BMV16 v Minister for Immigration
[2017] FCCA 3045
•8 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMV16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3045 |
| Catchwords: MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority – invitation for comments – time for comments – nature of invitation – no error of law. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 473CA, 473DC, 473DE, 473DF, 359B, 424B Migration Regulations 1994, reg.4.42 |
| Cases cited: SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 |
| Applicant: | BMV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1258 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 30 January 2017, 2 February 2017 and 5 September 2017 |
| Date of Last Submission: | 5 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 8 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert with Mr Wallwork |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1258 of 2016
| BMV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant applies for orders quashing a decision of the Immigration Assessment Authority (“the IAA”) made on 14 June 2016, affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant arrived in Australia by boat, on 4 November 2012. On
8 January 2013, an officer of the Department conducted an entry interview with him. As the applicant was an unauthorised maritime arrival, he was precluded by s.46A(1) of the Migration Act 1958 from making a valid application for a protection visa, until the Minister had exercised his power under s.46A(2) to enable the applicant to make his application. The Minister exercised his power and, on 22 June 2015, the applicant made an application for a protection visa, relying upon a number of circumstances:
a)The applicant is a national of Sri Lanka, of Tamil ethnicity.
b)The applicant was induced, by a man from Colombo, to pay money for the purpose of obtaining a job in Korea in 2007, as was another man, who now believes the applicant was involved in a scam.
c)One evening, when the applicant was walking home from work in Sri Lanka, the other man and his friends attempted to beat him up and have continued to harass and threaten him in 2008 and 2009.
d)The applicant went into hiding in 2009, in Colombo, and says that he continues to fear the other man.
On 4 September 2015, the applicant provided more detail of these claims in a statutory declaration: see court book p.125.
The delegate was not satisfied that the applicant had a well-founded fear of being harmed, and concluded that he had resided safely in Sri Lanka for the last three years.
In accordance with s.473CA of the Act, the decision of the delegate was referred to the IAA on 3 May 2016. Various review materials were given to the IAA by the secretary, pursuant to the provisions of the Act.
The entry interview from the department was subsequently provided to the IAA as that had not been provided in the review material: see court book pp.278 and 294. At the hearing of this matter, evidence was called in order to establish that the record of the arrival interview was not before the delegate at the time that he made his decision. I accept that evidence, as did the applicant who did not cross-examine the witness put on affidavit.
On 26 May 2016, the IAA exercised its power under ss.473DC(1) and (3)(b), to invite the applicant to give new information at an interview, to be conducted on 1 June 2016: see written invitation at court book p.314. On 1 June, the IAA rescheduled the interview for 2 June 2016, and contacted the applicant by telephone: see court book pp.318 to 320.
At the interview on 2 June 2016, the IAA orally invited the applicant, under s.473DE(1)(c) to provide comments at the interview on “new information” arising from his entry interview with the Department (pp.27 to 29 of IAA transcript). Importantly, at the entry interview, the applicant said that he did not know who the people were who tried to abduct him in 2009 (whereas later, he had identified the main person). Secondly, the applicant had said that between 2011 and 2012 he was living in a town and travelling and staying at other places for work, whereas he had subsequently claimed that he stayed in Colombo after 2009.
The applicant provided some comments in response to this material.
On 14 June 2016, the IAA reviewer concluded that the applicant was not owed an obligation of protection and affirmed the decision under review. Importantly, the differences between the entry interview and subsequent versions by the applicant resulted in “a number of credibility concerns” with respect to the applicant’s evidence, which were significant in the views the IAA ultimately formed.
Ground 1
Ground 1 is framed in the following terms in the further amended application:
1. The decision of the Authority was invalid because the invitation issued under s 473DE or s 473DC(3) of the Migration Act 1958 (“the Act”) did not comply with the requirement of s 437DF(2) and regulation 4.42 of the Migration Regulations 1994 (Cth) in that the period for giving information or comments in response to an invitation given by the Immigration Assessment Authority was less than 14 days, and no period was specified.
Section 473DE(1)(c) required the IAA to:
“invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview…”.
The requirements for an invitation under this division of the Act are set out in s.473DF, which provides as follows:
(1) This section applies if a referred applicant is:
(a) invited under section 473DC to give new information in writing or at an interview; or
(b) invited under section 473DE to give comments on new information in writing or at an interview.
(2) The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.
(3) The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.
(4) If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a) without taking any further action to get the information or the referred applicant's comments on the information; or
(b) without taking any further action to allow or enable the referred applicant to take part in a further interview.
The prescribed regulation is reg.4.42 of the Migration Regulations 1994, which provides:
For subsection 473DF(2) of the Act, the period for giving information or comments in response to an invitation given by the Immigration Assessment Authority to a referred applicant is as follows:
(a) for a referred applicant in immigration detention--3 working days after the referred applicant is notified of the invitation; and
(b) in any other case:
(i) for an oral invitation to give information or comments in writing--7 days after the invitation is given; and
(ii) for an oral invitation to give information or comments at an interview--14 days after invitation is given; and
(iii) for a written invitation to give information or comments in writing or at an interview--14 days after the referred applicant is notified of the invitation.
The argument in this case turns on whether or not the legislative provisions and the regulation permits the IAA to invite comments immediately, at an oral interview, or whether a greater period of notice is required.
The exchange that took place at the interview was as follows:
MS TYSON: Interview resuming. The time is 11.35. Okay. Now, under the Migration Act, I’m required to invite you to comment on certain new information that I have obtained. We’ve actually already discussed some of this information earlier. But now I’m giving you a formal opportunity to comment. So what I am going to do now is give you an oral invitation to comment on some new information. Subject to your comments, this information would be the reason or part of the reason for affirming the delegate’s decision. I haven’t made up my mind about the information. Now, I’m going to put each piece of information to you and then explain to you why it is relevant and invite you to comment.
The information comes from the arrival interview that you had with the department on 8 January 2013. So at the arrival interview with an officer of the department, you were asked what happened to make you leave Sri Lanka. You did not mention anything about Kanaraja.
THE INTERPRETER: Yes.
MS TYSON: However, you said that people tried to abduct you once in a van in 2009. You were asked who was trying to abduct you, and you said 10 to 12 people … you were then asked who those people were, and you answered that you did not know. This information in relevant to your case, because in your temporary protection visa interview on 7 September 2015 and also at the interview today you described a similar incident in 2009 when Kanaraja … you. You stated at the arrival interview ---
THE INTERPRETER: yes.
MS TYSON: --- that you didn’t know who was trying to abduct you undermines your claim that it was Kanaraja – undermines your claim that it was Kanaraja who tried to abduct you.
THE INTERPRETER: yes.
MS TYSON: Also, your failure to mention any problems with Kanaraja in the arrival interview undermines your claim that he was attempting to harm you. This information could lead me to find that Kanaraja did not attempt to harm or abduct you. Now is your opportunity to comment on that…
THE INTEPRETER: While – as I said, I will not lie to the law, because I’m a Christian. The reason I did not disclose the information at the very first interview, I was told by the… who were in the camp if I give more information like what I did, they might not let me out of the camp. That’s why I didn’t mention about Kanaraja at that time. After I left, I – after I was allowed into the community, I got good advice to disclose every information clearly and in detail. That’s… I did...
MS TYSON: So why did you think that disclosing that it was Kanaraja was a problem if you talked about the incident itself?
THE INTERPRETER: I mean, I didn’t lie. I actually did not mention the name. I told the – I told about the incident …
MS TYSON: Now the next price of information is that at the arrival interview and also in your temporary protection visa application you said that between 2011 and October 2012 you were living at Batavaliya state in Hatton. You said at the arrival interview that you stayed in Hatton, but would travel and stay at other places for work. This information is relevant to your care, because it undermines the claim that you stayed in Colombo after 2009. The evidence that you were living in Hatton and that you were travelling for work also undermines the claim in your submission to the IAA that you were moving around and hiding in different places. This information could lead me to find that you were not living in hiding between 2011 and 2012. So now is your opportunity to comment on that information.
A plain reading of s.473DF indicates that the time prescribed in the Regulations is the outer limit of the time in which a response must be given. Thus, the response must be within the outer limit of the time that may be specified in the invitation for the response. Section 473DF(2) appears to allow the IAA to determine the amount of time to specify in the invitation (provided that it is less than or equal to the maximum time provided for in reg.4.42.)
Counsel for the applicant pressed an interpretation of these provisions that would require the invitation to provide the amount of time set out in the Regulations. This would create a great deal of impracticality, with respect to oral invitations as, at the very least, a further oral hearing would have to be scheduled for the last day of the period prescribed in the Regulations in order for the comments to be “within a period that is prescribed by regulation” as required by s. 473DF(2).
Counsel for the Minister points to two analogous provisions within the Act, ss.359B and 424B. Those sections relevantly provide:
Section 359B:
(1) If a person is:
(a) invited in writing under section 359 to give information; or
(b) invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.
Section 424B
(1) If a person is:
(a) invited in writing under section 424 to give information; or
(b) invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.
Buchanan J, in SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 considered these provisions saying:
42 Examination of whether, as was initially suggested, the provisions of s 424B(1) and (2) set up ‘imperative duties’ or establish ‘inviolable limits or restraints’ upon the RRT rather than provide control and flexibility to the RRT is not, in my view, answered by the principles stated in any of SZKTI, SZKCQ or SZIZO, none of which cases dealt with s 424B.
…
52 Section 424B(2) on its face directs that ‘information or comments are to be given within a period specified in the invitation’. It does not, in terms, impose a direct obligation on the RRT about the terms of the invitation (cf. s 424B(1) – ‘the invitation is to specify ...’). The consequence of any failure to specify a period is that the facility in s 424C of proceeding to a decision in the absence of the information might not be available but I do not see s 424B(2) as establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error. A circumstance of this kind (failure to specify a period and consequent inability to rely on s 424C) does not fall within any of the reasoning in SZKTI, SZKCQ or SZIZO. As it happens the information was given. It was brought to the attention of the appellant. She had an opportunity to deal with it. It cannot be said that the information was not given before the time for it had passed (s 424C(1)(b)). In my view no ‘breach’ of s 424B(2) occurred and, in any event, any failure to comply with its strict terms did not, in the circumstances of this case at least, amount to jurisdictional error on the part of the RRT. The Minister’s latest written submissions drew attention to judgments of this Court to similar effect (SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 449 and M v Minister for Immigration and Multicultural Affairs[2006] FCA 1247; (2006) 155 FCR 333 at [34]- [37]).
Similarly, Tracey J, in M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333, concluded that no imperative obligation is imposed on the Tribunal by s.359B(3)-(5). A large number of cases appear to have adopted similar approach: see for example SNMNS v Minister for Immigration [2009] FMCA 256; SZNPQ v Minister for Immigration [2009] FMCA 767; SZNER v Minister for Immigration [2009] FMCA 807; SZNOK v Minister for Immigration [2009] FMCA 895; SZQQA v Minister for Immigration [2013] FMCA 231.
Whilst there are differences in the legislative provisions, the scheme in which they operate is similar. I am not persuaded that the differences in drafting indicate that the legislative intended that s.473DF (and related regulations) are to be given a difference effect, despite the differences in wording.
An invitation that requires an immediate response does not appear to breach the section (and similarly, does not appear to breach s.424B(2)), provided that the applicant understands the relevance of the information: see SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 356.
It does not appear to me to be necessary for the IAA to use the precise words in the statute in order to make the invitation. In this case, I am persuaded that the statements of the IAA in the transcript were sufficient to amount to an invitation, for the purpose of s.473DF.
I am persuaded that a proper reading of the statute and the Regulations prescribe the outer limit for the period that may be specified in a notice, and that the minimum time is a matter to be determined by the IAA. As a result, the IAA can request an immediate response at an interview. It is, of course, open to an applicant to seek an adjournment of the hearing if an immediate response is sought, and such request would have to be appropriately considered by the IAA.
Ground 2
Ground 2 is framed as follows:
2. The Authority erred by denying the Applicant procedural fairness in respect of its decision pursuant to s 473DD(a) of the Act to consider the record of the Applicant’s arrival interview as ‘new information’.
At the hearing before me, it was accepted that I was bound by the decision in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, and that on that basis this ground could not succeed in this Court. I note that the argument was still raised, as the applicant wishes to preserve his rights to raise the argument on appeal.
Ground 3
Under this ground, the applicant points to the discretion open to the IAA to (a) seek an immediate response; (b) provide the information and reschedule an interview within the 14 day period; or (c) invite the applicant to provide the comments in writing within the prescribed period. It is argued that on the second and third of these scenarios, the applicant would have had an opportunity to:
· have an interpreter read him the record of the entry interview in full or in part;
· refresh his memory about the content of that interview which lasted 80 minutes and occurred over 3 years and 4 months earlier, including by reference to the record itself which has not been provided to the Applicant before;
· engage a lawyer for advice about the content of the record and response he might give to that record, including seeking any notes of the interviewer pursuant to the Freedom of Information Act; and
· consider, prepare and provide a response. (See Supplementary Submissions of the Applicant filed 23 August 2017)
It is argued that the approach taken by the IAA was legally unreasonable as a result of the difficulties the applicant was confronted with, when having to respond to the information immediately.
The availability of legal unreasonableness in proceedings of this type is said to be supported by the three decisions of this Court: see CRY16 v Minister for Immigration & Anor [2017] FCCA 1549; DZU16 v Minister for Immigration & Anor [2017] FCCA 851; and DGZ16 v Minister for Immigration & Anor [2017] FCCA 623. These decisions are presently the subject of appeal. However given my conclusions as to whether the ground can be made out even if the ground of legal unreasonableness is open in judicial reviews of the IAA there is no need to await the decisions on the appeals for the purpose of deciding this case.
The applicant specifically relied upon the decision of Raphael FM in SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693, where his Honour said:
43. What I take from these cases is that the Federal Court has been reluctant to make the sweeping assertion that any breach of the time provisions contained in s.424B and the Regulations constitutes a jurisdictional error. It is most reluctant to find that a jurisdictional error has been made when an applicant is given more time to provide the information than that contained in the Regulations. However, where the breach of the Regulation constitutes unfairness to an applicant the Court would hold that a jurisdictional error has occurred (SZLQH). Even then the Court will look at the particular circumstances of the case and exercise its discretion not to grant relief where an applicant suffered no injustice by reason of misstatement of the prescribed period; M supra at [38]. SZLQH at [144 – 146].
44. In the instant case the applicant was told to provide the information “immediately” when he should have been told to provide it within fourteen or twenty-eight days. Importantly the Tribunal determined that it could not make a decision on the information alone on 25 July, 8 days after the 17 July letter and therefore before the regulated time period would have expired. The applicant has not deposed to any disadvantage arising out of that error. He was given a hearing. I believe that this is a situation which should be looked at objectively. I have at [25] already referred to one possible disadvantage that the applicant suffered by the Tribunal determining, before the statutory period had expired, that it could not make a decision upon the information provided alone and requiring a hearing. It could also be said that an applicant who was told that he had to provide information “immediately” would not take any steps to provide information that he could not obtain in that short space of time and thus lose an opportunity of putting forward important evidence to the Tribunal. Given the difficulties that many applicants are encumbered with; lack of education, lack of English, lack of understanding of the Tribunal process, lack of assistance, this is not a far fetched possibility. The Court does not have to be exhaustive in the provision of examples. The two cited would seem to me to be sufficient to indicate that this failure by the Tribunal constitutes the type of unfairness that was found to be a jurisdictional error in SZLQH.
Importantly, SZNAV concerned a breach of the Act, rather than a general discretion. Similarly, the decisions of SZU16, SZLWQ, M, and SZQQA, each appear to relate to the particular facts of each case, rather than a statement of general principle.
It is difficult to conclude, in the abstract, that confronting a witness with a previous inconsistent statement and requiring a response automatically leads to a conclusion that the process was unfair, nor that adopting such process is legally unreasonable. Indeed, this is a common event in cross-examinations in civil and criminal trials. It is ultimately a question for the decision maker as to whether or not the context of the request to comment upon previously inconsistent statements requires the witness or party to have time to consider and reflect upon their statements.
When considering the transcript as a whole, it does not appear that the situation was one where the process adopted by the IAA decision maker to simply invite comment could be said to be so unfair as to amount to legal unreasonableness.
Importantly, no request for an adjournment (either formally or even informally by a request for time to consider the material) was made. An explanation was given by the applicant that engaged meaningfully with the material – he didn’t simply claim to have forgotten or sit there unable to respond.
There is no evidence before this Court that the matters put were unfair in the sense of not reasonably reflecting the comments made in the entry interview.
I am not persuaded that the approach of the IAA in this case was either procedurally unfair nor legally unreasonable. In these circumstances, I am not persuaded that the applicant has succeeded on this ground for review.
As I have not been persuaded that the applicant has established a ground of jurisdictional error, I must therefore dismiss the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 8 December 2017
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