DPK18 v Minister for Home Affairs

[2018] FCCA 3300

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPK18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3300

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the second applicant is entitled to make an application on the basis of her own claims for protection – whether it was legally unreasonable for the Authority not to expressly consider its power under s.473DC of the Migration Act 1958 (Cth) – whether the Authority took into account relevant information – whether the Authority understood and applied the relevant law – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DC, 476, 473FB

First Applicant: DPK18

Second Applicant DPL18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1925 of 2018

Judgment of: Judge Street

Hearing date: 14 November 2018

Date of Last Submission: 14 November 2018

Delivered at: Sydney

Delivered on: 14 November 2018

REPRESENTATION

Counsel for the Applicant: Mr G Fredericks

Solicitors for the Applicant: Wotton & Kearney Lawyers

Counsel for the Respondents: Ms A Carr

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The amended application is dismissed.

2. The first applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

DATE OF ORDER: 14 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1925 of 2018

DPK18

First Applicant

DPL18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is 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 2 January 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The first applicant is the father of the second applicant, who is a child. The first applicant was appointed the litigation guardian on behalf of the second applicant in these proceedings.  

3. The first applicant was found to be a citizen of Iran and his claims were assessed against that country. The first applicant was born a Shi’a Muslim in Tehran. The first applicant asserted that he has renounced Islam and converted to Christianity in Australia. On 31 May 2017, the first applicant applied for a Safe Haven Enterprise visa. The application for the Safe Haven Enterprise visa lodged by the applicants on 31 May 2017 (“the application”) was prepared with the benefit of legal assistance by the first applicant’s migration representative. Relevantly, the application included a Part B titled “Persons Included in the Application”. The second applicant’s name appeared in that document under the heading, “Details of Persons Included in this Application.” Part B also set out a date of birth for the second applicant and, in relation to the question, “Applicant Raising their own Claims for Protection” the “no” box was filled with a tick.

4. The first applicant alleged that he feared harm in Iran from the Iranian authorities and, in particular, the Basij Forces in connection with the applicant’s past adverse profile. The applicant also claimed to fear harm from having sought asylum in a non-Islamic country, renouncing Islam and converting to Christianity and having a Western/non-Islamic appearance and way of life.

5. The applicant also claimed that he feared harm because of his religion, his actual or imputed political opposition to the Iranian regime due to renouncing Islam, being a failed asylum seeker who sought asylum in a non-Muslim country, and being a man who breached religious or cultural norms. 

6. On 31 October 2017, the delegate found that the applicants failed to meet the criteria for the grant of Safe Haven Enterprise visas. 

7. On 3 November 2017, the Authority wrote a letter to the first applicant acknowledging that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority would consider new information and provided an attached a fact sheet and Practice Direction, which provided the applicant an opportunity to put on new information and submissions. 

8. Paragraphs 10 to 14 of the Practice Direction, under the heading, ”Representatives,” provided as follows:

   10. You may engage a person to represent or assist you in relation to the review.

   11. If you notified the Department that a person was acting on your behalf during the primary application process, that notice does not apply to our review. If the person continues to act for you during the review, you must notify us as soon as possible after the matter is referred to us.

   12. Your representative must also notify us in writing as soon as they commence or cease representing you.

   13. A form for appointing a representative is available from our website In the case of family groups, a form should be submitted for each family member for whom the representative is acting in relation to a review.

   14. Generally, we expect that if you appoint a representative, that person will also be nominated as your authorised recipient.

9. Paragraphs 15 to 19 of the Practice Direction, under the heading, “Authorised Recipients”, provided as follows:

   15. You may appoint a person to receive correspondence on your behalf.

   16. If you appoint a person to receive your correspondence, we will send correspondence about your review to that person and not to you.

   17. To appoint a person to receive your correspondence, you must notify us in writing of the person's name and contact details.

   18. If you appointed a person to receive correspondence from the Department on your behalf, that appointment does not apply to our review. If you want the person to continue to receive your correspondence during the review, you must notify us in writing as soon as possible after the matter is referred to us. You must also give us an email address for your authorised recipient.

   19. A form for appointing an authorised recipient is available from our website In the case of family groups, a form should be submitted for each family member for whom an authorised recipient is to be appointed.

10. On 24 November 2017, the applicants’ migration agent sent an email to the Authority identifying the first applicant as the client. The email expressly referred to the fact that the first applicant had applied for a Safe Haven Enterprise visa and that the application included the second applicant whose name was specified. Submissions were then advanced in relation to the claims put forward by the second applicant.

11. On 29 November 2017, an email was sent on behalf of the Authority to the migration agent of the applicants noting that the primary application for a Safe Haven Enterprise visa included the second applicant and that the migration agent had indicated that the agent was authorised to represent the first applicant in relation to the review by the Authority. The email requested confirmation from the legal representatives that they were representing the second applicant in relation to the review by the Authority. 

12. In response to the email sent on 29 November, an email was sent on 4 December 2017 by the applicants’ agent which expressly confirmed, “We are representing” – following which the first and second applicants’ names were set out. Reference was then made to the fact that a submission had been lodged “on behalf of both clients”. 

13. On 4 December 2017, the Authority wrote to the applicants’ migration agent, inviting the first applicant to attend an interview. The topic upon which the first applicant was identified as being asked to attend an interview was in respect of: “Details regarding your conversion to Christianity.” A time and date for the interview was specified as being 2:00pm on 7 December 2017.

14. Shortly before that interview, a form was completed in respect of a representative for the purpose of attending the interview on the first applicant’s behalf. There is a case file note noting that, on 5 December 2017, the appointment of the legal representative was the subject of discussion and that the Authority had received written confirmation that the migration representatives would be representing the applicant. The case file note also noted that migration agents are not able to appoint themselves to represent an applicant. It was also noted that the authorisation to act for an applicant must come from the applicant himself and that in this case, the second applicant was a minor and the parent can give consent on behalf of the second applicant. The notation also records that it was proposed that the authorisation form will be ready on the day of the interview, in relation to the second applicant. 

15. On 12 December 2017, following the interview, an email was sent to the legal representative on behalf of the Authority requesting completion of a form 2 by the first applicant in respect of the authorisation to act for the second applicant. It is not apparent, on the material before the Court, that the form 2 was ever completed.

16. The Authority in its reasons identified the background to the Safe Haven Enterprise visa application and had regard to the material provided by the Secretary under se 473CB of the Act. 

17. The Authority expressly referred to the written submissions provided by the first applicant’s representative. The Authority identified, to the extent that the first applicant’s written submissions engaged with the delegate’s decision, they were not new information and the Authority had regard to the same.

18. The Authority referred to the first applicant attending an interview on 7 December 2017. The Authority was satisfied that there were exceptional circumstances to justify considering the new information provided in that regard. The Authority also took into account the first applicant’s oral submissions that were made on that occasion to the Authority. 

19. The Authority also identified taking into account new information in respect to the nationality of the second applicant. The Authority was satisfied that there were exceptional circumstances to justify considering that new information.

20. The Authority summarised the first applicant’s claims and evidence. In that regard, the Authority referred, also, to the second applicant’s claims and noted that the second applicant was included as a person who was not raising their own claims, but referred to the statement of claims by the first applicant that he did not want his daughter to grow up in Iran and would fear for her if they returned. 

21. The Authority noted that the first applicant did not want the second applicant to grow up in a country that does not value the opinions and education of women and a society that restricts her in every way. The Authority also noted that, in the interview on 4 October 2017, the first applicant claimed that both he and his daughter would be killed because of his conversion to Christianity. 

22. The Authority did not accept that the first applicant had any ongoing or adverse profile with an attitude exposing him to serious or significant harm at the time he departed Iran in August 2012, or that he faced any such serious or significant harm in the three years prior to departure.

23. The Authority was not satisfied that the first applicant has renounced Islam or that he has genuinely converted to Christianity. The Authority did not accept that the first applicant has a genuine intention or desire to practise Christian faith in the reasonably foreseeable future, including in Iran. The Authority was not satisfied that the first applicant faces in Iran a real chance of serious harm in connection with any of the claims made or arising in respect of his Christian conversion and/or Christian activities in Australia, even when considered together.

24. The Authority, in considering the applicant’s claims concerning Western appearance and behaviour, expressly referred to an assessment in a Department of Foreign Affairs and Trade Country Information Report, Iran 21 April 2016 (“the DFAT Report”) identified in a footnote. The Authority did not accept that the first applicant’s intended or likely behaviour and/or appearance in Iran gives rise to a real chance of harm rising to the level of serious harm, as contemplated by the relevant law, even when considered together with the applicant’s circumstances. 

25. The Authority found that the applicant departed Iran legally, having departed Iran using his own passport. In considering the applicant’s claim to fear harm as a failed asylum seeker, the Authority again expressly referred to the same DFAT Report, footnoted in the Authority’s reasons. The Authority was not satisfied that the first applicant, being known or suspected to be a failed asylum seeker who had sought asylum in a Western or non-Muslim country gives rise to a real chance of any harm to him in Iran. 

26. The Authority was not satisfied that the first applicant faces in Iran a real chance of harm for any of the reasons claimed. The Authority was not satisfied that the first applicant has a well-founded fear of persecution.

27. The Authority then had a heading, “The Second Applicant.” The Authority referred to the second applicant having been included in the Safe Haven Enterprise visa application as a person who is not raising her own claims. The Authority referred to its finding that it did not accept that the first applicant has genuinely renounced Islam or that the first applicant has genuinely converted to Christianity. In these circumstances, the Authority did not accept that the second applicant will face any harm in Iran in connection with the first applicant’s claimed conversion to Christianity. 

28. The Authority turned to the first applicant’s evidence concerning the second applicant not growing up in a country that does not value the opinions or education of women and a society that restricts her in every way. The Authority noted the age of the second applicant and that the evidence of the first applicant did not identify any specific disadvantages or any specific restrictions that the second applicant would face in the reasonably foreseeable future. The Authority found that it was not apparent on the evidence before the Authority that the second applicant faces a real chance of any harm in Iran in the reasonably foreseeable future in connection with her gender or otherwise. 

29. In these circumstances, the Authority found that it was not satisfied that the second applicant faced a real chance of harm in Iran in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence. The Authority was not satisfied that the second applicant had a well-founded fear of persecution. 

30. The Authority found that the applicants did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicants did not meet the criterion in s.36(2)(a) of the Act.

31. The Authority found that there are not substantial grounds for believing, that as a necessary and foreseeable consequence of the applicants being returned to Iran from Australia, there is a real risk the applicants will suffer significant harm. The Authority found the applicants did not meet the criterion in s.36(aa) of the Act. Accordingly, the Authority affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 9 July 2018. On 2 August 2018, a Registrar of the Court made orders appointing the first applicant as the litigation guardian of the second applicant. On 15 October 2018, the Court granted leave to the applicant to file and serve an amended application.

The grounds

1. The grounds in the amended application are as follows:

   The Second Applicant

   1. The Second Applicant:

   a. is a Fast Track Applicant as defined.by paragraph 5(1AA)(b) of the Act and IMMI 16/049;

   b. is thereby entitled to make an application for a Protection visa subclass XE-790 Safe Haven Enterprise Visa on the basis of her own claims for protection;

   c. has not made such an application.

   2. In the alternative, the Second Respondent (the Authority):

   a. had a duty or obligation to ensure that the Second Applicant had a proper opportunity to raise her own claims for protection independently of any claims made by the First Applicant;

   b. did not ensure that the Second Applicant had such an opportunity;

   c. thereby committed jurisdictional error.

   2A. Further in the alternative, the review of the Second Applicant's claim by the Authority was not conducted, and the Decision was not made, in accordance with part 7 AA of the Act and the Authority thereby committed jurisdictional error.

   Particulars

   i. Playfair Visa and Migration Services (Playfair) purported to represent the Second Applicant.

   ii. Playfair were not properly appointed as the representative of the Second Applicant.

   iii. The Second Applicant was not:

   a. Properly provided with notices regarding the Authority's review and the Decision;

   b. Represented before the Authority;

   and the Second Applicant was thereby denied the opportunity to put new material and submissions to the Authority

3. Further, in the alternative, the Authority erred by failing to consider information directly relevant to the Second Applicant's claims, contrary to the requirements of s.473DB of the Act and thereby committed jurisdictional error.

Particulars

The Authority failed to consider information before it regarding the Second Applicant's membership of the social group "Women in Iran".

The First Applicant

4. In making a finding that the First Applicant did not meet the requirements of section 5H(l) of the Act and section 36(2)(a) of the Act, the Authority erred by misconstruing relevant evidence in finding that the First Applicant is not a person outside their country of nationality and is not a person of well-founded fear of persecution.

Particulars

The Authority failed to correctly apply the family unit criteria in s.36(2)(b)(i) and s.36(2)(e)(i) to the First Applicant’s claims in circumstances where the Authority had failed to consider information directly relevant to the Second Applicant’s claims.

Ground 1

1. In relation to ground 1, Mr Fredericks of counsel on behalf of the applicants took the Court to the communications which took place in respect of the authorisation of the representatives to act for the second applicant. Mr Fredericks accepted that the second applicant had been included in the application for the Safe Haven Enterprise visa and also accepted that submissions had been made to the Authority by the legal representative for the applicants, expressly referring to the second applicant and to the communication identifying that submissions had been made on behalf of the applicants.

2. Mr Fredericks, however, contended that the communications referred to above identified that there was a form under the Practice Direction that the representatives had not provided to the Authority. Mr Fredericks also drew attention to the singular description of the applicant in relation to the representation in paragraph 4 and paragraph 6 of the Authority’s reasons. 

3. Mr Fredericks properly conceded that there was no statutory provision that he could rely upon in support of the argument that the second applicant was not a party to the visa application and the review. Mr Fredericks accepted that s 473FB of the Act provides that non-compliance with the Practice Direction does not give rise to an invalid decision. Mr Fredericks properly conceded that there was no further argument that he could advance in support of ground 1. 

4. On the face of the material before the Court, the second applicant was included in the Safe Haven Enterprise visa application and was identified in that regard as advancing no claims of her own. The delegate made a determination in respect of that Safe Haven Enterprise visa application, following which it is apparent that the delegate notified the first applicant of the decision and the referral to the Authority for review. Whilst that communication was addressed only to the first applicant, this was in circumstances where the second applicant had, at that stage, not been identified as advancing any claims of her own.

1. The further communications from the Authority with the applicant’s representative clearly confirmed that the representative asserted that they were acting both on behalf of the first and second applicants. The non-compliance with the Practice Direction by the completion of the relevant form did not give rise to any practical injustice. There was no jurisdictional error by the Authority by including the second applicant in the review. The non-compliance with the Practice Direction did not give rise to circumstances in which the second applicant is entitled to make a further application for a Safe Haven Enterprise visa or to request the Authority to conduct a further review under P 7AA of the Act. 

2. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Fredericks submitted that in the circumstances of the present case and given the Authority’s request for the form to be completed in respect of the second applicant’s representation, the Authority should have exercised powers under s473DC of the Act to permit the second applicant to raise her own claims for protection independently of the claims of the first applicant. Mr Fredericks submitted that the second applicant had not been given such an opportunity and that the Authority had, accordingly, committed a jurisdictional error. 

2. The letter sent by the Authority to the first applicant on 3 November 2017 gave an opportunity to the first applicant, on behalf of the second applicant, to raise both new information and to put on submissions. It is apparent from the legal representative’s response that the submissions advanced were sought to be put forward on behalf of both applicants and that the legal representative was asserting representation on behalf of both applicants. Further, the circumstances of the present case are ones where the first applicant was invited to attend an interview with the Authority by letter dated 4 December 2017.     

3. Taking these circumstances into account, the absence of an express consideration of the power under s 473DC of the Act by the Authority cannot be said to lack an evident and intelligible justification. The intelligible justification is the opportunity that had already been provided by reason of the letter dated 3 November 2017, the opportunity for the first applicant to attend an interview and the opportunity for the first applicant to put submissions. In these circumstances, there is no legal unreasonableness in the failure of the Authority to expressly consider or exercise the power under s 473DC of the Act in respect of the second applicant advancing her own claims. No jurisdictional error as alleged in ground 2 is made out.

Ground 2A

1. In relation to ground 2A, Mr Fredericks submitted that there had been, in the alternative, a failure by the Authority to exercise its power under s 473DC of the Act to ensure that there was authorised representation of the second applicant in accordance with the Practice Direction. In that regard, Mr Fredericks relied upon the proposition that, on the evidence before the Court, the form f2 appears not to have been completed. The Court accepts, on the evidence before the Court, that the form f2 was not completed. For the reasons earlier identified under s.473FB(3) of the Act, however, the non-compliance with the Practice Direction does not give rise to the decision of the Authority being invalid.

2. Further, it is apparent in the circumstances of the present case that the legal representative was purporting to act on behalf of the second applicant and put submissions which were described as having been made on behalf of the second applicant. Further, as is apparent from the reasons above, the Authority invited the first applicant to attend an interview. In these circumstances, the absence of an express consideration by the Authority to exercise its powers under s 473DC of the Act cannot be said to lack an evident and intelligible justification. The justification, in that regard, arises from the circumstances where the second applicant had an opportunity to raise a concern in respect of representation, both in response to the communication sent by the Authority to the representative, as well as a result of the interview that occurred on 7 December 2017.

3. In these circumstances, there was no legal unreasonableness in the Authority’s failure to expressly consider exercising the power under se 473DC of the Act in respect of the appointment and representation of the second applicant. For the reasons given above, the Court does not accept that the second applicant was denied an opportunity to put on new information and submissions. Both the letter dated 3 November 2017 and the further interview on 7 December 2017 provided the second applicant an opportunity to do so.

4. No jurisdictional error as alleged in ground 2A is made out.

Ground 3

1. In relation to ground 3, Mr Fredericks took the Court to material in the DFAT Report which was the same report that was referred to in the footnotes of the Authority’s reasons. Mr Fredericks submitted that, although the Authority had referred to a claim arising on the material before the Authority in respect of the second applicant being a woman in Iran, there had been no reference to the DFAT Report. Mr Fredericks submitted that, in the circumstances of the present case, the Court should infer that the Authority failed to have regard to the DFAT Report in the adverse findings made by the Authority in its reasons, as summarised above.

2. Mr Fredericks submitted that, as there had been an express reference to the DFAT Report in earlier specific sections, it should be inferred that the Authority did not have regard to the same when there is an absence of reference to it in the context of the second applicant’s claims and, in particular, the dispositive finding in respect of the second applicant being a woman. The Court does not accept that the inference should be drawn that the Authority failed to have regard to the DFAT Report in determining the second applicant’s claim to fear harm by reason of her sex. 

3. It is relevant, in that regard, that the footnotes referring to the DFAT Report were not ones that were confined to particular paragraphs. In that regard, there was a reference in footnote 8, footnote 9 and footnote 13 to the DFAT Report at large. The Court sees no reason to infer that the Authority confined itself to a limited section of the DFAT Report. The Court is not satisfied that it is appropriate to infer that the Authority failed to have regard to the whole of the DFAT Report in its adverse finding made in paragraph 80 of the Authority’s reasons. 

4. In the circumstances of the present case, the Court does not accept that it was material or necessary for the Authority to make an express reference to the DFAT Report in relation to the second applicant. This is because, first, the Authority had already referred to the DFAT Report which supports the inference that it was taken into account. Further, the Authority expressly referred to the evidence before the Authority and that evidence included the DFAT Report. 

5. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Fredericks properly accepted that he could not identify or point to any misconstruction of the legislative provisions by the Authority in determining whether the first applicant met the criteria under s 36(2)(a) of the Act. On the face of the Authority’s reasons, the Authority correctly identified the relevant law, which was referred to in paragraphs 55 and 56 of its reasons and also set out in an annexure the law applicable to the Authority’s reasons. On the face of the Authority’s reasons, the Authority correctly understood and applied the relevant law and made adverse findings which were open to the Authority for the reasons given by the Authority.

2. The particulars appear to advance ground 4 on the basis of the first applicant being a member of the family unit of the second applicant through s.36(2)(b)(i) or s.36(2)(c)(i) of the Act. For the reasons given above, there is no jurisdictional error in relation to the grounds advanced on behalf of the second applicant. As the second applicant does not meet the statutory criteria for a Protection visa, the first applicant does not meet the statutory criteria by reason of being a member of a family unit.

3. No jurisdictional error arises in respect of ground 4.

4. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 November 2018 and the parties were provided sealed copies of the Court’s orders

Associate: 

Date:  25 February 2020