BJO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3212

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3212  

File number(s):

SYG 819 of 2019

Judgment of:

JUDGE DRIVER

Date of judgment:

16 December 2020

Catchwords:

MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant’s fears found not to be well-founded –whether the Authority erred in dealing with new information considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss 473DC, 473DD

Cases cited:

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

Minister for Immigration and Border Protection v CED16 [2020] HCA 24

Plaintiff M174 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Number of paragraphs:

38

Date of hearing:

24 November 2020

Place:

Sydney

Counsel for the Applicant:

Mr P Bodisco

Solicitors for the Applicant:

Abu Legal

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Mills Oakley

ORDERS

SYG 819 of 2019

BETWEEN:

BJO19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	16 DECEMBER 2020

THE COURT ORDERS THAT:

1.The application as amended on 16 November 2020 is dismissed.

REASONS FOR JUDGMENT

JUDGE DRIVER

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 5 March 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant arrived in Australia on 13 June 2013 as an unauthorised maritime arrival.[1] He made an application for a (Class XE) Safe Haven Enterprise Visa (SHEV) dated 19 January 2017 (SHEV application).[2]

   [1] Court Book (CB) 165.  The applicant’s IMA Entry Interview record is at CB 1-20.

   [2] CB 60-103.  The application was received on 2 May 2017.

4. The applicant initially set out his claims to protection at an entry interview on 6 July 2013.[3] He subsequently provided a written supporting statement dated 22 February 2017 which was attached to his SHEV application (supporting statement).[4] Later, following the interview with the delegate on 13 September 2018, the applicant’s representative provided a written submission dated 20 September 2018 to the delegate.[5]

   [3] CB 1-20.

   [4] CB 98-102.

   [5] CB 132-152.

5. The applicant provided a statutory declaration sworn by the applicant’s cousin dated 21 September 2018 (cousin’s affidavit) stating that the two men had been held together on Christmas Island and setting out details of a request by the applicant’s cousin for the applicant to carry the cousin’s copy of the Koran to Nauru.[6]

   [6] CB 160.

6. Following the delegate’s decision, the matter was referred to the Authority on 14 December 2018 (Authority referral).[7] The applicant, through his representative, provided to the Authority:

   (a)a written submission to the Authority dated 18 January 2019 (Authority submission);[8]

   (b)a written submission dated 5 February 2019 (further Authority submission),[9] in which, among other things, the applicant responded to further information, extracts from Salvation Army Notes (SA Notes) that were before the delegate, provided to the applicant from the Authority in an e-mail dated 22 January 2019;[10]

   (c)a further statement dated 5 February 2019 (Authority further statement).[11]

   [7] CB 183.

   [8] CB 209-213.  The submission was incorrectly dated 18 January 2018.

   [9] CB 223-225.

   [10] CB 214-216.

   [11] CB 226-228.

7. In the further Authority submission, the applicant's advisors submitted as follows:[12]

   4. The Statement was not before the Department, however it refers to issues discussed in the application, the Decision and previous submissions to the IAA. We submit that this is not 'new information' in the sense that the Applicant raises new claims, it merely provides a response to the Decision and the information provided by the IAA.

   5.If the IAA considered the Statement new information, we submit there are exceptional circumstances for considering it: it relates to the Applicant's credibility; supports the claims he has already raised; is credible personal information; and is a direct response to information not previously provided to the Applicant that was provided to him by the IAA.

   6. We also note that the Applicant was not asked by the Delegate whether he practice 'anti-religious' activities in Australia.

   [12] CB 224.

   The applicant’s claims

8. The applicant claimed to fear harm on the basis of his apostasy (as someone who had abandoned Islam in favour of atheism); his ethnicity as a Faili Kurd; his membership of a particular social group, being failed asylum seekers; and his personal information being released following a data breach in February 2014. The applicant claimed that he would be treated as a spy or traitor as a result of his perceived status as an asylum seeker.

9. The applicant claimed that he was born a stateless Faili Kurd and granted Iranian citizenship in 2010. At the entry interview, the applicant made some general statements concerning his inability to go to university (because it was not open to ordinary families), the lack of economic opportunity and the fact that a good life was only available to government supporters or members of government groups such as the Basij.

10. In his application, the applicant stated that Faili Kurds are discriminated against in Iran, being regarded with suspicion and facing problems in education and employment. The applicant claimed he was forced to do army duty despite being stateless and was questioned by an officer and humiliated, being told he should go back to Iraq. He said that he was unable to enter university or complete higher education because of his ethnicity.

11. In respect of religion, the applicant said that he met an individual named SR who had made him question Islam. He claimed he had formally rejected Islam and would say so publicly to his friends. The applicant stated that he went to a party where he started discussing religion with two strangers and expressed his scepticism about Islam. The following day the applicant was approached by one of the strangers and told that he should not be speaking in the way that he did about Islam. Later, he encountered the same individual who threatened him. Three people visited his father and told him that the applicant was a “kaffir” or “mulhid” who rejected Islam.

12. The applicant had stated in his entry interview that he was a Shi’a Muslim. He later said that he had felt scared during the interview of revealing details about his claims and, because the interview was short, felt that he could not give a full account of why he came to Australia.

13. The applicant claimed that he had health concerns and that his memory was not good. He claimed that he had problems after suffering on Nauru which affected his mental health.

14. The applicant provided further evidence about his explanation for why he had requested a prayer mat, prayers from the Koran and prayer beads. Part of the applicant’s explanation involved the cousin’s affidavit which provided evidence from his cousin that the applicant carried the Koran for his cousin while travelling to Nauru.

15. The applicant provided a wide range of country information, in submissions made by his representative, that dealt with the treatment of Faili Kurds, apostates and failed asylum seekers. In relation to the data breach, the applicant stated that the Iranian authorities would know he had sought asylum and by reason of this prior adverse profile as an apostate and Kurd would be of particular interest to the authorities.

16. In the Authority further statement, provided as a supplementary response after the applicant had received copies of the SA Notes from the Authority, the applicant made a number of claims including that he drank alcohol in Iran, had a sexual relationship with a woman in Australia, wore western clothes and hairstyles in Australia and read and watched atheist books and videos. He also provided three photographs of him eating and drinking.

17. As noted above, the Authority provided the applicant with a copy of extracts from the SA Notes which were before the delegate. The applicant made submissions on the SA Notes and provided some further information in response to the material which he argued should be considered.

    The Authority’s reasons

18. The Authority’s reasons are at [3]-[52] of the decision.[13] The Authority dealt with the new information relied on by the applicant at [3]-[10] of the decision.

    [13] CB 247-259.

19. The Authority accepted that there were exceptional circumstances that justified considering the information provided by the applicant in response to the SA Notes.[14]  At [8] of the decision, the Authority identified a number of new claims in the Authority further statement concerning anti-religious behaviour which were not before the delegate. It found those claims to be “new information” and further found:

    (a)it was not evident from the photographs that the applicant was drinking alcohol or engaging in anti-religious behaviour;

    (b)no corroborative evidence was provided in support of any of the new claims;

    (c)although the applicant argued that the delegate had not asked him about any “anti-religious” activities, there was no explanation for why the claims had not been raised before the delegate. The applicant was aware of the need to advance all of his claims and was represented at the delegate interview;

    (d)the lack of a satisfactory explanation about the delay in making a claim and the lack of any documentary evidence to corroborate the claims led to serious doubt about the credibility of the claims;

    it was not satisfied that there were exceptional circumstances to justify consideration of the new claims.

    [14] at [5]-[7] of the decision

    THE CURRENT PROCEEDINGS

20. These proceedings began with a show cause application filed on 3 April 2019. Despite the Minister’s objection, I granted leave at the trial for the applicant to rely upon an amended application filed on 16 November 2020. There is one ground in that application as amended:

    The IAA breached s 473DD of the Migration Act 1958 (Cth) in dealing with evidence of anti-religious behaviour contained in his Supplementary Submission [CB 226] contained at paragraphs [7]-[11] when determining whether “exceptional circumstances” existed by effectively failing to take into account the matters referred to in s.473DD(b) of the Act due to a misdirection as to the significance of the evidence.

21. The only evidence I have before me is the court book filed on 29 May 2019.

22. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial.

    CONSIDERATION

23. The essential question raised by this application is whether the Authority erred by concluding that s 473DD(a) of the Migration Act 1958 (Cth) (Migration Act) has not been satisfied because there were no “exceptional circumstances” to justify the consideration of the referred new information. The applicant contends that, in determining whether exceptional circumstances existed, the Authority is also required to consider whether the new information contained “credible personal information which was not previously known and had it been known, may have affected the consideration of the … applicant’s claim”. The applicant’s argument is that the Authority committed a jurisdictional error in its assessment of the existence of exceptional circumstances by failing to ascertain the extent to which the two limbs of s 473DD(b) had been satisfied.

24. I prefer and adopt the Minister’s submissions on this issue.

25. It is not contentious that s 473DD of the Migration Act only applies to “new information”. In that regard, s 473DC(1) provides that the Authority may get “any documents or information” which is defined as “new information”.

26. The High Court has made clear that “information” is a “communication of knowledge about some particular fact, subject or event” that relates to material or documentation of an evidentiary nature.[15]

    [15] Plaintiff M174 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24]; Minister for Immigration and Border Protection v CED16 [2020] HCA 24 at [21]; AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [3]

27. The information in question is “new” because it is information that was “not before the Minister when the Minister made the decision under section 65”.[16]

    [16] Section 473DC(1)(a)

28. Although these propositions are well-established they bear reiteration in the present context. The applicant’s argument appears to proceed on the premise that the Authority in some way misdirected itself as to the nature of the information before it. That is a misconception.

29. It is correct that the applicant’s representative suggested that the information in the Authority further statement was not “new information”. This argument rested on the idea the information in the Authority further statement did not relate to a “new” claim but rather provided a response to the decision and the information provided by the Authority.[17] The applicant made an alternative submission if, contrary to his principal argument, the Authority treated the further material as “new information”.

    [17] at CB 223 at [4]-[5]

30. It is clear, when [8] of the decision is read fairly and in context, that the Authority was treating the “information” in the Authority further statement as new. Its use of the phrase “new claims” did not, relevantly, mean a new claim for protection. Rather, it proceeded on the basis that the applicant was providing information to the Authority about his existing claim (to be an apostate) where the further information said to support the claim was not before the delegate. It is apparent that the Authority correctly identified the particular information contained in the further statement Authority. In this context, nothing of significance turns on the use of the phrase “new claims” by the Authority.

31. Further, in my view, nothing turns on whether the new material was a claim, or an integer of a claim or evidence in support of a claim.  It was treated as new information.  The information would have been properly characterised as “new information” irrespective of whether it related to an existing claim or not. As the authorities noted above indicate, information is simply a communication about a fact. Plainly, that is what [7]-[11] of the Authority further statement contained.

32. It may be accepted that the claim of anti religious behaviour or apostasy was before the delegate but the information about the claim in the Authority further statement was not. If the contention is that the Authority incorrectly characterised the material because it was before the delegate then it must fail on the facts.  If the contention is that the Authority classified the material as a new claim rather than information, that misreads the decision. Either way, the argument is without merit; the Authority was correct to treat the material as new information.

33. Once the Authority determined that the information in the Authority further statement was new information then it was required to go on and to consider s 473DD. In AUS17, the plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) found that the Authority is required to consider any new information against the criteria in s 473DD(b) before considering the application of s 473DD(a). They also noted that if neither s 473DD(b)(i) nor s 473DD(b)(ii) applies then it is not necessary to go on to consider s 473DD(a).

34. This is essentially what occurred in the present case, although the Authority did find that there were no exceptional circumstances. The Authority first assessed whether the new evidence of anti-religious behaviour was not or could not have been provided to the Minister; it noted that no explanation had been provided as to why the claims were not raised before the delegate. The applicant provided further details about his claims both in his visa application and at the interview. In circumstances where the applicant himself implicitly conceded that he could have raised the information at the time of the interview (the applicant noted that he was not asked about it) it is tolerably clear that that Authority was satisfied that s 473DD(b)(i) was not met.

35. The Authority then assessed whether the information was “credible”. It found that it was not credible based on the nature of the evidence (specifically, what the photographs purported to prove) and the lack of any corroborative material. In circumstances where the Authority assessed whether the material was believable, it is clear that that the Authority was satisfied that s 473DD(b)(ii) was not met.

36. In light of this, I accept that the Authority did consider the criteria under s 473DD(b). To the extent that the applicant contends that the matters in paragraph (b) were not considered, that is not correct. To the extent that the alleged “misdirection” led to a material failure to consider the requirements of s 473DD(b), then there was no misdirection. The Authority correctly identified the material in question as new information; thereafter it was required to consider s 473DD(b)(i) and s 473DD(b)(ii) and did so.

    CONCLUSION

37. I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.

38. I will hear the parties as to costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       16 December 2020