DQI18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1034
Federal Circuit and Family Court of Australia
(DIVISION 2)
DQI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1034
File number(s): SYG 1944 of 2018 Judgment of: JUDGE LAING Date of judgment: 12 December 2022 Catchwords: MIGRATION – application for review of a decision refusing to grant a Temporary Protection (Class XD) (Subclass 785) visa – where the applicant was found by the Delegate to be an excluded fast track review applicant – whether the applicant was denied procedural fairness – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5(1)(a)(iii), 473CA, 473BB Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 5 December 2022 Place: Sydney Solicitor for the Applicant Mr N. Daawar (Ariana Defence Lawyers) Solicitor for the First Respondent Ms S. Nyabally (Australian Government Solicitor) ORDERS
SYG 1944 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQI18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
12 DECEMBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
INTRODUCTION
Before the Court is an application for review of a decision of a delegate (Delegate) of the respondent (Minister) refusing to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa (protection visa). The Delegate additionally found that the applicant was an ‘excluded fast track review applicant' within the meaning of s 5(1) of the Migration Act 1958 (Cth) (Act).
background
The applicant is a citizen of Afghanistan. He arrived in Australia as an unauthorised maritime arrival on 2 December 2012.
On 27 April 2016, the applicant applied for a protection visa. He attended an interview in respect of his application on 11 December 2017.
On 25 January 2018, the applicant was sent an invitation to comment on information indicating that he had previously claimed asylum in the United Kingdom (UK) which was refused in 2008 before the applicant was voluntarily removed to Afghanistan in 2009. This, it was noted, could potentially result in the conclusion that the applicant was an ‘excluded fast track review applicant' within the meaning of s 5(1)(a)(iii) of the Act. The applicant did not respond to this letter.
The Delegate refused the protection visa application on 14 June 2018.
the delegate’s decision
The Delegate had some concerns regarding an untranslated copy of a document that had been provided, purporting to be a taskera. The applicant’s claimed belief at interview was that this had been obtained in Kandahar around 2007, whilst independent information indicated that the applicant was in the UK from 2003/2004 to 2009.
However, the Delegate generally accepted much of the applicant’s identity information. The Delegate accepted that the applicant was a Pashtun of Afghan nationality. It observed that he had provided a different date of birth to that which had been recorded in the UK. The latter was considered to be the more likely date as it was derived from original identity documents. In this regard, the Delegate noted country information indicating that many Afghans did not know their exact date of birth.
The Delegate did not accept the applicant’s claim to be a Shia Muslim. The applicant’s claims in this regard were considered to be ‘vague and lacking in specificity’. Country information indicated that the overwhelming majority of Pashtuns were Sunni Muslims, with the exceptions tending to be located elsewhere in Afghanistan. Further, the Delegate considered that the applicant had a history of knowingly providing incorrect information to immigration authorities.
The Delegate observed that, whilst the applicant had initially claimed at interview not to have travelled beyond Afghanistan other than to Pakistan, he had subsequently admitted having travelled to the UK around 2003/2004 where he had made an application for asylum that was refused. The applicant gave inconsistent evidence as to why he had not previously disclosed this information. He accepted at one point that he had ‘maybe’ lied to the UK authorities. The Delegate considered that the applicant had given evasive and vague evidence regarding the protection claims that he had advanced in the UK. Whilst the applicant made reference to his brain ‘not working’, in the absence of evidence the Delegate did not accept that the applicant had any medical affliction impairing his ability to recall information. The Delegate considered it likely that the applicant had fabricated at least some part of his claims to protection in the UK.
The Delegate did not accept the applicant’s claim to have been threatened on the basis of his brothers’ employment with foreign forces as interpreters (or in any other capacity), or that he faced any risk of harm as a result. The Delegate noted the applicant had not provided any corroborative evidence regarding his brothers’ employment, nor the threats that he claimed to have received from the Taliban. The Delegate considered the applicant’s evidence regarding this claim to be ‘vague and unconvincing’, noting that the applicant had been unable to provide basic details regarding whom the brothers worked for and what they did. This was despite the applicant’s claim to have resided with his brothers whilst they did this work for approximately 2 years. The applicant had also given inconsistent evidence regarding how he had perceived the threatening letters that he claimed to have received from the Taliban. The Delegate considered that he had previously shown a willingness to provide incorrect information in order to achieve a migration outcome.
The Delegate accepted that the applicant may be identified as a failed asylum seeker returning from a western country. However, the Delegate did not accept that the applicant would face a real chance of serious or significant harm on this basis, or as a Pashtun returning to Kandahar City. In this regard, the Delegate relied upon a number of country information reports regarding the situation in Afghanistan, including reports published by the Department of Foreign Affairs and Trade. The Delegate also considered the applicant’s personal circumstances, including his previous return to Afghanistan in 2008/2009 after an unsuccessful bid for asylum in the UK, following which he did not claim to have faced any harm on this basis.
The Delegate concluded that the applicant did not meet the statutory requirements for the grant of a protection visa. The Delegate then considered whether the applicant was an ‘excluded fast track review applicant' within the meaning of s 5(1) of the Act. The Delegate found that he met this definition, noting information they had received from the UK (that had been the subject of the invitation to comment) to the effect that the applicant had previously applied for, and been refused, protection there. The Delegate observed that this had been confirmed by the applicant at interview. The Delegate therefore found that the applicant was an ‘excluded fast track review applicant' within the meaning of s 5(1)(a)(iii) of the Act i.e. as an applicant who, in the opinion of the Minister, ‘has made a claim for protection in a country other than Australia that was refused by that country’.
proceedings before this court
The applicant relied upon the following ground contained in his application filed on 12 June 2018:
1. Breach of Procedural Fairness
The Respondent breached procedural Fairness and did not act fairly in reaching to the unreasonable decision by did not accepting the evidence of the visa application in the absence of any contrary evidence to the applicant claim. This decision was taken in the absence of any logically probative adverse evidence or information as required by the principle of Procedural Fairness.
The right of review by a Tribunal or IAA has been taken away from the Applicant and this is a breach of procedural fairness.
The Respondent did not put sufficient weight to those evidence presented by the applicant and accepted by the Respondent in reaching their decision.
The Respondent did not have real insight of the relevant factors and information, security and political circumstance in Kandahar and in Afghanistan in general.
The Respondent should have given the benefit of the doubt to the applicant and accept his account of the persecution and the chance of harm to him in Afghanistan as recommended by the UNHCR guidelines too. In contrast the decision was based on the First Respondent subjective opinion in absence of relevant contrary information. Even though the applicant failed to disclosed his travel to UK in late 2004 in his application but admitted in his interview. His fear was based on his experience from UK that his refugee claim was rejected and he was returned to Afghanistan where he faced persecution again by Taliban this time because of his brother's work with foreigners. The applicant is Pashtun and not Shia. He is a Sunny and that is an error in Translation of his claim as it is translated not by official translators due to financial difficulties.
Further his right of IAA review has been taken away from him and this is also a breach of procedural fairness. The right of factual review by a Tribunal or IAA here was taken away from the applicant.
This is why the delegate was biased and unfair and in breach of procedural fairness.
The ground appeared to take issue (inter alia) with the Delegate’s non-acceptance of the applicant’s claims in the ‘absence of any contrary evidence’. However, it is well established that a decision maker is not required to have ‘rebutting evidence’ in order not to accept an applicant’s claims or evidence: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65].
The Delegate gave detailed reasons for not accepting the applicant’s claims to be a Shia Muslim and that his brothers had been employed to assist foreign forces as interpreters. Those reasons are summarised in some detail at [8] to [10] above. They are intelligible. The Delegate’s reasoning in this regard was informed by issues with the applicant’s credibility (including inconsistencies in his evidence, his acknowledgment that he may have been untruthful with the UK authorities, and also a lack of corroboration).
In relation to the brothers’ claimed employment, Mr Daawar suggested that it was unreasonable for the Delegate to have additionally found the applicant’s evidence to be ‘vague and unconvincing’. He suggested that the Delegate had expected minute details of the brothers’ employment to which the applicant would not reasonably have been expected to have been privy. I do not accept this. The information sought by the Delegate regarding the brothers’ employment was not of this nature. Rather, the Delegate had observed that the applicant had been unable to provide basic details regarding who his brothers worked for and what they did. It was open to the Delegate to find this evidence to be vague and, when considered in relation to the other issues it had identified, capable of bearing adversely on the applicant’s credibility. Whilst another decision maker may have reasoned differently, this is not sufficient to meet the high thresholds for illogicality or unreasonableness.
The Delegate’s reasons were also informed by country information regarding the situation in Kandahar. Whilst the applicant’s legal representative, Mr Daawar, disagreed with the cogency of the country information that was relied upon, he did not draw attention to any evidence capable of indicating that the Delegate’s reliance upon that information was logically closed to the Delegate. Disagreement, even strong disagreement, is insufficient to meet the threshold for grounds such as illogicality: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [129].
In the pleaded ground, the applicant claimed to be Sunni. It was suggested for the applicant that that there may have been an interpretation error by the person who wrote out the statement that was provided with the applicant’s visa application. This does not explain, however, why the applicant apparently then repeated at interview that he was a Shia and attempted to answer a number of questions about the Shia religion whilst assisted by an interpreter (as indicated in the Delegate’s decision). Whilst Mr Daawar initially disputed that this had occurred, that submission was withdrawn after acknowledging that no evidence had been placed before the Court (such as a transcript) that was capable of supporting it. Given this, and the statement in the applicant’s written claims that he was a Shia, it was clearly open to the Delegate to understand that this claim had been made. Regardless, the Delegate’s findings were consistent with the position now contended by the applicant i.e. that he is not a Shia.
The pleaded ground also contended that the applicant was denied procedural fairness because he did not have any right of merits review. However, this was the effect of legislation that the Delegate was bound to apply. In s 5(1) of the Act, the term ‘excluded fast track review applicant' was defined to include an applicant who, in the opinion of the Minister, ‘has made a claim for protection in a country other than Australia that was refused by that country’. The applicant conceded at interview that he had claimed protection in the UK and that his application had been refused. He was afforded procedural fairness (as prescribed by s 57 of the Act) through the opportunity given to him at interview to discuss this issue, and also through the subsequent invitation to comment that he was sent.
Mr Daawar did not identify what other procedural fairness obligation was said to have been enlivened under Part 2, Division 3, Subdivision AB of the Act. Whilst he referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, that decision concerned a different statutory context. The applicant could not have had any reasonable expectation that the evidence and claims that he put forward would necessarily be accepted by the Delegate. The Delegate was not required to foreshadow to him their thought processes in this regard (other than to the extent required under the Act).
As the applicant was found to be an ‘excluded fast track review applicant’, the Delegate’s decision could not be referred to the IAA under s 473CA of the Act as it was not a ‘fast track reviewable decision’ within the meaning of s 473BB. The applicant had no other legislated entitlement to merits review. Whilst in written submissions Mr Daawar suggested that it was ‘unreasonable’ for the Delegate not to have considered the duration of time between the UK refusal and the Australian application when assessing s 5(1)(a)(iii), I accept the Minister’s submission that this contention was misconceived. Section 5(1)(a) contained no time limitation.
In written submissions, Mr Daawar emphasised that although the applicant did not disclose his previous application in the UK in his ‘paper application’, he had admitted this at interview. However, this was considered by the Delegate. The Delegate also observed that disclosure had only occurred after (a) the applicant had claimed at interview not to have travelled outside Afghanistan beyond Pakistan before coming to Australia, and (b) the Delegate had put to the applicant information they had otherwise received regarding the applicant’s travel to the UK. The Delegate had regard to the applicant’s explanations for why he had not previously disclosed this. The Delegate found those explanations to be unconvincing, having found the applicant’s evidence to be inconsistent and evasive, and noting that no corroborative evidence had been provided regarding the applicant’s claim that his ‘brain [was] not working’. The applicant has not demonstrated how or why this reasoning process was closed to the Delegate.
To the extent that the applicant contended generally that the Delegate did not ‘put sufficient weight’ upon his evidence, misunderstood the situation in Afghanistan, or was otherwise incorrect, this sought to engage the Court in impermissible merits review. The Court has no jurisdiction to undertake such a review.
In written submissions, Mr Daawar additionally referred to the Delegate’s concerns that whilst the applicant had indicated that he believed he had obtained his taskera in Afghanistan around 2007, he was in the UK at that time. Mr Daawar suggested that the Delegate should have noted the date of the document, which was said to have stated that it was issued in 2003. However, the document before the Delegate was untranslated. The Delegate noted that the applicant’s representative had stated at interview his understanding that a translated version had been provided, and offered to provide a copy if required. No such document was located in the Department’s records, and no further copy had been provided. Mr Daawar suggested that this should have been sought by the Delegate. However, I accept Ms Nyabally’s submission that it was open to the Delegate not to have sought this in circumstances where they nonetheless generally accepted the applicant’s identity details that were of material relevance to the decision. Whilst the Delegate considered the date of birth recorded in the UK to be the more likely one, they do not appear to have drawn any adverse inference in this regard, considering information that ‘many Afghans do not know their exact dates of birth’.
At the hearing, Mr Daawar (wisely) informed the Court that the applicant did not press any contention of bias. This contention was undeveloped, and incapable of meeting the high thresholds applicable to such grounds.
conclusion
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 12 December 2022
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