CRM18 v Minister for Home Affairs

[2018] FCCA 3312

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRM18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3312

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misconstrued s 473DD of the Act – whether the Authority failed to consider new information – whether the Authority engaged in a final or deliberate determination of credibility in respect of new information – whether the Authority failed to consider exceptional circumstances – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DD, 476

Cases cited:

CSR16 v Minister for Immigration & Border Protection [2018] FCA 474

DLB17 v Minister for Immigration and Border Protection [2018] FCCA 1299

Minister for Immigration & Border Protection v CQW17 [2018] FCAFC 110

Applicant: CRM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1448 of 2018

Judgment of: Judge Street

Hearing date: 30 October 2018

Date of Last Submission: 30 October 2018

Delivered at: Sydney

Delivered on: 30 October 2018

REPRESENTATION

Counsel for the Applicant: Mr D McDonald-Norman

Solicitors for the Applicant: Westside Legal

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Grant leave to the applicant to rely upon the further amended application filed on 16 October 2018.

2. The further amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,100.00.

DATE OF ORDER: 30 October 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1448 of 2018

CRM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 23 April 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 13 June 2013. On 6 July 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

3. The applicant was found to be a Sunni Muslim and had a brother who was pressured to leave his job in a hotel because he is Sunni. The applicant had another brother, who with him, had a shop in a particular location. The applicant alleges Hezbollah tried to force the applicant and his brothers to join their fight in Syria but they refused, and that is when they discovered that the family was Sunni. The applicant alleges Hezbollah asked his brothers, M and N, for money, and in February 2013 their agents attacked the shop run by M and N and shot his brother, N, and assaulted his father. The applicant alleges he fled to an area where he stayed with relatives, but that the agents continued to follow and they have continued to harass his brother, N. The applicant departed Lebanon on his own passport on 15 May 2013. The delegate found the applicant failed to meet the criteria for the grant of the visa.

4. On 12 July 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did so by providing submissions dated 1 August 2017 that were expressly referred to in the Authority’s reasons, and also providing new information.

5. Relevantly, the new information included a statement both from the applicant and from his brother, M. The Authority considered the submissions and insofar as they engaged with the delegate’s decision, and had regard to the same. The Authority addressed in detail the applicant’s new statement and the brother’s statement from paragraphs 10-23 in its reasons, to which the Court will return. The Authority was satisfied, notwithstanding a submission requesting the contrary, that the applicant had had an opportunity to respond to the delegate’s decision and was not satisfied there were exceptional circumstances to justify considering the new information under s 473DD of the Act.

6. The Authority summarised the applicant’s claims and evidence. The Authority was not satisfied the applicant has a well-founded fear of persecution in Lebanon in respect of his claims that his family were asked to join Hezbollah or to fight in Syria, or in relation to being asked for money by any person or group. The Authority found that if the applicant returns to Lebanon, he will return to where his family resides.

7. The Authority took into account country information and was not satisfied the applicant has a profile such that he would be targeted by any person or group, or for any reason that he will otherwise face a real chance of harm from any group or person as a result of his Sunni faith and/or political or sectarian tensions and security situation in Lebanon in the reasonably foreseeable future. The Authority was not satisfied the applicant will face the real chance of harm in Lebanon.

8. The Authority found the applicant did not meet the definition of “refugee” in s 5H(1) of the Act, and found the applicant did not meet the criteria in s 36(2)(a) of the Act.

9. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Lebanon from Australia, there is a real risk the applicant would suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

The ground

1. The ground in the further amended application is as follows:

   1. The Second Respondent (IAA) failed to consider new information provided by the Applicant based on a misconstruction of s 473DD of the Migration Act.

   Particulars

   a. On or about 1 August 2017, the Applicant provided an additional statement from the Applicant and an additional statement from the Applicant's brother to the IAA (Statements).

   b. The Statements constituted 'personal information' that had not previously been known to the First Respondent or the IAA and which, had it been known, may have affected the consideration of the Applicant's claims.

   c. The IAA declined to consider new information provided in the Statements.

   d. The IAA's decision not to exercise power under s 473DD to consider new information was based substantially upon findings that this new information was not credible: Decision [12]-[22].

   e. In determining that the information was not credible, rather than considering whether the information was open to be or capable of being accepted by the Authority as truthful (see CSR16 v MIBP [2018] FCA 474 at [41]), the Authority erred in its interpretation and exercise of powers under s 473DD.

   f. In basing its determination that there were no exceptional circumstances warranting consideration of the new information on the basis of findings that the information was not credible, the Authority erred in its interpretation and exercise of powers under s 473DD.

   g. In failing to consider whether s 473DD(b)(ii) was satisfied in respect of determinations as to whether s 473DD(a) was satisfied, the Authority failed to have regard to a relevant consideration (see MIBP v CQWJ 7 [2018] FCAFC 110 at [50]-[51]).

   h. The Authority's error or errors in this regard constituted jurisdictional error.

2. Mr McDonald-Norman of counsel on behalf of the applicant, submitted that the Authority, in considering the new information in respect of the brother’s statements, made three different types of errors under s 473DD of the Act. The first error was said to be the making of findings of a final kind in relation to credibility in determining whether there were exceptional circumstances under s 473DD(a) of the Act. The second argument advanced was that there had been error by the Authority in its approach to s 473DD(b)(ii) of the Act by engaging in a final or deliberate determination of credibility in respect of the new information. The third argument was that the Authority had failed to properly take into account in determining whether there were exceptional circumstances under s 473DD(a) of the Act, the requirements in the cumulative criteria in s 473DD(b)(ii) of the Act.

3. Mr McDonald-Norman took the Court to the leading Authority of the learned Bromberg J in CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 (“CSR16”) and in particular to paragraphs [41]-[43], as well as to the analysis of the type of error that may arise in dealing with s 473DD of the Act in the joint reasoning of the Full Court in Minister for Immigration & Border Protection v CQW17 [2018] FCAFC 110 (“CQW17”), relevantly at paragraphs [50]-[54]. Mr McDonald-Norman also drew the Court’s attention to a decision in this Court, DLB17 v Minister for Immigration and Border Protection [2018] FCCA 1299 (“DLB17”), which he sought to distinguish insofar as the reasoning there addressed the real problems of s 473DD of the Act.

4. Mr McDonald-Norman took the Court to the submissions provided to the Authority which had a brief reference to an assertion as to why the new information met the requirements of s 473DD of the Act, and the Court’s attention was also taken to the substance of the statements by the applicant that appears at page 127 of the Court Book and by his brother, M, that appears at page 124 of the Court Book.

5. The statement of the brother, M, does seek to address s 473DD(b)(i) of the Act in its preamble, and equally the applicant’s statement in its preamble appears to address s 473DD(b)(i) of the Act. The applicant’s statement also referred to both his brother, N, experiencing issues in Lebanon and referred to his brother, M’s statement, in respect of persecution that their family has experienced, and referred to the brother M’s profile being imputed to the applicant and alleging his brother had an increased risk profile.

6. Mr McDonald-Norman focused on the language used by the Authority in its analysis of the statements and, in particular, the reference to “credible” which Mr McDonald-Norman submitted was a deliberate or final determination by the Authority in considering s 473DD of the Act and accordingly erroneous. Mr McDonald-Norman submitted that the Authority had not used the statutory language referring to credible personal information, nor had the Authority used the language reflecting a consideration of whether the information is capable of being believed and submitted that the Authority had determined erroneously in purported application of the test, under s 473DD of the Act, whether the information was true.

7. Mr McDonald-Norman also focused on the use of the term “believable” in paragraph 21 of the Authority’s reasons, albeit consistent with the duty of counsel to the Court, acknowledged that the term was capable of reflecting a correct application of the relevant test. The high point in the argument advanced by Mr McDonald-Norman appears in the penultimate sentence in paragraph 21 where the Authority said:

   I am also not satisfied that M has a profile such that Hezbollah would have continued to search for him in his home area and since he left Lebanon.

8. Mr McDonald-Norman submitted that this was the type of determination of proof identified by the learned Bromberg J in CSR16 reflecting error in the application of s 473D(b)(ii) of the Act.

9. The Authority in its reasons expressly referred in paragraph 13 to the applicant not satisfying the Authority that the information met either s 473DD(b)(i) or (ii) of the Act. The Authority’s express reference to both limbs of s 473DD(b) of the Act are relevant in relation to reading the Authority’s reasons as a whole and without a keen eye for error. In the context where the Authority expressly referred to s 473DD(b)(i) and (ii) of the Act, I find in the circumstances of the present case that the Authority’s reference to “credible” that appears in the analysis of the new information of the applicant and of the brother, M, is a reference to the criterion in s 473DD(b)(ii) of the Act. It is not necessary for the Authority to parrot statutory language and that reference to “credible” by the Authority on a fair reading was clearly a reference to whether or not the information is credible personal information, as referred to in s 473DD(b)(ii) of the Act, which was not previously known, and had been known, may have affected the consideration of the referred applicant’s claims.

10. I do not read the reference to “credible” in paragraphs 12, 13, 15, 17, 19, 20 and 22 of the Authority’s reasons as being a determination of whether the information is true. The Authority has also used language in paragraph 18 that the claim lacks credibility. That is entirely consistent with the Authority engaging in a preliminary determination rather than engaging in the final deliberative process required of the Authority under Part 7AA of the Act.

11. The Authority also used, in paragraph 21, the word “believable”. I accept the first respondent’s submission that that term is interchangeable with the word “credible” and I find that the reference to “believable” in paragraph 21 is not a final or determinative approach by the Authority in considering the requirements of s 473DD of the Act. The determination of whether or not new information meets the requirements of s 473DD of the Act, including s 473DD(b)(ii) of the Act, does not prevent the Authority providing reasons referable to the new information and whether or not the brother, M, has a profile such that Hezbollah would have continued to search for him in his home area and since he left Lebanon.

12. On one view, the reasoning of the Authority in that sentence is capable of supporting the contention advanced by Mr McDonald-Norman that the Authority has erroneously applied s 473DD(b)(ii) of the Act. It is necessary, however, to read the sentence in its context and specifically, the analysis that the Authority has already engaged in in relation to the new statement by M. That new statement advanced that M had been imputed to be a spy because Hezbollah sought to recruit them to their group and they resisted. The Authority in that regard, referred to the information of M to be claiming to have been sought for recruitment by Hezbollah in this regard to be new information and did not consider this evidence to be credible. The Authority referred to M’s new claim that security forces for the hotel he was previously working at were Hezbollah agents and he believes he has been imputed to be a spy for this reason. The Authority referred to there being no corroborative information provided to indicate that the hotel that M worked in was an area controlled by Hezbollah or otherwise infiltrated by Hezbollah, and referred to the fact that the claim had not previously been raised, casting doubts on its genuineness.

13. The new information provided by M was that it was the brother, N, that was wounded in the attack on the shop and M claims that it was not clear how he was injured. The Authority referred to both the applicant and M having previously provided different accounts of what happened to N during the attack on their shop, during the protection visa interviews. The Authority found that M did not previously mention that N was injured in the manner now stated and found it very difficult to believe that M does not know how N broke his leg during the incident during which he claims he was present. It was in that context the Authority referred to this new information not being credible.

14. The Authority referred to M claiming that, after the shop attack, he was told by a large man with a beard to come and see him in his office and he understands this man to be an overseer in the religion. The statement asserts that M was forced to follow the man to an office 200 metres away and that the man held him by the neck at one point and was highly aggressive and said he needed to leave the region. The Authority referred to M having described an incident but did not accept that this was the same incident and was satisfied that the above claim is new information. The Authority said the applicant has been in regular contact with M but did not refer to this matter and that M himself did not raise it earlier in his own protection visa interview, despite its apparent seriousness. It was in that context that the Authority said the claim lacks credibility.

15. The Authority referred to M’s claim in the new information that he tried to open a second store in a Sunni region and that he was warned by many people that Sunnis did not want to have him open the store as it would attract Hezbollah attention and that, for this reason, M was left without protection from Sunni political groups and he was told that it was an exclusive area for Future Movement members only. The Authority found this claim is inconsistent with the information M provided during his protection interview where he claimed that after the attack on the shop he moved to the north straightaway. The Authority referred to the relevance of this claim to the applicant’s claims and noted that M did not refer to this during his protection visa interview, despite having the opportunity to do so. It was in those circumstances the Authority did not consider this new information to be credible.

16. The Authority referred to M claiming that after the shop he sought to get his payout from the hotel for his time that he worked there and that he was told he was owed nothing and to leave. The Authority found this was new information inconsistent with M’s claims raised in his protection visa interview that he was given money from the hotel when he left and that he used the money to open the coal shop. The Authority referred to the inconsistencies between this new claim and M’s evidence before the delegate and was not satisfied this claim was credible. This on a fair reading was not a final determination as to the truth of the alleged fact and does not disclose relevant error by the Authority.

17. The Authority then referred to M’s claim that two weeks later he returned to the original family town which is primarily a Shia township and that around this time Hezbollah visited his parents’ house and each time the men asked to talk to M. The applicant alleged his father complained to police that he was concerned that they were authorities and the police advised him they were not from the office but that the father should comply and his father immediately understood they were Hezbollah agents.

18. The applicant’s brother, M, claimed he stayed about a week at his uncle’s house in a nearby town but, when his uncle discovered the situation in Beirut, he asked M not to stay because he was concerned it would cause problems with his children. M allegedly went into hiding for around a week near a river and was sleeping in his car and living away from the townships. M alleged that after receiving another threat from these men, his father took all the family from the house and hid in a particular location. M claimed Hezbollah agents have continued to search for him and have been searching for him since he left Lebanon.

19. The Authority noted M had previously claimed before the delegate that the people who attacked the shop sent people to his family home to ask about him within two weeks of the incident and threatened that if they find him they will kill him, and that M and the applicant previously claimed the family comes from a particular town and had not previously referred to a different location and that there is no information that they are the same place. It was in those circumstances the Authority considered this aspect of the claims to be new information. The Authority noted M also did not previously claim that his father had complained to the police who indicated that they should comply with these people, or that he hid in several areas prior to departing Lebanon.

1. The Authority referred to the applicant being in touch with his brother M, so the Authority was not satisfied this information could not have been provided earlier. It was in that context that the Authority said it was not satisfied the claim is believable, as M has been inconsistent in relation to the name of the home village and the Authority said it had given consideration to M’s claim that his family had remained in their home village which does not suggest they are in fear of their lives. It was in this context that the Authority then said that the Authority was not satisfied that M has a profile such that Hezbollah would have continued to search for him in his home area since he left Lebanon and the Authority was not satisfied that there were exceptional circumstances to justify considering this new information.

2. The Court finds that the Authority’s analysis of the information referred to is consistent with the Authority engaging in a preliminary assessment of whether the new information meets the criteria under s 473DD(b)(i) and (b)(ii) of the Act. In these circumstances, I do not accept that the Authority was making a final determination as to whether the information was true. Accordingly, I do not accept that the Authority was engaged in a determinative stage of the process under Part 7AA of the Act in the analysis of the new information provided in respect of the applicant and the brother’s statement. I do not accept that the Authority failed to take into account both limbs of s 473DD(b) of the Act in determining whether or not there were exceptional circumstances to justify considering the new information the subject of ground 1 in the further amended application.

3. For the above reasons, I do not accept that the Authority engaged in a final determination as to whether the new information is true in determining whether or not the new information met the criteria under s 473DD of the Act. I do not accept that the Authority made a final determination under s 473DD(a) of the Act in determining whether there were exceptional circumstances to justify considering the new information as alleged in ground 1. No jurisdictional error as alleged in ground 1 is made out.

Conclusion

1. Accordingly, the further amended application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 December 2018