CMS18 v Minister for Home Affairs
[2020] FCCA 688
•26 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMS18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 688 |
| Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa – decision of the Immigration Assessment Authority – whether the applicant was denied procedural fairness – whether the IAA displayed bias – whether the IAA asked a wrong question – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.67, 68 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | CMS18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 257 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 24 March 2020 |
| Date of Last Submission: | 24 March 2020 |
| Delivered at: | Perth |
| Delivered on: | 26 March 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr T Lettenmaier |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 257 of 2018
| CMS18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 13 April 2018.
The IAA affirmed a decision of a delegate of the first respondent (the “Minister”) to refuse the applicant a Safe Haven Enterprise (subclass 790) visa (the “visa”).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
The Court had before it the applicant’s judicial review application dated 14 May 2018, a Court Book (“CB”) numbering 203 pages (marked as Exhibit 1) and an outline of written submissions from the Minister dated 25 February 2020.
The Court confirmed with the applicant at the hearing of this matter that he had received a copy of the Court Book. He indicated that, although he had reviewed it, he did not have a copy of it with him. He also confirmed that he had received a copy of the Minister’s submissions and had reviewed those submissions. It was explained to the applicant that, to the extent that the Minister or the Court relied on any materials in the Court Book, the Court would ask counsel for the Minister to read that material to the applicant so that he might then comment on it.
The hearing of this matter proceeded by way of teleconference pursuant to ss.67 and 68 of the Federal Circuit Court of Australia Act 1999 (Cth). This is less than ideal. However, in light the health advice given to the Court at the time of the hearing, the Court determined that this was appropriate. Neither party objected.
The applicant did not request an interpreter to assist him in Court. He did, however, advise the Court that his English was “not great”. He also indicated that he had some difficulty understanding the law. During the phone hearing, the applicant indicated that he did not understand a question that was asked of him. That question was then clarified. On three occasions, the Court asked the applicant to explain what he thought the IAA “did wrong”. On each occasion the applicant responded articulately and with great clarity. The Court will refer to these matters in more detail below.
While phone hearings are rarely desirable, overall the Court is satisfied that the applicant was able to participate and understand these proceedings.
Background
The applicant is a Shia Hazara citizen of Afghanistan (CB 5). He arrived in Australia as an unauthorised maritime arrival on 21 April 2013 (CB 115).
On 11 May 2016, the Minister lifted the bar pursuant to s.46A of the Act and invited the applicant to apply for the visa (CB 17-18).
On 6 February 2017, the applicant applied for the visa. He was assisted by a migration agent. The applicant’s claims were detailed in a statement and can be summarised as follows (CB 67-73 and (87-94)):
a)he is a Shia Hazara and fears harm at the hands of a variety of Afghani and Pakistani, as well as other foreign anti-Shia, groups now known to operate all over Afghanistan. This also includes ISIS who have targeted Hazaras;
b)the applicant’s father was suspected by the Taliban of working for the government. His father was kidnapped and tortured. After the applicant’s father was released, the Taliban required that the applicant’s family leave the area and they advised that if they ever saw the family again, they would kidnap and kill the applicant and his brothers. The applicant fears harm for being associated with his father and as being a man who has previously been personally targeted by the Taliban;
c)the applicant’s father was killed in a car accident. The applicant suspects that the Taliban targeted his father as he was in a Taliban area when the accident occurred;
d)the family fled to Kabul. While in Kabul, there were many attacks against Hazaras and the applicant was scared that the Taliban would find out where he lived. The applicant fled to Australia and his family fled to Iran;
e)as a returnee from Australia, the applicant will be treated as an infidel and a person who is a spy for the Westerners. He will be an easy target for the Taliban; and
f)the applicant is associated with a group of wealthy Hazaras.
On 27 April 2017, the applicant attended an interview with the delegate (CB 80-81).
On 1 May 2017, the applicant’s representative forwarded country information to the delegate and updated information about the applicant (CB 93-111).
On 4 July 2017, the delegate refused to grant the visa (CB 115-129). The delegate found that the applicant would not face harm if he relocated to Kabul.
On 7 July 2017, the applicant’s matter was referred to the IAA pursuant to s.473CA of the Act (CB 130-131).
On 2 August 2017, the applicant’s migration agent provided the IAA with written submissions and “new information”. The “new information” included country information, a medical certificate dated 24 July 2017 and a Google Maps image of a region in Afghanistan (CB 137-153).
On 11 January 2018, the applicant’s representative provided the IAA with a further medical certificate dated 4 January 2018 (CB 154-157).
On 26 March 2018, the IAA invited the applicant to (CB 158-161):
a)give new information in relation to whether he would face a real chance or real risk of serious or significant harm in Mazar-e-Sharif, and/or whether it would be reasonable for him to relocate; and
b)comment on the security situation in Afghanistan for Shia Hazaras and returnees and the overall situation in Mazar-e-Sharif.
On 28 March 2018, the applicant’s representative requested an extension of time within which to respond to the request for information (CB 168).
The IAA advised that there was no capacity to extend the time within which the applicant could respond (CB 170).
No response was provided to the request for information.
On 13 April 2018, the IAA affirmed the delegate’s decision.
IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a 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 IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act, which provides:
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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.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 IAA.
The IAA’s decision here is 22 pages long and spans 92 paragraphs. The Minister’s submissions at [12]-[39] accurately summarise the IAA’s decision. The Court adopts that summary as its own, with some amendments, as follows.
In relation to the information before the IAA, the IAA:
a)had regard to the material given by the Secretary pursuant to s.473CB of the Act (CB 175 at [2]). To the extent that the submissions dated 2 August 2017 contained arguments responding to the delegate’s decision and reasserted claims and country information already before the delegate, the IAA considered them (CB 175 at [3]);
b)noted that the applicant had sought to provide two medical opinions and a range of new country information. The IAA also referred to the applicant’s explanation about why the information should be considered (CB 175 at [4]-[6]);
c)(in relation to the country information which pre-dated the delegate’s decision), was not satisfied that such information was credible personal information, or that it could not have been provided to the Minister before the delegate made their decision (CB 175 at [7]);
d)(in relation to the country information that post-dated the delegate’s decision), accepted that the information was not, and could not have been provided to the Minister before the delegate’s decision (CB 175 at [8]). However, the IAA did not consider the recent security developments in Afghanistan alone constituted an “exceptional circumstance”. As such, the IAA did not consider the country information that post-dated the delegate’s decision (CB 176 at [9]);
e)(in relation to the two medical certificates), accepted that the information was not, and could not have been provided to the Minister before the delegate’s decision (CB 175 at [8]). The IAA also found that the medical reports had a significant bearing on the issue of relocation and was satisfied that there were exceptional circumstances to justify considering them (CB 176 at [10]); and
f)obtained new country information, being updated Department of Foreign Affairs and Trade reports regarding relevant security developments in Afghanistan in the second half of 2016 and 2017. The IAA considered that this information was relevant to the question of whether the applicant could relocate elsewhere in the country, such as the city of Mazar-e-Sharif. The IAA noted that the applicant had been invited to comment or provide new information in this regard, but that no submission had been received. The IAA found that there were exceptional circumstances to justify consideration of the new country information (CB 176 at [11]).
The IAA accepted that the applicant was a Shia Hazara (CB 177 at [14])
At [16]-[20], the IAA summarised the applicant’s claim and evidence in relation to his father’s profile. The IAA found the applicant’s evidence to have been consistent and a true account of what happened (CB 166 at [21]). The IAA accepted that the nature of the applicant’s father’s work constituted a risk profile as identified by the UNHCR. It found the account of his abduction and severe mistreatment by the Taliban, as well as the negotiation of his release, to be plausible. The IAA also accepted that the applicant’s family moved to a different village and avoided further direct harm or threat from the Taliban (CB 178 at [22]).
The IAA found that the applicant’s father’s death was not deliberately targeted by the Taliban. Rather, he was the victim of a tragic car accident (CB 178-179 at [23]-[28]).
The IAA referred to the applicant having moved to Kabul and noted that there were many attacks against the Hazara population in the city (CB 179 at [29]-[31]). The IAA considered it plausible that that the applicant’s brother witnessed the Ashura Day attack in Kabul in 2016 (CB 179 at [32]) but was satisfied that there was no link between that incident, his father’s past profile, and the claim that he was followed by a Taliban associate (CB 179 at [33]). The IAA was satisfied that no member of the applicant’s family had an ongoing profile with the Taliban (CB 179-180 at [34]). The IAA was prepared to accept that the applicant’s brother had been followed but considered that this event was likely opportunistic and possibly criminal in nature (CB 180 at [35]).
The IAA accepted that the applicant’s father had an adverse profile with the Taliban. However, the IAA was not satisfied that the applicant or his family had any profile outside of their former village or that there was any chance or risk of the applicant facing serious harm on the basis of that profile, or any imputed political opinion, outside of his former village (CB 180 at [36]).
At [37]-[38], the IAA referred to the applicant having lived in his village and in Kabul when in Afghanistan. The issue for the IAA was where the applicant would return to in Afghanistan. The IAA found that the applicant would return to live in his former village (CB 180 at [40]).
While the IAA was not satisfied that the Taliban had an active interest in the applicant or his family, it considered it plausible that if the applicant were to return to his former village, his father’s past history and profile might raise suspicion and the applicant would, as a result, be at risk (CB 180-181 at [41]-[43]). However, the IAA was not satisfied that the real chance of persecution related to all areas of Afghanistan (including Mazar-e-Sharif). Therefore, the IAA found that the requirements of s.5J(1)(c) of the Act had not been met (CB 181 at [44]).
The IAA referred to the applicant’s claims to fear harm on the basis of his Hazara ethnicity and religion, his association as belonging to a group of wealthy Hazaras and other related profiles (CB 181 at [45]). Whilst the IAA accepted that the applicant may have been considered to be a wealthy Hazara, or from a wealthy Hazara family, in the past, it was not satisfied that that profile continued to apply and considered that there was no chance of him facing serious harm for this reason (CB 181-182 at [47]).
Having regard to the country information (CB 182 at [49]-[51]), the IAA was not satisfied that Shia Hazaras were being systematically targeted and/or that security incidents involving Shia Hazaras were occurring at a scale or frequency such that the applicant would face a real chance or risk of facing serious or significant harm from the Taliban or other insurgent groups on the basis of his religious, ethnic or any related profile (CB 182 at [51]).
The IAA accepted that there had been a recent and significant increase in attacks against the Shia population in Kabul, as well as in Herat and Nangarhar, by Islamic State Khorasan Province (ISKP) (CB 182 at [52]). However, it found that in the absence of country information that suggested that the risks from ISKP extended to the applicant’s home area, or Balkh or Mazar-e-Sharif, the lack of confirmed attacks from ISKP in those areas, the low incidence of recent attacks against Shias (and Hazaras) in those areas, the overall favourable security assessment for Balkh and Mazar-e-Sharif, and the applicant’s otherwise low profile, there was not a real chance of the applicant being seriously harmed by ISKP in his home area, Mazar-e-Sharif or the Balkh Province on the basis of his ethnic, religious or any related profile (CB 183 at [53]-[54]).
The IAA accepted that the applicant might face some societal or official discrimination on the basis of his ethnicity but found that any such discrimination would be moderate, infrequent and would not impact the applicant in a material way. The IAA was not satisfied that the division between ethnic groups would threaten the applicant’s capacity to subsist or otherwise constitute serious harm (CB 183 at [55]).
The IAA referred to country information regarding the safety of roads in Afghanistan (CB 183 at [56]). The IAA accepted that the applicant would need to travel on roads where there had been security incidents in the past. However, the IAA considered that while the chance of the applicant being abducted, killed or seriously harmed was present, this was only a remote chance. It noted there had been a decline in the number of incidents on the roads in recent years, the applicant held a low profile and his need to travel was infrequent (CB 184 at [57]).
The IAA found that there was no real chance that the applicant would face serious harm in his home area, the Balkh Province or Mazar-e-Sharif for reasons of his religion, ethnicity or any related profile (CB 184 at [58]).
The IAA summarised the applicant’s claim in relation to having spent time in the West and being a failed asylum seeker. It referred to country information relevant to this claim (CB 184-185 at [59]-[63]). The IAA accepted that the applicant had grown accustomed to Australia’s values, culture and language. However, the IAA was not satisfied that the applicant’s time in Australia, and connection with the country, would put him at a real risk or chance of harm (CB 185 at [64]).
The IAA accepted that the applicant had lived in Australia for around four or five years but was not satisfied that this would have altered his language, appearance or values in a way that would expose him as a person that had lived outside of Afghanistan for some time, or put him at risk of being targeted on return nor would he be seen as vulnerable (CB 185-186 at [66]).
The IAA was not satisfied that the applicant’s language, appearance or values would indicate that he had spent time in the West, that he had sought asylum in the West, that he would potentially be imputed with a profile of having links to the government or international community or any other related political opinion or profile supportive of the government (or anti-Taliban), that he would be viewed as a spy or infidel or that he would otherwise be targeted. The IAA was satisfied that there was no real chance that the applicant would face serious harm for reasons of his time living in the West or because he was returning from the West, his claims for asylum or on the basis of any related profile or imputed political opinion (CB 186 at [67]).
On a separate basis, the IAA was satisfied that the applicant could take reasonable steps to modify his conduct to avoid any future chance or risk of harm such as concealing the time he had spent in Australia, and dressing and speaking consistently with other Afghans. The IAA was satisfied that taking such steps would not conflict with a characteristic that was fundamental to his identity or conscience, require him to conceal an innate or immutable characteristic, or require him to act in any way or do any of the things contemplated by s.5J(3)(c)(i)–(vi) of the Act (CB 186 at [68]).
The IAA acknowledged the concerns of the applicant’s migration agent that there had been a deterioration in the security situation in Afghanistan, notably within Kabul, and the applicant’s concerns about security in Mazar-e-Sharif. It accepted that the city was not immune from insurgent attacks and civilian casualties (CB 186 at [69]). However, the IAA found that, in light of the applicant’s lack of profile, the chance or risk of him being seriously harmed in generalised or insurgent violence was remote (CB 187 at [70]).
The IAA found that the applicant did not meet s.36(2)(a) of the Act (CB 187 at [72]).
The IAA found that there were substantial grounds for believing that the applicant would face a real risk of significant harm if he returned to or lived in his former village (CB 188 at [78]). However, the IAA was not satisfied that the applicant would face a real risk of significant harm if he relocated to Mazar-e-Sharif (CB 188 at [77]). The IAA turned to consider whether it would be reasonable for the applicant to relocate to Mazar-e-Sharif (CB 188 at [78]).
The IAA referred to country information regarding the situation in Mazar-e-Sharif. The IAA accepted that there would be challenges in relocating to the city but considered that the situation in Mazar-e-Sharif was more favourable than other areas in the country (CB 188 at [80]). While the IAA accepted that there was no guarantee of safety in Mazar-e-Sharif, it considered the city, and the Balkh Province in general, to be one of the more secure areas in the country. The IAA did not consider the security situation in Mazar-e-Sharif to be such that it would be unreasonable for the applicant to relocate to the city to avoid the real risk of harm he may face in his former village (CB 188-189 at [81]).
After referring to the applicant’s submissions on the reasonableness of relocation (CB 189 at [82]-[83]), the IAA accepted that it would be challenging for him to relocate without family or tribal links. However, the IAA noted that the UNHCR considered that single able-bodied men of working age without specific vulnerabilities may, in certain circumstances, be able to subsist without family and community support. The IAA accepted that the applicant had some medical issues but was not satisfied that these issues would prevent him from working, finding accommodation or that it would not be reasonable for him to return to Afghanistan. The IAA accepted that there would be some challenges infinding medication and treatment but found that the applicant would be able to find work and would be able to access treatment and medication (CB 189 at [84]).
The IAA was satisfied that the applicant had a range of skills and experiences that would help him relocate and find work and attached significant weight to the fact that the applicant had obtained employment in Kabul and Australia after moving to these locations (CB 190 at [85]). The IAA also accepted that there were significant economic and social pressures but considered that the applicant’s work experience, language skills and personal characteristics could overcome these pressures. Further, he would be able to find work and accommodation (CB 190 at [86]). Any moderate level of discrimination the applicant might face did not amount to significant harm. Overall, the IAA did not consider it would be unreasonable to relocate (CB 190 at [87]).
The IAA accepted that the applicant would likely be returned to Kabul first and that the security situation in Kabul was serious. However, the IAA considered that the applicant’s time in Kabul would be brief, the applicant would be able to obtain flights to Mazar-e-Sharif and he would not be required to travel on the insecure roads between the cities (CB 190-191 at [88]-[89]).
At [90], the IAA stated:
I accept the applicant’s health is a major consideration in terms of his ability to relocate, however the information before me does not indicate the depth and extent of his health concerns, his future prognosis, whether he would be unable to return to his home country, or whether or not he could access the treatment he may require. My assessment is that he would be able to return, and access a reasonable level of health care. I also consider there are a range of positive factors that indicate it would be reasonable for the applicant to relocate to Mazar-e- Sharif, including his work experience and language skills, and his personal characteristics. When weighing all the circumstances, I am satisfied it would be reasonable for the applicant to relocate to Mazar-e-Sharif where there would not be a real risk that he will suffer significant harm. As I am satisfied it would be reasonable for the applicant to relocate to Mazar-e-Sharif from his former home area in [omitted], it follows that under s.36(2B)(a) there is taken not to be a real risk that the applicant will suffer significant harm in Afghanistan.
In terms of generalised violence, the IAA was satisfied that such risks were faced by the population of the country generally and not faced by the applicant personally and, pursuant to s.36(2B)(c), there was not a real risk that the applicant would suffer significant harm in Afghanistan for this reason (CB 191 at [91]).
The IAA found that the applicant did not meet s.36(2)(aa) of the Act (CB 191 at [92]).
Proceedings in this Court
The application for judicial review contains three grounds as follows:
1. Jurisdictional error.
2. Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3. Identifying a wrong issue on a wrong question
The applicant was provided an opportunity to file an amended application, any affidavit evidence and a written outline of submissions. No further documents were provided.
The applicant appeared before the Court without legal representation and without the assistance of an interpreter. An interpreter had not been requested.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
The Court explained that its task is to assess whether the IAA fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was explained to the applicant that this Court cannot review the merits of the IAA’s decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court asked the applicant to explain what he thought the IAA “did wrong”.
As noted above, the applicant indicated that his English was “not great” and that he did not understand legal terms. The Court stressed that theapplicant did not need to “talk like a lawyer”. Rather, he simply needed to convey in his own words what “mistakes” he thought the IAA made.
The applicant responded by explaining that he had lost his mother in the previous year and that his life is not safe in Afghanistan. When the applicant indicated that he did not quite hear and/or understand the Court’s question, the Court again explained that he should tell the Court if there was anything that he thought the IAA did not do properly in assessing his case. The applicant indicated that the IAA found that he could return to Afghanistan and this was an error that on the part of the IAA.
Unfortunately, the matters the applicant referred to in his oral submissions go to the merits of the IAA’s decision. They do not identify any jurisdictional error. The Court does not believe that the applicant’s inability to provide detailed submissions relating to jurisdictional error arose from poor English or because of an inability to hear the Court. Rather, as is regrettably the case with many unrepresented applicants in this Court, the complexities that arise with the concept of “jurisdictional error” made it quite difficult for him to articulate what “mistakes”, if any, the IAA made when assessing his claims and evidence.
The Court indicated to the applicant that it would review all of the materials that had been provided to determine if his case had been properly considered.
Consideration
Ground 1
1. Jurisdictional error.
As the Minister submits, without particulars this ground is of little assistance. Broad assertions of this sort make it difficult for the Court and the Minister to identify what error the applicant is suggesting the IAA made when assessing the evidence before it. This comment should not be seen as a criticism of the applicant. It appears he may have been assisted by someone else when completing his application and, as noted above, what is required of applicants is often unclear to those who appear in this Court.
To assist, the Court has remained alert to the possibility of error and has reviewed the decision and materials for itself to determine if the IAA fell into jurisdictional error: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Here:
a)the IAA accurately summarised the applicant’s claims and provided a detailed and analytical assessment of the evidence and information that had been provided by the applicant in support of his claims for protection. Further, despite no express claim relating to the applicant’s health issues, the IAA nevertheless considered the applicant’s ability to obtain medication and medical assistance. The IAA actively engaged with the materials before it;
b)the IAA correctly identified the relevant legislative provisions which applied to the review. The IAA understood the principles relevant to the criterion. For example, it showed a clear appreciation of what, legally, constitutes a “real chance” (see [40], [41] and [43]) and appropriately addressed the reasonableness of relocation;
c)the IAA’s consideration of the “new information” was without error. The IAA’s reasoning was logical and demonstrated that the IAA understood the requirements of s.473DD of the Act; and
d)the IAA’s findings in relation to the applicant’s claims and the criterion in general have an evident and intelligible basis. The IAA’s assessment was based on a thorough evaluation of the applicant’s evidence and the country information. There was nothing arbitrary, capricious or unreasonable in the IAA’s reasoning.
The Court notes that the applicant was invited by the IAA to provide information and comment on information put to him. The IAA indicated that that information was to be received by 9 April 2018. The applicant’s migration agent requested an extension of time until 16 April 2018. The IAA responded as follows (CB 170):
We have considered your request. The Migration Act 1958 (the Act) imposes strict deadlines for a response to a request to provide new information or comments on new information. The IAA has no capacity under the Act to extend the deadline, and no extension of time has been granted.
The due date to respond to the invitation is Monday 9 April 2018. The applicant should provide a response by that date. If the IAA does not receive a response by the due date, it may make a decision on the review without taking any further action to get the information or comments.
The Court has considered whether it was a denial of procedural fairness or unreasonable for the IAA not to extend time or wait for a response from the applicant.
Section 473DF of the Act provides:
(1)This section applies if a referred applicant is:
(a) invited under section 473DC to give new information in writing or at an interview; or
(b) invited under section 473DE to give comments on new information in writing or at an interview.
(2) The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.
...
(4) If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a) without taking any further action to get the information or the referred applicant's comments on the information; or
Regulation 4.42(b)(iii) of the Migration Regulations 1994 (Cth) prescribes that the time frame within which an applicant can comment on the information is 14 days after they have been notified of the invitation. The applicant’s representative (and thus the applicant himself by virtue of s.473HG of the Act) was notified on 26 March 2018 (CB 158-169).
By virtue of s.473DF(4)(a) of the Act, the IAA was entitled to make a decision on the review without awaiting any further information or submissions. In these circumstances, it cannot be said that there was a denial of procedural fairness.
As for whether the IAA’s actions were unreasonable, the Court is satisfied that it was not unreasonable for the IAA to make a decision on 13 April 2018 in circumstances where:
a)the legislation indicates that 14 days is considered a “fair” timeframe. The statutory context must be borne in mind when considering the area of decisional freedom held by the IAA;
b)the application had been with the IAA since July 2017 (approximately 9 months) and the IAA’s mandate is to complete a review within six weeks of referral (CB 130);
c)the applicant was represented by a migration agent. It is not the case that the applicant was unrepresented or in immigration detention such that he might be considered to have been vulnerable or at a disadvantage; and
d)the applicant’s representative was seeking an extra seven days to respond because of the Easter Long Weekend. In the Court’s view, the applicant’s representative had at least 14 days (not including the Easter Long Weekend (which was the reason for the extension) to provide the requested information.
Bearing in mind the statutory context and the particular circumstances of the applicant’s case, the Court is satisfied that it was not unreasonable for the IAA not to have delayed the review or waited for further information.
Ground 1, accordingly, is dismissed.
Ground 2
2. Bias based on conscious or unconscious prejudice by ignoring relevant materials.
It is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, the applicant must establish that:
a)the IAA, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the IAA, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The Court is satisfied that the IAA has not demonstrated bias. The IAA had a favourable view of the applicant’s credibility overall (CB 178 at [21]). The IAA accepted the applicant’s evidence on a number of matters. There is nothing on the material to suggest that the IAA did not act impartially or had pre-determined the applicant’s application.
The Court also notes that there is nothing in the materials that were provided to the IAA that were irrelevant or prejudicial so as to consciously or subconsciously bias the IAA against the applicant: CNY17 v Minister for Immigration & Border Protection [2019] HCA 50.
No bias arises in the IAA’s decision.
As for whether the IAA ignored relevant materials, as noted above the IAA carefully considered each of the applicant’s claims. The IAA referred to the applicant’s evidence in detail. As the Minister submitted, there was no need for the IAA to refer to every piece of evidence provided by the applicant – only evidence upon which the findings of fact were based: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46].
Further, the applicant has been unable to identify, and the Court cannot discern, any evidence that has been overlooked that was material to the IAA’s overall assessment.
Insofar as the “relevant materials” the applicant is referring to in ground 2 relate to the “new information”, the Court finds no error in this regard. The IAA determined that the new information did not meet s.473DD of the Act. In those circumstances, the IAA was prohibited by the statute to have regard to those materials. The IAA’s reasons for finding that s.473DD of the Act was not met were based on a correct understanding of the principles.
Ground 2, accordingly, is dismissed.
Ground 3
3. Identifying a wrong issue on a wrong question
It is unclear what is meant by this ground.
The IAA makes reference to “questions” on a number of occasions throughout its decision (see [11], [23], [26], [37] and [63]). Each of these “questions” was appropriately framed within the context of the overall issue of whether the applicant met the criterion for the visa.
None of the “questions” that the IAA refers to were “wrong”. They were questions that the IAA asked itself in the course of its assessment and were directly relevant to its task on review.
The Court is satisfied that the IAA did not identify a wrong issue or ask the wrong question. The IAA understood the assessment it was to make, the matters it was required to assess and the level of satisfaction that was required to meet the statutory provisions.
Ground 3, accordingly, is dismissed.
Conclusion
The applicant has failed to identify any jurisdictional error. The Court is otherwise satisfied that no error arises.
The application, accordingly, is dismissed.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 26 March 2020
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Procedural Fairness
-
Judicial Review
-
Natural Justice
-
Jurisdiction
0
16
4