BFV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCCA 3684
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFV18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2019] FCCA 3684 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether decision of Immigration Assessment Authority affected by jurisdictional error – whether jurisdictional error arose from the failure of the Secretary to provide the Immigration Assessment Authority with all documents – whether Immigration Assessment Authority acted unreasonably in failing to obtain material before making a decision under s.473DC of the Migration Act 1958 (Cth) – whether Immigration Assessment Authority misapplied or misconstrued s.473DD of the Migration Act 1958 (Cth) in relation to new information – whether Immigration Assessment Authority considered all claims – whether the findings of the Immigration Assessment Authority were open to it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 31, 36, 65, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474, 476 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | BFV18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 675 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 22 July 2019 |
| Date of Last Submission: | 22 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greg Schipp |
| Solicitors for the Applicant: | Sydney West Legal and Migration |
| Counsel for the Respondents: | Ms Reg Greycar |
| Solicitors for the Respondents: | HWL Ebsworth |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 675 of 2018
| BFV18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND 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) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 14 February 2018 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 15 December 2017 refusing the applicant a Temporary Protection (Class XD) (Subclass 785) visa (“Protection Visa”).
The applicant is a Shia Muslim, citizen of Iraq and of Arab ethnicity, who fears harm from militias, including the Medhi Army in Iraq.
Background
The applicant arrived in Australia on 21 January 2013 having departed Iraq with his brother, M, in October 2012.
On 11 October 2016, the applicant lodged an application for a Protection Visa with the Department of Immigration and Border Protection.
On 15 December 2017, the Delegate refused the applicant’s application for a Protection Visa.
On 20 December 2017, the Delegate’s decision refusing the applicant a Protection Visa was referred to the Authority.
On 14 February 2018, the Authority handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.
On 15 March 2018, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
Section 5H of the Act defines “a refugee”.
Section 5J of the Act defines “a well-founded fear of persecution”.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Section 36(2A) and s.5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track reviewable decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track reviewable decision, or a specified class of fast track reviewable decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC of the Act provides:
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
Section 473DD of the Act provides as follows:
“Considering new information in exceptional 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 applicant’s application for a Protection Visa
The applicant’s claims for protection can be summarised as follows:
a)The applicant’s father was in the army under the Saddam regime and a member of the Ba’ath Party.
b)In 1993, the applicant’s uncle was accused of being against the Saddam regime.
c)The applicant’s family was subsequently displaced from Basra and moved to Karbala.
d)The applicant’s two brothers joined the Iraqi military sometime in the 2000’s.
e)The Mehdi Army were aware that the applicant’s two brothers joined the Iraqi military and of the applicant’s father’s role in the Ba’athist Army.
f)The applicant’s brother, J, disappeared in 2009 and the applicant claims he was abducted.
g)Members of the Mehdi Army came to the applicant’s house and accused the family of being “stooges” and working with the occupation forces.
h)The Mehdi Army told the applicant’s father that they would kill his children. The applicant and his brother, M, left Karbala and subsequently left Iraq.
i)As the applicant is a moderate and secular Shia Muslim, he will be considered a kafir, an apostate enemy of Islam.
j)The applicant worked as a barber in Iraq prior to departure and would have to do so on return. He would be at risk of harm from militias who punish those who violate Islamic laws in relation to hair and beards.
k)The applicant’s details were released on the internet by the Department and he was informed of this by letter dated 12 March 2014. The applicant was concerned that this information was communicated to the Iraqi state, as Iraqi security is in the service of the militias including the Mehdi Army. Men recently approached the applicant’s father and said that they were aware that his sons were traitors and collaborators in Australia. As a result their tribe denounced the applicant and his brother M.
l)The applicant suffered a psychotic episode while in detention on Manus Island.
The Delegate’s decision
On 16 October 2017, the applicant attended an interview with the Delegate with his registered migration agent. At the interview with the Delegate, the applicant provided a “letter of denouncement” in support of his application. The Delegate considered this letter to have been presented as evidence of a threat from the Medhi Army.
The Delegate accepted that the applicant’s father and two of his brothers had been in the army and that one of his brothers, J, had gone missing in 2009. However, the Delegate did not accept that J had been abducted or killed by the Mehdi Army or that the Mehdi Army subsequently targeted and threatened the applicant’s family as they were perceived to be collaborators. The Delegate also did not accept that the applicant worked as a hairdresser or barber. Nor did the Delegate accept that the applicant’s family were recently threatened and had to leave Karbala because the applicant’s details were released in the Department of Immigration and Border Protection’s data breach in early 2014. The Delegate concluded that the applicant did not face a real chance of persecution or a real risk of significant harm for these reasons, or for any other reason.
On 15 December 2017, the Delegate refused the applicant’s application for a Protection Visa on the basis that the applicant is not a person to whom Australia has protection obligations because the person is a refugee and does not meet the alternative complementary protection criterion.
The Authority’s decision
The Authority’s decision is accurately summarised in the submissions of the first respondent as follows:
“The IAA decision
Material before the IAA: new information
16. The IAA noted that it had regard to the material referred by the Secretary pursuant to s 473CB of the Act, and also referred to the IAA submission of 8 February 2018: CB 267 [3], indicating that it contained a number of new claims which could not be considered unless they met the criteria set out in s 473DD. The IAA set out by way of summary the new claims in its reasons at [4]. These were that the applicant had made some false claims at the PV interview (which he now retracted); that the denouncement letter evidenced that by not paying their dues into the Tribal Protection Fund, he and his brother had been denounced by the tribe; that as his girlfriend was non-Muslim and they were not married, they would be at extreme risk of being “killed as adulterers” if he were returned to Iraq; that his tattoo would cause him to be punished for not complying with societal and Shari’a rules; and that he suffers from mental health issues.
17. The IAA considered each of these claims by reference to the criteria in s 477DD as follows:
17.1. The IAA was not satisfied that the applicant was unable to withdraw his false claims before the delegate’s decision was made, but nonetheless found that his statement that he had fabricated claims was credible personal information which may have affected consideration of his claims and there were exceptional circumstances for considering it. [5]
17.2. The IAA noted that the denouncement letter was tabled at the PV interview, but not included in the review material (at [6]). However, the claim about the Tribal Protection Fund was not made at the interview, and there was no explanation as to why it had not been. The IAA also noted that nowhere in the material was there any reference to the claim now sought to be made concerning the Tribal Protection Fund. For that reason, the IAA was not satisfied that the statement regarding the denouncement letter was credible personal information or that there were exceptional circumstances that warranted considering that new claim.[6]
17.3. The IAA also rejected a contention that the claim about the relationship was not a new claim, but rather, was a claim that arose on the material that had been before the delegate. The IAA was not satisfied that this claim could not have been made to the delegate, nor did it meet any of the other criteria for consideration pursuant to s 473DD. [7]
17.4. The IAA was also not satisfied that the claim about the tattoo was credible personal information, nor that it could not have been made to the delegate, and noted that the applicant (who was professionally represented) had made no prior claim about it in relation to his PV application. [8]
17.5. Finally, the IAA noted that there was no evidence provided in relation to any mental health condition from any medical practitioner and was not satisfied that either limb of s 473DD(b) was met, nor that there were exceptional circumstances that warranted consideration of that claim [9].
The IAA decision on the applicant’s claims
18. The IAA set out the applicant’s claims for protection at [10]. The IAA accepted that the applicant's father was a member of the armed forces under Saddam Hussein and that his brother [J] was a member of the Iraqi Security Force: [12], [14], and that [J] went missing in 2009. However, the IAA did not consider it plausible that MA members approached the applicant's house between 2008 and 2012 and threatened his family. The IAA considered that this claim reflected poorly on the applicant's credibility: [14].
19. The IAA accepted that the applicant was a moderate Shia Muslim but did not accept that he faced a real risk of harm on account of his faith, noting that the applicant had not, and was unlikely to, openly declare opposition to Shia fundamentalists if returned to Iraq: [15].
20. In relation to his work history, the IAA clarified that he was a tile maker, not a tiler, and that when he moved to Baghdad shortly before departing Iraq, he assisted his brother in his barber shop, but did not accept that he had worked as a barber and been beaten up on account of his profession: [15]-[17].
21. In relation to the data breach, the IAA noted at [10] that the applicant had claimed that as a result of those details being released in 2014, in 2017 people had approached his father and indicated that they were aware that he and his brother were traitors and collaborators in Australia and he and his brother had been denounced by the Tribe (see CB 269-270). At [18], the IAA reiterated that this claim was made at the PV interview, and that it was also claimed that as a result of the data breach, the family had had to move from Karbala. However, the IAA noted that the applicant had withdrawn that latter claim. The IAA did not accept that it was plausible that, as a consequence of the 2014 data breach, in 2017, shortly before the PV interview, men visited his parents claiming that the sons were “traitors and collaborators in Australia”: [18].
22. Finally at [19], the IAA, noting that he had made a number of false claims that reflected “poorly on his credibility” was not satisfied, in the absence of any evidence, that he suffered from or received treatment for any mental health conditions.
23. After considering country information about the situation in Iraq, the IAA found that there was not a real chance of harm on the basis of his being a moderate or secular Shia Muslim [24], nor was the IAA satisfied that he faced a real risk of harm from Shia militias, nor from sectarian violence [25]. The IAA was also not satisfied that he faced a real chance of harm on the basis of having spent time in Australia or having unsuccessfully sought asylum in Australia [26].
24. The IAA therefore found that the applicant did not meet the definition of refugee in s 5H of the Act, nor did he meet the requirements of s 36(2)(a) of the Act. [27]. Similarly, the IAA found that there were not substantial grounds for believing that, if returned, there was a real risk that the applicant would suffer significant harm, and thus he did not satisfy the complementary protection criterion: s 36(2)(aa). The IAA accordingly affirmed the decision not to grant him a protection visa.”
The Proceeding before this Court
The applicant was represented before this Court by Mr Greg Schipp, of counsel.
Counsel for the applicant sought to file in Court and rely upon an Amended Application. Leave was opposed by the first respondent but ultimately granted by me. The grounds of the Amended Application are as follows:
“Amended Grounds of Application
1. The IAA lacked jurisdiction in that the Secretary had not provided to it all material provided by the Applicant or otherwise referred the matter appropriately under s473CB.
Particulars
(a) The “denouncement letter”; and
(b) All documents provided by the Applicant between minutes 13-28 of the PV interview,
(c) Documents and information from the file of his brother, including transcripts,
(d) Documents from the Applicant’s detention at Manus island regarding his mental health.
2. The IAA’s decision was infected with jurisdictional error in that the Secretary failed to provide all documents under s473CB.
Particulars
(a) The “denouncement letter”; and
(b) All documents provided by the Applicant between minutes 13-28 of the PV interview,
(c) Documents and information from the file of his brother, including transcripts,
(d) Documents from the Applicant’s detention at Manus island regarding his mental health.
3. The IAA acted unreasonably in failing to obtain the documents in 1 above before making a decision, either under s473DC or otherwise.
4. The IAA failed to consider relevant documents and material, being
(a) The “denouncement letter”; and
(b) All documents provided by the Applicant between minutes 13-28 of the PV interview.
5. The IAA misconstrued and misapplied s473DD or otherwise failed to consider:
(a) The statement of the Applicant in regard to the “denouncement letter”,
(b) The information regarding the Applicant’s “un-islamic” relationship,
(c) The claim in regard to the Applicant’s tattoos,
(d) The Applicant’s mental health issues.
6. The IAA failed to consider clearly articulated submissions of substance, being that the Applicant would suffer harm as a cumulative result of being perceived as effeminate/gay, moderate and secular, in an un-Islamic relationship, a carer for his brother, a person who wears Western clothes and hair styles and non-conformist.”
Grounds 1, 2, 3 and 4 involve complaints essentially arising from two documents that the first respondent agreed were provided by the applicant to the Delegate for the purposes of the applicant’s Protection Visa application before the Delegate and then not provided by the Secretary to the Authority.
The first document is a letter, dated 2 July 2017 and marked Exhibit 2A, and referred to by the Authority as the letter of denouncement (“Denouncement Letter”). Relevantly, the Denouncement Letter states as follows:
“We the undersigned people of the Tribe of “Faraj”; the clan of “Faraj”; and the tribe of Bani Assad hereby declare to all tribes that we have denounced [the applicant] and his brother M of the Province of Holy Karbalaa.
We shall not demand any compensation (for their blood) nor will we pursue any member of any tribe before the law of the land or the tribal laws. We by the virtue of this declaration shall not be responsible for their actions before the court of law and the tribal tribunals.
The second document was a letter dated 25 July 2009 from the Deputy Director of the Minister for the Interior (“the DDMI Letter”) which relevantly states as follows:
“We hereby confirm that [the applicant’s brother J] was reported to be a missing person on 11/07/2009 in the Province of Basra. He is a member of the Iraqi Security (police) Force and it is believed that he was kidnapped by an unknown milieu.”
The DDMI Letter was annexed to the affidavit of the applicant, affirmed 18 July 2019, which was read without objection by the applicant.
Grounds 1(a) and (b) assert that the Authority lacked jurisdiction to conduct the review in circumstances where the Secretary of the Department had not provided to it all material provided by the applicant as required by s.473CB of the Act, in particular the Denouncement Letter and the DDMI Letter.
Grounds 2(a) and (b) assert that the Authority’s decision was infected with jurisdictional error because the Secretary failed to provide all documents under s.473CB of the Act, in particular the Denouncement Letter and the DDMI Letter.
Counsel for the applicant agreed in submissions that Grounds 1 and 2 were different ways of asserting the same error.
Ground 3 asserts that the Authority acted unreasonably in failing to obtain the Denouncement Letter and the DDMI Letter before making a decision under s.473DC of the Act.
Grounds 4(a) and (b) assert that the Authority failed to consider the Denouncement Letter and the DDMI Letter.
Ground 5(a) asserts that the Authority misconstrued and misapplied s.473DD of the Act in relation to the Denouncement Letter.
The applicant submitted that the Denouncement Letter was relevant corroborative material because it demonstrated that when the protection of the applicant’s tribe had been withdrawn, there was a heightened chance of harm to the applicant; and, that it showed that as recently as 2017, the applicant had been the subject of negative attention. The applicant submitted that although the Authority found that the elapse of nine years since the applicant’s brother’s work with the coalition forces was significant, the Denouncement Letter had the potential to negative that finding.
In a submission dated 7 February 2018, the applicant’s migration agent referred to the Denouncement Letter in the following terms:
“The Applicant provided a letter of denouncement provided to his family by his tribe denouncing both himself and his brother [M]. The Delegate considered this letter as a claimed threat letter from the Mahdi army and rejected it. However the letter was not submitted as or understood as a threat letter from the Mahdi Army, but very clearly explained, on the letter, as a denouncement by the Tribe. This was due to the brothers not paying their dues to the Tribal protection fund. It is a letter indicating that by not paying their dues, the brothers have disassociated themselves from the Tribe and will not receive any protection from it. The letter is plausible within the culture of Iraq, which was not understood by the Delegate. This increases the risk of punishment by the Militias for other perceived sins, because there would be no social costs to the Militias for imposing punishments on persons without strong tribal affiliations. Further they have no strong connections to Karbala, being originally from Basra. In addition, DFAT country information report – Iraq, 2017, indicates that there remains discrimination against former members of the Baathist regime (and by implication their families). The fact that the family is not from Kerbala is likely to increase the discrimination due to lack of tribal and political connections there.”
The Authority noted in its decision record that the applicant had provided the Denouncement Letter at the Protection Visa interview. As stated above, a copy was not given to the Authority by the Secretary.
The Authority described the Denouncement Letter as “indicating that by failing to pay their dues into the tribal protection fund, he and his brother… had disassociated themselves from their tribe and have now been denounced by the tribe.”
The Authority noted that the Denouncement Letter had not formed part of the review material. It noted that the applicant stated at the interview that “this is a letter sent to my father asking him to denounce two of his sons.” The Authority noted that the applicant had provided no further information relating to the document at the interview.
The Authority noted that the applicant now made the new claim that the reason he and his brother were denounced by the tribe in the Denouncement Letter was for failing to pay their dues into the Tribal Protection Fund. The Authority noted that there was no indication in the submissions of 7 February 2018 as to why the applicant did not give the Delegate any further evidence relating to the Denouncement Letter. The Authority was satisfied that the applicant could have done so
Further, the Authority found the review material before it to be entirely silent on the existence of Tribal Protection Funds in Iraq. The Authority was not satisfied that the applicant’s recent statement regarding the Denouncement Letter was credible information or that there were exceptional circumstances to justify its consideration.
The Authority also noted the applicant’s claim before the Delegate that the Denouncement Letter was sent to the applicant’s father as a result of the data breach.
The data breach occurred in February 2014 resulting in a report on the Department’s website enabling access to certain personal information about people in immigration detention on 31 January 2014, which included the applicant, being unintentionally released. The Authority found that the applicant’s name, date of birth, nationality, gender, detention details and details of any other family members in detention may have been accessed from the Department’s website during the 8 day period of the data breach. The Authority noted that details of the applicant’s claims for protection were not released, although if accessed the information may reveal that the applicant had sought asylum in Australia.
The Authority then noted the applicant’s claim that 20 days prior to the Protection Visa interview men came to the applicant’s family home and told the applicant’s father that they were aware that “your sons are traitors and collaborators in Australia”. The Authority noted that the applicant did not state who had visited his parents, whether they were from a militia group or from the Iraqi authorities. The Authority noted that the Delegate had put to the applicant that it was unlikely that his family could be identified and located as result of the data breach. The Authority noted the applicant’s response that Iraq was not like Australia and that everybody knew everybody else. The Authority noted that the population of Iraq is some 36 million and, accordingly, did not accept this claim as plausible. The Authority did not accept that the applicant’s parents were approached as claimed and found there was no evidence before it to suggest that the information was accessed by the Iraqi authorities.
The Authority did accept that the applicant may be identifiable on re-entry as a person who sought asylum in Australia due to the manner of his return because of the data breach. However, based on country information before it, the Authority was not satisfied that the applicant faces a real chance of harm for that reason.
It is well settled that the country information to which the Authority has regard and the weight it gives that information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The applicant submitted that the Authority cannot know what is new information without having the Denouncement Letter. The applicant submitted that while the Authority rejected the information provided in the applicant’s migration agent’s submission regarding the Denouncement Letter, it did so without having the Denouncement Letter itself. However, it should be noted that the Authority referred to the contents of the Denouncement Letter in the same terms as had the applicant’s migration agent and the Authority’s summary of those contents was accurate.
The new information affected by the Denouncement Letter is said to be that the applicant’s father was told 20 days prior to the applicant’s Protection Visa interview in 2017 that his sons are traitors and collaborators in Australia. As stated above, that statement by the applicant was made to support his assertion that he was at risk because of the data breach. At the Protection Visa interview, the applicant said that because of this approach his whole family had to flee Karbala. However, the applicant withdrew that claim before the Authority that his whole family had fled Karbala as a result of the applicant’s father being told his sons are traitors and collaborators in Australia. The Authority found that the applicant’s withdrawal of that claim affected the applicant’s credibility.
The Authority considered that information and found there was no explanation as to why the applicant did not give the Delegate that new information and was satisfied that the applicant could have done so. The Authority found the recent statement not to be credible information and that there were otherwise no other exceptional circumstances to justify its consideration.
Those findings were open to the Authority on the material and evidence before it and for the reasons it gave. Its findings were probative of the relevant issues before it and were not without an intelligible justification (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ (“CQG15”); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ (“ARG15”); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ (“DAO16”)).
In relation to the failure of the Secretary to provide a copy of the Denouncement Letter to the Authority, while s.473CB of the Act does state that material must be provided to the Authority by the Department when a decision is referred for review, in its terms s.473CB of the Act contemplates that not all material in the Secretary’s possession or control is required to be given to the Authority, in that, it must be material that is considered by the Secretary to be relevant to the review.
Further, it is well established that a breach of that provision could not of itself give rise to jurisdictional error (see Minister for Home Affairs v CPA16 [2019] FCAFC 40 at [32] per Yates, Murphy and Moshinsky JJ (“CPA16”); EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [41]-[42] per Thawley J (“EMJ17”)).
Whether a jurisdictional error exists will depend on the nature and gravity of any such error. In CPA16, the Full Court stated as follows at [32]:
“A contravention only results in jurisdictional error if the error is material in the sense that it operates to deprive the applicant of the possibility of a successful outcome: see EVS17 at [42]; Hossain [v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780; (2018) 359 ALR 1 (Hossain)] at [30]-[31]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [2], [3], [48], [49].”
The Full Court in CPA16 at [32] made clear that whether a document not provided could have resulted in the making of a different decision must be assessed realistically referring to Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45], [49] and [50] (“SZMTA”).
An applicant for judicial review has the onus of showing that the missing document or information is material (see CPA16 at [32]; SZMTA at [4], [41] and [46]; CQR17 v Minister for Home Affairs [2019] FCAFC 61 at [43], [49]-[50] per Jagot J).
I accept the first respondent’s submission that the Denouncement Letter neither supports the claim at interview in relation to it having been sent as a consequence of the data breach; nor does it appear to support what was contended by the applicant by way of a “new claim” in relation to “Tribal Protection Funds” in Iraq.
In the circumstances, I am not satisfied that the applicant has discharged the onus of demonstrating that any breach of s.473CB(1)(b) of the Act in failing to include the Denouncement Letter in the review material referred to the Authority, was material such that any procedural unfairness was visited upon the applicant.
The applicant also submitted that the Authority acted unreasonably in making its decision without waiting for any response to its letter dated 9 February 2018 to obtain material which would have included the Denouncement Letter and the DDMI Letter.
Unreasonableness is where a decision maker has come to a conclusion so unreasonable that no reasonable decision maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [28] per French CJ), or where a decision has been made that lacks an “evident and intelligible justification” (see Li at [76]; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Li at [30], [113]).
In the circumstances, the failure of the Secretary to provide the Authority with a copy of the Denouncement Letter did not result in any demonstrable unfairness to the applicant and therefore was not a material breach of s.473CB of the Act. It was also plainly considered by the Authority.
Accordingly, the complaints in Grounds 1(a), 2(a), 3, 4(a) and 5(a) in relation to the Denouncement Letter are not made out.
The DDMI Letter
As stated above, the DDMI Letter was annexed to the affidavit of the applicant, affirmed 18 July 2019, and read by the applicant without objection. As stated above, the DDMI Letter was not provided to the Authority by the Secretary. The same regime, principles and issues apply to the DDMI Letter as in relation to this Court’s consideration of the Denouncement Letter.
The DDMI Letter confirms that the applicant’s brother, J, was a missing person and a member of the Iraqi Security (Police) Force. The DDMI Letter asserts that it is believed that J was kidnapped by an unknown militia.
The applicant’s migration agent’s submission to the Authority, dated 7 February 2018, stated that there was no other evidence that J’s disappearance was caused by a kidnapping. The Authority noted that there was nothing in the review material which confirmed that J was a member of the Iraqi Security Forces, but noted that the applicant had consistently claimed that to be the case. The Authority accepted that to be so and also accepted that in July 2009, J went missing in Basra Province and is presumed dead.
The Authority went on to find that country information from 2012 confirmed that Iraqi solders and policeman were killed on a daily basis and that members of the Iraqi Security Forces were singled out for assassination when off duty including in their homes. For that reason family members were also at risk.
However, the Authority noted that the applicant did not claim that the Medhi Army came to their home seeking to harm J, but rather to threaten the other members of the family. Ultimately, the Authority did not accept the applicant’s evidence as plausible and did not accept that Medhi Army members approached the applicant’s house between 2008 to 2012 and threatened his family. The Authority did not accept that the applicant or members of his family were threatened due to J’s employment or as a result of his disappearance.
Although the Authority accepted that violent crime, including kidnappings and killings, occurs in Karbala, the risk of harm is predominately borne by those actively involved in the militia or tribal group rather than ordinary civilians. The Authority found that the applicant was not involved in such groups and was not satisfied that he otherwise faced a real chance of harm from Shia militias, Sunni groups or otherwise arising from sectarian violence. The Authority found that the violent crime was not so widespread as to give rise to a real chance that the applicant would face harm on return.
The Authority accepted the assertions in the DDMI Letter that J was a member of the Iraqi Security Forces and that he was missing presumed dead. The statement in the DDMI Letter that “it is believed that he was kidnapped by an unknown militia” does not materially affect the Authority’s findings. Whether he was kidnapped or not is not the critical or material information. The relevant information, which the Authority accepted, was that the brother was a member of the Iraqi Security Forces, was missing and presumed dead. The findings of the Authority accepted, that there was violence involved in his disappearance, whether kidnapped or otherwise.
The failure of the Secretary to provide the Authority with a copy of the DDMI Letter did not result in any demonstrable unfairness to the applicant and therefore was not a material breach of s.473CB of the Act.
In the circumstances, no jurisdictional error arises from the failure of the Secretary to provide the Authority with a copy of the DDMI Letter.
Similarly to the Authority’s consideration of the information in the Denouncement Letter, the Authority’s findings in relation to the DDMI Letter were open to it on the material and evidence and for the reasons it gave. Again, they were probative of the issues, reasonable and not without an intelligible justification (see CQG15; ARG15; and, DAO16).
In relation to the applicant’s submission that the Secretary should have found material in the brother’s file to be relevant and therefore referred that material to the Authority, it is well established that the question of relevance is the subjective view of the Secretary (see EMJ17 per Thawley J at [41]; Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at [73] per Griffiths J). The applicant bears the onus of showing that the Secretary formed the view that the material not referred was relevant but, having formed that view, then failed to refer it. There is no such evidence before this Court.
Moreover, it is well established that the Authority is under no obligation to seek any new information, including when asked to do so by an applicant. In relation to the applicant’s brother’s case, there is no indication that the applicant ever expressly sought to rely on any particular aspect of his brother’s case (see s.473DC(2) of the Act). In the circumstances, no jurisdictional error arises from the Secretary’s failure to refer the brother’s file to the Authority.
Similarly, to the applicant’s record at Manus Island regarding his mental health, as stated in paragraph 93 below, the Authority was not satisfied that there were exceptional circumstances to justify its consideration of the applicant’s mental health records from Manus Island as a new claim. As stated above, s.473DC(2) of the Act makes clear that the Authority is under no obligation to seek any new information whether asked by an applicant or otherwise.
In any event, I did not understand the applicant to make submissions in relation to Grounds 1(c), (d) and 2(c), (d).
Accordingly, Grounds 1(b), 2(b), 3 and 4(b) are not made out.
Ground 5 asserts that the Authority misconstrued and misapplied s.473DD of the Act or otherwise failed to consider:
a)the Denouncement Letter;
b)the information regarding the applicant’s girlfriend;
c)the claim in regard to the applicant’s tattoos; and,
d)the applicant’s mental health issues.
Ground 5(a) has been essentially dealt with above. In relation to the Denouncement Letter, the Authority stated as follows:
“6. Turning to point (b), the audio record of the PV interview notes that this document was tabled as claimed. It did not form part of the review material. The applicant stated at the interview "this is a letter sent to my father asking him to denounce two of his sons". The applicant provided no further information relating to the document at the interview. He now claims that the reason he and his brother were denounced by their tribe was failing to pay their dues into the Tribal Protection Fund. 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 the letter and I am not satisfied that he could not have done so. The review material is entirely silent on the existence of "Tribal Protection 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.”
As stated above, those findings were open to the Authority on the evidence and material before it and for the reasons it gave (see CQG15; ARG15; and, DAO16).
In relation to Ground 5(b), the Authority did not accept as plausible the new information provided by the applicant’s migration agent that his girlfriend would now accompany him to Iraq if he was to return there and did not find it to be credible personal information. Further, the Authority did not accept that such a claim could not have been provided to the Delegate and was not satisfied that exceptional circumstances warrant its consideration.
Those findings were open to the Authority on the evidence and material before it and for the reasons it gave (see CQG15; ARG15; and, DAO16). Those reasons make clear that the Authority’s findings were made in the context of, and the application of, s.473DD of the Act.
In relation to Ground 5(c), the Authority accepted that the applicant has a tattoo which he chose not to display to the Delegate. The Authority found that in those circumstances, the applicant’s tattoo would not be visible in Iraq unless he chose to display it. The Authority referred to the migration agent’s statement that the applicant did not show the Delegate his tattoo out of fear of being judged or considered to be a bad person. The Authority therefore found that the applicant would not display his tattoo in Iraq for similar reasons.
Further, the Authority found the applicant had not provided any information to support the assertion that he would be at risk because of his tattoo and was not satisfied that the existence of his Satanic tattoo comprised credible personal information which may have affected consideration of his claims. The Authority found exceptional circumstances did not exist to warrant consideration of that claim.
Those findings were open to the Authority on the evidence and material before it and for the reasons it gave (see CQG15; ARG15; and, DAO16). Those reasons make clear that the Authority’s findings were made in the context of, and the application of, s.473DD of the Act.
In relation to Ground 5(d), the applicant submitted that he suffered a psychotic episode on Manus Island. However, in the absence of any diagnosis or evidence of a mental health condition, the Authority was not satisfied that there were exceptional circumstances to justify consideration of that claim. Again, that finding was open to the Authority for the reasons it gave and no jurisdictional error arises by reason of the failure of the Secretary to obtain any such medical records under s.473DC of the Act.
Accordingly, Ground 5 is not made out.
Ground 6 asserts that the Authority failed to consider whether the applicant was at risk of harm as a result of the following characteristics:
“a. Secularised,
b. In an un-islamic relationship,
c. Tattooed with a satanic image,
d. Suffering from a psychological injury,
e. A carer for his brother,
f. A person who wore Western clothes and hair styles,
g. Formerly a barber,
h. Effeminate or gay,
i. Non-conformist.”
If this is intended to be a new claim identifying a particular social group at risk of harm and of which the applicant was a member, it is new information which cannot be considered unless the Authority is satisfied that the conditions for not applying that statutory prohibition in s.473DD of the Act had been met. However, I do not accept it was an articulated claim made by the applicant’s migration agent in his submission dated 7 February 2018. Moreover, there was no submission made to this Court about the application of s.5L of the Act in relation to the membership of a particular social group other than family.
The Authority otherwise dealt with all claims made by the applicant and made relevant findings that were probative of the issues, were reasonable in the circumstances and were not without an intelligible justification (see CQG15; ARG15; and, DAO16).
Accordingly, Ground 6 is not made out.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant and had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
Accordingly, the proceeding before this Court should be dismissed with costs.
I certify that the preceding one-hundred-and-three (103) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 18 December 2019
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