BYX17 v Minister for Immigration
[2020] FCCA 1749
•30 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYX17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1749 |
| Catchwords: MIGRATION – Visa application – Safe Haven Enterprise visa application rejected – extension of time granted under section 477(2) – allegation that police investigation material created apprehended bias – no jurisdictional error for apprehended bias – no irrelevant consideration taken into account by the Immigration Assessment Authority – no misapplication of relative rather than an objective approach to relocation – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CB, 473DC, 473DD, 473GB, 477 |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 CGA15 v Minister for Home Affairs [2019] FCAFC 46 CID15 v Minister for Immigration and Border Protection [2017] FCA 780 CKV16 v Minister for Immigration and Border Protection [2019] FCA 342 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 |
| Applicant: | BYX17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 944 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 21 February 2020 |
| Date of Last Submission: | 21 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Ms Oboodi |
| Counsel for the Respondents: | Mr Murano |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Leave be granted to extend the time for filing the Application.
The Application filed on 8 May 2017 and amended on 20 January 2020 be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $7,467.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 944 of 2017
| BYX17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 8 May 2017 and amended on 20 January 2020, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘Authority’ or ‘IAA’) made on 8 March 2017. The Authority’s decision affirmed a decision of a delegate (‘delegate’) of the first respondent (‘the Minister’) refusing to grant a Safe Haven Enterprise (Class XE) visa (‘the visa’).
The matter was heard on 21 February 2020.
For the reasons which follow I have concluded that the application should be dismissed.
Background
The applicant is a citizen of Afghanistan of Hazara ethnicity and is a Shia Muslim. In Afghanistan he ran a transport business which provided construction material from Herat to Kabul.
The applicant arrived in Australia on 2 August 2012 as an unauthorised maritime arrival.
On 23 November 2015, the applicant applied for the visa.
On 5 April 2016, the delegate invited the applicant to a hearing.
On 13 April 2016, the delegate who was considering the visa application sent an email to another officer at the Department of Immigration (‘the Department’) requesting an update about the arrest of the applicant on 12 March 2015 in relation to alleged offences of a sexual nature
(‘the Allegations’).
On 20 April 2016, the applicant attended the interview with the delegate. The delegate informed the applicant that the Department had information about the Allegations and that he was being investigated for a crime. The applicant and delegate discussed the applicant’s claims and the Allegations.
On 12 August 2016, the applicant’s representative provided to the Department a letter from Victoria Police dated 30 June 2016 which stated that a brief of evidence had been prepared and reviewed in relation to the applicant’s arrest in April 2015, but that a brief of evidence ‘would not be authorised at this time’ (‘the Police Letter’).
On 12 October 2016, the delegate refused to grant the visa.
On 13 October 2016, a certificate was issued under s 473GB of the Migration Act 1958 (Cth) (‘the Act’) regarding four separate documents about the police investigation into the applicant.
On 24 October 2016, the matter was referred to the Authority.
On 7 November 2016, the applicant’s representatives provided further submissions and supporting documentation to the Authority. In the submissions, the Applicant stated that, on 27 October 2016, his representative contacted Victoria Police who confirmed that, due to a lack of evidence, he would not be charged and that his case was closed (‘the Police Statement’).
On 8 March 2017, the Authority affirmed the delegate’s decision not to grant the applicant the visa.
The applicant’s claims to fear persecution
The applicant’s submissions at [3] briefly outline his claims, and state:
3. The applicant claimed a well-founded fear of persecution, inter alia on the grounds of his religion and ethnicity as a Hazara Shia. He feared harm from the Taliban, who had threatened to kill and capture him and had targeted and killed a driver employed by the applicant’s transport business.
The Minister’s submissions at [3] also outline the applicant’s claims:
b) approximately one year before arriving in Australia, he received threatening calls from the Taliban in which he was told to stop supplying material to the government - he told his driver about the calls and said that if his driver continued to do business with the government, they would be in trouble;
c) four months before leaving Afghanistan, the Taliban attacked his truck and killed his driver;
d) there is nowhere safe for him in Afghanistan because, wherever he goes, he will be found and killed by the Taliban insurgents who attacked his truck, or he will be harmed by other Sunni extremists because he is a Hazara Shia - he also fears he may be punished by authorities for leaving Afghanistan illegally, or that the Taliban may think that because he came to Australia he has changed his religion, or is "pro-West".
Grounds of review
The applicant, by further amended application filed 20 January 2020, sought review on the following grounds:
1. The decision of the IAA was affected by jurisdictional error for apprehended bias.
Particulars
a) The IAA had before it information that was irrelevant and prejudicial.
b) A reasonable lay observer may have apprehended bias on the part of the IAA on the basis of that irrelevant and prejudicial material being before it.
2. The IAA fell into jurisdictional error by taking into account an irrelevant consideration.
Particulars
a) The IAA had before it information that was irrelevant and prejudicial.
b) The IAA erred by taking into account that information
3. The IAA fell into jurisdictional error by applying a test of relative safety in assessing whether it was reasonable for the applicant to relocate.
Extension of time
The Applicant requires an extension of time under s 477(2) because his application for judicial review was filed on 8 May 2017, 26 days outside the mandated timeframe.
The Minister does not oppose the granting of an extension of time. In submissions filed 11 February 2019 the Minister did not challenge the applicant’s explanation for the delay and did not claim to suffer any prejudice.
The applicant submits that his substantive grounds for review are not plainly hopeless such that it would not be in the interests of justice to extend time for the application.
Applicant’s submissions
Ground 1 – apprehended bias
Relying on CNY17 v Minister for Immigration and Border Protection (‘CNY17’),[1] the applicant contends that because prejudicial and irrelevant material about the Victoria Police investigation was before the Authority as part of the review material, its decision is affected by apprehended bias. The material included information that the Victoria Police had arrested two men, including the applicant, on allegations of a sexual nature, and that the police were still considering whether charges would be laid in the future (‘the Police Information’).
[1] [2019] HCA 50.
The applicant says that the Police Information:
a)was considered by the Authority, as stated in its decision record that it had had regard to the material referred by the Secretary under s 473CB of the Act;
b)was plainly prejudicial, and similar in nature to the information described by the Full Court in Minister for Immigration and Border Protection v AMA16[2] (‘AMA16’); and
c)was not rationally capable of affecting the Authority’s assessment of whether the applicant satisfied the protection visa criteria and was therefore irrelevant to its review.
[2] [2017] FCAFC 136; (2017) 254 FCR 534.
Citing CNY17, CKV16 v Minister for Immigration and Border Protection[3] (‘CKV16’) and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[4] (‘Applicant VEAL’), the applicant submits that that the Authority’s decision will be affected by jurisdictional error if a reasonable lay observer might apprehend that the Authority might have been affected by bias, even if subconsciously, and even if the Authority had expressly stated that it had had no regard to the prejudicial material.
[3] [2019] FCA 342, at [28].
[4] (2005) 225 CLR 88, at [14]-[15].
At [31] of its submissions the applicant states that:
31. The principle that can be drawn from these cases is that where the IAA has before it information that is prejudicial to an applicant but is irrelevant to the review, the only remedy to the injustice to the applicant is to commence a new review that does not contain the prejudicial information as part of the review material. As Nettle and Gordon JJ noted in CNY17, part 7AA of the Migration Act can facilitate such a ‘clean’ review.
32. In the present case, a reasonable lay observer would apprehend that the IAA might have been affected by the irrelevant and prejudicial information that was before it, even if only subconsciously. The decision of the IAA is therefore affected by jurisdictional error for a reasonable apprehension of bias.
Ground 2 – irrelevant consideration
The applicant contends that, for the reasons set out in Ground 1 and by having regard to the Police Information, the Authority considered an irrelevant consideration.
Citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd[5], the applicant notes that the Authority’s role is to undertake a de novo review, and that the only relevant matters to be considered are those that can rationally affect the assessment of the protection visa criteria in s 36 of the Act.
[5] [1986] HCA 40.
At [38]-[39] of his submissions the applicant claims that:
38. The fact that IAA described the status of the police investigation as highly relevant to its review, then spent three paragraphs at [15] to [17] traversing those issues, indicates that the irrelevant consideration of the police investigation was plainly taken into account.
39. The IAA’s conclusion that it gave no weight to the police investigation matters in its assessment of the applicant’s evidence or credibility does not cure the fact that the IAA’s review miscarried as a result of its substantive consideration of a plainly irrelevant matter.
Furthermore, in relation to the Police Letter to rebut the delegate’s consideration of the police investigation into him, the applicant says that the Authority described it as ‘highly relevant to his claims’.
The applicant asserts that this ‘further made clear that [the Authority] considered “the current status of the police investigation into the applicant” a relevant matter in the review.’
Ground 3 – misapplication of relative test
Relying on CGA15 v Minister for Home Affairs (‘CGA15’)[6] and Moshinsky J’s two-limb assessment in CID15 v Minister for Immigration and Border Protection (‘CID15’),[7] the applicant submits that the Authority misapplied the internal relocation safety test by applying a relative rather than an objective approach to the question of the safety of Mazar-e-Sharif.
[6] [2019] FCAFC 46.
[7] [2017] FCA 780.
The applicant quotes [70] of the Authority’s decision record and says that it was referring to an assessment at [47] of the decision, which concluded that Mazar-e-Sharif ‘remains one of the safer cities in Afghanistan and has not experienced an attack against its Hazara Shia population since 2011’.
In doing so, the applicant submits, the Authority:
47. […] engaged in a relative assessment of safety, in considering whether Mazar-e-Sharif was safer than other cities in Afghanistan, notwithstanding the IAA’s own finding that “the security situation in this city is serious”, rather than the objective consideration of the safety of the place of relocation that was required of it. In doing so, the IAA has failed to carry out the review required by statute and has thereby fallen into jurisdictional error.
The applicant alleges that the Authority accepted that he faced a real risk of significant harm if he were to return to his home area of Afghanistan, and then turned to consider whether it would be reasonable for him to relocate to a place where he would not face a real risk of significant harm.
First respondent’s submissions
Ground 1 – apprehended bias
The Minister rejects the applicant’s contention that the Authority’s decision is affected by apprehended bias, saying that the applicant has failed to identify what it is that might have led the Authority to decide the visa application other than on its factual and legal merits. Further, the Minister submits at [15] that the applicant has failed to ‘articulate a logical connection between the identified thing and the feared deviation from deciding the visa application on its merits’.
With respect to the Police Information before the Authority, the Minister claims that:
a)the present case is factually distinguishable from CNY17, CKV16 and AMA16 because here the information was that a decision had not been made to charge him, compared with the other cases which involved assertions of a history of aggressive behaviour, charges of assault, links to riots, previous visa refusals or investigations about perverting the course of justice;
b)the totality of the material considered by the Authority about the Victoria Police investigation ‘neutralised any information which may have been prejudicial’ because:
i)the applicant provided the Police Statement and supporting documentation in response to the allegations;
ii)the Authority exercised its discretion under s 473DC(1) to accept ‘new information’; and
iii)the Authority was satisfied there were ‘exceptional circumstances’ under s 473DD to consider the Police Statement,
c)even if the information was prejudicial and/or irrelevant, no reasonable apprehension of bias arises because, unlike CNY17:
i)here the applicant knew that the Authority was aware that he was being investigated by Victoria Police; and
ii)the applicant had an opportunity to (and did) address the Authority about the Allegations,
d)the Authority expressly placed ‘no weight’ on the investigation in its reasons, in contrast to CNY17, AMA16 and CKV16.
With regards to the ‘subconscious effect’ of the material on the Authority, the Minister says that the applicant’s reliance on Applicant VEAL is not helpful because:
a)in that case the statutory regime was different - Applicant VEAL involved a breach of common law procedural fairness, while this case entails allegations of apprehended bias in a review under Part 7AA of the Act, which contains an ‘exhaustive statement of natural justice hearing rule’; and
b)unlike in Applicant VEAL, the applicant here knew about and commented on the Police Information before the Authority, and the material was not prejudicial and was given ‘no weight’.
Ground 2 – irrelevant consideration
The Minister submits that the Authority’s decision is not affected by jurisdictional error by having considered an irrelevant consideration because:
a)the Police Information was relevant to the review; and
b)even if the Police Information was irrelevant to the review:
i)the Authority was not required by the Act, explicitly or implicitly, to disregard it; and
ii)any error was not material because the Authority placed ‘no weight’ on the material so it did not result in the Authority incorrectly applying the law.
Ground 3 – misapplication of relative test
Here the Minister says that the Authority correctly used an objective assessment to consider whether the applicant would face a real risk of significant harm in relocating to Mazar-e-Sharif.
The Minister points to the first and second sentences of [70] of the Authority’s reasons, saying that:
a)the first sentence comprises an objective finding about the risk of harm from generalised violence (i.e. the first part of the CID15 test); and
b)the second sentence is a finding about the reasonableness of relocation (i.e. the second part of the CID15 test).
The Minister also submits that even if the above reading of the reasons is wrong, the Authority did not impermissibly engage in a relative assessment of the risk of harm from Islamic State in Mazar-e-Sharif because:
a) first, it found that while a serious but confined threat is posed by Islamic State in Afghanistan, the Applicant does not come within a group with a risk profile: [42] - [43];
b) second, it found there is not a real chance the Applicant would be seriously harmed by Islamic State in Afghanistan generally as a Hazara Shia: [47]; and
c) third, after making the findings set out in paragraphs 28(a) and 28(b) above, the Authority says "I find that the chance of the [A]pplicant being harmed for these reasons is reduced even further in the context of Mazar-e-Sharif, which remains one of the safer cities in Afghanistan".
And at [29] of its submissions the Minister claims that:
29. Accordingly, before stating that Mazar-e-Sharif "remains one of the safer cities in Afghanistan", the Authority had already objectively assessed the risk posed to the Applicant as a Hazara Shia by Islamic State in Afghanistan generally and found that there is not a real chance of him being seriously harmed. In those circumstances, the comparison made at [47] is between places where the Applicant had already been found not to face a real chance of serious harm. It follows that, to the extent relevant to relocation, the Authority at [47] did not engage in an impermissible comparison between "place A" (i.e. a place where there is a real chance of serious harm or a real risk of significant harm) and "place B" (i.e. a place of potential relocation) of the type contemplated in CGA15.45
Consideration
Ground 1 - apprehended bias
The relevant parts of the Authority’s decision relating to a claim of apprehended bias are found at [3]-[4] and [14]-[17] of the decision. I set out those passages in full.
3. The applicant provides a submission to the IAA on 7 November 2016. The submission contains a four-page document responding to the delegate’s concerns and clarifying aspects of the applicant’s existing claims. I am satisfied this is not new information and I have had regard to those submissions.
4. The submission also includes new information. The first is a letter from Victoria Police, dated 30 June 2016, indicating that the applicant was arrested in April 2015. It states that a brief of evidence was prepared and reviewed, however a decision was made that the brief of evidence would not be authorised at this time. The written submission also indicates that the representative contacted Victoria Police on 27 October 2016, and the responsible sergeant confirmed the contents of that letter were still accurate, stating that due to a lack of evidence the applicant would not be charged with any offence. The submission also includes reference to a Washington Post article from 7 November 2016. The article relates specifically to the current humanitarian situation in Afghanistan.
…
14. The delegate expressed some concerns about the provenance of the applicant’s Taskera during the process. The representative, on instruction from the applicant, sought to withdraw the document during the interview. I accept the provenance of that document is in doubt, however I am prepared to accept the applicant’s evidence that he was not involved in the acquisition of the Taskera. More critically for me is his oral and other documentary evidence which supports his claims that his identity is as claimed. Thus, while I share the delegate’s concerns about the provision of any potentially false document, I accept his identity, and am satisfied he is a citizen of Afghanistan from Ghazni province. I have assessed him on that basis.
15. During the visa interview, the applicant was asked whether he was under investigation for any crimes in Australia. He stated there was a boy in his room and there was an investigation or interview about that. He claimed the boy’s car was stolen and there was an interview. He was asked if there was any other crime or matter under investigation, he confirmed there was not.
16. The delegate put to him that this was not true. He then clarified that there was an allegation. He claimed that something happened between the boy and his girlfriend, and then things got worse between them. Then the police wanted an interview. He was asked by the delegate what happened after the interview. He said that since then nothing has happened, and he was told he may need to go to court. He said that he received a letter about the possible charges.
17. The delegate placed some adverse weight in relation to the applicant’s evidence about the potential police charges and the seriousness of those charges, although the relevance of those charges to the applicant’s individual claims is not apparent. Whatever the case, the applicant has since provided documentation that indicates the charges are not currently being pursued by Victoria Police. I accept his explanations why he was initially not forthcoming about these matters until the latter part of the interview, and I have given no weight to these matters in my assessment of his evidence or his credibility.
The Authority was required to have regard to the material that was before the delegate including the information about investigation into crimes that he may have committed in Australia. The Authority also had regard to the new information which included the Police Letter which advised that a decision had been made that the brief of evidence would not be authorised. The Authority has expressly stated that it is given no weight to the matters that were referred to by the delegate relating to any police investigation. The letter from the police that the Authority refers to was provided to it by a submission made by the applicant. Clearly the applicant considered that information to be relevant.
There was no need for the decision-maker to comment on the information regarding the police investigation because it was clear that the investigation was not proceeding. Contrary to the position that pertained in CNY17 at [141] per Edelman J, the Authority expressly stated that no weight had been placed on the material relating to police investigations and in the answers that the applicant had given regarding those matters before the delegate: decision at [17]. This is not a case where there was a large volume of irrelevant prejudicial material (as was the case in CNY17).
I do not find that a fair-minded observer (with some knowledge of the nature of the decision and the circumstances which led to this decision and the context in which it was made) might reasonably apprehend that the Authority might not bring an impartial mind of the resolution of the question that it is required to decide. It is also reasonable to accept the Authority’s disavowal of any reliance on that material given the terms of the letter from the police.
This case can be distinguished from the situation that arising in Applicant VEAL principally because the applicant knew about, was able to, and did, comment on the Police Information before the Authority.
Ground 2 - irrelevant consideration
The Authority had a duty to review the referred decision and to do so by considering the review material provided to it by the Secretary: s 473DB(1) of the Act.
The new information comprising Police Letter was relevant to the task that the Authority had to undertake as it had the effect of neutralising other information was before the delegate. Further it was provided to the Authority by the applicant.
Even if the material was irrelevant, the Authority expressly placed no weight upon it and I accept that that was the case and the reason stated above, the material had no effect on the decision either by way of actual, apprehended or unconscious bias.
Ground three - misapplication of relative test
There is a difference in the way the parties read the Authority’s decision in relation to relocation. The applicant refers to the findings at [28] and [62] that he faced a real risk of significant harm if he were to return to his home area of Afghanistan. He then makes reference to [70] where the authority stated:
I have found that the applicant would not face a real risk of being significantly harmed in generalised violence in Mazar-e-Sharif. While I accept that the security situation in this city is serious, given my assessment above about the relative safety of the city and the applicant’s lack of profile, I am not satisfied that this factor makes the question of relocation unreasonable.
It is submitted by the applicant that the reference to ‘my assessment above’ is a reference to [47] where the Tribunal referring to the threat of harm to the applicant by Islamic state found that:
[…] the chance of the applicant being harmed for these reasons is reduced even further in the context of Mazar-e-Sharif, which remains one of the safer cities in Afghanistan and has not experienced in attacking against its Hazara Shia population since 2011. I am also satisfied that the attacks are not yet an indication of a return to sectarianism in the country in the reasonably foreseeable future. Based on all the information before me, I find there is not a real chance of the applicant being seriously harmed in Mazar-e-Sharif for reasons of his ethnicity or religion, by Islamic State or any other AGE active in these areas.
The applicant submits that the authority has engaged in an exercise of determining whether Mazar-e-Sharif was relatively safer than other parts of Afghanistan rather than undertaking an objective assessment of the actual level of risk in the proposed place of relocation and whether the person suffers a real risk of serious harm in that place; citing CGA15 at [23] where the Full Court stated:
[…] It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place […]
The use of the word ‘relative’ by the Authority at [70] certainly leaves open the suggestion that the Authority has engaged in a relative assessment rather than an objective assessment of the safety for the applicant in each place.
When reading the Authority’s decision as a whole I have come to the view that it did engage in an objective’s assessment of the applicant safety in each place.
At [62] of its decision, the Authority found that there was a real chance that the applicant would be seriously harmed if he returned to live in his home area in the Moqur district in Ghanzi province. The Authority considered in some detail the security situation for Hazara Shia in Afghanistan and particularly in Mazar–e-Sharif. At [45] the authority made findings (excluding assessment of Islamic State) that there was ‘no real chance of the applicant being seriously harmed for reasons of his ethnicity or religion’ in that place by the Taliban and all any other Anti-Government Elements (‘AGE’).
At [46] the Authority found that it accepts that there was evidence of general insecurity and AGE attacks against government and international presences in Mazar-e-Sharif but found that that was consistent with the general security situation in the country and that the information does not indicate that Hazara Shias are at a real chance of being harmed in Mazar-e- Sharif.
At [47] the Authority made the assessment regarding the risk of harm from Islamic State in that area which is set out above.
At [48]-[51] the Authority considered the particular risks to the applicant if he was to return to Afghanistan as a result of his spending time in the West, his abandonment of his Shia faith ([52]) and his illegal departure from Afghanistan ([53]).
At [54] the Authority considered the risk of generalised violence in Mazar-e-Sharif and found that the chance of the applicant being harmed from generalised violence in that area was remote.
At [74]–[79] the Authority considered the practicability of the applicant returning to Mazar-e- Sharif. In undertaking that exercise, the Authority did engage in an objective assessment of whether the applicant could return to Afghanistan and relocate to Mazar-e-Sharif and whether there is a real risk of harm if he did so. The Authority did not confine itself to assessment of the relative safety as between Mazar-e-Sharif and other locations in Afghanistan.
I grant leave to extend the time for filing the application. That application was not opposed by the first respondent and the applicant has clearly demonstrated that there were arguable grounds raised in this application.
Otherwise I find that there is no jurisdictional error apparent in the approach taken by the Authority and the application must be dismissed
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 30 June 2020
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