DBU16 v Minister for Immigration
[2017] FCCA 1221
•8 June 2017
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 |
| 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 and oral submissions in this matter from each of the parties. Despite the fulsome submissions made by counsel for the applicants however, I have come to the conclusion that, for the reasons that follow, the application must be dismissed.
Background
The first applicant was the main visa applicant for the purposes of the present application. The other applicants were all members of his family unit.
The first applicant claimed that he had a well-founded fear of persecution should he be returned to Iran for the following reasons:
a)While participating in the Ashura Festival on 26 December, 2009 with a neighbourhood group, the first applicant was arrested by Basij officers, detained for three months and beaten while in detention resulting in permanent injuries to his back and left leg.
b)He appeared at the Enghelab Court in Ahwaz and as his case would not be heard immediately, on his father depositing his trading licence, he was released on bail. He was not required to return to court again but his house was raided and searched twice by Basij officers between March, 2010 and March, 2011.
c)In March, 2011 the first applicant’s wife’s workplace was raided by Basij officers and she lost her job.
d)Around June, 2011 the applicant’s children were involved in a traffic accident and a few days later an anonymous telephone caller warned the applicant husband “not to pursue his opinions”. The first applicant claimed that he realised his family was being targeted and decided to leave Iran. They departed on 22 September, 2011.
e)He feared harm from Iranian authorities as he was detained by the Basij. If he returns he will be interrogated and new political allegations would be made against him. He is fearful for the safety of his family. He claimed that nowhere in Iran is safe because of Basij officers who dominate the nation.
f)In 2012 the first applicant’s father’s trading licence which was deposited with the Enghelab Court in Ahwaz was forfeited due to the applicant fleeing Iran. Since departing, Basij officers have twice visited his father to ask of his whereabouts.
g)The first applicant feared harm from Iranian authorities as a direct result of the data breach by the Department of Immigration and Border Protection in February, 2014.
The applicants were all born in a providence of Ahwaz in Iran. They are all Iranian citizens. The first applicant presented claims for his own protection. The second, third and fourth applicants as the first applicant’s wife and two children relied upon the family unit criteria under s.36(2B) or (2C) of the Migration Act 1958 (Cth).
The first delegate’s decision and reasoning, the applicants argue, is relevant to the present application. The applicants point out that the delegate:
a)accepted that the first applicant “holds strong beliefs about the present and past political situation in Iran” but found the first applicant “did not have a political profile”;
b)did not accept the first applicant “was released from detention, after his father posted bail”, or that his “father lost his trade licence as a consequence of the [first a]pplicant leaving Iran”;
c)did not accept that the first applicant had sustained “permanent neck and leg injuries during his 2009 detention”;
d)accepted that the first applicant’s house was raided twice by the Basij, sometime between March, 2010 and March, 2011, but that this was “for reasons of satellite dish confiscation, rather than for the anti-state and related reasons claimed”;
e)did not accept that the Basij “would have been motivated to search [the second applicant]’s workplace or to have her dismissed from her workplace”;
f)found the third and fourth applicants were involved in a “general traffic accident in June 2011”, rather than a “Basij “hit-and-run” style traffic accident” and did not accept that the first applicant “received a warning phone call from the Basij following his son’s [sic] accident.”;
g)did not accept that the first applicant left Iran against specific Basij orders, and found that if the first applicant held a “particular subjective fear of persecution, it would be reasonable to expect he would have remained in Turkey and arranged for his family to join him there, rather than return to Iran”;
h)did not accept the “Basij questioned [the first applicant’s] father about his departure from Iran”;
i)held that “the weight of information indicates that a failed asylum seekers [sic] returning to Iran, without any outstanding security or criminal matters, are not facing harm, simply for being suspected of claiming asylum abroad…”.
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.
Section 473DD provides:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The applicants do not suggest that the information provided by the first applicant and described as “new information” by the Authority engaged s.473DD(a) or (b).
The Authority considered the first applicant’s claims and found:
a)the first applicant did not have a profile as a political activist;
b)the first applicant’s family was given a concession by the Court in respect of his bail such that his father secured his release on bail by depositing his trading licence with the Court;
c)the first applicant’s father did not “forfeit…his trading licence because the [first applicant] fled Iran”;
d)the Iranian authorities had no further interest in the first applicant following his release from detention;
e)it was not until the first applicant was examined in Australia that he realised his back had been injured, and “the available evidence gives no indication that this was sustained as a result of mistreatment while in detention in Iran”;
f)despite the first applicant having consistently made assertions to the contrary, it was not “plausible that following his release from three months detention, he would risk further attention from the Basij by complaining vocally to friends and neighbours about unjust treatment from the authorities”. As such, it was found that “this did not occur”;
g)there was no further contact by the Basij either with the first applicant, the second applicant, or the first applicant’s father, including the claimed raids on the applicants’ home and the second applicant’s place of work;
h)it was implausible that a person in fear of the Basij, as claimed by the first applicant, would “nevertheless be able to obtain a passport in September 2010 after being released from detention in March 2010 and…travel as a tourist to and from Turkey without encountering difficulties”;
i)based on a study conducted in 2008 which revealed that Iran has “one of the highest traffic-related mortality rates in the world”, the third and fourth applicants “were involved in a routine traffic accident and not targeted by the Basij.”.
The Authority concluded that the applicants did not meet the definition of refugee in s.5H(1) of the Act and did not meet s.36(2)(a) of the Act. The Authority considered the applicant’s claims to complementary protection and reached a conclusion that the applicants would not suffer significant harm as a necessary and foreseeable consequence of being returned from Australia to Iran. They did not, therefore, meet s.36(2)(aa) of the Migration Act.
The grounds of review
The applicants’ amended application filed on 30 January, 2017 has four grounds of review. However, the applicants’ written outline of submissions tends to focus on two broad areas expressed in the written submissions as follows:
43. In determining whether the Applicants satisfied the requirements of section 36(a) and (aa), the IAA acted beyond its jurisdiction and reached an unreasonable conclusion because it failed to give genuine, proper and realistic consideration to, and made erroneous findings of fact in respect of, various aspects of the Applicants’ applications. Further, it gave excessive weight to a research article, which bore no relevance to the circumstances of an issue for determination.
44. In addition, the IAA failed to afford procedural fairness to the Second Applicant, by failing to interview her as to matters which directly concerned or involved her and which ultimately influenced the IAA’s decision to reject the Applicant’s protection visa applications. It further failed to afford procedural fairness to the First Applicant as it failed to squarely put to him its doubts as to his credit and the fact this was likely to, and in fact did, undermine his evidence about various aspects of his application.
I will deal with each of the rounds set out in the amended application for review in turn.
Ground one – an irrelevant consideration.
The first respondent submits that the applicants identify two matters which are said to be irrelevant considerations that were taken into account by the Authority. The first is that the Authority described the first applicant’s occupation as a welder whereas he is, apparently, a boiler maker. In my view, there is no difference. A boiler maker is a welder although perhaps not all welders are boiler makers. In any event, in the context of the Authority’s decision, the difference is immaterial. Even if the Authority made a mistake about the first applicant’s occupation, the mistake is immaterial to the outcome of the Authority’s determination. Taking that matter into account, if that is what the Authority did, does not lead to the conclusion that the Authority’s decision is unreasonable.
The second matter identified by the applicants relates to a traffic incident sustained by the third and fourth applicants. The first applicant’s evidence to the first respondent’s delegate was that the accident occurred in June, 2011 when an un-plated (and therefore presumably unregistered) vehicle targeted a motorcycle on which the third and fourth applicants were travelling to school with their cousin on the back of their motorbike. He claimed that the motorbike was hit from behind and his eldest son suffered a large laceration to his leg which was treated in hospital that day. The first applicant claimed that a short time after the accident he received a phone call from the Basij warning him to stop “pursing his opinions” or his family would be further targeted. The first applicant contended that the incident was evidence that the Basij or some other state sponsored organisation was targeting his family.
Whilst the Authority was satisfied that the third and fourth applicants were involved in a routine traffic accident, it determined that the third and fourth applicants were not targeted by the Basij as the applicants had claimed. In making that determination, the Authority referred to an online article entitled “Making Iran’s road safer: UNICEF Iran celebrates Children’s Day by launching traffic safety campaign”, United Nations Children’s Fund (UNICEF), 06 October 2008. In respect of the traffic accident, the Authority said:
17. I have found that the applicant husband was not of interest to the Basij. With this in mind, I do not accept that the accident involving the applicant children was due to targeting by the Basij. Country information from 2008 is that Iran had one of the highest traffic-related mortality rates in the world with road crashes accounting for the highest number of injuries among children between 10 and 19 years. Nearly 2,700 children under the age of 15 died in 2006 and close to 95,000 children and adolescents under the age of 20 were injured in traffic accidents. Given the prevalence of road accidents involving children in Iran, I find that the applicant children were involved in a routine traffic accident and not targeted by the Basij.
The applicants argue that the Authority unreasonably relied upon the UNICEF information as a basis for its conclusion in respect of the traffic accident and that it failed to give genuine, proper and realistic consideration to the description provided by the first applicant of the accident from which it could not reasonably be concluded the circumstances of the traffic accident were “routine”. However, in my view, the Authority was entitled to adopt the course that it took. The information from UNICEF was information that the Authority could take into account. It was not irrelevant. It dealt with the frequency with which young people in Iran were involved in motor vehicle accidents. The weight to be given to that information was a matter for the Authority. Moreover, the Authority was able to use its antecedent finding that the first applicant was of no ongoing interest to the Basij to conclude that the traffic incident was nothing more sinister than an accident. Implicit in the Authority’s conclusion is a finding that the traffic incident did not happen in a way in which the first applicant reported it, namely a deliberate “hit-and-run” incident, but rather was an accident. The Authority also implicitly rejected the first applicant’s claim that he was contacted by the Basij after the accident.
To succeed on the argument that the Authority took into account irrelevant considerations, the first applicant must demonstrate that the consideration taken into account by the Authority was one which was prohibited from consideration by the enactment vesting the decision maker with the authority to make the relevant decision: FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 at [90]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [39]-[40]. Here, the applicants do not attempt to demonstrate that the material that was taken into account by the Authority was forbidden from its consideration. I accept the first respondent’s submission that the complaint made by the applicants regarding the Authority’s use of UNICEF’s material is targeted at the merits of that aspect of the decision. The first applicant’s submissions invite impermissible merits review in that respect.
This ground of review – that the Authority took into account irrelevant considerations – reveals no jurisdictional error.
Ground two – failure to take relevant considerations into account
The applicants give the following particulars of this ground:
Particulars
In exercising the power under section 36(2)(aa) of the Act to purportedly deny the Applicants protection visas, the Second Respondent failed to take into account the following considerations which ought to have been taken into account:
The specific nature of the Basij
i. The Basij Resistance Force is a paramilitary organisation, which operates under the Islamic Revolutionary Guards Corps.
ii. Intervention by the Basij throughout Iran is often violent, and sanctioned by the Supreme Leader.
iii. Members of the Basij do not always wear a uniform.
The specific nature of the province of Ahwaz
iv. The Applicants all hail from the province of Ahwaz, which has a history of dissent against the Iranian government due to its large Arabian population, and is consequently an area of particular concern to the Basij.
The significance of the First Applicant’s family’s status as a martyred family
v. The combined effect of the First Applicant’s arrest by the Basij at the opposition protest in 2009, and the First Applicant’s family’s status as a martyred family.
The release of the First Applicant from detention
vi. The First Applicant’s father’s trade license was retained by Iranian authorities on the First Applicant’s release from detention.
The political opinions of the First Applicant
vii. The First Applicant completed obligatory military service for the Iranian Government, during which he was outspoken about his objections to the Iranian regime.
viii. The First Applicant has a profile with the Basij.
The circumstances of the traffic accident
ix. The First Applicant’s account of the traffic accident in or about June or July of 2011 was not akin to a routine traffic accident.
The First Applicant’s visit to Turkey
x. The First Applicant had been in possession of a passport for more than ten years prior to his arrest, which passport was subsequently extended.
xi. The extension of passports is an Iranian Civilian Police matter.
xii. At the relevant time, Turkey and Indonesia were two main countries that had good relationships with Iran allowing easy travel between the countries.
xiii. The First Applicant visited Turkey on one occasion after the series of events which followed his arrest to ascertain if it would be safe to emigrate there with his family.
The Basij raids
xiv. The Basij raided the Applicants’ home on two occasions. The First Respondent considered both raids to relate to the confiscation of the Applicants’ satellite dish. The Applicants’ satellite dish was confiscated in the first raid.
xv. The Basij returned for a second raid, notwithstanding the fact the satellite dish had already been confiscated.
The medical evidence
xvi. The Queensland X-Ray report of 10 June 2015 states “Long standing back pain for more than 5 years, alleged assault in Iran prior to coming to Australia”.
xvii. The limited access to medical treatment and healthcare in Iran, and the general culture of proceeding in life without seeking such treatment unless the subject injuries are life threatening.
It is clear from the Authority’s decision that it did take into account a great many number of matters relied upon by the applicants under this ground. As the first respondent’s submissions point out, the Authority took into account and considered the following matters:
Release from detention and father’s trade licence retained at [13] and [18];
Political opinion of the first applicant at [10], [16], [21], [26], [32] and [33];
The circumstances of the traffic accident at [8], [17], [23], [34];
The first applicant’s visit to Turkey at [16] and [26];
The Basij raids at [8] and [16];
The medical evidence at [8], [14], [22] and [33].
(footnotes omitted)
I accept the first respondent’s submission that upon considering those references in the Authority’s decision and the grounds of the applicant’s amended application it is apparent that the applicant’s focus is on the factual findings of the Authority and not on whether the Authority had taken into account mandatory relevant considerations. I accept the first respondent’s submission that the applicant’s approach invites the Court to undertaken a review of the merits of the Authority’s decision rather than to examine that decision for the existence of jurisdictional error.
Particular mention needs to be made of a couple of matters. The applicant is critical of the Authority for suggesting that the applicant had “obtained” a passport in September, 2010. The first applicant argues that he already held a passport although it was necessary to have it renewed in about September, 2010. The applicants’ submissions draws a distinction between “obtaining” a passport in the sense of not holding a passport and procuring a new one on the one hand, and “renewing” a passport in the sense of holding an expired passport and obtaining a new passport to replace the expired passport. However, in my view there is nothing in the distinction that the applicants’ seek to draw. To analyse the Authority’s reasons for decision in such detail is, on the authorities, inappropriate.
There was nothing in the evidence to which I was taken that suggested that there was any material difference between “renewing” a passport and “obtaining” a passport. Moreover, given the first applicant’s case that the Basij and other such paramilitary groups were omnipresent in Iran, it is little moment that the Authority “failed to have regard to the fact that the renewal of passports is a civil matter and is not within the scope of the Basij or other such paramilitary groups” if indeed that is in fact the case.
The applicants complain that the Authority failed to put to the first applicant the conclusions that were to be drawn from his travel to and from Turkey and in respect of his ability to obtain a passport. However, given Part 7AA of the Act and the fact that the Authority’s review was being conducted according to the exhaustive statement of the rules of natural justice set out in s.473EA of the Act, there is nothing in this complaint.
Further, the applicants complain that the Authority failed to consider “the timing and content of the medical evidence” in relation to an injury to his back “in the context of the history provided by the first applicant, such that its conclusion in respect of the first applicant’s back injury was unreasonable”.
As to his back injury, the first applicant claimed that while participating in a festival in December, 2009 he was arrested, detained for around three months and beaten while held in detention. He claimed that as a result of his mistreatment he sustained permanent injuries to his back and his left leg. The first applicant concedes that there was no objective evidence before the Authority to establish that his back had been injured whilst he was in detention in Iran.
However, the first applicant had evidence that he had obtained since arriving in Australia. The Authority considered the evidence that the first applicant put before the first respondent’s delegate and the Authority about that injury. That included an x-ray from Queensland X-ray which indicated a “likely unfused fracture of the transverse process of L3 on the right side”. The applicant’s own evidence was that he did not seek medical treatment for a back injury in Iran and it was not until he was examined in Australia that he realised his back had been injured. That is notwithstanding that he had complained about ongoing back pain.
The Authority found “that the available evidence gives no indication that this was sustained as a result of mistreatment while in detention in Iran”. Notwithstanding that finding, however, later in its reasons (at [22]) the Authority said:
While it cannot entirely be discounted that the injury was suffered in detention, as I have found that he does not have dissident or active profile and is not of interest to the Basij there is not a real chance he would face similar harm on return to Iran.
The Authority noted that the first applicant had provided evidence of a back injury but also noted that it was his speculation that the injury had resulted from his time in detention rather than from his working life in the boiler maker/welder trade from 1994 onwards which involved heavy, physically demanding work.
In my view, there is nothing in the first applicant’s submission that the Authority failed to consider the timing and content of the medical evidence relating to his back injury. The first applicant’s submissions concerning this aspect of the matter cavil with the merits of the Authority’s decision only.
The applicants further argue that whilst the Authority acknowledged the first applicant’s claims that following his release from detention following his arrest at the Ashura Festival he complained vocally to his friends and neighbours that his unjust treatment by the authorities, it did not accept those claims as plausible and therefore found that he did engage in the claimed conduct. The applicants argue that the Authority did not provide any reason for its findings that the first applicant’s assertions were implausible.
However, paragraph [15] of the Authority’s reasons reveal the Authority’s approach. The Authority concluded that it was implausible that the applicant would complain vocally to his friends and neighbours about his unjust treatment by the authorities if he feared the Basij as he claimed to do. The Authority thought that it was likely that he would not risk further attention by complaining vocally to friends and neighbours about his unjust treatment from the authorities. On that basis, the Authority determined that he did not complain to his friends and neighbours about his unjust treatment. The Authority’s reasons are patent.
Finally, the applicants claim that the Authority did not consider the fact that the applicants originate from an ethnic Arab majority province, which has been a particular focus by the Basij during the ongoing tension between the Arab and Iranian population. However, whilst it is correct to say that the Authority did not consider that matter, it was not a claim that was advanced by the applicants at all either before the first respondent’s delegate or the Authority and so the Authority was under no obligation to consider it.
Ground three – alleged denial of natural justice
As I have indicated above, the provisions of Part 7AA and the review by the Authority are quite different to the provisions contained in Part 7 of the Act and pursuant to which the review of protection (Class XA) visa claims are undertaken. Section 473DA provides an exhaustive statement of the requirements of the natural justice hearing rule in relation to the review conducted by the Authority. Interviewing the visa applicant is not required and the consideration of new information is only undertaken in exceptional circumstances. The Authority is not obliged to give to the applicant any material that was before the Minister. As the first respondent points out, there is no duty on the Authority to invite a person to appear before it or give information to the Authority in support of the visa application.
Whilst the Authority has the legislative mandate to accept new information in exceptional circumstances, the Authority is not obliged to receive the information. Contrary to the submissions of the applicants, the Authority is not obliged to put to the first applicant any concerns that it had about his credit: DCG16 v Minister for Immigration and Border Protection [2017] FCCA 285 at [34]-[36] where Judge Driver concluded:
34. Ground 2 asserts that an interview is required when an applicant’s credibility is an issue. Such allegation is misconceived and, as outlined above, misunderstands the statutory framework within which the Authority is to conduct its reviews.
35. It is clear from the legislation inserting Part 7AA into the Migration Act that Parliament did not intend that an applicant would generally be entitled to attend an interview before the Authority, even where the Authority rejects the credibility of the applicant’s claim. This intention is derived from the general position set out in s.473DB(1) of the Migration Act that reviews are to be conducted on the papers without interviewing the applicant, and from the following aspects of ss.473DC and 473DD of the Migration Act:
a. although ss.473DC(1) and (3) allow the Authority to obtain new information, including by way of oral interview, s.473DC(2) provides that there is no duty to do so;
b. section 473DD restricts the circumstances in which the Authority is entitled to consider new information to those where the Authority is satisfied that there are exceptional circumstances to justify considering the new information, and where the applicant satisfies the Authority that any new information given by the applicant was not, and could not have been, provided to the Minister before the Minister made the s.65 decision, or where the new information is credible personal information which was not previously known and may have affected the consideration of the claims if it was known.
36. There is nothing otherwise in Part 7AA of the Migration Act to suggest that an applicant must be invited to an oral interview by the Authority.
Moreover, the principles set out in SZBEL v Minister for Immigration (2006) 228 CLR 152 do not apply: AMA16 v Minister for Immigration and Border Protection [2017] FCCA 303 at [21]; DBE16 v Minister for Immigration and Border Protection [2017] FCCA 487 at [65] – [67].
No jurisdictional error is identified by this ground.
Ground four – decision manifestly unreasonable
In my view, the applicants do not demonstrate that the Authority’s decision is unreasonable in the sense in which they need to demonstrate unreasonableness to succeed on the present application. Whilst the Authority may have reached a different conclusion to that which it did reach, that different conclusions were open on the material before the Authority does not establish unreasonableness. In the present case, the applicants claim that the Authority’s decision was unreasonable is nothing more than “an emphatic way of disagreeing with it”.
Conclusion
In my view the applicants do not establish the Authority’s decision is afflicted with jurisdictional error. The amended application filed on 30 January, 2017 must be dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 June, 2017.
Date: 8 June 2017
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