CNY17 v Minister for Immigration
[2017] FCCA 2731
•8 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CNY17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2731 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether obligation enlivened to disclose the nature of information claimed to be highly prejudicial – categories of information provided cannot be identified as highly prejudicial material in the eyes of a fair-minded lay observer – not a circumstance in which a fair minded lay observer might reasonably apprehend the Authority might not bring an independent and impartial mind to the determination of the matter on the merits – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DE, 476 |
| Cases cited: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 |
| Applicant: | CNY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 315 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 8 November 2017 |
| Date of Last Submission: | 8 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Guo |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 315 of 2017
| CNY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 12 May 2017, affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 16 August 2013. The applicant made a valid application for a Safe Haven Enterprise visa on 24 August 2016. In that application, the applicant completed a question relating to his character in which he answered a question in the positive as to whether he had been charged with any offence that is currently awaiting legal action. The applicant provided details in that regard:
Awaiting trial on charges of spitting at a guard and breaking a window, following death of Fazel on Christmas Island.
The applicant was found to be a Faili Kurd who was born in Iraq and had spent a significant part of his life in Iran. The applicant claimed to fear harm in Iraq because of his stateless status, his Faili Kurdish ethnicity, his Shia Muslim religion, his imputed links to Iran, his imputed western views based on his time spent in Australia. The applicant claimed to have been expelled to Iran from Iraq and that he had suffered harm in both countries and that he was not a citizen of either.
On 14 March 2017, the delegate refused the application for a protection visa. The delegate made adverse credibility findings as a result of inconsistencies in the applicant’s evidence and the prevalence of fraudulent documents but was satisfied the applicant was an Iraqi citizen. In the course of the delegate’s reasons, the delegate referred to the requirements of s 5H(2) of the Act and identified that there was information indicating that on 26 February 2016, the applicant was convicted of intentionally destroying or damaging property belonging to the Commonwealth. As a result of that conviction, the applicant was placed on a six month good behaviour bond and required to pay restitution of $820.60 to the Commonwealth and a security of $500.00.
The delegate had been provided with a notice of conviction reflecting the order made on 26 February 2016 which identified the offence as intentionally destroying or damaging property belonging to the Commonwealth or any public Authority under the Commonwealth. The delegate’s reasons also referred to it being unnecessary to make an assessment in relation to s 5H(2) of the Act due to the fact that the applicant was found not to be a refugee as defined under s 5H(1) of the Act.
The Authority’s decision
On 23 March 2017, the applicant was sent a letter identifying that the matter had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could receive new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.
Information before the Authority
The Authority’s reasons identified submissions provided on 11 April 2017 and identified in that regard new information which with the exception of the BBC article, the Authority noted predated the decision of the delegate. The Authority was not satisfied there were exceptional circumstances to justify considering that information.
The Authority made reference to excerpts from an IAA decision and was not satisfied there were exceptional circumstances to justify considering that as new information. The Authority made reference to the submission including new information in relation to the applicant suffering from Hepatitis C and making a claim in relation to the applicant’s health and safety being compromised if returned to Iraq. The Authority was not satisfied there were exceptional circumstances to justify considering that new information and new claim.
The Authority made reference to new information in respect of significant trauma information relating to past events and the Authority was not satisfied there were exceptional circumstances to justify considering that as new information.
The Authority made reference to new information being a new claim that the applicant did not have close ties in Basra and was not satisfied there were exceptional circumstances to justify considering that information.
The Authority identified having regard to the November 2016 United Nations High Commissioner for Refugees report consistent with s 473DE(3)(a) of the Act, being country information.
Consideration of the applicant’s claims
The Authority identified the applicant’s claims and summarised the applicant’s evidence. The Authority accepted that applicant was a Faili Kurd and that his family were expelled from Iraq to Iran and further accepted that the applicant is a Shia Muslim. The Authority accepted that the applicant and his family experienced a level of mistreatment at the hands of Iraqi authorities during the Ba’athist regime. The Authority found, as did the delegate, that the applicant is a citizen of Iraq. The Authority provided detailed reasons in support of that finding.
The Authority did not accept that the applicant will face the difficulties faced by Farsi Kurds given that he was a citizen of Iraq who possesses a birth certificate and a nationality certificate and possessed an Iraqi passport. The Authority did not accept the applicant will be perceived as stateless for any reason.
Assessment of Refugee Convention criteria
The Authority correctly set out the relevant law. The Authority did not accept the applicant was stateless or would be perceived to be stateless and did not accept there was a real chance of harm to the applicant from any group or person including the Iraqi government on that basis.
The Authority made reference to the applicant’s Faili Kurd ethnicity and made reference to the applicant living in Basra for approximately four years prior to his departure from Iraq. The Authority was satisfied the applicant would be able to safely access Basra via the Basra International Airport. The Authority was not satisfied that there is a real chance the applicant will face difficulty accessing employment, or any other form of discrimination or suffering any other form of discrimination based on his ethnicity on his return to Iraq. The Authority was not satisfied there was a real chance of harm to the applicant including as a result of discrimination on the basis of his Faili Kurd ethnicity in Basra.
The Authority found the applicant has undertaken a range of employment, including factory work and acting as a guide and interpreter for Iranian pilgrims visiting Iraq. The Authority found the applicant will return to Basra province on his return to Iraq. The Authority made reference to country information in relation to a spate of explosive device attacks in Basra which it was submitted, highlighted a deterioration in security. The Authority also made reference to a report of other clashes and a general increase in crime in Basra.
The Authority made reference to a DFAT assessment that violent crime in Iraq had increased since leaving in 2013. The Authority made reference to UNHCR and DFAT both reporting, that violent crime, including extortion and kidnapping for ransom, is common in Iraq. The Authority made reference to the applicant not having claimed to have experienced any harm as a result of criminal activity. The Authority noted the applicant has not claimed to have been associated with any tribal conflict in Basra.
The Authority made reference to the fact that while the applicant claims his mother is holding on his behalf, a sum of approximately $20,000 he has not claimed to have a profile as a wealthy person or a member of a wealthy family. The Authority accepted that the level of violence in Basra may have increased. The Authority found however, having regard to the evidence before the Authority, including the nature and number of the reported incidents in Basra, that the Authority was not satisfied that the chance of harm to the applicant as a result of criminal violence in Basra amounts to a real chance of harm.
The Authority found in regard to the totality of the information before the Authority, that the Authority found the chance the applicant would be harmed as a result of criminal violence to be less than the real chance required to meet s 5J(1)(b) of the Act. The Authority was not satisfied the applicant had a well-founded fear of persecution on these grounds.
The Authority made reference to the applicant’s health. The Authority found the applicant’s medical conditions were not such as to give rise to a real chance of harm on return. The Authority was not satisfied that the applicant faces any real chance of harm on the basis of his medical conditions now or in the reasonably foreseeable future.
The Authority made reference to the applicant being an unsuccessful asylum seeker who had been living in the West. The Authority did not accept the applicant would be of adverse interest to the armed Sunni or Shia group, or any group or person on the basis that he would be returning to Iraq as an unsuccessful asylum seeker living in Australia for approximately four years. The Authority was not satisfied that there is a real chance of harm to the applicant on this basis now or in the reasonably foreseeable future.
The Authority made reference to the applicant’s claimed fear of harm because of his perceived links to Iran. The Authority did not accept that Shia groups would have any adverse interest in the applicant on the basis of the time he spent in Iran where the state religion is Shia Islam. The Authority found the chance of harm to the applicant on this basis derives from his Shia faith and has previously found there is no real chance of harm to the applicant as a Shia Muslim in Basra.
The Authority was not satisfied that there is any chance of serious harm to the applicant in relation to the time he spent in Iran. The Authority took into account the applicant’s claims in relation to his being a Shia Muslim Faili Kurd as a result of the security situation in Basra and his medical conditions and the time spent in Iraq and being an unsuccessful asylum seeker and having spent time in a Western country for four years. The Authority was not satisfied that any combination of the applicant’s circumstances would expose him to a real chance of harm in Basra province.
The Authority found the applicant failed to meet the criteria of the definition of refugee in s 5H(1) of the Act and the applicant failed to meet the criteria under s 36(2)(a) of the Act.
Assessment of Complementary Protection criteria
The Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds of the amended application are as follows:
1. The decision of the Immigration Assessment Authority (IAA) was affected by jurisdictional error (excess of jurisdiction / denial of natural justice).
Particulars
a. The IAA made a decision adverse to the Applicant, without disclosing to him that it had received certain material from the Secretary (including at CB 41-83 and 88-90) as part of the ‘review material’.
b. The IAA was under the duty to consider the ‘review material’. Review of the ‘review material’ that [had] been provided by the Secretary was the precise extent of the IAA’s jurisdiction, duty and power.
c. The Secretary’s provision of ‘review material’ in excess of power necessarily vitiated the IAA’s decision.
d. The material was given to the IAA by a person other than the Applicant could not be dismissed as not relevant, not credible or not significant, and was potentially adverse.
e. The Migration Act 1958 (Cth) does not exclude the common law obligation on the IAA of affording an opportunity to rebut, qualify or comment upon material of the kind identified at a. above.
f. If, contrary to e. above, the common law obligation there referred is excluded, the IAA’s decision is affected by apprehended bias. A fair minded and informed observer might conclude that the IAA might not be impartial or approach the issues with an open mind, when it conducts a review ‘on the papers’ after having been provided, by a person within the Minister's department, with material considered relevant to whether the Minister's decision will be affirmed.
2. In concluding that the applicant did not face a real chance or real risk of harm as a result of generalised violence in Basra, the IAA:
Particulars
a. erred in its application of the real chance or real risk test, by requiring ‘the nature and number’ of incidents of serious or significant harm to be of a particular kind and amount, and/or by requiring Basra to have been one of the areas ‘most affected’ by such incidents;
b. further or alternatively, made a finding in legally unreasonable reliance on DFAT country information which was materially out of date compared to the contrary UNHCR country information before it;
c. further or alternatively, did not consider all integers of the claim, by reason of it confining its consideration to whether the Applicant had ‘experienced any harm as a result of criminal activity’.
Ground 1
In relation to ground 1, Mr Guo of counsel on behalf of the applicant, submitted that there were six categories of information that enlivened an obligation upon the Authority to disclose the nature of that information to the applicant because it was said by Mr Guo to be highly prejudicial.
Mr Guo sought to rely upon the decision in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136. In that case, there was information provided by the Secretary to the Authority that the applicant had been charged with assaulting a female in indecent circumstances while being aware that the person was not consenting. There was a reference to a proposed court date for that charge. The Full Court’s judgment indicates that the charge of indecent assault was dismissed and the Full Court found that that information in respect of the charge concerning assaulting a female in indecent circumstances and being aware the person was not consenting, was highly prejudicial and was not relevant to the review application and should not have been provided under s 473CB of the Act.
No step was taken by the Authority in that case to disclose the information to the applicant or the applicant’s representatives. Albeit, there was no reference to the matter in the Authority’s reasons, the Full Court found that the information gave rise to a reasonable apprehension of bias and accordingly, found jurisdictional error. Mr Guo advances the same case in respect of the six categories of information in the present case.
Particular a
The first category of information Mr Guo of counsel identifies is the conviction of the applicant. In relation to that category of information, it is clear that the Safe Haven Enterprise visa asked a question referable to the existence of outstanding charges and that the applicant provided information in his Safe Haven Enterprise visa. For that reason alone, the decision in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 is distinguishable.
Further, in the present case it is apparent that the delegate identified the material in respect of the conviction by the applicant of what was at the time of his Safe Haven Enterprise visa identified as a charge. That conviction was potentially relevant to s 5H of the Act. Given the delegate’s identification of that material in the delegate’s reasons, this is a further basis upon which the decision in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 is distinguishable.
Further, the nature of the charge and the alleged conviction on the present case are not ones on their face that meet the characterisation of being highly prejudicial for a fair-minded lay observer. The existence of the conviction provided to the Authority under s 473CB of the Act is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by particular a.
Particular b
The next category of information said to enliven an allegation of apprehended bias was the provision of information in respect of the movement of the applicant to correctional facilities. The movement information identified by Mr Guo is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on the merits. The movement information in respect of the correctional facilities cannot be identified as highly prejudicial material in the eyes of a fair-minded informed lay observer. No jurisdictional error is made out by particular b.
Particular c
The third category identified by Mr Guo of counsel, concerned information reflecting the applicant having been potentially involved in a riot. That information is not information that a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. The information relating to the possible involvement by the applicant in a riot is not highly prejudicial information. No jurisdictional error is made out by particular c.
Particular d
The fourth category of information identified by Mr Guo of counsel was information identifying an assessment of the applicant’s behaviour whilst in detention. The information referred to by Mr Guo in respect of the applicant’s behaviour is not information by reason of which an informed lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on the merits. The behaviour information is not highly prejudicial. No jurisdictional error is made out by particular d.
Particular e
The fifth category of information was the suggestion that the applicant might still be under investigation in respect of other criminal charges. On a fair reading, the communication was concerned with seeking to clarify whether there were any outstanding charges. Those communications cannot be characterised by a fair-minded lay observer as highly prejudicial. Those communications do not give rise on a fair-minded lay observer test, to circumstances in which a reasonably informed fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by particular e.
Particular f
The sixth category of information identified by Mr Guo of counsel arose from reference to the National Security Monitoring Section. That entry appears to refer to an interview on 23 March 2015 in the context of a chronological summary relating to the applicant’s immigration history. That information is not information by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. The reference to the National Security Monitoring Section is not information that a fair-minded lay observer would regard as highly prejudicial. No jurisdictional error is made out by particular f.
None of the categories of information identified by Mr Guo of counsel are grounds upon which an informed fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits.
Mr Guo of counsel also submitted that the information to which he referred to in the six categories was information enlivening an obligation to afford procedural fairness that required disclosure by the Authority to the applicant because of its provisional nature. I do not accept that any of the information identified can be properly characterised as credible, relevant and significant. Accordingly, any failure of the Authority to disclose the existence of the information, singularly or cumulatively did not give to any practical injustice or any jurisdictional error or any breach of the requirements of procedural fairness. Further, I find that there was no failure to disclose in respect of particular a, as this was in substance disclosed by the applicant and in the delegate’s reasons. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
Particular a
In relation to ground 2, Mr Guo of counsel submitted that the Authority had failed to apply the real chance or a real risk test and suggested that on a careful reading of the Tribunal’s reasons, the Authority had applied a numerical assessment in determining whether the applicant faced a real chance or real risk of harm from generalised violence. The Authority’s reasons are not to be read with a keen eye to error. The suggestion that the Authority did not identify the nature of the incidents is not correct. The Authority both identified the nature and an increase in the number of incidents. The Authority did not apply a numerical assessment.
Ground 2(a) in substance invites this Court to engage in an impermissible merits review. There is no substance in the proposition that the Tribunal failed to apply the correct real chance or real risk test in relation to the applicant’s claimed fear of generalised violence. The adverse findings by the Authority in that regard were open and on a fair reading of the Authority’s reasons the Authority correctly applied the relevant law. No jurisdictional error as alleged in ground 2(a) is made out.
Particular b
Mr Guo of counsel confirmed that ground 2(b) was abandoned.
Particular c
In relation to ground 2(c) Mr Guo of counsel submitted that the applicant’s fear of generalised violence had not been properly assessed and that a component integer had not been taken into account because the Authority referred to the fact that the applicant had not suffered any criminal violence.
The Authority’s reasons reflect an assessment of the applicant’s own circumstances and it was relevant in relation to the determination of the applicant’s claims to take into account what criminal activity the applicant may have experienced. The Authority did not determine the applicant’s claims solely by reference to the applicant’s experience. A fair reading of the Authority’s reasons reflect taking into account the applicant’s personal circumstances and the other evidence referred to by the Authority. No jurisdictional error as alleged in ground 2(c) is made out.
Accordingly, the amended application is dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 23 November 2017
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