CQW17 v Minister for Immigration & Anor
[2017] FCCA 2378
•29 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQW17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2378 |
| Catchwords: ADMINISTRATIVE LAW – Mandatory consideration – failure to consider. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.5, 5AA, 7AA, 36, 46A, 473BB, 473CA, 473DA, 473DB, 473DD, 474 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 BVZ16 v Minister for Immigration & Anor [2017] FCCA 775 An v Minister for Immigration & Citizenship (2007) 160 FCR 480 Maan v Minister for Immigration & Citizenship (2009) 179 FCR 581 BVZ16 v Minister for Immigration & Anor [2017] FCA 958 |
| Applicant: | CQW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1886 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 22 September 2017 |
| Date of Last Submission: | 22 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue bringing the decision of the second respondent dated 30 May 2017 into this Court to be quashed.
A writ of mandamus issue directing the second respondent to review according to law the decision to refuse the applicant a protection visa made by the first respondent’s delegate on 12 April 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1886 of 2017
| CQW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iraq who arrived by boat at Christmas Island on 8 May 2013. On 24 November 2016 he lodged an application for a protection visa with the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Iraq because of sectarian violence and his ethnicity (amongst other things). On 12 April 2017 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”). The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the IAA’s decision will be set aside and the matter remitted to be determined according to law.
Fast track review legislative framework
Section 5AA of the Act relevantly provides that a person is an “unauthorised maritime arrival” if he or she entered Australia by sea at an excised offshore place at any time after the excision time for that place and the person became an unlawful non-citizen because of that entry. Section 5(1) of the Act prescribes the Territory of Christmas Island, amongst other places, as an excised offshore place. Its excision time was 2pm on 8 September 2001 by the legal time in the Australian Capital Territory.
Section 46A(1) of the Act provides that an unauthorised maritime arrival cannot make a valid application for a visa. However, s.46A(2) of the Act provides that the Minister may, in his or her discretion, lift the bar on an applicant making such an application.
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 5(1)(a) of the Act relevantly defines a “fast track applicant” as, relevantly, a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination …
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Part 7AA of the Act sets out the IAA fast track process. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that the division is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The relevant sections of that division relevantly provide:
Division 3—Conduct of review
Subdivision A—Natural justice requirements
473DA Exhaustive statement of natural justice hearing rule
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Subdivision B—Review on the papers
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
Subdivision C—Additional information
…
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
…
Background facts
The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Minister in his written submissions as follows:
6.If returned to Iraq, the applicant claimed to fear harm due to:
(a)the general security situation in Iraq, and sectarian violence. The applicant claimed that there were “too many car bombs in Iraq”. The battles between militias and the Iraqi authorities “brought grave dangers upon” the residents of the applicant’s home town of [town];
(b) threats from, and forced recruitment by, militia groups. In an interview with a Departmental officer on 30 July 2013, the applicant claimed that he had not been targeted in Iraq, but feared generalised violence. In his TPV application, the applicant claimed he had “received many threats” before he left Iraq, and that the Ahal Al Haq (AAH, an Iraqi militia group) had “tried to kill [him] many times”. (However, the Tribunal noted the AAH claim had “not been repeated” by the applicant;
The applicant claimed to have been working as a hairdresser in Iraq since 2010. The applicant claimed that the Mehdi Army (an Iraqi militia group) had approached the applicant in Iraq, and told him not to “trim the eyebrows and style the hair”. The applicant agreed to not perform that work. The Mehdi Army then asked him to join them. The applicant did not wish to do so as he was a “peace-loving man”, but did not give them an outright refusal as “he would be in danger”;
(c)discrimination by Iraqis. The applicant grew up in Iran. When he moved to Iran [recte: Iraq] in 2003, the applicant’s “broken Iraqi dialect” revealed his Iranian origins. As a result of this, the applicant “suffered oppression” in Iraq as an “unacceptable stranger”: He and his family was “looked down on”;
(d)having tattoos. The applicant claimed to have tattoos on his arms and chest. If the Iraqi militias realised this, they would “cut his arms off”; and
(e)having a Christian wife. The applicant claimed he would be marrying a Christian Australian (referred to in these submissions as [X]). The applicant claimed that [X] “would not wear a scarf” and would be killed by the Mehdi Army if she went to Iraq.
(References omitted)
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. The IAA’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:
7.The IAA had regard to the material referred by the Secretary under s.473CB of the Act. It also assessed the new information contained in the applicant’s submissions of 4 May 2017 against s.473DD of the Act. The new information consisted of new claims for protection based upon: (i) the applicant being a non-practicing [sic] Muslim; and (ii) his parents’ relocation to Iran. The IAA found, in substance, that the information did not satisfy s.473DD of the Act.
8.… In coming to its conclusions, the IAA:
(a)accepted that the applicant feared sectarian violence, but found he did not face a real chance of harm on that basis if he were to return to his home town. The IAA also found the applicant could safely return to his home town;
(b)noted that the applicant’s claims for protection had “varied considerably since his arrival in Australia”. Based on these inconsistencies, the IAA did not accept that the applicant had been threatened by members of any militia group, or that any militia group/s had attempted to recruit him, forcibly or otherwise;
The IAA did not accept that the applicant was at risk of harm due to his profession as a barber. The IAA considered it was only the provision of “western style haircuts or beard/eyebrow trims” that were objected to by militia groups. The IAA did not accept that the applicant had ever provided those services. Alternatively, even if the applicant had offered those services, the IAA found the applicant had ceased to do so, a decision that did not constitute the modification of an immutable characteristic;
(c)accepted that the applicant may have been “looked down on” and suffered verbal harassment due to his accent. However, the IAA did not accept that this constituted serious harm;
(d)noted that tattoos were “becoming more commonplace”, and did not accept that the applicant’s tattoos would expose him to a risk of harm; and
(e)found there was “no independent evidence” that the applicant was married to a Christian woman, or would become married to such a woman in the foreseeable future. In coming to this conclusion, the IAA noted that the applicant had falsely claimed to have lived with [X] for three years. It also noted the subsisting Apprehended Personal Violence Order against the applicant in respect of two persons, including [X].
Proceedings in this Court
In his application commencing these proceedings the applicant alleged:
1.Ignoring relevant material
2.Relying on irrelevant material
3.An incorrect interpretation and/or application to the facts of the applicable law in a way that affects the exercise of power
The allegations which the applicant made in his application were unparticularised and so lacked meaningful substance in the context of an application for judicial review. Similarly, his address to the Court did not identify any arguable ground of judicial review because it focussed on the Tribunal’s findings and decision concerning the merits of his visa application which, as noted earlier in these reasons, the Court has no power to review.
However, that said, it does appear that part of the IAA’s decision was based on incorrect facts, although no criticism attaches to the IAA in that connection. At the hearing of this application the applicant was accompanied by a young woman who, although she did not give evidence, appears to have been X. The Court was provided with unsworn accounts of events which suggested that the facts underlying the Apprehended Personal Violence Order may have been inaccurate and that the applicant had, indeed, lived with X for three years as he alleged. Unfortunately for the applicant, the simple fact that the IAA may have relied on facts which, unknown to it, were not correct does not amount to jurisdictional error.
In the discharge of his duty as a model litigant, the Minister raised another matter of greater significance. Under the hearing “Information before the IAA” the IAA relevantly said:
4.On 4 May 2017 the IAA received a submission from the applicant. Section 473DD of the Act provides that the IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances which justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of .the applicant's claims.
5.In his email the applicant essentially restates his claims for protection. This is not new information. He also however raises a new claim for protection, this being that that he is a non-practising Muslim, he drinks (presumably alcohol), dances and dates girls. This has not been raised at any point during the applicant's PV application process and is new information. The applicant has not provided any information as to why the information was not or could not have been provided to the Department of Immigration and Border Protection (the Department). I note that the applicant was represented before the Department. I am not satisfied that this information could not have been provided to the delegate before the decision was made or that it constitutes credible personal information which was not previously known and had it been known may have affected the consideration of the applicant's claims.
6.The applicant also states that he has recently been informed by members of his family that there was a raid on his parents' house and they have been forced to relocate to Iran. If this event post-dated the delegate's decision then it clearly could not have been provided to the delegate. The applicant goes on to discuss why he could not return to Iran, however as he is an Iraqi national the central consideration is whether he is unable or unwilling to avail himself of the protection of Iraq, not of Iran. I am not satisfied that there are exceptional circumstances to justify the consideration of this information.
Section 473DD(a) of the Act is concerned with whether exceptional circumstances exist which would justify consideration by the IAA of “new information”. The Minister observed in relation to the quoted para.5 that the IAA had not explicitly “referenced” s.473DD(a) when deciding whether to consider “new information” from the applicant but submitted that a finding that any one subparagraph of s.473DD is not satisfied is sufficient for the IAA to find that s.473DD is not satisfied with the consequence that it need not consider the “new information”. He argued that s.473DD only obliges the IAA to make findings in respect of both subparagraphs if it ultimately finds s.473DD is satisfied and so has regard to the “new information”. He also submitted that it should be inferred that even though the IAA had not referred expressly to s.473DD(a), it ought to be inferred that had it nevertheless considered whether exceptional circumstances warranting consideration of the information existed.
As I observed at first instance in BVZ16 v Minister for Immigration & Anor [2017] FCCA 775 at [27], it would appear to be implicit in s.473DD(a) that the IAA must consider whether new information placed before it is of a quality and significance that its availability, and possibly its existence, amounts to a circumstance which is exceptional in the sense discussed in cases such as An v Minister for Immigration & Citizenship (2007) 160 FCR 480 and Maan v Minister for Immigration & Citizenship (2009) 179 FCR 581. As noted by White J in his appeal reasons in BVZ16 v Minister for Immigration & Anor [2017] FCA 958 at [9], the unavailability of information at the time of the delegate’s decision might contribute to a finding that exceptional circumstances existed before the IAA.
As for this case, it does not appear to me that the IAA did consider, in the context of the information in question, whether exceptional circumstances did justify it considering that information. The difference between the IAA’s reasoning in para.5 of its decision record and its reasoning in para.6, where the possible existence of exceptional circumstances was expressly considered, lies in the fact that in the latter s.473DD(b) had been satisfied and so s.473DD(a) had to be addressed squarely, whereas in the former s.473DD(b) had not been satisfied. I infer, in that circumstance, that the IAA believed that it was not necessary for it to also consider s.473DD(a) in the context of the discussion in para.5 of its decision record.
The question then is whether such a failure amounts to jurisdictional error. On appeal in BVZ16 v Minister for Immigration & Anor [2017] FCA 958, White J found at [36] and [37] that it does. There his Honour found that as the trial judge I had erred by not finding that the IAA had erred by only considering s.473DD(a) and not s.473DD(b) too. As a result, I must conclude in this case that the IAA’s failure to consider s.473DD(a) amounts to a similar reviewable error.
Conclusion
Jurisdictional error on the part of the IAA has been demonstrated.
Consequently, the matter will be returned to the IAA to be determined according to law.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 29 September 2017
7
3
4