CFD18 v Minister for Immigration

[2020] FCCA 457

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFD18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 457

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misinterpreted s.473DD of the Act – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CA, 473CB, 473DB, 473DD

Cases cited:

Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Applicant: CFD18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1229 of 2018

Judgment of: Judge Humphreys

Hearing date: 26 February 2020

Date of Last Submission: 26 February 2020

Delivered at: Parramatta

Delivered on: 26 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: Barriston Lawyers

Counsel for the Respondents: Mr Kaplan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $12,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1229 of 2018

CFD18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

1. This is judgment in the matter of CFD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant claims to be a citizen of Iran. On 7 April 2016, the applicant lodged an application for a Safe Haven Enterprise visa. On 5 June 2017, a delegate for the Minister refused to grant the protection visa. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 29 March 2018, the Authority affirmed the decision not to grant the applicant a protection visa. The applicant now seeks judicial review of the Authority’s decision.

2. The Authority, at paragraph 2, indicated that it had regard to the material given to it by the secretary under s.473CB of the Migration Act 1958 (Cth) (“the Act”). On 26 June 2017, the Authority received a submission on behalf of the applicant.

3. Critical to the matter argued being before the Court are the findings at paragraph 5 of the decision. For convenience, it is appropriate that I set it out in full.

   The submission also refers to a country information reports that were not before the delegate and which I consider to be new information. In response to the delegate’s finding that it was likely the applicant’s tea shop was closed down by Amaken due to their enforcement of Islamic values in public establishments rather than as a result of the applicant insulting the Supreme Leader in an event in 2000, the submission refers to a number of reports about Amaken in Iran. The delegate did not raise any concerns or put any adverse information to the applicant during a protection visa interview, including in respect to his finding above, and I am satisfied that this information has been provided in response to the delegate’s findings in his decision which the applicant did not have the opportunity to respond to. The submission relies on these country information reports to argue that Amaken also puts pressure on students and political activists and so their targets are not solely public places. Even if this country information had been before the delegate, the delegate also relied upon the applicant’s claim that he had been told his tea shop was being shut due to being “a corruption shop”, and country information before the delegate also indicates that Amaken concerns itself with the interaction between the sexes in public places and various forms of perceived behaviour, which has not been disputed by the applicant. The applicant provided no other supporting corroborative credible evidence to indicate that the closure of his tea shop was due to the events in 2000. I am not satisfied that, had the delegate had the above country information before him, that it would have impacted on the outcome of his decision. I am not satisfied there are exceptional circumstances to justify considering this country information.

4. It is important to emphasise, firstly, that the submission referred to country information reports that were not before the delegate which, it was conceded, were new information.

5. Secondly, the information had been provided in response to the delegate’s findings, which the applicant did not have the opportunity to respond to.

6. Thirdly, the Authority is not satisfied that there were exceptional circumstances to justify receipt of the information.

7. Paragraphs 6 through to 12 deal with further information where the delegate determines there were not exceptional circumstances to consider justifying the further additional information that was provided.

8. Paragraph 13 deals with a request from the applicant to be informed of any adverse information in order to respond. The Authority notes that the relevant procedures pursuant to s.473DB(1), s.473CA and s.473CB of the Act indicate that a fast track reviewable decision should be considered without accepting or requesting new information and without interviewing the applicant. In these circumstances, the Authority was not satisfied that the provision of adverse information to the applicant for comment was required.

9. Given that the grounds of appeal do not cavil with the ultimate findings of the Authority in terms of the conclusions made on the applicant’s claim for protection, I will not further summarise the Authority’s decision, other than to say that the Authority was not satisfied that the applicant fits within a profile or has a profile that would attract adverse attention of Iranian authorities. The Authority was not satisfied that there was a real chance the applicant would face harm from Iranian authorities on the basis of any of the claims he made.

10. Further, the Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to Iran, that there was real risk he would suffer significant harm. Accordingly, the Authority affirmed the delegate’s decision.

Ground of Application

1. In an amended ground filed on 3 December 2019, the previous grounds which were relied upon and had been agitated at a previous hearing in April were abandoned. The following single ground is now relied upon, which I quote verbatim:

   The Authority made jurisdictional error by misinterpreting s.473DD of the Migration Act:

   (a) the Authority found at paragraph 5 of its decision there was new information which was relied upon in support of the submission that Amaken had closed down the applicant’s tea shop as a result of the applicant insulting the Supreme Leader in 2000;

   (b) the Authority found at paragraph 5 of its decision that the information was not, and could not have been, provided to the delegate within the meaning of section 473DD(b)(i) of the Act.

   (c) The Authority found at paragraph 5 of its decision that it was not satisfied that, had the delegate had the above country information before him, it would have affected his decision for the purposes of section 473DD(b)(ii) of the Act.

   (d) On this basis, the Authority found there were no exceptional circumstances justifying consideration of the information under 473DD(a) of the Act.

   (e) The Authority misinterpreted 473DD(b) of the Act as 473DD(b)(i) of the Act and 473DD(b)(ii) were expressed in the alternative.

   (f) Having found that section 473DD(b)(i) of the Act was satisfied, it was wrong of the Authority to ask whether the information would have made a difference to the delegate for the purposes of section 473DD(b)(ii) of the Act. Rather, the Authority should have considered exceptional circumstances under section 473DD(a) of the Act, including by reference to whether the information would have made a difference to the Authority’s decision.

2. To the extent that leave is required to rely upon this amended ground, I grant that leave.

The Applicant’s Submissions

1. It was submitted by Counsel, on behalf of the applicant, that the reasoning of the Authority with respect to s.473D of the Act and paragraph 5 of the Authority’s decision may be characterised as follows:

   a)   The country information was “in response to the delegate’s finding in his decision which the applicant did not have the opportunity to respond to”, with the result that it “was not, and could not have been, provided to the Minister” within the meaning of s.473DD(b)(i) of the Act;

   b)   the country information, had it been before the delegate, would not “have impacted on the outcome of his decision”, with the result that the criterion “had it been known, may have affected the consideration of the referred applicant’s claims” in s.473DD(b)(ii) of the Act was not satisfied;

   c) There were no exceptional circumstances to justify consideration of the new information under s.473DD(a) of the Act.

2. It was submitted on behalf of the applicant that there was a clear error at point (b) above. The Authority had concluded that s.473DD(b)(i) of the Act was satisfied. The Authority should not have then proceeded to conclude that s.473DD(b)(ii) of the Act was not satisfied. Counsel submitted that this is erroneous. The Authority should, upon finding that s.473DD(b)(i) of the Act was operative, have proceeded then to regard whether or not there were exceptional circumstances.

3. It was submitted by Counsel that in addition to the point of s.473DD(b)(ii) of the Act being expressed as in the alternative, the country information does not appear to have been credible personal information within the meaning of the section. This provides an additional reason why the Authority erred in proceeding to consider whether s.473DD(b)(ii) of the Act was satisfied.

4. It was further submitted that the reasons provided by the Authority for concluding the country information would not have impacted on the delegate’s decision, should not be strained to include a conclusion that the Authority’s decision would not have been affected.

5. The Authority had not expressed itself in those terms and it is speculative as to how its function of review would have been impacted. The Court’s attention was drawn to the fact that the Authority referred to the fact that “the delegate had also relied on the applicant’s claim that having been told his tea shop had been shut down to being a “corruption shop”, and the Authority relied on the fact that there was “country information before the delegate which also indicates that Amaken concerns itself with the interaction between the sexes in public places and various forms of perceived behaviour, which has not been disputed by the applicant”. It was submitted this was, again, equivocal.

The First Respondent’s Submissions

1. The first respondent notes that, where new information is given to the Authority by a referred applicant, s.473DD of the Act precludes the Authority from considering that information unless the conditions in subsections (a) and (b) of s.473DD of the Act are satisfied. As s.473DD(b) of the Act operates cumulatively upon the preconditions set out in

   
   

   s.473DD(a) of the Act, it will not be sufficient to displace this general rule, in s.473DD(b)(i) of the Act, if the Authority is merely satisfied of the circumstances set out in each of the subparagraphs of s.473DD(b)(ii) of the Act (see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 230, paragraph 31, per Gageler, Keane and Nettle JJ).

2. In assessing whether there exists exceptional circumstances to justify considering any new information, the Authority may, but is not required to, take into account the matters set out in s.473DD(b)(ii) of the Act. The applicant’s complaint in this case is that, despite having made a finding in his favour in relation to s.473DD(b)(i) of the Act, nonetheless the Authority went on to ask whether the information would have made a difference to the delegate for the purposes of s.473DD(b)(ii) of the Act. The first respondent submits there are three responses to this complaint.

3. First, the Authority did not make an express finding to the effect it was satisfied the new country information did not meet the condition in

   
   

   s.473DD(b)(ii) of the Act. It did not make findings as to whether the country information met the definition of “credible personal information”. The Authority merely considered whether the country information had been given to the delegate, it may have affected his decision.

4. Secondly, in determining whether or not there are exceptional circumstances to justify considering the new information, the Authority had regard to some aspects of the criterion in s.473DD(b)(ii) of the Act, which is unexceptional (see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at 114, per Kenny, Tracey and Griffiths JJ). The matters considered by the Authority fit into the assessment of whether or not there was exceptional circumstances. The Authority’s conclusion to take into account non-temporal factors is evidence of an appreciation that exceptional circumstances is a broad concept that calls for consideration of matters other than information that was not, and could not have been, provided to the Minister before the decision was made under s.65 of the Act.

5. Thirdly, in any event, even if the Authority erred in failing to consider country information, that error was not material to the ultimate decision to affirm the delegate’s decision.

6. Without derogating from the proposition that the onus is upon the applicant to establish materiality, the first respondent draws attention to the Authority’s finding where it rejected, at a factual level, the applicant’s claims as to the circumstances surrounding the closure of his tea shop and concluded that he did not face a real chance of harm at the hands of authorities if he were to be returned to Iran. It was submitted that the argument relied upon by the applicant’s submissions to the Authority, which cited country information reports, which is discussed at page 161 of the Court Book, depended upon the factual premises that had been rejected.

7. Counsel submitted that it therefore follows that no amount of consideration of those reports, which the applicant concedes were not personal to him, could have altered the Authority’s anterior factual findings.

Consideration

1. It is important to remember that the reasons of Authority, should not be read with an eye too finely attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259). The Authority is a high-volume merits review body that is not expected to produce reasons of a standard that would be expected of this Court. That is not to say, however, that the Authority should be excused from any and all reasoning which is not clear and does not set out a basis upon which its reasoning can be followed.

2. The review carried out by the Authority pursuant to Part 7AA of the Act, a fast track review process, as set out in the Act. These reviews are carried out under provisions by considering the review material provided by the Authority and generally (a) without accepting or requesting new information and (b) without interviewing the referred applicant (see

   
   

   s 473DB of the Act).

3. Section 473DD of the Act states as follows:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a) the Authority is satisfied there are exceptional circumstances to justify considering the new information; and

   (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

4. In the impugned paragraph 5, which I have set out above, the Authority refers to country information reports that were not before the delegate. The Authority considers this to be new information. The Authority was satisfied this information had been provided in response to the delegate’s findings in its decision, which the applicant did not have the opportunity to respond to previously. The Authority then discusses that information and concludes there was no other supporting corroborative credible evidence to indicate that the closure of his tea shop was due to the events in 2000. The Authority then states:

   I am not satisfied that, had the delegate had the above country information before him, that it would have impacted on the outcome of the decision. I am not satisfied there are exceptional circumstances to consider this country information.

5. I again simply state that this reasoning is not particularly clear as to which limb the Authority was referring to and found. In considering s.473DD of the Act, it is to be noted that the requirements are cumulative between s.473DD(a) and (b) of the Act. The orthodox basis upon which a consideration is taken in relation to purported new information is, firstly, to look whether or not the requirements of either s.473DD(b)(i) or (ii) of the Act are satisfied. If they are satisfied, the Authority then goes on to consider whether or not there are exceptional circumstances required under s.473DD(a) of the Act to justify the reception and consideration of the new information.

6. The Authority concluded in this case that the country information reports that were not before the delegate was, in fact, new information, in that they were provided in response to the delegate’s decision that the applicant did not have the opportunity to respond to. What the Authority does not say is whether or not it was then satisfied precisely whether or not it was not, and could not have been, provided to the Minister before the Minister made the decision. That appears to be implicit in the outcome.

7. Whilst it is not overly clear, the statement appears to satisfy the requirements of s.473DD(b)(i) of the Act. Both the applicant and the first respondent in the appeal proceed upon the basis that the Authority found this subsection was, indeed, satisfied. The Authority then went on to consider whether or not the new information was such that there were exceptional circumstances to consider receiving it in accordance with

   
   

   s.473DD(a) of the Act. The Authority concluded there were not, but in doing so, the Authority made reference to the fact that it was not satisfied that, had a delegate had the information before it, that it would have impacted on the outcome of the decision.

8. This wording appears to be a reference to the requirements of

   
   

   s.473DD(b)(ii) of the Act, although this information was in the nature of a country information report and it was not credible personal information. The applicant suggests the Authority misinterpreted s.473DD(b) of the Act in that the requirements of (i) and (ii) are in the alternative. Having found (i), the Authority should have then merely proceeded to look at whether or not there were exceptional circumstances. It was not permissible, according to the applicant, to make reference to any of the material referred to in s.473DD(b)(ii) of the Act.

1. In this case, it did, in that it looked at whether or not it would have made a difference. The first respondent submits that there is nothing exceptional in this. The first respondent submits that whether or not it would have made a difference was merely part of the overall mix in considering whether or not there were exceptional circumstances. The first respondent submits to the Court that exceptional circumstances, because of the nature of the words, are incapable of being precisely defined. I have to decide whether or not the actions of the Authority are such that there is jurisdictional error.

2. I am not satisfied to the proposition that has been put to me by the applicant. I am not satisfied that the consideration of whether or not the new country information would have changed the delegate’s decision was jurisdictional error. I am satisfied it simply fed into the Authority’s decision as to whether or not there were exceptional circumstances.

3. While it would have been preferable for the Authority to have been clearer in its reasons as to whether the provisions of s.473DD(b)(i) or (ii) of the Act were satisfied or being considered as to whether or not there were exceptional circumstances. I am satisfied that the approach adopted was not so erroneous as to justify jurisdictional error.

4. In the absence of a finding that the information being considered was credible personal information, I cannot be satisfied that the Authority engaged with the provisions of s.473DD(b)(ii) of the Act. Rather, having found in the positive in relation to subsection (i), it considered whether or not there were exceptional circumstances to justify considering the new information. The Authority found there were not. I am further satisfied that the proposition being put to the Court by the applicant ignores the possibility, if it might occur, of new information which might satisfy the circumstances of both s.473DD(i) and s.473DD(ii) of the Act.

5. Whilst one can, not necessarily easily, think of circumstances where it may be the case, I do not suggest that there would never be the case that there would be information which might satisfy one or the other. Whilst the section talks about it being in the alternative “or”, one can think of possibilities that it might satisfy both.

6. I also accept the first respondent’s third proposition that, even if there was an error in the Authority’s reasoning, I am satisfied that that error was not material to the ultimate decision to affirm the delegate’s decision. The Authority clearly rejected the applicant’s claims that the authorities in Iran closed down his tea shop because of the March 2000 incident.

7. The Authority did not accept that the applicant had provided a credible account of what had happened to him subsequent to the March 2000 incident. The Authority found it was not satisfied that the applicant was of any further interest to Iranian authorities or that the authorities had an open file in relation to him as a result of the March 2000 incident.

8. I agree with the first respondent that the argument applied by the applicant in his submissions, in support of which he cited country information reports, was dependent upon factual premises which had been rejected.

9. It follows that no amount of consideration of those reports, which the applicant concedes were not personal to him and were not personal credible information, could have altered the Authority’s actual findings that I have said, as set out above.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  17 March 2020