BSF19 v Minister for Immigration

[2019] FCCA 2980

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSF19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2980

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether it was legally unreasonable for the Authority to fail to consider inviting or to fail to invite the applicant to provide new information – jurisdictional error made out – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 473DD, 476

Applicant: BSF19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1004 of 2019

Judgment of: Judge Street

Hearing date: 17 October 2019

Date of Last Submission: 17 October 2019

Delivered at: Sydney

Delivered on: 17 October 2019

REPRESENTATION

Counsel for the Applicant: Mr A Aleksov

Solicitors for the Applicant: Landmark Law Group

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. A writ in the nature of certiorari is issued calling up the record of Immigration Assessment Authority and quashing the decision made on 25 March 2019.

3. A writ in the nature of mandamus is issued requiring the Immigration Assessment Authority to determine the review application for a Safe Haven Enterprise visa before it according to law.

4. The first respondent pay the applicant’s costs fixed in the amount of $7,467.00.

DATE OF ORDERS: 17 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1004 of 2019

BSF19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) dated 25 March 2019 which was made under Part 7AA of the Act and affirmed the decision of a delegate not to grant the applicant a Safe Haven Enterprise visa.

2. On 4 May 2017, the applicant applied for a Safe Haven Enterprise visa. The applicant is currently a citizen of Afghanistan and his claims were assessed against that country. In the applicant’s application for a Safe Haven Enterprise visa, the applicant provided a statement in which he referred to his family fleeing Afghanistan and going to Pakistan.

3. On 7 January 2019, the delegate refused the applicant’s application for a Safe Haven Enterprise visa. In the delegate’s decision, the delegate found that the applicant was a citizen of Pakistan. In those circumstances, the delegate found that the applicant did not meet the criteria for the grant of a Safe Haven Enterprise visa either under the 1951 Refugee Convention or in respect of complementary protection.

4. On 10 January 2019, the matter was referred to the Authority. On 11 January 2019, the Authority wrote to the applicant giving the applicant an opportunity to put on new information and submissions. On 1 February 2019, an email was sent to the Authority on behalf of the applicant providing a statutory declaration addressing issues raised by the delegate in relation to the applicant’s identity and submissions in support of that proposition. Those submissions also included in the introduction a request that, in the interests of procedural fairness, the Authority put the applicant on notice should it be considering making a decision adverse to him on grounds which differ from those which led to the delegate’s decision.

5. In the Authority’s reasons dated 25 March 2019, the Authority identified the background to the visa application. The Authority had regard to the material provided by the Secretary under s.473CB of the Act which identified the applicant’s new information and submissions. The Authority considered the same under s.473DD of the Act.

6. The Authority referred to the applicant’s request to be put on notice if the Authority were to make a decision affirming the delegate’s decision on different grounds. The Authority said at paragraph 10 of its reasons that it did not consider it has any obligation to do so, that the applicant put forward his claims for protection and that the Authority undertook a de novo consideration of the merits of the applicant’s application and claims.

7. In the applicant’s statement of claim attached to his application for a Safe Haven Enterprise visa, the applicant identified that the country he feared returning to is Afghanistan. The applicant said at paragraph 20:

   “There is no safety in Afghanistan because of the constant threat of death…”

8. The applicant feared it would be only a matter of time before he was killed if he returned to Afghanistan. The applicant identified at paragraph 23:

   “There is no safety for us anywhere in Afghanistan, we cannot move anywhere. We are targeted because the extremist groups know our faces and if they recognise us, they won’t hesitate to kill us.”

9. The applicant also identified himself as being of Pashtun ethnicity and of the Sunni Muslim faith.

10. The Authority’s statement at paragraph 10 of its reasons does not, of itself, identify any consideration by the Authority under s.473DC(3) of the Act as to whether or not to invite the applicant to give evidence on new issues.

11. It is common ground that there were two new issues which were the subject of findings by the Authority. First, the Authority found that the applicant will not return to the Zabul province, Afghanistan at paragraph 23 of its reasons. Second, the Authority found that the applicant is likely to remain in Kabul, Afghanistan at paragraph 24 of its reasons. These findings followed the Authority having found that the applicant is a citizen of Afghanistan at paragraph 19 of its reasons.

12. The two new issues identified by the Authority at paragraphs 23 and 24 of its reasons were not the subject of any identification by the delegate before or at the time of the delegate’s decision. Whilst the applicant had referred to a general proposition that it was not safe anywhere for him in Afghanistan, whether the applicant would return to the Zabul province or whether the applicant would remain in Kabul were not issues which the applicant specifically addressed.

13. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Act. The Authority also found that the applicant did not meet the criteria under s.36(2)(aa) of the Act. The Authority made these findings having found that the chance of the applicant being targeted by the Taliban or extremist groups in Afghanistan in the reasonably foreseeable future was too remote to amount to a real chance.

14. The Authority went on to consider the issue of complementary protection. The Authority referred to having not accepted that the applicant faced a real chance of harm because his father was a teacher, for reason of the applicant being a Sunni Pashtun or for returning to Afghanistan from a Western country. The Authority referred to the security situation in Kabul and found that there are not substantial grounds for believing there is a real risk of significant harm for the applicant in Kabul. In these circumstances, the Authority found that the applicant did not meet the criteria under s.36(2)(aa) of the Act.

The grounds

1. The grounds in the amended application are as follows:

   1. The decision of the IAA is affected by legal unreasonableness, in that the IAA failed to consider inviting or failed to invite, the applicant to provide new information in relation to:

   a. the matter at Reasons [39]; and

   b. the matter at Reasons [24];

   both being completely new issues raised by the IAA about which the applicant could be expected to have relevant information to provide to the IAA.

   2. The IAA failed to appreciate that the exception to the claim based on being a returnee from a western country, as it applied to the complementary protection criteria, did not attract the exemption under s.5J(3), and therefore failed to consider this claim.

   3. The IAA’s findings based on s.36(2B)(c), at Reasons [39], were limited to the situation in Kabul. For reasons given by Charlesworth J in BCX16 [2019] FCA 465, [32]-[34], [37]-[41], that fails to apply the test under s.36(2B)(c).

Ground 1

1. The issues of whether the applicant would return to the Zabul province or whether the applicant is likely to remain in Kabul were not issues on which the applicant had specific notice. These were not issues that the applicant had addressed. It is common ground that these are new issues.

2. Whether the statutory powers and legal reasonableness required the Authority to exercise its powers under s.473DC(3) of the Act and expressly consider whether to give the applicant the opportunity to address the two new issues in writing or at an interview must turn on the materiality of the same. In the present case, given the reasoning of the Authority in respect of it being likely that the applicant would remain in Kabul and that he would not return to his home area, the Court finds that these were material findings upon which the applicant should, as a matter of legal reasonableness, have had an opportunity to engage and/or the Authority should have expressly identified reasons why the Authority decided not to do so beyond the conclusive statement at paragraph 10 of its reasons.

3. Paragraph 10 of the Authority’s reasons is not correct in the assertion that the Authority is not subject to the constraints of legal reasonableness in respect of the powers conferred under Part 7AA of the Act and, in particular, in relation to s.473DC(3) of the Act.

4. It is correct that the Authority is in a position where it can make different findings to those made by the delegate and that the Authority’s reasoning may be different in relation to matters including credibility issues where the applicant was on notice and had an opportunity to address those issues.

5. Mr Johnson of counsel on behalf of the first respondent submitted that the applicant had such an opportunity and identified that he feared harm generally in all of Afghanistan. There is some force in that submission, however, in the circumstances of the present case where the delegate had found that the applicant was a citizen of Pakistan and where the Authority made a different finding in relation to the applicant being a citizen of Afghanistan and not a citizen of Pakistan, legal reasonableness required the Authority to at least expressly identify consideration of why the power under s.473DC(3) of the Act was not being exercised in the circumstances of the present case.

6. The reference to the proposition that the Authority had no obligation to do so does not correctly identify the statutory obligations upon the Authority. Nor is this a case where it is merely a determination on different grounds. This is a case where there are new findings of fact for what were accepted by the first respondent to be new issues.

7. The Court finds that the two new issues were material issues which, in the circumstances of the present case, gives rise to a failure by the Authority to expressly consider the exercise of its powers under s.473DC(3) of the Act and/or to exercise those powers which lack an evident and intelligible justification. Accordingly, there has been a constructive failure by the Authority to conduct the review as required under Part 7AA of the Act. The Court finds that the jurisdictional error alleged in ground 1 of the application has been made out. It is unnecessary to address grounds 2 and 3.

8. Accordingly, the amended application is allowed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street delivered in open Court on 17 October 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:  

Date:  4 November 2019