FEDERAL COURT OF AUSTRALIA
BMP17 v Minister for Home Affairs [2019] FCA 112
Appeal from: BMP17 v Minister for Immigration and Border Protection [2018] FCCA 1127 File number: WAD 265 of 2018 Judge: BANKS-SMITH J Date of judgment: 26 February 2019 Catchwords: MIGRATION - appeal from decision of Federal Circuit Court of Australia - protection visa - Iraqi citizen's protection claim based on connection with United States troops - whether Immigration Assessment Authority erred in failing to have regard to new information - whether task required for purpose of s 473DD of the Migration Act 1958 (Cth) undertaken - whether Authority erred in relying on country information as to historical position and identity of resistance groups - whether description of employment role revealed factual error that comprised error of law - whether errors comprised jurisdictional error - materiality - appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5H(1), 5J(1)(b), 36(2)(a), 36(2)(aa), 46A, 430, 473CB, 473DD Cases cited: AOV18 v Minister for Home Affairs [2018] FCA 1871
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221
CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192
CVS16 v Minister for Immigration and Border Protection [2018] FCA 951
DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173
SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145
Date of hearing: 5 November 2018 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 95 Counsel for the Appellant: Mr GMG McIntyre SC with Mr F Faris Solicitor for the Appellant: Rebus Legal Counsel for the First Respondent: Mr PJ Hannan Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
WAD 265 of 2018 BETWEEN: BMP17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
BANKS-SMITH J
DATE OF ORDER:
26 FEBRUARY 2019
THE COURT ORDERS THAT:
1.Leave to amend the notice of appeal by the addition of proposed ground 3 is refused.
2.Appeal dismissed.
3.The appellant to pay the first respondent's costs to be assessed if not agreed.
Note: Entry of orders…
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Details
- Case
- [2019] FCA 112
- Decision Date
CaseChat Overview and Summary
In BMP17 v Minister for Home Affairs, the appellant, an Iraqi citizen, sought a review of a decision by the Immigration Assessment Authority (IAA) which dismissed his application for a protection visa. The appellant's claim for a protection visa was based on his connection with United States troops, alleging that he provided information to them which led to threats against him and his family. The Federal Circuit Court of Australia reviewed the decision and dismissed the appeal.
The central legal issues in this case were whether the IAA erred in failing to consider new information provided by the appellant, whether the IAA correctly undertook the task required by section 473DD of the Migration Act 1958 (Cth), and whether the IAA's reliance on country information regarding the historical position and identity of resistance groups was appropriate. Additionally, the court examined whether the description of the appellant's employment role contained a factual error that constituted an error of law, and if such errors amounted to a jurisdictional error.
The court found that the IAA had not erred in declining to consider the new information provided by the appellant. The court held that the appellant had ample opportunity to provide the new information during the initial visa application process, and thus, there were no exceptional circumstances to warrant reconsideration of the new material. Furthermore, the court determined that the IAA correctly undertook the task required by section 473DD of the Act, which mandates that new information can only be considered if there are exceptional circumstances. The court also found that the IAA's reliance on country information to conclude that the appellant's claimed resistance group did not exist was justified, as no credible evidence of such a group was presented. Finally, the court held that any factual error in the description of the appellant's employment did not amount to a jurisdictional error because it did not materially affect the outcome of the visa application.
The Federal Circuit Court dismissed the appeal and ordered that the appellant pay the Minister's costs, to be assessed if not agreed.
The central legal issues in this case were whether the IAA erred in failing to consider new information provided by the appellant, whether the IAA correctly undertook the task required by section 473DD of the Migration Act 1958 (Cth), and whether the IAA's reliance on country information regarding the historical position and identity of resistance groups was appropriate. Additionally, the court examined whether the description of the appellant's employment role contained a factual error that constituted an error of law, and if such errors amounted to a jurisdictional error.
The court found that the IAA had not erred in declining to consider the new information provided by the appellant. The court held that the appellant had ample opportunity to provide the new information during the initial visa application process, and thus, there were no exceptional circumstances to warrant reconsideration of the new material. Furthermore, the court determined that the IAA correctly undertook the task required by section 473DD of the Act, which mandates that new information can only be considered if there are exceptional circumstances. The court also found that the IAA's reliance on country information to conclude that the appellant's claimed resistance group did not exist was justified, as no credible evidence of such a group was presented. Finally, the court held that any factual error in the description of the appellant's employment did not amount to a jurisdictional error because it did not materially affect the outcome of the visa application.
The Federal Circuit Court dismissed the appeal and ordered that the appellant pay the Minister's costs, to be assessed if not agreed.
Orders
Orders of the court
1. Leave to amend the notice of appeal by the addition of proposed ground 3 is refused.
2. Appeal dismissed.
3. The appellant to pay the first respondent's costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
There was conflicting evidence given by the appellant as to when his employment terminated. For example, in his entry interview he claimed to have worked for the KBR from 2010 to 2013, whereas later evidence suggested his employment ceased in 2011. The appellant's written statement in support of his visa application referred to the period to 2012. Country information from the United Nations High Commissioner for Refugees indicated that the vast majority of troops had withdrawn from Iraq by 2011. Taking that into account, the Authority found that the appellant worked for KBR between January 2010 and November 2011. The Authority accepted that the appellant held a junior position in the provisioning area of KBR.No evidence of existence of 'Fight for Just Punishment' group despite threat letter The Authority was prepared to place only limited weight on the inability of the appellant to properly identify a group that had threatened him. However, having regard to country information from the Department of Foreign Affairs and Trade (DFAT), the United Kingdom Home Office, the United Nations High Commission for Refugees and ORSAM, the Authority was unable to find any evidence of the existence of any group known as Fight for Just Punishment or any similarly named group. Further, the Authority found that the appellant was inconsistent in his references to such a group. The Authority said these matters were of some concern. The appellant had claimed that a threat letter he received was signed by the Fight for Just Punishment group. However, the document before the Authority did not establish that. It was a copy of what purported to be a translation, completed in Iraq, of a threat letter, and it was attached to the appellant's visa application. A copy of the claimed threat letter itself was not provided. The translation contains no reference to the Fight for Just Punishment group but indicates that the threat letter was signed by the 'Islamic Resistance in Iraq Brigades'. As a photocopy of a translation undertaken in Iraq of the claimed threat letter, the Authority placed no weight on the document. The appellant had claimed in his visa application that Fight for Just Punishment was also known as the 'Islamic Resistance in Iraq'. In his interview, he claimed that the Fight for Just Punishment group was a sub‑group of the Islamic Resistance in Iraq. The Authority noted that Islamic Resistance in Iraq is a term used to refer to four armed Shia groups that make up the Popular Mobilization Forces raised in 2014 to support the government's fight against Daesh (or ISIS) and that there was no evidence before the Authority that Islamic Resistance in Iraq was formed prior to 2014. The Authority had regard to various country information in coming to this conclusion, including country information about the Islamic Resistance in Iraq.The alleged threats The Authority detailed a number of inconsistencies in the appellant's evidence about the nature and frequency of the threats allegedly received. These included inconsistencies as to the number of threats, their content and the form of his response. For example, the Authority noted that in his application, the appellant claimed he had received threatening letters after his employment ceased, and that the letters continued for some three or four months. In his visa application interview, the appellant claimed he had received a single written threat which was passed to his uncle. The Authority also found it difficult to accept that a letter for the appellant 'happened to be there' at the time the uncle visited the members of the group. As already noted, the authority placed no weight on the alleged copy translation of the threat letter before it. In circumstances where the appellant provided no relevant explanation, the Authority found it implausible that the Islamic Resistance or Fight for Just Punishment group would believe that the appellant knew anything about the operations of such groups, that he would share such information with the US troops or that the groups would threaten to kill him on that basis. The appellant claimed to have no connection with any armed, political or religious group in Iraq. Further, there was no suggestion that the appellant was threatened during his employment or took steps to conceal his employment. Although he said that he also worked in a clothing shop after finishing work at the base, the appellant had described arriving at work in some detail without reference to any need for secrecy. He had discussed his employment with friends, at least after it ceased. KBR apparently had around ten different sections and the appellant worked in only one, suggesting that there may have been many other Iraqis employed on the base.
Decision
Reasons for decision
The appellant claimed that he could not rely on the protection of the Iraqi state and could not safely relocate anywhere else in Iraq.Authority's decisionNew material and s 473DD The Authority was provided with the relevant material under s 473CB of the Act. Prior to its determination, the Authority received a submission from the appellant's representative, some of which addressed matters that had already been raised in the delegate's decision, but some of which the Authority treated as new information (there was no challenge by the appellant to the selection of the new information). The following elements of the submission were said to be new information:(a)the appellant received two written threats, the first of which was placed under the front gate of the appellant's family home in January or February 2012;(b)the second written threat, which was passed to the appellant's uncle, contained a threat to kill the appellant, including for passing information to the US military that lead to the capture of many of the group's leaders and affiliates;(c)both the appellant and his uncle reported the threats to the police;(d)the source of the threats to the appellant should have been identified as the 'Islamic Resistance';(e)the Islamic Resistance consisted of all Shia militias 'pre‑army groups that were determined to fight the American troops, as they viewed them as occupying forces';(f)the Islamic Resistance group threatened to give the appellant 'fair and just punishment for his betrayal of the country and providing the US troops with information'; and(g)the appellant's brother is in the US as part of a special immigrant visa program on the basis of threats to his life associated with the appellant's alleged activities. The Authority referred to s 473DD of the Act and stated as follows:[10]Section 473DD of the Act requires that the IAA must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. In relation to information provided by the applicant, there is a further requirement that the applicant must satisfy the IAA that the new information was not, and could not have been, provided to the delegate before the delegate made his decision, or that the new information is credible personal information that was not previously known and, had it been known, may have affected the outcome of the applicant's claims.[11]The applicant's representative states generally that some factual issues were not considered in detail during the interview and the submission offers 'clarification'. The applicant provided evidence regarding the threats he claimed to have received in the entry interview of 25 April 2013, his TPV application of July 2016 and in the TPV interview conducted on 31 October 2016. The number, nature and circumstances of the threats were discussed in the TPV interview, as was the identity of the source. In view of the opportunities afforded to the applicant to provide evidence regarding the claimed threats, I am not satisfied that there are exceptional circumstances to justify the consideration of the new information relating to the threats to the applicant.[12]In terms of the new information regarding the applicant's brother, no information about the nature and dates of any claimed threats to his life, or the connection of the claimed threats to the applicant, has been included in the submission. In the absence of any such information, I am not satisfied that there are exceptional circumstances to justify the consideration of this new information.
Ratio Decidendi
Legal Principle Established
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