CZU17 v Minister for Immigration

[2018] FCCA 3237

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZU17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3237

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority correctly applied s.473DD(b).

CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – where Authority departed from credibility findings by delegate.

Legislation:

Migration Act 1958 (Cth), ss.35A, 46A, 91K, 473BD, 473CA, 473DC(1), 473DD(a), 473DD(b)(i), 473DD(b)(ii), Pt.7AA

Cases cited:

BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178

DBE16 v Minister for Immigration and Border Protection [2017] FCA 942

Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

Applicant: CZU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 623 of 2017

Judgment of: Judge Jarrett

Hearing date: 10 November 2017

Date of Last Submission: 4 December 2017

Delivered at: Brisbane

Delivered on: 9 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Clutterbuck

Solicitors for the Applicant: Stolar Law

Counsel for the First Respondent: Ms Wheatley

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 29 May, 2017.

2. The first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 623 of 2017

CZU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a national of Afghanistan. He is an ethnic Hazara and Shia Muslim, born in Jaghori Province, Afghanistan. He arrived in Australia as an unauthorised maritime arrival having left Pakistan in September, 2012.

2. On 11 March, 2016 he applied for a Protection (Class XE) (Subclass 790) (Safe Haven Enterprise) visa. On 5 October, 2016 a delegate of the first respondent refused the application and on 10 October, 2016 referred it to the second respondent.

3. On 29 May, 2017 the second respondent affirmed the decision not to grant the applicant a protection visa.  From that decision he seeks judicial review in this Court.  He argues that the second respondent’s decision is affected by jurisdictional error in that it erroneously excluded from its consideration certain new information provided by the applicant to the second respondent for the purposes of the review.  He also contends that the second respondent fell into error when it made findings of fact that were different to those made by the first respondent’s delegate in the primary visa decision.

4. For the reasons that follow, I am not satisfied that the second respondent’s decision is affected by jurisdictional error.

Background

1. The background facts set out hereunder are taken largely from the written submissions of the first respondent.  The applicant did not contend that the first respondent’s submissions contained an erroneous recitation of the background facts to this matter. 

2. The applicant was born in Afghanistan and entered Australia as an unauthorised maritime arrival at Darwin on 1 October, 2012.

3. On 25 September, 2013 the applicant attempted to apply for a Protection (Class XA) visa. However, on 4 September, 2014 the applicant was advised that this visa application was invalid because of ss.46A and 91K of the Migration Act 1958 (Cth).

4. On 17 November, 2015 the delegate wrote to the applicant and invited him to apply for a temporary protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa. This was based on the changes to the laws about the protection application processes for certain illegal maritime arrivals. In this letter, the delegate explained that there was a new Fast Track Assessment process for protection claims to be assessed and noted that the s.46A bar had been lifted. The delegate also noted that the Fast Track Assessment process was different from the previous process in respect of review rights and timeframes.

5. On 11 February, 2016 the applicant lodged his application for a safe haven enterprise visa.  He stated that his occupation was as a shop keeper, his ethnic group is Hazara and his religion was Shia Muslim.

6. By the statutory declaration attached to his visa application, the applicant based his claims for protection as a fear from the Taliban. The applicant claimed that the Taliban continued to carry out attacks on Hazara and Shia people.  In addition, the applicant claimed that the Taliban knew his father worked as an interpreter for the American forces, which would also mean he would be subjected to harm.

7. On 11 March, 2016 the delegate acknowledged the applicant had made a valid application for a safe haven enterprise visa, having already lifted the s.46A bar.

8. The applicant, as an unauthorised maritime arrival, who entered Australia at an excised offshore place on or after 13 August, 2012 but before 1 January, 2014 who has not been taken to a regional processing country, who the Minister has given notice to lifting the s.46A(1) bar and who has a valid application for a protection visa, is a fast track review applicant. Section 35A of the Act provides the definition of a protection visa and, relevantly, includes a temporary protection visa.  There is no suggestion that the applicant was an excluded fast track review applicant and, as such, the applicant was a fast track review applicant.

9. On 18 May, 2016, the delegate invited the applicant to attend an interview on 8 June, 2016.

10. On 5 October 2016, the delegate refused the application for the TPV and provided notification of that decision.  That decision was a fast track decision, being a decision to refuse to grant a protection visa to a fast track applicant and as it was not the subject of a certificate under s.473BD of the Act, it was a fast track reviewable decision.

11. In accordance with s.473CA of the Act, on 10 October, 2016 the matter was referred to the second respondent for review. This application is subject to Part 7AA of the Act.

12. The second respondent acknowledged the referral on 10 October, 2016 and advised:

    The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.

13. The factsheet and the Practice Direction, both consistently set out the requirements for the consideration of any new information.  On 24 October, 2016 the applicant’s representative emailed the second respondent and provided submissions on the applicant’s behalf.

14. On 22 November, 2016 the applicant’s representative again emailed the second respondent with, what was claimed to be, recent developments which were directly related to the applicant’s claims and attached media articles in support of the claim.

15. On 7 April, 2017 the applicant’s representative again emailed the IAA with a claimed update on the applicant’s family situation of his mother and brother.

16. There is no dispute that the information regarding the applicant’s mother and brother in the April, 2017 submission was not provided to the delegate, prior to the delegate’s decision on 5 October, 2016.

17. Relevantly to this application for review:

    a)the second respondent considered whether it should have regard to the new information regarding the applicant’s mother and brother in the April 2017 submission.  I will deal with that in more detail below because it forms the subject matter of the first ground of review.  For present purposes it is sufficient to record that the second respondent concluded that it could not consider that new information; and

    b)the second respondent also reached different conclusions to those reached by the delegate about certain matters relied upon by the applicant.  One of those matters was whether the applicant’s family had received a threat letter from the Taliban and in 2012 telling them to leave Quetta because the applicant was the son of an interpreter for US forces.  The delegate had accepted that such a letter had been received but the second respondent was not so satisfied and did not accept the applicant’s claims about that.

18. The second respondent affirmed the delegate’s decision not to grant the applicant the visa for which he had applied.

The grounds of review

1. On 5 October, 2017 the applicant filed an amended application for review.  It contains three grounds.  At the commencement of the hearing before me, counsel for the applicant expressly abandoned ground three.  The applicant presses the remaining two grounds of review.

2. The applicant’s first ground of review which is structured more like an outline of argument is in the following terms:

   1. The decision of the IAA was affected by jurisdictional error in that:

   a. The IAA at paragraph 5 of its decision held that new information provided by the applicant, regarding the movements of his mother and brother in returning to Pakistan after being sent to Afghanistan, was informed to which the IAA must not have regard by reason of section 474DD(b) of the Act;

   b. The IAA found that new information described events that occurred (or if true would have occurred) in April 2017, after the date of the delegate’s decision;

   c. The IAA held that it was not satisfied that the new information could not have been provided before the delegate made his decision;

   d. The conclusion and reasoning of the IAA, that it was not satisfied that the new information could not have been provided to the delegate, were manifestly illogical and/or unreasonable, such that they did not amount to an exercise of the function of the IAA under section 474DD;

   e. Further and in the alternative to (d) above, the conclusion and reasoning of the IAA, that it was not satisfied that the new information could not have been provided to the delegate, involved the IAA asking itself the wrong question and misapprehended the nature of the statutory task required by section 474DD(b), such that they did not amount to an exercise of the function of the IAA under section 474DD;

   f. Further and in the further alternative to (d) and (e) above, in treating the “vagueness” and “unsubstantiated nature” of the new information as relevant to its assessment of whether the new information could have been provided to the delegate, the IAA asked itself the wrong question and/or misapprehended the nature of the statutory required by section 474DD(b);

   g. In consequence of (d), (e) and (f) above, the IAA excluded the new information from its consideration on the erroneous basis that it was required by section 474DD(b) to do so, foreclosing any lawful consideration of whether it could or should have regard to the new information; and

   h. Consequently, the IAA’s decision to confirm the delegate’s decision to refuse the applicant’s application for a protection visa was not made according to law.

3. This ground of review is directed to the second respondent’s treatment of some material contained in a written submission made on behalf of the applicant in April, 2017 before the second respondent had completed its review.  That material was to the effect that the applicant’s mother and brother had been sent to Afghanistan “a few months ago” but they were “recently” forced to flee back to Pakistan.  Material suggested that his mother and brother never felt safe and that his mother and brother were forced to flee to Pakistan due to lack of sustainable support, accommodation, absolute lack of support networks and due to the deteriorating security situation in Afghanistan.  Those matters were significant because the applicant’s case was that he did not have any relatives or family members in Afghanistan and he lacked the “traditional support network” that would allow him to subsist if he returned to Afghanistan.

4. The second respondent concluded that the information concerning the applicant’s mother and brother was new information.  The second respondent then considered whether it ought to consider that new information in the following way:

   5.  It has always been the applicant’s claim that he has no relatives living in Afghanistan and that his wife and child reside in Quetta, Pakistan, in the same household as his mother and brother, and three sisters, and that the applicant is the head of this family and their only source of financial support. However, the applicant’s claims regarding the movements of his mother and brother, and the reasons for these movements, were not before the delegate when he made his decision, and as such they amount to new information. The applicant has provided no reasons as to why this new information could not have been provided before the delegate made his decision or why it should be considered credible personal information. If true, the events described would have occurred in early 2017; and would thus have occurred after the date of the delegate’s decision. However, no supporting evidence has been provided to substantiate the claim that these events have occurred as claimed. It is not explained when or how the applicant learned of these matters. No specific information is provided as to what the “pressures on Afghan refugees” were which resulted in the applicant’s mother and brother being sent to Afghanistan, or why other members of the household (the applicant’s sisters, and his wife and child) were not. Nor is any information provided about where his mother and brother travelled to in Afghanistan, how they travelled, or what their specific experiences were while there. Given the vague, and unsubstantiated, nature of these claim, I am not satisfied that this new information amounts to either credible personal information or that it could not have been provided before the delegate made his decision. I am therefore not satisfied that s.473DD(b) is met with regard to this new information.

5. There are some obvious difficulties with the applicant’s grounds of review.  First, the second respondent did not hold that new information provided by the applicant, regarding the movements of his mother and brother in returning to Pakistan after being sent to Afghanistan, was information to which the second respondent must not have regard by reason of s.473DD(b) of the Act. The approach of the second respondent was to the effect that it could have regard to that information if it determined that the matters provided for in s.473DD(b) were met. It determined that they were not met.

6. Second, the second respondent did not find that the new information described events that occurred (or if true would have occurred) in April, 2017.  The second respondent determined that if the events described by the applicant were true then they would have occurred in “early 2017”.  They would have occurred after the date of the delegate’s decision.

7. Third, the second respondent did not hold that it was not satisfied that the new information could not have been provided before the delegate made his decision.  The second respondent recorded that the applicant had given no reason as to why this new information could not have been provided before the delegate made his decision.  Based on the applicant’s failure to give an explanation about that matter and the nature of the information, the second respondent was not satisfied that the new information could not have been provided before the delegate made his decision.

8. The applicant argues that there is a statutory obligation on the second respondent to set out in its reasons for the decision the fact that it is satisfied on matters identified in s.473DD and the basis or reasons for its satisfaction.  He argues that in this regard, the second respondent either misunderstood or failed to properly consider the requirements of that section, that is, s.473DD.  However, in my view, the second respondent has not made that error.

9. In EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 Thawley J summarised the statutory scheme established by ss.473DC and 473DD of the Act:

   60.    The statutory scheme so far as it concerns getting (s 473DC) and considering (s 473DD) “new information” can, for present purposes, be summarised as follows:

   (1)         Section 473DC(1) gives the Authority a discretion to get “new information” which it considers “may be relevant” and which was not before the Minister when the s 65 decision was made.

   (2)         In considering whether the documents “may be relevant”, the Authority is necessarily engaged in an exercise which is speculative to some degree.

   (3)         Section 473DD prevents the Authority from considering any new information unless satisfied that there are “exceptional circumstances” in accordance with the terms of the provision.  The Authority can only consider new information if it has first got it.

   (4)         The discretion to get new information under s 473DC(1) does not expressly turn on whether there are “exceptional circumstances” within the meaning of s 473DD(a). The requirement for there to be “exceptional circumstances” only arises when the Authority addresses whether it is prevented by s 473DD from considering the “new information” it has got.

   (5) The nature and content of the “new information” would ordinarily, or at the least may, be relevant to whether there are “exceptional circumstances” under s 473DD(a) justifying considering the “new information” – see, or example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].

   (6)         The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).

   (7)         The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be “exceptional circumstances” within the meaning of s 473DD before the discretion to get new information was exercised.

10. Once the second respondent is satisfied that it has before it new information for the purposes of s.473DC(1) it must determine whether it is prevented from considering that information by s.473DD. The requirements of s.473DD(a) and 473DD(b) are cumulative but may nevertheless overlap to some extent. The second respondent’s consideration of either or both of the limbs in s.473DD(b) may inform the second respondent’s satisfaction under s.473DD(a) as to whether there are exceptional circumstances to justify considering the new information: Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198 at [102]; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [36].

11. The way in which the second respondent approached its task concerning the new information about the applicant’s mother and brother was to:

    a)record that the applicant had not provided any reason as to why the new information could not have been provided before the delegate made his decision;

    b)record that if the events described by him were true, they would have occurred after the date of the delegate’s decision;

    c)record that the applicant had not provided any reason as to why the new information should be considered as credible personal information; and

    d)analyse the new information to determine its likely probity should the second respondent consider it in the context of the review that it was conducting.

1. By reason of the fact that the second respondent considered matters that arose for consideration under s.473DD(b) it must follow, at least by necessary implication, that the second respondent was satisfied that it was dealing with new information for the purposes of s.473DC(1) of the Act. That is to say it was information that was not before the Minister when the primary decision was made: s.473DC(1)(a) and the second respondent considered may be relevant: s.473DC(1)(b).

2. The kernel of the second respondent’s decision is found in the sentence: “Given the vague, and unsubstantiated, nature of these claims, I am not satisfied that this new information amounts to by the credible personal information or that it could not have been provided before the delegate made his decision”.  It is clear that the second respondent after considering the matters set out in paragraph 5 of its decision formed the view that the new material upon which the applicant wished to rely was too vague and insufficiently cogent to be rationally probative in the second respondent’s reasoning.  It explained why it considered the new information was vague and unsubstantiated.  The substance and effect of the second respondent’s reasons is that the new information was not credible.  Thus, to the extent that it did not set out expressly whether it considered the information to be personal information for the purposes of s.473DD(b)(ii) of the Act it was unnecessary to do so because the second respondent determined that the new information was not credible.  It had to be credible personal information to engage s.473DD(b)(ii) of the Act.

3. There is something of an illogicality about the second respondent’s reasoning whereby it concluded on the one hand that if the new information was true there was a self-evident reason as to why it could not have been provided before the delegate (the incident described in the new information occurred after the delegate’s decision) and on the other hand expressing a lack of satisfaction that “this new information … could not have been provided before the delegate made his decision” because it was vague and unsubstantiated.  However, given that the second respondent considered that the material did not have any probative value the necessary condition that that information be true so as to explain why it was not provided to the delegate before the delegate made his decision was not fulfilled.

4. Although not raised in his amended grounds of review, the applicant argues that the second respondent did not consider whether there were exceptional circumstances to justify considering the new information for the purposes of s.473DD(a) of the Act. Having regard to the reasons for decision given by the second respondent, it is right to say that no consideration was expressly given to whether the requisite exceptional circumstances were much present so as to engage s.473DD(a). But the second respondent did not need to give express consideration to that subsection given its state of satisfaction concerning the two limbs of s.473DD(b): Minister for Immigration and Border Protection v CQW17 at [73]. Whether the second respondent will need to consider s.473DD(a) in the context of considering the matters that arise under the two limbs of s.473DD(b) will depend upon the facts of each particular case: Minister for Immigration and Border Protection v CQW17 at [72]. The applicant did not point me to anything that indicated that, on the facts of this case, meant that the second respondent ought to have considered s.473DD(a), either independently of, or in the context of considering the matters that arise under the two limbs of s.473DD(b) of the Act.

5. Ground one of the amended application for review does not reveal any jurisdictional error.

6. The second ground of review is in the following terms:

   2.  The decision of the IAA was affected by jurisdictional error in that the IAA failed to take into account a mandatory relevant consideration, namely that the Minister’s delegate, who had enjoyed the advantage of seeing and hearing the applicant give evidence at an interview, had found him to be a credible witness and had accepted his evidence regarding the receipt by his mother of a threatening letter from the Taliban in 2012.

7. The first respondent’s delegate accepted the applicant’s claim that his mother had received a letter sometime in 2012 containing a threat against him, based upon his father’s previous work as an interpreter.  The second respondent did not accept that claim.  Its reasons explain why.

8. The applicant submits that it is a “mandatory relevant consideration” that the second respondent take into account the assessment of credit and oral evidence that was given and made by the first respondent’s delegate.  Thus, the applicant argues that the second respondent ought not to have departed from the delegate’s assessment that the applicant’s claim about his mother receiving a letter from the Taliban was credible.

9. There is no error on the part of the second respondent in making a different finding to that which the delegate made about the facts or any of them: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169, DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59]-[65].

10. The applicant argues that (citations omitted):

    24.   Despite authorities considered by this court BMB16 v. Minister for Immigration and Border Protection and DCG16 v. Minister for Immigration and Border Protection, it is submitted that when the Second Respondent assesses evidence given by one such as the applicant at an interview with a delegate of the First Respondent, and the delegate accepts that evidence, and the Second Respondent does not interview the applicant the scheme of Part 7AA of the Act is such as to require the Second Respondent to take into account when assessing that evidence of the applicant, the fact that the delegate accepted that evidence as credible and accepted it as true.

11. In BMB16 vMinister for Immigration and Border Protection Dowsett J said at [15]:

    It may be arguable that the Authority is, nevertheless, bound by findings of fact made by the delegate.  However the better view is that the Authority must satisfy itself as to whether there should be a remitter with permissible directions or recommendations.  That the Authority may, in certain circumstances, consider new material, leads inevitably to the conclusion that the review is not limited to a review on the material before the delegate.  It follows that any review is not dependent upon identifying error in the delegate’s decision.  There is no basis for arguing that the form of review will vary, depending upon whether the Authority considers, or does not consider new information.  Whilst appropriate deference should be given to findings of fact based on “evidence” given in person to the delegate, such deference does not limit the nature of the review.  It is rather a factor to be taken into account in conducting such review.

12. As the first respondent submits, whilst Dowsett J’s remarks suggest that deference to the delegates findings of fact may be a “factor” to be taken into account by the second respondent upon a Part 7AA review, his Honour does not state that it is a mandatory relevant consideration, the absence of which would lead to jurisdictional error. Neither do the other judges that comprises the Full Court in that case, Besanko J and Charlesworth J.

13. This ground of review does not establish jurisdictional error. 

A further matter

1. On 8 November, 2018 I caused my associate to give notice to the parties that I intended to deliver judgment in this application at midday on 9 November, 2018.  That prompted email correspondence from the first respondent’s solicitors to the following effect:

   We write to advise the Court that the Department’s records indicate that the applicant entered Australia by sea at the Ashmore and Cartier Islands, and accordingly, his application is affected by DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178, and also the related appeals of Minister for Home Affairs v DBD16 (WAD345/2018) and Minister for Home Affairs v DBC16 (WAD346/2018). Notwithstanding that judgment was delivered in DBB16 on 6 August 2018, reasons were not published until 19 October 2018, and the Minister is considering whether to seek special leave to appeal to the High Court. 

   The Minister accepts that the Full Court’s decision in DBB16 currently binds the Federal Circuit Court, and will affect the outcome of the judgment in this matter. However, the Minister maintains his position that it was wrongly decided.

2. The present case is on all fours with DBB16 v Minister for Immigration and Border Protection. That decision compels the conclusion that the second respondent had no jurisdiction to conduct a review pursuant to Part 7AA of the Act in respect of his visa application. Rather, he was entitled to a full merits review by the Administrative Appeals Tribunal pursuant to Part 7 of the Act.

3. In those circumstances, the application succeeds in the applicant is entitled to the relief that he seeks.  A remittal is inappropriate given that the second respondent is bereft of jurisdiction.  The first respondent does not oppose an order for costs in the applicant’s favour. 

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Jarrett 9 November, 2018.

Date: 9 November, 2018