CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1141
•19 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1141
File number(s): PEG 80 of 2020 Judgment of: JUDGE VASTA Date of judgment: 19 May 2021 Catchwords: MIGRATION – Protection Visa - where an application for review was dismissed in this Court in 2017 – where the matter was remitted back to the IAA by the High Court –
Whether the IAA fully considered a new claim – whether the IAA decision was infected by apprehended bias by consideration of the descriptions given in the High Court judgment.Legislation: Migration Act 1965 (Cth) s.57 Cases cited: CNY17 v Minister for Immigration and Border Protection [2019] HCA50
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29
Number of paragraphs: 44 Date of last submission/s: 19 May 2021 Date of hearing: 19 May 2021 Place: Brisbane Counsel for the Applicant: Mr Guo Counsel for the First Respondent: Mr Wood Solicitor for the Applicant: Estrin Saul Lawyers Solicitor for the First Respondent: Australian Government Solicitor ORDERS
PEG 80 of 2020 BETWEEN: CNY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
19 MAY 2021
THE COURT ORDERS:
1.The application filed on 11 March 2020, as amended on 11 February 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7467.00.
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE VASTA
This matter has had a somewhat convoluted history. The Applicant, CNY17, came to Australia as an unauthorised maritime arrival on 16 August 2013. Soon afterwards, the Applicant made a particular request and was interviewed regarding that request on 19 September 2013. He then withdrew that request. He was then interviewed as an unauthorised maritime arrival on 27 September 2013.
He made an application for a safe haven enterprise visa, or SHEV, on 16 September 2016. He was interviewed by the delegate on 7 December 2016. After that interview, the delegate wrote to the Applicant pursuant to s 57 of the Migration Act 1958 (Cth) (“the Act”) on 27 January 2016. The Applicant responded to that letter on two occasions, 1 March 2017 and 7 March 2017.
Ultimately, the delegate refused to grant the Applicant a protection visa.
Because this was a fast track decision, the matter was then referred to the Immigration Assessment Authority (“the IAA”). The IAA affirmed the decision on 12 May 2017.
The Applicant asked this Court to review that decision. On 8 November 2017, this Court dismissed the application for review. The Applicant then appealed that decision to the Full Court of the Federal Court. On 21 September 2018, the Full Court of the Federal Court dismissed the appeal. The Applicant then appealed to the High Court. Special leave was granted and on 13 December 2019, the High Court allowed the appeal and quashed the decision of this Court, issued the writs and sent the matter back for reassessment by a differently constituted Immigration Assessment Authority.
The IAA received new information and assessed the claims of the Applicant afresh. On 4 February 2020, the IAA affirmed the decision not to grant the Applicant a protection visa.
On 11 March 2020 the Applicant asked this Court to review that decision of the IAA. As can be seen by those dates, 4 February 2020 for the affirmation of the decision and 11 March 2020 for the filing of this matter, the Applicant was actually out of time in filing his application. On 21 April 2020, His Honour, Judge Kendall of this Court granted the Applicant an extension of time. The Applicant filed an amended application on 11 February 2021 and the Court had extended the filing dates for written submissions by consent. The matter was listed before me today; that is 19 May 2021. Because of this history, I have done what I can to consider and give this decision as quickly as possible.
As I have indicated previously, the Applicant provided more material and the IAA availed itself of more material, given that nearly three years had passed since the original IAA assessment. This meant that the claims of the Applicant could now be summarised as follows.
The Applicant is a Faili Kurd who was born in Iraq in 1977. He claimed that his parents were arrested by the Iraqi regime and he, even though he was only aged five, was also imprisoned at this time. He said he was forced to work by the prison and that he was assaulted, both physically and sexually, by the prison guards during that time.
The Applicant claims that, after about a year or two in prison, his family was actually expelled to Iran and they became stateless. He said that they lived in a refugee camp. He said that he could not work legally or open a bank account or attend school.
He claimed that when he was about 22 or 23 he was stopped by the Basij in Iran and he was taken to the Basij station because he had no identity documents. He said that he was beaten brutally and detained for a day. He said after this he arranged to be smuggled back into Iraq around 2003. He said that the situation in Iraq was worse and so he returned to Iran after two months.
He claimed that he was then smuggled into Iraq again in 2006 and he worked as a guide for Iranian pilgrims. He said that some Iraqis were very hostile to him and accused him of being a spy. He then gave up that job and he returned to Iran. He said he was smuggled into Iraq again in 2013 and this was so that he could obtain a fake Iraqi passport. He said that he acquired the passport by bribes and the fact that he was able to obtain such a passport did not prove that he was an Iraqi citizen. He said that he has a fraudulent Iraqi birth certificate.
He claimed that he cannot return to Iraq because he is stateless. He said it is illegal for him to do so. He said that he fears being tortured and persecuted because he is a Faili Kurd, a Shia and for his imputed political views due to his links to Iran and the time that he has spent in Australia.
The IAA also noted that, on the material they had, the Applicant may have been affected by the inadvertent release of some of his personal details on the Department of Immigration website in 2014. The Applicant did not make any claim or submission in respect of the data breach, but, because the delegate considered the matter, the IAA also considered whether the Applicant may face harm for this reason.
Added to those claims are these new ones as well: that he has entered into a de facto relationship with a woman called J and he claims that he will face harm because he will be perceived as having transgressed moral codes; and, that he faces harm from his physical and mental health conditions.
The IAA assessed these claims. The IAA looked at whether the Applicant was truly stateless. The IAA noted the inconsistencies in the behaviour of the Applicant.
The request, to which I have earlier referred, that he had made on 19 September 2013 (about a month after he had arrived in Australia), was that he be allowed to return to Iraq. He was interviewed because of that request and in that interview told the department that he was a citizen of Iraq and that he had a right of residency in Iraq. He also said that he had no concern about transit stops on the way. He told the department that the closest international airport to his home was Basra in southern Iraq. He gave the department a particular address in Basra. He said that his uncle was living there and his uncle would be able to meet him at any transit point. After making this request and being interviewed, he then subsequently withdrew this request.
He was then interviewed eight days later as part of the normal unauthorised maritime arrival interviews. In that interview, he claimed to be a citizen of Iraq who was born in Basra. He said that he lived in Basra until three years before his departure in 2013. He gave the interviewer an address in Basra. That address that he provided was the same address he gave at the interview eight days previously. He told the interviewer that his brother was living at this address and was looking after the house.
He said that his family had been expelled from Iraq by the Saddam Hussein regime and that they were still mostly in Iran. He said that his birth was recorded in the Iraqi system and he was able to obtain his birth certificate and an Iraqi national certificate from Basra. He said he obtained those documents in 2009 or 2010.
About three years later, in his SHEV application, the Applicant claimed that he was stateless. He said that his birth certificate was a fake document. In the SHEV interview, he said that he returned illegally to Iraq on three occasions, but only for brief periods. The delegate asked him if he had tried to get his Iraqi citizenship back.
The Applicant did not indicate that he had done so and he claimed that his family had lost all of the documentation linking them to Iraq when they were deported in 1983. Further, in that SHEV interview, he said he travelled to Iraq illegally in 2013 and obtained a false Iraqi passport. He said that he used this passport to depart Iran by the Tehran airport. He was asked whether he had any problems leaving Iran on the fake passport and he said that he had paid a lot of money in order to get a passport that looked authentic.
The delegate put to the Applicant country information about the difficulty of departing Tehran using fake passports. The Applicant’s reply was that Iranian authorities encouraged Iraqis to obtain false passports and to leave Iran using those passports.
As previously indicated, after this interview, the delegate wrote to the Applicant in terms of s 57 of the Act highlighting the inconsistencies between the two interviews in September 2013 and what he was now saying in his application and the interview that the delegate had just held. The IAA noted the response of the applicant to this s 57 letter. The IAA also looked at quite a deal of country information on the position of Faili Kurds and their rights to citizenship of Iraq.
At paragraphs 48 and 49 of their reasons the IAA said this:
48. While I accept that the applicant and his family were removed to Iran, the inconsistencies in his evidence and the country information cited above give me significant doubts as to the credibility of the stateless claim. I consider it is more likely that he has a genuine Iraqi birth certificate and obtained a genuine Iraqi passport and I am not satisfied that he is stateless. I find that he is a citizen of Iraq and that Iraq is the receiving country for the purposes of this review.
49. The applicant claims to have a brother living in Basrah who is "looking after the house" and has also claimed to have an uncle in Basra. The applicant has not claimed to have any immediate family, property or employment prospects in any other part of Iraq, including Baghdad. I consider that he will return to the family home in Basra, at least initially. I find that he will return Basra should he return to Iraq.
Having come to that conclusion, that the Applicant was not stateless and that he would return to Iraq and Iraq being the receiving country, the IAA then assessed whether the Applicant met the refugee criteria. The IAA referred to a great deal of country information as to the position of Faili Kurds in the Basra region. At paragraph 64 of their reasons, the IAA said:
64. Having regard to this profile, circumstances and the information cited above, I am not satisfied the applicant faces more than a remote chance of harm from torture or from ethnic, religious, generalised, indiscriminate or criminal violence in Basra.
The IAA looked at the Applicant’s claim that he would not be able to access government-funded support in Iraq. The IAA accepted that the Applicant had been outside of Iraq for many years and had not worked there, apart from a brief period as a tour guide, and that he may face some difficulties obtaining employment. However, the IAA was not satisfied that any such difficulties would constitute persecution. The IAA looked at the manner in which the Applicant would return to Basra and was not satisfied that the Applicant faced any real chance of harm accessing Basra from Baghdad if he were to be returned to Baghdad from Australia.
The IAA accepted that the Applicant was now in an ongoing relationship with the woman, J, but found that they were not satisfied that the Applicant has a well-founded fear of persecution arising from his separation from J should he return to Iraq.
The IAA looked at the Applicant’s mental health and the psychiatric diagnoses given to the applicant.
The IAA looked at the knee injury that the Applicant claimed to have. The IAA also looked at the evidence that the Applicant had suffered from hepatitis C.
Given those health concerns, the IAA then referred to country information as to the health regime in Iraq. The IAA accepted that the Applicant was suffering from diagnosed mental health conditions, but that there was no evidence that Iraqi citizens who were suffering such conditions are denied mental health treatment.
Whilst there was some evidence as to societal discrimination or stigma for mental health sufferers, the IAA found that the information they had did not indicate that any such discrimination or stigma that the Applicant might experience was likely to include treatment or conduct that would amount to serious harm.
The IAA said that any difficulties the Applicant may have in accessing the health system was not from any discriminatory or persecutory reason. The Applicant had claimed that he would have to travel to seek treatment for his other medical conditions, but the IAA was not satisfied that the Applicant faced any more than a remote chance of being harmed during any travel he may need to undertake to access health care. At paragraph 82 the IAA said:
82. I have sympathy for the applicant but having regard to all of the above, I am not satisfied that the applicant has a well-founded fear of persecution arising from his physical or mental health conditions.
The applicant claimed to fear harm from extremists because of his imputed links to Iran, his imputed statelessness or because he would be imputed as having pro-West or anti-Islamic stance as a result of being in Australia and being a returned asylum seeker. The country information, according to the IAA, did not illustrate that returnees faced harm because of any association, perceived or otherwise, with the West. The IAA noted that the Applicant would be going back to his family home and that he would be assisted by his brother or any other family that he had in Iraq. The IAA said that, even if the Applicant’s time in Australia was to become known, they were not satisfied that the Applicant faced any more than a remote chance of harm for that reason.
The IAA accepted that the Applicant may be identified or imputed as having been in Iran, but was not satisfied that there was a real chance that he face serious harm for that reason. The IAA also looked at the 2014 data breach, but found that there was no information that the Applicant would face harm on return to Iraq because of that breach.
In summary, the IAA said at paragraph 88:
88. I accept that if the applicant returns to Iraq, his profile will be that of a returned asylum-seeker who has been in the West, a Faili Kurd, and an Iraqi citizen, who was affected by the data breach. Having regard to all of the evidence and information above, I am not satisfied that there is more than a remote chance that he will come to the adverse attention of the Iraqi authorities, or any other group or person, and face harm because of that profile. I am not satisfied that he will face a real chance of serious harm as someone who has spent time in, or who may be imputed with links to, Iran, or in reintegrating in Basrah. I am not satisfied that he faces a real chance of harm for any other reason.
The IAA accordingly found that the Applicant did not meet the requirements for the definition of “refugee”.
The IAA then looked at the complimentary protection criteria. The IAA looked at the difficulties the Applicant might have because of his health conditions, including financial pressure resulting from those conditions. The IAA looked at any hostility the Applicant might have if his time in Iran became known or suspected. The IAA looked at the Applicant’s separation from the woman, J. The IAA looked at the difficulties the Applicant might have reintegrating into the community in Basra.
At paragraph 98 of their reasons the IAA said:
I am not satisfied that the applicant faces a real chance of harm for any other reason in Iraq. As “real chance” and “real risk” equate to the same threshold and for the same reasons as given above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Iraq, the applicant will face a real risk of significant harm.
Having come to those conclusions, the IAA then affirmed the decision not to grant the Applicant a protection visa.
The application for review before me has proceeded upon two grounds. I will go to the first ground and that is:
1.The Immigration Assessment Authority (IAA) failed to properly consider whether the Applicant would face a real chance of persecution or real risk of significant harm in Iraq for reasons of him being in a de facto relationship with an Australia non-Muslim woman, or made conclusions that were not open on the evidence.
To understand the background of the first ground, it is important to understand the actual claim that the Applicant was making regarding his relationship with J. That claim is contained at CB 329 and 330. It is contained in a letter by his solicitors to the IAA. It reads as follows:
The new information is that the applicant fears he will face persecution and significant harm in Iraq because he will be perceived as having transgressed moral codes by having entered into a de facto relationship with a Western, atheist, non-Muslim woman identified as “J”. The Applicant entered into this relationship in the final months of 2017 and this relationship is genuine and ongoing. The Applicant fears harm for these reasons at the hands of the Iraqi population generally. He also fears the Iraqi authorities do not have the capacity or willingness to protect him from this harm. He also fears that the risk he faces in this regard extends to all parts of Iraq and there is no place he can relocate in order to avoid this risk.
The letter then says later on:
In order to prevent this new claim being perceived by the Authority as a ‘bare assertion’, it is essential that the Authority considers this new claim together with the supporting evidence (also ‘new information’) outlined in the table below…
The claim was then back up by 12 items of supporting evidence, the most important of which were statutory declarations by the Applicant himself and by the person, J. At paragraphs 13 to 19 of his statutory declaration, which are found at CB 336 and following, the Applicant says the following:
13. My mother is the most important person in the world to me and I was worried when she was concerned about the religion and age difference between us at the beginning. She knows how much I love kids and want to be a parent, but now she understands that I am part of J’s family. She now says ‘J is a gift from God’ every time we talk and she was so happy when I was able to bring my phone to our most recent visit (December 11-16, 2019) and we could video call her together for the first time. My mum has so much sadness in her life and I was really happy to see her smile and be do happy to see us together.
14. I don’t know what will happen in the future, but I want to be with J in any way that is safe and possible. Unfortunately, Iraq is not safe for me and definitely not safe for us as a couple. We would be viewed as breaking the rules of Islam because J would not change to be a Muslim and get married in the Muslim way; in the eyes of Islam, a non-Muslim person cannot marry a Muslim person until they change.
15. After three and a half years of knowing J and two and a half years of being her partner, we have been through so many difficult times that would have broken most other people apart. However, each time things get harder our commitment stays strong but I am worried about the effect on her.
16. Everybody at the detention centre, including guards, refers to J as my wife and always they ask how she is and tell us they hope we can be together soon. I pray every day that we can be together and start a new life.
17. In every way except being able to live together, J and I are already married. We have so much love, we make all our decisions together and we support each other in any way we can. We have a mutual commitment to a shared life (to the exclusion of all others) and our relationship is for life.
18. Being separated for so long has been extremely difficult for us, both emotionally and physically. I am 100 per cent committed to J and just want a chance for us to live together as a married couple.
19. Before J, I was not trust anyone and was very shame about my life, about what happened to me and my family. She helped me not to be shame, she love me so much and she teach me again how I can trust people. She is my life and my future, and without her there is no life and no future. [Identifying information omitted]
At paragraphs 13 to 16 of the statutory declaration by J, which is found at CB 342 and following, J says this:
13. If [the Applicant] is not granted protection in Australia, we are extremely concerned that living in Iraq is not a realistic or safe option for us. I have single parenting responsibilities, cannot speak Arabic and am not Muslim (nor would I, as a feminist and atheist, be willing to convert). We have discussed this in detail and [the Applicant] acknowledges that this would make life almost impossible for us in Basra where he comes from. His family shares our concerns and have appealed to us not to consider this option on this basis and due to the increasing unrest, political instability and health/water infrastructure problems in Basra.
14. From what I have been told by the applicant and have researched, Iraq is an extremely conservative Islamic country. Not only would [the Applicant] face harm because he is in a relationship with a non-Islamic woman, but he would also face harm because he is in a relationship with a Western/Australian woman, who is a feminist, is an atheist, and to whom he is not married in the Muslim way. Both I and [the Applicant] fear that as a result of our de facto relationship or unrecognised marriage, he would be accused of having abandoned his faith, of being a non-believer; of transgressing moral codes; and being a supporter of the West. Further, as an atheist, non-Arabic, western woman in a conservative Islamic country, there is a real risk that I too may suffer harm and that this would have a devastating psychological impact on [the Applicant].
15. [The Applicant] greatly depends on our relationship and the support networks he has established in Australia. As he is now fluent in English and there is a network of people willing to assist with his torture and trauma (T & T) recovery and other health needs, I am hoping we can live together in Melbourne. I am acutely aware of the fact that [the Applicant] had no mental healthcare (especially T & T counselling) until he arrived in Australia in 2013, and it has been impossible for him to benefit from any services while he is in detention as it triggers past trauma, especially his imprisonment, rape and torture as a child. This delay has had impacts on his ability to recover and he remains in a cycle of flashbacks, nightmares, stress-induced seizures, severe anxiety and depression and other health problems.
16. While we do not know the future, we are committed to approaching it together.
The IAA said this at paragraphs 68 and 69 of their reasons:
68. I accept that the applicant is in an ongoing relationship with J and that he claims to fear harm in Iraq because of this relationship. Although the relationship commenced after the delegate’s decision, the applicant knew J before that time. The information provided, including the statements in support, points to this being a genuine and ongoing relationship and I am satisfied that it has not been entered into for the purpose of enhancing the applicant’s claims for protection. The evidence before me indicates that in Iraq contravention of Islamic norms, including by way of mixed marriages or relationships, can lead to harm. The applicant has not provided any evidence that his relationship is known to anyone in Iraq other than his immediate family and his 2020 statutory declaration states:
Around this time I spoke with my family about [J] and our relationship. At first they were worried about the differences between us, mostly about religion and other beliefs, but I told them I had these feelings for a long time and they started to understand. I told them that people in Australia were more understanding about these things and we could be together without being hurt for who we are…
The IAA then also reproduced paragraph 13, which I have already read into the record. Paragraph 69 of the reasons:
69. J has provided evidence that she would be unable to live with the applicant in Iraq if he was to be returned there, due in part to not wanting to convert to Islam and because of religious and sexual discrimination. Given that the applicant and J will not be living together in Iraq, I am not satisfied that there is more than a remote chance that their relationship will come to the attention of persons who would seek to harm the applicant for that reason. I accept that this also means that the applicant and J may be separated should he return to Iraq. While I acknowledge the distress that this may cause both parties, any such separation would not constitute persecution of the applicant for any of the reasons mentioned in s.5J(1) of the Act and I am not satisfied that the applicant has a well-founded fear of persecution arising from his separation from J should he return to Iraq.
When one looks at the ground of the application before this Court, it is difficult to say that the IAA failed to properly consider whether the Applicant would face a real chance of persecution or a real risk of significant harm in Iraq for reasons of him being in a de facto relationship with an Australian, non-Muslim woman. It seems to me that the claim was properly considered.
The Applicant now contends that his claim was much broader. He says that the claim was that the Applicant feared harm from being imputed with particular religious beliefs and political opinions because of his relationship. One must remember that the actual claim was that the Applicant would face persecution and significant harm in Iraq because he will be perceived as having transgressed moral codes by having entered into a de facto relationship with a Western, atheist, non-Muslim woman.
Having concluded that the Applicant and J would not be living together in Iraq, it seems to me that the conclusion that the IAA had that they were not satisfied that there was more than a remote chance that the relationship would come to the attention of persons who would seek to do harm to the Applicant for that reason amounts to a proper consideration of the claim.
The alternative part of this ground was that the IAA made conclusions that were not open on the evidence. That conclusion, according to the Applicant, was “that J has provided evidence that she will be unable to live with the Applicant in Iraq if he were to be returned there, due in part to not wanting to convert to Islam and because of religious and sexual discrimination”.
The word “unable” is a conclusion that was not borne by the evidence, according to the Applicant. Obviously, the word “unable” in its ordinary meaning connotes “could not”, but the fact that the sentence has the words “would be unable” illustrates that the IAA was using the word “unable” to mean “would not”.
The Applicant says that a proper interpretation of what the evidence is, would show that there was, indeed, a contemplation by both the Applicant and J that they would be together in Iraq. The Applicant contends that any other conclusion was simply not open. The Applicant says that if the IAA had made the proper factual conclusion that there was contemplation that they would be living together in Iraq, then that means that the claim that was being made was not properly considered because the ramifications for the Applicant needed to be considered in terms of his actually being in the relationship in Iraq with the person, J.
An examination of what was said in the two statutory declarations is necessary. At paragraph 14 of the Applicant’s statutory declaration, the Applicant is clear that Iraq is definitely not safe for the two of them as a couple because they would be breaking the rules of Islam. At paragraph 18, the Applicant says that he just wants a chance for the two of them to live together as a married couple. In paragraph 19 he talks about J being his life and his future and without her there is no life and no future.
If it is that the Applicant was truly contemplating that he and J would be together in Iraq, it is incongruous that he would be putting her in a situation that he says is definitely not safe for her.
Moreover, if it is that he truly is saying in his statutory declaration that he and J would be together in Iraq, the way in which paragraph 18 is phrased does not make sense. The couple, that is the Applicant and J, would be able to live together as a married couple in Iraq if it were that they were together. Rhetorically, one could ask why does the Applicant, wanting the chance to live together as a married couple, rely upon the granting of a protection visa? Similarly, in paragraph 19, the Applicant is saying that there is no life and no future without J, but if there is a true contemplation of being together in Iraq, why is there any contemplation about being without J?
The situation is amplified in the statutory declaration of J. In paragraph 13, J says that living in Iraq is not realistic or safe. She says that she has single parenting responsibilities. She cannot speak the language. She is not willing to convert to the religion. She said that she and the Applicant have discussed this and the Applicant himself acknowledges that life would be almost impossible for them in Iraq. In paragraph 14, J emphasises why it is that living in Iraq is not realistic or safe.
Looking at all that evidence, it seems to me that it was open for the IAA to say that J has provided evidence that she would be unable to live with the Applicant in Iraq. With that conclusion being open, there then has been a full consideration of the claim. No jurisdictional error has been established and ground one fails.
Ground two is couched in these terms:
2. A reasonable observer might apprehend that the IAA’s decision might have been affected by bias in that the IAA considered information that was prejudicial but irrelevant, even if only subconsciously, and that such reasonable apprehension of bias was not precluded by the IAA’s purported disavowal of reliance on that information.
The previous assessment of this matter was considered by the High Court in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50. By a majority of 3–2, the High Court found that, in the previous assessment of this matter by the IAA, there was an apprehension of bias by the reviewer. This is because there had been given to the IAA, by the secretary, 48 pages of irrelevant and prejudicial material.
As Edelman J has said at paragraph 110 of the High Court judgment, the material involved prejudicial opinion, innuendo and tacit suggestion. His Honour said that:
…A fair-minded lay observer would consider that the prejudice arising from any consideration of this irrelevant material could be substantial.
There were three separate judgments: the dissenting judgment being that of the Chief Justice and Gageler J; another judgment of Nettle and Gordon JJ; and, a separate judgment of Edelman J. Each of the judgments did at various points describe this prejudicial material. In my view, it is actually most helpful for me to rely upon Edelman J’s descriptions, which begin at paragraph 119 of the judgment. His Honour said:
119. The irrelevant material can be divided into three overlapping categories of information about the appellant's character.
120. One category of the irrelevant material provided by the Secretary to the Authority concerned periods of detention of the appellant and offences or alleged offences committed by the appellant. The underlying facts concerning the appellant's commission of an offence, his detention, and his charges were not controversial and were disclosed by the appellant himself in his application. One offence, in March 2015, to which he had pleaded guilty, involved breaking a window whilst he was in detention. The appellant was convicted of damage to Commonwealth property and was released without sentence, with conditions of a reparation payment and good behaviour for six months. The other offence for which he had been charged, as he described it in his application, was "spitting at a guard & breaking a window" during protests in November 2015.
121. However, the material in this first category was not merely factual statements about the appellant's criminal record. It included descriptive language and suggestions of grave concerns when describing the appellant's criminal charges in November 2015. The material referred to his transfer to different prisons in Western Australia, to his alleged "participation" in a "riot" on Christmas Island in November 2015, and to him facing criminal charges in relation to that riot. It also included an internal departmental email chain with an update from the office of the Commonwealth Director of Public Prosecutions concerning the appellant's "criminal matters" and statements by departmental officers that the appellant's criminal matters were in relation to rioting on Christmas Island and that these criminal matters were still under investigation by the Australian Federal Police. References were also made to "multiple incidents" involving the appellant and there were assertions that a Superintendent of the Australian Border Force had recommended that the appellant remain in detention pending the finalisation of an Australian Federal Police investigation into the "riot" on Christmas Island.
122. A second category was material that, by vague suggestions and opinions, had the potential to raise concerns about permitting the appellant to become a member of the Australian community. Putting to one side a reference in the materials to the appellant's "possible mental health issues", which a fair-minded lay observer with knowledge of the appellant's broad circumstances would not today treat as prejudicial, the appellant was described as displaying "a history of aggressive and/or challenging behaviour when engaging with the department". He was twice described as having been "involved in many incidents while in detention", in the context of statements that he had been "considered on several occasions for release from detention" on a bridging visa, such that he was to "be considered as a Cat 2 BVE consideration", from which it might be inferred that the visa had been denied.
123. A third category was material that might have tacitly suggested that the appellant might be a national security risk. There was a reference to the appellant no longer being "of interest to Det Intel" and having been "[e]scalated" to another departmental team. There were two references to the appellant having an "interview with National Security Monitoring Section" and two references to him having been "Esc [escalated] to NSSCRT [which was accepted in oral submissions to be a national security body]".
124. There is no basis upon which, on any reasonable view, this material could be considered relevant to the issues before the Authority. It had no legal relevance to the issues before the Authority, including any assessment of the appellant's credibility. Yet the expressions of opinion, the innuendo, and the tacit suggestions in the material could be seen by a fair-minded lay observer as painting a picture of the appellant as a man of poor or doubtful character.
I have read those matters into the record because, in my view, when one looks through the judgment, that description given by Edelman J describes best the most prejudicial nature of the material to the appellant. As I said, I do note that there are other descriptions given by the other judges in their judgments as to the nature of the material, but this description by Edelman J I found to probably be the most “flamboyant”.
When the matter was remitted to the IAA from the High Court, the secretary did not give the reviewer the 48 pages of irrelevant and prejudicial material. However, the secretary did provide the IAA reviewer with a copy of the judgment of the High Court. This included the description of the material that I have just read into the record.
Because of this information, the IAA wrote to the Applicant on 15 January 2020 in these terms, and I am reading from paragraph 5 of the decision of the IAA:
The IAA has received the material referred by the secretary under s.473CB of the Migration Act 1958 (“the Act”) (“the review material”). This includes a copy of the High Court decision CNY and The Minister for Immigration & Border Protection & Anor [2019] HCA 50. This decision contains references to, and general descriptions of 48 pages of information that the Secretary provided the IAA in 2017 (See [33] – [37], [81], [111] and [119] – [124]. Those documents have not been provided to the IAA with the review material in the present matter and are not before the IAA. This information does not appear on its face to be relevant to the review. However, if you wish to do so you are invited to comment on the information referred to in the Court’s decision…
7. On 29 January 2020 the applicant’s agent sent a further response on behalf of the applicant, which expressed the view that the IAA would be compelled to consider the prejudicial material and that affording the applicant an opportunity to comment would not necessarily erase the risk of subconscious bias. The response conveyed a request from the applicant for the matter to be reconstituted to a different reviewer, without a copy of the prejudicial material.
8. I have taken the applicant’s response into account; however, the secretary did not provide the “prejudicial material” that was provided to the first reviewer, but only the High Court decision itself, which is before me in any event, as the judgment remitting this matter to the IAA. To the extent that the High Court decision refers to the prejudicial material, it is in the context of general descriptions and is not the actual material itself. For clarity, I confirm that although I am aware that the applicant has been charged with offences whilst in immigration detention, the offences (as he disclosed in the SHEV application) are irrelevant to the applicant’s credibility, his claims for protection and my assessment. I have not found it necessary to further consider this issue. In making my assessment, I have disregarded the information in those parts of the High Court’s judgment which summarise and describe the irrelevant information given to the IAA in 2017.
The Applicant still contends that the fact of the IAA reviewer having read and, therefore, considered those paragraphs in the judgment of the High Court, would lead a fair-minded lay observer to still apprehend that there is a subconscious bias that has infected the decision of the IAA. The Applicant contends that no IAA reviewer of this matter could read the judgment of the High Court and then assess the claims of the Applicant without the apprehension being that the IAA reviewer now has a subconscious bias.
The Applicant has referred to FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29. In that case, there was material that, in effect, alleged, putting it as mildly as I can, sexual impropriety on the part of the Applicant. At paragraph 44 of that judgment, the Court said:
44. In the context of a review under Part 7AA of the Act, if highly prejudicial but irrelevant information is given to the Authority, procedural fairness may demand more than the Authority merely disavowing reliance on the information. If the information is sufficiently prejudicial, and the person affected by the decision is not informed of the information or given an opportunity to respond to it, procedural fairness may require the individual decision-maker exposed to the information to recuse themselves. That will not be required in every case. But in our view, it was required in this case.
The Applicant in this case, contends that the prejudicial information here, as described in those paragraphs written by Edelman J, is far worse than what the information was in FSG17 (Supra) as that information is summarised in the judgment of that Court.
Still, the most apposite authority for this issue is CNY17 (Supra) itself, the judgment of the High Court. In the joint judgment of their Honours Nettle and Gordon JJ, the court said this at paragraph 93 and following:
93. In light of this, might the fair-minded lay observer apprehend a lack of impartiality? Yes. This conclusion is largely a factual one. It is therefore necessary to consider the facts of the case in light of the statutory context.
94. The fair-minded lay observer knows the key aspects of the statutory scheme, which are as follows. First, the Secretary must give the IAA any material which he or she considers to be "relevant" to the review. Second, the IAA must conduct its review "by considering the review material" provided under s 473CB. Third, it must do so "without accepting or requesting new information" and "without interviewing the referred applicant", except as provided by Pt 7AA. Fourth, the IAA has no duty to accept or request new information and must not consider it except in exceptional circumstances. Fifth, the IAA is under no obligation to give the applicant any material which was before the Minister.
95. The appellant was not aware of the information provided by the Secretary. The Secretary had decided that the information was "relevant". The IAA then had to consider that information, without the appellant knowing about that information or having any ability to comment on it.
96. The material was prejudicial to the appellant. The material included assertions that the appellant had a history of aggressive or challenging behaviour, had some link to investigations of a "riot" and was himself the subject of investigations for unspecified matters, had been of interest to "Det Intel", and had been refused bridging visas in the past. These matters had not been disclosed by the appellant in his visa application, and, in many cases, were information of which the appellant was not even aware. Nor were they disclosed in the reasons for the delegate's decision. There is a risk that such information would lead a decision-maker in the place of the IAA to have a bias against the appellant, possibly by thinking that the appellant is not a fit person to hold a visa or that the appellant would be a danger to the community.
97. Of course, it does not matter whether the IAA actually had such a bias, or whether the IAA in fact put the prejudicial information aside. There is a risk of subconscious bias here, and that risk cannot be cured by putting the information aside.
98. The idea that the information could or would be put aside is also difficult to reconcile with the statutory scheme. As noted above, the Secretary endorses the information which he or she gives to the IAA as "relevant" to the IAA's task. The IAA then has to consider that information.
99. The Minister submitted that administrative decision-makers routinely set aside irrelevant material. But that is not the point. The material was not only irrelevant, but also prejudicial. Putting the material aside does not overcome the subconscious bias which might result from seeing that material. Nor did the IAA expressly state that the material had been put to one side.
100. Returning to the test, a fair-minded lay observer might apprehend a lack of impartiality on the part of the IAA where: (i) material has been designated as "relevant" by the Secretary; (ii) the IAA must have regard to that material; (iii) the information is prejudicial to the applicant; and (iv) that information is hidden from the applicant. A fair-minded lay observer may well ask why prejudicial information is provided and hidden from the applicant, if that information was not to be taken into account. In those circumstances, the fair-minded lay observer might apprehend that the decision-maker might decide the case other than on its merits.
101. This conclusion depends on the facts of this case. There may be other cases in which the material given to the IAA was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend a lack of impartiality. The particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract. Here, the information was such that a fair-minded lay observer might think it would bias the decision-maker against the grant of a visa to the appellant.
102. If circumstances like this arise, a decision-maker may need to invite an applicant to comment on adverse information to counteract the apprehension of bias. Is this consistent with the statutory scheme? Yes. Section 473DA(2) says that "nothing in this Part requires the [IAA] to give to a referred applicant any material that was before the Minister" when the Minister made the original decision. But this says nothing about "what might be required of the [IAA] in particular circumstances in order to exercise [its] power [under s 473DC(3)] reasonably". The power in s 473DC(3) allows the IAA to get new information. While the IAA "does not have a duty to get, request or accept, any new information" in any circumstances, it may still invite an applicant to comment on information under s 473DC(3) if that would be the best way of avoiding an apprehension of bias.
At paragraph 111 of the decision, Edelman J says this:
It appears from the index of the court book before the Federal Circuit Court that the 48 pages of irrelevant material comprised a very large part of the material provided to the Authority. And yet, the Authority, a professional decision maker, did not suggest that any of that irrelevant and prejudicial material that it had considered had been disregarded or had been given no weight. In these circumstances, a fair-minded lay observer would apprehend, at the very least, that the Authority might have taken the material into account, either consciously or subconsciously. The apprehension might be that the Authority might have formed adverse views of the appellant's character and, consciously or subconsciously, might have acted upon those adverse views when reaching conclusions on the issues in dispute either directly, or indirectly by the effect on its assessment of the credibility of the appellant.
The situation in this case is that the reviewer had obviously read the summary of information, but not the actual 48 pages. The reviewer knew already that the High Court had said that the 48 pages and, therefore, their own summary was prejudicial and irrelevant to the assessment of the claims of the Applicant. The reviewer told the Applicant that he knew of this summary. He invited the Applicant to make submissions upon that material. The reviewer then distinctly declared that they would not be considering that material in the assessment of the claims of the Applicant.
This makes what has happened here totally different to the factual scenario that occurred in the first assessment of the Applicant’s claims and puts it in a different category to the circumstances that obtained in FSG17 (Supra).
The IAA has, in this case, done what both the Court in FSG17 (Supra) and the High Court in CNY17 (Supra) has asked it to do if a situation like this does arise. That is what the IAA has done. They have identified the material, made sure that the Applicant knows what this material is, asked the Applicant for any submission that they wish to make on that material and then declared that the material was irrelevant and would not be considered or given any weight in the assessment of the claims.
In my view, a fair-minded lay observer would not apprehend that there is any bias, even a subconscious bias, in the mind of the reviewer. As such, there is no jurisdictional error and, therefore, ground two fails.
I dismiss the application with costs in the sum of $7,467.00.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 26 May 2021
2
2
0