CHA16 v Minister for Immigration

[2017] FCCA 2319

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2319

Catchwords:
MIGRATION – Judicial review – protection visa – no jurisdictional error.

Legislation:

Migration Act 1958, ss.5, 473BA, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD

ABJ17 v Minister for Immigration (2017) FCCA 1240
Craig v State of South Australia (1995) CLR 163
Minister for Immigration v Yosuf [2001] 206 CLR 323

Applicant: CHA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 751 of 2016

Judgment of: Judge Howard

Hearing date: 15 August 2017

Date of Last Submission: 15 August 2017

Delivered at: Brisbane

Delivered on: 15 August 2017

REPRESENTATION

Counsel for the Applicant: Mr Karp

Solicitors for the Applicant: Fisher Dore Lawyers

Counsel for the First Respondent: Mr Wheatley

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the application filed 17 August 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 751 of 2016

CHA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 15 August 2017 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

1. The applicant in this case arrived in Australia on 29 October 2012 by boat. The applicant, to use the terminology drafted in the legislation, was an “unauthorised maritime arrival.” The applicant was actually born in Iraq. Having arrived on 29 October 2012, it was not until May of 2015 that a delegate of the Minister invited the applicant to apply for a temporary protection visa, and this was pursuant to the fast track assessment process. The fast track assessment process applied to persons who arrived by boat between 13 August 2012 and 1 January 2014. In section 5 of the Migration Act, a fast track applicant is defined.

2. It was actually on 15 June 2015 that the applicant then lodged an application for a temporary protection visa and stated his occupation as a civil engineer and his religion as a Shia Muslim.  To summarise, there were two basic claims for the protection visa articulated by the applicant.  The first was that he would be targeted if he returned to Iraq because he had worked previously as a contractor for a company known as the New Technical Company, referred to in the material as NTC.  He had worked for that company between January 2006 and August of 2007.

3. That company apparently had been contracted to or associated with the British Army during the invasion of Iraq.  This is all referred to in the court book, which is exhibit 1.  In addition, the other claim to which I will refer is a claim by the applicant in relation to the fact that he had been a businessman or professional person interested in establishing a brick factory, which apparently attracted the ire of some local council members who were associated with Iranian businessmen who were opposed to the idea of a brick factory being built or established or reopened; I assume it was going to interfere with their own business.

4. The issue in relation to the NTC as referred to by the applicant was that he was concerned about being threatened, intimidated or otherwise harmed by a group known as the al-Mahdi Army, who apparently had been seeking out and persecuting people who had worked at NTC because that was seen as – so I gather – a group that had collaborated, as it were, with the British Army during the invasion of Iraq. 

5. The application was made on 18 June 2015 by the applicant. A delegate of the Minister gave a decision on 8 June 2016. That particular decision, by the special terms of this division, and as part of the Migration Act, namely part 7AA, the fast track review process in relation to certain protection visa decisions – in the event that the original decision goes against an applicant, the Minister must refer a fast track reviewable decision, to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made. Section 473BA of the Migration Act gives a simplified outline of part 7AA.

6. Of particular note in that simplified outline of the part is the very first sentence, where it states:

   “This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.”

7. The Immigration Assessment Authority therefore reviewed the decision of the delegate.  The IAA, which is what I will shorthand the Immigration Assessment Authority to, affirmed the decision of the Minister’s delegate to refuse a temporary protection visa to the applicant.  That decision was on 20 July 2016.  The applicant then filed an application for judicial review in the Federal Circuit Court of Australia on 18 August 2016.

8. At the hearing, which took place this morning in Brisbane, leave was granted to the applicant to file an amended application. The grounds of the amended application state:

   “The grounds originally pleaded are entirely replaced by the following:

   1. The IAA misconstrued and therefore misapplied elements of s, 473DD(b) of the Migration Act.

   Particulars

   (a) The IAA erred in construing the satisfaction required by that provision as requiring that the applicant give an explanation why it should be satisfied of either or both the matters in s.473DD(b)(i) and (ii).

   (b) The IAA should have considered should have considered whether the “new information” that it found had been submitted could of itself have provided the required satisfaction.

   (c) The IAA erred in construing s. 473DD(b)(i) and (ii) by identifying the date ofa n event reffered to or contained in “new information” with the date that it could have been provided to the Minister or a delegate.”

9. There were initially two grounds, but the second was deleted.  Mr Karp of counsel appeared on behalf of the applicant, and Ms Wheatley of counsel appeared on behalf of the Minister.  The case required a detailed consideration of various sections of part 7AA of the Act.  The relevant sections state:

   “473CA  Referral of fast track reviewable decisions

   The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

   473CB  Material to be provided to Immigration Assessment Authority

   (1)  The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a)  a statement that:

   (i)  sets out the findings of fact made by the person who made the decision; and

   (ii)  refers to the evidence on which those findings were based; and

   (iii)  gives the reasons for the decision;

   (b)  material provided by the referred applicant to the person making the decision before the decision was made;

   (c)  any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

   (d)  the following details:

   (i)  the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

   (ii)  the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iii)  the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iv)  if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

   (v)  if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

   (2)  The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

   473CC  Review of decision

   (1)  The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

   2)  The Immigration Assessment Authority may:

   (a)  affirm the fast track reviewable decision; or

   (b)  remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

   473DA  Exhaustive statement of natural justice hearing rule

   (1)  This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

   (2)  To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

   473DB  Immigration Assessment Authority to review decisions on the papers

   (1)  Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

   (a)  without accepting or requesting new information; and

   (b)  without interviewing the referred applicant.

   (2)  Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

   Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

   473DC  Getting new information

   (1)  Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

   (a)  were not before the Minister when the Minister made the decision under section 65; and

   (b)  the Authority considers may be relevant.

   (2)  The Immigration Assessment Authority 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.

   (3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)  in writing; or

   (b)  at an interview, whether conducted in person, by telephone or in any other way.

   473DD  Considering new information in exceptional circumstances

   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 that 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.

10. Looking at 473DD, when the IAA conducts the fast track review, it must not consider any new information unless the matters in subparagraphs (a) and (b) are complied with.  This particular case before the Court turned upon the consideration of subsection (b) and whether there had been an error, in the nature of a jurisdictional error, by the IAA in its review and in its decision.  In the court book at page 128, there is included an email from the applicant to the IAA.  The email is dated Friday, 1 July 2016, at 10.09 pm.  That email states:

    Dear Sir/Madam...

    I am sending this email regarding the decision made by the Immigration Department that rejected my claim as a asylam seeker and as the descion maker stated in his statement that he is not satisfied with reasons i had provided and made me fled my country and seeking refugee in Australia.

    decision maker stated that my city basrah is safe and dominated by Muslim shai group and the sectarian conflict is relatively low and also decision maker added to that statement that iam not in the interest of AlMahadi militia due to my employment which is i completely disagree with his findings first ,the decision made based on the fact that when i submitted my claim i was seeking refugee from AlMahadi militia and they are Shia Muslims and basrah city dominated by shia as the decision maker stated that supported my claim not against it.

    second point he add to his findings that iam not in the interest of that specific group , I will attach to this email the original translated (death certificate) for one of my colleague who worked with me at that time and when he returned to Basrah he had been killed, that is clearly show they still looking for the people how listed in their death list .

    i am seeking refugee in this country for one reason is to protect my life as human being how has the right to live and practice his freedom .

    kind regards”

11. It is conceded that the email had two attachments.  One was an untranslated copy of a document, being a death certificate of a man in Iraq whose name is Rihad Alhasmali, and the other was the original version.  So there is a translation from Arabic, and there was the original Arabic version of that death certificate.  That particular man who died – it is said that he was a colleague of the applicant, and he had worked for the NTC, and he died from gunshots to the head and chest according to the English translation at page 129 of the court book, and his date of death was 23 February 2016.  The document – the translated document on its face says that it was dated 30 June 2016 - translated from Arabic 30 June 2016.  The contention on behalf of the applicant is as stated in his written submissions and also as explained further today by Mr Karp of counsel. The question or the submission was that an error had occurred.

12. The parties in this case both seem to concede that the email and the two attachments were new information. An error has occurred, so says the applicant, because the translated version of the death certificate is dated 30 June 2016.  The translated version is new information.

13. The applicant says – (and this is my summary of the argument, although it is stated more clearly and more explicitly in the written submissions) that because the translated document is dated 30 June 2016 and because the decision under review;  that is, the delegate’s decision;  was dated 8 June 2016, that this is therefore new information that was not and could not have been provided to the Minister before the delegate made the decision, and furthermore it 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.

14. The Court does have the benefit of the transcript from the delegate’s interview or hearing.  I do note that at page 39, lines 30 to 33, the delegate told the applicant, who then had the benefit of an interpreter,  that:

    “If further information is provided to the department, it may be taken into account prior to a decision being made, so if you find any other information that you thought is useful, as long as I haven’t made a decision about your case, you can also provide it to me to look at.”

15. That interview was on 28 September 2015. It is annexed to the affidavit of Terrence William Fisher filed on 10 August 2017.  So far as the Minister is concerned, it is submitted on behalf of the Minister that, whilst the email and the two attachments, being the translated version of the death certificate and the untranslated version – whilst together they may amount to new information, the problem for the applicant, so says the Minister, is that the two documents should, in truth, be considered as one document.

16. They convey the same message – using my paraphrase – they convey the same message, but they are written in different languages, one in Arabic, one in English.  In support of that submission, the Minister has referred the Court to a decision of the Federal Circuit Court of Australia; in particular, a decision of His Honour Judge Driver, in ABJ17 v Minister for Immigration (2017) FCCA 1240. In fact it was a hearing that took place just over two months ago. It was heard on 8 June 2017, and judgment was delivered on the same day.

17. For present purposes, the relevant paragraph from Judge Driver’s decision is paragraph 40, which states:

    “Secondly, the summons, being a document containing certain information, was a “document” that the applicant had given to the delegate prior to a decision being made on his visa application and was, therefore, before her. The form of the document before the delegate was different, as it was in a foreign language. But that is of no relevant consequence for the purposes of s.473DC(1). The word “document”, as it appears in s.473DC(1), needs to be given a sensible construction.  It is an ordinary English word that should be given its ordinary meaning. It cannot merely be a reference to a piece of paper (or some other format) devoid of content; rather, it refers to “[s]omething written … which provides evidence or information or serves as a record.”[1]  If that were not so, a duplicate or reproduction in a new format of a document that was before the Minister that is given to the Authority would be characterised as new information even though it also formed a part of the review material.  That would be an absurd result, but could be the consequence of the applicant’s construction of s.473DC(1) being adopted. There is no difference in substance between that scenario and the present case. Indeed, the applicant’s representatives in the present case provided to the Authority a duplicate (actually a reproduction in colour format) of the original summons.”

    [1] Shorter Oxford English Dictionary (6th ed, 2007), “document” (noun), sense 3

18. In that particular case, a document had been provided to the delegate.  It was, in that particular case, an untranslated version of a document.  Then before the IAA – what was provided was a translated copy. I reiterate what  His Honour stated in paragraph 40:

    The word “document”, as it appears in section 473DC(1), needs to be given a sensible construction.  It is an ordinary English word that should be given its ordinary meaning.  It cannot merely be a reference to a piece of paper, or some other format, devoid of content; rather, it refers to something written which provides evidence or information or serves as a record.

19. His Honour also said:

    “If that were not so, a duplicate or reproduction in a new format of a document that was before the Minister that is given to the authority would be characterised as new information even though it also formed a part of the review material.”

1. The upshot of the decision of Judge Driver, at least insofar as it relates to this point, therefore, is that a document which, on the one hand, was in English, and another document containing the same information which may be in a foreign language – that these two, as it were, pieces of paper, ought nonetheless be seen as one document.  That seems to be the upshot of the decision.  That decision was only handed down a couple of months ago, and, in my view, it is a correct interpretation.

2. That being the case, the correct date to have regard to (in relation to these proceedings), then, is the date of issue of the document itself, which was said, on its face, to be 23 February 2016.  Now, the difficulty for the applicant in this case is that the authority was not satisfied by the applicant that the new information was not and could not have been provided to the Minister before the Minister made the decision under section 65, and the authority was not satisfied – that is to say, not satisfied by the applicant – that the new information was credible personal information that was not previously known, and, had it been known, may have affected the consideration of the referred applicant’s claims.  The email from the applicant dated 1 July 2016 was the document which attached the two copies of the death certificate, one in English, one in Arabic.

3. Mr Karp, on behalf of the applicant, submitted that he; that is, the applicant;  having been told by the authority to “send in any further information that you’ve got”, did not do so until the 1 July of email, and this Court should look at the matter in this way – that the authority should have at least inferred that the applicant didn’t have the information prior to that date. But I think that the submission made by Ms Wheatley in reply is correct, that the decision itself deals with this aspect.

4. Paragraphs 4 and 5 of the decision, which appear at page 135 of the court book state: 

   “4. On 4 July 2016 the applicant provided a submission to the IAA stating he completely disagreed with the delegate's findings, however with no supporting details. Also provided was new information dated 23 February 2016 in the form of an Iraqi death certificate for a work colleague of the applicant who he states was killed when he returned to Basra.

   5. The new information pre-dates the delegate's decision. The applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the ,consideration of the applicant's claims. I am not satisfied in relation to the matters set out in s.437DD(b) of the Act and am prevented from considering the new information.”

5. The conclusion reached was that the new information predated the delegate’s decision, and the applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate or why it may be regarded as credible personal information that was not known and, had it been known, may have affected the consideration of the applicant’s claims.  In the last sentence of paragraph 5 in the decision, the authority concludes:

   “I am not satisfied, in relation to the matters set out in section 473DD(b) of the Act, and am prevented from considering the new information.”

6. This Court is not permitted to conduct a merits review.  The function of this Court is to establish whether the decision that was made by the authority has been affected by jurisdictional error.  The terms of the grounds, looking at subsections (a), (b) and (c), it seems to me that the argument put forward on behalf of the applicant in this particular case cannot be maintained; it ought not be successful.  It is not successful.

7. The problems are as I have outlined. The information, while it was new information, is nonetheless, on the face of it, dated prior to the date of the delegate’s decision. The applicant did not satisfy the IAA of the matters in section 473DD(b)(i) or (ii). So where, in subsection (b) of the grounds, it refers to:

   “The IAA should have considered whether the “new information” that it found had been submitted could of itself have provided the required satisfaction”

   The reality is that the decision reached was that the IAA, was not satisfied. And, as I have already said, it is not permissible for this Court to review the merits.

8. My view in that regard is strengthened by the conclusion I have reached after having regard to the decision of Judge Driver in ABJ17 v Minister for Immigration (supra). As I said during the course of argument today, it may have been the case that, for instance, the applicant could have said to the IAA, perhaps in his email of 1 July 2016, that he was providing these two new documents;  he had only just become aware of the situation;  he had only just obtained them – provided something.

9. That was, perhaps, one way that he could have put in front of the authority an argument which might seek to satisfy the authority that he was not and could not have provided the new information earlier to the Minister, and it was one way that he may have been able to convey to the IAA that he did not previously know about the information, but they are really matters of conjecture.  That did not occur here.  What occurred is as I have already outlined, and I think, having regard to the reasons that I have provided, and noting that I accept the submissions on behalf of the Minister in relation to those issues, I have come to the conclusion that the application should be dismissed.

10. I do note that I was referred to the decision in Minister for Immigration v Yosuf [2001] 206 CLR 323– in particular paragraph 82 and the reference to Craig v State of South Australia (1995) CLR 163. For the reasons that I have stated, though, I do not consider that the IAA in this particular instance has fallen into error, and I have come to the conclusion that no jurisdictional error has occurred, and the application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  22 September 2017