BFT18 v Minister for Immigration
[2020] FCCA 1728
•30 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFT18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1728 |
| Catchwords: MIGRATION – Temporary Protection Visa – review of Immigration Assessment Authority decision – 19 grounds of review – whether Authority incorrectly applied s.473DD in considering new information – whether Authority erred in failing to consider information excluded by operation of s.473DD – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DC, 473DD, 473FB |
| Cases cited: Appellant S395/2020 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2013) 216 CLR 473 |
| Applicant: | BFT18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 674 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 31 October 2018 |
| Date of Last Submission: | 19 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr D Taylor, Sydney West Migration |
| Counsel for the First Respondent: | Mr J Kay Hoyle |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
THE COURT:
AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
ORDERS that the further amended application dated 2 November 2018 be dismissed.
ORDERS that the Applicant pay the First Respondent’s costs fixed in the sum of $9,700.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 674 of 2018
| BFT18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Second Respondent, the Immigration Assessment Authority, made on 14 February 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), made on 10 January 2018 to refuse to grant the Applicant a Temporary Protection (subclass 785) Visa.
Background
The Applicant is a 28 year old Shia Muslim Iraqi. The Applicant arrived in Australia without a valid visa by boat with his brother on 21 January 2013. Thus, he is an “unauthorised maritime arrival” as defined in the Act. He was interviewed by officers of the Department of Immigration and Citizenship (as it then was) on 28 January 2013.
In February 2014, a report released on the Department’s website unintentionally enabled public access to personal information of people who were held in immigration detention on 31 January 2014. That information was accessible from the Department’s website for a total of 8 days. The Department informed the Applicant of the data breach by letter dated 12 March 2014.
By letter dated 13 July 2016, the Department invited the Applicant to apply for a protection visa following the Minister’s exercise of his power under sub-s.46A(2) of the Act. On 11 October 2016, the Applicant applied for the Visa. By email dated 11 January 2017, the Applicant’s then representative, Dr Al Jabiri, provided an updated Visa application, a translation of the Applicant’s Statement, written submissions dated 12 December 2016, and supporting evidence to the Department. The Applicant attended an interview with the Delegate on 20 October 2017 (PV Interview).
By decision dated 10 January 2018, the Delegate refused to grant the Applicant the Visa.
On 17 January 2018, the Delegate’s decision was referred to the Authority for review under Part 7AA of the Act. The letter was dated 18 January 2018.
On 14 February 2018, the Authority affirmed the Delegate’s decision not to grant the Visa (Authority Decision).
The Applicant’s protection claims
The Applicant claimed to fear harm by reason of his religion, his membership of a particular social group (being someone who came from a Baathist family and had a relative who collaborated with United States of America occupying forces, as someone who had a distinctive personal hair styling), and his political opinion (his imputed hostility to an Islamist state by reason of his secularised and fugitive status).
I set out the claims the Applicant makes by reference to the PV Interview, and the Decisions of the Delegate, and the Authority. The Applicant makes the following claims:
(a)he is a Shia Muslim from Basra. He is moderate and secular, and therefore perceived to be opposed to the Islamist state;
(b)in 1993 his father was expelled from the army and as a result his family was forced to relocate to Karbala and all their assets were seized. The Applicant had to leave school in grade 6 and work to help support the family;
(c)the Applicant’s brother, [redacted – X], worked in the Iraqi Army and was a liaison officer with the American forces after the invasion of Iraq which made X and those associated with him subject to adverse attention from paramilitary groups including the Mehdi Army;
(d)in 2009, X disappeared, and was officially declared missing from [redacted] 2009. The family concluded that he had been kidnapped and murdered by a militia group;
(e)in 2012, the Applicant’s father was approached by members of the Mehdi Army who accused the family of being stooges for American forces. They told the Applicant’s father that they would kill his children due to the killing of their fellow members who had participated in the war against the Americans. The Applicant’s father asked the Applicant and his other brother, [redacted – Y], to leave the house because of the threats;
(f)the Applicant’s father was afraid that the Applicant would come to harm because of his appearance, modes of dress and hairstyle, as religious groups in Karbala had objected to the Applicant’s appearance;
(g)the Applicant and his brother Y went to Baghdad for several months. They were concerned for their safety in Baghdad as they would be arrested and tortured if they were caught without residence cards, (the Applicant’s solicitor Mr Daniel Taylor, submitted before me that the Applicant was also concerned for his safety because of the disappearance of his brother X). In October 2012, the Applicant and his brother Y flew to Indonesia before arriving by boat in Australia;
(h)the Applicant’s details were revealed as a part of the Department’s data breach, and this led to his family having to relocate in 2017; and
(i)the Applicant’s family received a threatening letter from the Mehdi Army in July 2017 involving being denounced by the Applicant’s tribe (Denouncement Letter). The Applicant claimed to the Delegate that the letter was sent as a result of the data breach. The Applicant has retracted this statement (see below at [20]).
Proceeding before the Authority
On 24 January 2018, Mr Taylor informed the Authority of his appointment as the Applicant’s legal representative and requested an extension of 21 days from 25 January 2018 to 15 February 2018 to provide materials and submissions on behalf of the Applicant.
By email dated 25 January 2018, the Authority declined to grant the Applicant additional time. The Authority drew Mr Taylor’s attention to the Authority’s Practice Direction for applicants, representatives and authorised recipients which states that any new information and submissions should be given to the Authority within 21 days. The Authority was not satisfied the circumstances warranted extending the time period.
On 7 February 2018, by separate emails sent half an hour apart Mr Taylor emailed the Authority requesting permission to provide further information and material on behalf of the Applicant before 9am on 9 February 2018 due to an unexpected medical emergency of a member of his family. Mr Taylor also sought a one day extension of time on the basis that the referral letter sent from the Authority was dated and sent one day later than the actual date of referral (being 17 January 2018 rather than 18 January 2018).
In the afternoon of 7 February 2018, the Authority granted Mr Taylor’s second extension request until 9am on 8 February 2018.
Mr Taylor submitted the Applicant’s written submission dated 7 February 2018 on 8 February 2018 at 8:58am, within the extension period. Later that day at 4:54pm, Mr Taylor provided written amended submissions (Authority Submissions) which appear to have been accepted by the Authority.
As I have said, on 14 February 2018, the Authority affirmed the Delegate’s decision not to grant the Visa.
On 14 March 2018, the Applicant applied to this Court for judicial review of the Authority Decision.
The Authority’s findings regarding new information
The Authority identified at [4] of the Authority Decision new information in the Authority Submissions not before the Delegate. Relevant to the Applicant’s grounds in this proceeding, the Authority Submissions raised the following new information:
(a)the Applicant made false claims at his PV Interview;
(b)the Applicant provided the Denouncement Letter during his interview with the Delegate. The Applicant however, claimed before the Authority that the reason he and his brother were denounced by their tribe was for failing to pay their dues;
(c)the Applicant has a full arm of skull tattoos (the Arm Tattoos) for which the Applicant claims he would be punished in Iraq due to non‑conformity with societal and Sharia rules;
(d)the Applicant is unmarried but is in a committed relationship, which would be considered un-Islamic, and the Applicant would be considered to be an adulterer; and
(e)the Applicant has resumed psychological treatment for his mental illness.
The Authority considered, and had regard to the information in (a), and found that it could not consider the information in (b) to (e).
(a) False claims and (b) Denouncement Letter
The Applicant had provided the Denouncement Letter to the Delegate during the PV Interview. Before the Delegate, the Applicant had maintained that his parents were threatened due to the Department’s data breach, and his whole family had to flee Karbala and were denounced by their tribe.
The Applicant informed the Authority, however, that out of fear of being returned to Karbala his brother Y had falsely stated at his protection visa interview he was beaten three times while working in Karbala, and that his family had to flee Karbala. The Applicant repeated these false claims at his PV Interview which was some days after his brother Y’s protection visa interview (at [4(a)]). (The Authority at [5] was satisfied that there were exceptional circumstances to consider this information, and stated it had regard to it).
The Applicant claimed that the reason he and his brother were denounced by their tribe was for failing to pay their dues into the “Tribal Protection Fund”. The Authority did not accept that the Applicant’s claim was credible personal information, or that there were exceptional circumstances to justify consideration of the statement. In relation to the Denouncement Letter, the Authority said at [6]:
…There is no indication in the submissions of 8 February 2018 as to why the applicant did not give the delegate any further evidence relating to this document and I am not satisfied that he could not have done so. The letter makes no mention whatsoever of any failure to pay dues into a "Tribal Protection Fund" as is now claimed. The review material is entirely silent on the existence of such Funds in Iraq. The applicant has not satisfied me that his recent statement regarding the denouncement letter is credible information. I am also not satisfied that there are exceptional circumstances to justify its consideration.
(b) The Arm Tattoos
The Applicant claims he would be punished in Iraq for non-conformity with societal and Sharia rules because he has the Arm Tattoos (at [8]). The Authority noted that despite the fact that the Applicant had the Arm Tattoos prior to his PV Interview, the Applicant had not shown the Arm Tattoos to the Delegate. Section 473DD(b)(i) was not met. The Authority stated at [8] of the Authority Decision:
I accept that the claim that the applicant has such a tattoo is factually correct. The applicant chose not to display his tattoo to the delegate therefore it would appear that the tattoo would also not be visible in Iraq unless he chose to display it. The applicant claims that he would be punished in Iraq due to non-conformity with societal and Shari 'a rules however this would only be the case if he chose to display his tattoo. Mr Taylor notes that the applicant did not show the delegate his tattoo out of fear of being judged or considered to be a bad person. I am therefore not satisfied that the applicant would display his tattoo in Iraq, for similar reasons. The applicant has proved (sic) [provided] no information to support the assertion that he will be at risk because of his tattoo. The applicant has not satisfied me that the existence of his Satanic tattoo comprises credible personal information which may have affected consideration of his claims. In considering whether exceptional circumstances justify consideration of this claim, I note that the applicant raised in his statement of claims that he faced the interception of the Mehdi Army and religious groups in Karbala due to his dress and his style of hair. He has not mentioned the addition of a "satanic" tattoo to his appearance. The applicant has provided no information that leads me to conclude that exceptional circumstances warrant consideration of this claim, and I do not.
The Authority was not satisfied that the existence of the Applicant’s Arm Tattoos comprises credible personal information which may have affected consideration of his claims and that there were exceptional circumstances to warrant the consideration of the new information.
(c) Unmarried relationship
In the Authority Submissions the Applicant submitted that he is in a committed relationship with a woman [TL-redacted] and is stepfather to her son. The Applicant claims that this relationship would be considered un‑Islamic in Iraq, and that he would be considered to be an adulterer.
Mr Taylor submitted that this information constituted an unarticulated claim which arose squarely on the material before the Delegate. The Authority rejected this submissions. It found that the information about the Applicant’s relationship was new information that had not been before the Delegate. The Authority stated that the claim was not mentioned to the Delegate at any point by the Applicant, and that it was inconsistent with the answer given by the Applicant in his Visa application at question 35 where the Applicant gave his marital status as “never married or in a de facto relationship”, and at no point informed the Delegate that this was incorrect (at [7]).
The Authority did not accept that such a claim could not have been provided to the Delegate. The Authority considered the claim was a fabrication, and found that the claim did not comprise credible personal information nor were there exceptional circumstances justifying its consideration (at [7]).
(d) Mental health
The Applicant had previously indicated that he suffered from severe mental health issues and attempted suicide while in detention. He stated in his PV Interview that he self-medicates with alcohol. In the Authority Submissions, the Applicant claimed that he had resumed psychological treatment after a gap in treatment since being released from detention. At [9] of its decision, the Authority found that there were no exceptional circumstances to justify considering the Applicant’s claim that he had resumed psychological treatment.
The Authority’s decision
Based on inconsistencies in the Applicant’s evidence, the Authority did not accept that the Applicant was targeted or threatened by the Mehdi Army, but it was prepared to accept that 2 of the Applicant’s brothers were members of the Iraqi Security Forces, had some interaction with American forces, and that X went missing in 2009 (at [13]-[14]). In the light of variations in the Applicant’s evidence, and country information, the Authority did not find it plausible, and did not accept, that the Mehdi Army approached the Applicant’s family between 2009 and 2012 (at [15]).
The Authority noted that the review material contained no information on how the Applicant claimed to practice his religion (bearing in mind the Applicant did not claim to be non-practising), and it was not satisfied that the Applicant had ever openly declared or expressed views contrary to fundamentalists or militia groups (at [16]).
The Authority accepted that the Applicant had lived in Baghdad with his brother before leaving Iraq but only for a period of a few weeks and that upon return the Applicant would not live in Baghdad upon return to Iraq (at [17]).
The Authority did not accept that the Applicant had any interactions with the Mehdi Army. The Applicant gave no evidence as to how the militia groups objected to his appearance. It did not accept that the Applicant was the subject of adverse attention by reason of his hairstyle or manner of dress (at [18]).
At [19]‑[20], the Authority considered the data breach. It was not satisfied that a militia group could identify the Applicant’s family by virtue of the release of the data breach information. In addition, there was a gap of 2.5 years between the release of the information and the claimed threats to his family.
The Authority found that the Applicant had provided no medical evidence about his mental health issues or his attempted suicide and no information as to whether the Applicant had received treatment for any mental health condition. At [21] it stated:
The applicant claims to suffer from significant mental health issues and states that he attempted suicide while in detention on Manus Island. He has provided no medical evidence relating to this. At his PV interview he stated that he had suffered a lot throughout his life and was always anxious. He stated that "I have never lived my life", since he was a child. There is no information before me as to whether the applicant has received treatment for any mental health conditions or what such treatment may have constituted. He claims that "I felt depressed and my nerves broken" since leaving school after Grade 6. In the absence of any further information or documents of support I am not satisfied that the applicant has been diagnosed with a mental health condition or currently receives treatment for any such condition. I am unable to draw any conclusions as to the effect of any mental health conditions on the applicant’s day-to-day functioning. …
The Authority did not accept the Applicant’s submission that mental health issues would make it likely that the Applicant would be perceived as homosexual. The Authority rejected the suggestion that the Applicant would “self-medicate” with alcohol as inconsistent with his claims and speculative (at [21]-[22]).
The Authority accepted that there was a moderate risk to people in Iraq who had worked for foreign forces but noted that this did not extend to the families of such people, based on country information, and observed that it was 9 years since his brothers’ former employment and X’s disappearance (at [25]).
At [26], the Authority did not accept that there was real chance of harm based on the Applicant being a moderate or secular Shia Muslim bearing in mind its finding that the Applicant did not openly or publicly espouse his views and the other factual findings the Authority made concerning the Applicant’s claims.
At [27], the Authority accepted that the security situation in Iraq was fragile but the southern parts of Iraq that included Karbala remained under the control of the Iraqi Security Forces. It further found that violence in Shia areas was primarily linked to those actively involved in tribal groups or militia, which was not the case with the Applicant.
At [28], for the purposes of the claim to be at risk as a returning asylum seeker, the Authority reiterated that it did not consider the Applicant’s presence in Australia was already known in Iraq by reason of the data breach, and country information supported the conclusion that seeking asylum and returning to Iraq once conditions permitted such return was a well-accepted practice among Iraqis.
For similar reasons as outlined above, under the complementary protection criteria, the Authority found at [29] that the Applicant was not at risk of significant harm. Country information did not support the contention that there was an absence of mental health treatment in Iraq, and the Authority was not satisfied there was real risk of the Applicant being unable to access treatment.
Grounds of review
At the hearing before me on 31 October 2018, Mr Taylor on behalf of the Applicant withdrew certain grounds, and sought to add additional grounds. I granted leave for the Applicant to rely on certain of the additional grounds contained in Mr Taylor’s written submissions on behalf of the Applicant dated 20 October 2018, identified as AS [1], AS [16], AS [19(ii)], and AS [23]. The Applicant withdrew grounds 5, 6, 7, 8, 11 and 17 of the Amended Application dated 17 May 2018.
In his further amended application dated 2 November 2018, the Applicant set out 19 grounds of review (and also an additional ground AS [19(i)] for which leave was not granted). The grounds of review pressed at hearing are set out in Schedule 1 to these reasons.
At hearing, with the benefit of the Minister’s submissions, Mr Taylor agreed that the Applicant’s grounds could be grouped by reference to the subject matter as follows (the additional grounds are identified by the prefix AS):
(A)Satanic tattoos on the Applicant’s arm (that is, the Arm Tattoos): grounds 2, 3, 4, 9, AS [23];
(B) Non-conformist or ‘emo’ status: 8A and 8B;
(C) “fabricated” relationship: 10, 12, 13 and AS [1];
(D) Applicant’s mental health: 14, 15 and 16;
(E) Refusal of an extension of time: 18, 19 and AS [16];
(F) Miscellaneous ground: 1; and
(G) Denouncement Letter: AS [19(ii)].
In sum, the grounds assert jurisdictional error by the Authority by its failure to apply s.473DD of the Act correctly in considering new information, that it acted in a procedurally unreasonable way by not inviting the Applicant to comment on information, that it failed to assess the Applicant’s claims cumulatively (ground 8B), and that parts of the Authority’s findings were irrational, illogical or without evidence or justification.
Legal principles relating to the Authority’s jurisdiction
It is convenient, first, to set out the terms of s.473DD and relevant legal principles on the acceptance by the Authority of new information, and as to legal unreasonableness.
New information
The Authority’s statutory task is to review a fast-track reviewable decision referred to it under s.473CA: s.473DB(1).
The review is a “fresh decision”: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475, at [68].
Under s.473DD, the Authority can only consider new information in limited circumstances:
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.
The default position or “primary rule” is that the Authority must consider the review material provided under s.473CB without accepting or requesting new information (or interviewing the applicant): see M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 353 ALR 600 per Gaegler, Keane and Nettle JJ at [22].
The requirements of s.473DD(a) and s.473DD(b) are exceptions to the primary rule, to be applied in narrow circumstances dictated by those provisions: BZC17 v Minister for Immigration and Border Protection [2018] FCA 902; (2018) 264 FCR 667, at [52].
Whether a document or information is properly classified as “new information” for the purposes of s.473DC(1) is referable to whether it is “information” (see M174 at [24]), and whether that information meets the two pre-conditions set out in s.473DC(1)(a) and s.473DC(1)(b) of the Act.
It is not necessary to consider whether s.473DD applies unless the Authority is satisfied that the information or document is “new information” for the purposes of s.473DC(1). If the Authority finds that the material before it is “new information” then it must not consider that new information unless it is satisfied that the conditions in s.473DD are met.
Pursuant to s.473DC(2), the Authority is not under any duty (or obligation) to accept “new information” given to it by an applicant: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482, at [47]; BZC17 at [69].
The conditions in s.473DD of the Act are cumulative, and both s.473DD(a) and s.473DD(b) must be met in order for the Authority to consider the new information as part of its review: M174 at [31]; BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [25]-[26]; AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [32]-[33].
The terms of s.473DD are such that there is no requirement for the Authority to consider s.473DD(a) before s.473DD(b) of the Act.
The Authority may fall into error by construing the phrase “exceptional circumstances” too narrowly: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221, at [47]. The term “exceptional circumstances” is not capable of exhaustive statement; it is not a term of art but a term with an ordinary meaning, albeit one with a broad meaning: M174 at [30]; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111, at [104].
The consideration of 473DD(a) and s.473DD(b) is cumulative and the consideration of those provisions may “overlap to some extent”; consideration of the matters in s.473DD(b) may inform consideration of s.473DD(a): BBS16 at [102]. In DHH16 v Minister for Immigration & Anor [2018] FCCA 1638; (2018) 337 FLR 308, Judge Driver of this Court said at [90]:
…on a proper construction of that provision [s.473DD(1)(a)] in light of the subject matter, scope and purpose of the “new information” provision of the Migration Act, the Authority is at least obliged to consider relevant matters raised by the applicant or evidence from the nature of the new information that may bear on the question of justification. In a given case (such as this one), that will often include the subparagraph (b) [s.473DD(1)(b)] matters. It is inconsistent with the statutory scheme for the Authority to be free simply to ignore such matters at its election.
The Authority must not consider “new information” unless, relevantly, the new information 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” (emphasis added): s.473DD(b)(ii).
In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Bromberg J considered a finding made by the Authority regarding the appellant, who claimed to fear harm from the Muttahida Qaumi Movement, that the Authority “was not satisfied that the applicant does have genuine fear of this kind and I am therefore not satisfied that it is credible personal information” at [35]. His Honour Bromberg J held that the Authority had pre-judged the question of whether the appellant had a subjective fear of harm. At [39] his Honour said:
To address the competing contentions, it is necessary to properly understand the basis for the Authority’s conclusion that the new information was not “credible personal information”. It was not in contest that the Authority was engaged in a process of assessing the veracity of the “new information”, not on its face, but by reference to “review material” which had been received by the Authority. By that process, the Authority came to an ultimate or final view that the “new information” was not to be believed and therefore not information that could be received for consideration in accordance with s 473DD(b)(ii). The nature of the assessment made by the Authority indicates that the Authority proceeded on the basis that a condition of engagement of s 473DD(b)(ii) is the Authority’s satisfaction that the “new information” is true. That reflects the sense in which the Authority construed the word “credible”.
His Honour concluded at [41]:
In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
Legal reasonableness
Legal unreasonableness can arise in 2 contexts: first, facts based legal unreasonableness; and second, outcome focused unreasonableness, where there is no intelligible justification for the decision or no reasonable decision maker would have made the decision which may include unreasonable exercise/non-exercise of procedural discretions.
In order to give rise to jurisdictional error on the basis of legal unreasonableness, illogicality or irrationality, the question before this Court is whether the decision to which the Authority came is one that no rational or logical decision‑maker could arrive on the same evidence: Minister for Immigration v SZMDS[2010] HCA 16; (2010) 240 CLR 611 at [130] per Crennan and Bell JJ.
In respect of legal unreasonableness in relation to the exercise of procedural discretions, the legislature is taken to intend that the Authority’s statutory power in s.473DC will be exercised reasonably: CRY16 at [82]. This includes inviting the Applicant to comment or provide new information on the new material that was not before the Delegate: CRY16. That the Authority has a discretion, rather than a duty, to get those documents or information does not provide an answer to whether or not the Authority acted reasonably: CRY16 at [69].
Proceeding in this Court
At hearing before me, the Applicant was represented by Mr Taylor, solicitor, and the Minister by Mr Jonathan Kay Hoyle of counsel.
Consideration of Grounds
Group A: Satanic tattoos/ the Arm Tattoos
The Applicant asserts that the Authority in considering the Applicant’s claim regarding the Arm Tattoos:
(a)incorrectly applied the test in s.473DD(b)(ii) of the Act as it “failed to consider whether other Iraqis would discover them in the reasonably foreseeable future” – Ground 2;
(b)incorrectly applied the test in s.473DD(a) because the Authority “failed to consider the statement that “I [the Applicant] could not accept interference…in my emotional relationships as a young man” – Ground 3;
(c)incorrectly applied the test in s.473DD(a) and (b)(ii) as “the decision uses impermissible and circular reasoning to exclude consideration of the new information, for the reason that it was not raised previously, and hence was ‘new information’ – Ground 4;
(d)incorrectly applied the test in s.473DD and “applied the wrong threshold credibility test for consideration of this new information” – AS [23].
(e)only considered whether the Applicant explicitly expressed views contrary to those of Shia Islamic fundamentalists, and failed to consider views expressed by the Applicant’s innate characteristics – Ground 9.
I first address the Authority’s application of s.473DD of the Act as it informs the consideration of Group A grounds.
As I have said above, pursuant to s.473DC(2) of the Act, the Authority is not under any duty (or obligation) to accept “new information” given to it by an applicant: CLV16 at [47]; BZC17 at [69].
At [8] (see above at [22]), the Authority accepted “that the claim that the applicant has such a tattoo is factually correct”.
At [8], the Authority also considered whether the Arm Tattoos comprised credible information which was not previously known, and, had it been known, may have affected the consideration of the Applicant’s claims; see: s.473DD(b)(ii). The Authority observed that “the Applicant proved [provided] no information to support the assertion that he will be at risk because of his tattoo”. The Authority then concluded that it was not satisfied that the existence of the Arm Tattoos comprises credible personal information which may have affected consideration of his claims.
The Applicant had the Arm Tattoos prior to the PV Interview but did not display it to the Delegate. It follows that chronologically the information could have been provided to the Delegate/ the Minister before the Minister made the decision under s.65 of the Act.
By Ground 2, Mr Taylor argues that the Authority failed to assess whether the Arm Tattoos would be discovered in the foreseeable future. He submits that the Authority applied the wrong test by failing to consider whether the fear of discovery constituted a well-founded fear of persecution.
Mr Hoyle argues that information of the Arm Tattoos in the Authority Submissions was an assertion, and provided no further basis to assist the Authority in its consideration of whether the information was credible personal information.
I accept Mr Hoyle’s submission. As the Authority said at [8] (see above at [22]) the Applicant provided no information to support his assertion that he will be at risk because of his Arm Tattoos. Assertion is not information. That the Applicant had the Arm Tattoos did not, without more, give any assistance to the Authority.
The Applicant was represented. It was not for the Authority to speculate in the absence of information. I find that the Authority’s conclusion was open to it.
Ground 2 is not made out.
Ground 3 is without foundation. I do not accept that the Authority failed to consider the Applicant’s “self-expression through his tattoos was a form of his emotional relationship”. It was open to the Authority to find that the Applicant provided no information that led the Authority to conclude that exceptional circumstances warrant consideration of the claim. Ground 3 must fail.
By Ground 4, the Applicant argues that the Authority incorrectly applied the test in s.473DD(a) and (b)(ii) as “the decision uses impermissible and circular reasoning to exclude consideration of the new information, for the reason that it was not raised previously, and hence was new information.”
The conditions in s.473DD(a) and s.473DD(b) are cumulative, both must be met in order for the Authority to consider the new information: see BRA16; AUH17. I have found above that it was open to the Authority to find that the Arm Tattoos information was not “credible personal information” pursuant to s.473DD(b)(ii). For this reason an analysis of a failure by the Authority with regard to its consideration of whether exceptional circumstances apply is futile. Ground 4 fails.
By Ground AS [23], the Applicant asserts that the Authority incorrectly applied the test in s.473DD when considering the new Arm Tattoos information.
Mr Hoyle submits that the Authority’s findings that s.473DD(b)(i) was not met was clearly available. The Arm Tattoos information could have been provided to the Minister before the Minister made the decision. It was also open to the Authority to conclude that the Applicant would not show the Arm Tattoos in Iraq.
The Applicant did not provide information to the Authority to support the assertion that he will be at risk because of the Arm Tattoos. For the reasons I have already stated, I find that the Authority correctly considered s.473DD. Ground AS [23] is not established. It must fail.
By Ground 9, the Applicant asserts that the Authority failed to consider whether the Applicant would be perceived to have expressed such views in the eyes of the persecutors because of his innate characteristics. At hearing, Mr Taylor identified the innate characteristic to include the Applicant’s Arm Tattoos.
Mr Hoyle argues that the Applicant at no stage claimed or suggested that he would be at risk because radical Islamists or others would become aware of such views expressed by his innate characteristics. He submits that it is for the Applicant to advance the claims that he relies on, and that Ground 9 relies on the Authority being required to construct claims for the Applicant. Such requirement is particularly acute within the more restricted and fast-track claims environment mandated under Part 7AA of the Act.
I consider Ground 9 is flawed. I have already stated that the Applicant was represented. It is not for the Authority to speculate about claims not made. The Authority was not satisfied that there were exceptional circumstances to justify the consideration of information about the Arm Tattoos pursuant to s.473DD of the Act. The Authority did not fall into error by failing to consider information it had already excluded by reason of the operation of s.473DD. Ground 9 is not made out, it must fail.
The Group A grounds are not made out.
Group B: non‑conformist or ‘emo’ status
The Applicant asserts that the Authority, in assessing the Applicant’s “non‑conformist” or “emo” claims:
(a)failed to address the claim in the “context of the entirety of the Applicant’s claim to be considered as non‑conformist as a result of the totality of his innate non‑conformist characteristics” – Ground 8A;
(b)failed to consider cumulatively the Applicant’s “membership of the PSG of family member of persons who have fought against the Mehdi Army, having prominent satanic tattoo motifs, his regular use of alcohol, and his emotional relationships such as being in a de facto relationship” – Ground 8B.
Ground 8A asserts that in assessing the Applicant’s claims the Authority assessed the Applicant’s claim of being at risk as a non‑conformist or “emo” within the ambit of perpetrators’ perception of the Applicant’s mental health status.
Mr Hoyle submits that the Applicant did not refer to the “emo” claim in connection to the Applicant’s claims of being at risk due to perceptions that he was a secular and moderate Shia Iraqi in the Authority Submissions. He submits that the Applicant stressed the potentially negative effects that his psychological issues may create in being perceived as “emo” in the context of his claims about his mental health. He further submits that the Authority was correct to assess the “emo” claim as one linking the mental health with perceptions that the Applicant may be “emo”.
I find that in the Authority Submissions, the Applicant advanced claims about his “emo” status within his mental health claims. The claim as now advanced now by Mr Taylor on behalf of the Applicant was not advanced before the Authority.
Before the Authority, the “emo” claim was referred to first in connection to the psychological harm the Applicant had suffered.
In the Authority Submissions, under the heading “Claim of being at risk due to being a moderate and secularised Shia Iraqi”, the last paragraph commences with the following sentence:
TATTOOS. The Applicant’s representative indicated that the Applicant has suffered psychological harm [submissions page 10], and noted that the Applicant comes from a culture in which it is taboo (Haram), and thus makes a person religiously unclean.
The claim was raised in connection to the Applicant’s satanic tattoos (ie, the Arm Tattoos). The paragraph concludes with the sentence “Together the brothers would be seen as a gang of apostates, adulterers, religiously unclean, and emos, to be punished”. The Authority determined it could not consider the new information by reason of the operation of s.473DD.
Secondly, under the section “psychological distress and possible PTSD…”, the Applicant claimed “The psychological issues of the Applicant would make him more likely to be perceived as non‑conformist, being perceived as “emo” or labelled as ‘gay’ by Shia militias and extremists and punished”.
I find the Authority correctly assessed the claim as one linking the Applicant’s mental health with perceptions that the Applicant may be “emo” because this was how the claim was presented before the Authority.
Ground 8A is not established, it must fail.
By Ground 8B the Applicant asserts that the Authority failed to consider the risk of future significant harm to the Applicant as a result of the cumulative current and innate characteristics, which include membership of the particular social group of ‘family member of persons who have fought against the Mehdi Army’, having prominent ‘satanic’ tattoo motifs, his regular use of alcohol, and the Applicant’s ‘unmarried’ relationship with TL.
Mr Hoyle submits that the integers referred to in Ground 8B involved matters that the Authority determined it could not consider by reason of the operation of s.473DD.
I accept Mr Hoyle’s submission. Ground 8B is similar to Ground 9. I find that the Authority did not fall into error by failing to consider information it had already excluded by reason of the operation of s.473DD. Ground 8B is not established, it must fail.
Grounds 8A and 8B are not made out, they must fail. It follows the Group B grounds fail.
Group C: “fabricated” relationship
The Applicant asserts that the Authority fell into jurisdictional error in its consideration of the new information provided to it regarding the Applicant’s relationship status in the following ways:
(a)the Authority incorrectly found “without evidence or justification that the claim of being in a relationship with an Australian citizen was a fabrication” – Ground 10;
(b)the Authority misapplied s.473DD(b)(ii) by using “circular reasoning, and excluded the information because it was ‘new information’, by indicating that as the information was not disclosed previously, therefore it was not true.” – Ground 12;
(c)the Authority failed to “assess whether there was any risk of harm to the Applicant to be being perceived as a non‑conformist due to his emotional relationships” – Ground 13;
(d)the Authority incorrectly applied the test in s.473DD – Ground AS [1].
These grounds may be considered together.
The Applicant first raised his relationship to TL, and his role as a stepfather to TL’s son in the Authority Submissions.
At [19] of the Applicant’s Authority Submissions, regarding the Applicant being in an unmarried relationship, Mr Taylor contended that, “The Delegate failed to consider this issue, separately or cumulatively as part of the Applicant’s claims to be at risk because of being secularised.”
The Authority at [7] rejected that contention and noted that “this is because the issue has not been mentioned or alluded to at any point by the Applicant. At Q35 of his PV application the applicant gave his marital status as “Never married or in a de facto relationship” and at no point informed the delegate that this was incorrect.”
By the Group C grounds, Mr Taylor contends that the Authority’s consideration of s.473DD(b)(ii) was limited to the Applicant’s failure to raise the new information at an earlier stage. He further contends that the Authority did not consider any other factors in rejecting the claim.
At hearing before me, Mr Taylor clarified that the addition of that contention to the submissions was due to an error, and it is not in dispute between the parties that information of the Applicant’s relationship with TL was not before the Delegate.
Mr Taylor relied on CSR16 at [39] to [43] (see above at [58] and [59]) to contend that the Authority misunderstood the threshold test of “credible personal information”. He argues that the Authority failed to consider whether the information may have affected the consideration of the Applicant’s claims under s.473DD(b)(ii). He further argues that the Authority found without evidence or justification that the Applicant’s relationship with TL was a fabrication.
Mr Hoyle contends that the Authority’s conclusion that the claim was fabricated was an available one, bearing in mind the contrast between the prior claims before the Delegate and the claims as articulated to the Authority. He argues that the Authority’s finding fell within [42] of CRS16, namely that it was open to the Authority to find that the Applicant’s relationship was “evidently not credible”. Additionally, the Authority did not engage in a narrow reading of “exceptional circumstances”, in part because the Applicant did not submit to the Authority any broader subset of facts which might have been pertinent to an assessment of exceptional circumstances.
Consideration
I read the Authority’s finding on the relationship at [7] as a finding first, in relation to Mr Taylor’s assertion that the claim had been raised before the Delegate, and that the Delegate failed to consider the issue, and secondly, and separately, a finding by the Authority that the relationship was a fabrication informing the Authority’s decision that it consequently did not consider the new information comprised credible personal information, noting that it was not satisfied exceptional circumstances warrant consideration of the claim.
I do not consider the use of the word “fabrication” by the Authority an indication that it imposed a higher standard of satisfaction of s.473DD(b)(ii). I find the Authority’s finding falls within the standard of satisfaction described in CRS16 at [42]. The Authority was not satisfied that the new information was capable of being believed at the deliberative stage of the Authority’s review.
So too, I find that the Authority was not under an obligation to assess any risk of harm to the Applicant for being perceived as a non‑conformist due to his emotional relationships after it had correctly found that the new information did not comprise credible personal information, and noting that it was not satisfied exceptional circumstances warrant consideration of the claim.
I find the Authority’s finding that the relationship was a fabrication was informed by the Applicant’s contrary evidence to the Delegate that he was never married or in a de facto relationship and the Applicant’s failure to inform the Delegate otherwise.
I find that the Group C grounds are not made out. They must fail.
Group D: Applicant’s mental health
The Applicant asserts that the Authority fell into jurisdictional error in assessing the Applicant’s claims regarding his mental health in the following ways:
(a)the Authority “failed to exercise jurisdiction under s.473DC(3) to consider inviting the Applicant to respond to its concerns or to provide further information” – Ground 14;
(b)the Authority made a finding that the Applicant could seek, and obtain an alternative method of self-medication without reference to evidence or by speculation – Ground 15;
(c)the Authority failed to intellectually engage with the Applicant’s evidence of an alcohol dependency – Ground 16;
Mr Taylor made submissions concerning the Applicant’s mental health in the Authority Submissions. He did not provide any evidence from a medical or a mental health practitioner nor any information as to the current affect to the Applicant of any mental health condition.
Ground 14 asserts that the Authority failed to exercise jurisdiction under s.473DC(3) to invite the Applicant to respond to its concerns or to provide further information regarding his mental health.
At [9], and at [21] of the Authority Decision (as to the latter, see above at [33]), the Authority stated that it had not been provided with any medical evidence about the Applicant’s mental health issues, or whether he had received treatment. At [21], the Authority found in these circumstances, it was unable to draw any conclusions as to the effect of any mental health conditions on the Applicant’s day‑to‑day functions.
Section 473DC(3) does not impose a duty on the Authority to invite a person to give new information. In the present case, where the Applicant was represented and had not provided any supporting medical evidence, I consider that the Authority acted reasonably. Ground 14 is not established.
By Ground 15, the Applicant asserts that the Authority fell into error by finding that the Applicant could seek, and obtain an alternative method of self-medication without reference to evidence or by speculation.
It is not in dispute between the parties that the Applicant did not provide medical evidence concerning his mental health problems to the Authority. The Authority found at [22] that “the contention that the Applicant ‘would self-medicate’ in the future presupposes that he will not seek any other treatment for his mental health conditions. In any event, I consider the contention to be speculative and do not accept it.”
Ground 15 is flawed. The Authority did not find that the Applicant would not seek alternative self-medication, contrary to Mr Taylor’s submission. Rather, the Authority observed that the presupposition did not follow. I find the Authority’s finding was one that was open to it. The ground fails.
Ground 16 asserts that the Authority failed to intellectually engage with the Applicant’s evidence of an alcohol dependency.
Ground 16 is equally flawed. The Authority at [21] set out the evidence before it, and the lack of medical evidence regarding the Applicant’s mental health. At [22], the Authority stated that “in relation to the Applicant drinking alcohol, this claim has not been made at all prior to the PV interview. The applicant has at no point claimed to have drunk alcohol in Iraq before leaving the Country at age 21 or to have been punished for any anti-Islamic activities”.
The Authority also noted that the Applicant claimed to have suffered from depression and related conditions since childhood. It is apparent from these references that the Authority engaged with the evidence submitted by the Applicant to the Delegate and the Authority, and engaged in an analysis of that evidence.
It follows that I do not find that the requisite intellectual engagement was absent: see Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569.
Ground 16 must fail.
Group E: Refusal of an extension of time
The Applicant asserts that the Authority acted in a manner that was legally unreasonable by refusing:
(a)“to allow an adequate extension of time to provide further information when the representative requested such an extension of time and provided a medical certificate” – Ground 18;
(b)“to make a decision to communicate that an effective extension of time would be granted in the manner usual for the [Authority] by its normal practice” – Ground 19;
(c)the Applicant further time to submit information concerning his relationship – Ground AS [16].
These grounds may be considered together. They raise the same matters.
For the history of the extension of time see above at [10] to [14].
Mr Taylor submits that he was “left without a timeframe for the submissions of further information which the [Authority] had been put on notice was being prepared. In attempting to balance quality of information with the urgent and instant provision of that information to the [Authority], the further new information although almost complete was not provided to the [Authority] prior to the decision.”
Mr Hoyle submits that it is not in dispute that a discretionary power, statutorily conferred, must be exercised reasonably: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, per Nettle and Gordon JJ, and more specifically that the discretionary powers conferred on the Authority by Division 3 of Part 7AA are conferred on the implied condition that they are to be exercised reasonably: see BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35, at [29].
Mr Hoyle submits that reasonableness is informed by the subject matter, scope, and purpose of the legislation in question: relying on BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 per Thawley J at [71]; SZVFW per Kiefel CJ at [11]-[13]; per Nettle and Gordon JJ at [88]-[90]. Further that the test of unreasonableness is necessarily stringent: see SZVFW, per Kiefel CJ at [11]. In this case, the imposition of strict time limits is consistent with one of the statutory purposes of Part 7AA of the Act, and the limited process of review it contemplates, is the efficient and expeditious resolution of claims: see M174, per Edelman J at [96].
I do not accept Mr Taylor’s submission. The Group E grounds must fail, at least for the following reasons.
The Practice Direction is made pursuant to the statutory power in s.473FB of the Act. The Authority must “as far as practicable” comply with the Practice Direction, as per s.473FB(2), and s.473FB(3) of the Act. The Practice Direction makes clear that submissions and further material must be provided within 21 days of the date on which the case is referred to the Authority. The Practice Direction makes no mention of extension of the 21 day period as a matter of routine, or as a matter of “practice” contrary to the Applicant’s submission.
The Applicant’s request for extension, communicated by email to the Authority on 24 January 2018, solely relied on the engagement of a new lawyer. There was no evidence of any particular circumstances in which the new lawyer had to be retained. In the circumstances of this case, I find that the Authority did not act unreasonably in refusing the extension of time
The Group E grounds are not made out. They must fail.
Group F: Miscellaneous grounds
The Applicant asserts that the Authority fell into jurisdictional error by:
(a)failing to identify the Applicant’s explanation regarding why his younger brothers were not threatened or harmed by the militias as new information under s.473DD – Ground 1;
(b)only considering whether the Applicant explicitly expressed views contrary to those of Shia Islamic fundamentalists, and failed to consider views expressed by the Applicant’s innate characteristics – Ground 9.
At hearing, Mr Taylor accepted that Ground 9 should be considered in Group A, and I have done so.
The Authority accepted that there was a moderate risk to people in Iraq who had worked for foreign forces but noted that country information did not support the conclusion that such risk is extended to family members.
In the Authority Submissions, Mr Taylor noted that:
“The Delegate spent some time disagreeing with the Applicant, and separately with his brother, about how the younger brother [redacted] was in exactly the same situation as them at age approximately 17 or 18 in 2012 and around 23 at the end of 2017, and yet did not flee and was not harmed. However the Applicants have clarified that when they said that [redacted] was young, they were trying to convey that the militias did not hold [redacted] accountable for his brother’s actions in joining the Iraqi army and fighting against them, because he was younger still, approximately 13 or 14 at the time the older brothers were in the Iraqi army.” (See below at [1] of Schedule 1).
Mr Hoyle accepts that the Authority did not address the Applicant’s submissions pertaining to his younger brother. He argues, however, that there was no need for the Authority to do so. Following the Authority’s findings that the Applicant or his family members were not at risk from the Mehdi Army, the information provided to the Authority regarding his younger brother was rendered moot. The claim was only relevant in circumstances where the Authority otherwise accepted that the Applicant or his family members had been threatened.
I accept the Minister’s submissions. There was no need for the Authority to consider the information about the younger brother. Ground 1 fails.
Group G – Denouncement Letter
The Applicant alleges that in considering the denouncement letter the Authority incorrectly found that the letter was implausible and inconsistent by reference to the “withdrawn claim about the data breach” – Ground AS [19(ii)].
In the further amended application filed on 2 November 2018, outside the terms of leave, the Applicant inserted a further ground AS [19(i)]. As being beyond the terms of leave, I reject it.
As to Ground AS [19(ii)], the Applicant submits that the Authority considered “irrelevant material” by considering the “withdrawn claim” about the data breach.
Mr Hoyle submits that insofar as this ground may suggest an error of the sort discussed by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [39], it should not be accepted. The High Court made clear in that case that a relevant consideration is one that, on a proper construction of the governing statutes, the decision-maker is required, by the statute, to consider. The “withdrawn claim” as identified by the Applicant is not apt to be described as relevant considerations in this sense.
I accept the Minister’s submissions. This ground relies on a misreading of the Authority’s reasons at [19]‑[20] of the Authority Decision. There is no dispute that a claim was withdrawn. However, what was withdrawn was a claim that the Applicant’s family were forced to move from Karbala in 2017; not the claim more broadly concerning the data breach. The terms of [19] of the Authority Decision make this clear where the Authority noted that the Applicant’s parents were threatened due to the data breach and separately that “as a result of this the whole family has had to flee Karbala…”. That explains the words that follow: what was withdrawn was the specific claim, not the more general claim about the data breach. The threats to the Applicant’s parents were a distinct matter that was subsequently dealt with by the Authority at [20] of the Authority Decision.
Ground AS [19(ii)] fails.
Post hearing further supplementary submissions
On 13 June 2019, the Applicant filed a document seeking to rely on the interlocutory decision of Ranjiah J of DQU16 v Minister for Home Affairs [2018] FCA 1695, delivered on 14 December 2018.
On 5 July 2019, the parties by consent agreed to the filing of written submissions going to the relevance of DQU16 to the present proceeding.
DQU16 was concerned with an application for an extension of time in which to file a notice of appeal. His Honour granted leave on the basis that the claim was arguable. The arguable claim concerned the applicability of Appellant S395/2020 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2013) 216 CLR 473 to complementary protection under s.36(2)(aa) of the Act.
No such argument was raised at hearing before me.
The Applicant submitted (in a submission prepared by Mr Greg Schipp of counsel) that there was a substantial area of commonality in the factual matrix of DQU16 (as described on the extension of time application by Ranjiah J) and the present proceeding.
I do not accept the Applicant’s submission.
On 22 April 2020, Reeves J decided DQU16 v Minister for Home Affairs [2020] FCA 518 on a final basis. His Honour found at [12] that the Authority was not obligated to assess whether harm that would be avoided by the appellant’s behavioral modification would amount to significant harm as defined in s.36(2B) of the Act.
The issues raised in DQU16, and now dismissed by Reeves J, are irrelevant to the resolution of any grounds pressed before me. The Applicant’s claims concerning his Arm Tattoos were first raised after the Delegate’s Decision. The issue for the Authority was whether the Arm Tattoos as new information met the requirement of (relevantly) s.473DD(b) of the Act.
The Authority was not satisfied the claim met the requirements, and did not consider it. The Authority’s findings at [8] was a finding at the anterior stage of its review.
Given these matters, DQU16 is not relevant to the proceeding before me.
Conclusion
For the reasons I have set out above, the Applicant’s grounds pressed in the further amended application dated 2 November 2018 are not made out. The Authority did not fall into jurisdictional error.
The further amended application must be dismissed, costs will follow the event.
I will so order.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 3 July 2020
Schedule 1
The grounds of review pressed at the hearing as set out in the further amended application filed 2 November 2018 (without alteration, including bolding and underlining, but redacting certain personal information):
1.The decision of the IAA was affected by jurisdictional error, in that the IAA failed to accord natural justice, by failing to identify and assess as new information under s.473DD the explanations of the Applicant addressing why his younger brothers were not threatened or harmed by the militias;
Particulars
The decision fails to identify or consider the following new information included in the Submissions, either at paragraph 4 of the decision or elsewhere in the Decision by failing to consider the Applicant’s explanation for why his younger brothers were not threatened or harmed by the militias:
The part of the Applicant’s submissions of 8th February 2018 stated
The Delegate spent some time disagreeing with the Applicant, and separately with his brother, about how the younger brother [Y-redacted] was in exactly the same situation as them at age approximately 17 or 18 in 2012 and around 23 at the end of 2017, and yet did not flee and was not harmed. However the Applicants have clarified that when they said that [Y-redacted] was young, they were trying to convey that the militias did not hold [Y-redacted] accountable for his brother’s actions in joining the Iraqi army and fighting against them, because he was younger still, approximately 13 or 14 at the time the older brothers were in the Iraqi army.
2. The decision of the IAA was affected by jurisdictional error, in that the IAA incorrectly applied the test in s473DD (b)(ii) for the consideration of new information, because in determining whether the applicant was at risk as a non-conformist due to his tattoos it only considered whether the applicant would show his satanic motif tattoos, and failed to consider whether other Iraqis would discover them in the reasonably foreseeable future.
Particulars:
The decision states:
In relation to the applicant’s tattoo as described at point (d), the submission notes that the applicant did have such a tattoo prior to the PV interview but chose not to display it to the delegate. Section 473DD(b)(i) is not met. I accept that the claim that the applicant has such a tattoo is factually correct. The applicant chose not to display his tattoo to the delegate therefore it would appear that the tattoo would also not be visible in Iraq unless he chose to display it. The applicant claims that he would be punished in Iraq due to non-conformity with societal and Shari ’a rules however this would only be the case if he chose to display his tattoo. Mr Taylor notes that the applicant did not show the delegate his tattoo out of fear of being judged or considered to be a bad person. I am therefore not satisfied that the applicant would display his tattoo in Iraq, for similar reasons. The applicant has proved no information to support the assertion that he will be at risk because of his tattoo. The applicant has not satisfied me that the existence of his Satanic tattoo comprises credible personal information which may have affected consideration of his claims.
3. The decision of the IAA was affected by jurisdictional error, in that the IAA incorrectly applied the test in s473DD (a) for the consideration of new information, because in determining whether the applicant was at risk as a non-conformist due to his tattoos it only considered a part of the sentence of the applicant’s statement of claims referring to hairstyle and dress, and failed to look at the complete sentence in context, an in particular failed to consider the statement that “I could not accept interference … in my emotional relationships as a young man”.
Particulars: In making this statement the IAA erred by failing to recognise that the applicant’s self-expression through his tattoos was a form of his emotional relationship with others.
The IAA stated:
8. … In considering whether exceptional circumstances justify consideration of this claim, I note that the applicant raised in his statement of claims that he faced the interception of the Mehdi Army and religious groups in Karbala due to his dress and his style of hair.
4. The decision of the IAA was affected by jurisdictional error, in that the IAA incorrectly applied the test in s473DD (a) and (b) (ii) for the consideration of new information because in assessing whether the applicant was at risk as a non-conformist because of his tattoos, it used circular reasoning to reject the new information, specifically because it was not raised previously, notwithstanding that it accepted it as a fact.
Particulars:
The decision uses impermissible and circular reasoning to exclude consideration of the new information, for the reason that it was not raised previously, and hence was ‘new information’.
iThe IAA stated: 8. … He has not mentioned the addition of a “satanic” tattoo to his appearance. …
5. Deleted – not pressed
6. Deleted – not pressed
7. Deleted – not pressed
8.Deleted – not pressed
8A. The decision of the IAA was affected by jurisdictional error, in that the IAA in assessing whether the applicant was at risk as a non‑conformist or “emo” only considered the part of the submissions that the applicant’s mental health status would contribute to such a perception in the eyes of the perpetrators, but the IAA failed to address this aspect of the claim in the context of the entirety of the Applicant’s claim to be considered as non‑conformist as a result of the totality of his innate non‑conformist characteristics.
Particulars:
The applicant claims to suffer from mental health issues and has done so since childhood. I have rejected the claim that this will cause him to be viewed as homosexual, effeminate or “emo”
8B. The decision of the IAA was affected by jurisdictional error, in that the IAA failed to consider the risk of future significant harm to the Applicant if removed to Iraq, as a result of the cumulative current and innate characteristics, including membership of the PSG of family member of persons who have fought against the Mehdi Army,
includinghaving prominent satanic tattoo motifs, his regular use of alcohol, and his emotional relationships such as being in a defacto relationship, which would indicate him as a non‑conformist, westernised, secularised young man.
9. The decision of the IAA was affected by jurisdictional error, in that the IAA only considered whether the applicant had openly expressed or declared any views contrary to the goals of Shia Islamic fundamentalists, and failed to consider whether the applicant would be perceived to have expressed such views in the eyes of the persecutors because of his present innate characteristics.
Particulars
The decision stated:
The applicant claims that he is opposed to fundamentalist groups and ideals, including the radical Islamist goal of establishing Iraq as an Islamist state under an Islamic regime based only on Sharia law. I accept that he holds these views but do not accept that he has openly or publicly espoused or declared them. … I am not satisfied that the applicant faces a real chance of harm on the basis that he is a moderate or secular Shia Muslim.
10. The decision of the IAA was affected by jurisdictional error, in that the IAA found, without evidence or justification, that the claim of being in a relationship with an Australian citizen was a fabrication.
Particulars:
The IAA stated at paragraph 7;
…At Q35 of his PV application the applicant gave his marital status as “Never married or in a de facto relationship” and at no point informed the delegate that this was incorrect. I do not accept that such a claim could not have been provided to the delegate. I consider this new claim to be a fabrication and consequently do not consider that it comprises credible personal information. I am further not satisfied that exceptional circumstances warrant consideration of the claim as set out at point (c) above.
11. Deleted – not pressed
12. The decision of the IAA was affected by jurisdictional error, in that the IAA in assessing whether the applicant was in an unmarried relationship with an Australian citizen, misapplied s.473DD(b)(ii), by making a finding on the credibility of the information which was beyond the evidence, and was made by reference to evidence in a way which used circular reasoning, and excluded the new information because it was ‘new information’, by indicating that as the information was not disclosed previously, therefore it was not true.
Particulars:
The Decision states:
4…. Mr Taylor additionally submits the following claims, which are new information:
(c) The applicant is unmarried but is in a committed relationship with a woman and is a stepfather to her son. This relationship would be considered un-Islamic in Iraq and the applicant would be considered to be an adulterer;
…At Q35 of his PV application the applicant gave his marital status as “Never married or in a de facto relationship” and at no point informed the delegate that this was incorrect. I do not accept that such a claim could not have been provided to the delegate. I consider this new claim to be a fabrication and consequently do not consider that it comprises credible personal information. I am further not satisfied that exceptional circumstances warrant consideration of the claim as set out at point (c) above.
13. The decision of the IAA was affected by jurisdictional error, in that the IAA in finding that the applicant had fabricated a claim of being in an unmarried relationship, it failed to exercise jurisdiction to assess whether there was any risk of harm to the applicant to be being perceived as a non-conformist due to his emotional relationships.
Particulars:
The IAA did not assess the risk of harm arising from this claim.
14. The decision of the IAA was affected by jurisdictional error, in that the IAA in assessing whether the applicant was at risk of harm if returned, due to his mental health status or condition, failed to exercise jurisdiction under s.473DC(3) to consider inviting the applicant to respond to its concerns or to provide further information about this.
Particulars:
The IAA stated:
The applicant claims to suffer from significant mental health issues and states that he attempted suicide while in detention on Manus Island. He has provided no medical evidence relating to this. At his PV interview he stated that he had suffered a lot throughout his life and was always anxious. He stated that “I have never lived my life”, since he was a child. There is no information before me as to whether the applicant has received treatment for any mental health conditions or what such treatment may have constituted. He claims that “I felt depressed and my nerves broken” since leaving school after Grade 6. In the absence of any Further information or documents of support I am not satisfied that the applicant has been diagnosed with a mental health condition or currently receives treatment for any such condition. I am unable to draw any conclusions as to the effect of any mental health conditions on the applicant’s day-to-day functioning.
15. The decision of the IAA was affected by jurisdictional error, in that the IAA in assessing whether the applicant was at risk of harm due to his mental health status or condition, it made a finding without reference to evidence, or entered into speculation, by finding that the Applicant could seek, and obtain, an alternative method of self medication for his mental health conditions and so no longer require alcohol in order to be able to sleep, and would no longer be dependent on alcohol, including for the purpose of sleeping.
Particulars
The decision states:
The applicant stated at his PV interview that “If I don’t drink every night, then I don’t sleep” and Mr Taylor notes in his submission to the IAA that: “The Delegate did not explore the issue which arises clearly and squarely on the evidence that if the Applicant returned to Iraq he would need to self-medicate each night with alcohol and would therefore be at risk of punishment for anti-Islamic activities”. In relation to the applicant drinking alcohol, this claim has not been made at all prior to the PV interview. The applicant has at no point claimed to have drunk alcohol in Iraq before leaving the country at age 21 or to have been punished for any anti-Islamic activities. He claims to have suffered from depression and related conditions since childhood. The contention that the applicant “would need to self-medicate” in the future presupposes that he will not seek any other treatment for his mental health conditions. In any event, I consider the contention to be speculative and do not accept it. In relation to whether the applicant would drink alcohol on return to Iraq for any reason other than “self-medication”, the applicant has not made such a claim and I conclude that he would not.
…
The referred information does not support the contention that mental health treatment is absent in Iraq however even if this were the case it would be due to the lack of such facilities within the country, rather than his inability to access such treatment due to his race, religion, nationality, membership of a particular social group or political opinion. He does not have a well-founded fear of persecution on this basis.
16. The decision of the IAA was affected by jurisdictional error, in that the IAA’s decision was legally unreasonable, in assessing whether the applicant needed to drink alcohol for any other reason than his mental health condition, because in doing so it failed to intellectually engage with the applicant’s own evidence that he had an alcohol dependency and instead viewed it solely as one of many treatments the IAA speculated might be available for mental health conditions in Iraq.
Particulars:
Refer to the particulars provided in the above paragraph.
17.Deleted – not pressed
18. The decision of the IAA was affected by jurisdictional error in that the IAA unreasonably refused to allow an adequate extension of time to provide further information, when the Representative had requested such an extension of time and provided a medical certificate.
19. The decision of the IAA was affected by jurisdictional error in that the IAA unreasonably refused to make a decision to communicate that an effective ‘extension of time’ would be granted in the manner usual for the IAA by its normal practice, in which it may indicate a future date before which no decision would be made, and in relation to which date any new materials submitted prior to that date would be considered.
Particulars:
This is not referred to in the decision.
AS1.Regarding the claim of being in an un-islamic relationship and therefore perceived as being an adulterer;
The decision of the IAA was affected by jurisdictional error, in that the IAA incorrectly applied the test in s473DD
(b)(ii)for the consideration of new information.AS16.The IAA failed to reasonably exercise the power to allow further time for the submission of information concerning the relationship, in circumstances where the Applicant had requested more time.
AS19.
i.The IAA in considering the denouncement letter at paragraph 19 and 20 did not make findings about the claims (arising squarely on the materials), of the potential risks of harm to the applicant in Iraq as a person lacking the protection of his tribe [at 19 - 20].
ii.The IAA in making findings about the denouncement letter being implausible and inconsistent, considered irrelevant material by considering it by reference to the withdrawn claim about the data breach, which the IAA accepted [at 5] had already been withdrawn [at 5].
AS23.In respect of the tattoos, the decision of the IAA was affected by jurisdictional error, in that the IAA incorrectly applied the test in s473DD
(b)(ii)for the consideration of new information.
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