CVS16 v Minister for Immigration
[2017] FCCA 249
•18 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVS16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 249 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran as a Christian and a homosexual – applicant not believed – whether the Authority overlooked relevant material considered – no jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D Administrative Decisions (Judicial Review) Act 1977 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 |
| Applicant: | CVS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 453 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 February 2017 |
| Date of last submission: | 19 April 2017 |
| Delivered at: | Sydney, via videolink to Perth |
| Delivered on: | 18 May 2017 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 30 September 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 453 of 2016
| CVS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 7 September 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa known as a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the Minister filed on 8 February 2017.
The applicant is a national of Iran, who entered Australia as an unauthorised maritime arrival on 23 May 2013[1].
[1] Court Book (CB) 189
On 16 June 2013, the applicant participated in an Irregular Maritime Arrival and Induction Interview with an officer in the Minister’s Department[2].
[2] CB 1-19
On 13 March 2014, the applicant was granted a temporary humanitarian visa and a bridging visa[3]. The former ceased on 20 March 2014 and the latter was cancelled on 28 July 2014 (after the applicant had been charged with one count of reckless wounding, for which he was later convicted)[4].
[3] CB 189
[4] CB 189
On 1 September 2015, the Minister’s Department wrote to the applicant to advise him that the Minister had exercised his power under s.46A of the Migration Act 1958 (Cth) (Migration Act) to permit him to make an application for, relevantly, a SHEV[5].
[5] CB 20-25
On 12 October 2015, the applicant applied for a SHEV[6]. He provided some further information in support of his application on 22 October and 18 November 2015[7].
[6] CB 32-69
[7] CB 94-99
On 8 December 2015, the applicant was invited to attend an interview with the delegate on 11 December 2015[8]. The interview was conducted on that day[9].
[8] CB 100-102
[9] CB 189
On 9 February 2016, after being invited by his case officer on 13 January 2016[10], the applicant lodged a further application form for a SHEV, enclosing a statement and other supporting documentation[11]. In his statement made on 2 February 2016, the applicant claimed to fear persecution on the basis of his membership of the particular social group comprising homosexuals, and his conversion to Christianity and adherence to the Jehovah’s Witnesses faith in 2013[12].
[10] CB 153
[11] CB 103-180
[12] CB 148-151
On 4 July 2016, the delegate made a decision to refuse to grant a SHEV to the applicant[13].
[13] CB 188-212
Merits review
On 8 July 2016, the Minister referred the delegate’s decision to the Authority for review under Part 7AA of the Migration Act. The applicant was notified of the referral on 11 July 2016[14].
[14] CB 214
On 29 July 2016, the applicant sent an e-mail to the Authority, to which he attached several documents in support of his claims[15].
[15] CB 229-241
The applicant provided a further document to the Authority by e-mail dated 30 August 2016[16].
[16] CB 243-244
On 7 September 2016, the Authority affirmed the delegate’s decision[17]. In summary, the Authority:
[17] CB 248-260
·accepted that the applicant had attended some Jehovah’s Witnesses services and had participated in some bible study groups, but did not accept that the applicant had converted to Christianity or that he has a genuine interest in the religion[18];
·found that there was not a real chance of the applicant being harmed for engaging in Christian activities in Iran or Australia[19];
·did not accept to be credible the applicant’s claim to be homosexual[20];
·did not accept the applicant’s claim that he had set up a homosexual relationship and tore up the Koran[21];
·did not accept that the applicant’s family or the Iranian authorities had been informed about his activities in Australia[22];
·accepted that the applicant may have been assaulted in 2005 or 2006 for talking to a girl in the street and that he had been mistreated by the Basij in 2007 for smoking and eating in the street during Ramadan, but considered that these were isolated events that occurred many years ago, that no subsequent harm resulted, and that there was not a real chance that he would experience such harm in the reasonably foreseeable future[23];
·acknowledged that the applicant had been detained and punished for his past use of alcohol and observed that there was no indication that he faced a real chance of serious harm on account of being convicted for alcohol-related offences[24];
·rejected the applicant’s claim to fear harm by reason of the “data breach” incident that occurred in Australia in February 2014[25];
·rejected the applicant’s claims to fear serious harm for being a failed asylum seeker or for having departed Iran unlawfully[26]; and
·rejected the applicant’s complementary protection claims[27].
[18] CB 251 [13]-[14], 253 [24]
[19] CB 253 [24]
[20] CB 251-252 [15]-[17], 253 [25]
[21] CB 252 [18]
[22] CB 252 [19]
[23] CB 253 [22]
[24] CB 253 [23]
[25] CB 253-254 [26]-[27]
[26] CB 254 [28]-[29]
[27] CB 255-256 [34]-[40]
The present proceedings
These proceedings began with a show cause application filed on 30 September 2016. The applicant continues to rely upon that application. There are eight grounds in the application:
Ground 1: Error of Law
1. The decision by the Second Respondent involved an error of law, whether or not the error appears on the record of the decision.
Ground 2: Misapplication of law or failure to ask the correct question
2. Second Respondent either misrepresented, misunderstood or misapplied the applicable law, or has otherwise failed to ask itself the correct question.
Ground 3: No Evidence
3. There was no evidence or other material to justify the making of the decision by the Second Respondent or the Second Respondent relied on evidence which did not exist.
Ground 4: The Failure to Take into Account Relevant Considerations
4. The Second Respondent failed to take into account a relevant consideration in the exercise of power.
Ground 5: The taking into account of irrelevant considerations
5. The Second Respondent took into account an irrelevant consideration in the exercise of power.
Ground 6: Without regard to the merits
6. The Second Respondent exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.
Ground 7: Unreasonableness
7. The Second Respondent exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power.
Ground 8: Uncertainty
8. The Second Respondent exercised power in such a way that the result of the exercise of the power is uncertain.
At the trial of this matter, I had before me as evidence the court book filed on 1 December 2016.
The applicant sought to rely upon his affidavit filed with his application. The body of the affidavit is inconsequential but it annexes a number of documents. Counsel for the Minister objected to me receiving the affidavit and the annexures. Some of the documents annexed to the affidavit are additional copies of those appearing in the court book, and to that extent, I declined to receive them. Some of the documents were images of other documents but the reproduction was too poor to enable me to determine what the images represented. Subsequent to the hearing on 15 February 2017, my associate was able to locate in the Perth registry a bundle of colour printed documents providing better quality images of these documents. I gave the parties the opportunity to peruse those documents and to make submissions on them. The documents included what appear to be screenshots of online chats containing images on the Facebook website. These appear to date from May 2014 and do not appear in the court book. There was a question whether these screen prints of Facebook chats were provided to the Authority or the Minister’s Department. I invited further submissions on that issue. The documents were marked for identification[28].
[28] MFI A1
The applicant told me from the bar table that he had provided the documents, including the Facebook chats, to his Departmental case worker with the intention that they would be considered in relation to his claims for protection. I gave the parties the opportunity to provide evidence in relation to this.
The applicant sought to tender a further bundle of documents, which I declined to receive on the basis that they clearly post dated the Authority’s decision and were not relevant to these proceedings.
Consideration
The grounds of review advanced by the applicant are unparticularised and appear to simply repeat grounds of review contained in the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Minister’s submissions deal adequately with those grounds. I agree with those submissions. In the absence of particulars, the grounds of review are meaningless and for that reason alone, each should be dismissed[29].
[29] WZAVW v Minister for Immigration [2016] FCA 760 at [35] per Gilmour J
Nevertheless, the issue of whether the Authority overlooked some of the material that the applicant had provided to it and, if so, whether that amounts to a jurisdictional error, was raised by counsel for the Minister in his written submissions.
The Minister addresses that issue in the following way. On 29 July 2016 the applicant provided a number of documents to the Authority under cover of an e-mail. They were as follows:
·a letter from the applicant dated 28 July 2016 in which he challenged aspects of the delegate’s decision and referred to some items of country information on how being lashed could have very minimal to no scarring[30];
·a letter of support from Callen Mckinley dated 28 July 2016 in which he attested to the applicant’s devotion to Christianity and his participation in bible sessions with Jehovah’s Witnesses[31];
·an ASETTS Torture and Trauma Assessment Report dated 24 May 2016[32];
·a photograph of the applicant’s arms[33];
·a Yongah Hill IDC People in Detention – Request Form completed by the applicant on 12 July 2016 requesting that some documents be translated[34];
·translated copies of the applicant’s brother’s national identification card and his driver’s licence[35];
·a translated copy of a Facebook exchange between the applicant and another person between 30 November and 4 December 2015[36];
·country information concerning baptism requirements for Jehovah’s Witnesses from Mr Mckinley[37].
[30] CB 230-232
[31] CB 233
[32] CB 234-235
[33] CB 236
[34] CB 237
[35] CB 238-239
[36] CB 240
[37] CB 241
The first, third, fifth and seventh documents listed above were referred to, and discussed, by the Authority at [4]-[5] and [7][38]. The second, fourth, sixth and eighth documents, however, were not expressly referred to in the Authority’s reasons for decision.
[38] CB 249
The Minister submits that the Court should hold that the documents in question were not overlooked or that, if they were, the Authority having overlooked them does not amount to a jurisdictional error.
First, the Minister notes that the onus is on the applicant to demonstrate that the documents in question were overlooked, that is, that the Authority was ignorant of their existence[39]. The fact that the documents have not been referred to in the Authority’s reasons does not necessarily mean that they have been overlooked.[40] In reviews conducted under Parts 5 and 7 of the Migration Act, for example, it is well-established law that, ordinarily, if a matter has not been addressed in a decision-maker’s reasons, it may be inferred by a reviewing court that that is because the decision-maker formed the view that the matter is not material to his or her decision[41]. There is no good reason why those principles ought not to apply to reviews conducted by the Authority, given the similarities between ss.368(1) and 430(1), on the one hand, and s.473EA(1)[42], on the other. The Minister submits that the application of those principles leads to the conclusion that the Authority can be taken not to have considered the information contained in the documents to be material.
[39] Cf Minister for Immigration v SZGUR (2011) 241 CLR 594 at 616 [67]-[68] per Gummow J
[40] See, for example, Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [46] per French, Sackville and Hely JJ; Minister for Immigration v SZSRS (2014) 309 ALR 67 at [43] per Katzmann, Griffiths and Wigney JJ
[41] Minister for Immigration v Yusuf (2001) 206 CLR 323 at 330-331 [5], 331-332 [10] per Gleeson CJ, 338 [35] per Gaudron J, 346 [68]-[69] per McHugh, Gummow and Hayne JJ
[42] read with s.25D of the Acts Interpretation Act 1901 (Cth)
Secondly, the Minister submits that the Authority may have formed the view that the material in question comprised new information (as defined in s.473DC(1)), with the consequence that it had no power to consider it under s.473DD. The Authority is under no obligation to give reasons for deciding whether or not certain information comprises new information; s.473EA(1)(b) does not, to borrow some words of Gummow J in Minister for Immigration v SZGUR[43] in respect of the relevantly identical obligation in s.430(1), require the Authority “to describe or state the procedural steps taken by it in reviewing the [delegate’s] decision”, but only the “reasons why the [IAA] considers the application should be dismissed.”[44]
[43] (2011) 241 CLR 594 at 616 [69]
[44] Minister for Immigration v Yusuf (2001) 206 CLR 323 at 396 [235] per Callinan J. See also Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65] per Hayne J
The Minister submits in the alternative that the Court should infer from the absence of any express reference in the Authority’s reasons to the documents in question that the Authority considered the documents not to be relevant (and, therefore, not to comprise new information as defined in s.473DC(1)). That is because the applicant’s brother’s identity documents were irrelevant to any issues arising on the review; the photo of the applicant’s arms was immaterial since “[t]he absence of scarring d[id] not factor into [the Authority’s] assessment of the applicant’s claims”[45] and the Authority accepted, at [22][46], that the applicant was mistreated in 2007 by the Basij for smoking and eating in the street during Ramadan; the letter from Mr Mckinley was immaterial because the Authority accepted, at [13][47], that “the applicant may have attended some Jehovah’s Witness church services in Sydney in 2014 and in immigration detention has participated in bible study groups” but found that the applicant was not genuine in his beliefs due to his lack of knowledge of the key precepts of the Jehovah’s Witness faith[48]; and the summary of the baptism requirements of Jehovah’s Witnesses was immaterial for the same reasons.
[45] at CB 249 [7]
[46] CB 253
[47] CB 251
[48] see also at CB 251 [14]
The Minister submits that the Authority’s reasons at [13][49] are illustrative of the immateriality of the abovementioned documents, particularly the letter from Mr Mckinley. At [13][50], the Authority referred to the “letters of support [which] provided that the applicant may have attended some Jehovah’s Witness church services in Sydney in 2014 and in immigration detention has participated in bible study groups”. The Court may infer that those letters comprised the letter from Mr Mckinley dated 29 September 2015[51] and the letter dated 6 March 2016, the elder belonging to the Jehovah’s Witnesses, which the applicant gave to the delegate on 10 March 2016[52]. The second letter from Mr Mckinley adds nothing of substance to the first letter. If that much were accepted, it is then but a short step to take to say that the Authority, by not referring to the second letter, can be taken to have formed the view that it was not relevant, since it did not add anything material to what Mr Mckinley had said about the applicant during the visa application process.
[49] CB 251
[50] CB 251
[51] at CB 69
[52] CB 182-183
Thirdly, the Minister submits that, if the documents in question comprised new information as defined, and it is assumed that the Authority did not ask itself the questions posed by ss.473DD(a) and (b) (that is, that it overlooked the documents), the result is not jurisdictional error, for the following reasons.
To determine whether a jurisdictional error has been made, the critical question will always be whether the decision-maker has made a decision outside of the limits of the functions and powers conferred upon him or her or does something which he or she lacks power to do or whether the decision-maker has “incorrectly decid[ed] something which [he or she] is authorised to decide”[53]. The former is a jurisdictional error; the latter is an error within jurisdiction.
[53] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] per Hayne J
In the present context, much will depend upon the circumstances and the nature of the new information. For example, it cannot be said that invalidity is the result if, on judicial review, the information is determined not to meet the requirements of s.473DD(b) - which the Minister submits can be said of the four documents under consideration. The information contained in each document could have been provided to the Minister before a decision was made under s.65 of the Migration Act[54].
[54] cf s.473DD(b)(i)), or, if such information can be said to comprise credible personal information vis-à-vis the applicant, was previously known (cf s.473DD(b)(ii))
Accordingly, in the Minister’s submission, even if each item met the definition of new information, the Authority’s failure to ask the questions posed by s.473DD did not, in the circumstances of the present case, affect the exercise of its decision-making power under s.473CC, since none of the four items could have been considered under s.473DD in any event. If the Authority’s exercise of power is unaffected, jurisdictional error cannot be the result.
Nevertheless, the applicant contends that additional documents contained within the bundle marked for identification were provided to the Minister’s Department and hence the Authority and were not referred to by it. He refers in particular to the Facebook chats.
I gave the parties the opportunity to file further submissions after the trial. I also gave the applicant the opportunity to file further affidavit evidence relating to what he did with screen prints of the Facebook chats, attached to his affidavit filed on 30 September 2016 or any other documents attached to that affidavit which do not appear in the court book. The applicant filed a further affidavit on 2 March 2017 in which he expresses confusion about what was expected of him and then makes submissions about his protection claims. The document fails to properly address the matter about which leave was given and throws no more light on what the applicant may have done with the documents in question in 2016. The Minister filed further submissions on 19 April 2017 in accordance with the leave I granted. The Minister also filed at the same time two affidavits by Donna Streng and Ellen Tattersall which it is necessary to receive in order to resolve the factual issue.
Resolution
In his affidavit, the applicant deposes that, after he received a letter from the Court, in which he says he was asked to send to the Minister’s Department documents that he had submitted to the Court, he saw his case manager. He then relevantly deposes that he “handed over all [his] documents to [his case manager] and she told [him] that she will email all those documents to the Department”. He further deposes “vividly remember[ing] that there were [a] few coloured pictures as par[t] of the documents.” His evidence appears to relate to what he did with the documents this year after the hearing on 15 February 2017, not in 2016.
The applicant’s case manager between 8 March and 9 November 2016 was Ms Streng. In an affidavit made on 12 April 2017, she says the following:
a)on 5 July 2016, she met with the applicant to provide him with the notification of the delegate’s decision[55];
b)on 11 July 2016, she met with the applicant and provided him with correspondence from the Authority acknowledging the referral of the delegate’s decision[56];
c)on 29 July 2016, the applicant had advised her that he had provided further information to the Authority in support of his application[57]. She did not receive that material. Nor was a request made of her to provide documents to the Authority;
d)on 12 September 2016, she met with the applicant to provide him with a copy of the Authority’s decision[58];
e)on 17 October 2016, the applicant gave to her some court documents. She then forwarded those documents to the Litigation Branch of the Department on the same day[59];
f)she has no recollection of the applicant giving to her any further documents or requesting that she forward them to the Authority[60].
[55] at [4]
[56] at [5]
[57] at [6]
[58] at [7]
[59] at [8]
[60] at [9]
The documents annexed to Ms Streng’s affidavit do not comprise any Facebook screenshots or any other document which was annexed to the applicant’s affidavit of 30 September 2016 which is not in the court book. I conclude on her evidence that the applicant did not give those documents to Ms Streng prior to the date of the Authority’s decision. Accordingly, the Authority did not make a jurisdictional error by not considering those documents.
As appears from the Minister’s supplementary submissions, it recently came to the Minister’s attention that certain other documents contained in the Department’s file relating to the applicant were not included in the court book. They are attached to an affidavit of Ms Tattersall made on 19 April 2017. I accept that, save for the documents comprising Annexures ELGT-6 and ELGT-7, they were all given to the Authority pursuant to s.73CB(1)[61]. None relate to the applicant’s claims for protection, save for a letter from Sotirios Yaourtis dated 6 March 2016 (which the Authority considered)[62]. In so far as some of the other documents were not referred to in the Authority’s reasons, I infer that the Authority considered them not to be material to its decision: s.473EA(1) (read with s.25D of the Acts Interpretation Act 1901 (Cth)) being not dissimilar to s.430(1)[63].
[61] the document referred to in each of the documents comprising Annexures ELGT-6 and ELGT-7 was
considered by the Authority
[62] affidavit of Ms Tattersall affirmed on 19 April 2017, Annexure ELGT-4
[63] cf Minister for Immigration v Yusuf (2001) 206 CLR 323
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 18 May 2017
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