BFD19 v Minister for Home Affairs

[2019] FCCA 1827

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFD19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1827

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – refusal of an extension of time for show cause application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 36, 473CA, 473CB, 473DB, 473DC, 473FB 476, 477

Cases cited:

CCQ17 v Minister for Immigration [2018] FCA 1641

DGZ16 v Minister for Immigration [2018] FCAFC 12

Minister for Immigration v CRY16 (2017) 253 FCR 475

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v SZMOK (2009) 257 ALR 427

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

MZARG v Minister for Immigration [2018] FCA 624

NAHI v Minister for Immigration [2004] FCAFC 10

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16

WACO v Minister for Immigration (2003) 131 FCR 511

WZAVW v Minister for Immigration [2016] FCA 760

Applicant: BFD19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 692 of 2019

Judgment of: Judge Driver

Hearing date: 28 June 2019

Delivered at: Sydney

Delivered on: 28 June 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr R White of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 692 of 2019

BFD19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 3 December 2018.  The Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 21 June 2019.   

2. The applicant is a male citizen of Iraq who arrived in Australia, apparently at Christmas Island, as an unauthorised maritime arrival on 19 August 2013.[1]  He participated in an arrival interview on 7 September 2013[2] and an entry interview on 26 November 2014.[3]

   [1] Court Book (CB) 122

   [2] CB 1-15

   [3] CB 16-29

3. On 12 September 2017, the applicant lodged a SHEV[4] application[5] with the assistance of a registered migration agent.[6] In support, the applicant provided various documents[7] and a statutory declaration dated 8 September 2017.[8]

   [4] Safe Haven Enterprise Visa

   [5] CB 36-72

   [6] CB 45, 84-86

   [7] CB 73-83

   [8] CB 87-92

4. In the statutory declaration accompanying his SHEV application, the applicant claimed that he lived in the province of Muthana for most of his life. His brother (M) worked as a truck driver assisting the American forces with the delivery of goods. Another brother (N) was a soldier in the Iraqi Army and was assigned to a counter terrorism unit that worked for the American forces. In December 2012, N was killed and the applicant’s family were informed that he was assassinated by members of Al-Qaeda.[9] The applicant claimed that his family moved to Karbala because they were at risk in Samawah from people who knew about his brothers’ involvement with the Americans.[10]

   [9] CB 87, [1]-[5]

   [10] CB 89, [12]

5. The applicant also claimed that his father owned a bar in Alsadoon Street in Baghdad.[11]  In 2010, the applicant started working in his father’s bar because his employees had left due to the security situation in Baghdad and because working in a bar was very dangerous job.[12]  In May 2013, a letter from the AAH[13] was placed on the front door of the bar that threatened to punish those who sold alcohol. About two weeks later, the applicant received another threatening letter from the AAH that mentioned the applicant’s name and indicated he had already been warned. The applicant claimed he took the letters to the police but they were ineffective. In early June 2013, the applicant’s father was killed after shots were fired from a car parked outside the bar.[14]  After the applicant left Iraq in 2013, a threat was painted on the exterior of his father’s bar.[15]  In 2015, the AAH visited the applicant’s mother and questioned her regarding the applicant’s whereabouts.[16]

   [11] CB 88, [6]

   [12] CB 88, [8]

   [13] Asaeb Ahl Alhaq Militia

   [14] CB 89-91, [13]-[17]

   [15] CB 91, [18]

   [16] CB 91, [19]

The delegate

1. On 31 August 2018, the applicant attended an interview before the delegate.[17]

   [17] CB 123

2. On 18 September 2018, the delegate refused to grant the applicant a SHEV[18] and notified him of the decision by an email sent to his authorised recipient.[19]

   [18] CB 122-131

   [19] CB 119-121

3. The delegate found the applicant’s evidence at the SHEV interview was not credible because he could only provide very general information about the bar his father supposedly owned. The delegate also found the applicant gave evidence that was inconsistent with his written claims in a number of respects, including: the period of time that passed between the first and second threat letters, whether he took the second threat letter to the police and whether it was the AAH or the Mahdi Army who had threatened him which led the delegate to strongly doubt the applicant’s general credibility.[20]  On the basis of the applicant’s general credibility issues, the delegate did not accept that: he worked at a bar owned by his father; he received threatening letters because of that work; his father was shot for that reason;[21] or his brother N worked in the counter terrorism unit.[22]

   [20] CB 124

   [21] CB 127

   [22] CB 125

The Authority

1. On 21 September 2018, the matter was referred for review to the Authority.[23]

   [23] CB 138-139

2. On 24 September 2018, the Authority received an email from the applicant’s migration agent confirming the applicant was at the South Coast Correctional Centre and requesting that the referral letter be sent to him at the prison.[24]

   [24] CB 136

3. A case file note dated 24 September 2018 records that the Authority contacted Corrective Services NSW by telephone and confirmed that the applicant was remanded in John Morony Correction Centre.[25]

   [25] CB 137

4. On 24 September 2018, the Authority sent the applicant a letter informing him of the referral of the delegate’s decision to the Authority and enclosing a fact sheet and a copy of thePractice Direction for Applicants, Representatives and Authorised Recipients dated 6 February 2017.[26]

   [26] CB 138-147

5. The applicant provided no new information to the Authority from the date of referral.

6. On 3 December 2018, the Authority affirmed the delegate’s decision.[27]

   [27] CB 150-163

7. The Authority expressly considered the information referred to it under s.473CB of the Migration Act 1958 (Cth) (Migration Act)[28] and obtained new information in the form of an updated 2018 DFAT[29] report for Iraq. The Authority was satisfied there were exceptional circumstances to justify considering the updated DFAT report on the basis that it superseded an earlier version of a report that was considered by the delegate and had been prepared specifically for the purpose of assessing protection obligations.[30]

   [28] CB 151, [3]

   [29] Department of Foreign Affairs and Trade

   [30] CB 151, [4]

8. The Authority accepted that the applicant was: a national of Iraq; of Arab ethnicity; single; and lived in the Muthanna governorate for many years before his family relocated to the Karbala governorate.[31]

   [31] CB 152, [8]-[9]

9. The Authority was willing to accept that the applicant’s brother M may have worked for a company delivering goods to an American facility in Iraq but found the applicant had not made any protection claims on this basis. For this reason and also because country information did not indicate that family members of individuals associated with the international community were targeted, the Authority was not satisfied the applicant faced a real chance of harm due to M’s indirect link with the American forces more than seven years earlier.[32]

   [32] CB 153, [15]

10. The Authority noted the applicant provided “poor quality” copies of part of a Republic of Iraq Counter Terrorism Service identification card and an Iraqi Ministry of Defence identification card for his brother N.[33]  The “scant nature” of the applicant’s knowledge about his brother N’s role, his contradictory evidence about who was responsible for N’s death and country information that indicated fraudulent documents were commonly and cheaply available in Iraq all led the Authority to “strongly doubt” that N worked in the elite Iraqi Counter Terrorism Unit. However, the Authority was willing to accept that N served in a low-level capacity in the Iraqi Army and died in late 2012 in the course of his military service.[34]

    [33] CB 153, [14]

    [34] CB 153-154, [16]

11. The Authority did not accept that N’s death caused problems for the applicant because: the applicant did not mention that there was any connection between N’s death and the threatening letters he received in 2013 until the SHEV interview; the threatening letters did not mention the applicant’s brother; country information did not support the claim that armed groups regularly targeted the family members of government officials; and there was a gap of five months between N’s death and the threats against the applicant, which suggested they were unrelated. Accordingly, the Authority was not satisfied that the applicant faced a real chance of harm as a result of his brother’s death six years earlier.[35]

    [35] CB 154, [17]

12. Based on the applicant’s own evidence at the SHEV interview that his family moved to Karbala when he was 14 or 15 years old (which would have been in 2007 or 2008), the Authority also did not accept that the applicant’s family relocated to Karbala in 2012 because they were at risk from militias after N’s death.[36]

    [36] CB 154, [18]

13. The Authority noted the applicant provided a copy and English translation of the second threat letter he received from the AAH as well as “poor quality copies” of documents apparently in Arabic that he claimed were police reports, death certificates and his father’s shop licence.[37]  The Authority found it was unable to consider the documents for which accredited translations were not provided.[38] 

    [37] CB 155, [23]

    [38] CB 155, [25]

14. Based on its assessment of the applicant’s evidence at his SHEV interview, the Authority found that despite claiming his father’s bar was located on Sadoon Street, the applicant did not know which suburb the street was in and could not name any of the major luxury hotels or landmarks on the street. It also found the applicant’s evidence about who threatened him and when he received the threatening letters differed over time because in his written claims he said he received letters from the AAH two weeks apart, whereas he told the delegate at the SHEV interview that the letters were from “the Mahdi Army or someone like that” and were received three or four months apart.[39]

    [39] CB 155-157, [26]

15. The Authority also found there was no documentary evidence before it of the bar’s existence or that the applicant had ever been in Baghdad and that the applicant’s claim that his Shia Muslim father owned a bar was also inconsistent with country information that “overwhelmingly” indicated Christians sold alcohol in Baghdad. Having regard to country information about the availability of fraudulent documents in Iraq, the Authority was not satisfied that the AAH letter which the applicant provided as corroboration of the second threat against him for selling alcohol overcame its “considerable concerns” about his evidence. Accordingly, the Authority did not accept that: the applicant’s father owned a bar in Baghdad; the applicant worked in the bar; the applicant was threatened by AAH because he worked in the bar; the applicant’s father was killed in the bar; a threat was painted on the exterior of the bar after the applicant left Iraq; or that AAH members had approached the applicant’s mother seeking his whereabouts.[40]

    [40] CB 155-157, [26]

16. The Authority accepted that the applicant was a Shia Muslim. It also cited country information that indicated: Shias faced little or no official discrimination in Iraq; anti-Shia violence had decreased since the defeat of ISIL in 2018; and intra-Shia violence was often linked to criminal activity or active involvement with militia groups. The Authority accepted that ISIL “very occasionally” carried out attacks on Shias in Karbala but found that, as a result of tight security at important Shia religious sites in that area, the number of incidents had been “minimal” and the applicant had not claimed that any of his family members had faced difficulties in Karbala because of their religion. Whilst accepting that a lower risk of harm did not necessarily preclude there being a real chance of harm, having regard to the nature and the frequency of the incidents in the applicant’s home area, the Authority was not satisfied the applicant faced a real chance of harm as a Shia.[41]

    [41] CB 156-157, [27]-[28]

17. The Authority cited country information that indicated the practice of seeking asylum and then returning to Iraq once conditions permitted was “well accepted amongst Iraqis” as evidenced by the large numbers of dual nationals who returned from Western countries, including Australia. The Authority accepted that the applicant may be suspected of having sought asylum in a Western country. However, given it did not accept that the applicant was of interest to the AAH or anyone else when he left Iraq and because he would be returning to the area where his family had continued to live since his departure from Iraq, the Authority was not satisfied that he would suffer any harm as an asylum seeker and a returnee from a Western country.[42]

    [42] CB 157, [30]-[31]

18. The Authority noted the review material contained a statutory declaration from the applicant in which he denied transferring money overseas but when it was put to him by the delegate that the Department had information that he had sent money overseas to his mother and sisters, the applicant admitted that he had. Whilst noting the applicant was initially not forthcoming about having sent money overseas, the Authority found it did not have any bearing on his claims for protection.[43]

    [43] CB 157-158, [32]-[33]

19. For these reasons, the Authority concluded that the applicant was not a refugee as defined in s.5H(1) of the Migration Act and did not meet s.36(2)(a) of the Migration Act.[44]

    [44] CB 158, [34]

20. The Authority had regard to its anterior findings in relation to its assessment of the refugee criterion and found that as a real risk and real chance applied the same standard the applicant did not face a real risk of significant harm for the same reasons. Accordingly, the Authority was not satisfied that the applicant satisfied the complementary protection criterion in s.36(2)(aa) of the Migration Act.[45]

    [45] CB 158, [37]-[39]

The present proceedings

1. These proceedings began with a show cause application filed on 22 March 2019.  The grounds of that application are:

   1. Immigration Assessment Authority decision was unreasonable.

   2.Immigration Assessment Authority committed Jurisdictional error by failing to consider relevant material and significant evidence.

   3.There was insufficient evidence or no evidence to support various findings by the Tribunal.

2. The application is supported by a short affidavit filed with it, which I received. 

3. I also have before me as evidence the court book filed on 6 May 2019. 

4. In addition, the applicant emailed my chambers earlier today to request an adjournment and the provision of free legal assistance.  I declined the request for an adjournment on the basis that the matter had been listed for an extension of time hearing.  I informed the applicant that I would consider his request for pro bono legal assistance if a legal issue of significance justifying an extension of time were identified. 

5. The show cause application was filed 74 days outside the time limit prescribed by s.477(1) of the Migration Act. The applicant seeks an extension of time pursuant to s.476(2). His affidavit explains why his show cause application was filed late. He was not required for cross-examination on that affidavit. I accept from the affidavit and from the documents in the court book that the applicant was serving a term of imprisonment at the time the Authority made its decision. Although the Authority’s decision was sent to him at the prison, I also accept that the normal exigencies of prison life would have imposed a limitation on his capacity to lodge an appeal.

6. That is, however, only a partial explanation because the applicant was released from prison in February this year and was taken into immigration detention.  It is reasonable to expect that he might have been able to lodge a judicial review application in this Court earlier than he did in April this year. 

7. The question for the Court to answer in considering whether to grant an extension of time is what the interest of the administration of justice require in a particular case.  In the circumstances of this case, I took the view that it was necessary to give close attention to the Authority’s reasons in order to determine whether an arguable case of jurisdictional error could be identified. 

8. In that regard, the applicant’s grounds for review are not very helpful.  In my view, the only possible arguable issue concerned the Tribunal’s treatment of untranslated documents at [23] and [25] of its reasons.[46]  I invited submissions from the Minister’s solicitor in particular about that issue.  Having regard to the absence of any evidence of a communication from the applicant or anyone representing him to the Authority after the referral, I infer that the documents in issue had been made available by the applicant to the Minister’s Department. 

   [46] CB 155

9. Apart from some passing references in the decision of the delegate to untranslated documents, the delegate’s decision does not really assist.  The court book, however, does reproduce a number of documents apparently in the Arabic language between pages 79 and 82.  For present purposes, it is important to note that the Authority wrote to the applicant at the prison where he was held on 24 September 2018.[47]  Apart from acknowledging the referral of the case to the Authority, that letter provided the applicant with a copy of the President’s practice direction.[48]  Importantly, [27] of the practice direction[49] states that all documents that are not in English should be translated into English by a translator with a translator level accreditation from NAATI.[50]  The Direction requires that both the documents and the translation should be provided. 

   [47] CB 138 and 139

   [48] CB 143-147

   [49] CB 145

   [50] National Accreditation Authority for Translators and Interpreters

10. In my view, the practice direction thereby placed upon the applicant the obligation to provide English language translations of Arabic documents, whether they were previously provided to the Minister’s Department or were being provided for the first time to the Authority. The applicant did not comply with that direction. He says he relied upon a lawyer who was assisting him at the time and that the lawyer did not do what was expected of him. Be that as it may, the consequence is that the Authority was entitled by s.473FB(5) of the Migration Act not to consider the untranslated documents.

1. I otherwise agree with Minister’s submissions concerning the grounds of review advanced by the applicant.  

2. Proposed Ground 1 simply alleges that the Authority’s decision was unreasonable but in the absence of any particulars to make this ground meaningful, it ought to fail.[51]

   [51] WZAVW v Minister for Immigration [2016] FCA 760 at [35]; MZARG v Minister for Immigration [2018] FCA 624 at [25]

3. No unreasonableness in the Authority’s decision is apparent. The Authority provided an evident and intelligible justification for its decision that the applicant did not meet the refugee or complementary protection criteria, and the decision was not “one at which no rational or logical decision maker could arrive at the same evidence”.[52]

   [52] Minister for Immigration v Li (2013) 249 CLR 332 at 367 [76]; Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130]

4. To the extent that this ground alleges that the Authority conducted the review in a manner that was legally unreasonable, it cannot be sustained. In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant.[53] The Authority may, but is under no duty to, get any documents or information that was not before the delegate.[54]  While the Authority is under no statutory duty to get, request or accept new information, it remains a discretionary power that must be exercised reasonably having regard to the Authority’s statutory framework and all the circumstances of each case.[55]

   [53] Section 473DB(1)(a)-(b) of the Migration Act

   [54] Section 473DC(1)-(2) of the Migration Act

   [55] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 at [21]; Minister for Immigration v CRY16 (2017) 253 FCR 475, [72], [82]

5. There was no unreasonable failure on the part of the Authority to consider the exercise of its power under s.473DC in this case. The Authority took steps to confirm where the applicant was located before notifying him of the referral of his case under s.473CA. It decided the review on essentially the same basis as the delegate, although it was not required to inform the applicant of any specific reservations it had or may have had about his case and to provide him with an opportunity to respond.[56] There is no requirement in Part 7AA (equivalent to s.425 of the Migration Act requiring the Tribunal under Part 7 of the Migration Act), to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. In these circumstances, it was open to the Authority to proceed on the basis that the applicant had been provided with a reasonable opportunity to put forward any further material he wanted to be taken into account. A mere failure to consider the exercise of the power under s.473DC is insufficient per se to give rise to jurisdictional error.[57]

   [56] DGZ16 v Minister for Immigration [2018] FCAFC 12 at [72]

   [57] CCQ17 v Minister for Immigration [2018] FCA 1641 at [42]

6. Proposed Ground 2 alleges the Authority “committed a jurisdictional error by failing to consider relevant material and significant evidence”. However, the applicant does not identify any relevant evidence or material that was supposedly overlooked by the Authority.

7. Contrary to the applicant’s contention, the Authority’s reasons demonstrate that it considered all the relevant material and evidence that was properly before it. The Authority summarised all of the applicant’s documentary evidence[58] and specifically considered copies of Iraqi military identity cards purportedly belonging to the applicant’s deceased brother[59] and a translated copy of a letter the applicant claimed he received from the AAH.[60]

   [58] at CB 153, [14]; CB 155, [23]

   [59] CB 153-154, [16]

   [60] CB 155, [26]

8. On the basis of country information that indicated fraudulent documents were commonly and cheaply available in Iraq,[61] the Authority was not satisfied that the applicant’s documents overcame its “considerable concerns” with respect to the applicant’s other evidence.[62]  It was open to the Authority to reject apparently corroborative evidence on the basis of its adverse view of the applicant’s credit.[63] 

   [61] CB 153-154, [16] and CB 155-156, [26]

   [62] CB 155-156, [26]

   [63] Minister for Immigration v SZMOK (2009) 257 ALR 427 at [59]; WACO v Minister for Immigration (2003) 131 FCR 511 at [41]

9. Proposed Ground 3 alleges “there was insufficient evidence or no evidence to support various findings by the Tribunal”.  This unparticularised ground does no more than express disagreement with the Authority’s findings and reasons and impermissibly invites the Court to review the merits of the Authority’s decision, which it cannot do.[64]

   [64] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272

10. The Authority’s findings and reasons were open on the basis of the available materials, including the country information, and the choice and assessment of weight to be given to such country information was a matter for the Authority to determine.[65]

    [65] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]

Conclusion

1. I conclude that the interests of the administration of justice do not call for the grant of an extension of time in this case.  I refuse the application for an extension of time with the consequence that the show cause application is incompetent. 

2. I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time is refused.

3. In consequence of the refusal of an extension of time, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not dispute the amount sought, but claimed impecuniosity.  As has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 2 July 2019