BMP17 v Minister for Immigration
[2018] FCCA 1127
•28 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMP17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1127 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – the Authority erred by considering irrelevant material and/or failed to consider claims – decision was illogical, irrational and unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 46A, 473DB, 473DC, 473DD, pt.7AA |
| Cases cited: BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 CVS16 v Minister for Immigration & Border Protection [2017] FCCA 249 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105 |
| Applicant: | BMP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 195 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 30 April 2018 |
| Date of Last Submission: | 30 April 2018 |
| Delivered at: | Sydney and Perth |
| Delivered on: | 28 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr F Faris, Rebus Legal |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 195 of 2017
| BMP17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the Immigration Assessment Authority made on 7 March 2017. The Authority affirmed a decision of a delegate of the Minister for Immigration not to grant the applicant a protection visa.
The applicant is a citizen of Iraq who arrived in Australia by boat on 3 April 2013. The Minister subsequently exercised his discretion under s.46A of the Migration Act 1958 (Cth) to allow the applicant to make a valid application for a protection visa.
On 4 July 2016, the applicant made an application for a protection visa. His application was based on the following claims.
The applicant was born in the city of Nasiriya, in Dhi Qar province, in the south of Iraq. Other than approximately five or six months spent with his aunt in Baghdad just prior to his travel to Australia, the applicant lived in Nasiriya all of his life. His family members continue to live in Nasiriya, with the exception of one brother who is currently in the United States.
In January 2010 the applicant was employed on a contract basis for a company called KBR, which provided provisions to US troops stationed in the area. His work involved processing orders for food and drink placed by different military units in KBR’s computer systems. The applicant worked on the Imam Ali air base which was an Iraqi base where many US soldiers were stationed.
In November 2011 the applicant’s contract, and that of the other 11 Iraqis employed in his section of KBR, ended. Sometime after the end of his contract, his mother received three or four verbal messages from the “Islamic Resistance in Iraq” or the “Fight for Just Punishment” group on his behalf. The applicant’s mother received the verbal messages on his behalf because she was the one in charge of the home and was always there. The group told his mother to tell him to meet them at a certain address. The applicant and his mother did not know who the group was or what they wanted so they ignored the messages. Members of the group used to loiter in the vicinity of his home at night. They came in cars with tinted windows, harassed him and his family and threw things at his home.
The applicant claimed that the aim of the “Islamic Resistance in Iraq” is to punish Iraqis perceived to be sympathetic to foreign interests and that the “Fight for Just Punishment” group was one of a number of groups that formed the “Islamic Resistance in Iraq”. It was the part of the “Islamic Resistance in Iraq” that wished to harm him.
The applicant’s uncle knew some people who knew the group and went to meet with these people. They told his uncle that they had a letter for the applicant that their superiors had asked them to pass on. They said the applicant had to come and see them. Some people had told them that the applicant worked with the Americans and they wanted to discuss this with the applicant. They also told the applicant’s uncle that the applicant was suspected of passing information about the militias to the US military. The applicant received this letter on 6 March 2012.
The applicant’s uncle reported the threat to the police but they didn’t take any action. His uncle recommended that he leave Nasiriya and go to live with his aunt in Baghdad for a while. The applicant moved to Baghdad in around April or May 2012 and stayed with his aunt for approximately until his departure from Iraq in March 2013.
The applicant left Iraq because he was afraid that the ‘Islamic Resistance in Iraq’ or the “Fight for Just Punishment” group would find out where he was living and kill him. The applicant claimed that, if he returns to Iraq, the “Islamic Resistance in Iraq” or “Fight for Just Punishment” group, or another group, will find him and kill him wherever he is in Iraq because he worked for a company associated with the US and because he escaped from Iraq and travelled to Australia.
The applicant claimed that he could not rely on the protection of the Iraqi state and could not safely relocate anywhere else in Iraq.
On 16 November 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The matter was then referred by the delegate to the Authority for review.
On 6 December 2016, agents acting for the applicant sent the Authority a submission which included a number of claims that had not been made before the delegate. It will be necessary to return to those submissions in some detail later in these reasons.
On 7 March 2017 the Authority made a decision to affirm the delegate’s decision.
In its statement of reasons, the Authority first set out its consideration of information that was before it: see [3] to [12]. This included consideration of the applicant’s submissions to it. Having determined that it was not entitled to consider that information, it turned to consider the claims on the basis of the information that it had before the delegate.
The following summary of the Authority’s findings on the basis of that information is taken largely from the submissions of the first respondent.
The Authority accepted that the applicant had worked in a junior role for KBR between January 2010 and November 2011. However, it did not accept that the applicant had been threatened as he claimed, or that he was a person targeted by any armed group. The Authority expressed a number of concerns with the applicant’s evidence in this regard. The applicant had claimed that “Fight for Just Punishment” was either known as, or was a subgroup of, the “Islamic Resistance in Iraq”. The Authority noted that “Islamic Resistance in Iraq” was itself a subgroup of the “popular mobilisation forces” raised in 2014 to combat Daesh (or ISIS). There was no evidence before the Authority that “Islamic Resistance in Iraq” was formed prior to 2014 and there was no evidence at all as to the existence of a group called “Fight for Just Punishment”. The Authority also detailed a number of inconsistencies in the applicant’s evidence about the nature and frequency of the threats received.
Having regard to country information, the Authority also held that the applicant would not be a target for armed groups if he were to return to Iraq. This was because the applicant had only worked for KBR for a relatively short period five years ago and would be of no ongoing interest to militia groups. The Authority also found that the applicant would return to Nasiriya in Dhi Qar province, where it was unlikely that he would be affected by sectarian violence.
The Authority next considered and found that there was not a real chance the applicant would be harmed because he had unsuccessfully sought asylum in Australia.
In light of these findings, the Authority was not satisfied that the applicant met the refugee criterion in sub-s.36(2)(a) of the Act, or the complementary protection criterion in sub-s.36(2)(aa) of the Act.
The applicant now seeks judicial review of the Authority’s decision.
Consideration
First ground: “The decision maker has considered irrelevant material”
The material said to be irrelevant in this ground is not identified by the applicant in his application. However, in his written submissions the material said to be irrelevant is identified as reports and documents relied upon by the Authority in its consideration of the applicant’s claim to have been threatened by a group called the “Fight for Just Punishment”. The applicant’s arguments focus on the following paragraphs of the Authority’s reasons (without alteration):
31.I have reviewed the information before me, which includes several documents listing Shia militia groups in Iraq. There is no reference to the ‘Fight for Just Punishment’ group or any group with a similar name. The applicant claims that the ‘Fight for Just Punishment’ group was also known as the ‘Islamic Resistance in Iraq’. According to ORSAM - Center for Middle Eastern Strategic Studies, the ‘Islamic Resistance in Iraq’ is a term used to refer to the four main armed Shia groups who make up the bulk of the ‘popular mobilisation forces’ (PMF), or ‘Al Hashdi al Shaab’ a group of volunteer forces established in response to a fatwa for Jihad issued by Ayatollah Ali Sistani, Iraq’s highest Shia religious authority in 2014. The PMF was primarily established to support the Iraqi government’s fight against Daesh (or ISIS), who made significant territorial gains in Iraq following a successful campaign in June 2014. The four Shia militia groups making up the ‘Islamic Resistance in Iraq’ are reported to be the Badr Organization, Kata’ib Hezbollah, Asa’ib Ahl al-Haq and Saraya al-Salam.
32.As the term the ‘Islamic Resistance in Iraq’ is reported to have been adopted to create an identity for these four groups within the PMF, which was itself established in 2014, I hold some doubts that this group threatened the applicant in 2012 as claimed. I accept that there are numerous Shia militia groups, that such groups may emerge, dissolve and be subsumed by other groups over time, and that there may be variations in names resulting from translations of Arabic names into English. These factors may account for the difficulty in identifying the group that threatened the applicant and I therefore place limited weight on the inability to identify the relevant group. Nevertheless, the applicant’s inconsistency in the references to the group from which he claims to fear harm, and the lack of any evidence that a group of either claimed name existed in 2012 is of some concern to me.
(Footnotes omitted)
The critical point made by the applicant in his submissions is at [27] of his written submissions:
Without significant consideration of alternative viewpoints and consideration of irrelevant post-dated material, the Authority erred in making the conclusion that it did, as this finding goes to the heart of the credibility of the applicants claims for protection that he was threatened by a group called ‘Fight for Just Punishment’ which was also known as ‘Islamic Resistance in Iraq’.
This submission makes clear that the assertion that the Tribunal considered irrelevant material does not rely on any orthodox understanding of an irrelevant consideration, namely a matter the consideration of which is expressly or impliedly prohibited by the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; [1986] HCA 40. Rather, the submission is that material was irrelevant because documents or reports in which the material was contained post -dated the relevant events.
The argument is misconceived. The date of a document does not alone establish the lack of relevance in any sense of that word. A report dated 2015 may contain accurate and up to date information concerning circumstances in 2012 just as, for example, a dictionary published in 2018 may contain information relating to the meaning of a word in the 16th century. This ground must be rejected.
Ground 2: “The decision maker failed to consider claims”
There are three parts to this ground. The first part concerns information contained in the written submissions submitted by the applicant to the Authority. The second concerns the fact that the Authority gave no weight to the document purporting to be a threat letter signed by the ‘Islamic Resistance in Iraq Brigades’. The third part of this ground concerns the finding of the Tribunal about the applicant’s employment with KBR. It is said that that finding was illogical, irrational, unreasonable and biased. It is convenient to deal with the second and third parts of the ground before dealing with the first part.
At [30] of its reasons the Authority considered the threat letter relied upon by the applicant in support of his claims to have been threatened by a militant group in Iraq and said this:
… As a photocopy of a translation undertaken in Iraq of the claimed threat letter, I place no weight on this document. …
The applicant’s argument is first, that the reasons for the Authority not attaching weight to the copied translation were unclear; secondly, that the fact that it disregarded the document was wrong because the document contained significant corroboration of the applicant’s claimed threats; thirdly, the Authority erred in disregarding the document because it found that it was improbable that the letter existed in the first place; and finally, that the Authority erred in not considering alternative questions in relation to the letter.
All of these arguments amount to no more than an invitation to engage in merits review. The weight to be attributed to evidence was a matter for the Authority. While a decision maker cannot dismiss evidence without any rational basis (Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105 at [96]) there were three clear, rational bases for the Authority’s conclusion in respect of this document. First, the document contained no reference to the group said by the applicant to have threatened him, namely the “Fight for Just Punishment” group. Secondly, the document was a photocopy of a translation undertaken in Iraq. That is, there was no way that the Tribunal could assess whether the original document was authentic; and thirdly, the Authority also referred to the unlikely circumstances in which the applicant claimed to have obtained the letter. At [36] of its reasons, the Authority found that it was unlikely that the group that was said to have threatened the applicant would have had the letter on hand coincidentally at the time that the applicant’s uncle happened to be meeting with it. For those reasons, this part of the second ground is rejected.
The second part of this ground relates to the Authority’s findings about the applicant’s employment with KBR, in particular, that it did not accept that his employment only became more widely known after it ceased: [39]. The applicant argued that the Authority placed insufficient weight on a report by the UNHCR concerning the risk faced by employees of international companies and that, in light of that information, it ought to have considered that the applicant had concealed his involvement.
The applicant’s argument not only trespasses into the forbidden field of merits review but also overlooks the fact that the Authority based its conclusion at [39] on the fact that the applicant did not indicate that he had taken any steps to conceal his employment and, when describing his arrival at work in detail, made no mention of the need for secrecy.
The applicant also takes issue with the Authority’s finding about the time at which he ceased work with KBR. The Authority said at [28]:
Information before me suggests that the vast majority of US troops had withdrawn from Iraq by 2011 and I therefore think it is highly likely that the applicant’s later evidence indicating that his contract with KBR ended in November 2011 is correct. The difference between the claimed end dates for his employment with KBR of 2011, 2012 and 2013 is too large, in my view, to be adequately explained by a difficulty recalling events due to the passage of time. I think it is likely that his earlier evidence was exaggerated to increase the proximity and level of his association with KBR and US forces, in order to strengthen his claims for protection.
The applicant complains that the Authority placed too much weight on the inconsistencies in the applicant’s evidence about this matter. Again, that is only a complaint about the merits of the finding and not one that establishes any jurisdictional error. It may also be noted that the Authority’s conclusion was also based on the withdrawal of the majority of US troops by 2011. Given the role that KBR performed, that fact provided a rational basis for the conclusion that the applicant’s evidence that his employment ceased in November 2011 was correct.
The first part of the second ground relates to the way in which the Authority dealt with the information contained in the applicant’s submissions to it. Before turning to the Authority’s reasons in this respect, it is necessary to examine the relevant statutory provisions.
The review conducted by the Authority was governed by the provisions of pt.7AA of the Act. One of the central provisions of that Part is s.473DB which provides that, subject to the Part, the Authority must review a fast track reviewable decision referred to it without accepting or requesting “new information”. “New information” is information referred to in s.473DC which, read in context, is limited to “information” (which may or may not be recorded in a document) in the ordinary sense of a communication of knowledge about some particular fact, subject or event that meets the two conditions set out in sub-ss.473DC(1)(a) and (b).
The first condition is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second condition is that the Authority considers that the information may be relevant: Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16 at [24].
Restrictions are imposed upon the Authority as to when it can consider new information. Section 473DD provides:
473DD 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.
This provision was explained by the plurality in M174/2016 at [29] through to [34]:
29The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.
30Quite 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”.
31Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
32The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. No explication of that circumstance is required in the present case.
33The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s asylum claims by the Minister”. The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.
34Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.
(Footnotes omitted)
Importantly, for present purposes there is some overlap between the requirements of sub-pars.(a) and (b) of s.473DD. In BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958, White J explained:
9The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subpara (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
His Honour’s reasons have been adopted and applied by a number of later decisions including Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [102]-[106]; and CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192 at [17]-[18].
The relevant part of the Authority’s reasons are as follows:
9.The following elements of the submission are new information:
•the applicant received two written threats, the first of which was placed under the front gate of the applicant's family home in January or February 2012
•the second written threat, which was passed to the applicant's uncle, contained a threat to kill the applicant, including for passing information to the United States (US) military that led to the capture of many of the group’s leaders and affiliates
•both the applicant and his uncle reported the threats to the police
•the source of the threats to the applicant was (only) the ‘Islamic Resistance’ group
•the ‘Islamic Resistance’ group consisted of all Shia militias
•the ‘Islamic Resistance’ group threatened to give the applicant ‘fair and just punishment’
•the applicant’s brother is in the United States as part of a ‘special Immigrant Visa program’ on the basis of threats to his life associated with the applicant’s alleged activities.
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.
The applicant alleges that the Authority fell into error in determining whether there were exceptional circumstances permitting it to take into account the new information. In particular, he argues that the Authority failed to consider the circumstances pertinent to sub-s.473DD(b)(ii).
The Minister submitted that there was no basis to infer that the Authority adopted an impermissibly narrow approach to the question arising under s.473DD because, in refusing to give consideration to the information about the applicant’s brother, the Authority had regard, amongst other things, to the fact that there was no information about the nature and dates of any claimed threats to the brother’s life, or what connection those threats might have to the applicant. That is, the Minister submitted, that the Authority considered the nature and probative weight of the information in determining the question of whether there were exceptional circumstances.
The Minister submitted that it is unlikely that the Authority took an unduly narrow approach in its consideration of the matters at [11] given its broader approach in [12]. The Minister also highlighted the fact that the Authority was under no obligation to set out its reasons for this aspect of its decision: CVS16 v Minister for Immigration & Border Protection [2017] FCCA 249 at [26] and BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 at [45].
I agree with the Minister’s submissions. First, while inferences as to the Authority’s reasoning process can clearly be drawn from what is written by it, it must be borne in mind that there is no obligation on the Authority to give its reasons. That means that the inferences to be drawn from matters which are missing from the Authority’s statement of reasons in this respect cannot be as confidently drawn as they may be in circumstances where there is such an obligation: cf. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30.
Secondly, the reasons of any decision maker, and indeed any written document, must be read as a whole. When that approach is taken here, it is clear from what is said at [10] that the Authority was aware that there were different aspects of s.473DD that had to be considered.
Thirdly, when [11] is read in light of [12] it must be inferred that the Authority was not only aware of the different aspects of s.473DD of the Act but also aware of their potential interplay as explained by White J in BVZ16.
Fourthly, it would be taking an unduly narrow approach to the reasons of the Authority to excise the matters in [10] and [12] so that [11] were to be read in isolation in order to form a view that the Authority took an unduly narrow approach to the question posed by s.473DD of the Act.
For all of those reasons, I am not satisfied that the Authority did not properly apply itself to the task required by s.473DD and therefore am not satisfied that it failed to take into account material that was properly before it. The second ground is rejected.
Ground 3: “Breach of rules of Natural Justice, by restricting the applicant to 5 pages response”
This ground has been abandoned.
Ground 4: “The decision marker decision was illogical, Irrational and unreasonable”[1]
[1] Without alteration.
This ground relies on errors asserted in the first 2 grounds. As those errors have not been established, this ground must also fail.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 28 May 2018
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