BKK17 v Minister for Immigration

[2019] FCCA 812

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKK17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 812

Catchwords:
MIGRATION – Application for judicial review – information not relied upon by the delegate later relied upon by the Immigration Assessment Authority – reasonableness of exercise of discretion under s.473DC – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DF, pt.7AA.

Cases cited:

BMV16 v Minister for Immigration and Border Protection [2018] FCAFC 90

DFW16 v Minister for Immigration and Border Protection [2018] FCA 746

DFW16 v Minister for Immigration and Border Protection [2017] FCCA 2726

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

Minister for Immigration v CRY16 [2017] FCAFC 210

Applicant: BKK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 672 of 2017

Judgment of: Judge Riethmuller

Hearing date: 26 October 2018

Date of Last Submission: 26 October 2018

Delivered at: Melbourne

Delivered on: 1 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Smyth

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Ms Campbell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 22 November 2016.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

3. The First Respondent pay the Applicant costs fixed at $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 672 of 2017

BKK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

Procedural History

1. The applicant seeks judicial review of a decision of the IAA made on 22 November 2016 under Part 7AA of the Migration Act 1958 (“the Act”), affirming a decision of a delegate to refuse the applicant a Safe Haven Enterprise Visa.

2. The applicant arrived by boat in March 2013. In March 2016 the applicant was invited to apply for a visa, which he did that month.  The application was refused by a delegate in September 2016. 

The applicant’s claims

1. The IAA summarised the applicant’s claims as:

   •    The applicant became interested in Christianity during childhood and started researching about religion when he was about 13 years of age. Other people at the school reported him to the school principal.

   •    He was friends with some Armenian Christians and developed an interest in Christianity when he was around 20 to 30 years old.

   •    He discussed Christianity with his Armenian Christian colleagues, and read Christian related materials.

   •    He repeatedly attempted to enter churches in Iran. As Muslims are not allowed to enter churches, he was warned, arrested, threatened, monitored, detained, forced to make confessions and signed declarations not to appear at the church.

   •    His mother came to Australia as a refugee, and became a Christian about 20 years ago. His mother influenced and encouraged him to be a Christian.

   •    He has attended religious classes while in immigration detention. He has attended bible study classes and attended church every week with his mother in Australia.

   •    On 4 August 2013, he was baptised in Australia.

   •    He fears that some Iranians that he met on the journey to Australia will tell the authorities or blackmail him if he does not pay them.

   •    His aunt's husband's brother and several relatives are part of the Basij and Sepah, and they are aware of the applicant's Christian conversion, they are angry about this and will betray him for their own benefits. The applicant being their relative will jeopardise their career because their superiors may find out that they have a relative who has committed apostasy and they must report him.

   •    The applicant's conversion to another religion from Islam is considered apostasy in Iran's penal code which is punished by death.

2. The IAA compared the accounts given by the applicant at his arrival interview with those in his written statement on arrival, and in his SHEV interview, noting a number of differences in the accounts.  As a result the IAA did not accept that the applicant is a genuine Christian.

Ground of Review

1. In the amended application the applicant relied upon the following ground:

   1. The IAA erred insofar as it purported to reach findings of fact without having:

   (a) lawfully considered whether to exercise its power under s 473dc of the Migration Act 1958 (the Act); and/or

   (b) exercised its power under s 473DC of the Act.

   so that its decision was legally unreasonable and therefore beyond its jurisdiction (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).

2. The argument of the applicant is that the IAA review failed to consider whether to obtain further information under s.473DC of the Act, in the context of this case.

3. Section 473DC is in the following terms:

   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.

1. The particular feature of this case that is relied upon is that a historical review of the applicant’s file identifies inconsistencies in the applicant’s evidence.  Thus, it is argued, the IAA ought to have exercised its discretion under the section to ‘get further information’ from the applicant.  It is argued that such further information may have explained away or reconciled the discrepancies in the versions given by the applicant

2. The argument put by Counsel for the applicant is neatly summarised in paragraph 33 of his written submissions, where he says: 

   33. The ‘new issue [that] arose’ … can be identified by analogy with CRY16 itself. In that case, the new issue was that the Reviewer determined to consider – without notice to the applicant – the possibility of Relocation. Here the new issue is less stark. But it is within the same analytical category. The Reviewer determined to base her decision on material that had not actuated the delegate and accordingly on which the applicant had not had an opportunity to be heard on his visa application (the entry interview having occurred before the s.46A bar had been lifted and so outside the visa application process).

3. Central to the argument is the nature of the obligation to ‘get’ further information, and when it will be legally unreasonable for the IAA to fail to exercise the power.  The applicant relied upon the Full Court’s decision in Minister for Immigration v CRY16 [2017] FCAFC 210 where it was found that when a new issue arose upon which the applicant had not commented or provided information (in that case, whether the applicant could relocate within their home country) it was legally unreasonable not to at least consider exercising the power under the provision.

4. In this case, the applicant argues that whilst the issue is not new, the material upon which the IAA reviewer acted was not material that was central to the delegate’s decision.  Thus, it is argued that the applicant had no opportunity to be heard with respect to this material.  In this sense, it is said that the circumstances are analogous to those in CRY16.

5. The relevant passages from the decision of the IAA decision appear at paragraphs 15 to 28, which are as follows: 

   Christianity

   15. In the written statement, the applicant stated that 'becoming Christian happened from Iran'.

   16. At the arrival interview, when the applicant was asked what his religion was, he responded that 'forcibly we were Muslims, but now I am in the process of converting and that's why I have come here...' When asked what sort of Christian religion he will convert into, he responded that 'I have planned to come here and talk to my mother'.

   17. At the SHEV interview, when asked whether he had made a personal commitment to become a Christian before he left Iran, the applicant responded that it was not possible to convert in Iran; if somebody convert into a different religion, he is considered out of religion and risking his life. He also stated that even if he had that thought in his mind, was rarely possible to convert in Iran.

   18. Having regard to the applicant's evidence, I am satisfied that the applicant claims that he was in the process of becoming a Christian in Iran, and he has not converted to Christianity in Iran.

   19. In the written statement, the applicant referred to a church address, and stated: 'Catholic Church' and 'Saint Sarkis Church', but did not elaborate on what they were in relation to. The applicant then stated: 'Why St Sarkis Church? Because it was the closest to where he used to work and he was familiar with the environment and ambiance of the church. This familiarity gave him the courage to enter this church.' It then stated: 'Which of this church's ceremonies did you participate in?' The next paragraph began with: 'Any of them...' But the applicant also stated that Muslims were not allowed in the church, that Basij and guards at the church entrance arrested Muslims who attempted to enter the church; and when the applicant tried to enter the church, Basij found out that he was a Muslim and arrested him and his Armenian colleague.

   20. At the SHEV interview, the interviewer sought clarification from the applicant as to which occasion he was, or was not allowed to enter a church. The applicant responded that he was never let into any church on any occasions.

   21. In the written statement, the applicant stated that when he first tried to enter the church, the Basij found that he was a Muslim and questioned him, so he told the Basij that he was looking for his Armenian colleague 'A'. However, the applicant's evidence at the SHEV interview was that he was with A when he was not let into the church on his first attempt to enter

   22. In regards to the claimed second attempt to enter the church, the applicant stated in his written statement that in his second attempt, he and A tried to enter the church but the Basij guard arrested both of them. The Basij took them to a base; interrogated him with a horrid voice and lots of swearing; he was kept for two days; he confessed against his will that he intended to know more about Christianity and announced that he did not want to become a Christian but just wanted to compare Christianity and Islam; he was forced to sign and fingerprint a confession letter which mentioned that if they recognised him again around the vicinity of the church they would inform the Islamic association at his work and give him to the authorities.

   23. At the SHEV interview, the applicant only stated that government agents took him away and made him sign a declaration. There was no mention that the applicant was with A when he tried to enter a church the second time, or that A was also arrested and detained.

   24. The applicant also claimed that he made a third attempt to go to church about six months after his second attempt at the SHEV interview. He stated that was detained for 48 hours, questioned and was told that this was his last chance and if he were to be seen in front of any churches in Iran, he would be detained and end up getting lashes.

   25. This was the first time that the applicant raised the claim of a third attempt to enter a church. There was no mention of a third attempt to enter the church in the written statement or at the arrival interview. In the written statement, after setting out the two attempts in entering church, the applicant stated: 'Did you try again to enter the Church and participate in another ceremony or mass?' He then stated: 'No, after confrontation with Basij I was too frightened and I didn't try to enter the church again...'

   26. The applicant stated at the SHEV interview that the incidents referred to in his written statement, as set out above, occurred about thirty years ago when he was about 22 years old, in around 1987. He clarified that his second attempt to enter the church occurred about three to four months after the first attempt when he was 22. He also stated that most or all of the things have happened to him between the ages of 20 to 30, that is, between 1985 and 1995.

   27. This evidence is different from his evidence at the arrival interview, where he stated that he fled Iran because he attended a Catholic Church in 2012 and the Sepah, Basij and officials caught him as he came out of the Church. In that interview, he said he tried to escape but was captured, arrested and held for 24 hours at their base and was forced to sign an undertaking not to attend church again. He stated they were checking on him all the time, came to his work and threatened to kill him if he were to go to the church again as he would be considered as infidel.

   28. This claimed incident in 2012 was not mentioned in the written statement or the SHEV interview. It is also contrary to the applicant's claim in his written statement and the SHEV interview that he did not attempt to enter the church again or participate in other ceremony or mass from about 1987 after his confrontation with Basij because he was too frightened.

6. It is apparent from this passage of the IAA’s reasons that the comments that the applicant made at his SHEV interview were significant in the reasoning process adopted by the IAA. 

7. Whilst this was not a new integer of the claim, in that it still related to the claim with respect to religion, the evidence relied upon by the IAA, being the SHEV interview, is said to be something that had not been the subject of any interview by the delegate with the applicant. 

8. Counsel for the Minister pointed out the limits to the judgment in CRY16, particularly the comments of the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at paragraph 72, where their Honours said:

   In our opinion, Pt 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 Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. … the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

9. Importantly, the material in question had not motivated the delegate to find against the applicant; if the delegate had considered it significant (which seems unlikely given that it was not discussed by the delegate in the decision).  The consequence was that the applicant had not had an opportunity to be heard by the delegate with respect the inconsistencies with the material he provided at his SHEV interview. 

10. As the matter developed, a factual question arose as to whether or not the entry interview was in fact before the delegate.  The Minister filed an affidavit addressing this issue.  In paragraph 6 of that affidavit, there is evidence that the delegate had access to the interview, and that the delegate had accessed to that electronic record once, prior to the delegate’s decision.  I am persuaded that, on balance, the delegate had access to, and had, in fact, accessed the entry interview record as set out in the affidavit.  Thus, the interview was not ‘new information’ before the IAA.

11. The Minister relies upon a decision of Judge Smith in DFW16 v Minister for Immigration and Border Protection [2017] FCCA 2726 at paragraphs 65, where his Honour said:

    [65]       … given the plain inconsistencies between the applicant’s arrival interview, SHEV interview and his written statement, it was obvious that the Authority might draw adverse inference from the material. Further, similar to DFW16 at [66]-[67] the Authority did not, in its statement of reasons, expose any reasoning concerning its power under s.473DC. In these circumstances, there was no legal unreasonableness in the Authority’s reliance on inconsistences in the earlier material provided by the applicant without considering the exercise of its power under s 473DC. Therefore, there was no legal unreasonableness in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

12. However, as the applicant points out, this decision was overturned by Barker J in DFW16 v Minister for Immigration and Border Protection [2018] FCA 746, where his Honour said:

    61.    It is then relevant to note that the delegate, in making the refusal decision on the 2015 SHEV application, made absolutely no reference to the 2013 protection application, even after conducting an interview with the appellant. There was then nothing obvious, by the way of a signal to the appellant, from the terms of the delegate’s decision that the appellant should make submissions or seek to give new information to the Authority about apparent inconsistencies in the two applications for the purpose of the Authority’s consideration of the delegate’s decision.

    62.    Indeed, in circumstances where there had been a gap of more than two years between the making of the 2013 protection application and the receipt of the 8 September 2015 letter from the Department inviting the SHEV application; the making of the SHEV application some two months later in November 2015, which in its terms did not make any reference to the protection application; the decision of the delegate making no reference to the 2013 protection application or the grounds advanced in support of it; and the ambiguities as to the status of the 2013 application arising from the 8 September 2015 Departmental letter advising of the invalidity of the 2013 application, and returning the copy of it with advice that it would not “be processed any further”; all should have caused the Authority at least to consider whether it should invite the appellant to comment on the apparent inconsistencies it had identified as arising out of the two applications in its own decision-making process .

    63.    There is, however, no material before the Court to suggest that the Authority gave any consideration whatsoever to the need to make such an invitation.

    64.    In my view, in these circumstances, the Authority in failing to consider the exercise of its undoubted power to invite the appellant to comment on the apparent inconsistencies in the two applications, acted unreasonably in a sense. The circumstances of this case are not materially distinguishable from those of CRY16 where the appellant was not invited to comment on a relocation option, which the Minister has submitted is distinguishable from the present case.

13. As counsel points out, the decision of Barker J is binding on this Court.  In this respect, the Minister makes the formal submission that the decision of Barker J in DFW16 is not correctly decided.  This submission was politely made for the purpose of ensuring that appeal rights would be preserved, rather than attempting to persuade me not to follow the decision of Barker J, which, being a decision on appeal from this Court, is binding on this Court. 

14. The Minister seeks to distinguish DFW16 on the basis that the difficulties confronting the applicant in that case arose from the applicant’s claims made on a previous but invalid application for a protection visa.  A copy of that application was returned to the applicant, who was advised that it could not be processed any further.

1. One of the factors relevant to the outcome in DFW16 was the argument that the return of the application could give rise to a competing inference that the invalid application would be ignored by the Department.  However, in this case, the applicant must have been aware that the Department had each of the documents in question.  The Minister also relies upon the warning that was given to the applicant at the time of his entry interview that, “If the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.” 

2. The distinction that is sought to be drawn between this case and CRY16 is that CRY16 concerned a new issue, that of the ability to relocate within one’s home country, which had not been the subject of consideration or submissions before the delegate, whereas this case concerns the consideration of a further piece of evidence (a previous inconsistent statement of the applicant) that had not been considered by the delegate nor the subject of any interaction with the applicant by the delegate. 

3. It is important to bear in mind the timeline that is involved in this case, namely: 

   a)the applicant arrived on 17 March 2013;

   b)the entry interview occurred on 7 April 2013; 

   c)the applicant’s SHEV application was made on 30 March 2016; 

   d)the applicant’s interview with the Department occurred on 17 August 2016;

   e)the delegate refused the application on 19 September 2016; and

   f)the IAA made its decision on 22 November 2016.

4. The IAA had invited the applicant to make further submissions, in accordance with its standard practice directions, on 13 October 2016 (see CB 186).  It does not appear that the applicant was represented through these processes.  The relevant inconsistencies were not drawn to the applicant’s attention.

5. The reasonableness of the steps that are taken by the IAA under part 7AA in similar circumstances (taxing an applicant with inconsistencies from a much earlier entry interview) was the subject of specific consideration by the Full Court in BMV16 v Minister for Immigration and Border Protection [2018] FCAFC 90. In that case, the entry interview had not been before the delegate and therefore was “new information” under section 473DF of the Act: see [83]. The IAA had taxed the applicant with the inconsistencies in the IAA interview. However, the Full Court found that the discretion under section 473DF of the Act had not been exercised reasonably in circumstances where an immediate response was requested at the IAA interview. The Full Court explained:

   [101]    The primary judge also considered it significant that the issue for comment went to credibility and that in civil or criminal trials witnesses are regularly challenged in cross-examination with a prior inconsistent statement. The present circumstances arise in a different context. The role of the Authority was to conduct a Part 7AA “review”. That review was one being conducted in furtherance of Australia’s treaty obligations and as a genuine, albeit “limited”, review of the delegate’s decision in a manner which was, amongst other things, free of bias: s 473BA; s 473FA(1). The Authority was not in the position of a cross-examiner seeking to advance the interest of one side of an adversarial dispute. During the course of the review of the primary decision, the Authority determined that there were “exceptional circumstances” which warranted it considering “new information” which would be a reason for affirming the delegate’s decision. The Authority evidently considered that the “new information” provided a different basis for an adverse credibility finding than the bases which had been relied upon by the delegate and probably that it supported a more comprehensive rejection of his claims. It had a statutory obligation under s 473DE to afford to the referred applicant limited procedural fairness in accordance with the terms of that section, which lead inexorably to s 473DF and r 4.42. The Authority would not meet its obligation by treating the appellant as being in the position of a civil or criminal trial witness being ambushed in cross-examination by a cross-examiner armed with a prior inconsistent statement.

   [102]    The primary judge also made the observation that the appellant engaged meaningfully with the material and did not assert he had forgotten or was unable to respond. That is correct. However, the important point is that the appellant was denied the opportunity which s 473DE was intended to provide him. The appellant might have responded quite differently if he had been given a real opportunity to consider what was being put to him. Further, it was not so much the material which he engaged with but the Authority’s “particulars” of that material. At the simplest level, the appellant may have pointed out, in more detail than he did and no doubt in his own way, the matters to which Lee, Carr and Finkelstein JJ referred in W375 at [11], set out at paragraph [8] above. He may have explained that his responses at the “entry interview” should be considered in the context of his experiences with, or suspicion of, government authorities in Sri Lanka, his recent experiences in fleeing that country or other matters. It was not necessary for the applicant to adduce evidence about what he would have said, something which at best would have been a hypothetical exercise.

6. Whilst this case does not concern ‘new information’ within the meaning of s.473DF of the Act, the applicant’s practical position was identical: he had not been taxed with the inconsistencies nor given an opportunity to meaningfully respond to them. Similarly, in CRY16 the applicant had not had an opportunity through the process to address issues that were determinative of his application.  In the context of both CRY16, DFW16 and BMV16, the argument that the reasonable exercise of the discretion to request further information addressing the previous inconsistent material is so strong that the IAA was in error in failing to address it in its reasons, leading to the conclusion that it erred in either failing to address the issue, or failing to exercise the discretion in the context of this case.

7. In the circumstances I am persuaded that the applicant has made out this ground and that the application must be allowed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 1 April 2019