DGZ16 v Minister for Immigration & Anor - [2017] FCCA 623

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGZ16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 623

Catchwords:
MIGRATION – Immigration Assessment Authority – Protection (Class XA) visa – whether the Authority’s practice direction was in the nature of delegated legislation – the practice direction expressly recognised that longer submissions may in fact be received – the Authority’s practice direction is not ultra vires – the practice direction is not expressed in terms that preclude consideration of any longer document – the practice direction is not arbitrary, unjust, unfair or legally unreasonable – the applicant’s credit was a live issue before the delegate – the Authority complied with the obligations of procedural fairness – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5A, 5H, 36, 65, 473CB, 473CC, 473DA, 473DC, 473DD, 473DE, 473DF, 476, Part 7 and Part 7AA

Judiciary Act 1903 (Cth), s.78B

Cases cited:

Minister of Immigration and Citizenship v Li & Anor (2013) 449 CLR 332

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

SZHKA v Minister for Immigration and Citizenship & Anor (2008) 172 FCR 1

Applicant:

DGZ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3024 of 2016

Judgment of:

Judge Street

Hearing date:

30 March 2017

Date of Last Submission:

30 March 2017

Delivered at:

Sydney

Delivered on:

30 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

D'Ambra Murphy Lawyers

Solicitors for the Respondents:

Ms K Hooper
HWL Ebsworth Lawyers

ORDERS

Grant leave to the Applicant to file in Court the further amended application and to rely upon the same.
Grant leave to the Applicant to file in Court the affidavit of Kerry Murphy dated 30 March 2017.
The further amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3024 of 2016

DGZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under part 7AA of the Act on 29 September 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant arrived in Australia as an unauthorised migration arrival on 16 September 2012. The applicant is a Shia Muslim who was found to be a citizen of Iraq and his claims were assessed against that country. The applicant claimed to fear harm by reason of being an alleged “Counter Terrorism Service” (“CTS”), secret informant.

The Delegate

The delegate identified the applicant's background and his claims of problems began in approximately 2010 when he joined the anti-terrorism squad as a secret informant. The applicant alleged that he noticed people in his local area buying and selling weapons and that these people were gangsters tied to larger militias such as the Asa’ib Ahl, al-Ha (AAH), or Jund al Samaa.
The applicant alleged that he had a friend who was a captain in the anti-terrorism squad. It was alleged that the captain introduced the applicant to the Anti-Terrorism Squad and the applicant used to give them information that he gathered.
The applicant alleged that there was a secret code created for him and the information that he collected was kept in a file in the captain's office and also by a judge in a particular court. The applicant alleged that the information allowed the judge to issue arrest warrants for those involved in the weapons trading.
The applicant alleged that he was provided guidance on what information he should provide. The applicant alleged that he disclosed information including the names of people trading weapons, number of weapons carried, type of weapons and boxes containing bullets used for machine guns.
The applicant also alleged he monitored people from other areas. The applicant alleged that during the two year period that he did this, he was directly responsible for the arrest of four weapons trading networks. The applicant alleged the weapons trading networks were associated with Jund al Sumaa and they used a particular location because it was a safe area for the militias to covertly store weapons.
The applicant alleged that, because he was a secret informant, he was held directly responsible by militias for imprisonment of their members. The applicant alleged that, in October 2010, he was stopped by three masked men in a market and was stabbed three times. The applicant alleged he began receiving threatening messages by phone at his home and said that he was not concerned because he did not believe he was doing anything wrong and that the government would protect him.
On 11 January 2011, the applicant claimed his home was gutted by fire and that the applicant believed the home was burnt by men who were associated with the weapons trading networks. The applicant gave evidence that they fixed the house and continued to live in it.
On 13 September 2011, the applicant's brother was allegedly kidnapped and held until 20 September 2011. The applicant alleged they sold the home to pay for the ransom and that the family then rented a house in the same street.
The applicant's brother was returned and alleged that he had been questioned about the applicant's relationship with the particular captain. The applicant alleged that, after release of his brother, his father received messages on his phone at the shop, at home and on his mobile phone stating that the family were traitors and that the applicant's father, brother and the applicant did not deserve to live. The applicant alleged that his father was worried about the threats and asked the applicant to stay away from the home hoping that the problem would go away.
The applicant alleged that he tried to convince his father to leave the particular area and that they should sell the shop. However, the applicant's father had too many acquaintances to leave. The applicant observed that his father encouraged him to leave, motivating the applicant to move to another area in the beginning of October 2011. The applicant alleged that in the beginning of 2012, the applicant informed the captain that he no longer worked for them. The applicant alleged that he employed others to run his supermarket shop. The applicant alleged in April or May 2012, he sold the supermarket shop and left Iraq on 18 July 2012. The applicant alleged that he had called the captain asking him to help him but had been told that they did not know who the people were threatening the applicant and his family.
The applicant alleged that after his departure from Iraq, the family continued to receive threats and that the applicant's father was killed in January 2013 and his brother was killed on 20 June 2013. The applicant suspects that the people within the anti-terrorism squad informed the weapons trading network that the applicant was responsible for their arrest.

Consideration of the applicant’s claims for protection

The delegate found that he was not satisfied the applicant's core claims of being an informant to the CTS were plausible. The delegate observed that the applicant claims he had a shop at a particular market from 2007 until he sold the shop in April 2012. The delegate found that the applicant's main source of income was derived from the retail shop which he sold prior to his departure.
The delegate asked the applicant questions about the CTS. In relation to the questions about the CTS, the applicant stated he knew some of the officers working there but that he did not have any information regarding the service in general. The applicant alleged that the particular office had a police officer as security at its front door, that there was a management office and that there was a payroll office. The delegate asked the applicant where the office was located and how many employees were located there and the applicant alleged there were a lot of employees, that they did not work full time and that they just worked a few days and then they were replaced. The applicant was asked when this Counter Terrorism Service began to operate in a particular place and the applicant responded, "Probably in 2004.”
The delegate referred to certain country information and found that the counter terrorism office did not have any regional battalion located in the particular area until spring 2013. The delegate referred to raising that information with the applicant and raised with the applicant, that on the basis of that information, the delegate may find the applicant was not an informant of the CTS, nor that he was targeted for that reason.
The delegate referred to letters provided by the applicant which the applicant alleged were leaked to him personally and placed no weight on those letters. The delegate referred to the submitted letters purportedly on the letterhead of the Ministry which the delegate observed was contradictory of the other evidence and indicated a lack of understanding of the function and structure of the CTS to which the applicant claims he had been an informant. The delegate found that the submission of documents purportedly from the Ministry of Interior significantly undermined the credibility of the applicant to have been an informant to the Counter Terrorism Service.
The delegate referred to the proposition that there was no counter terrorism office at the particular period claimed by the applicant and found the applicant was not an informant about counter terrorism matters to the CTS. The delegate did not accept that the applicant was targeted because of any claimed involved as an informant.
The delegate found the fact that there was no CTS office in the particular area significantly undermined the credibility of the applicant's claims to have been a CTS informant. The delegate indicated that weight had also been placed first on the applicant's unclear testimony regarding what the applicant saw in his local area which made him decide to report weapons trading to the captain and secondly on the implausibility of the applicant having put both himself and his family at risk by becoming and then continuing to be an informant.
The delegate referred to the applicant producing a photograph of a child bleeding and missing leg and stated that since this explosion happened, he decided to work against these people to protect the people he knew.
The delegate raised that the applicant had not responded to the question asked and put to the applicant that in his statement, he indicated that he saw people buying and selling weapons and that the delegate sought to know what the applicant saw happening. The delegate raised with the applicant that he had only given general information about groups and an explosion.
The delegate raised with the applicant that it may be considered unusual that he would witness the sale of such weapons and further noted to him that in his application, he stated that the groups used the area to covertly store weapons, meaning that it would be private.
The delegate referred to the applicant stating that, first of all, he witnessed people at a house that did not have a private garage and so he saw the weapons being carried out. The delegate asked the applicant where he was when he saw this and the applicant's response was that because he did not close the shop until late at night, he saw the cars go past and the people do what they did. The delegate then pressed the applicant again about how he was in a position to see these matters and the applicant stated that he would stay at the shop late at night to see what weapons they were carrying. The applicant stated that when he started to work as a secret agent, he had his own ways to get information. For example, he worked as a cleaner and stated they had information that people at a particular mosque were taking money to make more trouble.
The delegate again questioned the applicant about where he was standing or situated so as to be able to see the weapons being sold. The delegate found the applicant's testimony regarding the witnessing of the sale of arms in his area to be unconvincing. The delegate came to that conclusion because on numerous occasions, the applicant put forward peripheral information about weapons trading, how he is not forthright in providing detailed information about what he personally saw and how this came about that he was not speaking from personal experience.
The delegate did not find it plausible that the applicant would confront a person from the house where weapons were being stored in the manner described by the applicant at his interview because firstly, it would have been likely the applicant would have been immediately killed if he did such a thing and secondly, knowing this, he would not take the risk in confronting the person.
The delegate also raised with the applicant why he would risk his life by becoming an informant. The delegate asked the applicant about why, noting his commitment to social justice, he would continue to risk his own life and the safety of his family, in particular, after his house was burnt out.
The applicant acknowledged that after his brother was kidnapped in September 2011 he considered stopping being an informant. The delegate was not satisfied that the risk which the applicant claims to have himself and his family is plausible. The delegate did not accept that a reasonable person would continue to be an informant for altruistic reasons after being personally attacked and having his home burnt out.
The delegate identified other inconsistencies in the applicant's claims. The delegate found that the applicant's house was sold but not for the reasons claimed. The delegate raised with the applicant the assertion he was given money by the government but not a monthly salary. The delegate raised with the applicant that the difference in amounts that the applicant had asserted and the amount he identified in his visa application.
The delegate raised with the applicant the difference in the number of people that he asserted were involved in a particular incident in the past. The delegate was not willing to extend the benefit of doubt to the applicant in accepting that he was attacked in 2010, given the overall credibility issues and internal inconsistencies with that claim. The delegate explored with the applicant why nothing had happened to the applicant from September 2011 until his departure. The delegate referred to the death certificates produced and found that as a result of the credibility issues, the delegate did not give the documents weight in corroborating the applicant's claims.
The delegate was not satisfied the applicant was targeted for the reasons claimed, nor has he put forward any other reasons as to why he or his family members would be targeted. Given the credibility issues surrounding the applicant's claim to have been a secret agent for the CTS, the delegate was not prepared to give the applicant the benefit of doubt in accepting that he was targeted for this or any other reason claimed prior to his departure from Iraq.
The delegate did not accept that the applicant was attacked in a marketplace and did not accept that his house was burnt out and did not accept the applicant's family members were targeted for any reasons claimed.

Assessment of refugee criterion

The delegate referred to the applicant's fear of Shia militia and found that the applicant's claims in relation to being a secret informant to the Counter Terrorism Service were not credible and was not satisfied the applicant has a well-founded fear of persecution from Shia militias. The delegate did not accept that the applicant faces a real chance of persecution due to his religion as a Shia Muslim. The delegate found that the applicant did not have a well-founded fear of persecution on return to his home area and found that his home area could be safely accessed from the international airport.
The delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act and was not satisfied that the criterion under s.36(2)(a) of the Act was met.

Assessment of complementary protection criterion

The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Iraq, there is a real risk the applicant would suffer significant as defined in s.36(2A) of the Act.
The delegate found the applicant was not a person in respect of whom Australia had protection obligations defined under s.36(2)(aa) of the Act and refused to grant the applicant a protection visa.

The Authority

On 23 August 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified that the Authority had been provided with all documents that the department considered relevant to the applicant's case.
The letter indicated that this includes the information that the applicant provided to the Departmental office before the refusal of the protection visa. The letter indicated that the Authority would proceed to make a decision on the applicant's case on the basis of the information sent to it by the Department unless the Authority decided to consider new information. The letter explained that there were limitations in relation to the consideration of new information and provided an attached fact sheet as well as a practice direction with an opportunity to present submissions.

The practice direction provided by the Authority

Relevantly in the present case, the practice direction was signed by Duncan Kerr J as President on 21 April 2016 and the document on its face, is a practice direction made under s.473FB of the Act.
The practice direction relevantly included information about submissions and new information. For the purpose of the present case, the direction included the following:-
Submissions and new information
20. For the purposes of the review, you may provide a written submission on the following:
• why you disagree with the decision of the Department
• any claim or matter that you presented to the Department that was overlooked.
21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.
22. We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.
23. If you want to give us new information, you must also provide an explanation as to why:
• the information could not have been given to the Department before the decision was made, or
• the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.
24. Your explanation should be no longer than 5 pages and must accompany any new information you give to us.
25. All documents that are not in English should be translated into English by a translator with a 'Translator' level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.
26. Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.
27. We may separately invite you to provide new information or to comment on new information that may be adverse to your case.
• If we invite you to provide new information, you must provide that information within the period specified in the invitation.
• If we invite you to make comments on new information, you must provide those comments within the period specified in the invitation.
28. Reviews will generally be completed within six weeks of referral from the Department.

The direction then included other information about providing documents to the department and information in relation to interviews.

Information before the Authority

On 23 September 2016, the applicant's migration agent provided further information including new information. The applicant's submissions comprised five pages of submissions. Reference was made to emails exchanged between the author of one of the articles referred to by the delegate.
The submission was put that the conclusion by the delegate that the article supported that there was no regional commando battalions or offices in the particular location and any adverse credibility findings made by the delegate were unfounded due to a misreading of the report. Reference was made to the particular paragraph in the article by the author relied on by the delegate. It was submitted that the author never said there was no office there nor that there was no presence of the CTS at all, just that the commando battalion was based in major centres. The submission was put that the delegate had erred in interpreting the report.
Enclosed with the submissions was a chain of email communication between the solicitor for the applicant and the author of the report. In one of those emails, the author identified that the CTS operated all over Iraq except in semi-independent Kurdish areas and in particular, even though there was not a designated CTS unit stationed at the particular area in question, the CTS still conducted operations there. The author sought to opine as to the veracity of the applicant's claims in relation to the CTS. Submissions were put in support of the claims made by the applicant, including the receipt of information locally and acting expeditiously on reports.
The submissions referred to another adverse finding made by the delegate in relation to the “implausible risk”. The submission contended that the security services rely on informers and that informers may be at personal risk. It was submitted that whilst the risk may deter some people, the applicant explained his motivation and referred to the photo of the wounded child referred to by the applicant. The submissions observed that the applicant only stopped being an informant after the kidnapping of his brother and that this was the trigger to make him reassess the risk he faced. It was submitted that if the delegate's logic were correct, there would be no brave informers and law enforcement agencies would be much less informed. Submissions were also put in relation to the difference of the sale price of the property.
Reference was then put to the three main elements of the applicant's claims and in particular, the “imputed political opinion” because the applicant was an informer to the government against those opposed to the government. The submission then addressed the information in the emails from the author of the article submitting that that information fell within the exceptional circumstances under s.473DD of the Act.
The submissions advanced that the applicant alternatively met the requirements of complementary protection. Reference was again made in the submissions to the graphic photograph in support of the applicant's motivation to become a supporter. The submissions maintained that the applicant had established that he was an informer, that his brother was kidnapped because of his activities as an informer, that his house was burnt down because he was an informer, that his brother and father were killed because he was an informer, that there was a presence of the security forces in the particular location for what is now called the CTS and that the applicant's motivation to be an informer was sparked by seeing a particular bomb attack and that the motive was rational and reasonable.
The letter attached the emails and concluded that, if there was a need to discuss the matter to contact the solicitor. No request was made in the letter to adduce submissions in excess of the five pages referred to in the directions. No request was made in the letter for the Authority to exercise its powers under s.473DC(3) of the Act.

The Authority’s reasons

The Authority, in its reasons, identified the applicant's background. The Authority identified that it had regard to the information referred under s.473CB of the Act. The Authority referred to the submission advanced, dated 23 September 2016 and found that there were exceptional circumstances to justify receiving the new information in that submission.

Assessment of refugee criterion

The Authority identified the applicant's claims for protection and the relevant law. The Authority referred to the applicant's claims concerning being an informant and that his problems began in 2010 when he joined an anti-terrorism squad, CTS, as a secret informant. The Authority accepted the submission but the country information did not necessarily mean there was no presence of the CTS or anti-terrorism office in the particular location until 2013. The Authority referred to accepting country information supporting the regional centres being created since 2007 and accepted that the CTS had operated throughout Iraq including the particular area since 2007.
The Authority referred to the delegate's observations regarding the applicant's responses at the interview as to how he witnessed weapons trading before joining the CTS. The Authority referred to the applicant being asked four times as to what he specifically saw that happened before he decided to inform the CTS captain. The Authority referred to the applicant also being asked about five times as to where he was physically in order to see weapons trading. The Authority referred to the applicant's evidence concerning an explosion and the killing that happened in his area for no reason. The Authority referred to the applicant keeping the photo of the child since the explosion and that he decided to work against these people to protect others and himself and that he saw different kinds of weapons.
The Authority observed that the applicant's responses which included a description of the location of his shop and where he lived were in contrast to other evidence the applicant had provided which was direct and detailed in response. The Authority referred to having listened to the audio recording of the interview.
The Authority was prepared to accept that the applicant had witnessed people selling weapons at a house which was close to his place twice as claimed and that his friend, who lived opposite to where weapons were traded, also witnessed weapons trading.
The Authority was not satisfied on the evidence that the applicant was motivated to be an informer because he witnessed an explosion which resulted in the child in the photo losing his leg.
The Authority referred to the applicant stating that after his brother was kidnapped, he started to think about ceasing to provide information to the CTS as he did not want to subject his family to danger because the people who he was fighting against were criminals without human feelings. The Authority observed that this suggested the applicant would not be willing to subject his family to dangers despite his claimed commitment to social justice and incidents of weapons trading activities that he or his friends had witnessed in the past.
The Authority observed that this was at odds with the applicant's claims that he continued to work for the CTS after the stabbing incident and the house fire. The Authority also referred to the applicant's statement in which he claimed he began to receive threats at his home by phone following the stabbing incident in October 2010. The Authority was not convinced that the applicant had been truthful in regards to his claimed commitment to social justice or his reasons for joining the CTS.
The Authority expressed its concerns in relation to the applicant's evidence regarding his motivation to join the CTS and his personal values and commitments to social justice. The Authority was not satisfied on the evidence that the applicant was motivated to join the CTS for the reasons claimed or that he was so committed to social justice to the extent that he would be willing to risk his or his family's lives by working for the anti-terrorism service as a secret informant.
The Authority made reference to the applicant claiming, and the Authority accepted, that the applicant owned a supermarket at a particular location. The Authority also accepted that the applicant knew the CTS captain. The Authority was not satisfied on the evidence that the applicant's basic knowledge of the CTS establishes that he worked for the CTS as an informant as claimed. The Authority made reference to documents that were provided and found they do not support the claim that the applicant worked as a secret informant for the CTS during the claimed period. The Authority was not satisfied that the applicant provided information regarding weapons trading to the CTS captain or the CTS as claimed.
The Authority did not accept the applicant was involved or joined the Anti-Terrorism Squad, the CTS or any other organisation as a secret informant. The Authority do not accept that a secret code was created for him or that his information was kept in the CTS captain's office or by a judge in the particular area court. The Authority do not regard the applicant as having been truthful as to the circumstances in which he injured his arms and fingers or the claimed attack. The Authority was not satisfied that those injuries resulted from the attack in 2010 as claimed, that the applicant was attacked or stabbed in October 2010 for the reason claimed or that his injury has resulted from his actual imputed connection or association with a CTS captain or the CTS.

Consideration of the 2010 threats/2011 house fire

The Authority referred to the fact that the applicant claimed to have received threatening messages since October 2010 and that his family home was burnt down in 2011. The Authority expressed the view that, if the applicant started receiving threats in October 2010 and his family home was burnt down by men who associated with selling weapons, it is unlikely that they would decide to fix the house and continue to live in it rather than moving to another area to avoid being targeted. The Authority also noted that the document issued by the fire brigade stated that the cause of the fire was not determined and was reported as an unknown cause.
The Authority observed that, while prepared to accept that the applicant's home was burnt down in 2011, the Authority was not satisfied on the evidence that the applicant began receiving threatening messages in 2010, or that his home was burnt by men associated with groups that engaged in weapon trading or that it was burnt for reasons relating to the applicant's actual or perceived association or involvement with the CTS captain or the CTS.

Consideration of the 2011 kidnapping incident

The Authority accepted, on the basis of consistency and the country information, that his brother was kidnapped and released after the payment of a ransom.
The Authority referred to the alleged threats made to the applicant's brother. The Authority observed that, if the applicant's brother was kidnapped for any reasons relating to the applicant's actual or perceived association with the CTS captain or involvement with the CTS, the kidnappers would have taken the opportunity to target, kidnap or otherwise harm the applicant when they met up to pay the ransom. The Authority observed it was doubtful that the kidnappers would release the applicant's brother upon payment of the ransom and did not seek to harm the applicant prior to releasing the brother.
The Authority found it implausible that the applicant and his family would agree to meet up with the kidnappers to pay the ransom when according to the applicant, they believed the kidnapping was for reasons relating to the applicant's involvement with the CTS. The Authority was of the view that the applicant's brother was kidnapped for monetary gain or was kidnapped for a variety of other reasons. The Authority considered it entirely speculative to make a finding as to who kidnapped the applicant's brother or the reason for the kidnapping.
The Authority did not accept that the kidnappers perceived or suspected that the applicant was involved with the CTS, the CTS captain or any informant-related activities, or that the applicant's brother was kidnapped for any reason relating to the applicant's actual imputed association with the CTS captain or the CTS or any anti-terrorism movements. The Authority did not accept that the applicant's brother was questioned about the applicant's relationship with the CTS captain or that his brother responded that they were simply friends. The Authority accepted that the applicant moved to his uncle's place in September 2011 but did not accept that the applicant moved there due to claimed threats or incidents to avoid harm.
The Authority did not accept that the applicant or his family received any threats from anyone after his brother was released. The Authority did not accept that the father asked him to leave the particular area, sell his shop or move to another location because his family received threats, or that the applicant moved to another area to avoid harm.

Consideration of incidents following the applicant’s departure

In relation to the death of the applicant's father and brother, the Authority found the applicant had not been truthful in relation to their claims. The Authority did not accept that the applicant's father or brother were killed or targeted by prisoners who escaped from the Abu Ghraib prison.
The Authority described the applicant's evidence surrounding his father's and brother's deaths as problematic evidence and the Authority was not willing to accept the applicant's evidence. The Authority found it was speculative to attribute their deaths to anyone or any reason. The Authority was not satisfied on the evidence that the applicant's father or brother's death was related to the applicant's actual or perceived involvement, work or association with the CTS, the CTS captain or anyone relating to weapons traders or weapons trading networks.
The Authority found it was not be credible that the applicant's father would continue to reside in the area until his death for a period of six months following the applicant's departure because he could not leave his work friends or relatives, if in fact he received continuous threats as claimed.
The Authority referred to members of the applicant's family living in a particular area. The Authority observed that there was no evidence that those family members had been harmed since the death of the applicant's brother in June 2013. The Authority referred to the applicant's allegation of the family continuing to receive threats since he left Iraq and found the fact that his sister and younger brother remained unharmed and living in Iraq for a period of over three years since June 2013 until now undermined the claim that the applicant's family received threats since he left Iraq. The Authority also found that these circumstances support that the applicant is not currently of interest to anyone. The Authority did not accept that the applicant's family received threats following the applicant's departure from Iraq or that anyone had approached or questioned them about the applicant.
The Authority was not satisfied the applicant and his family are or were of adverse interest to anyone. The Authority did not accept that the applicant joined or involved with or provided information relating to weapons trading to CTS, the CTS captain or any anti-terrorism movements.
The Authority did not accept the applicant's claims relating to perceived or actual connection, involvement, views or association with the CTS captain, CTS or any counter-terrorism movements or provision of information to anyone relating to weapons trading.
The Authority did not accept that the applicant or his family received threats from weapons trading groups or anyone, or that his family was approached or questioned about the applicant following his departure from Iraq. The Authority found the applicant was not and is not of adverse interest to anyone for reasons relating to actual or perceived connection or involvement with anti-terrorism movements, the CTS or the CTS captain or for any other reasons.
The Authority did not accept the claim that the militias or anyone would perceive the applicant as being responsible for informing on their members resulting in their arrests and imprisonment. The Authority was not satisfied the applicant faces any real chance of harm from anyone because he knew someone who works as a CTS captain now or in the reasonably foreseeable future.
The Authority was not satisfied that the applicant had a well-founded fear or persecution for reasons relating to his actual or perceived association, connection, views or involvement with any anti-terrorism organisations, the CTS or the CTS captain or anyone.
The Authority found that the applicant does not have a well-founded fear or persecution for any reason now or in the reasonably foreseeable future The Authority found that the applicant did not meet the requirements of the definition of "refugee" in s.5H(1) of the Act. The Authority found the applicant did not meet the criterion under s.36(2)(a) of the Act.

Consideration of complementary protection criterion

The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iraq, there is a real risk that the applicant will suffer significant harm.
The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Before this Court

At the commencement of the hearing, leave was granted to the applicant to file in Court a further amended application which identifies the following grounds:-
1. The second respondent (the IAA) required the applicant's compliance with a Practice Direction, issued on 21 April 2016 which required submissions to be limited to five (5) pages and that limitation was unlawful.
Particulars
(b) Requiring a page limitation of five pages was ultra vires s. 473FB of the Migration Act because it was inconsistent with a right of the applicant, pursuant to s. 473DC(1) read with s. 473DD, to submit documents or new information.
(c) Alternatively to Particular 1(a), limiting submissions to five pages is an unreasonable exercise of the power to issue practice directions.
2. The IAA failed to conduct a review as required by s. 473CC(1) of the Migration Act.
Particulars
(a) The purpose of a “review” pursuant to s. 473CC(1) was to come to the best correct or preferable decision on the applicant’s claims within the procedures required, permitted and limited by Part 7AA of the Migration Act. Those procedures included;
(i) The discretion for the IAA to get information from any person, including an applicant pursuant to s. 473DC,
(ii) The ability of an applicant to give “new information” as defined, to the IAA (ss. 473DC and 473DD)
(iii) That nothing in s. 473DC or elsewhere in Part 7AA of the Migration Act precluding the IAA from informing the applicant of issues arising on the review.
(b) In the current case the IAA found that the applicant had not been an informant to the Iraqi security services for reasons entirely different to those of the Minister’s delegate.
(c) The applicant was not informed of the issues which arose on the review.
(d) It was necessary in the conduct of the IAA’s review, in the context of the governing statute and the facts of this case for the IAA to give the applicant notice of any new issues arising on the review and give him a realistic opportunity to respond. The IAA’s failure to disclose those issues and afford the applicant a reasonable opportunity to respond constituted a failure to lawfully conduct its review.
3. The IAA conducted the review in a manner that was legally unreasonable.
Particulars
(a) In that the IAA decided that the applicant did not come within s. 5H(1)(a) of the Migration Act for reasons that were not disclosed to him and of which he could not have been aware, its failure to;
(i) Utilise its power under s. 473DC(3) of the Migration Act to invite the applicant to an interview, or invite a written response to the issues that it saw as being relevant to the review, or, alternatively,
(ii) Consider utilising its power under s. 473DC to invite the applicant to an interview, or invite a written response to the issues that it saw as being relevant to the review.
was legally unreasonable.
4. The IAA breached the requirements of natural justice in a manner not curtailed by s. 473DA of the Migration Act.
Particulars
(a) In that the IAA decided that the applicant did not come within s. 5H(1)(a) of the Migration Act for reasons that were not disclosed to him and of which he could not have been aware, its failure to;
(i) Utilise its power under s. 473DC(3) of the Migration Act to invite the applicant to an interview, or invite a written response to the issues that it saw as being relevant to the review, or, alternatively,
(ii) Consider utilising its power under s. 473DC(3) to invite the applicant to an interview, or invite a written response to the issues that it saw as being relevant to the review.
resulted in a breach of the requirements of natural justice or procedural fairness that was not curtailed by s. 473DA of the Migration Act.
5. The IAA decision was affected by legal unreasonableness.
Particulars
(a) The following findings were arbitrary or unreasonable.
(i) The finding at CB 641 [23] that the applicant would not be willing to subject his family to the danger of being an informant at all when his evidence was that he began to think about ceasing to provide information to the authorities about arms trading after his brother was kidnapped, and after his family home was burned down.
(ii) The finding at CB 644 [36] that the applicant and his family would not have continued to repair and continue to live in the family home after it was burned down if the arsonists were connected with illegal weapons traders.
(iii) The finding at CB 645 [42] that had those who had kidnapped the applicant’s brother done so because of his actual or perceived association with the authorities, they would have taken the opportunity to harm him when he met them to pay the ransom.

Constitutional issue under s.78B of the Judiciary Act 1903

Prior to the hearing, it was alleged that there was a constitutional issue that required the issue of a notice under s.78B of the Judiciary Act 1903 (Cth). The notice referred to the terms of s.473DC and s.473DA of the Act. Submissions made reference to the prospect that a constitutional issue would arise should the first respondent seek to construe s.473DC of the Act as creating an unfettered discretion. That is one which is not constrained by a reasonableness or a natural justice on the part of the Authority as to whether or not to utilise its discretion pursuant to s.473DC(3) of the Act.
The applicant contended that an unfettered discretion, being one that is not constrained, at least, by legal reasonableness would be contrary to the principles of the rule of law enshrined in the Constitution because it would mean that the discretion in s.473DC(3) of the Act was not subject to judicial review by Chapter 3 Courts.
I am far from satisfied that it was a real issue involving a matter under the Constitution involving its interpretation falling within s.78B Judiciary Act 1903 (Cth) in the present case and in my view, the notice was doing nothing more than foreshadowing an argument and seeking judicial advice. Be that as it may, evidence has been adduced as to compliance of the obligations under s.78B of the Judiciary Act 1903 (Cth).

Consideration

Ground 1

In relation to ground 1, Mr Karp of counsel sought to argue that the direction in the present case was in the nature of delegated legislation. I reject that submission. On the face of the direction, it was an administrative act and on the face of the direction, it purports to be made under s.473FB of the Act.
The submission advanced by Mr Karp of counsel was specifically focused on paragraph 21 of the direction and the limitation in relation to submissions to five pages. Mr Karp read an affidavit from a solicitor who submitted that but for the direction, he would have elaborated beyond the length of the five pages in the submissions provided to the Authority.
Mr Karp sought to argue that the direction was invalid on the basis that it was inconsistent with the obligations imposed under s.473DC(1), read with s.473DD of the Act. The submission was advanced that the term “new information” in s.473DC(1) of the Act does not include documents. Section 473DC(1) of the Act refers to the nature of new information, being any documents or information that were not before the Minister when the Minister made the decision under s.65(a) and (b) of the Act that the Authority considers may be relevant. The proposition that new information does not include documents is unsound.
Reference was made to the proposition that directions that were made under s.473FB of the Act are not to be inconsistent with the Act or Regulations. Section 473FB(2) of the Act refers to:
Without limiting subsection (1), the directions may:
(a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or
(b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview
Section 473FB(4)of the Act refers to the fact that:
If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.
Reference was also made to s.473FB(5) of the Act that:
the Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant directions that applies to the person.
I accept the first respondent’s submissions that the direction does not in any way limit the amount of information or documents that might be provided as new information.
Mr Karp of counsel sought to place great weight on the statement in paragraph 21 that “we may return longer submissions” and the following sentence:
“if we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction.”
The direction does not state that the Authority will not consider a submission in excess of five pages. The direction on its terms, in referring to the possibility that longer submissions may be returned, clearly identifies that it is possible to seek to provide submissions in excess of five pages. No such step was taken in the present case.
Notwithstanding the evidence of the solicitor for the applicant, the Court does not accept that if there had been material further information in the form of submissions that the applicant’s solicitor had been desirous of adducing, that the applicant’s solicitor could not have sought leave to do so or exceeded the page limit.
On the face of the material before the Court, it was a forensic decision by the solicitor to comply with the directions made by the Authority rather than to put in submissions in excess of those identified in the direction. In any event, the limit identified of five pages was not accompanied by a statement that the Authority would not consider longer submissions.
I reject the submission that the practice direction was ultra vires or that the practice direction was inconsistent with the provisions of the Act and Regulations. On the face of it, the practice directions identify proposed efficient processing practices and paragraph 21 does not give rise to the direction falling outside the scope of power under s.473FB of the Act.
Mr Karp of counsel also sought to argue that the practice direction was invalid due to unreasonableness and for that reason was beyond power under s.473FB of the Act. Mr Karp maintained that to impose such a direction without regard to the nature or complexity of actual scenarios and in the absence of a right to a hearing, is arbitrary and unjust and therefore legally unreasonable. It was also submitted that the practice direction constituted a denial of natural justice which supported the finding of legal unreasonable.
The practice direction on its terms expressed in language as to what should be provided and is not expressed in terms that preclude consideration of any longer document. It was open to the applicant if the applicant wished to do so, to seek an opportunity to adduce material beyond the five pages. The applicant did not do so.
The practice direction expressly recognised that longer submissions may in fact be received. When asked by the Court what page limit would meet the requirements of reasonableness, Mr Karp submitted that there should be no limit. There is in fact no limit in relation to new information.
Taking into account the terms of Part 7AA of the Act, I do not regard the direction as being arbitrary, unjust, unfair or legally unreasonable. No jurisdictional error is made out by ground 1.

Ground 2

In relation to ground 2, Mr Karp of counsel took the Court to the authorities in support of the proposition that the review was one in respect of which the outcome should be the correct or preferable decision. Mr Karp contended that the power of review under s.473CC of the Act and the power provided under s.473DC(3) of the Act for the Authority to invite receipt of oral or written new information gave rise to an obligation on the Authority to give the applicant an opportunity to respond to these positive issues as not being dealt with by the delegate.
Mr Karp of counsel took the Court to the reasoning of the Authority and in particular, at paragraphs 22, 23, 26, 36 and 42 of the Authority’s reasons and maintained that the Authority had made findings different from that that had been made by the delegate. Mr Karp submitted that the applicant had been denied the opportunity, as a matter of procedural fairness, to engage with the Authority in relation to the Authority’s specific reservations about the applicant’s case.
Mr Karp took the Court to the decision of the Full Court of the Federal Court in SZHKA v Minister for Immigration and Citizenship & Anor (2008) 172 FCR 1, relevantly at [7] and at [18] to [20]. Mr Karp submitted that given the fluidity of the nature of issues, the applicant was entitled to have the opportunity to be heard on the Authority’s reservations that differed from the findings or reasoning of the delegate.
Mr Karp of counsel took the Court to the nature of the review conducted under Part 7AA of the Act and its statutory provisions and to the decision of the High Court in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, relevantly at [23]. Mr Karp submitted that the exercise of the power under s.473DC(3) of the Act was so integral to the review as to be legally required.
Mr Karp submitted that it was necessary for the Authority to draw the applicant’s attention to issues arising on the review given that those issues had not been raised in the delegate’s decision. In that regard, the issues to which Mr Karp was referring, were the reservations by the Authority in coming to the adverse findings concerning the applicant’s credit and claims. Mr Karp submitted that unless this was done, the Authority would not in relation to the conduct of the review be in a position to make the correct or a preferable decision. Mr Karp submitted that this would effectively deprive the Authority of the applicant’s evidence or explanation and was inconsistent with an essential ingredient within the review process.
In determining whether the Authority complied with its obligations and the conduct under s.473CC(1) of the Act, it is relevant to take into account the terms of s.473DA of the Act which are as follows:-
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
The letter sent to the applicant dated 23 August 2016 provided an explanation to the applicant in relation to the nature of the review and provided the applicant with an opportunity to put on submissions as well as to provide new information. It was apparent from the delegate’s decision that the credibility of the applicant was a live issue. The applicant’s submissions reflect a recognition of that credibility issue. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review.
The power under s.473DC(3) of the Act is a discretionary power. There was no request from the present case for the Authority to exercise that power. Whilst the Court accepts that the exercise of that power can be the subject of judicial review in relation to legal unreasonableness, the facts of the circumstance of the present case fall well short of engaging any obligation upon the Authority to exercise the power under s.473DC(3) of the Act.
The nature of the review under Part 7AA of the Act is different to that that was conducted under Part 7 of the Act. The review under Part 7AA Division 3 is subject to the provisions in s.473DC, s.473DE and s.473DF of the Act to be conducted on the papers. The Authority is not bound by the findings or reasoning of the delegate. Given the statutory regime, I do not accept that the Authority is required to inform the applicant of specific reservations about the applicant’s case and to provide the applicant with an opportunity to respond.
Further, in the present case, the applicant’s credit was clearly identified as a relevant issue and the applicant had an opportunity and took advantage of that opportunity and put submissions in relation to the applicant’s credit.
It was not necessary in the circumstances of the present case for the Authority to deliberate upon in its reasons the exercise of the power under s.473DC of the Act. I reject the submission that it was necessary for the Authority to give the applicant notice of the Authority’s reservations or possible adverse findings in relation to the applicant’s credit as to whether he was an informant, an issue that was patently live and apparent from the decision of the delegate. Ground 2 fails to make out any jurisdictional error.

Ground 3

In relation to ground 3, Mr Karp maintained that the Authority had decided that the applicant did not satisfy the requirements of s.5A(1)(a) of the Act for reasons that were not disclosed to him and of which he could not have been aware. It was submitted that in these circumstances, the failure to exercise the power under s.473DC(3) of the Act was legally unreasonable and that the Authority should have invited a written response or interview in relation to the issues that the Authority saw as being relevant to the review.
It is apparent from the reasons already given that the issue of the applicant’s credit was a live issue before the delegate. There was no obligation in the present case upon the Authority to give the applicant notice in respect of findings or reasoning departing from those of the delegate in relation to the applicant’s credit. The issue of the applicant’s credit was a live issue before the delegate. Mr Karp maintained that, consistent with what was said in Minister of Immigration and Citizenship v Li & Anor (2013) 449 CLR 332 at [99], that the overriding duty of the Authority to review the decision may require the Authority acting reasonably to consider exercising the powers in a particular case.
Where the issue of the applicant’s credit had been a live issue in the Court, I do not regard the Authority’s reservations in relation to the applicant’s credit for different reasons as requiring the Authority acting reasonably to consider the exercise of the power under s.473DC(3) of the Act in its reasons in the present case. The fact that the Authority made no reference to s.473DC(3) of the Act in the present case is consistent with the absence of any submission put to the Authority in that regard. It does not support the inference that the Authority was unaware of or ignored its powers under s.473DC of the Act. No jurisdictional error is made out by ground 3.

Ground 4

In relation to ground 4, Mr Karp of counsel argued in the alternative that it was the requirements of natural justice that required exercise of the powers conferred under s.473DC(3) of the Act and that these requirements of procedural fairness were not excluded by s.473DA or s.473DC(2) of the Act.
Whilst the Court accepts as indicated that the discretion under s.473DC(3) of the Act remains subject to scrutiny before the Court on the grounds of legal unreasonableness, it does not follow that the common law requirements of procedural fairness have not been excluded by the said provisions. In other words, there was no requirement as a matter of procedural fairness on the Authority to exercise its powers under s.473DC(3) of the Act where departing from the findings or the reasoning from the delegate.
There are obligations of procedural fairness imposed by Part 7AA of the Act upon the Authority. On the evidence before the Court, the Authority complied with those obligations by the sending of the letter and the attachments dated 23 August 2016 and in the taking into account of the information provided pursuant to that letter in the conduct of the review. No jurisdictional error is made out by ground 4.

Ground 5

Ground 5 seeks to attack particular findings made by the Authority as being arbitrary or unreasonable. Ground 5 although skilfully presented, is in substance, an invitation to this Court to engage in an impermissible merits review.
While particular (i) does not accurately reflect what was said in paragraphs 23 and 24 of the Authority’s reasons, those findings by the Authority were open and cannot be said to lack an evident and intelligible justification. Moreover, paragraph 23 of the Authority’s reasons has to be read in the context of the decision as a whole and the Authority was clearly referring to the circumstances which included the applicant’s alleged encounter and stabbing and the alleged threats to the applicant. The findings made by the Authority in paragraphs 23 and 24 were open on the material before the Authority.
The finding in paragraph 36 was open on the evidence before the Authority and cannot be said to lack an evident and intelligible justification. The repairing and continuing to live in the same home was an obvious relevant matter for the Authority to take into account.
In relation to paragraph 42, the Authority’s reasons are not to be read with a keen eye for error and are to be read as a whole. Given the applicant’s assertion as to the questioning of his brother about the applicant and the payment of the ransom, it was open to the Authority on the material before it to make the finding made in paragraph 42. No jurisdictional error is made out in ground 5.

Conclusion

The further amended application is dismissed.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 21 April 2017