CYE17 v Minister for Immigration and Border Protection
[2019] FCCA 102
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CYE17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 102 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – new information – validity of s.473GB Certificate – consideration of imputed link to brother – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.473CA, 473CB, 473DB, 473DC, 473DD, 473DE, 473GB |
| Cases cited: AYF16 v Minister for Immigration & Border Protection [2018] FCAFC 129 |
| Applicant: | CYE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2080 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 23 October 2018 |
| Date of Last Submission: | 23 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 7 June 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the review of the decision of a delegate of the first respondent dated 16 December 2016 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2080 of 2017
| CYE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 7 June 2017. The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.
The applicant is a citizen of Iraq who arrived in Australia by boat on 9 September 2012. On 17 February 2016 the applicant applied for a protection visa. That application was based on the applicant’s claim that he feared harm from a Shia militia group. He explained the basis for that fear as follows in his statutory declaration made in support of his application:
…
3.Me and my brother MA are in Australia seeking protection as we were persecuted in Iraq for religious reasons.
4.We were targeted in Iraq because we are Sunnis who live in Shiite majority area , especially after the bombing of the 2 sacred shrines in samara , militia groups started targeting us due to our religious difference in the south .
5.In 6/2006 , my brother took me to the Friday prayers alongside our neighbour (AK) , while we were in our way back from Friday prayers , we were stopped by militia group called (alfadheela party) , they started insulting our religion , they verbally abused us , at this moment AK started an altercation with them , so these militia members started hitting AK everywhere , my brother M intervened to save AK from their hand , but they threatened that they will kill me and my brother , we left AK and we ran away.
6.After this incident , the militia groups started harassing and intimidating us , we paid money to avoid being beaten by the militias , after around one year from that time , they requested that we pay huge amount of money from us and AK , we refused to pay , AK refused to pay as well although he a very rich man .
7.At that time the militia groups killed the K son of AK while he was in his father’s shop , when my brother heard the news he rushed to the coroner’s office to get K’s body ,my brother M and my father were outside the coroner’s office when a militia men started shooting at them , this incident resulted in the killing of 14 people who were standing next to them , most of the dead people were relatives for AK and some of our neighbours , after that my brother and father fled the area fearing for their life.
8.After the killing of his son , AK and his relatives escaped to the overseas , before his departure from Iraq , AK authorised my brother M to negotiate the sale of his property which was huge house with lot of potentials.
9.In April 2012 , our house was raided by some militia members belong to alfadheela party , me and my brother M were the only ones at home at that time , they threatened that they will kill me and my brother because we were sunni’s and because my brother M was negotiating the sale of AK’s house with some people , they told us that they confiscated AK’s house and that they request that we leave our home or they will kill us , they said that they are watching us closely , we asked them for some time to arrange for ourselves to leave the area , they agreed but they said that we should do that in a very short time , during this time me and my brother M arranged for our travel from Iraq.
10.Towards the end of July 2012 , the militia members shot at our car which was parking off street they then left an envelope with 2 bullets in it , saying that one bullet is designated to kill me and the other is designated to kill my brother M , accordingly we left Iraq on 1-8-2012.
11.I fear that I will be persecuted in Iraq for religious reasons for the above mentioned reasons
(Without alteration except in respect of names)
On 16 December 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate accepted the factual claims made by the applicant but found, on the basis of country information, that the situation in the applicant’s home area in Iraq had improved to such an extent that any risk of harm to the applicant was remote.
The matter was then referred to the Authority pursuant to s.473CA of the Migration Act 1958 (Cth). Amongst the documents sent to the Authority was a certificate purportedly made pursuant to s.473GB(5) of the Act. It will be necessary to return to this certificate later in these reasons.
On 13 January 2017 the applicant’s agent sent a written submission to the Authority. In that submission the agent made the following assertion:
It is logical to conclude that the applicant shared in the incidents in Iraq , or he was perceived as person who has links to his brother , to K and his father , then we will expect that the harm which will apply to the applicant is not less than the harm faced by the applicant’s brother who was granted protection visa for almost the same reasons.
(Without alteration)
This assertion had not been made to the delegate.
The Authority made its decision on 7 June 2017 affirming the decision of the delegate. In its reasons for decision, the Authority first determined that it could not consider the assertion made in the applicant’s written submission that he faced harm because he was perceived as a person with links to his brother. Its reasons were as follows:
6.The submission includes the new information that the applicant’s older brother was granted a Safe Haven Enterprise Visa (SHEV). The applicant’s representative claims that, as the applicant was involved in the incidents in Iraq with his brother and was perceived to be a person associated with his brother, the applicant will be exposed to the same risk of harm as that faced by his brother. The applicant has a profile ‘because of his association with his brother (name) who was granted protection for the same reasons.’ The applicant’s representative contends that the applicant is a member of a particular social group, being a member of the brother’s family.
7.The claim that the applicant is at risk of harm due to his relationship with his brother has not previously been advanced. The applicant has not provided an explanation as to why this claim was not previously raised and it is not apparent how the grant of a protection visa to the applicant’s brother changes the applicant’s circumstances. The reasons for the grant of a SHEV to the applicant’s brother are not before me. In the circumstances, I am not satisfied that there are exceptional circumstances to justify the consideration of this new claim.
(Emphasis in original)
These reasons reveal that the Authority considered that the claim about the applicant’s link to his brother was “new information” within the meaning of s.473DC and that it was prevented from considering it because the conditions in s.473DD were not met.
The Authority did, however, consider the fact that the applicant’s brother had been granted a SHEV. Otherwise, generally speaking, the Authority made its decision on the basis of its credit findings against the applicant.
The applicant now seeks judicial review of the Authority’s decision.
Consideration
The applicant was granted leave at the hearing to rely on a further amended application. Although there are four grounds, there are essentially two sets of issues. The first (ground 1) concerns the way in which the Authority dealt with the applicant’s written submissions. The second set of issues (grounds 2 to 4) concerns the certificate purportedly issued under s.473GB of the Act.
Ground 1: the applicant’s written submissions
The applicant contends that the claim about his link to his brother was not “new information” within the meaning of s.473DC and so the Authority erred by acting on the basis that it was prevented from considering the claim. The Minister argued that it was “new information” and that, in any event, the claim was effectively disposed of by the Authority’s findings of fact so any error was immaterial to the Authority’s decision and did not amount to jurisdictional error.
“New information” in the context of a review by the Authority is any document or information that was not before the Minister when the Minister made the decision under review and that the Authority considers may be relevant: s.473DC(1).
In Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 Gageler, Keane and Nettle JJ explained:
[24]The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
(Citation omitted)
In Minister for Immigration & Border Protection v CLV16 [2018] FCAFC 80 the Full Court of the Federal Court held that there was a distinction between a “submission” and “new information”. The Court relevantly said:
[35]The Authority, it is concluded, is not precluded by ss 473DC and 473DD from entertaining a “submission” directed to such matters as:
●the information already made available to the Authority and the consequences which it is “submitted” should flow from that already established pool of factual information; or
…
[54]The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority – and to have the Authority in fact consider – a submission directed to an established pool of factual information.
(Emphasis in original)
The Minister submitted that a claim to the effect that the applicant faces harm by reason of his association with his brother is a factual assertion that had not previously been raised. That submission, however, does not properly grapple with the decision of the Full Court in CLV16. That decision, as I apprehend it, does not go so far as to say that any factual assertion that was not made to the delegate satisfies the first requirement of “new information” in s.473DC(1). Rather, it is authority for the proposition that “new information” must be “new factual material”. That is, some communication of knowledge of a fact, subject or event that was not previously made. The distinction may, in some cases, be difficult to discern; however, it is clear at least that a submission that a certain conclusion, factual or otherwise, should be drawn from “an established pool of factual information” does not fall within the meaning of “new information” in s.473DC(1) of the Act.
Here, the submission was based on an established pool of factual information: the applicant’s relationship to his brother, the involvement of his brother in the actions and reactions of the militia group and the consequent fear of harm held by the applicant. For that reason, the submission, or claim, was not “new information” and the Authority erred in treating it as such, and not considering it because it was not satisfied of the conditions in s.473DD. Those conditions did not apply.
The question, then, is whether that error was material. In Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780 the plurality said:
[30]Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
(Citations omitted)
In a similar vein Edelman J said:
[72]In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.
(Citations omitted)
The error made by the Authority here meant that it did not consider whether the applicant’s fear of harm arose from his connection with his brother. However, in my view, the Authority’s factual findings meant that it was not required to consider that possibility.
The Authority accepted that the applicant, his brother and his neighbour were verbally harassed in the street by other residents because of their Sunni faith, that AK had left his home and the applicant’s family had a role in minding his home and possibly in letting it out. However, it did not accept any of the other claims concerning the applicant’s brother. It rejected the claim that the brother intervened in a fight with members of the militia group, that the applicant and his brother were threatened or that their family paid or were asked to pay money to the militia group: [24]. It found that neither the applicant nor his family was of any particular adverse interest to any Shia militia group for any reason: [25]. It did not accept that the applicant or his brother received threats as claimed, or that his family left their home for that reason: [26].
In short, there remained no factual basis for the claim made in the applicant’s written submissions. It will be recalled that the claim was based on an existing pool of factual information. As such, that claim was not something that could have affected the assessment of the credibility of the claims rejected by the Authority. In light of that, I conclude that the error by the Authority in considering that the claim was “new information” did not deprive the applicant of the possibility of a successful outcome and so was not material to its decision. The error did not amount to jurisdictional error and the first ground must be rejected.
Grounds 2 – 4: the certificate
The applicant’s arguments in these grounds can be summarised as follows: first, the certificate was invalid; secondly, the certificate and the documents to which it related were “new information”; thirdly, the Authority had regard to the certificate and the documents without turning its mind to the threshold issues in s.473DD and s.473DE. The applicant contended that, in those circumstances, this case was indistinguishable from the decision of Derrington J in CED16 v Minister for Immigration & Border Protection [2018] FCA 1451 in which his Honour found that the Authority had fallen into jurisdictional error.
The Minister conceded that the certificate was invalid but argued that, on the authority of the Full Court of the Federal Court in Minister for Immigration & Border Protection v BBS16 (2017) 257 FCR 111 and AYF16 v Minister for Immigration & Border Protection [2018] FCAFC 129, neither the certificate nor the other documents were “new information” and so ss.473DD and 473DE did not apply to them. He further argued that the Authority had not, in any event, considered the certificate or the documents and if it had, any error was immaterial in the sense discussed above.
These arguments raise a number of factual and legal questions. In order to better understand them, it is necessary first to summarise the relevant statutory provisions.
Relevant statutory scheme
The relevant statutory scheme has been described in detail on a number of occasions[1] and need only be outlined briefly for present purposes.
[1] Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [13] – [38]; BBS16 at [85] – [98]; Minister for Immigration & Border Protection v AMA16 (2017) 254 FCR 534 at [12] – [27].
When a relevant decision is made by a delegate of the Minister, it is referred to the Authority for review and the Secretary of the Department must provide the Authority with, amongst other things, the documents that were before the delegate including material that was provided by the visa applicant and material he or she considers is relevant to the review: s.473CB. While the Authority will ordinarily decide the review on the papers (s.473DB), it may also get “new information”: s.473DC.
“New information” is, as I have already observed, any document or information that was not before the Minister when the Minister made the decision under review and that the Authority considers may be relevant: s.473DC(1).
The Authority can only consider any “new information” for the purposes of making a decision in relation to the delegate’s decision if the conditions referred to in s.473DD are met. If those conditions are met then, subject to further conditions, the Authority may be required to give the applicant particulars of the “new information”: s.473DE.
Section 473GB provides for a certificate to be given in respect of information which the Minister considers should not be disclosed because it is subject to public interest immunity. If there is such a certificate, the Authority may disclose the information, but must have regard to any advice from the Secretary on that issue and must give a direction to the applicant restricting further disclosure of the information.
First question: was the certificate invalid?
Section 473GB applies to documents or information if:
...
(a)the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
...
The certificate here states that a delegate considered that the documents or information referred to in it “should not be disclosed to the referred applicant or the referred applicant’s representative because these documents are Departmental working documents.” That is not one of the bases on which s.473GB applies and it follows that the Minister was correct to concede that the certificate was invalid: see MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1 at [35]‑[38].
Second question: were the certificate and documents referred to in it “new information”?
There is conflicting authority in relation to this question.
In BBS16 the Full Court of the Federal Court held, at [90] – [97], that a certificate purportedly issued under s.473GB of the Act was part of the “review material” referred to the Authority but was not “new information” within the meaning of s.473DC(1). For that reason, the consequences of the invalidity of such a certificate must be considered under s.473GB rather than by reference to provisions such as ss.473DD or 473DE. This aspect of the decision in BBS16 was applied by another Full Court in BVD17 v Minister for Immigration & Border Protection [2018] FCAFC 114 and yet another in AYF16. However, in CED16, Derrington J came to a different view.
The issue in CED16 was how the Authority was to deal with information in a certificate that was purportedly given under s.473GB and the information to which it related where the certificate was invalid.
The certificate in that case concerned the information in an identity assessment form. That form was before the delegate when the original decision was made: [7]; however, the certificate, which was invalid, was not: [7].
The first issue dealt with by Derrington J was whether the certificate, which was not before the delegate, was “new information” within the meaning of s.473DC(1). His Honour rejected the Minister’s submission that this question was conclusively decided by the Full Court in BBS16 in light of the more recent decision of the High Court in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 and, in particular, the following statement in the judgment of the plurality:
[27]Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.
His Honour then considered whether the applicant had established that the Authority had in fact considered the certificate and the identity assessment form. In this respect, his Honour said, at [38]:
[38]However, the Minister’s reliance upon the appellant’s inability to show how the IAA actually dealt with the information in the invalid Certificate and IA Form was grounded upon the assumption the IAA was not bound to treat either as containing “new information”. If that assumption is correct and s 473GB applied even where the certificate was invalid, the manner the IAA dealt with the information could be hidden from view. However, if, as appears to be the case, the IAA was required to treat either document as containing “new information”, it would have been required to give particulars of that information to the appellant. It is accepted that was not done. It follows that two things can be known about the manner in which the IAA dealt with the information in the Certificate and IA Form:
(a)First, it did not provide particulars of the information to the appellant which, as will be seen, necessarily means it did not treat the information as “new information”.
(b)It can inferred that the IAA believed its discretion in s 473GB(3) was enlivened, and it proceeded to undertake the review on that basis.
There are a number of matters that are not clear about this passage: first, why his Honour considered both the identity assessment form and the certificate in this paragraph. As already noted, the form was before the delegate and so could not, on any view, have been “new information”: sub-s.473DC(1)(a).
Secondly, why his Honour posed the issue by reference to the Authority being “required to treat either document” as containing “new information”. The second component of “new information” is that the Authority (not the Court) considers that the information may be relevant: see CDZ16 v Minister for Immigration & Border Protection [2017] FCA 967 at [10].
Thirdly, why his Honour found that, once the information was “new information” the Authority would have been required to give particulars of that information to the appellant. That his Honour did so is evident from his reasoning that the fact that the Authority did not give the applicant particulars of the information necessarily meant that the Authority did not treat it as “new information”.
The answer to the second and third of these questions appears later in his Honour’s reasons where his Honour first found that the certificate was not before the delegate and then stated:
[40]On that basis the information in the s 473GB Certificate would, prima facie, fall within the definition of “new information” in s 473DC(1). It also appears it would satisfy the requirements of s 473DE(1)(a) and there was no submission to the contrary.
(Emphasis in original)
I will return to these two questions later in these reasons. For present purposes, it is sufficient to observe that the decision in CED16 is inconsistent with the decision in BBS16 to the extent that the latter case held that a certificate purportedly issued under s.473GB could be “new information” within the meaning of s.473DC(1) of the Act.
The Minister argued that the reliance in CED16 on [27] of M174 was misplaced because that passage was not part of the ratio of the decision in that case. That argument has considerable force; however, that is not a matter for me to decide. Nor is it for me to decide whether Derrington J was wrong in any other respect. The fact is that, to the extent that the principles established in CED16 apply to the facts of this case, his Honour’s decision is binding on this Court and I must apply it. His Honour held that the relevant aspect of BBS16 could not stand in light of a later decision of the High Court. I must follow what his Honour held. For that reason, the certificate in this case, which was not before the delegate when she made her decision, was prima facie “new information”. That is, it met the first part of the definition of that term in s.473DC(1).
The certificate relevantly referred to two documents: an age determination report and the transcript of an interview concerning the determination of the applicant’s age. It was formally admitted by the Minister that the transcript was not before the delegate. For that reason, the transcript satisfied the first requirement of “new information”. The Minister did not formally admit that the report was not before the delegate when she made her decision. However, the evidence was that the delegate accessed the report on the Department’s computer system prior to making her decision[2]. On that basis, I conclude that the report was before the delegate when she made her decision and so was not “new information”.
[2] Affidavit of Alan John Smith affirmed 22 October 2018, [9] – [13].
The question of whether the certificate and the transcript met the second part of the definition of “new information” is a question of fact that must be determined on the material before the Court. The question is whether the Authority considered that the certificate or transcript, or the information in them, may be relevant. In the context, information may be relevant if it may have a bearing on the decision to be made on the review.
The certificate is not expressly referred to in the Authority’s reasons for decision. At [3] of its reasons the Authority states that it has had regard to the “material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act)”. It may be accepted that the certificate was part of the material and, on that basis, I accept that the Authority had regard to it. However, I do not accept that it considered that the certificate may be relevant in the relevant sense. The fact that it is not referred to is not conclusive in circumstances where it is at least possible, if not probable, that the Authority acted on the basis that the certificate was valid and it was obliged not to disclose it. However, there is no information in the certificate that could rationally have affected the decision on review. Apart from a reference to a number of documents and the expression of the view that the information should not be disclosed (and the reason for that view), the certificate only states the effect of s.473GB and gives the name and certain other particulars of the author of the certificate.
The reasons of the Authority reveals that it understood the issues that were to be decided on the review and, as I have found above, there was no unreasonableness affecting any of those reasons. I infer that the Authority was acting rationally and so did not consider that the certificate may be relevant to the review. Accordingly, the certificate was not “new information”.
However, I do consider that the Authority did consider that the transcript may be relevant. That is because there are aspects of the Authority’s reasons that are more likely than not to have come from the underlying documents and, in particular, the transcript of the identity interview and report: see, for example, [19] and [29]; cf. transcript[3] p.16 lines 5-13, p.21 lines 7–10. The fact that the Authority relied on the information in the transcript to some extent compels the conclusion that it considered that that information may be relevant. For that reason, the transcript was “new information”.
[3] Affidavit of Sivarama Krishnan Valliappan affirmed 22 October 2018, Ann.SKV-1.
It follows from that conclusion, applying CED16, that the Authority ought to have, but did not, consider the operation of s.473DD or s.473DE in respect of the transcript. On the authority of CED16, that failure amounted to jurisdictional error. In any event, as I have observed, the Authority relied on the information in the transcript in at least part of its reasoning. That supports the conclusion both that s.473DE applied to the information in the transcript and that the error was material.
Conclusion
The application must be allowed. There will issue writs of certiorari and mandamus quashing the decision of the Authority and requiring it to complete its duty to review the delegate’s decision.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 23 January 2019
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