
Ground 5, accordingly, is dismissed.
Ground 6
The Reviewer failed to properly apply the provisions of law.
Without particulars, it is difficult to identify which provision the applicant is suggesting was not properly applied.
The Court has reviewed the IAA’s decision and is unable to identify any misapplication of the relevant legislative provisions. Here:
a)the IAA correctly summarised the legal principles in relation to s.36(2)(a) and (aa);
b)properly applied s.5J(6) and formed the view that the applicant had engaged in particular activities for the purpose of bolstering his visa application on a correct understanding of the law based upon intelligible findings;
c)properly applied the relevant provisions when assessing the applicant’s claims and utilised the language of the statute; and
d)did not misconstrue or misapply s.473DD of the Act for the reasons provided above in relation to grounds 1 and 2.
Ground 6, accordingly, is dismissed.
Ground 7
7. The decision of the IAA:
a. Is affected by error of law.
b. Failed to take into account relevant consideration as in S. No 3 and S. No 4
It is not entirely clear what the applicant is referring to when he references an “error of law”.
The Court has reviewed the IAA’s decision in detail and is satisfied that the IAA did not make any errors of law. The IAA acted in accordance with the procedural fairness obligation in div.3 of pt.7AA, it went into great detail when discussing the applicant’s evidence in relation to his claims, it referred to country information relevant to the applicant’s particular circumstances and its findings were logical, rational and reasonable.
The IAA took into account all of the “relevant considerations” (i.e. the applicant’s claims). The Court cannot identify any express or implied claim that was overlooked.
It is not clear what the reference to S. No 3 and S. No 4 relates to. The Court infers that the applicant is referring to the IAA failing to take into account the matters the applicant refers to in grounds 3 and 4.
For the reasons given above in relation to grounds 3 and 4, it is clear that the IAA did take these matters into account and addressed them in detail. The Court is otherwise satisfied that the IAA took into account all other “relevant considerations”.
Ground 7, accordingly, is dismissed.
The applicant’s affidavit
The materials provided in the applicant’s affidavit all post-date the IAA’s decision. They also fail to address jurisdictional error on the part of the IAA.
Specifically:
a)the applicant’s child was born after the IAA’s decision. In circumstances where the event occurred after the decision had been made, it is not a matter that can have any bearing on jurisdictional error; and
b)in relation to the medical report, this is information that perhaps ought to have been provided to the IAA. It suggests that the applicant may require follow-up treatment and could have, implicitly, been seen as a claim that required consideration by the IAA. Unfortunately, and as expressly noted by the IAA, no claim was advanced by the applicant in relation to his medical condition and any potential harm on return to Iran (and the medical evidence before the IAA did not indicate whether ongoing treatment was required). On that basis, the document is not relevant to, and does not, establish jurisdictional error.
The applicant’s affidavit does not identify any jurisdictional error on the part of the IAA.
Conclusion
For the reasons outlined above, the applicant’s application for judicial review does not identify any jurisdictional error of the part of the IAA. The Court is otherwise satisfied that no error arises on the face of the IAA’s decision.
Before this Court the applicant raised concerns about his medical condition and the current situation in Iran. These concerns had not been raised before the IAA. Specifically, the applicant has been diagnosed with cancer and, as a result of the findings above, will arguably need to return to Iran. That country is now struggling to accommodate the health care crisis arising from the coronavirus and the applicant’s health may well suffer if he is returned to Iran in the current climate.
The Court cannot assist the applicant in relation to these issues. It simply does not have the jurisdiction to do so. However, given the rather unique circumstances of this case, the applicant might well consider seeking Ministerial intervention. Ultimately, whether or not assistance is forthcoming is a matter for the Minister.
While this Court is, of course, sympathetic to the concerns raised by the applicant, on the basis of the above the application for judicial review is dismissed.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 10 March 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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