CKY19 v Minister for Immigration and Anor (No.2)

[2020] FCCA 1776

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKY19 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 1776

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Protection visa – where a record in the possession of the Secretary was not provided to the Authority – whether such non-compliance with s 473CB of the Migration Act 1958 (Cth) by the Secretary amounted to jurisdictional error – jurisdictional error dependent on whether the applicant established the necessary materiality in terms of the possibility that the document could realistically have given rise to a different outcome in the conduct of the review – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), 5H, 36, 473CB, 473DD, 476

Applicant: CKY19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1513 of 2019

Judgment of: Judge Street

Hearing date: 1 July 2020

Date of Last Submission: 1 July 2020

Delivered at: Sydney

Delivered on: 1 July 2020

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Sydney West Legal and Migration

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Leave is granted to the applicant to rely upon the further amended application filed on 17 June 2020.

2. The further amended application is dismissed.

3. The applicant pay the first respondent’s costs including reserved costs in the total amount of $7,467.00.

DATE OF ORDER: 1 July 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1513 of 2019

CKY19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Pt 7AA of the Act made on 7 June 2019, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa. 

2. The applicant was found to be stateless, and his last place of habitual residence was found to be Iran.

3. The applicant was found to be a stateless Faili Kurd who departed from Iran on a fraudulent passport, and as such illegally, and claimed to fear harm from the Iranian authorities. 

4. On 3 May 2019, the Delegate found that the applicant failed to meet the criteria for grant of a Protection visa. On 8 May 2019, the Authority wrote to the applicant explaining that the application for a Protection visa had been referred to the Authority for review and providing the attached facts sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions, dated 28 May 2019, which the Authority expressly referred to in its reasons. 

5. The Authority identified the background to the Protection visa application, having regard to the material given by the Secretary under s 473CB of the Act, and referred to the information provided, being a translated Statement commenting on the Department’s refusal as well as the father’s efforts to regain citizenship in Iraq, and a copy of the applicant’s sister’s White Card which was found not to be new information.

6. There was identified new information in respect of Iraq that the Authority found did not meet the criteria under s 473DD of the Act. 

7. The Authority summarised the applicant’s claims. 

8. The Authority accepted that the applicant was born in Iran but, because of his parents’ status, that the applicant is not an Iranian citizen. 

9. The Authority accepted the possibility that the applicant had provided a fake passport. 

10. The Authority found that the applicant is not a citizen of Iran and that he was not a citizen of Iraq, and found that the applicant is stateless.

11. The Authority correctly identified the relevant law, including in an annexure of applicable law incorporated by pagination. 

12. The Authority found that Iran was the applicant’s country of former habitual residence and is therefore the receiving country for the purpose of the application of the statutory criteria. The Authority also found a home area to which the Authority found the applicant would return in Iran.

13. The Authority referred to the entry interview and the applicant’s education and the applicant’s portrayal of being illiterate and having no education. The Authority referred to the applicant’s written statement in Arabic, indicating that he is not illiterate and that he was educated in Iran. The Authority considered the applicant attempted to downplay the level of education that he has received in an attempt to bolster his claim that he had been discriminated against in Iran.

14. The Authority referred to the applicant’s activities as a member of a martial arts group. 

15. The Authority did not accept the applicant’s claim that his father or relatives were poor. 

16. The Authority referred to the applicant’s claim of being arrested and threatened many times in Iraq. The Authority identified, however, that in dealings with the Department, including the Entry Interview and the Protection visa application and the Protection visa interview, the applicant only referred to one such incident. The Authority referred to the applicant’s claim his father was selling fruit and that local authorities wanted to shut him down, so they knocked over his stand, and identified that the applicant claimed that he and his father were detained for two days after the incident, and that the applicant said that that was the only time he had been arrested. The Authority found this claim to have been arrested and threatened many times was an exaggeration. The Authority referred to doubts in relation to the applicant’s account of the incident being vague and lacking in detail, and the Authority referred to the fact that the applicant had never been convicted of any crime in Iran. The Authority identified that, even if the applicant and his father were detained on one occasion, this did not demonstrate a pattern of adverse attention or discriminatory action against their business. The Authority was not satisfied that the applicant was arrested and threatened ‘many times’.

17. The Authority referred to taking into account the applicant’s level of education, his participation in sport, the ability of the father to support his sons’ travel to Australia, and the one occasion only when the applicant or his family were harassed when he lived in Iran. The Authority found that the applicant exaggerated the level of discrimination and harassment that he suffers as a stateless Faili Kurd in Iran.

18. The Authority referred to country information in relation to those who may be targeted but found that there is no claim the applicant was engaged in relevant activity, either in Iran or Australia, and found the applicant had not been involved in promoting Kurdish cultural or political rights.

19. The Authority found that there was no evidence of any past political activity by the applicant. The Authority referred to the applicant’s lack of any interest, indicating that he would not do so. The Authority did not accept that the applicant faced discrimination amounting to serious harm as a Faili Kurd in Iran and did not accept that he would do so in the reasonably foreseeable future. The Authority considered the chance of the applicant being harmed as an ordinary non‑political Faili Kurd to be too remote to amount to a real chance. The Authority found that the applicant does not face a real chance of harm in Iran by reason of his Faili Kurd ethnicity, or for being a member of a particular social group of Faili Kurds, or an actual or imputed political opinion as being pro‑Kurdish and anti‑regime.

20. The Authority found that the applicant does not face a real chance of harm from the Iranian authorities because his views had become more secularised or for his lack of practice of his religion. 

21. The Authority referred to the applicant’s claim that he left Iran illegally on a fraudulent passport, and the applicant’s claim that he will not return to Iran, and the country evidence that Iran will not accept involuntary returnees. The Authority referred to Department of Foreign Affairs and Trade (“DFAT”) country information in relation to the Iranian government not allowing re-entry by registered refugees if they visit a third country. The Authority also referred to an offence in respect of Iranian citizens for leaving without a valid passport, and found that there is no information that it is an offence attracting prosecution for a non‑citizen of Iran to depart illegally. The Authority referred to the unlikely event that the applicant would voluntarily return to Iran and that the Iranian Government would agree to allow him to return. It was in that context that the Authority found it would be unlikely that the authorities would do so just to prosecute or harass or even deport the applicant on return. The Authority did not accept that the applicant had a profile that would attract adverse attention from the Iranian authorities. The Authority also referred to the applicant having no record of anti‑regime activity when he left Iran and has not involved himself in any political activity in Australia. The Authority found that there is not a real chance of harm to the applicant returning as a failed asylum seeker who left Iran on a fraudulent passport. The Authority also took into account that the applicant has no right to return to Iran. 

22. The Authority found that the applicant does not face a real chance of harm in Iran as a consequence of the data breach in 2014.

23. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and the Authority found the applicant does not meet the criteria in s 36(2)(a) of the Act.

24. The Authority referred to the findings made in relation to the Refugee Convention and expressly referred to the applicant’s illegal departure from Iran and to being a failed asylum seeker who left Iran illegally, and took into account that the applicant may not be able to reregister for the White Card. The Authority referred to the applicant having family still living in Iran, and found that there was nothing to suggest that they would not support the applicant should he return.

25. The Authority was not satisfied that any difficulty the applicant may have in accessing work or health care as an unregistered Faili Kurd would amount to significant harm as defined by the Act. The Authority was also not satisfied on the information before it that the applicant would suffer the death penalty, deprivation of life or torture as an unregistered Faili Kurd. The Authority was not satisfied the applicant faces a real risk of significant harm as an unregistered Faili Kurd.

26. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.

27. The Authority found that the applicant does not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before the Court

1. Ground 2 in the further amended application is as follows:

   2. The Authority’s statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the third respondent Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act.

   Particulars

   a. The Secretary did not, at the time the delegate’s decision was referred to the Authority, consider or form a view on the relevance to the review of certain documents falling within the description of ‘other material’ in s 473CB(1)(c) then in the Secretary’s possession and control, or to take reasonable steps to locate this potentially relevant material.

   b. These documents were the ‘Transferee Interview’ conducted with the applicant on 13 May 2013 on Manus Island.

   c. These documents were not before the delegate and were not part of the domain of documents considered by the Secretary at the time of referral of the delegate’s decision.

2. Mr Gormly, counsel on behalf of the applicant, identified at the hearing that ground 1 was no longer pressed. That was a proper and responsible concession made by Mr Gormly.

3. It is however necessary to identify the factual background in relation to the content of ground 2.

4. There was a subpoena issued by the applicant seeking the production of documents. Paragraphs 2(a) to (h) of the subpoena were as follows: 

   2.

   a. Any instrument of delegation of the Secretary’s powers under s 473CB(1)(c) Migration Act to the person who exercised those powers in respect of the referral to the Immigration Assessment Authority (the Authority) of the fast track reviewable decision concerning the applicant.

   b. Departmental instructions, directions, guidelines, protocols, procedures, checklists or the like for the regulation of the original compilation of ‘fast track review files' for the purpose of the administration by delegates of visa applications made by ‘fast track applicants’ and the making of ‘fast track reviewable decisions’, which applied to the original creation of file BCC2016/1887588.

   c. Contents of file BCC2016/1887588 not being material already reproduced in the Court Book, and any other material which is not otherwise listed at Annexure A of the delegate’s decision, which was before the delegate at the time of the delegate’s decision on 3 May 2019. This category does not include incidental material of an administrative nature such as internal emails deemed not relevant for inclusion in the Court Book.

   d. Contents of file BCC2016/1887588 not being material already reproduced in the Court Book, and any other material not otherwise listed at Annexure A of the delegate’s decision, which was considered by the Secretary in the exercise of the power under s 473CB(1)(c) of the Migration Act in compiling the PDF portfolio of ‘review material’ at the time of referral of the fast track reviewable decision concerning the applicant. This category does not include incidental material of an administrative nature such as internal emails deemed not relevant for inclusion in the Court Book.

   e. Contents of the PDF portfolio of 'review material' compiled and given by the Secretary to the Authority pursuant to s 473CB of the Act, in relation to the fast track reviewable decision concerning the applicant, including the contents of file BCC2016/1887588 which are not already reproduced in the Court Book, and any other material not otherwise listed at Annexure A of the delegate’s decision. This category does not include incidental material of an administrative nature such as internal emails deemed not relevant for inclusion in the Court Book.

   f. Records, including correspondence and the 'Referrals to the Immigration Assessment Authority and Disclosure Checklist', relating to the constitution and provision of the PDF portfolio of 'review material' by the Secretary to the Authority pursuant to s 473CB of the Act.

   g. Records in the possession or control of the Secretary relating to the applicant's Application for Refugee Status Determination (RSD) on Manus Island PNG (the Manus RSD documents), including transfer interview, RSD application (if any) and submissions to the RSD officer made on behalf of the applicant, any sound recording of the applicant's RSD interview, and the RSD decision on the application.

   h. Documents evidencing the Secretary’s consideration of the relevance of the Manus RSD documents to the Authority’s review of the fast track reviewable decision concerning the applicant at the time of the referral of that decision to the Authority.

5. Orders were made, after an interlocutory hearing, identifying agreed facts in respect of that subpoena and the existence of a record in the possession of the Secretary that was not provided to the Authority under Pt 7AA of the Act. The concession is found in para 14 of the first respondent’s submissions, dated 14 May 2020, and is set out as follows:

   (14)As indicated at [2] above, the Minister has complied with paragraphs 2(g) and (h) of the subpoena. The transferee interview dated 13 May 2013 was and is “the only document in the Minister’s or Secretary’s possession, custody or control”5 and there was and is no document to produce in response to paragraph 2(h). Put another way, there is only one ‘Manus RSD’ document in the Minister or Secretary’s possession, custody or control – and it has been produced.

6. The first respondent, in relation to the subpoena, produced a transferee interview in which the applicant participated at Manus Island on 13 May 2013. It was not provided to the Authority and was in the possession of the Department and, as such, there was a non-compliance with s 473CB of the Act by the Secretary. Compliance with the statutory obligations under section 473CB of the Act conditions the powers to be exercised by the Authority under Pt 7AA of the Act.

7. The question of whether there was a jurisdictional error by reason of the failure to provide the transferee interview in which the applicant participated at Manus Island depends on whether the applicant has established the necessary materiality in terms of the possibility that the document could realistically have given rise to a different outcome in the conduct of the review.

8. Mr Gormly, on behalf of the applicant, in his written submissions and orally, took the Court to the reasons of the Authority in relation to the credit findings in respect of, in particular, the harassment and discrimination having been exaggerated by the applicant, as well as the particular incident of arrest and the findings in respect of the applicant being politically inactive.

9. Mr Gormly took the Court to the content of the record of the interview that was in the court book, being the irregular maritime arrival entry interview, and identified the contemporaneous nature of the transferee interview with that of the arrival interview, and emphasised the greater detail found in the transferee interview and submitted that, because of its contemporaneous nature and its potential corroborative effect, it met the relevant test in respect of materiality. Mr Gormly, in that regard, emphasised the greater detail found in Part C, relating to the applicant claiming that every time they leave the house they are told that they are foreigners, and that they cannot go to hospital because they have no medical certificate, and that they cannot marry an Iranian woman, and that his mother and father, when they leave the house, are subject to harassment, and also the reference to a particular incident with the applicant and his father who were arrested for selling fruit as they had ‘no right to work’, and were detained for two to three weeks in a police station.

10. It is common ground that this is the incident in respect of which the applicant subsequently asserted detention of only two days. Emphasis was also given to the answer in question 7, in which the applicant again repeated the same incident, alleging arrest of about two weeks and referred to being arrested for selling fruits on the street with no right to work. The applicant alleged they were always being watched every time they go out by police and security forces.

11. Whilst the copy of the transferee interview does provide information not set out in the irregular maritime arrival entry interview, as identified by Mr Gormly, the Court does not accept that it was material or capable of being material to the outcome of the review by the Authority.

12. The applicant provided a statement in support of the Protection visa application which referred to the applicant and his family being totally marginalised and subsisting on the Green and then White Card which was given only for identification purposes, referred to the applicant’s education and problems in terms of work and lack of free medical care, as well as the applicant assisting his father selling vegetables and fruits in an ambulatory carriage, and being captives to the coups of the police and inspectors and having been exposed at any time to arrest, detention, imprisonment, attacks, humiliation and curses. In the statement, the applicant referred to having been arrested several times and threatened with deportation and dumping at the Iraqi border, if he does not support the Iranian regime, and referred to the applicant’s miserable living conditions with his family, and referred to Iran being a Persian racist and chauvinistic state that harbours hatred to all the persecuted Iraqis. The statement referred to the obtaining and departure from Iran on a fake passport.

1. It is apparent that the Authority accepted that the applicant is not a citizen of Iraq or a citizen of Iran and is a stateless Faili Kurd, and that the applicant may have left Iran on a fraudulent passport. 

2. The information in the transfer arrival interview to which Mr Gormly took the Court did not identify any fact or matter the subject of an express link to the adverse findings in respect of the applicant’s credibility or in relation to the harassment and discrimination considerations, the political inactivity or the singular arrest incident identified by the applicant.

3. The Court does not accept that the contemporaneous nature of the document and its potential corroborative effect to which Mr Gormly referred gives rise to the transferee interview identifying any factual information that could possibly have given rise to a different outcome in the adverse findings in the conduct of the review by the Authority, including the adverse outcomes. The Court does not accept the information could possibly have given rise to any corroborative effect in the adverse determination of the applicant’s claims.

4. The observations and findings by the Authority in relation to harassment and discrimination and arrests, whilst being credibility findings, are not ones in respect of which there is any rational or logical basis upon which the information identified in the transferee interview could possibly have given rise to a different outcome in the conduct of the review.

5. The Court finds that failure to provide the transferee interview and the non‑compliance with s 473CB of the Act by the Secretary, in the circumstances of the present case, was not material to and could not realistically have given rise to a different outcome in the conduct of the review. 

6. In these circumstances, no jurisdictional error as alleged in ground 2 is made out.

I certify that the preceding forty-five (45) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 July 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 6 August 2020