CZC19 v Minister for Immigration and Anor
[2020] FCCA 1105
•7 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZC19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1105 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – whether the Authority failed to exercise its jurisdiction – whether the Authority excluded information as being new information – whether there is jurisdictional error – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 473 |
| Cases cited: BDR18 v The Minister for Home Affairs [2020] FCA 212 CVV16 v The Minister for Home Affairs [2019] FCA 1890 DTK17 v Minister for Immigration and Border Protection (2018) 265 FCR 538 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 |
| Applicant: | CZC19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1974 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 7 May 2020 |
| Date of Last Submission: | 7 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 7 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Godwin |
| Counsel for the Respondents: | Mr Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Grant leave for the Applicant to rely upon the Amended Application filed 17 May 2020.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $7467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1974 of 2019
| CZC19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from transcript)
Introduction
The applicant claims to be an Arab and Shia Muslim from Southern Iraq. On 5 May 2013, the applicant departed Iraq using his lawful passport and arrived at Christmas Island on 17 May 2013, as an unauthorised maritime arrival. On 6 April 2017, the applicant lodged an application for Safe Haven Enterprise Visa (SHEV). The applicant claimed to fear harm from Shia militia because of his brother’s work as a bodyguard for the then Iraqi Prime Minister.
On 17 June 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the visa. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review.
In a decision dated 23 July 2019, the Authority affirmed the delegate’s decision not to grant the applicant the protection visa.
The applicant now seeks judicial review of the Authority’s decision.
The Immigration Assessment Authority’s Decision
Given the limited scope of the grant of appeal, which is set out below, it is not necessary to summarise the entirety of the Authority’s decision. The Authority did not accept the applicant’s claims that he was threatened by a militia group, who were trying to get his brother to follow their demands. The Authority did not accept that the applicant was further threatened when the group found out that the he had made a complaint to police. In so doing, the Authority noted that, while it accepted the applicant may have been threatened by an unknown militia group in 2013, given that his brother H was no longer employed in his previous position and that threats had not been made to the applicant’s father, younger brothers, wife or daughter, all of whom remained in Southern Iraq and the applicant’s home town, the applicant no longer had a profile that would attract adverse attention of the militia group.
The Authority carefully considered the range of country information that was before it and was satisfied that the applicant faced no more than a remote chance of harm, for any reason associated with his religion, ethnicity or other reasons.
The applicant’s complaint centres on the approach taken by the Authority, which is set out at paragraphs 4 through to 23 of its decision, in relation to the consideration of information that was sought to be provided by the applicant to the Authority. That information included a summary of what H had said to the delegate, as regards to H’s own claims for a protection visa.
At paragraph 5 of its decision, the Authority noted that the applicant, through his current migration agent, provided submission to the Authority on 12 July 2019. Those submission states that at the interview with the delegate, on 29 March 2019, the delegate agreed not to rely upon a written statement of the applicant’s brother H, as it was not a true reflection of what happened to the applicant in Iraq. The delegate said they would disregard the statement and consider the claims that the applicant presented at his interview. The applicant agreed with this approach. At the conclusion of the interview, the applicant’s migration agent did not raise any claim that there was information contained in Hs statement that should be considered.
The Authority was satisfied that the applicant had a real and meaningful opportunity to identify any claims which he had made, which were not discussed in his interview. This included information that could be provided by H. No statement by H was provided in the submission to the Authority. The Authority was not satisfied that either the applicant or his migration agent had raised the claims by H, either during or post the applicant’s SHEV interview (see paragraph 12 of the Authority’s decision). The Authority found the submission set out what is presumably true about H and his activities in Iraq. As the Authority determined to accept the claims that H worked as a bodyguard for the then Iraqi Prime Minister and that the applicant was threatened by an unknown militia group, in an attempt to get him to influence H, the Authority determined there were no exceptional circumstances to justify accepting this new information.
Grounds of Appeal
A single ground of appeal is now relied upon and contained in an Amended Application filed in Court on 17 April 2020. An application in a case has also been filed, seeking leave to rely upon this new ground.
IThe Court simply notes that the filing of an application in a case, is an appropriate course and the Court thanks the courtesy that was extended to it, by filing that application. It is not always the case that such an application is filed and in many cases, the submissions simply contain new grounds and it is presumed that the Court will accept them.Counsel for the applicant advises the first respondent had been put on notice, of the proposed new ground, on 26 February 2020. The first respondent have indicated that they neither consent nor oppose the application. In these circumstances, where the first respondent had been on notice for some considerable period of time and the Court is satisfied that there is no prejudice to the first respondent, leave to rely upon the amended application and ground one of the application granted.
That ground of appeal is as follows:
The Authority failed to complete the exercise of its jurisdiction as the same delegate decided both the application of the applicant and his brother H, with H first and then the applicant. The information about H from H’s interview was known to the delegate at the time he/she made the applicant’s decision. The adviser relied upon this information in a submission to the IAA but the IAA excluded it as new information. Because the delegate was aware of the information it was not quote “new information” and should not have been excluded by the IAA pursuant to s 473DD of the Act.
The Applicant’s Submissions
Counsel for the applicant submitted that the Authority regarded the substance of the adviser’s submission to be new information. In relation to those parts, which refer to the brother’s role with the former Iraqi Prime Minister and the threats that had been made to the applicant, the Authority took the view that there were no exceptional circumstances, as it accepted these events occurred.
However, there were two other items of information which the Authority considered to be new information, which it did not apply this reasoning to. First was the claim that after the applicant’s brother had left Iraq, a member of a militia group had contacted the applicant’s father and asked where the brother H was. The applicant’s father told the member of the militia group that H had gone overseas. The second piece of information was that the brother H had shot and wounded an al-Qaeda member and arrested others from that organisation.
The Authority found that there were no exceptional circumstances to allow it to consider each of these pieces of information. The Authority accepted the applicant was threatened, in an attempt to intimidate his brother. The Authority concluded, however, at paragraph 13 of its decision that the applicant had told the delegate that his brother is now in Australia and he has not claimed that any militia organisation or person has been looking for H, or asking the family for his whereabouts. The applicant had not claimed any militia organisation had approached, threatened, harassed or harmed the applicant’s father or younger brothers, all of whom remain in place in the family home in Iraq, for any reason associated with the applicant and his brother H, since 2013.
In an affidavit filed by the applicant, which attaches the delegate’s decision in H’s case, the following is extracted:
He claimed that after his brother’s departure he left the country to protect his family ... His father has advised the person who threatened both H and the brother that they had left Iraq and apologised to him that they did not help him when they were in Iraq.
The brother claimed that his father said as much to protect the rest of the family. The brother claimed that he was scared of two named militia organisations, because he had injured a member of one and arrested others in his role with the Iraqi Prime Minister’s office.
Counsel for the applicant submitted that s 473DC(1)(a) of the Migration Act 1958 (Cth) (“the Act”), provides information is new information, if it was “not before the Minister when the Minister made a decision under section 65”. The same delegate who had decided the applicant’s case, decided the brother H’s case some 12 days before they decided the applicant’s case. It was put to the Court and conceded by the first respondent, that both H and his brother were interviewed by the delegate on the same day, one at 8.30am and the applicant later that day, around midday. It was submitted that there was no doubt that the information was in possession of the Minister, at the time the delegate made the decision in the applicant’s case. As the information was on the departmental file for H, there was no reason to consider the delegate had forgotten about this, within the limited period of time between when they made the decision in relation to H and the applicant.
Reliance was placed on BDR18 v The Minister for Home Affairs [2020] FCA 212 (“BDR18”) per Lee J, where a previous application made by an applicant was not referred to in the delegate’s decision. The application was not on file and not provided to the Authority. The Authority requested a copy of the application from the Department. The Authority relied upon the application in its reasons. The issue in that case was not in the circumstances whether the previous application was before the Minister, as it was not physically before the delegate when the delegate made the decision. Lee J found it was before the Minister, although not physically before the delegate.
At [77] of BDR18, Lee J stated:
As I stated during the hearing, there was some force in the submission of the appellant that the content is to be determined as a matter of fact and degree. For instance, it could not be sensibly said that if the delegate looked to the material the day before the decision that it is not material before the delegate when the delegate made the decision. However, as the Minister conceded, there may be a situation where if the information was before the delegate at a time so remote from the decision-making process it could not be sensibly be regarded as satisfying the provision.
Reliance was also placed on CVV16 v The Minister for Home Affairs [2019] FCA 1890 (“CVV16”). Mortimer J dealt with a situation where the information was shown to the delegate by the applicant at the safe haven enterprise visa interview, but the delegate did not receive the information from the applicant, in that they did not physically receive the information. The Authority considered the information was new information. At [79] of CVV16, the following was stated:
I do not consider Parliament intended to require additional hurdles in the new information provision to have been met in circumstances where a delegate elected to refuse information proffered by a visa applicant. I do not consider Parliament contemplated that a delegate might refuse to accept relevant information. To the contrary, such information is, in its timing and purpose, no different from information the delegate accepted.
Paragraph [80] of CVV16 then says:
I also accept the appellant’s submissions that an Authority review can be vitiated through no “fault” of the Authority itself: see EVS17 v Minister for Immigration and Border Protection FCAFC 20. In the circumstances, the Commission documents were probative of, and material to, the appellant’s claims, and were capable of corroborating important and central aspects of his narrative of what had happened to him in Sri Lanka. In failing to consider them, because it found them to be new information and therefore found they could not be considered unless the additional hurdles set out in 473DC were met, the Authority exceeded its jurisdiction. That is because, objectively, the documents did not fall within the definition of new information in 473DC(1)(a). The two limbs in the – of section 473DC(1)(a) are cumulative.
Counsel for the applicant submitted the Authority proceeded on the basis that had there been no approach to the father, after the applicant and H had left Iraq. The excluded information, if it had been accepted, said otherwise. The Court cannot be satisfied that there was no realistic prospect of a different outcome, had the information been received.
The First Respondent’s Submissions
Counsel for the first respondent submitted the claim made by the applicant rests on a simple proposition. The Authority in effect failed to apply s 473DC(1)(a) of the Act correctly, by erroneously characterising certain information as new information. The basis of this alleged mischaracterisation rests on the following propositions:
(a) new information comprises documents or information that were not before the delegate when the delegate made the decision;
(b) the same delegate interviewed the applicant and his brother;
(c) by reason of (b), the delegate considered the applicant’s claims, was aware of the brother’s claims;
(d) by reason of (c), the brother’s claims were before the delegate, for the purposes of s 473DC(1)(a) of the Act when the delegate considered the applicant’s claims.
Counsel for the first respondent submitted that it was tolerably clear by reference to the statutory provisions that the Authority’s review jurisdiction, is predicated upon the review of a particular decision, which has been the subject of referral to the Authority. Therefore, the information is new, in the requisite sense. It is consistent with the statutory framework referable to a particular decision (see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [225] to [229]).
By extension, it follows that whether information is before the delegate, must be referrable to the delegate considering the particular application and the particular decision the delegate makes, in respect of that application. The consequence is that, whatever domain of information is relevantly before the delegate, it cannot include information that was only before a separately constituted decision-maker, making a different decision under s 65of the Act. It cannot, in this context, make any difference to the analysis that the relevant delegate happens to be the same individual and the delegate is receiving information under different applications, discharging different decision-making mandates. It cannot be said to be the case that:
“Before” is read so as to encompass material before a decision-maker (whether the same person or a different person) in an entirely separate application.
In fact the same person is a distinct decision-maker in each case and what is before that person, qua a particular decision, is preferable to that particular application.
In DTK17 v Minister for Immigration and Border Protection (2018) 265 FCR 538 (“DTK17”), the conclusion of the Full Court, that material had to be physically before the delegate, was made in the context about a document, not information. More pertinent to the present case, is the Court determined that “before” in s 473DC(1) of the Act, did not include any constructive knowledge of a part of the Minister or information over which the Minister had control.
The applicant provides no reason as to why a different application should be characterised as anything more than constructive knowledge on the part of the Minister. CVV16 does not assist the applicant, as in that case, Mortimer J found the information in question was before the delegate, because the information was physically before the delegate. There is no meaningful comparison in the present case, where the applicant took no step to put any statement or document from H, before the delegate.
None of the other decisions relied upon by the applicant, are inconsistent with or, indeed, address the idea that the information before the delegate, in separate applications, can be said to be before the delegate in both applications, simply by virtue of the delegate being the same person in both cases.
Consideration
A starting point is that s 5AAA of the Act makes it clear that an applicant is required to put all information, relevant to their application, before the delegate at the first available time. This matter revolves around whether or not the disputed information was “before” the Minister and was therefore, not new information for the purpose of s 473DC(1) of the Act. The Authority found that the information was new information.
From the factual point of view, it is common ground the material is sought to be relied upon was contained in the applicant’s brothers, application. The applicant suggests because the same delegate decided both the applicant’s application and that of his brother H, there was no reason to consider the delegate had forgotten about this in the 12 day time period between when the delegate made a decision, in relation to the applicant’s brother H and the applicant. It is suggested accordingly the information remained before the Minister, when the delegate decided this particular application. The Court does not accept this submission.
Taken to its logical extreme, the applicant’s submission amounts to a proposition that all information in relation to every application that has been before a delegate, would be before the Minister, in relation to every other application. The fact that the delegate was the same in both the applicant’s case and that of his brother is, to the Court’s mind, irrelevant. The Court agrees with the submissions of the first respondent that the term “before” must be referrable to the delegate, considering a particular application and a particular decision that the delegate makes, in respect of that application.
The Court is satisfied that each of the cases relied upon by the applicant are distinguishable to the current case. DTK17 can be distinguished on the basis that the material was made in the context of a claim, about a document and not information. The Court notes at [38] of DTK17, the Court concluded that “before” in s 473DC(1)(a) of the Act did not include any constructive knowledge, on the part of the Minister. CVV16 concerns a document that was offered to the delegate, which the delegate refused to accept. It was the refusal to accept the document that made the difference in that case.
In coming to the conclusion the Court has taken particular account of the comments of the Authority at paragraph 7 of its decision. The Authority notes that at the end of the applicant’s interview, in relation to his protection visa application, the applicant was given time to consider it and whether or not he had covered everything that he wanted to talk about. When the interview resumed, the applicant said there was nothing else he wanted to say. The applicant’s migration agent did not make any submissions or raise any concerns with the delegate’s approach or indicate that there was any additional statement or claims that related to the former agent’s statement or information provided by H that should be considered.
The Authority considered the new information was no more than an assertion by the agent, not supported by any evidence from H and not supported by any statement of information by the applicant. At paragraph 12 of the Authority’s decision, in relation to the claim that H had shot at and arrested al-Qaeda members, the Authority notes it listened to the agent’s oral submission to the end of the SHEV visa, but there was no reference to this incident or any claim that the applicant had a profile with Al-Qaeda or Islamic State, because of that incident. At paragraph 13 of its decision, the Authority found it was not credible that the applicant would not have referred to a fear of harm, at the hands of Al-Qaeda or Islamic State if he had such a fear. The Authority found the information was not credible.
An issue has arisen as to whether or not, even if the Court is wrong in the above analysis and the information was, in fact, before the Minister, that in light of the comments made by the Authority, as to the credibility of the information and the reasons for rejecting it, whether or not it would have made a difference. The relevant test is whether or not, had the information been received, there would have been a realistic prospect of a different outcome. The Authority proceeded on the basis that there had been a generalised threat made to the applicant, but was satisfied that, given the passage of time and the fact that the applicant’s brother H no longer resided in Iraq, that the applicant faced no real chance of harm now and in the reasonably foreseeable future, if he was returned to Iraq.
The Authority also noted that no harm had befallen to the applicant’s father, younger brother, wife or others in the immediate family, since they had left Iraq. The Court is reasonably satisfied that, even had the information been accepted, there would have been no realistic prospect of a different outcome. Therefore, in terms of materiality the matter must fail.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 4 June 2020
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