Bon17 v Minister for Immigration - [2020] FCCA 2058

FEDERAL CIRCUIT COURT OF AUSTRALIA

BON17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2058

Catchwords:
MIGRATION – Protection visa – whether IAA misconstrued power to consider new information – was failure to consider new information unreasonable – was failure to ‘get’ new information unreasonable – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DB(2), 473DC, 473DD, 473DD(a) & (b)(i) & (ii), 476(1), 473DE, 473EA and Sub-div.C of Div.3 of Pt.7AA

Cases cited:

BYM16 v Minister for Immigration & Border Protection [2017] FCCA 2445

Applicant:

BON17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 304 of 2019

Judgment of:

Judge Heffernan

Hearing date:

6 July 2020

Date of Last Submission:

6 July 2020

Delivered at:

Adelaide

Delivered on:

28 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms Costello SC

Solicitors for the Applicant:

Beena Rezaee Legal & Migration

Counsel for the Respondents:

Mr Chan

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The applicant has leave to amend the originating Application.
The Application is dismissed.
The applicant do pay the costs of the first respondent in the amount of SEVEN THOUSAND, FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 304 of 2019

BON17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review, brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’), of a decision of the Immigration Assessment Authority (‘the IAA’) dated 29 July 2019. That decision affirmed an earlier decision of a delegate of the first respondent refusing to grant the applicant a Safe Haven Enterprise visa (‘the visa’).
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2058
Decision Date: 28 July 2020

CaseChat Overview and Summary

The applicant, a citizen of Afghanistan, sought review of a decision by the Immigration Assessment Authority (IAA) to affirm the refusal of his Safe Haven Enterprise Visa. The applicant had arrived in Australia as an unauthorised maritime arrival in 2012 and subsequently applied for the visa, advancing claims based on his Hazara Shia ethnicity, past opposition to a Taliban official, a land dispute, and the death of his parents at the hands of the Taliban. The IAA affirmed the delegate's decision to refuse the visa.

The court was required to determine whether the IAA had failed to consider new information provided by the applicant, whether this failure was unreasonable, and whether the IAA had unreasonably failed to "get" this new information. Specifically, the applicant argued that the IAA had not adequately considered information relating to his family's relocation to Pakistan and the disappearance of his sons, as well as medical reports concerning his mental health.

The court found that the IAA had considered the new information as a whole, particularly in relation to the applicant's family, and had also considered information regarding the attacks themselves. The court noted that the IAA was not required to provide reasons for procedural decisions, such as its decision not to consider certain new information on the basis of doubts about its veracity or vagueness. This reasoning was supported by case law which established that the IAA's obligation to provide written reasons under section 473EA of the Act pertains to the decision on the review itself, not to procedural decisions made during the review process. The court accepted the IAA's construction that the term "decision" in section 473EA(1)(b) referred to the final decision on the review and not to intermediate procedural determinations.

The application was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant indicated in his written Outline of Submissions that he adopted the summary of facts and documents set out in the first respondent’s Written Submissions. For that reason, it is convenient to set that summary out below verbatim:[3][3] The reference to ‘SHEV’ is the Safe Haven Enterprise Visa.“3The applicant, a citizen of Afghanistan, arrived on Christmas Island as an unauthorised maritime arrival on 13 November 2012: Court Book (CB) 96. On 2 September 2015, the department advised the applicant that it had lifted the bar pursuant to s 46A of the Act: CB 21-27. 4On 16 October 2015, the applicant lodged an application for the SHEV advancing the following claims (CB 29-77): (a)He was a Hazara Shia Muslim who previously opposed a Taliban official, (name redacted).(b)(name redacted) sought the applicant’s land but the applicant repeatedly refused to give up his land. In 2001, the applicant was summoned to the Taliban office and beaten. (c) The applicant and his family relocated to Pakistan, and then to Iran. (d)The applicant’s parents travelled to Pakistan for medical treatment. Upon return to Afghanistan, they were killed by the Taliban. (e)The applicant feared harm on the bases that he was a Hazara Shia who previously opposed the Taliban and (name redacted).5The applicant attended an interview with the delegate on 11 December 2015: CB 90-92. On 29 August 2016, the delegate refused to grant the applicant the SHEV: CB 96-133. On 1 September 2016, the matter was referred to the Authority: CB 135-137. On 14 October 2016, the Authority invited the applicant to comment on information: CB 142-145. The applicant provided a statement in response on 21 October 2016: CB 146-148. On 2 December 2016, the Authority again invited the applicant to comment on information: CB 150-153. On 23 December 2016, the applicant provided a submission and two expert reports in response: CB 158-174. On 7 February 2017, the Authority affirmed the delegate’s decision: CB 175-197. 6On 31 May 2019, the Federal Circuit Court remitted the matter back to the Authority: CB 198.1 The applicant provided the Authority with a submission (the 2019 submission) and new information on 17 (CB 203-227) and 18 July 2019 (CB 228-232) and on 29 July 2019, the Authority affirmed the delegate’s decision (CB 233-259). The Authority’s decision7The Authority had regard to the material given by the Secretary under s 473CB of the Act (CB 237, [3]), and the arguments advanced by the applicant in his submissions: CB 237-238, [5]-[6]. The Authority also had regard to the following new information: 7.1Country information provided by the applicant in 2017: CB 237, [4]; 7.2The applicant’s responses in October and December 2016 to the Authority’s invitation to comment, including the submission and expert reports provided: CB 237-238, [5]; 7.3Country information referenced in the 2019 submission: CB 240, [14]; and 7.4Updated country information on Afghanistan obtained by the Authority: CB 240, [14]. 8However, the Authority declined to consider the following new information: 8.1Information in the applicant’s 2019 submission and statutory declaration that his family had relocated to Pakistan and that two of his sons were missing, on the basis that the Authority had serious doubts of the veracity of these claims because they lacked detail and were contradictory to other claims made: CB 239, [9]; and 8.2A medical report of the applicant’s purported mental health issues and other information in the 2019 submission on his mental health, on the basis that the evidence was inconsistent and vague: CB 239, [10]-[12]. 9The Authority found that the material covered by a s 473GB certificate was irrelevant to the applicant’s protection claims and excluded the material from its consideration: CB 240, [15]. Factual findings 10The Authority accepted the applicant’s identity as claimed, and that he was a Shia Muslim of Hazara ethnicity: CB 242, [17]. The Authority found that his receiving country was Afghanistan: CB 242, [19]. 11The Authority did not accept the applicant’s narrative with respect to the Taliban, (name redacted) and the purported land dispute on the bases that the narrative was illogical, inconsistent, not mentioned in the applicant’s first two interviews and required prompting from the delegate at the SHEV interview: CB 242-244, [20]-[29]. The Authority found that he was not, and would not now, be of any interest to the Taliban or (name redacted). The Authority found that he had departed Afghanistan for Iran for employment: CB 244, [29]. 12The Authority accepted that the applicant’s parents were travelling so that his mother could receive medical treatment, and that they died on their travels: CB 244, [30]. However, in light of its findings that he was not in any conflict with (name redacted) or the Taliban and his own acknowledgement that it was only speculative that (name redacted) was involved in the death of his parents, the Authority found that the applicant invented the claim that (name redacted) was involved with his parents’ deaths: CB 244, [31]. The Authority did not accept that the death of his parents contributed to his profile in Afghanistan in any way. 13The Authority identified that the remaining claims to be determined were with respect to the applicant’s status as an Hazara Shia and his inability to travel or live outside of Jaghori safely: CB 245, [34]. 14Based on the applicant’s concession at the SHEV interview that Jaghori would be safe, the Authority found that if returned, he would return to the family home in Jaghori: CB 245, [35]. 15The Authority accepted that the applicant would be identified as an Hazara and that the country information indicated that Hazaras faced discrimination and marginalisation in Afghanistan: CB 247, [41]. Nevertheless, as the applicant’s claims did not advance any specific discrimination faced by him or his family in the past beyond a general assertion of “difficulties”, the Authority found that any discrimination the applicant would face did not amount to serious harm: CB 247, [42]. Further, as he had the support of family and experience resettling in Iran and Australia, the Authority found that he would have the skills and resilience to resettle in Jaghori: CB 247-248, [43]. 16The Authority accepted that he would continue to practise his Shia faith in Afghanistan: CB 248, [45]. With respect to his assertion that the Islamic State in Khorasan Province (ISKP) was active in Jaghori, the Authority found that there was no country information or evidence to corroborate that claim: CB 248, [45].17With respect to the reports authored by an academic from the Australian National University (ANU), the Authority found that the reports were based on historical information, not based on the applicant’s circumstances and were not entirely objective: CB 249, [48]. The Authority also recorded that other articles co-authored by the same academic used inflammatory language, referred to only selective sources and inferred that no Hazara is or ever could be safe, which was contradicted by other sources: CB 249, [49]. 18Based on country information, the Authority was not satisfied that the applicant would face a real chance of harm due to a perception that he was pro-government: CB 250, [53]. 19With respect to his claims that he would need to travel outside Jaghori and would face difficulties if he did so, the Authority was not satisfied that there was a real chance that he would not be able to secure work, or access basic services, in Jaghori. Based on country information and his own evidence, the Authority found that he would not be denied a capacity to subsist in Jaghori: CB 250-251, [55]. 20With respect to his claim that he would need to travel outside Jaghori to attend university, based on his age and the lack of any indication from him or his family that anyone was to attend university, the Authority found that neither the applicant nor his family would need to travel outside Jaghori to attend tertiary education: CB 251, [57]. 21The Authority accepted that if returned to Afghanistan, the applicant would first be returned to Kabul: CB 251, [58]. Based on country information, the Authority found that there was not a real chance that he would face harm on the roads on the way to Jaghori: CB 252, [61]. The Authority concluded that there was not a real chance that the applicant would face serious harm as an Hazara Shia in Jaghori: CB 252, [63]. 22The Authority considered whether the applicant would face harm as a failed asylum seeker, even though such a claim was not made: CB 252, [64]. Based on country information and his history of having departed Afghanistan previously, the Authority found that he would not face a real chance of any harm as the only people who knew of the applicant’s links to the West were his family members, and he had not indicated that he would tell anyone of his Western exposure, or that his behaviour would identify him with the West: CB 252-254, [65]-[71]. The Authority did not accept that he had any intention to change his behaviour in Afghanistan: CB 254-254, [71]. The Authority also did not accept that he was ever, or would now be, of any interest to anti-government elements in Afghanistan: CB 254, [72]. 23 The Authority concluded that the applicant did not face a real chance of harm because of his Hazara ethnicity, his time in Australia or his status as a failed asylum seeker: CB 254, [73]. Accordingly, he did not meet the definition of refugee in s 5H and did not meet s 36(2)(a): CB 254, [74]. 24Relying on its anterior findings, the Authority found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned, the applicant would face a real risk of significant harm for any reason: CB 254-255, [75]-[78]. Accordingly, he did not meet s 36(2)(aa): CB 255, [79].”

Ratio Decidendi

Legal Principle Established

As for the complaint that the IAA gave no reasons for rejecting the first component of the applicant’s new information, it should be noted that the IAA found there were no exceptional circumstances which warranted it receiving the new information. It seems clear from the reasons, that this was based on a consideration of the new information as a whole in so far as it specifically related to the applicant’s family and that it did not break it down into the three components identified by the applicant in his submissions. As I have observed above, the IAA did consider the new information relating to the attacks themselves. As submitted by the first respondent, the IAA was not required to give reasons for procedural decisions. Section 473EA establishes the IAA’s duty in terms of recording a decision:“Immigration Assessment Authority's decision and written statement Written statement of decision (1)If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:(a) sets out the decision of the Authority on the review; and(b) sets out the reasons for the decision; and(c) records the day and time the statement is made. The scope of s 473DE has been held by the Full Court to be as follows:“The fact that the Authority did not refer to or explain the exercise of its discretion in its reasons does not assist the appellant in this case. As Thawley J noted in BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 (at [45], [49]–[50]), the Authority’s obligation to provide written reasons under s 473EA(1) does not require a statement as to the exercise of a procedural decision in the course of the review. This is consistent with the fact that the statutory scheme contemplates that a person may have no knowledge of the existence of a Certificate … … The Minister submits that the reference to ‘decision’ in s 473EA(1)(b) as a matter of statutory construction is a reference to the decision by the Authority on the review and does not extend to procedural decisions that may have been made in the course of the review. We accept that construction, taking into account the terms of Division 4 of Pt 7AA as a whole. Division 4 provides for a regime whereby the ‘decision on a review’ is made by a written statement, the time and date are recorded, the decision is irrevocable, the review documents are then returned to the Secretary and the referred applicant is notified of the decision by being provided with a copy of the written statement. The construction contended for by the Minister is also consistent with the use of the word ‘decision’ in, for example, s 473DB(2), which refers to the Authority making a decision on a fast track reviewable decision at any time after the fast track reviewable decision is referred to it. Such reference is clearly a reference to a decision to affirm the delegate’s decision or remit it for consideration.”[23][23] BVD17 v Minister for Immigration & Border Protection (2018) 261 FCR 35 [42], [47].