BVS16 v Minister for Immigration - [2020] FCCA 401

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
BRD18 v Minister for Home Affairs [2020] FCA 212

DTK17 v Minister for Immigration (2018) 265 FCR 538
DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222
Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister For Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Muin v Refugee Review Tribunal (2002) 190 ALR 601

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 (

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 401
Decision Date: 27 February 2020

CaseChat Overview and Summary

The applicant, BVS16, sought judicial review of a decision by the Immigration Assessment Authority (IAA) that affirmed the Minister for Immigration's refusal to grant a Temporary Protection (Class XD) (Subclass 785) visa. The applicant contended that the IAA committed a jurisdictional error by failing to consider a bomb attack that occurred in Karbala seven days prior to the IAA making its decision. The court was required to determine whether the IAA had a legal obligation to be aware of, or to actively monitor for, such events and whether its decision was vitiated by jurisdictional error due to its ignorance of this specific bombing.

The court reasoned that the IAA had no legal obligation to monitor new country information from sources such as CISNET on a daily or any other regular basis. The IAA's decision-making process involved assessing the applicant's claims in light of available country information, including the DFAT Country Report for Iraq. The court found that the IAA did not become aware, either actually or constructively, of the bomb attack in question prior to making its decision. Consequently, the court held that the IAA's decision was not affected by jurisdictional error simply because it was made in ignorance of this particular event.

The application for judicial review 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

By letter dated 20 September 2016 the IAA responded to the FOI request, relevantly in the following terms:Dear Jo DelaneyFOI 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)

Ratio Decidendi

Legal Principle Established

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; andh)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. 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; andd)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).