CJL17 v Minister for Immigration
[2018] FCCA 3131
•31 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJL17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3131 |
| Catchwords: |
| Legislation: Migration Act 1958 (Cth), ss.359A, 424A |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 Kaur v Minister for Immigration & Border Protection [2013] FCA 1333 |
| Applicant: | CJL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1712 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 31 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Arch |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the First Respondent: | Mr T. Reilly of Counsel |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to file in Court a Further Amended Application.
The decision of the Second Respondent made on 4 May 2017 affirming the decision of the Delegate of the First Respondent made on 12 May 2015 not to grant to the Applicant a Protection (Class XA) (Subclass 866) visa is quashed.
The Second Respondent is to determine according to law the Applicant's application for review of the said decision of the Delegate.
The First Respondent is to pay the Applicant's costs of the proceeding in the sum of $7,467.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the First Respondent have up to and including 27 November 2018 to file any Notice of Appeal in the Federal Court of Australia from the above orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1712 of 2017
| CJL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
The Applicant is a male citizen of Iran aged 38 years, having been born on 29 January 1980.
By Further Amended Application filed in Court on 31 October 2018, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 4 May 2017 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 12 May 2015 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on a Student (Class TU) (Subclass 573) visa on 23 February 2013 and applied for a Protection visa on 6 May 2014. He is married with no children. His claims to protection as made in his Protection visa application form were set out in answer to questions 37, 38 and 39, as follows:
37.Why did you leave that country?
Initially, I intended to come and study in Australia. Later on, during the Quran Exhibition in Tehran (4th of July to 6th of August) I faced serious conflicts with the authorities. I learned that I was banned from leaving Iran on an order from the Ministry of Intelligence. If I had not left Iran, I would have definitely imprisoned and tortured, and maybe killed by the Iranian Intelligence officers.
38.Have you experienced harm in that country?
Well it depends how the term ‘harm’ is interpreted. During the Quran Exhibition in 2013, I was called for and interrogated by the Intelligent Officers of the Ministry of Islamic Culture in Iran. The fear of further interrogation and imprisonment in the Islamic Government’s jails or in the Ministry of Intelligence gave me, my family, and my wife so much mental torture and harm.
39.What do you fear may happen if you go back to that country?
If I return to my country, I am sure I will be arrested and put in jail. My brother and one of my friends have told me that they want me back so badly to Iran.
The Applicant further claimed that while he was in Year 10 at High School in Iran he started to work as a typist in the office of a Mr Derayti (who was associated with President Khatami) and became good friends with Mr Derayti’s son. The Applicant’s job was to type correspondence between Mr Kahtami and Mr Kahtami's headquarters in Tehran and Khorasan.
The Applicant’s claims were summarised by the Delegate in his Decision Record referred to at [7] below as follows:
• While he was in Year 10 at high school, he started to work as a typist for Mr Derayati's office and became good friends with his son.
•His job was to type correspondence between Mr Khatami's headquarters in Tehran and Khorasan.
•On the night of the election, the police in Taghi square arrested him but he managed to run away.
•In 2007, he was presenting his educational software which is in English at the Digital Media expo; however police arrived and confiscated his materials.
•He was accused of having 'Voice of America' products in his teaching materials and that he cooperated with Iranian satellite TVs and media based overseas.
•He was freed after he agreed not to have any relationship with foreign media.
•He became very cautious from 2000 to 2013 and in 2012, he made a request for publication permission from the Ministry of Islamic culture, but he discovered that he was blacklisted.
•In 2009, he submitted a plan to the ministry to run an educational section for astronomy and moon sighting in Quran exhibition and in 2010 his plan was approved.
•His section was greatly welcomed and he was given a certificate of achievement by the Minister.
•He was asked to continue his project m 2011 and submit a more comprehensive plan to the Ministry.
•Two weeks before the exhibition stated he was told that his plan had been given to the Shahabdolazim Astronomy centre, an organisation belonging to a man named Ayatollah Rayshahri.
•He lodged a complaint, but he was threatened that he would be in serious trouble if he pursued the matter.
•He continued to pursue the matter because he worked on it for a long time, and he was later interrogated by the Ministry of intelligence and warned him of consequences if he continues to have conflicts with Mr Rayshahri.
Relevant Statutory Criteria for the Grant of a Protection Visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of the Delegate
The Applicant attended an interview with the Delegate on 3 October 2014. In his Decision Record the Delegate found that the Applicant had fabricated parts of his claims and did not find him to be a credible witness when he asserted that he had been targeted by influential Government officials in Iran.
The Delegate found that Australia did not owe protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and refused to grant to him a Protection visa.
Decision of the Tribunal
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 31 May 2015 and appeared before the Tribunal on 22 February 2017 to give evidence and present arguments with his registered migration agent.
It is pertinent at this point to record that either prior to, or more likely at, the commencement of the Tribunal hearing, the migration agent acting for the Applicant gave to the Tribunal certain undated submissions and supporting materials. The submissions recited that the Applicant had been operating a travel agency at Merrylands in Sydney since 2016 by the name of Arian Travel and stated that:
One of the tours that he has been selling in Australia is a tour to Israel. Travelling to Israel is one of the things the Islamic regime cannot tolerate and will put his life in extreme danger if he returns to Iran.
The supporting information that was submitted to the Tribunal with these submissions included a copy of a travel itinerary in Israel headed “Jerusalem Package”, and copies of what the parties seem to agree to have been airline tickets for return travel from Turkey to Israel.
At [10] of the Decision Record of the Tribunal the Applicant's basic present circumstances were set out, and further details of the present position of the Applicant were given at [11] – [13].
At [14] of its Decision Record the Tribunal summarised the Applicant's claims as being that he was at risk of serious or significant harm in Iran because of his real or imputed political opinions, his associations with people of the Baha'i and Jewish faiths and the possible perception that he has abandoned his faith.
From [15] – [73] the Tribunal considered the Applicant's claims under some eight headings.
a)Delay in leaving Iran.
b)Delay in applying for protection in Australia.
c)Association with opposition groups and leaders.
d)Issues relating to the applicant’s software CDs.
e)Participation in the International Holy Koran Exhibition.
f)Views on politics in Iran and activities in Australia.
g)Views on Islam and association with Baha’is in Australia.
h)Perceived association with Israel.
Grounds of Attack on Tribunal Decision in this Court
The Grounds for asserting that the decision of the Tribunal suffers from jurisdictional error are set out in the Further Amended Application filed in Court at the hearing, and are as follows:
Ground 1: The Second respondent committed jurisdictional error by denying procedural fairness to the applicant.
Particulars:
1. The Second respondent failed to comply with its duty under section 424A of the Migration Act to give the Applicant clear particulars of information that the Tribunal relied upon as part of the reason for affirming the decision under review and failed to invite the Applicant to comment on or respond to the information.
2. The Tribunal stated at paragraph 71 of its decision that it had reviewed information from the Applicant’s business Website following the hearing and identified at paragraph 72 that it had relied on information that it had derived from that review as part of the reason for rejecting the applicant’s claim that he would be subject to persecution if he were forced to return to Iran on the basis of a perception of his association with Israel.
3. The Tribunal did not give the applicant clear particulars of the information it had relied upon as a result of its review of the Applicant’s Website, nor did it give the Applicant an opportunity to respond to, or comment upon, that information before rendering its decision to affirm the decision of the Department to refuse the Applicant’s application for a Protection visa.
Ground 2: The Second respondent committed jurisdictional error by ignoring relevant material.
Particulars:
1. In rejecting the applicant’s claim that he would be at risk of harm in Iran by reason of his perceived association with Israel, the Tribunal failed to take into account evidence corroborative of the applicant’s claim that he had been involved in arranging tours of Israel by clients of his travel agency business, namely copies of airline tickets for travel to Israel
(emphasis added)
Consideration
Ground 1
This Ground relates to the last of the seven matters considered by the Tribunal under the heading "Perceived Association with Israel". It was the Applicant's case that he had opened a travel agency in Merrylands in 2016 and had been selling tours to Israel.
At [70] of the Decision Record, the basic facts in relation to the operation of the travel agency as claimed by the Applicant were set out by the Tribunal. The Tribunal noted in the last sentence of this paragraph as follows:
[70]In support of this claim the applicant provided documentation which he claimed related to a package tour which he had arranged for 20 people to travel to Israel.
Then the Tribunal recorded at [71] as follows:
[71]Following the hearing I reviewed the website for Arian Travel. The home page advertised travel within Australia and to Thailand, but contains no information which suggested that the agency sold tours to Israel. I also reviewed the agency's Facebook page, but it contained no mention of travel to Israel.
One might be forgiven for thinking that the Tribunal, in carrying out such an internet search, was pretty clearly indicating that any information found would be at least “… a part of the reason for affirming the decision that is under review” under s.359A of the Act.
Then at [72] the Tribunal went on to record as follows its conclusion that it did not accept that the Applicant had been involved in arranging tours for Baha'is to visit Israel since opening the travel agency in 2016, and specifically went on to refer to there being nothing on Arian Travel's website which suggested that the Applicant promoted or specialised in travel to Israel, and that the only international travel mentioned on Arian Travel's website was to Thailand.
[72] I do not accept that the applicant has been involved in arranging tours for Baha'is to visit Israel since opening a travel agency in 2016. As noted above, there is nothing on his business website which suggests that he promotes or specialises in travel to Israel. The only international travel mentioned is to Thailand. I find it unlikely that groups of Baha'is would choose his travel agency to arrange travel to Israel rather than a company with experience in the area. More significantly, I found his evidence at the hearing regarding these trips and the reaction of his Iranian clients to be vague and unconvincing. For example, he suggested that his involvement in these tours involved significant contact with Israel, but when pressed for details he said that all arrangements were made through someone in Australia who had contacts in Israel. In addition he claimed that he was warned to be careful by a client, but could not recall who had issued this warning. I find this claim to be another example of the applicant concocting claims to enhance his claim for protection in Australia.
(emphasis added)
Subsequent to the Tribunal hearing on 22 February 2017 it sent a letter dated 2 March 2017 to the Applicant pursuant to s.424A of the Act (s.424A letter), which raised a number of issues with which it was concerned and which would, subject to the Applicant's comments or response, be the reason or part of the reason for affirming the Delegate's decision under review. However, the s.424A letter made no mention of and invited no comment on the Tribunal’s review of the Arian Travel website and Facebook page.
The Applicant's registered migration agent sent what I infer to be a response to the s.424A letter by email dated 21 March 2017, which attached a number of documents, including further copies of the Jerusalem Package and the airline tickets referred to in [10] above.
Ground 1 asserts that the Tribunal breached its obligations under s.424A of the Act and I am of the view that this Ground is made out for the following reasons.
First, in my view the website and Facebook page and the information on them was "information" in the ordinary meaning of that word. It is clear from the Decision Record of the Tribunal at [71] that the website and the Facebook pages comprised, contained or conveyed "information" in the ordinary meaning of that word. The second sense given by the of the Oxford English Dictionary (2nd Ed, online), namely 2(a) is as follows:
Knowledge communicated concerning some particular fact, subject, or event; that of which one is apprised or told; intelligence, news.
In this respect, see also the decision of Mortimer J in Kaur v Minister for Immigration & Border Protection [2013] FCA 1333 at [45], and SZUMY v Minister for Immigration (2015) 296 FLR 85 at 98 [60] per Judge Smith of this Court.
However, the pertinent question is whether in the circumstances of this case the information on the website and Facebook page was also “information” for the purposes of s.424A of the Act, and in this connection, the Minister relies on the passage from the judgment of the plurality in SZBYR v Minister for Immigration (2007) 235 ALR 609 (SZBYR), where at 616 [18] it was said as follows:
[18] Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
(emphasis added and citations omitted)
Mr Reilly of Counsel who appeared for the Minister submitted that the Tribunal's reasoning at [71] – [72] of its Decision Record merely involved a reliance upon "an absence of evidence", which is therefore not “information” within s.424A, and he cites and relies also upon the decision of the Full Court of the Federal Court in SZTGV v Minister for Immigration & Border Protection (2015) 229 FCR 90 (SZTGV) and in particular at 124 [134].
With respect, I cannot accept Mr Reilly's submission. In my view, the website information and the Facebook information was evidentiary material which constituted “information” that at the very least "undermined" the Applicant's claims to be a person to whom Australia owed protection obligations.
The Applicant's claim was that he had since 2016 been selling airline packages and tickets to Israel, and that if he were to return to Iran this would cause him serious problems. However, the website and Facebook page did not corroborate the claim of selling airline packages and tickets to Israel. The information obtained from the website and the Facebook was evidentiary material, albeit in a negative sense, which had a tendency to negate the Applicant’s claim that he was selling airline packages and tickets to Israel, and which at [72] of its Decision Record the Tribunal effectively viewed as being detrimental and adverse to the Applicant's case in this regard and as undermining the Applicant's claim and constituted a part of the reason for the Tribunal affirming the Delegate's refusal of a Protection visa to the Applicant. Accordingly, the Tribunal was bound, pursuant to s.424A of the Act, to give the negative information concerning the website and Facebook page to the Applicant, either in its s.424A letter or otherwise. Evidentiary material comprising information proving or tending to prove a negative does not constitute and is not to be equated with an “absence of evidence”.
I note that in the course of revising the above reasons delivered at the hearing I have found what I consider to be confirmation of my reasoning and views in relation to this Ground in the judgment of Perry J in Kaur v Minister for Immigration & Border Protection (2016) 245 FCR 296 (Kaur). In that case the appellant had submitted that the Tribunal had failed to comply with s.359A of the Act (the analogue section of s.424A) in failing to provide clear particulars and an opportunity to comment on computer records accessible by the Tribunal (PRISMS record) which showed that the appellant was not currently enrolled in any course of study. The primary Judge had accepted the Minster’s submissions that the PRISMS record was not “information” required to be disclosed to the appellant under s.359A because it represented merely an absence of evidence that the appellant was enrolled to study, not evidence that he was not enrolled. However, Perry J rejected this approach as not being consistent with the construction adopted by the High Court in SZBYR with respect to the analogous obligation under s.424A and concluded at 306 [44] of Kaur as follows:
[44] So understood it is apparent that the PRISMS record was not a mere absence of evidence on an essential statutory criterion. It was evidentiary material showing that there was no record of any current enrolment by the appellant in that database, contrary to the statutory criterion requiring that there be enrolment. That evidentiary material in turn formed part of the reason for the decision that the appellant had failed to satisfy that statutory criterion and therefore for affirming the decision on review. The fact that the evidentiary material was used by the Tribunal as, in effect, “proof of a negative”, that is in support of its finding that there was an absence of evidence in the appellants’ favour, did not exempt the Tribunal from complying with s 359A and affording the appellants an opportunity to comment on the adverse evidentiary material.
In my view, the absence from the website and Facebook page of any reference to airline packages and tickets to Israel is not correctly or aptly to be described as a mere "absence of evidence", as that expression is used in SZBYR by the High Court or in SZTGV by the Full Court.
It follows, in my view, that the Tribunal in the circumstances failed to comply with its obligations under s.424A of the Act and Ground 1 successfully establishes jurisdictional error.
Ground 2
In my view, this Ground fails to establish jurisdictional error. I have referred to the last sentence of [70] of the Decision Record of the Tribunal and quoted it above at [16].
Then at [73] of its Decision Record, the Tribunal stated as follows:
[73] In reaching this conclusion I have considered the itinerary and other documents provided by the applicant to support this claim. However, they were all prepared by the applicant himself and I have given them no weight.
I note that in my view the reference in the last sentence to the documents being prepared by the Applicant himself is to be understood as meaning that the documents were prepared by or came from the Applicant's business, being Arian Travel.
I do not consider that the Applicant has established on the balance of probabilities that the reference to "other documents" in [73] is not a reference to what the parties accept are airline tickets and which may be seen at pages 376 and 377 of the Court Book.
Acting for myself, I would not have found those pages to actually be airline tickets from any particular airline but rather Arian Travel's own document, which recapitulates or sets out the details for intended air travel on Turkish Airlines. However, the parties appear to agree that they are airline tickets and I act on that basis.
In my view, on the balance of probabilities, the proper inference is that at [73], when the Tribunal stated that it had considered "the itinerary and other documents", it was referring (when it referred to the “other documents”) to the copies of the airline tickets which had been submitted by the Applicant to the Tribunal on two separate occasions. The Applicant has not discharged his onus of establishing that the airline tickets were ignored.
In other words, I am of the view that the Applicant has not established that the Tribunal, as asserted by Ground 2, ignored relevant materials, being the airline tickets. I would not infer that the Tribunal overlooked or failed to consider the airline tickets simply because there is no express reference to airline tickets in the Decision Record of the Tribunal. It is clear law that the Tribunal is not bound to refer in its Decision Record to every piece of evidence and every contention made by an applicant and a failure to refer to an item of evidence does not necessarily mean that it has not been considered: Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at 73 – 74 [27] per Katzmann, Griffiths and Wigney JJ.
Accordingly, Ground 2 fails to establish jurisdictional error.
Conclusion
Nevertheless, in the circumstances, because Ground 1 has been made out, the decision of the Tribunal is to be set aside.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 6 November 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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