DBU16 v Minister for Immigration - [2017] FCCA 1221

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBU16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1221

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicants claiming a fear of harm in Iran – first applicant disbelieved in critical respects – whether the Authority denied the applicant the opportunity to respond to adverse information or denied the applicant an oral interview – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H(1) 36(2)(a), 36(2)(aa), 36(2B), 36(2C), 473CA, 473DA, 473DB, 473DD, 473EA, Part 7AA

Cases cited:

AMA16 v Minister for Immigration and Border Protection [2017] FCCA 303

DBE16 v Minister for Immigration and Border Protection [2017] FCCA 487

DCG16 v Minister for Immigration and Border Protection [2017] FCCA 285

FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
SZBEL v Minister for Immigration (2006) 228 CLR 152

First Applicant:

DBU16

Second Applicant:

DBZ16

Third Applicant:

DCA16

Fourth Applicant:

DCB16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 972 of 2016

Judgment of:

Judge Jarrett

Hearing date:

7 April 2017

Date of Last Submission:

7 April 2017

Delivered at:

Brisbane

Delivered on:

8 June 2017

REPRESENTATION

Counsel for the Applicants:

Ms Kluss

Solicitors for the Applicants:

Hopgood Ganim Lawyers

Counsel for the First Respondent:

Ms Wheatley

Solicitors for the First Respondent:

Clayton Utz

The Second Respondent entering a submitting appearance

ORDERS

The amended application filed on 30 January, 2017 be dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 972 of 2016

DBU16

First Applicant

DBZ16

Second Applicant

DCA16

Third Applicant

DCB16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

On 21 August, 2015 the applicants applied for temporary protection (subclass 785) visas. They are all citizens of Iran and they arrived as unlawful maritime arrivals in Australia on 29 August, 2012.
On 17 July, 2016 a delegate of the Minster refused the applications by the applicants. The applicants were fast track applicants and the delegate’s decision was a fast track decision for the purposes of s.473CA of the Migration Act 1958. Accordingly, on 18 July, 2016 the applications were transferred to the Immigration Assessment Authority for review.
The Authority made a decision on 28 September, 2016 that affirmed the decision of the first respondent’s delegate to refuse to grant to the applicants the visas for which they applied.
By this application, the applicants seek judicial review of the Authority’s decision. They submit that the Authority fell into jurisdictional error because the conclusions it reached were unreasonable. The applicants argue that the Authority failed to take relevant considerations into account and took irrelevant considerations into account. They argue that the Authority failed to afford them procedural fairness.
I am assisted by both written…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 1221
Decision Date: 8 June 2017

CaseChat Overview and Summary

The applicant, DBU16, sought judicial review of a decision made by a delegate of the Minister for Immigration. The dispute concerned the Immigration Assessment Authority's (IAA) review of the delegate's decision to refuse to grant a protection visa. The matter came before Judge Jarrett of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the IAA had correctly applied the provisions of Part 7AA of the *Migration Act 1958* (Cth) in its review of the delegate's decision. Specifically, the Court was required to determine if the IAA had erred in its consideration of new information provided by the applicant after the delegate's decision, and whether this new information should have been taken into account under section 473DD of the Act.

Judge Jarrett reasoned that section 473DB of the *Migration Act* mandates that the IAA must review a "fast track reviewable decision" solely on the basis of the material provided to the Authority, without accepting or requesting new information or conducting interviews. The IAA's decision noted that the applicant had provided further submissions, including new documentary evidence that pre-dated the delegate's decision. However, the IAA found that the applicant had not provided a satisfactory explanation as to why this new information was not presented to the delegate, nor why it should be considered credible personal information that, if known, might have affected the delegate's assessment. Consequently, the IAA concluded it was not satisfied in relation to the matters set out in section 473DD(b) and therefore did not consider the new information. The Court found no error in this approach.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The review of the first respondent’s delegate’s decision was subject to Part 7AA of the Migration Act. According to that Part, the Authority is to review decisions covered by that Part of the Act, on the papers. Section 473DB provides:473DB Immigration Assessment Authority to review decisions on the papers(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:(a) without accepting or requesting new information; and(b) without interviewing the referred applicant.(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)). Notwithstanding that, on 9 August, 2016 the first applicant made further submissions to the Authority. As to those submissions, the Authority said: 3. I have had regard to the material referred by the Secretary under s.473CB of the Act.4. On 9 August 2016 the IAA received a submission from the applicant husband providing reasons why he disagreed with the delegate’s decision. These include errors with regards to family information, record keeping and translation issues. He questions the delegate’s judgements with regard to information provided regarding his arrest, injuries from torture, ongoing interest from the Basij, work history, trip to Turkey and previous criminal charges in Iran. He states that the delegate’s assumptions that claims be assessed with ‘benefit of the doubt given to those who are generally credible’, does not appear to have been applied with regard to his claims. He states it appears the delegate assumed that his claims were not credible in the first instance. I have examined the applicant husband’s submission and will have regard to all relevant information in my assessment.5. The submission includes a letter dated 2 August 2016 from the applicant husband’s father relating to the applicant husband’s release on bail and explaining how a letter from the Martyr’s Foundation assisted. As the information in the letter about the release on bail was before the delegate, I have had regard to it in my assessment.6. In addition to the above, the submission contains new information from the Mayfield Spinal Clinic, the University of Southern California Spinal Health Unit, a Refugee Review Tribunal Iran Country Advice report on the 2009 Ashura Day demonstrations, a 2009 US Department of State Report on Iran, a 2014 BBC news report and a United Nations High Commissioner for Refugees (UNHCR) publication titled ‘Beyond Proof: Credibility Assessment in EU Asylum Systems.’ The new information pre-dates the delegate’s decision. The applicant husband did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicants’ claims. As a result I am not satisfied in relation to the matters set out in s.473DD(b) of the Act and have not considered the new information in my assessment.