BIL18 v Minister for Home Affairs
[2019] FCCA 1481
•30 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIL18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1481 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority was legally unreasonable – whether the Authority was irrational or illogical – whether the Authority placed undue weight on an omission by the applicant in his entry interview – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473DC |
| Cases cited: BGV18 v Minister for Immigration and Border Protection [2019] FCA 602 |
| Applicant: | BIL18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 731 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 30 May 2019 |
| Date of Last Submission: | 30 May 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 30 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Applicant: | Stamford Law Firm |
| Counsel for the Respondents: | Ms Laing |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
Leave is granted to rely on the amended application.
The application is dismissed.
The applicant to pay the first respondent's costs fixed in the amount of $5200.00.
DATE OF ORDERS: 30 May 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 731 of 2018
| BIL18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EXTEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is an Iraqi national who arrived in Australian waters as an unauthorised maritime arrival in early May 2013. In late 2016, following an invitation from the Minister, the applicant filed an application for a Temporary Protection visa. On 6 July 2017, a delegate of the Minister refused the applicant’s application. The applicant then sought review by the Immigration Assessment Authority (“the Authority”). On 21 February 2018, the Authority made a decision to affirm the original delegate’s decision. The applicant now seeks judicial review of the Authority’s decision.
Background
The applicant’s claims for protection are set out in paragraph 8 of the Authority’s decision. They may be summarised as follows.
· The applicant is a Shia Muslim from Al Batha in Thi Qar Province in the south of Iraq. His family is Shia. The tribe to which he belongs is a mixed Shia and Sunni tribe.
· In April 2012, the applicant claims that he was arrested by the Iraqi police. He was questioned by the anti-terrorism police squad in the Al Batha Police Station. A secret informant or confidential informant, to use another term, had told the police that the applicant was involved in a January 2012 bombing in Al Batha in which many people were killed and wounded.
· The applicant was subsequently transferred to Nasiriya Prison and remained there for approximately 35 to 45 days. He claims he was tortured to try and force him to confess to his involvement in the bombing. On 26 May 2012, he was released following a Court trial that found there was no evidence of his involvement in any terrorist activity.
· After the applicants release from prison, his friends refused to talk to him and people affected by the terror attack remained suspicious of him despite his acquittal. He was regarded with hatred and anger, insulted and called a terrorist. People spat on him and avoided sitting near him and serving him in cafes and shops. He lost work as a casual construction labourer when other workers gossiped to employers about his arrest.
· Family members told the applicant that members of the militia groups were monitoring his family residence. Following his departure from Iraq, his family told him that people in their area were saying that he had fled Anbar to fight with Sunni insurgents. People who claimed they were connected to the government began to monitor his home and started asking his parents questions about his whereabouts.
· The applicant’s brother, who joined the Iraqi Army, died fighting ISIL near Tikrit in 2014. At his funeral, the applicant’s mother heard people say that the applicant was a traitor who had caused or contributed to his brother’s death because he was fighting with Sunni insurgents in Anbar Province. The applicant states that he is perceived to be a Sunni and Saudi sympathiser because of his name. He may be seen as a threat to the Shia community for this reason alone.
· The applicant claims that if he is returned to Iraq he may again be falsely accused of involvement in terrorist activities by a confidential informant.
· The applicant states that after the 14 September 2017 attacks in Nasiriya, people have started to harass his family because they believe he was involved in these attacks. Members of the Mahdi Army have visited the applicant’s home asking about him. They do not believe the applicant has been in Australia. Gossip about the applicant’s involvement has escalated after a Mahdi Army leader referred to the existence of “jihadi loyalist” sleeper cells in Nasiriya.
The applicant made a number of new claims in a five-page statutory declaration which the Authority found exceptional circumstances to admit and consider.
The Authority’s Decision
At paragraph 10, the Authority accepted the identity and nationality of the applicant and the fact that he is a Shia Muslim.
At paragraphs 11 to 14, the Authority dealt with an assessment of the applicant’s entry interview. The Authority only had a written record of the entry interview and did not have a copy of the actual transcript of the interview. At paragraph 14, the Authority found that the applicant did not make a number of claims in his entry interview and was satisfied that the written record was an accurate reflection of the applicant’s responses.
At paragraphs 15 to 17, the Authority dealt with the issue of a claimed perception of the applicant being a Sunni Muslim and having ties to Saudi Arabia due to the applicant’s first name. At paragraph 16, the Authority found that the claim was not advanced in the applicant’s Temporary Protection visa application and/or mentioned in his entry interview. At paragraph 18, the Authority did not accept that the applicant was believed in Al Batha, to be associated with Saudi Arabia, to be Sunni or associated with any armed Sunni group.
Paragraphs 19 to 34 of the Authority’s decision, deal with the claims that the applicant was arrested and imprisoned for 35 to 45 days on terrorism charges. At paragraph 22, the Authority notes that there was a suicide bombing in Al Batha on 5 January 2012 that killed 36 people and injured 72. The Authority notes that five people were arrested the day the bombing took place. At paragraph 24, the Authority notes a document provided by the applicant that purports to show the applicant was released by the Thi Qar Criminal Court on the basis there was insufficient evidence to prove charges levelled at him. At paragraph 26, the Authority notes concerns about this document, noting information that counterfeit and fraudulent documents are cheaply and freely available in Iraq.
At paragraph 29, the Authority found that given the applicant’s profile, he would not be accused of involvement in a terrorist attack and it was implausible that he would be randomly so accused.
At paragraph 30, the Authority found they were not satisfied that the applicant was arrested and detained on terrorism-related charges, as claimed. The Authority did not accept that the applicant was, therefore, suspected by the community of involvement in terrorism-related activities.
At paragraph 31, the Authority, for the reasons cited above, did not accept that the applicant was mistreated, including loss of employment due to suspicion about terrorism-related activities. As a consequence, the Authority found that the applicant did not leave Iraq due to the fact that he was of any interest to any armed group within his area of residence. At paragraph 34, the Authority found that the applicant is not suspected of the 2017 terrorist attacks in Nasiriya or that any person has monitored or visited his home since his departure in order to establish his whereabouts.
At paragraphs 35 to 38, the Authority accepts that the applicant’s brother, whilst a member of the Iraqi military, was killed during fighting with ISIL. The Authority does not accept, however, that the applicant was associated in any way with his brother’s death or is associated by any person with any armed Sunni group. The Authority does, however, accept that the applicant suffered distress following his brother’s death but does not accept that he suffered a nervous breakdown.
At paragraphs 39 to 51, the Authority deals with various country information and the risk the applicant might face from a mass casualty incident if he was returned to Iraq. Paragraph 50 of the decision deals with the issues of the applicant returning as a failed asylum seeker. At paragraph 51, the Authority found that these grounds did not satisfy it that there is a real chance of harm if the applicant was returned to Al Batha. Accordingly, the Authority found the applicant did not meet the requirements under the Migration Act 1958 (Cth) (“the Act”), specifically s.5H(1) or s 36(2)(a) of the Act.
At paragraphs 53 to 56 of the Authority decision, the issue of complementary protection is also dealt with. For the same reasons as set out above, the Authority found that the requirements of section 36(2)(aa) of the Act are not met.
Grounds of Appeal
The grounds of appeal are set out in an amended application which leave was granted to rely upon. They are as follows:
1) A principal claim by the applicant was that in April 2012, he was arrested by the Iraqi police, questioned about involvement in a January 2012 bombing in Batha and charged with an offence under s 4 of the Terrorism Act. The Minister’s delegate, after interviewing the applicant, accepted the claim and the authenticity of the document from the Thi Qar Criminal Court which corroborated the claim. In contrast, the Immigration Assessment Authority (“the IAA”) rejected the claim and queried the authenticity of the Court document. In the circumstances, it was legally unreasonable for the IAA not to exercise its power under s 473DC of the Migration Act 1958 to give the applicant an opportunity to comment on his concerns in relation to the claims and the Court document which the Minister’s delegate accepted.
2) The applicant provided to the Department an Arabic copy and English translation of a document from Thi Qar Criminal Court. The IAA fell into jurisdictional error in the manner in which it dealt with the document. Specifically, the IAA, after stating the document is “of limited corroborative value in relation to the applicant’s claims that he was accused of involvement in the January 2012 explosion in Al Batha and held and beaten during a 35 to 40 day period” continued that “the existence of this document does not outweigh my concerns with the applicant’s evidence relating to his claimed arrest and detention.” This reasoning process was irrational or illogical in a manner that constituted jurisdictional error.
3) A principal claim by the applicant was that in April 2012, he was arrested by Iraqi police, questioned about involvement in a January 2012 bombing in Batha and charged with an offence under s 4 of the Terrorism Act. One reason the IAA rejected this claim was because the applicant omitted details of the claim in his entry interview. The IAA, by placing significant weight on an omission by the applicant in his entry interview contravened the principle explained in MZZJO (2014) 239 FCR 436 at [55] to [57], giving rise to jurisdictional error.
I will deal with Grounds 1 and 2 together. It is submitted by the applicant that it was legally unreasonable for the Authority, where the Minister’s delegate made a favourable finding concerning a significant matter, to make an adverse finding concerning the same matter because of concerns it had. The Authority also did not invite the applicant to comment under s.473DC(3) of the Act and, as a result, the applicant submitted that this constitutes legal unreasonableness. It is common ground between the parties that the statutory scheme under Part 7AA of the Act does not require the Authority to seek further information. It is discretionary and the underlying scheme is that the review will be undertaken generally on the material that was before the delegate.
In FGC17 v Minister for Home Affairs [2019] FCA 559 at paragraph 40, it is made clear that the Authority is not obliged to seek comments simply because it proposes to overturn positive findings made by the delegate. There are a number of cases where legal unreasonableness has been found, however. These include Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32. I am going to quote from DGZ16, which is a decision of Reeves, Robertson and Rangiah JJ. The following is said at paragraph 72 in respect of Part 7AA of the Act:
In our opinion, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Part 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case to provide the appellant with an opportunity to respond.
And it goes on at paragraph 73:
We would not however approach the resolution of the appeal by considering whether or not the delegate’s decision indicated that all aspects of the appellant’s credit were at issue in the Authority’s review. That is to view the procedure through a natural justice lens.
In my view, it would be impermissible to try and view the procedure adopted by the Authority through a natural justice lens. This is a statutory scheme which requires only very limited compliance with what might be called in other places, natural justice.
The High Court found in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at paragraph 84 that:
Legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence.
BGV18 v Minister for Immigration and Border Protection [2019] FCA 602 expands upon that at paragraphs 20 and 21, where Moshinsky J says:
The principles of legal unreasonableness were applied in the context of s 473DC in Minister for Immigration and Border Protection v CRY16. In that case, an issue of relocation arose before the IAA. That issue had not been considered by the delegate. The Full Court stated at paragraph 67 that, as explained by Gageler J in Li, reasonableness is closely linked to procedural fairness. The Full Court stated: “Nevertheless, in light of the terms of section 473DA, it is important to consider the present issue through the lens of Division 3 and the principles of legal reasonableness, rather than the principles of procedural fairness.” The Full Court also stated “Further, in our opinion, that the outcome is unfair ‘in an ordinary sense’ as accepted by senior counsel for the Minister is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.” The Full Court stated at [77] that “the analysis of legal unreasonableness in respect of statutory powers and discretions must be found in the terms of which both powers and discretions are conferred”. The Full Court considered both powers available to the Authority and the broader statutory context. It concluded that it was legally unreasonable for the IAA not to consider getting documents or information from the respondent in circumstances where the IAA knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact on him of relocation.
The Court went on at [21] to apply these principles to that case and came to a view that, in the circumstances, it was open to the Authority to come to a different finding as to whether the appellant was approached by a militia group as claimed and to do so without considering whether to exercise the power in s 473DC of the Act.
Many of the matters where there has found to have been legal unreasonableness, centre on the issue of relocation, that is, whether or not it is reasonable for the applicant to relocate to an area that has not previously been raised with him. That is a circumstance where it is reasonable to obtain information which is personally known to the applicant which is not available to the Authority. In this case, however, what we have is a central claim that is being considered and the outcome was that a central claim was, in fact, dismissed on a basis that was different to the delegate. In considering whether or not it was unreasonable not to put the information to the applicant for his comment, I note that the test for unreasonableness is stringent and arises only in rare cases.
Even if unreasonableness is found, there is also a requirement that the unreasonableness be material in that, had the opportunity been taken to seek comment, it raised the possibility of a different decision. In this case, the applicant’s claims were well articulated by the time the matter was considered by the Authority. The Authority came to a different conclusion as to the claims made by the applicant. At paragraph 29 of the decision, the Authority rejected the claim that he had been the subject of a false accusation, arrested and detained in 2012.
The Authority rejected the claim that the applicant was suspected of involvement by police or the community in the 5 January 2012 bombing at Al Batha. Although a different finding from the delegate, it is a finding that was open to the Authority to come to. The claims were a central part of the applicant’s case from the very beginning and they were well addressed in the delegate’s interview with the applicant. Furthermore, the claims were well addressed in the response, being the statutory declaration that the applicant provided to the Authority prior to the decision being made. Although it was a different finding from the delegate, it is a finding, as I said, that was reasonably open to the Authority to make. I am not satisfied that any legal unreasonableness arose by failing to put to the applicant that the Authority was minded to make different findings on the central issues from those of the original delegate.
Ground 2 also deals with an allegation that it was legally unreasonable not to put to the applicant that the Authority was minded not to accept the purported Thi Qar Criminal Court order. The applicant says he should have been given the opportunity to comment on a proposed finding “that the document was not corroborative of him being charged with an offence under the antiterrorism act, but was acquitted”. In my view, what the Authority found was that even if the document was actually genuine, which it did not accept, that it was of “limited corroborative value to the central claims.”
In these circumstances, I am not satisfied that the document did have a material impact on the central finding of the Authority, that is, that the applicant was not part of the terrorist attack or that he was accused of it or was locked up as a result of that and that it would have in any way impacted on that central outcome. I am therefore not satisfied that the failure to put the proposed finding to the applicant was either necessary under the requirements that I have outlined above or that even if it had been, that it would have made a material difference to the outcome. The document was not pivotal to the central findings of the Authority. In those circumstances, no legal unreasonableness is established. And as I said, even if I am wrong on that ground, I do not believe it was material to the outcome.
Ground 3 suggests that the Authority erred in placing undue weight on omissions in the applicant’s entry interview. Reference was made to the case of MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 at paragraphs 55 to 57.
I accept that the Court found in MZZJO that, at paragraph 56 “some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interviews.” However, in the present matter, the Authority based its findings on the cumulative concerns that it had as a result of all of the information that was before it as to the applicant’s credibility. This included his two-hour interview which is dealt with at paragraphs 23 to 30 of the Authority decision. It was a cumulative decision. It was not based solely on omissions. It was part of what went into the mix. Accordingly, I am not satisfied that the error identified in MZZJO is made out in this case. Accordingly, Ground 3 is also dismissed.
Conclusion
The application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 9 July 2019
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