DQH18 v Minister for Immigration
[2019] FCCA 2890
•25 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DQH18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2890 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for Temporary Protection visa – whether the Authority correctly exercised its power under s 473DC(3) of the Migration Act 1958 (Cth) – whether the Authority failed to issue a valid direction under s 473GD(1) of the Migration Act 1958 (Cth) – whether the Authority committed jurisdictional error due to an invalid notification under s 473GB of the Migration Act 1958 (Cth) – no jurisdictional error made out – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J(6), 36, 473DC, 473DD, 473GB, 473GD |
| Cases cited: CMH16 v Minister for Immigration & Anor [2017] FCCA 2433 CQZ15 v Minister for Immigration and Anor [2019] FCCA 2239 DZU16 v Minister for Immigration and Border Protection [2017] FCCA 851 El Ossman v Minister for Immigration and Border Protection (2017) 248 FCR 491 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 |
| Applicant: | DQH18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1942 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 17 September 2019 |
| Date of Last Submission: | 17 September 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 25 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Chia |
| Counsel for the Respondents: | Ms Hooper |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1942 of 2018
| DQH18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is an Iranian national. The applicant departed Iran on 22 May 2013. The applicant arrived in Australia on 11 July 2013 as an irregular maritime arrival. On the 24 February 2017, the applicant lodged a Temporary Protection visa application. On 11 September 2017, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused the application.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. On 19 June 2018, the Authority affirmed the Minister’s decision to refuse the application for a Temporary Protection visa. The applicant now seeks judicial review in this Court.
Immigration Assessment Authority’s Decision
At paragraph 4 of the decision, the Authority deals with the new claim being advanced by the applicant, that since his arrival in Australia, he has converted to Christianity. It is asserted that this was not provided to the delegate on the advice of the applicant’s previous migrant representative. At paragraph 5 of the decision, the Authority determines there are exceptional circumstances to justify the admission of this information and the new claim.
At paragraph 6 of the decision, the Authority notes a request for an interview by the applicant. The request is based on the premise that the applicant has not personally provided information on his conversion to Christianity claim previously. The Authority determined not to exercise its power under s 473DC(3) of the Migration Act 1958 (Cth) (‘the Act’), to obtain further evidence from the applicant, by way of an interview.
At paragraph 7 of the decision, the Authority sets out the applicant’s claims for protection. They may be summarised as follows:
· While representing Iran overseas in the Asian Junior Wrestling Championships, the applicant shook the hand of a female official during the presentation ceremony of his gold medal.
· In 2009, the applicant participated in mass demonstrations against the outcome of the presidential election. The applicant was detained by security officers at his third protest and beaten. The applicant was forced to sign a declaration promising not to participate in further demonstrations, prior to being released.
· In April 2013, the applicant received a threating telephone call warning him not to be involved in the upcoming presidential elections. The applicant received a second phone call a week later and saw a black car outside his home. The applicant concluded that he was being surveilled.
· In 2004, the applicant met a man, pseudonym ‘HS’, who was a member of the Sepah. Sepah is an element of the Iranian security organisation. HS told the applicant he was entitled to a land grant due to winning a gold medal in wrestling. The applicant was told he would be awarded a parcel of land opposite the Varamin Hospital.
· In March 2013, the applicant saw the land was being developed. The applicant confronted HS about stealing his land. The applicant was told to leave or he would be arrested.
· Following this event, the applicant received a phone call telling him that he had disrespected a member of the Sepah and that he would never be forgotten. The applicant then took steps to flee Iran.
· If the applicant returns to Iran, he fears he will be persecuted and denied any job opportunities. There is no protection anywhere against the Sepah.
· The applicant has been attending the Liberty Baptist Church since March 2015 and was baptised as a Christian on 22 March 2015. If the applicant returns, he fears he will be considered as an apostate, imprisoned and or killed.
At paragraph 8 of the decision, the Authority accepted the applicant’s identity and Iranian nationality. The Authority accepted that the applicant worked as a professional wrestler and departed Iran in 2013 on his legally issued passport.
At paragraph 9 of the decision, the Authority rejects the claim that the applicant shook the hand of a female representative in an overseas country in 2004 and was reprimanded by Iranian officials. The country where the applicant was participating in, is predominately a Muslim country. The Authority did not consider it plausible that a female representative would seek to shake the hand of a team member from Iran. The Authority rejected the claim and found that this impacted on the applicant’s credibility. The Authority did not accept that the applicant was refused employment due to this claimed event or that it affected his ongoing career in wrestling in Iran.
At paragraph 10 of the decision, the Authority deals with the applicant’s involvement in protests against the outcome of the 2009 presidential election. The Authority accepted the applicant participated in three protests and that he was arrested, detained, questioned and sustained an injury to his finger. The Authority was not satisfied the applicant was required to sign any documentation promising not to participate in further protests.
At paragraph 11 of the decision, the Authority noted that the applicant was not an activist and involved in the Green Movement in any way. The Authority was not satisfied, given the applicant’s activities in 2009, that he received telephone calls in 2013, or was the subject of physical surveillance.
At paragraph 12 of the decision, the Authority considers the applicant’s claims in relation to the parcel of land. The Authority notes whilst there is plethora of other documentation in relation to other claims, there was none in relation to the land. The Authority did not accept that documents in relation to the land exist. The Authority did not accept that the events occurred, given the lack of documentation and the applicant’s failure to mention the particular issue until 2017.
At paragraph 13 of the decision, the Authority deals with interactions with ‘HS’. The Authority concludes that the applicant is not of any adverse interest to Iranian security authorities, received any threatening phone calls and that the entire claim is a fabrication.
At paragraph 14 of the decision, the Authority rejects the applicant’s claim that a Sepah officer would offer him employment, whilst at the same time he was being admonished for shaking the hand of a female official while overseas. The Authority did not accept the applicant was either offered or declined employment with the Sepah.
At paragraph 15 and 16 of the decision, the Authority dealt with the applicant’s claim of conversion to Christianity. A letter from Pastor Piper noted the applicant first visited the Liberty Baptist Church on 8 March 2015 and that the applicant was baptised on 22 March 2015. The letter further stated the applicant attended services at the Liberty Baptist Church, but the frequency of his attendance was not stated. It was confirmed that the applicant attended the National Baptist Fellowship on 26 to 28 September 2017, a period which post-dates the Minister’s decision. The Authority noted that the applicant’s protection visa application does not include any mention of his Christian activities. No photos have been provided to show Christian activities. The Authority concluded that the applicant’s actions, in terms with his involvement with Christian activities, are to support his application for protection.
At paragraph 18 of the decision, the Authority notes information provided to the department that the applicant has made false claims. The Authority concluded that as there is no detail in the statements allegedly provided, this material would be given no weight.
At paragraph 21 of the decision, the Authority finds that while the applicant participated in the 2009 “Green movement” protests, given that he was not at an organisational level, he would not face a real chance of harm as a result of being returned to Iran.
At paragraph 22 of the decision, the Authority noted that the applicant does not claim or express an interest in Christianity in Iran prior to his departure in 2013. The Authority concludes that the applicant’s Christian activities within Australia must be disregarded under s 5J(6) the Act. The Authority concludes that there is no credible evidence that the applicant will participate in Christian religious activities upon return to Iran. The Authority concludes that the applicant would not do so. The Authority concludes it does not accept the recent claim that the applicant has rejected Islam and has converted to Christianity.
At paragraph 23 of the decision, the Authority deals with risks associated with returning to Iran as a failed asylum seeker. The Authority accepts that the applicant will return on temporary travel documents and will be questioned upon arrival. The Authority was not satisfied that the applicant has a profile that would attract adverse attention of authorities upon return.
At paragraph 24 of the decision, the Authority concluded that the applicant does not meet the criteria under s 36(2)(a) of the Act to qualify for protection as a refugee.
At paragraphs 25 to 29 of the decision, the Authority deals with complementary protection considerations. For the same reason as set out above, the Authority concluded the applicant did not meet the criteria under s 36(2)(aa) of the Act, in that there is not a real risk that the applicant will suffer significant harm if returned to Iran.
Grounds of Appeal
These are set out in a further amended application filed 13 August 2019. The grounds of appeal are as follows:
1. The exercise by the second respondent (Authority) of its discretion under subsection 473DC(3) of the Migration Act 1958 (Act) not to invite the applicant to give new information was legally unreasonable.
Particulars
The Authority found that there were exceptional circumstances to consider the applicant’s new claim to have converted to Christianity and knew that the applicant had not had the opportunity to elaborate upon aspects of his account which were considered by the Authority to be important and open to doubt.
Further or in the alternative, the Authority would have been aware that the delegate had told the applicant at the protection visa interview that giving the level of detail he was giving was “not necessary”.
2. Further or in the alternative to 1, the Authority failed to issue a valid direction under subsection 473GD(1) of the Act.
3. Further or in the alternative to 1 and 2, the Authority committed jurisdictional error due to an invalid notification under section subsection 473GB(1) of the Act.
Preliminary Matters
At the commencement of the hearing, counsel for the applicant sought leave to cross examine Michael Anthony Thomas, Assistant Secretary, Border Intelligence Fusion Centre, Intelligence Division, Policy Group, within the Minister for Home Affairs. Mr Thomas had provided an affidavit dated 11 September 2019, in support of a claim of public interest immunity in relation to a document that was the subject of a notification by a delegate of the Minister to the second respondent under s 473GB of the Act. That affidavit went on to describe why the department was of the view that there was a public interest in protecting third parties by not revealing identifying information to ensure the department’s continued ability to receive confidential information regarding a visa applicant’s eligibility.
This included that if the document was revealed, it could:
1.Disclose, or enable a person to ascertain, the identity of a confidential course of information.
2.Hinder or inhibit or diminish the ability of the department to properly administer the Migration Act insofar as the department relies on the receipt of community information from third parties and inhibit their capacity to receive confidential information in relation to applicants for visas.
3.Disclose lawful methods of analysing and investigation information relevant to the enforcement or administration of the Migration Act.
In a separate judgment, leave to cross examine Mr Thomas was refused on the basis that there was an inherent risk that any cross examine would reveal that very matters that were the subject of the public interests immunity claim (see El Ossman v Minister for Immigration and Border Protection (2017) 248 FCR 491 at paragraph [31]).
Objection was taken by counsel for the applicant to the opinion material contained within Mr Thomas’s affidavit. It was suggested that this opinion evidence did not meet the requirements of s 79 of the Evidence Act 1995 (Cth). In a separate judgment the objection was overruled.
The Applicant’s Submissions
Ground 1
Counsel for the applicant submitted that the decision by the Authority, having accepted the applicant’s claims to be a Christian pursuant to
s 473DD of the Act, was legally unreasonable not to have invited the applicant for an interview pursuant to s 473DC(3) of the Act. It was submitted that the power under s 473DC(3) of the Act must be exercised reasonably (see Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at paragraph [82] per Robertson, Murphy and Kerr JJ, and affirmed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600).
It was submitted that the applicant’s decision to convert to Christianity had not been discussed at his protection visa interview. The Authority noted it had “No evidence before it relating to the reason for his decision to convert or… his understanding of Christianity”, nor did the applicant have the opportunity to address the Authority’s concerns regarding the timing of his baptism or the absence of reference to ‘Christian activities’ in his protection visa interview.
Counsel for the applicant submitted that the reasons at paragraph 6 of the Authority’s decision to refuse the interview bespeaks error (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at paragraph [85], per Hayne, Kiefel and Bell JJ).
Grounds 2 and 3
These grounds allege that the Authority failed to issue a valid direction under s 473GB(1) of the Act and committed a jurisdictional error under
s 473GB of the Act due to an invalid notification. Reliance was placed on the decision of the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 (“SZMTA”), as being analogous to that in SZMTA, which discussed s 438 of the Act. It was submitted that subject to materiality, an invalid notification will “without more”, establish jurisdictional error. It was submitted that to the extent that the notification refers to a document, it was not a document provided to the delegate in confidence. It was an internally generated document. It was submitted that the information was from a confidential source rather than information that was not inherently confidential. As the information was not provided “in confidence” the document did not fall under the purview of s 473GD of the Act.
It was submitted that the notification under s 473GD(1) of the Act was also invalid as it was based on the premise that the information that had been provided was in confidence. It was submitted that it was not known how the review may have proceeded had it not treated the notification as valid. It was conceded however, that the Authority chose to give the information no weight (see MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1).
In oral submissions, counsel for the applicant said that there was a possibility that there could have been a different outcome and that in these circumstances there was jurisdictional error.
The First Respondent’s Submissions
Ground 1
Counsel on behalf of the first respondent noted that the conversion to Christianity was a new claim, raised for the first time by the applicant in his submissions to the Authority. The Authority rejected the claim for a number of reasons including s 5J(6) of the Act, as it was activity the Authority was not satisfied had been engaged in, otherwise than for the purpose of strengthening the applicant’s claim (see paragraph 22 of the Authority’s decision). In so doing, the Authority earlier had regard to evidence that the applicant had genuinely converted to Christianity (see paragraph 16 of the Authority’s decision). Thus, the rejection of the claim did not rest upon s 5J(6) of the Act alone, rather it rested on the holistic conclusion based on the totality of the applicant’s evidence, that he had not genuinely converted.
Counsel for the first respondent submitted that the failure to invite the applicant, was not an example of the Authority acting unreasonably given the overall manner in which Part 7AA of the Act reviews are to be conducted. The Authority was not under an obligation “to afford every opportunity to the applicant… to present his or her best possible case and to improve upon the evidence” (see Li at paragraph [82]).
Counsel for the first respondent noted that the applicant was represented at both the protection visa application interview and at the review stage. It was noted that at the complementary protection stage, the Authority correctly appreciated that s 5J(6) of the Act did not apply. It was noted that at the initial stage of the application, the applicant was told at his protection visa interview to raise all claims for protection and provide evidence in support of these claims.
It was submitted that in CMH16 v Minister for Immigration & Anor [2017] FCCA 2433 (“CMH16”) at paragraph [63], Judge Driver held in his judgment that DZU16 v Minister for Immigration and Border Protection [2017] FCCA 851, was distinguishable and that it was not apparent that the Authority saw any need to elicit further information from the applicant as to her claims.
Ground 2
Counsel for the first respondent submitted that the Authority issued a valid direction as evidenced at page 365 of the Court book. Even if the direction was invalid, it did not necessarily result in jurisdictional error. Thirdly, any failure to issue a direction under s 473GD(1) of the Act, did not reflect or impact on the outcome of the review.
Ground 3
On its face, the notification under s 473GB(1)(b) of the Act was valid. The document contained information which was communicated in confidence and could not be likened as a departmental record. The reliance on SZMTA was not valid, as SZMTA deals with reviews under Part 7 of the Act and this particular review was being conducted under Part 7AA of the Act. Further, the issue had no material impact on the outcome of the decision, given how the Authority dealt with the decision it its reason.
Considerations
Ground 1
The statutory scheme for review under Part 7AA of the Act, is that they are to be carried out on the papers and the Authority is not required to seek new information or interview the applicant. New information may be received in exceptional circumstances under s 473DD of the Act, subject to two additional criteria under s 473DD(b) being met, that the information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The applicant suggests that the decision of the Authority not to invite him to interview was legal unreasonable. The test for legal unreasonableness is necessarily stringent and will only arise in rare cases (see Li at paragraphs [31] – [113]).
I am satisfied it was open to the Authority to consider the new claim as to the applicant’s conversion to Christianity by exercising its discretion under s 473DD of the Act, however, this did not bind the Authority to then being required to invite the applicant for an interview. I concur with the conclusions of Judge Driver in CMH16, that there was sufficient information for the Authority to determine the case based on the material it had available to it and therefore there was no need to interview the applicant. The applicant had the opportunity to provide all evidence he wished to in the pre-hearing submissions. The applicant was represented at the time, thus he would have been reasonable aware that reviews under Part 7AA of the Act, were generally conducted on the papers and that it would be a rare case where an interview was conducted. In these circumstances, I am not satisfied that the decision of the Authority not to invite the applicant to interview, was so unreasonable as to amount to legal unreasonableness (see Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1 at paragraph [38]). The ground cannot be sustained.
Grounds 2 and 3
Counsel for the applicant relied on the decision in CQZ15 v Minster for Immigration and Anor [2019] FCCA 2239 per Judge Riley. In considering whether or not the declaration was valid as it related to the document, as compared to the identity of the informant, based on the material contained in the affidavit of Mr Thomas, I am reasonably satisfied that the notification was valid.
Even if I am wrong in this conclusion, I am satisfied based, on the conclusion of the Authority to give that information “no weight”, that there was not and could not be any practical injustice to the applicant. It was argued that there was the possibility of a different outcome had the material been disclosed to the applicant and had he had the opportunity to respond to it. Such a conclusion in my view, is to take the matter too far. The information was before the Authority, it considered it and gave it no weight. The matter was determined based upon the evidence that was before the Authority, not evidence that was not before the Authority. In SZMTA at paragraph [44], the following appears:
…Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.
Given that the Authority attached no weight to the material that was the subject of the certificate, I cannot be satisfied that the breach, if there was one, resulted in any material difference to the outcome of the decision. Accordingly, Grounds 2 and 3 cannot be sustained.
Conclusion
The application is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 25 October 2019
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