DPQ17 v Minister for Immigration
[2018] FCCA 1051
•13 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DPQ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1051 |
| Catchwords: MIGRATION – Safe haven enterprise class XE (subclass 790) visa – applicant claimed to fear harm from Taliban – Immigration Assessment Authority deemed information provided by applicant not to be new information for purposes of Part 7AA of the Migration Act 1958 – where applicant conceded Immigration Assessment Authority’s decision was “probably fair according to law” – applicant’s sole ground of review not particularised – applicant failed to raise an arguable case – application summarily dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(aa), 36(2)(a), 473CB, Part 7AA Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 Attorney-General v Qui (1990) 170 CLR 1 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 Craig v State of South Australia (1995) 184 CLR 163 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 |
| Applicant: | DPQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 428 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 13 March 2018 |
| Date of Last Submission: | 13 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 March 2018 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Martin Udall & Associates |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The application for an adjournment made ore tenus this day is refused.
The proceeding commenced by the application filed 10 August 2017 is dismissed.
The applicant pay the minister’s costs fixed in the sum of $3,607.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 428 of 2017
| DPQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
This case was fixed by me on 8 February 2018 while sitting in Perth, at which time I ordered the proceeding to be listed for directions before me. It had previously been fixed for trial on 22 March 2021 over three years from today. On 8 February 2018 I ordered this proceeding to be fixed for hearing under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules on a date to be fixed. I ordered this case to be heard by video link three years earlier than the date ordered by the registrar. Pursuant to an instruction from the chief judge of the Federal Circuit Court of Australia, the Honourable Justice Alstergren, this case was heard by me today with a view to relieving in some small way the very large number of cases in the migration jurisdiction of the court awaiting a hearing. When I dealt with the case in Perth on 8 February 2018 both the applicant and the Minister’s representative consented to the case going forward under the show cause procedure today.
Today, Mr Udall appeared, representing the applicant. The applicant had not been represented at any stage prior to today on any of the prior appearances in this court. Mr Udall urged me to adjourn this application for three reasons. First he said the applicant’s command of the English language was so poor as to be relevantly non-existent. Second he said he was instructed very late to appear on this application and that he had limited instructions. Third he said that in the time between my dealing with this case on 8 February 2018 and today, the applicant had not been able to obtain a barrister so as to put forward what he thought were – or might be – his best arguments on the hearing of this application. Today Mr Young, the minister’s representative, opposed the adjournment application. He brought to my attention the fact that the application itself was filed on 10 August 2017. Thereafter the case proceeded before the registrar. Thereafter I conducted a directions hearing on 8 February 2018. The applicant was ordered to file an amended application and written submissions which he failed to do.
On 8 February 2018 the transcript recorded that the applicant, through an interpreter, told me that he suffered from some English barrier but that I gave him a month within which to get his house in order and he agreed that that was adequate time. Today he sought an adjournment of a further six weeks. In my view he has had enough time to prepare for the eventuality of today. It is noteworthy that the applicant has not appeared with any legal assistance at any of the court proceedings until today and that he wishes to obtain the advantage of the three year delay in the hearing of this application in 2021. Having regard to the matters about which I provide detail momentarily, this case as it presently is cast is bereft of such detail as to warrant any prolongation of its fate and instead the case should proceed through the show cause procedure that I am dealing with today. In those circumstances the application for an adjournment is refused and I now proceed to consider the main application for the applicant to show cause.
The applicant is a citizen of Afghanistan who arrived on Christmas Island as an unauthorised maritime arrival on 8 February 2013. On 26 July 2015 he lodged an application for a safe haven enterprise class XE (subclass 790) visa. In a statutory declaration that accompanied his visa application, the applicant recorded the claims he made in this case in the following terms –
a)his father, a tailor in Kandahar who owned a tailoring business and who made clothes for high-ranking police officers, received threats and was later killed by the Taliban in 2008;
b)the applicant then ceased working at his father’s tailoring business and worked at a community centre in Kandahar;
c)in the three months prior to his leaving Afghanistan in 2011 the applicant received three telephone calls from the Taliban, threatening to kill him if he did not stop working at the community centre;
d)in 2011 the applicant and his family left Afghanistan and lived in Pakistan, in the process selling their land to enable them to travel to Australia; and
e)if he returned to Afghanistan the applicant said he feared harm from the Taliban, from Daesh or other extremist groups as he would be considered a traitor and a pro-government sympathiser by reason of his father, because of his work with the community centre and because he sought asylum in a western country.
The delegate of the minister invited the applicant to an interview to be held on 26 October 2016, which interview the applicant duly attended.
On 3 November 2016 the representative of the applicant provided the delegate with further information and submissions in support of his visa application.
On 29 December 2016 the minister’s delegate decided to refuse the applicant the safe haven enterprise class XE (subclass 790) visa that the applicant sought.
On 10 January 2017 the delegate’s decision was referred to the Immigration Assessment Authority (“IAA”) for review under Part 7AA of the Migration Act (“Act”).
The applicant’s representative provided written submissions to the IAA on 7 February 2017.
On 21 July 2017, the IAA affirmed the delegate’s decision to refuse the applicant’s application for the grant of a safe haven enterprise class XE (subclass 790) visa.
Against that factual backdrop, the applicant sought judicial review in this court by application filed on 10 August 2017. In his application that he was invited to amend but chose not to do so the applicant relied on the following propositions, the errors in which are in the original –
The assessment was probably fair according to law however, unfair because of my honest statement which was rejected.
The assessment is unfair because “my life” is in danger because I will be killed by Taliban. The Taliban is still around. Believe it or not.
Pursuant to orders made by a registrar of this court on 23 August 2017 the applicant was ordered to file and serve any amended application on which he relied by 2 November 2017. He failed to do so. By the same date 2 November 2017, the applicant was ordered to file any additional evidence on which he wished to rely. He did not file any.
To better understand the applicant’s grievances in this case, it is necessary to examine how the IAA approached this case.
In the IAA
The IAA stated in paragraph 3 of its reasons that it had regard to the material referred to it by the secretary of the minister’s department under s.473CB of the Act. The IAA referred in paragraph 4 of its reasons to the applicant’s submissions it received on 7 February 2017 and that those submissions did not constitute “new information” for the purposes of Part 7AA of the Act on the basis that the submissions challenged several of the delegate’s findings or they discussed matters that were before the delegate or they referred to country information already before the IAA. That position was correct. In other words the debate about the delegate’s findings and the debate about country information that was before the delegate and the IAA was not “new information” as that phrase has been defined in Part 7AA of the Act. In paragraph 5 of its reasons the IAA accepted that two reports published after the date of the delegate’s decision could not have been provided prior to the delegate’s decision. But the IAA took the view that those two reports provided information that was reflective of information in other documents and that those two reports provided an update on the security situation. However the IAA did not accept that the fact of those reports postdating the delegate’s decision was of itself an exceptional circumstance for considering the two reports.
The IAA accepted a number of facts or propositions that the applicant advanced. Those accepted facts or propositions included that –
a)the applicant’s father received threatening phone calls and letters and was killed by the Taliban;
b)the applicant worked for a community centre and may have been threatened due to his continued employment there; and
c)there were risks on the roads from insurgents who orchestrated kidnapping and violence.
The IAA did not accept a number of facts or propositions that the applicant advanced. Those included that –
a)the applicant closed his tailoring business due to a fear of harm from the Taliban;
b)the applicant was perceived as having a pro-government profile arising from his work with his father or due to his family association;
c)the applicant would be of interest to the Taliban on return to Kandahar;
d)the applicant would be of interest to the Taliban, having regard to the passage of time since the applicant was employed at the community centre;
e)the applicant would be imputed with a pro-government political opinion by the Taliban due to his residence in a western country;
f)returnees and asylum seekers such as the applicant who had lived in a western country for a significant period of time were targeted by in Kandahar;
g)the applicant would be targeted due to his former employment with the community centre or his father’s employment or for being a returnee or asylum seeker with an imputed pro-western political opinion;
h)the applicant had identifiable affiliations with pro-western organisations or the Afghan government that would raise his profile and lead to him being specifically targeted by insurgents for his pro-western political opinion; and
i)the applicant would be imputed with an adverse political opinion in Kandahar as a Sunni Pashtun who resided in a western country.
The IAA was not satisfied that the applicant met s.36(2)(a) of the Act.
So far as complementary protection considerations were concerned, the IAA found that the applicant would not face a real risk of significant harm as a returnee or asylum seeker from the west due to an imputed pro-government profile arising from his or his father’s former employment.
So far as the general security situation in Kandahar was concerned, by reference to country information, the IAA was not satisfied there was a real risk of the applicant suffering significant harm on his return to Kandahar. The IAA was not satisfied the applicant met s.36(2)(aa) of the Act.
Grounds of review
In the passages above I have recorded the grounds on which the applicant relied in this proceeding. Several things must be said about them.
First, in this case I am required to conduct a judicial review. That involves an assessment of whether the IAA committed or fell into jurisdictional error. In turn, that involves my assessment of whether the IAA –
a)identified a wrong issue;
b)asked itself a wrong question;
c)ignored relevant material;
d)relied on irrelevant material; or
e)made an erroneous finding or reached a mistaken conclusion.
Authority in the High Court of Australia has held that those are classic formulations of the existence of jurisdictional error, in such cases as Craig v State of South Australia,[1] Minister for Immigration and Multicultural Affairs v Yusuf[2] and Kirk v Industrial Court (NSW).[3]
[1] (1995) 184 CLR 163
[2] (2001) 206 CLR 323
[3] (2010) 239 CLR 531
This court is forbidden from engaging in a general review of the merits of the work of the IAA. That is because judicial review is not to be used as a vehicle for a re-evaluation of factual findings. An array of cases at the highest level have held as much, such as Australian Broadcasting Commission v Bond,[4] Attorney-General v Qui,[5] Kim v Minister for Immigration and Ethnic Affairs[6] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[7] In Singh v Minister for Immigration & Anor,[8] I collected together the lead authorities in the High Court, as well as in the Federal Court.
[4] (1990) 140 CLR 321
[5] (1990) 170 CLR 1
[6] (1989) 169 CLR 379
[7] (1996) 185 CLR 259
[8] [2016] FCCA 1663
In this case the applicant acknowledged that the IAAs decision was “probably fair according to law” but that the decision was unfair, he said, because his “honest statement was rejected”.[9] By another phrase he was complaining that his version of the events was not accepted. That does not amount to jurisdictional error in my view. He said the IAA’s decision was unfair because his life was in danger. The alleged unfairness of the decision of the IAA did not tell of jurisdictional error. This court is only able to intervene when jurisdictional error is demonstrated along the lines set out above in Craig and the other cases cited above.
[9] Application filed 10 August 2017, p.3
Next, the applicant’s grounds of application were not particularised. A strong line of cases in the Federal Court has held that unparticularised grounds of review are amenable to dismissal for the simple reason that the ground is expressed in such generality that it is meaningless. Four main cases have so held namely, WZATH v Minister for Immigration and Border Protection,[10] BHK15 v Minister for Immigration and Border Protection,[11] AQN15 v Minister for Immigration and Border Protection[12] and WZAVW v Minister for Immigration and Border Protection.[13] A ground of review that does not specify the nature of the jurisdictional error allegedly committed is a sufficient basis for ordering the proceeding to be dismissed. Those observations apply to this case because here no basis is set out by which the nature of the jurisdictional error allegedly committed was identified.
[10] [2014] FCA 969
[11] [2016] FCA 569
[12] [2016] FCA 571
[13] [2016] FCA 760
This was a show cause hearing. Under r.44.12 of the Federal Circuit Court Rules, if the court hearing a show cause application is not satisfied that the applicant has an arguable case for the relief he or she seeks the court may make a variety of orders including an order for the dismissal of the proceeding. The High Court’s decision in Spencer v Commonwealth[14] and the decision of the Full Court of the Federal Court in AMF15 v Minister for Immigration and Border Protection[15] has each held that the power of summary dismissal is not to be exercised lightly. I have proceeded with that instruction uppermost in mind.
[14] (2010) 241 CLR 118
[15] [2016] FCAFC 68
In addition, in Siddique v Minister for Immigration and Border Protection,[16] Gilmour J of the Federal Court of Australia held that the power in r.44.12 of the Federal Circuit Court Rules has two components to it. The first is a lack of satisfaction that the applicant has raised an arguable case for the relief claimed. The second is a residual discretion whether or not to dismiss the application. So far as the residual discretion whether or not to dismiss the application is concerned, the merits of the case are critical. It was therefore necessary for me to examine the merits of the case in the overall, which I have done. As Gilmour J observed in Siddique, in very many cases an answer to the first question will lead to the second.[17] Beach J in SZTTW v Minister for Immigration and Border Protection[18] came to a similar conclusion.
[16] [2014] FCA 1352
[17] [2014] FCA 1352 (at [21]).
[18] [2014] FCA 837
Conclusion
Having examined whether the applicant has raised an arguable case for the relief he claimed in this case, namely, that the IAA fell into jurisdictional error, and having considered the residual discretion possessed in me whether or not to summarily dismiss this proceeding on the merits, I am of the view that this proceeding should be summarily dismissed. Accordingly, I dismiss this proceeding and order the applicant to pay the minister’s costs of $3,607.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 30 April 2018
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