BMK17 v Minister for Immigration
[2017] FCCA 1952
•6 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMK17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1952 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Lebanon for ethnic, religious and political reasons – applicant’s fears found not to be well‑founded – whether the review was procedurally unfair having regard to information provided by the Authority considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.473DA |
| Cases cited: CLV16 v Minister for Immigration & Anor [2017] FCCA 1200 DZU16 v Minister for Immigration & Anor [2017] FCCA 851 |
| Applicant: | BMK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1056 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 August 2017 |
| Date of final submissions: | 11 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Bailey |
| Solicitors for the Applicant: | Firmstone & Associates |
| Solicitors for the Respondents: | Ms K Hooper of HWL Ebsworth |
ORDERS
The application filed on 7 April 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1056 of 2017
| BMK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 8 March 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The following statement of background facts is derived from the Minister’s written submissions filed on 8 August 2017.
The applicant is a male citizen of Lebanon. He arrived in Australia on 4 June 2013. By letter dated 3 August 2016, the Minister’s Department wrote to the applicant inviting him to make an application for, relevantly, a temporary protection visa[1].
[1] Court Book (CB) 1.
The applicant lodged his application for the protection visa on 15 September 2016[2]. The applicant claimed that, while living in Tripoli, he was constantly affected by the unrest and conflict between the competing ethnic groups in the area. The applicant further claimed to have been active in expressing his political opinion, including actively criticising Hezbollah and Alawite and Shia groups[3].
[2] CB 6.
[3] CB 45.
On 17 January 2017, the delegate refused the visa application[4]. The delegate accepted the applicant’s claims as plausible but found that he could relocate to Beirut.
[4] CB 126.
The application was referred for review by the Authority[5], which affirmed the delegate's decision[6]. The Authority found that the applicant was credible, and accepted in their entirety his claims as to events he experienced in Lebanon[7].
[5] CB 139.
[6] CB 289.
[7] At [10].
Specifically, the Authority accepted that the applicant was previously outspoken in support of Sunnis, and against Alawites, other Shias, Hezbollah and the Assad regime in Syria. This had led to fights in the applicant’s Beirut workplace, and the applicant had experienced harassment and intimidation, and was repeatedly threatened[8]. The applicant’s problems with his work colleagues extended to physical fights, and the applicant left the workplace in fear. However, on the applicant’s evidence, these colleagues knew where the applicant lived and worked, and the Authority was not satisfied that they ever acted to carry out their threats[9].
[8] At [16].
[9] At [17].
The Authority accepted that the applicant had been outspoken in sharing his opinion against Shias, Alawites, Hezbollah and the Assad regime amongst friends and colleagues, including on the way to work. However, on the evidence, his activities remained low-level and confined to sharing his opinions with people he knew, albeit sometimes in public places. The Authority found that there was no evidence before it to indicate that the applicant had ever engaged in public activism or advocacy, had aligned with any group, or had otherwise sought to mobilise against the Assad regime, Hezbollah, the Alawites of Jabal Mohsen or any other Shia or pro-Syrian regime groups.
The Authority was not satisfied that the applicant’s previous voicing of his personal opinion would be perceived by Hezbollah to be threatening, nor that it would be so perceived if he did so upon return. The applicant had not indicated, and nothing else in the referred material indicated, that he would escalate his behaviour or engage in political activism upon return, or that he would otherwise be considered a threat to Hezbollah. The applicant had not indicated that he wished to engage in behaviour which Hezbollah would consider threatening, or to become politically active such that he would have a profile that would lead to him being targeted, or that he would only avoid doing so out of fear of being harmed. The Authority was not satisfied that the applicant faced a real chance of being harmed by Hezbollah, or anyone else, on account of his political opinions[10].
[10] At [21].
The Authority acknowledged that some of the applicant’s relatives had been threatened and killed, and that the applicant had previously been shot at by snipers and threatened via text, and that his colleagues had questioned why he was still alive. However, considering its factual findings and country information about the situation in the applicant’s neighbourhood, the Authority was not satisfied that these events were orchestrated by the affiliates of any colleagues, or in response to the applicant’s political opinions. The Authority found that the applicant and his relatives were victims of the conflict between the groups of Bab Al-Tabbaneh and Jabal Mohsen[11].
[11] At [23].
The Authority considered the risk of harm to the applicant as a Sunni. It was satisfied that, as a Sunni Muslim from Bab Al-Tabbaneh, he faced a small but real chance of persecution from Alawite militias from the adjacent neighbourhood targeting Sunnis in his own neighbourhood[12].
[12] At [26].
The Authority was not satisfied the applicant faced a real chance of harm from Hezbollah throughout Lebanon and particularly in Beirut. It found that the applicant’s sharing of his political opinion was low-level and it was not satisfied he would engage in any greater political activity upon return. The Authority was satisfied that the applicant did not previously attract the adverse attention of Shia or pro-Syrian regime militias outside his neighbourhood in Tripoli, despite his interactions at work. It was satisfied that the applicant would not face a real chance of persecution in Beirut from any other Shia or pro-Syrian militia groups in Beirut[13]. The Authority additionally had regard to the broader risk of harm arising from sectarian and insurgent violence in Lebanon[14]. It concluded[15] that the chance of such harm to the applicant was remote. The Authority was not satisfied that the applicant faced a real chance of harm arising from the refugee influx, or any armed response from Syria, or from ISIS, Al-Nusra or other insurgents, or any other manifestation of generalised violence in the reasonably foreseeable future in Beirut.
[13] At [29].
[14] At [30].
[15] At [34].
The Authority gave express consideration to the applicant’s claims as to the cost of living in Lebanon, including at [37]. It found that country information supported the proposition there is poverty and substantial socio-economic problems in Beirut, and that the influx of refugees in the region has placed additional pressure on Beirut infrastructure and services. However, the applicant had work experience in Australia, which the Authority considered would be conducive to his finding employment and establishing himself in Beirut. The Authority further considered country information concerning the existence of a range of non-government organisations which provide support. It was not satisfied that the cost of living, the applicant’s lost superannuation for a period of six years, or the years he had spent in Australia, would mean that he faced a real chance of a threatened capacity to subsist in the reasonably foreseeable future upon return, or that his financial circumstances would otherwise lead to serious harm.
With respect to complementary protection, from [48] the Authority considered the reasonableness of relocation by reference to the applicant’s circumstances and his claim as to living costs. The Authority also considered that the applicant would be living apart from his family in Tripoli, and took into account his previous depression, panic attacks, and his becoming hysterical (in relation to the deaths of his relatives in Lebanon)[16].
[16] At [51].
The current proceedings
These proceedings began with a show cause application filed on 7 April 2017. The applicant continues to rely upon that application. There is one particularised ground in it:
The Immigration Assessment Authority (IAA) denied the applicant denied procedural fairness by providing him with incorrect advice as to the IAA review procedure.
Particulars
(a)At paragraph 4 of the decision record, it stated the following;-
‘that the applicant spoke with the IAA using the services of an Arabic interpreter. He asked if he would be contacted for a hearing and was advised that usually the IAA does not provide a hearing, that the review is undertaken on the papers, and that the IAA would review the file provided by the Department of Immigration and Border Protection (DIBP). The applicant was further advised that if he wished to provide any further information as to why he disagreed with the DIBP decision he should do so in the next 14 days. It is now over a month later and no such information has been received.”
(b)This advice was incorrect advice and effectively deprived the applicant of the opportunity to provide new evidence or evidence of exceptional circumstances directly to the IAA, as opposed to providing any information as to why he disagreed with the DIBP decision.
(errors in original)
I have before me as evidence the court book filed on 11 May 2017. The applicant and the Minister both filed written submissions and made oral submissions through their representatives at the trial of the matter on 16 August 2017.
I invited post-hearing submissions on the implications of this Court’s recent decision in CLV16 v Minister for Immigration & Anor[17]. The applicant and the Minister provided further submissions respectively on 31 August 2017 and 11 September 2017.
[17] [2017] FCCA 1200.
Consideration
The applicant contends that he was denied procedural fairness by the Authority because it provided him with incorrect advice about its review procedure. At [4] of its reasons[18], the Authority stated:
On 28 January 2017 the applicant spoke with the IAA using the services of an Arabic interpreter. He asked if he would be contacted for a hearing and was advised that usually the IAA does not provide a hearing, that the review is undertaken on the papers, and that the IAA would review the file provided by the Department of Immigration and Border Protection (DIBP). The applicant was further advised that if he wished to provide any information as to why he disagreed with the DIBP decision he should do so in the next 14 days. It is now over a month later and no such information has been received.
[18] CB 290.
The thrust of the applicant’s submissions is that, if the Authority fails to review a decision in accordance with its procedural code, or if it misleads an applicant about the applicable procedure in a review, it may fall into jurisdictional error. The applicant submits that the error is one of procedural unfairness.
It was with that in mind that I invited post-hearing submissions on this Court’s decision in CLV16. There, at [14] and [15] Judge Street said:
[14]The direction made under s.473FB of the Act identified a time constraint of 21 days for receipt of new information and had a page limit in respect of submissions and the explanation as to when the new information should be received, but no page limit in respect of the new information itself. The Authority’s letter sent on 29 June 2016 was in purported compliance with the obligations of procedural fairness that are not excluded by Part 7AA in explaining the nature of the process to the applicant and giving the applicant an opportunity for the Authority to exercise the powers given to it under Part 7AA.
Consideration of the failure to consider submissions and new information
[15]The failure of the Authority in the present case to take into account the submissions and new information was a denial of procedural fairness not excluded by s.473DA or s.473DC of the Act. Further, to the extent that reference was made to s.473FB(3) of the Act, the statement that non-compliance with any direction does not mean that the Authority’s decision is an invalid decision is concerned with whether the non-compliance was mandatory. That provision does not exclude the consequences in the present case of the denial of procedural fairness to the applicant from the failure by the Authority to take into account the applicant’s submissions and new information which were received within the extended time period provided by the Authority to the applicant in the communications that followed the letter from the Authority.
The Minister submits that his Honour’s statement of principle in relation to a denial of procedural fairness is clearly wrong. I note that CLV16 (as well as my decision in DZU16 v Minister for Immigration & Anor[19]) is under appeal in the Federal Court.
[19] [2017] FCCA 851.
It is not necessary in this case to express any view on whether CLV16 was correctly decided. There are several reasons for that. The first is that the error in CLV16 may have been alternatively characterised as a failure to take into account relevant material. Similarly in this case, if the applicant had been misled by the Authority as to the procedure on a fast track review, the error might alternatively have been expressed as a constructive failure of jurisdiction.
More importantly, however, it is unnecessary to explore further the issues of principle because, on the facts of this case, the applicant was not given any incorrect information by the Authority.
By letter dated 23 January 2017, the Authority wrote to the applicant acknowledging the referral[20]. The Authority's letter relevantly stated:
The Department of Immigration and Border Protection (the department) has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.
[20] CB 269.
The letter enclosed a brochure (factsheet), which provided information about the Authority. It relevantly included the following[21]:
Can I provide new information to the IAA?
We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision.
If there is new information you want us to consider, you must also provide an explanation why the information:
·could not have been provided to the department before it made the decision to refuse you a protection visa, or
·is credible personal information that, had it been known to the department, may have affected the department’s decision.
[21] CB 271.
This explanation should be no longer than 5 pages and accompany any new information you give us. Any new information we have not requested must be given to us within 21 days of your case being referred to us by the department.
In very limited circumstances, we may invite you to give us new information or comments about your case in writing or at an interview.
Can I make a submission to the IAA?
You can provide a written submission on:
· why you disagree with the department’s decision, and
· any claim or matter you presented to the department that was not considered.
Your submission should be no longer than 5 pages and given to us within 21 days of your case being referred to us by the department.
Also enclosed with the Authority’s letter was a copy of the President’s Practice Direction[22]. Relevantly, it informed the applicant that he could provide a written submission as to why he disagreed with the delegate’s decision, and any claim or matter that he presented to the Department that was overlooked[23]. The Practice Direction set out[24] that the Authority could only consider new information, being information that was not before the Department, in very limited circumstances. It stated[25] that if the applicant wanted to give the Authority new information, he must provide an explanation as to certain identified matters.
[22] CB 277.
[23] CB 278 at [20].
[24] CB 279 at [22].
[25] CB 279 at [23].
On 27 January 2017, an officer of the Authority recorded the following case note[26]:
The applicant phoned and requested an Arabic interpreter. I called him back with an interpreter at 09:20am (TIS job number 170068847). The applicant said he was calling to provide his email address - [email protected]. I updated his contact details to reflect this and advised that any correspondence from the IAA would be sent to him at that email address. He asked if he would be contacted for a hearing and I said that usually the IAA does not provide a hearing, that the review is undertaken on the papers, and that we will review the DIBP file. I advised that if he wanted to provide any information as to why he disagreed with the DIBP decision he should do so in the next 14 days. He thanked me and ended the call.
[26] CB 281.
Contrary to the ground extracted at [14] above, the Authority did not provide “incorrect advice” to the applicant. What the officer stated, as recorded in the file note, was not incorrect. The applicant’s case had been referred to the Authority on 20 January 2017[27]. In accordance with the Practice Direction and Information Sheet, the applicant had 21 days from that date to make a submission or provide new information[28]. As at the date of the conversation referred to above at [26], 14 days remained[29]. The fact that the officer did not give the applicant other information, such as that contained in the Authority’s information brochure and Practice Direction, does not make the information that she did convey incorrect, incomplete, or misleading. Rather, the applicant was fully informed of his opportunity to seek to have the Authority consider new information by its initial correspondence to him, with the enclosed information brochure and Practice Direction.
[27] CB 269.
[28] CB 279 at [21].
[29] CB 281.
Further, even if I am wrong and the information conveyed by the Authority's case officer was incomplete, it is not demonstrated nor alleged that the Authority failed to comply with any provision of its procedural code[30].
[30] See s.473DA of the Migration Act 1958 (Cth).
Conclusion
The applicant has failed 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.
I will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 6 October 2017
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