CRS18 v Minister for Home Affairs
[2019] FCCA 280
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRS18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 280 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth); Part 7AA; s.473CB(1)(c) |
| Cases cited: AKK17 v Immigration and Border Protection [2017] FCCA 2486 |
| Applicant: | CRS18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 509 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 29 January 2019 |
| Date of Last Submission: | 1 February 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Solicitors for the Applicant: | WJ Markwell & Associates Lawyers |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That the Applications filed 23 May 2018, 18 January 2019 and 31 January 2019 are dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 509 of 2018
| CRS18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 1 May 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate not to give the Applicant, CRS18, a protection visa. That decision having been given to CRS18 led to CRS18, on 23 May 2018, filing an originating application in this Court to review that decision of the IAA.
I will say something now just about the way in which this matter has gone from there. As usual in these matters, the first court date was before Registrar Belcher.
On 18 July 2018, Registrar Belcher made orders that by 6 August 2018 the Minister was to file the green book and to serve it upon the Applicant.
By 4.00 pm on 2 October 2018, the Applicant was to file and serve any amended application upon which the Applicant intended to rely, and by the same time and date, the Applicant was to file and serve any affidavit containing additional evidence upon which the Applicant proposed to rely.
By 30 October 2018, the Minister was to file and serve any affidavit upon which it proposed to rely, and by 4.00 pm on 15 January 2019, the Applicant was to file and serve written submissions.
By 4.00pm on 22 January 2019, the Minister was to file and serve written submissions, and the hearing was to occur on 29 January at 2.15 pm.
The orders of Registrar Belcher, it would seem, were not strictly followed.
The Minister did file the green book before the date that Registrar Belcher had indicated, but by 2 October 2018, the Applicant had not filed any amended application or filed any affidavits.
However, on 1 November 2018, almost a month after the cut-off time, the Applicant filed an affidavit of Michael James Ryan which just had transcripts of interviews that the Applicant had undertaken during the course of his arrival in Australia.
On 26 November 2018, the solicitor for the Applicant filed an affidavit under the solicitor’s name, which had a number of documents attached, which I will get to later.
This caused the Minister to file an affidavit under the hand of Cody Nathalie Allen, on 11 December 2018, and then a further affidavit of the solicitor of the Applicant was filed on 15 January 2019.
15 January 2019 was to be the date that the submissions were to be filed, but only the affidavit of the solicitor which annexed a number of documents, which I will get to soon, was filed.
Three days later, there was an amended originating application filed and a submission that was filed. Now, this amended originating application was filed three and a half months after the date given by Registrar Belcher, and the submissions were filed three days after they were due to be filed.
What this meant was this, the amended originating application, in many ways, changed the goalposts as to what the original originating application had asked.
Up to that time, what had been asked for on 23 May 2018, was how this matter had been litigated and formed up till then. At 4.14 pm on 18 January, when the amended originating application was filed, the goalposts were changed.
18 January 2019 was a Friday; 4.14 pm is just after close of business. This meant that if the Minister were to comply with the orders that Registrar Belcher had made, that they would have to come to grips with a totally new set of grounds for this application and submissions that they had only just received.
That meant, as far as business days were concerned, they only had the Monday to be the clear day to ensure that they complied with the orders of Registrar Belcher.
Notwithstanding the very tight timeframes and the amount of work that must have gone into that, the Minister filed their submissions at 3.05 pm on 22 January 2019 in accordance with the orders of Registrar Belcher.
So that was, as it were, everything was all set and I was ready to hear the matter the following week following a long weekend.
At 8.18 am on 29 January 2019, the day of the hearing and some six hours before the hearing was to commence, my associate received an email sent by the solicitor for the Applicant. Attached to that email was a further amended application; that is, a third originating application and the new submissions.
Those documents had not been filed. They were sent to the Minister at the same time. At 2.15 pm that day, the hearing was to start, and Mr Markwell, who appeared for the Applicant sought leave to read and file the new originating application and his submissions.
Whilst I did not give him leave to read and file, because I said that they had to be filed in the proper way so that they were on the electronic record, I proceeded with the hearing as if I had given leave.
The Minister did object to that course, but I rejected that submission and proceeded with the hearing. The Minister did not formally make an application for adjournment, though I eventually did adjourn the matter after Mr Markwell had finished his submissions so that the Minister could file some new submissions, and I adjourned the matter to today, 1 February 2019.
So that is what has got us here to this point.
One does have to take account of the chronology. However, it really is something that I mention more for the record than for any other reason. None of that has any bearing upon my ascertaining the merits of the application itself.
In looking at the application itself, one discovers this particular history. The Applicant claimed that her parents were Faili Kurds who were born in Iraq. They were expelled from Iraq before the Applicant was born. They lived in Iran. In Iran, they were stateless and they had no documentation to in any way legitimise their existence.
The Applicant claimed that her father was scared that he would be arrested or killed in Iran by the authorities, and as a consequence she claims that her parents did not register as refugees and remained living in Iran as unregistered, undocumented, stateless Faili Kurds. The Applicant claimed that she was born in Iran and is a Faili Kurd and because of her parents’ stateless status, she is also stateless and she has no documents from either Iran or Iraq. She says that she had no knowledge of the background of her grandparents.
She said that she identified as a Shia Muslim but she does not practise. She said the family had to tell people in Iran that they are Shia so as to avoid being killed. She claimed that because of their status, the family could not access services such as education and healthcare, and that her father was too scared to register to obtain such services.
The Applicant said that she did not attend school, and her only learning was reading books at home. She said that her father paid for her brothers to be privately tutored. She said that her father paid someone to obtain any medications when these were required.
The Applicant said that she married another stateless Faili Kurd in Iran in 2004. She said that her husband came to Australia in 2009 and is now an Australian citizen. She claimed that she and her brother decided to leave Iran and her husband made arrangements with a people smuggler to obtain a fraudulent passport and to pay bribes at the Tehran airport to facilitate her departure.
She claimed to have left Iran around October 2012 and travelled initially to Dubai, and from there to Indonesia. The passport was taken from her in Indonesia. She came to Australia as an unauthorised maritime arrival in 2013.
She said that since being in Australia, she has reunited with her husband and has accompanied her husband and brother to a church, and has been attending for two years. She said that she does not understand English and so does not know about Christianity, but she has made friends at the church and enjoys socialising with them.
She says that she fears harm from the authorities in Iran as an unregistered, undocumented, stateless Faili Kurd, and for being a failed asylum seeker.
The IAA went through her claims very thoroughly. The IAA ended up having quite some doubts as to her claim to be stateless. In the reasons, the IAA pointed to country information that did not support the claim of the Applicant that there was widespread arrests of Faili Kurds who were attempting to register with the Iranian authorities. The IAA had difficulty accepting her claim that her father’s fear of the authorities outweighed his concern for the education and welfare of his children.
There were a number of inconsistencies and implausibilities which the IAA conceded were, in themselves minor, but when they were added altogether, it gave the IAA a very firm impression that her evidence was inconsistent and evasive.
The IAA referred to country information as to how so-called stateless Kurds were treated in Iran, which was somewhat different to what the Applicant had described. Ultimately, the IAA was not satisfied that the Applicant was either undocumented or unregistered, and stateless.
The IAA also had concerns about her account of her departure from Iran. It noted that she claimed that her husband paid a people smuggler about $5,000 AUD. The country information indicated that a required bribe to secure departure through the airport would be significantly greater than $5,000 AUD.
In the end, the IAA was not satisfied that the Applicant was undocumented, unregistered or stateless and, based on her own evidence, that neither she nor her family members had ever experienced harm in Iran because they were Faili Kurds. The IAA, therefore, was not satisfied that she would face a real chance of harm in Iran as a Faili Kurd.
As to her claims to have converted to Christianity in Australia, the IAA considered the claims about her attendance at church in Australia and her evidence that she did not know much about Christianity as she did not speak English. The IAA accepted that the Applicant made friends with members of a Christian church in Australia, but was not satisfied that the Applicant had converted to Christianity.
The IAA looked at country information as to the Applicant’s situation. It considered that she did not practise Islam and she had really no knowledge of Christianity, had not adopted Christianity. Therefore, the IAA was not satisfied she would be viewed as an apostate if she returned to Iran.
The IAA looked at what would happen to her if she returned to Iran as a failed asylum seeker. The country information was that voluntary returnees face harm on return, and there was nothing that would indicate that the Applicant’s profile would have been one that would be of interest to the authorities.
The IAA accepted that she may be questioned because of her travel document but did not accept that this would result in adverse interest or that she would be harmed during questioning upon her return.
Therefore, when one looked at that, there was no basis upon which the Applicant met the criteria for refugee, nor the complementary protection criteria. Therefore, the IAA affirmed the decision.
In the originating application, which has now been filed, there are a number of grounds, and I will deal with them seriatim. What I will say about these grounds is that the basis upon which they have all been formed is that there was information that was not looked at by the IAA.
There is no contest that the husband of the Applicant left Iran in 2009. In some ways, he followed a very similar path in that he got to Indonesia and was able to get on a boat. He came to Australia and the delegate who interviewed him gave him a protection visa.
The husband then made an application under the split family visa criteria. The Applicant was still in Iran at this stage, and so, therefore, the application itself was dealt with by the consulate or embassy in Tehran.
That fact of a previous application, though technically not made by the Applicant but by the husband of the Applicant, forms the basis of the grounds of this application.
The application ground one is worded this way:
The Applicant was not provided with procedural fairness under s 473DA of the Migration Act 1958 (“The Act”), as it was not provided with all of the information in the Secretary’s control and relevant to the review under s 473CB(1)(c) of the Act.
One can almost dismiss that straightaway, simply because the Applicant does not need to be provided with all of the information in the secretary’s control. The procedural fairness provisions of Part 7AA of the Act spells out exactly what is needed to constitute procedural fairness. There is no common law aspect to procedural fairness in these cases. There has been no breach of any of those provisions, and the Applicant certainly does not contend that there had been. It seems to me, though, that this ground is just badly worded.
What the gravamen of the complaint is, is that the Secretary did not provide the IAA with all of the relevant material. That is, the IAA had not been provided with the file that contained the application by the husband for the wife to come to Australia as part of a split family visa.
The Applicant argues that the secretary must have had this documentation in its possession, and that it did not give it to the IAA. Whilst this does not show any jurisdictional error on the part of the IAA, the claim is that the Court can look at all of those circumstances and, in finding that the Secretary did not give all of the relevant material to the IAA, can simply find that the whole IAA process has miscarried.
Whilst it was not submitted in that way by the Applicant, and certainly the Applicant had not at any time referred to this matter, the application relies upon words written by my brother Judge Driver in AKK17 v Immigration and Border Protection [2017] FCCA 2486.
At paragraph 60 of that judgment, His Honour wrote:
… If a document is omitted by the Secretary which is inconsequential, the Authority will not be disabled from performing its statutory duty. If, however, the document is significant and material to the outcome of the review, its omission may well disable the review function.
The question really is whether that file was significant and material to the outcome of the review. Mr Markwell has annexed that file to his affidavit that was filed, as I had earlier mentioned. One can look at that file.
What Mr Markwell points to is that there are certain things in that file that he says are of significance. The biggest thing in that file that Mr Markwell points to is a finding by someone within the department that the Applicant did not have to produce documentation to show that she had no criminal history. In effect, she had been given a penal waiver.
That penal waiver is noted to have been given because the person who looked at it came to a view that the Applicant was stateless and therefore, had no chance to obtain any such documentation, nor could they simply go to the authorities and ask for such documentation because of their stateless nature.
Mr Markwell submits that, even though that is the biggest example that he wants to bring to the Court, such shows that the material was significant and it was material to the outcome of the matter.
I do not agree with that submission. What is contained in the file is simply someone else’s opinion, and that opinion is simply that. It is not a matter of fact. The problem with the submission that was made by Mr Markwell is that he has, with all due respect to him, conflated the opinion with fact. In other words, his submission is that if a bureaucrat, in looking at the matter previously, had made a statement that the Applicant was stateless, then that was a fact that the IAA should have been aware of. For reasons I will get to in a second, that is not a logical conclusion.
Before finishing on that particular ground, it is prudent to look at the other grounds, because they are all part of that same argument. The second ground is:
The Second Respondent has not taken a relevant consideration into account.
The particulars given were that the Applicant’s husband lodged an application for a visa which was refused. The circumstances and evidence pertaining to this application in the accompanying file were not taken into account by the IAA.
The third ground is that:
The Second Respondent has not taken a relevant consideration into account and has made a decision that is illogical and irrational.
The particulars given there are that:
The Second Respondent should have taken into account that the Applicant’s Husband was granted Protection having successfully left Iran on a false passport through the Tehran International Airport and that the Applicant adopted the same methodology and also left on a false passport through the Tehran International Airport travelling the same route as her Husband. It was both logical and rational for the Applicant to undertake the same process and journey as her Husband, in order to escape Iran.
The fourth ground is:
The Second Respondent has not taken a relevant consideration into account.
The particulars given are:
The Second Respondent has not considered taken the circumstances of the Applicant’s husband’s circumstances into account, given that her husband came into Australia in 2009 and sought protection, which was granted to him, and he is now an Australian citizen. The Applicant must have been subject to the same persecution as the husband.
The reason that all of those grounds must be looked at together is this: they suffer from exactly the same fatal flaw. There has been a conflating of what has occurred.
What we do know is that, notwithstanding that the husband had made the application for his wife to join him under the split family visa criteria, that application, processed through the Australian Embassy in Tehran, was declined. The decision was made that the Applicant did not meet the criteria necessary for a visa in that respect.
However, the tale that the husband told when he first came to Australia, that he got through the Tehran airport on a forged passport, had his passport taken when he got to Indonesia and got on the boat and told his tale to the delegate which was accepted, must mean, according to the Applicant, that what the husband said was true. That is not a logical conclusion.
But the Applicant seeks to make that conclusion so that if the tale told by the husband has been accepted by a delegate of the Minister, then because the wife gives the same tale, therefore it should be also accepted true. That is not logical at all.
As I pointed out to Mr Markwell during the course of the hearing, all that has been established is that some person at some stage has given an opinion that what the husband has said is true. That does not make it true.
The best example of that is jury trials where a jury may come back and convict a person. That is certainly our system of justice. But in the end, the verdict is just the opinion of 12 people. At times where there has had to be retrials, and exactly the same evidence was replayed before another jury, those juries had, on a number of occasions, given verdicts of not guilty.
If what Mr Markwell says is true, there would never be another trial because all a prosecutor would have to do is say, “well, what the complainant says must be true because this person has already been convicted by a jury in the past.”
What there must be is a totally independent review of the evidence. What Mr Markwell claims is illogical and irrational, is that the husband has given a tale as to what happened to him, and he is in Australia permanently, but that the wife having given exactly the same tale, will not be in Australia and will have had her visa refused.
Whilst that may be a populist opinion of what is irrational and illogical, it is far from that. What it illustrates is that one tribunal of fact has looked at the matter and come to a decision, and another tribunal of fact has looked at the Applicant’s situation and come to a totally different view.
That does not mean one is right and one is wrong. It is equally open to have said not that this tribunal was wrong, but that the first delegate who gave the Applicant’s husband a visa, was wrong.
But Mr Markwell does not submit that at all. It seems to me, then, that when one looks at all of those grounds, all that is being argued is that a previous tribunal of fact has come to a particular decision and, therefore, that must mean that all tribunals of fact dealing with similar matters on those facts must come to the same decision.
That is not a submission that finds any favour with me, and the flaw in it is really self-evident.
Having regard to that, all that the file would have done for the IAA’s consideration is give exactly the same factual material that the IAA already had. The opinions given by whomever had looked at those files really was irrelevant to the consideration of the IAA, because they were not factual matters; they were simply opinions given by someone who was, in effect, in the same sort of position as the IAA on a different occasion.
For that reason, I am of the view that the information in those files was not significant or material to the outcome of the review, as that term was described by my brother Judge Driver in AKK17.
That being the case, I am not persuaded that there has been any jurisdictional error committed by the IAA in this decision. I therefore, dismiss the application with costs.
I understand from the submissions given by Ms Forda that the Minister is asking for a further sum of $1,500 for its costs thrown away by reason of the late amendment of the proposed ground.
She has submitted that such costs thrown away should be granted in circumstances where, by reason of the late amendment on the morning of the hearing, the Minister was required to engage in urgent and unanticipated, last-minute research and preparation prior to the hearing on 29 January 2019 to prepare written submissions to address the new ground, and to attend Court on a second date to make any further oral submissions that were needed.
There is much merit to what Ms Forda has asked.
I accept without reservation that this situation came about because Mr Markwell had a lightning bolt moment, and that lightning bolt moment occurred the night before the hearing as he was preparing for it. It was such a lightning bolt moment that Mr Markwell did not even have time to think it through so that he could word the ground properly, and that whilst he apologises for the inconvenience, it was his duty to put that argument before the Court.
None of that derogates from the argument that Ms Forda has raised.
The awarding of costs in such a situation is a matter of discretion for me. In these circumstances, given that the matter was able to still be disposed of realistically on the day that the arguments were able to be held, notwithstanding the merit in Ms Forda’s arguments, I decline to make any further costs order, and the orders will remain as I have previously indicated.
The application is dismissed with costs for the application fixed at $7,467.00.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 17 April 2019