Bme20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 132

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BME20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 132

File number(s):

SYG 840 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

11 October 2021

Catchwords:

MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority erred in dealing with new information or in assessing the applicant’s claims considered – no jurisdictional error

Legislation:

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

Cases cited:

ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551

MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Division:

Division 2 General Federal Law

Number of paragraphs:

41

Date of hearing:

11 October 2021

Place:

Sydney

Applicant appeared in person

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Clayton Utz

ORDERS

SYG 840 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BME20

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:	11 OCTOBER 2021

THE COURT ORDERS THAT:

1.The application lodged on 3 April 2020 is dismissed.

2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,467.

3.The Court notes that the applicant has provided an updated address for service.

4.The Court directs that the address of the applicant not appear on the transcript of proceedings.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER:

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 12 March 2020.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 10 October 2021, which I adopt. 

3. The applicant is a citizen of Iraq, who came to Australia in June 2013. On 3 July 2013 he participated in an entry interview on Christmas Island.[1]

   [1] Court Book (CB) 1

4. On 23 August 2017 he lodged an application for a Safe Haven Enterprise Visa (SHEV). The applicant’s claims to fear harm if returned to Iraq were set out in a statement accompanying his SHEV application.[2]  In summary, he feared harm including from the Mahdi Army because he was a Shia Muslim. He claimed to have had altercations with members of the Mahdi Army following explosions near his home in Baghdad in August 2007. The applicant initially relocated to Cyrus, but returned to Iraq after four years. Iraq remained a dangerous place including due to religious militia groups, such as the popular mobilisation forces (PMFs). The applicant referred to another encounter in May 2013 when he was stopped by three armed men as he was walking home. He claimed he was taken to a Mahdi Army building, and money was demanded from him as they knew he had worked in Cyprus for four years. The applicant feared harm from the Mahdi Army, he feared harm as a result of sectarian violence, and from religious extremists.

   [2] CB 76

5. On 22 August 2019 the Department of Home Affairs (Department) invited the applicant to an interview, which he attended on 5 September 2019.[3] On 9 September 2019 the applicant’s legal representative sent a submission to the Department in support of the applicant’s application.[4]

   [3] CB 86

   [4] CB 89

6. On 7 February 2020 the delegate decided to refuse to grant the applicant a SHEV.[5] The applicant’s matter was referred to the Authority for review under s.473CA of the Migration Act 1958 (Cth) (Migration Act).[6] On 6 March 2020 the applicant’s representative sent a submission and new information to the Authority.[7]

   [5] CB 102

   [6] CB 116

   [7] CB 118

7. On 12 March 2020 the Authority affirmed the decision under review.[8] The Authority accepted the applicant was a Shia Muslim from Baghdad, and that he had spent four years in Cyprus before returning to Iraq in 2011. The Authority accepted at [15] that it was plausible that the applicant’s conversation with members of the Mahdi Army occurred in 2007.  However, it differed from the delegate in rejecting at [16] that the applicant had been kidnapped and subject to an extortion attempt by the Army in 2013. It referred at [16] in particular to the applicant’s failure to mention the event at all during his entry interview, which took place a short time after the alleged extortion attempt was said to have happened, and his statement at the entry interview that he had no level of interaction with the Army.

   [8] CB 138

8. The Authority otherwise was not satisfied that the applicant was at risk of harm if returned to Iraq, including to his home area of Baghdad, where he was a member of the majority religion. It accepted there was violence and security risks in Iraq, but that the applicant would be subject to no greater risk of harm as a consequence of these incidents than any other member of Iraqi society.

9. These proceedings began with a show cause application lodged on 3 April 2020 and filed on 6 April 2020.  The applicant continues to rely upon that application.  It was prepared by the applicant’s former solicitor, Mr Ali Alkafaji, who also represented him before the Authority.  Mr Alkafaji withdrew from the record in accordance with this Court’s Rules on 2 March 2021.

10. The application contains six grounds:

    1-the authority failed to consider new information under 473DD

    particulars :

    a- at [5], the authority didn't accept that there is exceptional circumstances that justify consideration of an article that was presented by the applicant's representative about the killing of some protestors by Alsadr supporters, the authority 'reason was that the applicant did not involve in a protest against the Sadr supporters, this is jurisdictional error, as the delegate of the department refused the applicant's case because of what the delegate's conclusions about the Sadr supporters not engaging in any violence against its opponents, the article comes to prove that this kind of conclusion was made in error. The country information was relevant to the assessment of the applicant's claims in · a substantial way, and overlooking it was an jurisdictional error. As the authority failed to consider its duty under s 473DD.

    b-   The same applied to paragraph 6 of the authority's decision , when the authority did not consider the submitted information about the Sadr city , when it was the authority's duty to assess the situation in the applicant's home town. because if the authority's finding that the applicant can return to Baghdad is influenced by not taking into account this new information.

    2-The authority concluded at [7], that the applicant provided new claim, in relation to the accusations against him of being spy , this conclusion was made in error, as the applicant stated that .during his PV interview, the applicant will provide a transcript of his PV audio recording to prove that.

    3-The authority made an error by relying on an omission at the arrival interview (MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80), although the authority referred to the caution that should be practiced in these matters, however, the authority relied on an omission at the arrival interview although the arrival interview claims were not inconsistent with the PV claims.

    4-It was legally unreasonable for the authority not to exercise its power under s 473DC , as the delegate accepted that the applicant had an altercations with the Mahdi army who targeted him by extortion in may 2013 , while the authority did not accept that , and without inviting the applicant to comment in relation to this issue.

    5-At [17], the authority did not assess whether the applicant will resume drinking alcohol if her is to return to Iraq, although that it was something arsing from the material NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263.

    6-The authority suggested that the applicant's home town is Baghdad, overlooking the big differences in relation to the different towns in Baghdad,

11. The application is supported by a short affidavit by the applicant filed with it.  I received that as a submission.  I received as evidence the court book lodged on 1 June 2020. 

12. The applicant acknowledged receipt of the court book and the Minister’s outline of submissions.  He told me, however, that although he had received the Minister’s submissions he had not read or understood them.  Bearing that in mind, I called upon the Minister’s representative to explain the Minister’s submissions in relation to the grounds of review.  That was done and I then called upon the applicant to make oral submissions.  Those submissions focussed on the applicant’s fear of harm from the Mahdi Army led by Muqtada al-Sadr. 

13. The applicant told me that although $90,000 was demanded from him, he regarded this as bait and he regarded himself at risk of death because he was regarded as a spy.  The applicant maintains that the Mahdi Army has a dominant position in Iraq and that he was personally threatened by them.  The applicant claims that he is considered as an infidel by the Mahdi Army and would never have come to Australia had he not been in fear for his life.  These submissions were delivered with some passion by the applicant and a degree of agitation. 

14. The claim was put in support of the applicant’s claim to a protection visa.  The claim was not accepted by the delegate in as much as the delegate considered that the Mahdi Army was a spent force.  The Authority went further, rejecting the claim on the facts. 

15. The applicant’s claims could be considered further by the Minister should he be so minded.  The merits of the authority decision beyond the scope of this proceeding.  I reminded the applicant of the limits on this Court’s jurisdiction and invited him to address any particular problems he had with the Authority decision.  He asserted that the claims which he had put to me had not been considered.  That is plainly incorrect.  The applicant’s claims to fear harm from the Mahdi Army were considered both by the delegate and the Authority but not accepted for various reasons.  

16. The applicant otherwise did not address the grounds of review in his application.  Those grounds are addressed comprehensively in the Minister’s submissions which have been explained orally to the applicant. 

17. I agree with and adopt the Minister’s submissions. 

    First ground

18. In the first ground the applicant contends that the Authority erred in its reasons at [5] and [6] in failing to find exceptional circumstances existed for the purposes of s 473DD of the Migration Act in respect of two articles the applicant’s representative had sent to the Authority for consideration. The Authority at [4] identified the three articles that the applicant sought to advance. It appears that the applicant challenges the Authority’s consideration under s 473DD of the briefing note from the UN High Commissioner (referred to at [4(b)].[9]

    [9] see the extract at CB 122-123 and the Washington Post article (referred to at [4(c)]: see CB 125)

19. The applicant submits that the Authority erred in relation to the briefing note from the UN High Commissioner, in that the delegate had “refused the applicant’s case because of … the delegate’s conclusions about the Sadr supporters not engaging in any violence against its opponents” and that the briefing note sought to “prove that this kind of conclusion was made in error”. The argument cannot be accepted. First, the delegate made no finding that Sadr supporters had not engaged in any violence against its opponents. To the contrary, the delegate recognised Shi’a groups, including military arms of the Sadrist political movement.[10] The delegate noted that Shi’a armed groups had engaged in violence, but that it was “usually low-level”. Secondly, the fact that the applicant sought to challenge a factual conclusion reached by the delegate with new information was not, of itself, a matter that necessitated a finding that the information was “credible personal information”. Nor was it a matter that necessitated a finding of exceptional circumstances. Even if the briefing note might have been “relevant”, what the applicant needed to address in his submission to the Authority, but which he failed to address, was why the circumstances were exceptional. As the High Court stated in Plaintiff M174/2016 v Minister for Immigration and Border Protection[11] at [30]:

    Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered".

    (footnote omitted)

    [10] CB 111

    [11] (2018) 264 CLR 217

20. There was no error in the Authority’s consideration of the UN briefing note.

21. In relation to the Washington Post article, the applicant submits that the Authority erred in failing to consider the information as it related to the applicant’s “home town”. The applicant failed to identify in his submission how the information was credible personal information or what exceptional circumstances existed justifying consideration of the information. Its mere relevance to the review does not meet the requirements of s 473DD. In any event, it was for the Authority, not for the Court, to assess the information under s 473DD. The applicant has failed to identify how the Authority has either misconstrued or misunderstood s 473DD, or misinterpreted his information.

    Second ground

22. In the second ground the applicant contends that the Authority fell into error in its reasons at [7] in proceeding on the mistaken assumption that the applicant’s claim in relation to the accusations against him of being a spy was a new claim, that needed to meet the requirements of s 473DD. The applicant submits that the Authority made a jurisdictional error in failing to consider the claim.

23. The applicant states in the ground that he intended to adduce evidence in the form of a transcript of the protection visa interview in order to establish the claims he advanced at the interview. On 21 April 2020 I ordered that the applicant file any evidence, including a transcript of the Department interview, by 15 July 2020. The applicant has not done so. Absent any mention in either the delegate’s or the Authority’s reasons of the applicant’s claim that he was accused of being a spy, this ground fails at the first hurdle. There is no evidence before the Court that the applicant advanced such a claim.

24. In any event, the applicant appears to misstate the Authority’s findings at [7]. The Authority did not find that the claim that the applicant was accused of being a spy was a new claim. Rather the new claim was that:

    … even when he left Iraq to Cyprus [in 2007], there were a lot of accusations about him being spy to the Americans etc, at one point of time the militias approached the mayor ‘Mokhtar’ for that purpose.

25. As is evident from the Authority’s consideration of the “new claim”, at [7], what was new about it was the applicant’s awareness of the militia’s actions while he was living in Cyprus, and why the militia had approached the mayor “for that purpose”. Even had the applicant previously mentioned that he had been accused of being a spy, there is no evidence that he claimed that the militias had approached the mayor for this reason. The Authority did not fall into error.

    Third ground

26. In the third ground the applicant asserts that the Authority erred by relying on an omission at the arrival interview,[12] contrary to MZZJO v Minister for Immigration and Border Protection.[13] I reject the argument. That the Authority took into account what the applicant said, or relevantly, did not say, at his entry interview, does not in the circumstances of this case amount to jurisdictional error.[14] The Authority adopted an appropriately “cautious” approach in its reliance on the failure of the applicant to mention at the entry interview details of the extortion attempted. It was mindful of the fact that such caution is necessitated because of the particular circumstances of an entry interview which is conducted “after a long journey on the ocean in cramped and difficult conditions”.

    [12] otherwise referred to as "entry interview" in this judgment

    [13] (2014) 239 FCR 436

    [14] see MZZJO at [56] and CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [50]

27. However the Authority did not rely on the mere failure by the applicant to mention the extortion attempted during his entry interview. The Authority also placed weight on the fact that the applicant had positively confirmed in his entry interview that he had no level of involvement with the Mahdi Army.[15] In all of the circumstances, there was no error in the Authority’s reliance on what the applicant did, and did not, say at the entry interview.

    [15] see MZZJO at [57]

    Fourth ground

28. In the fourth ground the applicant asserts that it was legally unreasonable for the Authority not to exercise power under s 473DC to get new information from the applicant in relation to the issue of whether the Mahdi Army had targeted him in 2013. The applicant identifies a divergence in the findings made by the delegate, and by the Authority, in relation to the claim.

29. The delegate accepted that the extortion attempt had occurred, but found that the Mahdi Army no longer existed, and that due to the passage of time since the events, the applicant did not have a well-founded fear of persecution for this reasons.[16] The Authority, by contrast, and picking up on the applicant’s failure to mention the 2013 extortion attempt when he was first interviewed by the Department the same year, found at [13]-[16] that the extortion attempt did not occur as claimed.

    [16] CB 112

30. Whether the Authority has failed unreasonably to exercise or to consider exercising its power under s 473DC requires consideration both of the statutory scheme, and the circumstances of the case. Subject to Part 7AA the Authority must review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to it under s 473CB without accepting or requesting new information, and without interviewing the referred applicant. Circumstances may arise where it will be necessary for the Authority to invite an applicant to give new information.[17] However the Authority proposing to make different factual findings from the delegate does not, of itself, give rise to a duty on the Authority to seek new information from the applicant, because Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate.[18]

    [17] BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 at [176]

    [18] see DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72], [75]

1. A recent example of the kind of circumstances that may give rise to a need for the Authority to get new information under s 473DC, or at least to consider doing so, is where the Authority without good reason fails to invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. In the circumstances of that case, the High Court held that an error had occurred with respect to the Authority’s conduct of the review.[19]

   [19] ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928

2. By contrast with ABT17, in the present case the Authority formed a different view about whether an event claimed by the applicant to have occurred did in fact occur. It is not apparent from either the reasons of the delegate, or of the Authority, that the applicant’s manner or demeanour at the protection visa interview was a factor in determining whether the claim should be accepted. Although it may readily be accepted that the Authority did not have the benefit of witnessing the applicant answer the delegate’s questions, and therefore there was an “informational gap” in comparison with the delegate, in ABT17, the plurality of the High Court stated at [22]:

   The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate". That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.

   (footnotes omitted)

3. Further, at [23], the plurality stated:

   To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.

4. It was in that context that the plurality clarified at [24] that the Authority is not required to interview a referred applicant “merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate”.

5. The present is not a case where the Authority formed a different view about certain claims because of the manner in which the applicant had addressed or developed the claim at the interview with the delegate. This is the type of case, as the plurality identified in ABT17, where it was open to the Authority to reach a different conclusion as that reached by the delegate, and without inviting the applicant to an interview.

6. The ground fails to identify error by the Authority.

   Fifth ground

7. In the fifth ground the applicant submits that the Authority failed to assess whether he would resume drinking alcohol if he returned to Iraq. The submission appears to be that it was a claim squarely arising on the material before the Authority that the applicant claimed to fear harm if returned to Iraq because he would consume alcohol. The Authority expressly addressed this question at [17]. It noted, correctly, that the applicant had not claimed that he feared harm in Iraq due to having consumed alcohol in the past, and that he had not claimed that he would resume drinking alcohol if he returned to Iraq. It was a matter for the applicant to articulate with clarity the reasons he feared returning to Iraq. Nothing said by the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[20] is to the contrary. The applicant is seeking now simply to re-cast his claims as advanced to the Department, and to the Authority. As Gleeson CJ (in dissent on the outcome) opined in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[21] at [1]:

   … this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.

   (footnote omitted)

   [20] (2004) 144 FCR 1

   [21] (2003) 216 CLR 473

8. The applicant was assisted by a solicitor in the preparation of his claims. If he had intended to seek to relate a claim that he feared harm on the basis of his past, or future, alcohol consumption, he would have articulated the claim expressly. No error is made out.

   Sixth ground

9. In the sixth ground the applicant contends that the Authority overlooked the “big differences in relation to the different towns in Baghdad”. It is unclear how this ground amounts to a challenge for jurisdictional error. The Authority properly identified at [21] Baghdad as the applicant’s home area. This was consistent with the applicant’s own claims. The applicant’s solicitor advanced submissions about the risk the applicant faced “in Baghdad”.[22]  Even if there are differences between regions within Baghdad, the applicant has neither explained what these differences are, nor clarified how this results in a jurisdictional error by the Authority. The Authority’s conclusions of risk by reference to Baghdad are explained in its decision record. The ground fails to identify any error in the Authority’s conclusions.

   [22] CB 90

   CONCLUSION

10. I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

11. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale at the time the application was filed.  The applicant expressed a wish to pay by instalments but did not oppose a costs order.  I will order that the applicant pay the Minister’s costs, fixed in the sum of $7,467.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       13 October 2021