DKF16 v Minister for Immigration
[2019] FCCA 69
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DKF16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 69 |
| Catchwords: MIGRATION – Application for review of a decision of the Immigration Assessment Authority – whether he Authority misconstrued or misapplied s.473DD of the Migration Act 1958 (Cth) – legal unreasonableness – whether Authority failed to consider submissions of the Applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473DB, 473DC, 473DD |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | DKF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2473 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 18 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Maloney |
| Solicitors for the First Respondent: | The Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2473 of 2016
| DKF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
By application filed 14 November 2016, the Applicant sought judicial review of a decision of the Second Respondent (‘the Authority’) made 20 October 2016 wherein the Authority affirmed the decision of a delegate of the First Respondent, made 8 July 2016, not to grant the Applicant a temporary protection (subclass 785) visa (‘the visa’).
The Applicant proceeded on an amended application filed 20 September 2018. The three grounds of judicial review stated therein were as follows:-
“1. The IAA misconstrued or misapplied s473DD of the Migration Act 1958 (Cth) (the Act) in determining whether to consider new information submitted by the applicant.
Particulars
(a) The new information (New Information) was the names, phone numbers and locations of Ms Shekoofeh Bediei and Mr Fakhaldin Rustami.
(b) The IAA treated s473DD(b)(i) and (ii) as if they both had to be satisfied when they were alternatives, as demonstrated by the word “or” between the subsections.
(c) The IAA took an inappropriately narrow view of the breadth of the expression ‘exceptional circumstances’.
(d) The IAA collapsed its reasoning about ss 473DC and 473DD in a manner that shows that the IAA miscomprehended that its own discretion in s473DC to “get information” by calling the two numbers was constrained by limitations on considering information in s 473DD.
(e) The IAA erred by applying s473DD as if the New Information had to be something that was “not previously known” by the applicant, whereas the proper construction of s473DD includes that the New Information was not previously known by the delegate.
2. The IAA constructively failed to exercise its jurisdiction in that it failed to consider the applicant’s submissions about where his cousin had moved back from and also failed to consider that he had attended Bahai virtual classes hosted by Ms Badiei.
3. The IAA’s reasoning that it was not satisfied any information that the two potential witnesses could provide “would be credible personal information not previously known which may have affected the delegate’s consideration of the applicant’s claims” was legally unreasonable.”
Section 473DD of the Migration Act 1958 (Cth) (‘the Act’) is as follows:-
“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.”
Section 473DC of the Act is as follows:-
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give newinformation:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
The First Respondent submits that no jurisdictional error attends the decision of the Authority and that the application should be dismissed. Both parties seek costs.
History
The Applicant is a citizen of Iran. He departed Iran on 22 July 2012 and arrived in Australia, at Christmas Island, as an unauthorized maritime arrival.
The Applicant applied for the visa on 15 March 2015.
The Applicant’s application was accompanied by a statutory declaration dated 24 June 2015. In that document the Applicant set out many of his claims. In a submission provided to the Authority on 6 September 2016, the Applicant clarified some of those claims, those being claims in respect of which the delegate had made adverse credibility findings. That submission, in its entirety, was considered by the Authority, the submission not comprising ‘new information’ as stated by the Authority in paragraph 4 of the Decision Record, a matter to which I shall return.
The Applicant claimed to fear persecution from the Iranian authorities. His claims in that regard were summarised by the Authority in paragraph 7 of the Decision and Reasons of the Authority (‘the Decision Record’) as follows:-
“- He was subjected to severe discrimination throughout his life as a Faili Kurd. In particular he has referred to his childhood experiences and impoverished circumstances in his home village in Ilam province.
- He claims that from 2000 until 2001 he was detained and ultimately imprisoned on national security charges. These arose because he was found by the security authorities of the university in Isfahan where he was studying to be tutoring Baha'i students and was found to be in possession of Baha'i materials. He claims that he was sentenced to three years in prison but was released after eighteen months.
- After being released the applicant was informed that he was unable to graduate because of the impermissible delay in completing his course.
- He completed military service in 2005. He was made to perform this even though he believes he was found by a medical panel to be eligible for exemption on medical grounds.
- The applicant was unable to obtain employment. His sisters helped him to buy a truck which he used to transport goods, but he did not earn enough.
- In June 2006 when holidaying with his cousin, an expatriate, in northern Iran he met a Baha'i man who befriended them. This man introduced the applicant to two Baha’i brothers who had a business based in the Tehran bazaar. They employed the applicant in the warehouse, and after a time he so impressed them that he was given extra responsibilities.
- During 2006 people became suspicious because he was working with Baha’is.
- In August 2006 when walking one night he was picked up by men who he believes were from the intelligence. They abused him, calling him unclean and a Baha'i, and beat him for several hours while driving around. Eventually he was released.
- In December 2006 the applicant went on pilgrimage to Mecca, believing that by doing so he would establish himself as a devout Muslim. In his statutory declaration he claimed that after he returned there was no more “backbiting” about his religion and he had done enough to prove that he was a Muslim.
- In 2008, 2009 and 2010 he travelled to China on business, claiming that he did so because it was more difficult for the brothers to travel.
- In 2010, at the request of the brothers for whom he worked, he started tutoring Baha’i students of the Baha'i “virtual university”. In July 2012 he was informed that the homes of some Baha'i students had been raided and students and tutors had been arrested. He was scared of being arrested, tortured and imprisoned again. After he left he heard that the business of the brothers had been raided and closed down, and they had both been arrested. They told him that documents showing that he was their employee had been seized.
- At the TPV interview the applicant provided new information that in 2007 and 2009 arrest warrants or summonses had been issued against him. He did not know why and he had not responded to the summonses because he was afraid to do so.
- He left Iran via Imam Khomeini international airport in Tehran using his own genuine passport which was taken from him by the smuggler in Indonesia. He had no difficulties departing although he was scared that the outstanding warrants might cause problems for him.
- The delegate considered an implied claim that the applicant might face difficulties on return as a failed asylum seeker.”
The Authority
Contained within the submission of the Applicant (received by the Authority on 6 September 2016) was new information as alleged by the Applicant although not characterised as such by the Authority. That information responded to findings of the delegate of the First Respondent that:-
a)the delegate did not accept that the Applicant tutored Bahai students, because his evidence about it was not specific or detailed enough; and
b)the delegate did not accept that the Applicant has gone to the north of Iran for a holiday in June 2006, paid for by his cousin who had returned from England. The delegate’s relevant findings in this regard were as set out in the Court Book at page 157 as follows:-
“54. The applicant said in June 2006 he went to the north of Iran for holidays. I asked the applicant how he could afford a holiday considering he claimed to be poor and [have] little income. The applicant said his cousin came back from England and paid for his holiday.
55. The applicant stated that they met a person whilst on holidays that introduced himself as Bahai. The applicant said the applicant [sic] states that he told the man of his educational history and of his computer programming skills. The applicant said his cousin stayed in touch with the Bahai gentleman and that the applicant met up with him when he was back in Tehran. The applicant states that the Bahai gentleman introduced him to two Bahai brothers, Peyman and Payan, who were businessmen.
56. The applicant stated that the Bahai businessmen offered him a job and he started working in their warehouse, he prepared an accounting program for them and after sometime he moved into purchasing. The applicant stated he worked for the brothers until he departed Iran in June 2012.
57. I asked the applicant why he would risk himself by working for Baha’is, considering he spent time in jail for his previous associations with Baha’is. The applicant said he was looking for work at this time and all his relatives that had business[es] would not offer him a job, they looked at him as if he was an impure breed. As the applicant did not answer the question put to him satisfactorily I rephrased the question and asked: Did you not think there were risks involved by working with the Bahai brothers. The applicant said at the time I needed a job and they offered me one, why wouldn’t I take the offer.
58. I do not accept any of the applicant’s claims regarding the Bahai brothers. The applicant said he was in desperate need of a job and had no money, that none of his family would even look at him. However the applicant went on holiday with a family member that he claims paid for the trip. I also note that within his statement of claims the applicant noted that his cousin living in Florida came back to Iran. In his TPV interview he said his cousin was returning from England. Unfortunately I did not pick up on this during the interview and was unable to question the applicant on the anomaly. Nonetheless the difference in the cousin’s origin is concerning. The applicant said during his TPV interview he did not consider the risks of working for a Bahai person because he was desperate for a job. However the applicant has an employment history of teaching and tutoring and various other jobs before and after prison. I do not feel the applicant adequately explained why he would put himself at risk of arrest again by working and associating with Baha’is, considering the claimed torture, mental breakdown and depression.”
The ‘new information’ said by the Applicant to be provided by him in his submission to the Authority was, relevantly:-
a)“Travel to north … My cousin used to be in England and now is in USA. His contact info: +1-40-77-189-196. Address: 31152 Bridgegate Dr, Wesley chapel, FL 33545. His name is: “Fakhaldin Rustami”; and
b)“Working for Baha’i brothers … Baha’i virtual classes were hosted by some members of their community who had bigger houses. One of these hosts was “Ms SHEKOOFEH BADIEI” who I met a few times around 2009 at Payam’s house during some Baha’i meetings, a very good lady. I met her again at one of faili friend’s house in Glenroy just by chance last December. She lives in Melbourne. Her contact info is: 0416-401-133.”[1]
[1] Court Book page 188.
The Authority said as to the above parts (paragraph 11 herein) of the submission of the Applicant:-
“Included in the submission were the contact details of two people – the applicant’s cousin in the US, and a Ms Shekoofeh Badiei, a Baha'i woman who the applicant claims to have met in Tehran, and who he met by chance in Australia in December 2015. Although the applicant has not explicitly requested the IAA to contact these people, it is implied that they could provide corroboration of aspects of his claims. The IAA does not have a duty to get new information, even if requested to do so by an applicant: s.473DC(2) of the Act. It can only consider new information in exceptional circumstances: s.473DD of the Act.
6. It was very clear at the TPV interview held on 16 November 2015 that the delegate had major concerns about the credibility of the [sic] most of the applicant’s claims, including those about which his cousin and Ms Badiei might be able to provide evidence. The applicant claims that he met Ms Badiei in December 2015, which was after the TPV interview. However, he was informed at the end of the interview that further information submitted before a decision was made would be considered: the decision was not made until July 2016. His former representative was present at the interview. I consider the applicant was given ample opportunity to understand the credibility concerns held by the delegate and to provide comments on or information to dispel those concerns. I consider that corroborative information from the applicant’s cousin and Ms Badiei could have been provided to the delegate before the decision was made. Further, it would have been open to the applicant to submit sworn statements from these people to the IAA, rather than just providing their telephone numbers. Based on the limited information provided by the applicant about these people I am not satisfied that any information they could provide would be credible personal information not previously known which may have affected the delegate’s consideration of the applicant’s claims. I am not satisfied that there are exceptional circumstances which justify obtaining new information from these two people.”
The Applicant claimed that the decision of the Authority is affected by jurisdictional error and that “so much is obvious from paragraph 6 of the [Authority’s] decision.”[2]
[2] Applicant submissions filed 20 September 2018, paragraph 1.
Grounds 1 and 3
The Applicant asserts under ground one that in dealing with the ‘new information’ provided by the Applicant, the Authority ‘misconstrued or misapplied’ s.473DD of the Act, in that it:-
a)treated s.473DD(b)(i) and (ii) as cumulative rather than as alternatives;
b)took an “inappropriately narrow view” of “exceptional circumstances”;
c)“Collapsed its reasoning about ss473DC and 473DD”, evincing a misapprehension that its discretion to get new information (pursuant to s.473DC of the Act) was constrained by the limitations on considering new information in s.473DD of the Act;
d)understood the phrase “not previously known” in s.473DD(b)(ii) of the Act to mean “not previously known by the applicant”.
Ground three asserts that it was legally unreasonable for the Authority to conclude that it was not satisfied that any information the Applicant’s cousin and Ms Badiei provided could be credible personal information not previously known which may have affected the delegate’s consideration of the Applicant’s claims.
These grounds of judicial review must fail.
The Authority did consider whether it should exercise its broad discretion to get new information pursuant to s.473DC of the Act, new information that was not yet before it. In determining whether to exercise its discretion to get new information pursuant to s.473DC of the Act, the Authority took into consideration that the Applicant was aware of the delegate’s credibility concerns, and could have put corroborative evidence to the delegate; that he could have put to the Authority sworn statements from his cousin and Ms Badiei, “rather than just providing their telephone numbers” and that based on the “limited information provided by the Applicant about these people”, it was not satisfied that any information they provided would be credible personal information, not previously known and capable of affecting the delegate’s consideration. As submitted by the First Respondent, there is no error in those findings.
Further, as submitted by the First Respondent, the Authority's reasons, read fairly and as a whole, do not evince a conflation of ss.473DC and 473DD of the Act. Indeed, they show a cognisance of the distinction between these provisions. For example, at paragraph 5 of the Decision Record it notes that the Authority “does not have a duty to get new information, even if requested to do so by an applicant: s 473DC(2) of the Act”; and goes on: “[The Authority] can only consider new information in exceptional circumstances: s.473DD of the Act”. Its conclusion at paragraph 6 of the Decision Record that “I am not satisfied that there are exceptional circumstances which justify obtaining new information from these two people” must be read, as submitted by the First Respondent and accepted by the Court, as indicating that it was not satisfied that there were grounds to exercise the discretion in s.473DC of the Act, which as noted, provides an exception to the constraints imposed by s.473DB of the Act.[3]
[3] EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462.
As to Ground 3, it was not unreasonable for the Authority to find, on the material before it, that it was not satisfied that the Applicant’s cousin and Ms Badiei would have provided credible personal information, not previously known and capable of affecting the delegate’s decision. The Authority had no information from these individuals. It had only the Applicant’s implied submission that they could provide corroborative evidence. No evidence from them was placed before the Authority by the Applicant. The Authority’s lack of satisfaction was clearly open to it on the limited evidence that was before it. As submitted by the First Respondent, the Applicant might have preferred that the Authority draw a different inference, but this does not render its finding unreasonable.[4]
[4] Minister for Immigration v SZRKT (2013) 212 FCR 99, 148-149; Minister for Immigration v SZUXN
[2016] FCA 516, 52-56; CQG15 v Minister for Immigration [2016] FCAFC 146, 59-61.
Ground 2
By ground 2 the Applicant asserted that the Authority failed to consider the Applicant’s submission “about where his cousin moved back from”, and about attending “Bahai virtual classes” hosted by Ms Badiei. The Applicant argued the Decision Record omits any reference to either of these things. This ground must fail.
In paragraph 10 of the Decision Record the Authority found as follows:-
“I do not agree with much of the delegate’s assessment of the applicant’s credibility. I consider that many of his adverse findings, especially in relation to minor matters, were based on a misunderstanding of the applicant’s claims, or were the result of differences in interpretation. I have given no weight to inconsistencies noted by the delegate between the entry interview and subsequent claims because there is no recording of the entry interview, and I accept the applicant’s explanation that he was told to only give brief responses to questions: this is consistent with what I have observed at numerous other entry interviews. I consider that the applicant was able to provide a detailed and credible account of much of his life in the statement submitted with his TPV application and at the TPV interview. However, although I disagree with many of the delegate’s findings on minor matters, overall I agree that the applicant’s major claims are not credible and should not be accepted.”
In particular, in respect of this ground, the Authority found at paragraphs 18 and 26 of the Decision Record as follows:-
“18. I do not accept that the applicant was employed from 2006-2012 by Baha'i businessmen. If it is accepted that the applicant had served time in prison in 2000 for association with Baha’is, and had undergone the serious mistreatment documented in his statutory declaration, it appears to me extremely unlikely that he would have engaged in any further activity which might once again bring him to the adverse attention of the authorities, even if he were desperate for work, as he claims. For the same reason, and because I do not accept his evidence about his claimed links with the Baha'i businessmen, I do not accept that he tutored Baha'i students. I do not accept that he fled Iran because there were raids on the students, or that after he left the business was raided and closed down. I consider it significant that the applicant applied for a visa for travel to Australia three months before the events which he claims precipitated his departure. I consider that this demonstrates a prior intention on the part of the applicant to travel to Australia for reasons other than those which he claims give rise to his claims to protection. I consider that when the visa application was refused he then decided to travel to Australia illegally, and that he has fabricated the majority of his claims in order to support his asylum application.
…
26. I have accepted that the applicant was imprisoned in 2000 because of his association with Baha'i students. I do not accept that he had any subsequent association with members of the Baha'i community. As there is no credible evidence to suggest that the applicant faced ongoing difficulties of any kind as a result of his past association with Baha’is during the twelve years he remained in Iran after his release from prison; because I do not accept any ongoing contact with Baha’is; and because I do not accept that the applicant left Iran because of raids on a Baha'i educational institution with which he was involved, or because the Baha'i owned business in which he worked was raided, I do not accept that the applicant faces harm on return to Iran because of any actual or imputed association with members of the Baha'i faith.”
The Authority set out in its Decision Record as discussed above, that it has considered the Applicant’s submission of 6 September 2016. In its summary of the Applicant’s claims, it referred to the relevant (to this ground) claims of the Applicant, as contained in that submission. The Authority made necessary factual findings in respect of the claims, the subject of ground 2, referred to in the totality of these reasons. As submitted by the First Respondent:-
“To have required more of the Authority would be, in substance, to require it to conduct a line-by-line refutation of the Applicant's evidence.”[5]
This of course is not required.
[5] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Applicant
The application will be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 16 January 2019
WAEE v Minister for Immigration (2003) 236 FCR 593, 46-47; Re Minister for Immigration and
Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, 65; SZDXZ v Minister for
Immigration and Citizenship [2008] FCAFC 109, 25.
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Statutory Construction
-
Jurisdiction
0
4
2