BVS16 v Minister for Immigration
[2020] FCCA 401
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVS16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 401 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse to grant to the applicant a Temporary Protection (Class XD) (Subclass 785) visa – applicant claimed that Immigration Assessment Authority committed jurisdictional error in not having regard to a bomb attack which occurred seven days before the Immigration Assessment Authority made its decision – Immigration Assessment Authority never became aware either actually or constructively of the bomb attack from any source prior to making its decision – Immigration Assessment Authority had no legal obligation to monitor new country information from CISNET on a daily or any other regular basis – decision of the Immigration Assessment Authority was not affected by jurisdictional error simply because it made its decision in ignorance of the bomb attack – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 46A, 473CA, 473CB, 473DC |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 DTK17 v Minister for Immigration (2018) 265 FCR 538 |
| Applicant: | BVS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1882 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 5 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. F. Santucci of Counsel |
| Solicitors for the Applicant: | Baker & Mckenzie |
| Counsel for the First Respondent: | Ms R. Francois of Counsel |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 16 September 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1882 of 2016
| BVS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Iraq aged 32 years and is a Shia Muslim by religion.
By Amended Application filed in this Court on 16 September 2016 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 14 June 2016 under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 19 May 2016 refusing to grant to him a Temporary Protection (Class XD) (Subclass 785) visa (Protection visa).
Background
The Applicant arrived in Australia by boat as an unauthorised maritime arrival on 16 August 2012 and was not immigration cleared. On 1 December 2012 an Entry Interview was conducted with the Applicant by the Department of the Minister (Department). On 5 December 2012 the Applicant was issued with a Humanitarian Stay (Temporary) (Class UJ) (Subclass 449) visa and released from immigration detention.
On 7 September 2015 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making his application for the Protection visa through his solicitor and registered migration agent (solicitor) on 19 October 2015.
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for the Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 per Griffiths J at 538 – 541 [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Claims for Protection
In support of his Protection visa application the Applicant lodged an undated Statutory Declaration (Statutory Declaration), which substantially claimed as follows:
a)since the invasion of Iraq in 2003 by America, Shia Muslims have been consistently persecuted by Sunni extremists, as other Muslim groups consider Shia Muslims to be apostates and heretics who have betrayed Islam because of their belief that Shia Muslims assisted America with overthrowing the Iraqi government which was long dominated by Sunni Arabs. As a Shia Muslim, he faces the risks of being harmed during a religious attack on a religious site and of becoming victim to sectarian violence in his daily life;
b)several bombs blasted and killed Shia Muslim pilgrims in Karbala on 16 July 2011 when a bomb that was placed in a car exploded, and he saw horrific scenes of a mother deeply wounded near the body of her dead daughter and assisted her, but he believes that she did not survive. He was left feeling extremely shocked and suffered mental post-traumatic stress which led to difficulty in sleeping, anxious behaviour and an inability to work;
c)in August 2011 he travelled to Jordan to apply for refugee status but due to stress he ultimately returned back to Iraq to be with his family;
d)after his return to Iraq violence against Shia Muslims increased in the Karbala area, and on 21 April 2012 two bomb blasts in Baghdad killed Shia visitors at a holy shrine;
e)he believes that he is unable to live normally in Iraq as he could not leave his house because he feared that he would be killed in an attack perpetrated by Sunni extremists;
f)he came to Australia to save his life;
g)he fears returning to Iraq and believes that if he went back there is a real chance of being persecuted for his religion and that he will be killed; and
h)the Iraqi state authorities have been unable to protect the Shia Muslims against violent acts perpetrated by Sunni extremists, and he is unable to relocate to another area of Iraq because there is nowhere to hide from Sunni extremists and they target Shia Muslims all over Iraq.
Decision of Delegate
The Applicant attended an interview with the Delegate on 10 March 2016. Following the conclusion of the interview, the solicitor on 15 March 2016 forwarded by email to the Department internet links to Youtube videos of explosions targeting Ashura caravans in various locations in Iraq, including Karbala, in April and June 2012 and March 2014.
In his Decision Record the Delegate summarised the Applicant’s claims for protection and then went on to assess those claims under the headings of:
a)Religion, place of origin of ethnicity;
b)Volunteering during religious pilgrimages;
c)Witnessing of bomb blasts; and
d)Fear of harm from Sunni Muslim fundamentalists.
The Delegate then proceeded in his Decision Record to assess the Applicant’s claims for protection with reference to a large body of independent country information, which included the DFAT Country Report for Iraq dated 13 February 2015 (DFAT Report).
In the result the Delegate was not satisfied that the Applicant was a person to whom Australia owed protection obligations under the Refugees Convention criterion or the complementary protection criterion and refused to grant to him the Protection visa.
IAA Decision
On 20 May 2016 the Minister, pursuant to s.473CA of the Act, referred to the IAA the Delegate’s refusal to grant the Protection visa to the Applicant.
No new submissions or further material were sent by the Applicant or on his behalf to the IAA before it made its decision. At the hearing in this Court, when Mr Santucci of Counsel appeared for the Applicant and Ms Francois of Counsel appeared for the Minister, it was assumed in debate that the solicitor continued to act for the Applicant after referral to the IAA, but subsequent consideration of the evidence in the Court Book, and in particular at Court Book 139, tends to suggest that the solicitor did not so act. In any event, at [3] of its Decision Record the IAA stated:
[3]I have had regard to the material referred by the Secretary under s.473CB of the Act. No further information was obtained or received.
In relation to the IAA decision it is convenient to set out [10] and [27] – [29] of Mr Santucci’s Written Submissions dated 21 February 2019, which Ms Francois accepted in her Written Submissions dated 4 March 2019 as sufficiently setting out (together with other paragraphs of Mr Santucci’s Written Submissions) the relevant background to this proceeding:
[10]The IAA’s decision records a number of key facts to the following effect:
(a) In Iraq the applicant was a taxi driver, butcher, and vegetable seller.
(b) Additionally, the applicant volunteered at caravans distributing food to pilgrims at Shia holy sites in Karbala.
(c)The applicant believed that as a Shia Muslim in Iraq he faced a daily risk of being harmed during an attack on a religious site in Karbala.
(d) This was particularly so, as the caravan he operates is positioned outside religious sites in Karbala. The applicant felt targeted as his family's caravan serves a large number of pilgrims and the Sunni extremists target the busiest caravans to maximise the casualties.
(e) On 16 July 2011, the applicant was present when several bombs detonated and killed Shia Pilgrims in Karbala.
(f) The applicant was deeply affected psychologically to the point he was unable to work, and described flashbacks of the bombing in his TPV interview.
(g) He fled to Jordan in August 2011.
(h) He returned to Karbala, and on 21 April 2012, a further two bombs were detonated, two or three hundred metres from where he was driving a taxi.
(i) He fears that if he returns to Iraq he will be killed by Sunni extremists because of his religion. The danger to him was increased because he had an identity card showing that he is a volunteer for the holy sites.
[27]While the IAA accepted the factual basis of the applicant's claims, it concluded at [17] of its Decision Record:
(a) “there was 'some' risk that the applicant could be killed or seriously harmed in a mass casualty attack targeting Shia in Karbala”;
(b) “the risk to the applicant would be greater than that posed to ordinary Shia pilgrims or worshippers, due to the applicant's presence for prolonged periods in the midst of large numbers of pilgrims, while distributing food and drink from his caravan”;
(c) “the information which is available about the number of such attacks indicates that they have diminished substantially since the applicant was last in Karbala in 2012”;
(d) “the absence of any attacks in 2015 suggests the security presence in Karbala was effective";
(e) “the prospect of the applicant being caught up and harmed in a targeted attack against Shia in Karbala is remote, even taking into account the fact that any attacks are likely to target Shia worshipers and pilgrims and taking into account the applicant’s particular profiles”;
(f) “the security situation in Karbala has improved remarkably since 2011 and 2012”; and
(g) “the weight of independent authoritative information indicates that objectively, the risk that the applicant would experience similar events again is decreasing”.
[28]Further, the IAA concluded at [18] of its Decision Record:
(a) “there was no credible information before the IAA to suggest that Sunni extremists have the means or intention to infiltrate Shia dominated areas, such as Karbala, in order to kill individual Shia whose profile is similar to that of the applicant”;
(b) “the country information indicates that neither Daesh nor other Sunni extremist groups have a presence in Karbala that would enable them to identify and target individuals”; and
(c) “nor is there a real chance that they [Daesh or Sunni extremists] would be in a position to do so in the reasonably foreseeable future”.
[29]At [19] of its Decision Record the IAA summarised its conclusion as:
I am not satisfied, in these circumstances, that there is a real chance that the applicant would be harmed in Karbala, the location in Iraq to which I find he would return, in a bomb or similar attack targeted against Shia Muslims.
I note that the IAA referred to independent country information in its Decision Record, which included the DFAT Report, a recent report by the United Kingdom Home Office for Iraq dated 1 April 2016 which included consideration of the situation in Karbala, and the most recent UNHCR Report on Eligibility Guidelines for Assessing Asylum-Seekers from Iraq dated 31 May 2012, together with more recent information from the UNHCR issued on 27 October 2014, and it is this country information upon which [17] of the IAA’s Decision Record (summarised at [27] of Mr Santucci’s Written Submissions: see [16] above) was based.
Accordingly, the IAA found that the Applicant did not meet either the Refugees Convention criterion or the complementary protection criterion and it affirmed the Delegate’s decision not to grant a Protection visa to the Applicant.
Grounds of Attack on IAA Decision in this Court
Mr Santucci did not press Ground 2. The core issue and complaint in this case and informing all three Grounds now relied upon, is that the IAA did not take into account and consider a car bomb attack in Karbala on 7 June 2016 (car bomb attack), which had occurred some seven days before the IAA made its decision on 14 June 2016. The Grounds relied upon by the Applicant are as follows:
1. The IAA failed to take account of a relevant consideration, and/or constructively failed to exercise its jurisdiction, when it failed to consider whether or not the applicant had a well-founded fear of persecution on account of:
i. the increased risk of an attack on Shia Muslims in the applicant's home city of Karbala, Iraq in 2016; and
ii.an attack by Sunni extremists in the applicant’s home city of Karbala, Iraq on 7 June 2016.
Particulars
a) References to Sunni extremists include groups known as ISIS, ISIL or Daesh (Sunni Extremists)
3. The failure of the IAA to exercise its power to ‘get’ any new document or information regarding the security situation in the applicant's home city of Karbala, Iraq in addition to what was before the first respondent's delegate was unreasonable.
Particulars
a) Section 473DC of the Act provided the IAA with a discretionary power to get new documents or information.
b) The IAA only had regard to the information before the first respondent's delegate (IAA Decision, para 3, Court Book 143).
c) The IAA provided no reasons for its failure to exercise its power to get new information following the decision of the first respondent's delegate (IAA Decision, para 3, Court Book 143).
d) Had the IAA exercised its discretion to get new information it could have obtained information about the attack by Sunni Extremists in the applicant's home city of Karbala, Iraq on 7 June 2016.
e) The attack by Sunni Extremists in the applicant's home city of Karbala, Iraq on 7 June 2016 constituted exceptional circumstances for the purpose of s473DD of the Act, that would have permitted the IAA to consider the new information in making its decision.
4. The decision of the IAA was unreasonable, or was not open to the IAA, or was a decision that no sensible decision-maker acting with due appreciation of his or her responsibilities would make, when it decided that it was not satisfied the applicant had a well-founded fear of persecution:
i. based on outdated information concerning the security situation in the applicant's home city of Karbala, Iraq; and
ii. further and in the alternative, following the IAA's unreasonable failure to exercise its power to ‘get’ any new documents or information regarding the security situation in the applicant's home city of Karbala, Iraq in addition to what was before the first respondent's delegate.
Particulars
a) The applicant claimed he faced persecution from Sunni Extremists, as a Shia Muslim from Karbala, Iraq.
b) On 19 May 2016, the first respondent's delegate concluded there was no ‘real chance’ of persecution in the applicant's home city of Karbala, Iraq.
c) On about 7 June 2016, Sunni Extremists perpetrated a bomb attack in Karbala, Iraq, a holy city for Shia Muslims.
d) On 14 June 2016, the IAA concluded that there was no ‘real chance’ that the applicant would be harmed in Karbala in a bomb or similar attack targeted against Shia Muslims.
e) The IAA formed its conclusion based only on the information before the first respondent’s delegate (IAA Decision, para 3, Court Book 143).
f) The IAA provided no reasons for its failure to exercise its power to get new information following the decision of the first respondent’s delegate (IAA Decision, para 3, Court Book 143).
g) Had the IAA exercised its discretion to get new information it could have obtained information about the attack by Sunni Extremists in the applicant’s home city of Karbala, Iraq on 7 June 2016, and could have considered that information before making its decision on 14 June 2016.
Consideration
The evidence establishes that between 25 July 2016 and 26 July 2016 Ms Delaney, a solicitor from the firm of solicitors acting for the Applicant in this proceeding, obtained via online research a copy of a document dated 13 June 2016 headed Briefing Notes from the German Office for Migration and Asylum, which in relation to Iraq stated as follows:
Iraq
Attacks
On 7 June 2016, a car bomb attack killed at least 8 people and left another 24 wounded in the city centre of Karbala; ISIS militants are held responsible for the attack…
(German Briefing Notes)
Ms Delaney’s affidavit of 23 September 2016 also establishes that on 28 June 2016 a Freedom of Information (FOI) request was made on behalf of the Applicant for the whole of his IAA file. Ms Delaney, on 22 August 2016 revised the FOI request by requesting provision of:
country information, memoranda, briefings, updates, alerts, research notes or any other documents that may provide information about the occurrence of terrorist attacks or bombings in Karbala from 1 June 2016, including the bomb attack in Karbala on 7 June 2016 that was in the possession of the IAA or available to the IAA at the time of making its decision with respect to [BVS16], regardless of whether that document is referred to in the decision.
By letter dated 20 September 2016 the IAA responded to the FOI request, relevantly in the following terms:
Dear Jo Delaney
FOI REQUEST - DECISION - ACCESS REFUSED – [BVS16]
I refer to your request for access to documents under the Freedom of Information Act 1982 (the FOI Act).
The documents relevant to your request are:
• "country information, memoranda, briefings, updates, alerts, research notes or any other documents that may provide information about the occurrence of terrorist attacks or bombings in Karbala from 1 June 2016, including the bomb attack in Karbala on 7 June 2016 that was in the possession of the IAA or available to the IAA at the time of making its decision with respect to [BVS16], regardless of whether that document is referred to in the decision".
As an officer authorised under the FOI Act to make decisions on access, I have decided to refuse access to the documents. Section 24A of the FOI Act provides that after all reasonable steps have been taken to find the documents, access to documents may be refused if the documents do not exist. In arriving at this decision to refuse access, the Immigration Assessment Authority (IAA) has taken into account the following information:
Each of the ten Iraq cases that were active with the IAA during the dates specified in your FOI request (01 June - 14 June 2016). These cases were subject to Temporary Protection Visa and Safe Haven Entry Visa refusals made by the Department of Immigration and Border Protection, and were undergoing review by the IAA.
•All ten cases were checked for new information or submissions provided to the IAA by applicants, representatives, other parties, or checked into the file by reviewers as a part of their considerations. Five cases received new information or submissions in this period, none of which was within the scope of your request.
• All ten cases were checked for documents requested post-referral from the applicant file with the Department of Immigration and Border Protection (DIBP). Only one case had received documents from the DIBP following referral, none of the documents supplied were within the scope of your request.
•The IAA made decisions in four of these cases during the specified period, and each of these decisions was checked for documents which have been within the scope of your request. None of the documents referred to bombings which took place in Karbala between 01 and 14 June 2016, and were therefore not within the scope of your request.
• The DIBP made three referrals to the IAA during the specified period, and each of these files, including their decisions were assessed for documents relevant to your request. No documents were within the scope of your request.
The IAA conducted a search of CISNET, research folders and decisions made by the AAT and located one source in CISNET (a database of country information reference material), which referred to bombings that took place in Karbala during the specified period. This source is publicly available and is not considered a 'document' in accordance with s.4(1) of the Freedom of Information Act 1982. The source is therefore not a document for the purposes of your request for access to documents under the FOI Act. The document is entitled "UN - Civilians fleeing Fallujah face extreme abuse" and is available on the Al-Jazeera news website.
Following the search conducted by the IAA, I am satisfied that the documents you have requested do not exist. I therefore refuse access under section 24A of the FOI Act.
(FOI Response Letter)
The effect of the FOI Response Letter was to advise that a search of CISNET had located one source “which referred to bombings which took place in Karbala during the specified period”. On 20 September 2016 Ms Delaney accessed that identified source which was available on the Al-Jazeera news website dated Wednesday 8 June 2016, which as printed comprised a 10 page document containing a number of news items referring to Dalit cattle skinners in India, the election of Mr Trump as the President of the United States of America, the fertility industry in India, murders in Mexico, an innovative plot to help Syrians reach Sweden, the effects of a “green economy” in saving the planet and, in relation to the position in Iraq, a report of statements by a spokesman for the UNHCR and relevantly the following:
In a separate development, a car bomb in Iraqi city of Karbala killed at least 10 civilians and wounded 26 others on Tuesday [i.e. 7 June 2016], officials said.
The bomb went off in a commercial area in the city, which is some 90km south of Baghdad.
ISIL has claimed responsibility for the attack.
(Al-Jazeera Report)
I should now deal with CISNET. The only evidence before me which describes CISNET is the description in the FOI Response Letter of CISNET as being a database of country information reference material. To my question at the hearing, “What is CISNET?”, Ms Francois responded that it was “the database that the department holds documents in” and gave a reference to footnote 16 of the Decision Record of the Delegate at Court Book 125 to the DFAT Report as having a CISNET reference number. At the hearing Mr Santucci acceded to my suggestion that presumably there were millions of bits of information on CISNET.
Since the hearing I have found that in Muin v Refugee Review Tribunal (2002) 190 ALR 601 Gleeson CJ at 604 – 605 [11] referred to two items, being “international reports of country background material, both available on the CISNET electronic database” and at 605 – 607 [14] to the parties having agreed in a statement of facts to CISNET being “a computer database of source documents maintained by the Department in Canberra known as CISNET”. Further at 658 [249] Hayne J said “Electronic records of some, but not all, of the Part B documents were held in a computer database maintained by the department and known as CISNET. (“CIS”, it seems, is an abbreviation for “Country Information Service”.) Members of the tribunal had access to CISNET.”.
In the Annual Report of the Migration / Refugee Review Tribunal for 2014 – 2015 CISNET is defined as meaning:
A specialist country information database utilised in assessing visa claims.
Finally, the Department’s Procedures Advice Manual 3 applicable to the Administrative Appeals Tribunal (AAT), in relation to Country of Origin Information (COI) at [4.1.1.1] states that:
4.4.1.1. CISNET
COISS [Country of Origin Information Service Section] maintains the department’s country of origin information database, CISNET, which comprises an extensive collection of searchable and retrievable COI that has been selected and evaluated against a range of criteria. COISS adds sources and documents to CISNET through regular monitoring and targeted research to ensure up-to-date and reliable COI is available for use by decision makers. COI items available in CISNET are assigned reference numbers that must be cited in the decision record. Information on CISNET has been quality tested to ensure the integrity of the Department’s country information resources.
I note that no suggestion is made that, where material exists on CISNET, physical copies are printed out or sent to either the AAT or the IAA, but rather access to the material is permitted and facilitated electronically.
I make the following factual findings:
a)neither the German Briefing Notes nor the Al-Jazeera Report formed part of the material referred by the Secretary to the IAA under s.473CB of the Act;
b)neither the Applicant nor his solicitor (if indeed the solicitor was still acting for the Applicant) informed the IAA of the car bomb attack, the German Briefing Notes or the Al-Jazeera Report prior to the IAA making its decision on 14 June 2016;
c)neither the Applicant nor anyone acting on his behalf knew of the car bomb attack or the Al-Jazeera Report until after the IAA’s decision of 14 June 2016;
d)there is no evidence that the German Briefing Notes were placed on CISNET at any time;
e)there is no evidence which establishes that the Al-Jazeera Report was available on CISNET and thus accessible to the IAA prior to the date of the IAA’s decision of 14 June 2016. Mr Santucci asked me to draw the inference that it was, but the simple fact of the matter is that there is no evidence that the Al-Jazeera Report was placed on CISNET between its date of 8 June 2016 and 14 June 2016. Rather, while the Al-Jazeera Report was obviously placed on CISNET by 20 September 2016, there is no evidence upon which I could affirmatively find on the balance of probabilities that it was placed on CISNET between its date of 8 June 2016 and 14 June 2016;
f)there is no evidence which establishes that the IAA knew of the car bomb attack prior to its decision on 14 June 2016 and I infer and find that the IAA did not know of its occurrence because, if it had known, it would have referred to it in its decision;
g)the IAA did not have, and is not to be taken as having had, constructive knowledge of the car bomb attack. Mr Santucci at the hearing accepted that an argument based on constructive knowledge of the car bomb attack or of the Al-Jazeera Report, if indeed it had been established that it had been placed on CISNET prior to 14 June 2016, could not succeed having regard to the submissions of Ms Francois at [6] of her Written Submissions and the decision of the Full Court of the Federal Court of Australia in DTK17 v Minister for Immigration (2018) 265 FCR 538 at 551 [37] – [38].
Nevertheless, Mr Santucci maintained that even if I found, as I have, that the evidence did not establish that the IAA knew about the Al-Jazeera Report and the car bomb attack, jurisdictional error was still established, because:
MR SANTUCCI: We say your Honour is entitled to look at the core statutory function that the IAA is required to undertake, which is assessing objectively whether this person has a reasonable fear of persecution. Where that is undertaken in total blindness to the fact that the exact form of persecution feared happened one week before the decision, and that isn’t considered, your Honour is entitled to draw an inference that the statutory task has miscarried.
In my view the Grounds, which are based on and dependent upon the submissions made for the Applicant concerning the IAA’s failure to have regard to and consider the Al-Jazeera Report and car bomb attack, are not made out and fail to establish that the decision of the IAA is affected by jurisdictional error.
First, on the basis of my finding that the IAA did not have knowledge from any source of the car bomb attack prior to its decision of 14 June 2016, it is obvious that its decision cannot be impugned for jurisdictional error for failing to consider it or to refer to its occurrence. Whether the car bomb attack is viewed as a “claim” or “information” it would obviously not have been raised “clearly and squarely” on the material before the IAA: see BRD18 v Minister for Home Affairs [2020] FCA 212 at [11] – [12], [25] and [30] – [31] per Lee J.
Second, the Grounds would still fail to establish jurisdictional error even if the Al-Jazeera Report had been placed on CISNET between 8 June 2016 and 14 June 2016. This is because there was no obligation on the IAA of its own motion to seek out information on CISNET which might have assisted or been relevant to the Applicant’s claims, let alone to do so in the absence of any prompting or instigation from the Applicant. Even the AAT, which has wider statutory obligations than the IAA, is not required to actively assist an applicant in putting his or her case, nor is it required to carry out an inquiry in order to identify what that case might be: Minister For Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at 561 [36]. There is nothing in the statutory regime governing the IAA which mandates that it should monitor and check CISNET on a daily, or any other regular, basis. Section 473DC(2) of the Act stipulates that the IAA “does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”. The question of legal unreasonableness is to be approached though the lens of the specific statutory scheme providing for the IAA and s.473DC(2) in particular.
It is of course true that the Full Court of the Federal Court in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16) established that particular circumstances might arise in the course of a review by the IAA that might, as a matter of legal reasonableness, require it to consider exercising its discretion under s.473DC(3) of the Act and that a failure to consider whether to exercise that discretion could be legally unreasonable.
I would infer in this case that the IAA did not consider exercising its discretion under s.473DC(3) of the Act, because there was no issue before it which called for the exercise of such a discretion. The Applicant had not made any submissions or provided any extra material to the IAA, and the evidence does not establish that the IAA was aware of the Al-Jazeera Report or the car bomb attack. Why then, may one ask, would it consider exercising any discretion under s.473DC? Rather, there was nothing before the IAA which had a tendency to suggest that it should exercise a discretion under s.473DC, even if s.473DC in its reference to “a person” or “orally or in writing” could be regarded as referring to and sanctioning a search of CISNET. In my view there is nothing in the circumstances of this case which required the IAA to consider exercising the discretion in s.473DC(3).
In other words, this case is very different from CRY16. As the Full Court of the Federal Court said in DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [71]:
[71]…Unlike in CRY16, there is nothing in this case to suggest that the appellant did not have an adequate opportunity to advance any evidence or submissions he wished to in support of his claims, or that the IAA had disabled itself in some way from considering an issue.
Accordingly, if the Applicant wanted the IAA to take the car bomb attack into account it was incumbent on him to attempt to seek to raise the car bomb attack with the IAA, which in the relevant statutory context had no obligation of its own accord to seek that information in the period between 7 June 2016 and 14 June 2016, the date of its decision.
I also reject Mr Santucci’s submission that the IAA failed to consider the most recent information. The IAA in its Decision Record considered a body of independent country information, including the very recent report by the United Kingdom Home Office for Iraq dated 1 April 2016. The fact that it did not take into account the car bomb attack does not establish jurisdictional error on the basis that the IAA did not take into account the most current country information material available to it at the time of its decision.
Accordingly, I find as follows:
a)Ground 1 fails to establish that the IAA failed to take into account a relevant consideration or failed to exercise its jurisdiction;
b)Ground 3 fails to establish that the IAA committed jurisdictional error by failing to consider exercising its jurisdiction to get new information under s.473DC(3) of the Act; and
c)Ground 4 fails to establish that the decision of the IAA was in any respect legally unreasonable.
Conclusion
In my view the Applicant, despite the earnest endeavours of Mr Santucci, has failed to establish that the decision of the IAA is affected by jurisdictional error and the Amended Application is to be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 27 February 2020
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