CQW17 v Minister for Home Affairs
[2019] FCCA 643
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQW17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 643 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority (Authority) affirming decision not to grant a temporary protection visa – whether when considering whether to rely on inconsistent statements of the applicant the Authority was required to consider whether it should invite the applicant to provide new information in relation to the inconsistencies – whether when considering new information containing a new claim the Authority was required to consider whether it should invite the applicant to provide further information in relation to the new claim – Authority did not act unreasonably by not considering whether it should invite the applicant to provide further information. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 5H, 36(2)(aa), 57, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 476. |
| Cases cited: CQW17 v Minister for Immigration & Anor [2017] FCCA 2378 |
| Applicant: | CQW17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3332 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 5 March 2019 |
| Date of Last Submission: | 5 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Baw, by direct access |
| Solicitors for the Respondents: | Ms K Morris of Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3332 of 2018
| CQW17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) raises a discrete issue; and that is whether the second respondent (Authority) came under an obligation to consider whether it should exercise the power conferred by s.473DC of the Act to invite the applicant to give new information, either in writing, or at an interview.
Background
The applicant is a citizen of Iraq who arrived in Australia by boat on 8 May 2013. There is no dispute that because of the circumstances in which he entered Australia the applicant is a “fast track applicant” as that expression is defined in s.5(1) of the Act.
On 24 November 2016 the applicant applied for a Temporary Protection (subclass 785) visa (TPV). The applicant’s claims for protection, as stated in a written statement he provided to the delegate,[1] are as follows:
a)The applicant was born in Iran after his parents had been displaced from Iraq. The applicant grew up in Iran as a stateless person.
b)The applicant returned to Iraq after the fall of the Iraqi regime in 2003. The applicant and his family could not restore their Iraqi nationality certificates until after the applicant’s father was forced to pay large amounts in bribes.
c)The applicant and his family could not stay in Baghdad because their identity papers and the applicant’s Iranian dialect revealed the applicant’s Iranian origins. After the applicant faced “many interceptions in Baghdad/Madinat Al-Thowra”, the applicant’s father was obliged to move to the city of Al-Imara. All the applicant’s family’s properties were confiscated.
d)While in Al-Imara the applicant could not study, and remained a marginalized illiterate unable to read or write. The applicant felt obliged to work with his father in the upholstery craft.
e)During his life at Al-Imara the applicant “faced the interceptions of the Mahdi Army”. They wanted the applicant to join them, but he refused. Because of his “insistence”, the applicant “started to feel the dangers looming over” him, these being the battles between the militias and the Iraqi police and security. In the face of this situation the applicant’s brother (Bother M) “quit his job in the barber shop” and went to Iran where he preferred to remain without work.
f)In 2011 another brother of the applicant left for Australia, leaving the applicant alone to care for a big family when the applicant’s father was suffering multiple diseases. That pushed the applicant’s father to convince the applicant to leave Iraq “because my fate is doomed”.
g)The applicant does not want to return to Iraq because he was treated and looked at as an unacceptable stranger and foreigner because of his background, and the applicant and his family “are accused of being non-Arabs and that we are Iranians (Ajam)”.
[1] CB117-119
In his TPV application form, which the applicant prepared before the written statement, the applicant claimed he left Iraq because he received many threats before he left Iraq, and that Ahal Al Haq “tried to kill me many times”.[2]
[2] CB86
Before the delegate of the first respondent (Minister) the applicant claimed:[3]
a)he feared harm from the Mahdi army because he was young and learning how to be a hairdresser;
b)the Mahdi army came into the shop and told him not to cut hair or use razors or do people’s eyebrows;
c)he feared being conscripted to fight “daesh”; and
d)the applicant is married to a Christian with whom he intends to return to Iraq, with the consequence that the Mahdi army will kill the applicant’s wife and force him to join them.
[3] CB165
On 27 April 2017 the delegate found militia members in the past may have told the applicant to stop hairdressing; the applicant wore tattoos, but these were not visible when covered by a long-sleeved shirt; and the applicant was not married. Having made those findings, the delegate was not satisfied the applicant was a refugee or that the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. The delegate, therefore, decided not to grant the applicant a TPV.
On 4 May 2017, after the delegate’s decision was referred to the Authority pursuant to s.473CA of the Act, the applicant’s legal representative sent to the Authority an email attaching what the representative called a “new statement for the . . . applicant”.[4] Relevant to the issues I must decide in this case is the following part of the new statement:[5]
I am a young man that that came to Australia and applied for Protection, now my brother who is living in Iran has told me that there was a raid on my family house and my father was terribly affected and traumatised and because of that danger and the absence of law and order to follow an arrest on those raiders now my father together with my mum and the rest of my family were forced to leave Iraq and go back to Iran.
[4] CB185
[5] CB187
The new statement made other claims. These included the applicant’s having a fiancé, the applicant’s having recently spoken with his parents who expressed alarm at the prospect of the applicant returning to Iran, the difficulties the applicant would face if he returns to Iran; the applicant’s fiancé cannot go to Iraq because she is an Australian Christian and resistant to “the radical Islamists doctrines”; and if the applicant’s fiancé travels to Iraq she would not wear the hijab and her clothes are western which means that she would be a “target for interception, kidnapping, sexual assault and even death”.
The Authority (First Authority) affirmed the delegate’s decision on 30 April 2017. The First Authority’s decision, however, was quashed by this Court on 29 September 2017,[6] and, on 13 July 2018, the Full Federal Court dismissed the Minister’s appeal.[7]
[6] CQW17 v Minister for Immigration & Another [2017] FCCA 2378
[7] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
After the matter had been remitted to the Authority, the applicant’s representative sent to the Authority a letter dated 13 July 2018. The letter identified what it described as “new information”, and made submissions in support of the applicant’s case for review. Among the new information the letter identified is that which the letter called “New Raid Information”. The letter stated as follows:[8]
[The applicant] confirms that his mother, father and brothers remain in Iran currently, having fled there from Iraq in 2017. Attached to this submission is [the applicant’s] previous notification to the IAA on this point. [The applicant] previously submitted:
My brother who is living in Iran has told me that there was a raid on my family house and my father was terribly affected and traumatised and because of that danger and the absence of law and order to follow an arrest on those raiders now my father together with my mum and the rest of my family were forced to leave Iraq and go back to Iran.
This is credible personal information which was not previously known, and had it been known would have affected consideration of [the applicant’s] claims. There are exceptional circumstances to justify considering this new information, in that it forms a highly significant factual development affecting [the applicant’s] claims, and that news of this development needed to be relayed to [the applicant] from his family in Iran.
[8] CB209, at CB210
Authority’s reasons
The Authority first considered the information that was before it, and in particular whether that included “new information” within the meaning of s.473DC(1) of the Act and, if so, whether it could consider any new information because such information met the requirements provided for by s.473DD. The Authority found there were “various pieces of new information” contained in submissions the applicant’s representative made on 4 May 2017 and in the submissions the applicant’s representative made on 13 July 2018; and it was satisfied that these pieces of new information satisfied the requirements of s.473DD.[9]
[9] CB281, [3]
The Authority:
a)accepted the applicant was born in Yazd; his family were expelled from Iraq during the 1980s because of their Iranian ancestry; and that the applicant’s family were issued green cards;[10]
b)did not accept, however, the applicant’s claim that he was denied access to education in Iran or the right to employment, noting that the applicant said that his father did work in Iran, and that many of the applicant’s relatives remained in Iran;[11]
c)found there was no evidence to indicate that in Maysan Governorate or in Baghdad there has been a trend of mistreatment or discrimination towards persons who speak like an Iranian, or who have been born and raised in Iran, or of Iraqis in such circumstances being treated as foreigners or non-Arabs;[12] and
d)was willing to accept the applicant may not have attended school in Iraq, but it did not accept that the applicant was denied access to education in Iraq.[13]
[10] CB285, [14]
[11] CB285-286, [15]
[12] CB286, [16]
[13] CB286, [17]
Having made these findings, the Authority did not accept the applicant faced any discrimination in Iraq because he was born and raised in Iran, or because of the manner in which he speaks, or because of his reclaiming Iraqi citizenship;[14] and the Authority was not satisfied the applicant would face a real chance of suffering discrimination or harm of any kind if he were to return to Iraq because of his being perceived to be Iranian or Ajam, and a non-Arab, and thus a stranger and a foreigner because of his family’s background, and having been born and raised in Iran.[15]
[14] CB286, [17]
[15] CB287, [17]
The Authority did not accept the claim the applicant made in his application in the TPV that he had departed Iraq because he received many threats, and Al Haq had tried to kill him many times. The Authority did not accept the applicant ever had any encounters with any Shia militias, be it the Mahdi Army or Al Haq, or any other such militia.[16] The Authority also did not accept that brother M returned to Iran, and instead considered brother M remained in Iraq.[17] The Authority relied on a number of matters:
a)In his arrival interview in 2013 and application for TPV the applicant indicated brother M was in Iraq, not Iran.[18]
b)At the interview before the delegate the applicant said brother M had gone to Iran in 2015, which was inconsistent with the applicant’s statement where the applicant claimed brother M had gone to Iran before the applicant left Iraq.[19]
c)The Authority considered there were a number of problems in relation to the applicant’s claim that brother M entered Iran by using a green card, one of those difficulties being that on 21 March 2003 Iran had rendered green cards invalid.[20]
[16] CB287, [19]
[17] CB288, [21]
[18] CB288, [20]
[19] CB288, [20]
[20] CB288, [21]
The Authority then turned the claim made in the new statement that brother M told the applicant there had been a raid on the applicant’s family house and, in response to that raid, the applicant’s father and mother and the rest of the family were forced to leave Iraq and return to Iran. The Authority did not accept that claim for the following reasons:[21]
Such a claim amounts to more than bare assertion given that the information the applicant provided identified the source of the information (his brother), the event (a raid on his family home), the consequences (that his family fled the country) and the reasons they had done so (that there was an absence of law and order that meant the raiders were unlikely to be arrested). However, for the reasons already given above I do not accept that the applicant’s brother, Mr M, has been living in Iran and I therefore find it implausible that the applicant could have been informed of such matter by his brother who is living in Iran. Moreover, and although the claim amounts to more than bare assertion, this is not to say that it amounts to compelling probative evidence. The applicant is in contact with his family but he has never provided, nor has he indicated that he has ever requested, any information about what the nature of this “raid” was in terms of what occurred, when exactly it occurred in 2017, and anything that might be known or suspected about who the perpetrators [are]; or anything about when in 2017 and by what means his family were able to enter Iran, and where it is in Iran his family have gone to. I find it implausible that the applicant would not have sought such information if such an event had actually taken place. Given this, and given that I do not accept that the applicant’s brother Mr M has been living in Iran, and given the manner in which I have found that the applicant is not a credible source of evidence about his family movements more broadly, I do not accept that any of the applicant’s immediate family members have gone to Iran.
[21] CB289, [22]
The Authority accepted the applicant has married an Australian citizen who was born in Jordan, that she is a Christian, and that and she will accompany the applicant if he were to return to Iraq. It did not accept, however, there is a real chance that harm of any kind, from militias or radical Islamists or any other actor, would come to the applicant or his wife because of their marriage, or because the applicant’s wife is a female Christian and an Australian national who has lived most of her life in Australia, or because of the views the applicant’s wife holds or because of what the applicant’s wife might say if she settled in Iraq.[22]
[22] CB292, [28]
The Authority was not satisfied there is a real chance the applicant would be conscripted to fight Islamic State;[23] and although the Authority accepted that while living in Iraq the applicant worked as a barber, and that he provided services that included the grooming of eye brows and the fashioning of distinctive styles, the Authority did not accept the applicant attracted adverse attention from any Shia militias.[24] The Authority also did not accept the applicant faced a real risk of harm because he is a non-practising Muslim who drinks, dances, dates girls, and has adopted western culture in style and mentality,[25] or because he would be perceived to be unsupportive of Shia political groups,[26] or because of generalised violence.[27]
[23] CB292, [29]
[24] CB293, [32]
[25] CB294, [33]
[26] CB294,[34]
[27] CB295-296, [36]
Given its findings, the Authority was not satisfied the applicant was a “refugee” within the meaning of s.5H of the Act, or that he met the complementary protection criterion provided for by s.36(2)(aa) of the Act.
Ground of application
The applicant relies on the following ground:
The review by the Second respondent (the Authority) under s.473CC of the Migration Act 1958 (Cth) miscarried for jurisdictional error:
a. The Authority’s statutory power in s.473DC of the Migration Act is to be exercised reasonably.
b. It was legally unreasonable for the Authority not to consider getting information from the respondent where it knew that it did not have, but the applicant was likely to have, information on the raid on the applicant’s family home and how this forced his family to flee Iraq and return to Iran.
c. The Authority did not have that information because it was provided to the Authority subsequent to Delegate’s [sic] decision.
d. The Authority’s failure to consider the exercise of that discretionary power meant that it was disabled itself from giving a proper, genuine and realistic consideration to whether the applicant has a well-founded fear of persecution if he were returned to Iraq or whether ether is a real risk he would suffer significant harm in Iraq.
Ms Baw, counsel for the applicant, submitted that the circumstances of this case are not materially distinguishable from those considered by Barker J in DFW16 v Minister for Immigration and Border Protection.[28] On the other hand, Ms Morris, who appeared for the Minister, submitted that the circumstances of this case are distinguishable from those in DFW16 and, for that reason, the Authority came under no obligation to consider exercising the discretion conferred by s.473DC(3). Before I further consider the submissions of the parties, it will be convenient to say something about s.473DC(3) and the circumstances in which the Authority may come under an obligation to consider exercising the power that subsection confers.
[28] [2018] FCA 746
Section 473DC
Section 473DC is contained in Part 7AA of the Act which provides for a particular form of merits review for a particular class of decision that falls within the definition of “fast track reviewable decision” given by s.473BB of the Act (FTR decision). The process of review is initiated by the Minister referring a FTR decision to the Authority, as required by s.473CA of the Act. When or shortly after the Minister refers a FTR decision to the Authority, s.473CB of the Act requires the Secretary of the Department to provide to the Authority the “review material”, being the information identified in s.473CB(1) of the Act. Under s.473CC(1) the Authority must review the FTR decision; and s.473DB requires the Authority to review the FTP decision by considering the review material without accepting or requesting new information, and without interviewing the applicant. An exception to this requirement is provided by s.473DD of the Act. That section permits the Authority to consider “new information”, being information that satisfies the requirements of s.473DC(1); but the Authority is permitted to consider new information only if it is satisfied of the matter stated s.473DD(a), and of one of the two matters stated in s.473DD(b) of the Act.
That, then, leads me to s.473DC of the Act: s.473DC(1) confers on the Authority the power to get new information; s.473DC(2) makes it clear that the Authority does not have a duty to get, request, or accept any new information, whether the Authority is requested to do so by the applicant or by any other person; and, s.473DC(3) deals with the means by which the Authority may get new information – it may do so by inviting a person, orally or in writing, to give the new information either in writing, or at an interview.
Some authorities
There is authority for the principle that, although the Authority is under no obligation to obtain information under s.473DC(1) of the Act, it has the power to do so and, having that power, the Authority may in the particular circumstances of a case come under a duty to consider whether it should exercise that power, and to act reasonably when considering whether to exercise that power. That principle was established by the Full Federal Court in Minister for Immigration and Border Protection v CRY16.[29]
[29] [2017] FCAFC 210
In CRY16 a judge of this Court found the Authority acted unreasonably, and, for that reason, made a jurisdictional error, by not giving the appellant an effective opportunity to address an issue the Authority found dispositive, and by failing to exercise one of the options that were available to the Authority to permit the applicant to address the issue the Authority found to be dispositive. Before the Full Federal Court the Minister submitted the primary judge erred because, in the light of s.473DA of the Act, the only relevant question was whether Part 7AA required the Authority to give such notice to the appellant; and the power conferred by s.473DC(3)(b) was purely discretionary with the consequence that the Authority was not even under a duty to consider the possible exercise of that power.[30] The Minister also submitted that the principles of legal unreasonableness could only apply where the Authority had considered whether it should exercise the power conferred by s.473DC(3) and decided to exercise that power adversely to an applicant.
[30] [2017] FCAFC 210, [27], [28]
The Full Federal Court found that the question on the appeal was whether it was “legally reasonable in the circumstances of the particular case for the Authority not to consider the exercise of its power to get documents or information”.[31] It did not accept the Minister’s submission that the Authority could not come under an obligation to consider whether it should exercise the power conferred by s.473DC(3). The Full Federal Court said:[32]
. . . there is no doubt that the Authority had power to get any documents or information which were not before the Minister and which the Authority considered may be relevant. Put differently, that the Authority has a discretion rather than a duty to get those documents or information does not provide an answer to whether or not the Authority acted reasonably as explained in Li. We do not accept the submission on behalf of the Minister that the only relevant question is whether Pt 7AA required the Authority to give such notice to a referred applicant.
[31] [2017] FCAFC 210, [67]
[32] [2017] FCAFC 210, [69]
The Full Federal Court found the second of the Minister’s submissions as “too broad”.[33] While the Full Federal Court found there was no evidence to suggest the Authority exercised, or even considered exercising, its power under s 473DC, it did not “accept the submission that, given the presence of s 473DC(2), the Authority’s non-engagement with s 473DC(3) meant that it could not be said that it proceeded in a legally unreasonable manner”.[34]
[33] [2017] FCAFC 210, [70]
[34] [2017] FCAFC 210, [72]
The Full Federal Court found that, in the circumstances of that case, the Authority did come under a duty to consider exercising the power under 473DC. The information the primary judge found the Authority ought to have considered obtaining related to the issue of relocation; that issue had not been considered by the delegate, and the Authority must be taken to have known the delegate had not considered that question; and there was nothing in the interview with the delegate that concerned the question of relocation.[35] The Full Federal Court concluded:[36]
Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
[35] [2017] FCAFC 210, [76]
[36] [2017] FCAFC 210, [82]
It would be convenient if I next consider the judgment of Barker J in DFW16, given that counsel for the applicant particularly relies on it. In that case the Authority did not accept as credible the appellant’s claims because it found that statements the applicant had made in an application for a Safe Haven Enterprise (subclass 790) visa (SHEV) which he lodged in 2015 were inconsistent with statements the applicant had made in an invalid application for protection the applicant lodged in 2013. The question that arose before Barker J was whether in the particular circumstances of the case “the Authority unreasonably failed to consider exercising its undoubted power to get more information from the appellant by inviting him, pursuant to s 473DC(3), to deal with the question of apparent inconsistencies between his 2013 protection application grounds and the grounds advanced on the SHEV application”.[37] His Honour concluded the Authority did act unreasonably. The matters which his Honour considered gave rise to the duty by the Authority to consider whether to obtain information about the inconsistencies were that two years separated the protection visa application the applicant lodged in 2013 and the application for a SHEV the applicant lodged in 2015; the SHEV application did not refer to the application made in 2013; and a letter the Department had sent to the applicant was open to being interpreted as suggesting that the 2013 application would be ignored.[38] Barker J found that these matters “should have caused the Authority at least to consider whether it should invite the appellant to comment on the apparent inconsistencies it had identified as arising out of the two applications in its own decision-making process.”[39]
[37] [2018] FCA 746, [56]
[38] [2018] FCA 746, [62]
[39] [2018] FCA 746, [62]
Parties’ submissions
Counsel for the applicant, in her written submissions, identified the following matters which she submitted rendered it unreasonable for the Authority not to have considered whether it should obtain information from the applicant about his claim that his parents’ house had been raided, causing them to flee to Iran. The first is that the Authority relied on its not having accepted the applicant’s claim that brother M had returned to Iran in circumstances where:
a)the delegate made no finding about whether the applicant’s brother had fled to Iran;[40]
b)there was a seventeen month delay between the delegate and the Authority making their decisions;[41]
c)the delegate “made no reference to not accepting” that brother M was in Iran, “nor to the alleged intricate inconsistencies in the brother’s movements that were said to arise from the Applicant’s documents and interviews”;[42] and
d)there was “nothing obvious by way of a signal to the Applicant, from the terms of the Delegate’s decision that the Applicant should make submissions or seek to give new information to the Authority about any doubt that the Applicant’s brother was in Iran for the purposes of the Authority’s consideration of the Delegate’s decision”.[43]
[40] Applicant’s Outline Submissions, [19]
[41] Applicant’s Outline Submissions, [20]
[42] Applicant’s Outline Submissions, [20]
[43] Applicant’s Outline Submissions, [20]
In those circumstances, counsel for the applicant submits, the Authority should have considered whether it should invite the applicant to comment on the alleged inconsistencies, particularly “when the alleged inconsistencies are difficult to follow and rely on an elaborate trail that may not in fact be an accurate account or chronology of the evidence”.[44]
[44] Applicant’s Outline Submissions, [21]
It should be apparent that this submission does not reflect the ground stated in the amended application. The ground in the amended application is directed to the Authority’s being required to consider obtaining information from the applicant about the raid of his parents’ house in Iran. The submission I have just set out is directed to inconsistencies on which the Authority relied for not accepting the applicant’s claim that brother M had returned to Iran. I will treat this submission as a distinct ground.
The second matter on which counsel for the applicant in her written submissions relied for submitting the Authority acted unreasonably by not considering whether it should obtain information from the applicant about the raid of his parents’ house is that the Full Federal Court found that, “on its face” the claim the applicant had made about the raid of his parents’ home in Iraq and their fleeing to Iran was “cogent and has a logical bearing on the risks he would face if he returned to Iraq”.[45] Counsel submits that this finding by the Full Federal Court should have caused the Authority at least to consider whether to invite the applicant to provide “the further detail it required”.[46]
[45] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, at [54]
[46] Applicant’s Outline Submissions, [24]
The third matter on which counsel for the applicant, in her written submissions, relies is related to the first matter on which counsel relies. Counsel submits that, “given the Delegate’s decision”, the applicant was entitled to assume the Authority accepted his brother was in Iran. Further, the applicant was not on notice that the applicant’s evidence of his family’s movements was not generally credible.[47]
[47] Applicant’s Outline Submissions, [25]
During oral address, counsel for the applicant submitted that another reason why the Authority ought reasonably to have considered whether it should obtain further information from the applicant about his claim that his parents’ house had been raided is that the information was not before the delegate and, therefore, there was no opportunity for the applicant to be questioned about it. Also during oral address, counsel for the applicant identified a number of cases where it has been held that the Authority did not act unreasonably by not considering whether it should exercise its power under s.473DC of the Act.[48] Counsel submitted that the facts in those case are materially different from those before me.
[48] Counsel identifies the cases in a document titled “Summary of facts Distinguishing Other Cases from CQW17”
In his written submissions the Minister submits that, in the circumstances of his case, the Authority did not come under an obligation to consider whether it should obtain further information from the applicant. The Minister submits that the primary rule under s473DB of the Act is that the Authority is expected to evaluate for itself the material considered by the delegate, and in so doing, it is to proceed without accepting or requesting new information or interviewing the referred applicant. The Minister also submitted the Authority is not required to inform an applicant of reservations it may have about the appellant’s case and to provide the applicant with an opportunity to respond. The Minister acknowledges that in particular instances it has been held the Authority was required to consider acting under s.473DC of the Act. These cases, the Minister submits, related to information relevant to relocation where the applicant was likely to have the information, and where the question of relocation had not been raised before the delegate. The Minster further submits that the applicant had been given an adequate opportunity to advance evidence in relation to his claim that his parents’ house had been raided.
In her address, Ms Morrison submitted that there can be no question that the applicant was on notice that an issue the Authority would be required to consider is whether it should accept the applicant’s claim that the applicants’ parents’ house had been raided, and that is because the very purpose of the applicant putting forward that claim was for the Authority to consider it.
Did the Authority Act unreasonably?
As I have already noted, the applicant should be taken to make two distinct claims, namely, that the Authority acted unreasonably by failing to consider whether to invite the applicant to give information about the inconsistencies on which the Authority relied in finding brother M did not return to Iran, and about the applicant’s claim that his parents’ house had been raided, causing them to flee Iraq and return to Iran.
Invitation to explain inconsistencies about brother M’s departure
An essential premise on which the applicant relies for submitting the Authority ought to have considered whether to invite the applicant to provide information about the inconsistent statements the Authority found the applicant made is that the applicant did not have notice or fair notice that his claim that brother M had returned to Iran before the applicant had departed Iraq might not be accepted. The applicant relies on the delegate’s not having made a finding that it did not accept the applicant’s evidence on that point, and to the delegate’s not having put to the applicant the inconsistencies on which the Authority relied.
The applicant has not put into evidence the transcript of the applicant’s interview with the delegate. That need not be fatal because there is some evidence of what occurred at the delegate’s interview of the applicant. Some of the evidence is to be found in the delegate’s reasons for decision. These do not refer to the applicant’s being asked questions about the applicant’s claim that his brother had left for Iran before the applicant left Iraq; and, as counsel for the applicant submits, the delegate makes no finding about this aspect of the applicant’s claim.
Evidence of what occurred before the delegate is also contained in the Authority’s reasons for decision. The Authority refers to:
a)the delegate having asked the applicant about when brother M had departed for Iran, in response to which the applicant said this happened in 2015, stating that brother M had entered Iran using a green card;[49]
b)the delegate having asked the applicant why brother M had entered Iran using a green cad when the applicant had used his passport to enter Iran in 2011, in response to which the applicant said that this was because the laws had changed in 2011;[50] and
c)the applicant’s representative indicating that a green card could not have been used to enter Iran, and submitting the “applicant was simply not properly informed about green cards”.[51]
[49] CB288, [20]
[50] CB288, [21]
[51] CB288, [21]
In the light of this evidence, I am not satisfied the applicant was not on notice that his claim that brother M had departed Iraq before the applicant departed Iraq might not be accepted by the Authority. On the contrary, the evidence satisfies me the applicant was on notice the Authority might not accept that part of the applicant’s claims. That is so even if the delegate did not put to the applicant the inconsistent statements on which the Authority relied; and even if the delegate made no finding about the applicant’s claim concerning brother M’s departing Iraq.
It might be said that my conclusion is contrary to the judgment of Barker J in DFW16. In my opinion, the circumstances of the case before me are different from those that were before his Honour. In DFW16 there was at the very least a risk that the appellant would have understood from a letter given to him by the Department that the application for a protection visa that he made in 2013 might be ignored. Further, it is not clear from DFW16 of the extent of the grounds on which the Authority relied for not accepting the applicant’s claims to be credible. In the case before me, on the other hand, the Authority did not only rely on the inconsistent statements; it also relied, and perhaps it relied to a greater extent, on the implausibility of the applicant’s claims that brother M entered Iran in 2011 using a green card in circumstances where since 2003 Iran did not permit persons to enter its territory by use of a green card.
For these reasons, this part of the applicant’s claims fails.
There is a final matter to note about this part of the applicant’s case. Whether brother M had left for Iran before the applicant left Iraq was relevant to the applicant’s claim that the applicant’s parents’ house had been raided as a consequence of which the applicant’s parents’ had fled to Iran. If the Authority was not required to consider inviting the applicant to give further information about that claim because the applicant was on notice that it was an issue the Authority was going to consider, it would not have been unreasonable for the Authority not to consider inviting the applicant to give information about a matter relevant to the claim.
Invitation to provide information about house raid
As I have already noted, counsel for the applicant relies on two matters for contending that the Authority ought reasonably to have considered obtaining information from the applicant about his claim that his parents’ house had been raided. The first is the Full Federal Court’s finding that the applicant’s claim was “cogent and has a logical bearing on the risks he would face if he returned to Iraq”.[52] That finding, however, goes no further than stating that the claim on its face is cogent, and warranted consideration. That is what the Authority did; it considered the claim and, for the reasons it gave, did not accept it. The Full Federal Court’s finding does not imply that when considering the claim the Authority was required to consider whether it should invite the applicant to give information about it.
[52] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, at [54]
The second matter on which counsel for the applicant relies is that, being new information on a substantive claim, the applicant was not questioned about it by the delegate. That by itself did not give rise to any obligation by the Authority to consider whether it should ask the applicant to provide further information about the claim. As the Minister submitted, the applicant was on notice that the issue the Authority was required to determine in relation to the applicant’s claim that his parents’ house was raided was whether it would accept that claim; and the applicant had every opportunity to put to the Authority information relevant to the claim, and in particular, information the Authority found it was reasonable to expect the applicant would have provided had the applicant’s parents’ house been raided, as the applicant claimed. What was said by the Full Federal Court about the appellant in DYK16 v Minister for Immigration and Border Protection can be said with equal force about the applicant in the case before me:[53]
Like DGZ16 and CGL17, the circumstances in the case before this Court are fundamentally different from those in CRY16. Unlike in CRY16, there is nothing in this case to suggest that the appellant did not have an adequate opportunity to advance any evidence or submissions he wished to in support of his claims, or that the IAA had disabled itself in some way from considering an issue.
[53] [2018] FCAFC 222, [71]
This part of the applicant’s claim also fails.
Materiality
If, contrary to my conclusions, I had found the Authority acted unreasonably by failing to consider whether to obtain further information, I might have been required to consider whether the Authority’s failure deprived the applicant of the possibility of a successful outcome. [54] Although I do not make any finding about materiality, it may be appropriate to observe that there is no evidence before me that identifies or suggests what information the applicant would have provided or would have been able to provide had the Authority invited the applicant to provide further information. In those circumstances, it may have been difficult to show that the Authority’s failure to consider whether it should invite the applicant to provide further information was material to its decision.
[54] “Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof.” – Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, [4].
Conclusion and disposition
The applicant has not succeeded on the grounds on which he relies. I propose, therefore, to order that the application be dismissed. I will consider the question of costs when I pronounce my order.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 15 March 2019
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