BIU18 v Minister for Home Affairs

[2019] FCCA 1131

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIU18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1131

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority acted unreasonably in failing to consider whether it should exercise the discretion in s 473DC – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473, 473DB, 473DC, 473DD, 473DE

Cases cited:

CCQ17 v The Minister for Immigration and Border Protection [2018] FCA 1641

DGZ16 v The Minister for Immigration and Border Protection [2018] FCAFC 12

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Applicant: BIU18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 740 of 2018

Judgment of: Judge Humphreys

Hearing date: 10 April 2019

Date of Last Submission: 10 April 2019

Delivered at: Parramatta

Delivered on: 10 April 2019

REPRESENTATION

Counsel for the Applicant:	Mr Jones
Solicitors for the Applicant:	Tim Smith Lawyers Ptd Ltd

Counsel for the Respondents:	Mr Knowles
Solicitors for the Respondents:	Sparke Helmore Lawyers

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the costs of the First Respondent fixed in the amount of $7467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 740 of 2018

BIU18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a judgment in the matter of BIU18 v Minister for Home Affairs and Immigration Assessment Authority.

2. The applicant claims to be a Hazara Shia citizen of Afghanistan. On 23 May 2016, the applicant lodged a Safe Haven Enterprise visa with Australian authorities. A delegate for the Minister for Immigration refused to grant the visa that was claimed on 11 May 2017. The applicant then appealed to the Immigration Assessment Authority (“the Authority”). In a decision dated 28 February 2018, the Authority affirmed the decision of the delegate that was under review. The applicant now appeals to this Court alleging jurisdictional error.

Documents before the Court

1. The Court book has been tendered to the Court and marked as exhibit 1. Other relevant documents include the Authority’s decision of 28 February 2018, the amended grounds of appeal, the applicant’s submissions and the first respondent’s submissions.

The Immigration Assessment Authority Decision

1. At paragraph 5 of the Authority’s decision, the Authority notes that they took account of new information in the form of country information reports which post-dated the delegate’s decision.

2. The Authority was satisfied that the pre-conditions under s 473DD(b) of the Migration Act 1958 (Cth) (“the Act”) were met and that there were exceptional circumstances to justify considering this information. The information included risks about the classes of persons to which the applicant was a member.

3. At paragraph 6 of the Authority’s decision, it appears that the applicant’s representatives were aware of the rapidly changing country information and certainly invited the Authority to take account of that information when making the decision. At paragraphs 8 and 9, the Authority determined to admit a new claim based on information regarding two returned asylum seekers who had allegedly been beaten by Afghan authorities upon their return to the airport at Kabul.

4. At paragraph 10 of the Authority’s decision, the Authority determined to consider a second post-interview submission dated 11 May 2017 that was post the decision of the delegate.

5. The applicant’s claims are set out at paragraph 11 of the Authority’s decision. They may be summarised as follows. The applicant is a Hazara Shia Muslim who resided in the Jaghori District of Ghazni Province. The applicant claims that Hazara Shias are targeted by the Taliban. In August 2012, the applicant was approached by a man and told to take a poison spray and apply it to the girls’ side of his school building. The applicant believes that the man was from the Taliban. The applicant told the man he did not want to do the task required.

6. The applicant and his family were subsequently threatened. The applicant’s father was so worried that he sent the applicant to Pakistan. The applicant’s parents and younger sisters then fled the area and are now residing illegally in Iran. The applicant fears harm if returned to Afghanistan at the hands of the Taliban.

Grounds of appeal

1. The grounds of appeal relied upon a number of matters and it is not necessary for me to deal with the factual matters contained within the applicant’s claim as the argument was restricted to a fairly simple matter that relates to an alleged error of law and legal unreasonableness.

2. The applicant asserts jurisdictional error on the basis that the Authority did not invite the applicant to comment upon the new country information it had received, which it took into account in making the decision to affirm the decision of the delegate that was under review.

3. The applicant in part relies upon Minister for Immigration and Border Protection v CRY16 (CRY16),[1] in that a decision could be vitiated by legal unreasonableness due to a failure to consider inviting comment under the requirements of s 473DC of the Act. The applicant submitted that in this case, it was legally unreasonable not to invite comment. In this regard, it is less of a question of whether or not the reasons have an evident or intelligible justification. It is simply whether or not there was a requirement to seek comment.

   [1] [2017] FCAFC 210 at paragraph 82.

4. It was conceded that the Authority did not determine the decision on the same basis as the delegate and it was put by both parties that this fact does not constitute legal unreasonableness.[2] However, it was put to the Court that the issue that was considered by the delegate, or the material that was considered by the delegate, is dispositive and that failing to issue an invitation to comment on the new material amounts to a legal unreasonableness.[3]

   [2] DGZ16 v The Minister for Immigration and Border Protection [2018] FCAFC 12.

   [3] CCQ17 v The Minister for Immigration and Border Protection [2018] FCA 1641 per Thawley J at 42-44.

5. In the course of submissions, it was conceded by the applicant’s counsel that they could not point to any material that shows that the Authority did not consider inviting comment on the new information. Rather, it was the case of failing to actually invite comment that amounted to legal unreasonableness. In other words, there was no evident justification in not providing the opportunity to comment on the material and this amounts to legal unreasonableness. I repeat that so I can be very clear as to what was put to the Court by the applicant.

6. Counsel for the respondents suggest that the relevant sections are s 473 of the Act in terms of the way that they should be read together because they provide a legislative scheme.

7. The starting point is that any review by the Authority is done upon the papers without any new information and this occurs under s 473DB of the Act. s 473DC of the Act allows the authority to obtain new information. s 473DD of the Act states that the Authority must not consider new information unless there are exceptional circumstances and it sets out the limits as to what are exceptional circumstances, which are not relevant for the current matter. s 473DE of the Act sets out the requirement to give certain information to the applicant, but restricts the information that must be required. s 473DE(2) of the Act refers to a requirement of maybe inviting comment, but it does not require that the information be given.

8. s 473DE(3)(a) of the Act states that information is not required to be given if it is not specifically about the referred applicant and is just about a class of persons to which the referred applicant is a member. It is common ground in this case that the new information that was considered by the delegate fell into the category of information which was about a class of people rather than specifically relevant to the applicant.

9. The applicant suggests that due to the fact that the Authority determined the matter on a different basis than the delegate, then this may require the provision of this new information to the applicant and that a failure to do so amounts to legal unreasonableness.[4] In my view, this misconstrues the situation. It is open to the Authority to decide the matter on new information and that of itself has been found by the Federal Court to be appropriate. I am not of the view, however, that merely because the Authority came to the conclusion they did on new information, that this enlivens a requirement to put that new information to the applicant.

   [4] DGZ16 v The Minister for Immigration and Border Protection [2018] FCAFC 12.

10. In my view, this case does not fall within the ambit of the decision in CRY16. It is clear from the decision of the Authority that the applicant was aware, and his representatives were aware, of the changing nature of security information in regards to Afghanistan during the review period. It is specifically referred to by the Authority, that updated country information should be considered and that these were exceptional circumstances.

11. In my view, there was nothing to stop the applicant’s legal representatives during the course of the review, if new information became available, in making a submission to the Authority and inviting them to consider this new information. That would have required an exercise or a finding that there were exceptional circumstances. I do not consider that the Authority would have been minded not to do that, bearing in mind what had been or the way that the matter had taken place.

12. The applicant was aware that this information would be considered. I am not satisfied that failing to put the new information that was considered by the Authority to the applicant amounts to legal unreasonableness. It is a situation whereby the legislation specifically states that they “may”. There is no absolute requirement to put forward that information.

13. As harsh as it may seem, where it was simply information that related to a class of people and where the applicant was clearly on notice that new information of that sort was going to be considered and it was open to the applicant to turn and put on new information and ask the Authority to take it into account, I cannot see that there was any failure by the Authority and no legal unreasonableness has been made out.

14. For these reasons, I am not satisfied that the grounds of appeal are made out and I dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 2 May 2019