BKX18 v Minister for Home Affairs

[2018] FCCA 2645

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKX18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2645

Catchwords:
MIGRATION – Application for SHEV – “new information” - where Immigration Assessment Authority independently considered each criteria set out in section 473DD of Migration Act – where requirements of section 473DD have not been met – no jurisdictional error demonstrated – application for review dismissed.

Legislation:

Migration Act1958 (Cth) ss.5H(1), 36(2)(a), 36(2)(aa), 473CB, 473DC(1), 473DD(a), 473DD(b), 476

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 272

Applicant: BKX18

First Respondent: MINISTER FOR HOME AFFAIRS & ANOR

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRC 286 of 2018

Judgment of: Judge Egan

Hearing date: 12 September 2018

Date of Last Submission: 12 September 2018

Delivered at: Brisbane

Delivered on: 12 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Rebetzke

Solicitors for the Applicant: Go To Court Lawyers

Counsel for the First Respondents: Ms S. Forder

Solicitors for the First Respondents: MinterEllison Lawyers

THE COURT ORDERS ON A FINAL BASIS THAT:

1. The Application filed 15 March 2018 be dismissed.

2. The Applicant pay the costs of the First respondent fixed in the amount of seven thousand dollars ($7,000.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 286 of 2018

BKX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iraq. He arrived in Australia on 29 September 2012 as an unauthorised maritime arrival. He lodged an application for a safe haven enterprise visa (“SHEV”) on 7 March 2016. On 11 April 2017 a delegate of the Minister refused to grant the applicant a SHEV. The delegate’s decision was a Fast Track reviewable decision, which was referred by the Minister to the Immigration Assessment Authority (“IAA”) on 18 April 2017. The IAA had regard to review material pursuant to section 473CB of the Migration Act1958 (Cth) (“the Act”).

2. On 8 February 2018 the IAA affirmed the delegate’s decision.  The applicant asserted that he, with his brother, ran a business importing goods from Turkey and China.  He asserted that there was an incident which occurred on or about 30 May 2012 when three armed men, whose faces were hidden, approached him demanding $200,000 be paid within a three-day period.  They threatened to kill the applicant if the money was not paid.  The applicant fled Iraq the next day, travelling to Malaysia using his passport.

3. After his departure it was asserted that the applicant’s family ceased renting a storage facility and installed security cameras around their property. It is further asserted that in October 2013 the applicant claimed that someone had attempted to shoot a friend of his father who is a wealthy businessman. The applicant claims to fear for his life for failing to pay the extortion money. The applicant filed an application for review on 15 March 2018 pursuant to section 476 of the Act. The application has, on its face, six grounds of review.

4. At the commencement of the hearing in Court today counsel on behalf of the applicant, Mr Rebetzke, did not seek to rely upon ground 1 of the application. The IAA in its reasons considered the material contained in and attached to the applicant’s submission dated 31 May 2017. The IAA found that such submission did not contain “new information” within the meaning of that term as used in section 473DC(1) of the Act. The IAA placed the new information into two categories consisting of, firstly, new claims about the standard of interpretation in the SHEV interview and secondly, about why the applicant had not contacted his family in the three years before lodging his SHEV application.

5. The applicant also raised claims of past harm to the applicant’s brothers in which it was asserted that members of the PKK (Kurdistan Workers’ Party) were responsible for harm inflicted upon the applicant in May 2012.  In relation to the new information supplied, the IAA found as follows:

   a.It was not satisfied that the new information arising out of allegations concerning the standard of interpretation at the SHEV interview could not have been provided to the Minister prior to the delegate’s decision, or that it contained credible personal information. It also did not consider that there were exceptional circumstances justifying the consideration of such information (see reasons at [8].)

   b.The IAA found that the information submitted by the applicant concerning his alleged non-contact with his family could have been provided to the Minister prior to the delegate’s decision. It found that it did not contain credible personal information that was not previously known, or that exceptional circumstances existed to justify the consideration of any such information (see reasons at [10].)

   c.The IAA found that the information concerning alleged past harm to the applicant’s brothers could have been provided to the Minister prior to the delegate’s decision. The IAA did not consider that such information contained credible personal information that was not previously known, or, had it been known, was information which may have affected consideration of the applicant’s claims. The IAA was also not satisfied that exceptional circumstances existed to justify the consideration of the information (see reasons at [18].)

   d.The IAA was not satisfied that the statement of one Mr Ali, could not have been provided to the Minister prior to the delegate’s decision, or that it contained credible personal information which was not previously known, or had it been known, was information which may have affected consideration of the applicant’s claims. The IAA was also not satisfied that any exceptional circumstances existed to justify considering the information (see reasons at [19].)

   e.As to country information, the IAA found that the DFAT Smartraveller website was dated after the delegate’s decision and that although it could not have been provided prior to such decision, it did not contain credible personal information justifying reasons to consider it.  The IAA was not satisfied that the 2015 articles could not have been provided to the Minister prior to the delegate’s decision, or that they contained credible personal information that was not previously known, or if known, was information which may have affected consideration of the applicant’s claims.  The IAA was also not satisfied that exceptional circumstances existed to justify the consideration of the information. 

6. The IAA also found that articles postdating the delegate’s decision could not have been provided prior to the decision, but because of the “fluid nature of the security situation in Iraq”, the information was considered to be relevant, and it was assessed that there were exceptional reasons for considering such information.  The IAA similarly found that new country information from a DFAT report dated June 2017 related to the evolving situation in Iraq, and that there were exceptional circumstances justifying the consideration of such report. 

7. There was also new information on the treatment of failed asylum seekers and returnees from a western country.  Based on the contents of that report in the light of evolving circumstances, the report was considered on the basis that exceptional circumstances justifying its consideration had been established.  It was accepted by the IAA that the applicant and his family ran several businesses and that they would continue to have those businesses and, relevantly, have a profile as wealthy business owners. 

8. It accepted that the incidents adverted to by the applicant as having occurred in May 2012 and October 2013 occurred, as alleged (see reasons at [29] and [31] – [33] inclusive.)  The IAA found that neither the applicant nor his immediate family had suffered past harm from local authorities, and that it was implausible that unknown armed men would retain an interest in harming the applicant after nearly five years, particularly because the applicant’s business and storage facility was no longer in operation. 

9. The IAA was also not satisfied that the applicant faced a real chance of harm from local authorities or anyone else based on his past or possible future ownership of a business, nor as a result of the general security situation in his home area.  The IAA found it “implausible” that the applicant had not maintained contact with his family as was alleged by the applicant.  The IAA was also not satisfied that the applicant would face harm as a failed asylum seeker, or as a returnee from a western country (see reasons at [39] and [40].)

10. The IAA did not consider that the applicant was a “refugee” within the definition of section 5H(1) of the Act and, therefore, did not meet the criteria set out in section 36(2)(a) of the Act. For the same reasons, the IAA was not satisfied that the applicant met the complementary protection criteria as set out in section 36(2)(aa) of the Act. (Reasons at [42] and [48].) Ground 2 of the application is as follows:

    The IAA erred in by regarding itself legally bound not to consider new information with respect to the Applicant’s contact with his family.

    Particulars

    (a) The IAA found the question of the applicant’s contact with his family was “extensively discussed at the SHEV interview, during which time the delegate identified concerns about the plausibility of [the applicant’s …] claim”.

    (b) The IAA failed to take into account the fact that there was imperfect communication at the

    SHEV interview via an interpreter as relevant to the tasks required by s.473DD(a) and (b);

    (c) The decision not to consider the information was legally unreasonable.

11. Mr Rebetzke, as counsel for the applicant, referred the Court to section 473DD of the Act on the question of the consideration of new information in exceptional circumstances. Section 473DD 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.

12. Section 473DD, first, has a threshold that the applicant must satisfy the decision-maker that there were exceptional circumstances justifying consideration of new information. If that is established, then the two limbs of subparagraph (b) fall to be considered. At the hearing, counsel for the applicant did not press the issue of imperfect communication at the SHEV interview, as expressed in subparagraph (b) of the particulars. To the extent that the IAA failed to consider new information relating to the applicant’s contact with his family, at paragraph [10] and [11] of its reasons, the IAA found that the issue of the applicant’s contact with his family was not a new issue, but rather that it had been raised in the applicant’s written statement accompanying the SHEV application.

13. It was also extensively discussed at the SHEV interview during which time the delegate identified concerns about the plausibility of the claim.  The applicant gave evidence during that interview as to why he had not been in touch with his family, which evidence was different to the information in the statutory declaration (CB 168) of the applicant sought to be relied upon by him as new information.  The applicant was found to have had the opportunity to provide new information but had not done so.  It was noted that there was over a month between the SHEV interview and the decision, and that the applicant had not raised that new information at that time. 

14. The same considerations applied to a statement said to be from the applicant’s brother called Mohammad.  It was noted that there was no contention of animosity between the applicant and his family, and the IAA was not satisfied that there was any good reason why the applicant could not have provided Mohammad’s statement prior to the making of the decision.  There was also inconsistency between the statutory declaration of the applicant and the statement of Mohammad, the IAA noting that such inconsistency was not only in respect of each of the respective statements but also with evidence provided by the applicant during his SHEV interview. 

15. The IAA questioned the credibility of the information, finding that the new information would have little evidentiary value in assessing the applicant’s protection claims.  The IAA concluded that the applicant had not satisfied it that the new information could not have been provided to the delegate before the decision was made, nor was it satisfied that it was credible personal information that was not previously known, or had it been known, was information which may have affected consideration of the applicant’s claims.  It found that there were not exceptional circumstances to justify considering the new information.

16. In those circumstances, the IAA found that it was constrained from considering the statutory declaration or the statement of Mohammad. That was so in respect of both section 473DD(a) and section 473DD(b) considerations. To the extent that the applicant sought to assert that the decision of the IAA was wrong, the application sought the Court to engage in an impermissible merits review, something that it was not able to do. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 259 at 272)

17. The IAA carefully considered the material before it and made a decision that it was not going to consider the new information in respect of the applicant’s contact with his family.  To that extent, its decision-making process was appropriate, and its decision was not illogical.  There is no merit to ground 2, and it must be dismissed. 

18. Ground 3 provides as follows:

    The IAA erred in regarding itself legally bound not to consider new information with respect to past harm to the Applicant’s brothers and the identification of the perpetrators of part harm to the Applicant.

    Particulars

    (a) The IAA failed to take into account the fact that there was imperfect communication at the SHEV interview via an interpreter as relevant to the tasks required by s.473DD(a) and (b);

    (b) The decision not to consider the information was legally unreasonable.

19. This ground deals with past harm considerations raised by the applicant.  Again, the applicant, by his counsel, abandoned the particular in respect of miscommunication at the SHEV interview stage as a basis for review.  Insofar as the claims in relation to past harm were made, the IAA did consider that the supporting material would have been available to the applicant to obtain prior to the making of the delegate’s decision, the IAA having properly proceeded in its consideration of the issue. 

20. The IAA had concerns about the plausibility of the applicant’s explanation, finding that the applicant was aware that matters relating to past harm were relevant.  At [14] of the reasons it was noted that the applicant did not inform the department that he was seeking to obtain more information.  The IAA found that it was not clear why the new claims included in the IAA submission, being the applicant’s statutory declaration and Yasin’s statement and other supporting material, could not have been provided to the delegate prior to the making of the decision.

21. It was, therefore, open for the IAA to hold that it was not satisfied that the applicant could not have obtained the information and provided it to the delegate before the delegate made the decision. There is no basis for the submission that the IAA did not independently consider each of the criteria contained in section 473DD of the Act. Given that the IAA found that the requirements of section 473DD had not been met, the IAA was not permitted to consider that new information. The IAA did not fall into jurisdictional error for the same reasons as found in respect of ground 2 of the application. Ground 3 has no merit, and should be dismissed.

22. It was conceded by counsel on behalf of the applicant that grounds 4, 5 and 6 either swam or sank based upon the findings relating to grounds 2 and 3.  That grounds 2 and 3 have been dismissed disposes of grounds 4, 5 and 6. Accordingly, the application for review is dismissed. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 25 September 2018