DQX16 v Minister for Immigration

[2018] FCCA 1915

[FEDERAL CIRCUIT COURT OF AUSTRALIA

DQX16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1915

Catchwords:
MIGRATION – Application for protection visa – review of decision of Immigration Assessment Authority – whether the Authority’s decision was “made” within the meaning of s.473CA and s.473CB of the Migration Act 1958 (Cth) – whether the Authority had no jurisdiction to review the delegate’s decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 46A, 47, 65, 66, 67, 473CA, 473CB, sub-divs.AA, AC of div.3 of pt.2, pt.7AA

Applicant: DQX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3377 of 2016

Judgment of: Judge Smith

Hearing date: 10 April 2018

Date of Last Submission: 10 April 2018

Delivered at: Sydney

Delivered on: 7 August 2018

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Counsel for the First Respondent: Mr B Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3377 of 2016

DQX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 27 October 2016.  The Authority affirmed a decision of a delegate of the Minister of Immigration to refuse to grant the applicant a protection visa.

2. The applicant relies on two grounds in his application. Both of them are concerned with whether the operation of pt.7AA of the Migration Act 1958 (Cth) is conditional upon the making of a decision by a delegate of the Minister and, in particular, when that decision can be said to have been made. Given the nature of those grounds, it is only necessary to set out a brief summary of the factual background.

Background

1. The applicant is a citizen of Iraq and a Shia Muslim.  He arrived in Australia by boat on 23 August 2012 as an unauthorised maritime arrival.

2. On 17 September 2015, the applicant was advised by the Department of Immigration that the Minister had exercised his power under s.46A of the Act and invited him to apply for a protection visa. On 3 December 2015, the applicant made such an application for a temporary protection visa on the basis of the following claims.

3. The applicant is a Shia Muslim born in Basra.  In 2004, at the age of 16, he joined a professional soccer team who played in Basra.  In 2009 the applicant commenced work as a cook for a private catering company who serviced Army bases for IAF forces.  This work included cooking for approximately 3,000 UK[1] and US[2] soldiers based at Basra.  In 2011 the applicant was promoted to supervisor of the kitchen.

   [1] United Kingdom.

   [2] The United States of America.

4. The Mahdi Army[3] and Al Qaeda would attack the base on a regular basis.  The applicant started living on the base during 2011 due to the deterioration in the security situation as it was too dangerous to travel on and off the base.  The applicant’s employment was secret but became known to the militias due to his soccer profile in the local area.

   [3] Also known as Jaysh al-Mahdi (JAM).

5. In 2012, the applicant received an anonymous, threatening telephone call accusing him of spying for the US due to his work at the army base.  He was told that if he did not stop working at the base he would be killed.  Militia groups had started publicly naming people who worked at the army base in 2012 and the applicant’s name appeared on such a list.  The applicant informed his UK and US supervisors who advised him to leave Iraq.  The applicant started, but did not complete, an application for a visa to the United States.  After deciding that Iraq was too dangerous for him to stay there, the applicant left.

6. The applicant fears he will be harmed by militias upon his return to Iraq and that the authorities will be unable to provide him with protection.

7. On 8 September 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The matter was then referred to the Authority under s.473CA of the Act. The precise circumstances of the making of the decision and referral to the Authority will require closer attention later in these reasons.

8. On 21 September 2016, the applicant requested an oral hearing before the Authority.  The applicant did not provide any further submissions to the Authority and on 27 October 2016 the Authority affirmed the decision of the delegate.

Authority’s decision

1. On the basis of evidence provided by the applicant which included a contract, references, employee ID and certificates, the Authority accepted that the applicant had worked as a cook between 2009 and 2012 at a military base in Basra which accommodated UK and US soldiers.

2. The Authority also accepted that the military base in which the applicant had worked may have been subject to attacks by militias. However, by reference to country information, it did not accept that such attacks were as frequent as claimed by the applicant or that the applicant was of interest to, or threatened, by Sunni militias.

3. In relation to the applicant’s claim that he had received telephone threats, the Authority found the applicant’s evidence to be vague and lacking detail. Although it accepted that the applicant “would have been terrified” if he had in fact received threatening calls, it considered in the circumstances that he should have been able to provide more detailed information in response to questions about the claim such as the timing of the threats.

4. The Authority accepted that the applicant had previously attempted to apply for a US visa. However, due to discrepancies between the date of the applicant’s US visa application and the period in which he claimed to have had his name placed on a militia’s list, the Authority did not accept that the applicant’s name was published in a list or that he had come to the attention of militias because he was a well-known soccer player.

5. The Authority also rejected the claims based on the applicant’s religion and his status as a failed asylum seeker.

6. The Authority concluded that the applicant did not satisfy the criterion for the grant of a protection visa in sub-ss.36(2)(a) or (aa) of the Act and so affirmed the decision of the delegate.

Consideration

1. The applicant says that, contrary to the requirement in s.67 of the Act, there was no record made stating the day and time of the making of the delegate’s decision. He argued that, as a consequence, there has been no decision made by the Minister. That, in turn, is said to have had two consequences: first, there was nothing to refer to the Authority for review (s.473CA) and, in the alternative, it was impossible for the Authority to know what to review as the material to be given to it was defined by, amongst other things, the time the decision was made (sub-s.473CB(1)(b)).

2. These arguments fail at the threshold. While the statement of reasons prepared by the delegate pursuant to s.66 of the Act did not state the time when the decision was made, there was a record made of the decision which did. That record complied with s.67. The applicant has not established the matter critical to his arguments and so the application must be dismissed.

3. It is necessary to explain my conclusion in a little more detail, although it is unnecessary to examine the issues that may have arisen if the facts had been different.

4. The statutory scheme for the grant of visas to non-citizens relevantly starts with s.47 in sub-div.AA of div.3 of pt.2 of the Act which requires the Minister to consider a valid application for a visa and provides that this obligation relevantly continues until the Minister grants or refuses to grant the visa.

5. Sub-division AC of div.3 of pt.2 of the Act concerns the grant of visas. Section 65 relevantly provides that, after considering a valid application for a visa, the Minister must refuse to grant the visa if not satisfied that the criteria for the grant of the visa have been satisfied. That is what occurred here.

6. Section 66 provides that “[w]hen the Minister grants or refuses to grant a visa he or she is to notify the applicant of the decision”. Sub-section 66(2) gives further substance to the obligation to notify. It requires essentially, subject to irrelevant exceptions, that written reasons for the decision be given.

7. Here, written reasons were prepared by the delegate and sent to the applicant in accordance with s.66 of the Act. They were contained in a document entitled “Protection Visa Decision Record”. The reasons were dated 8 September 2016. They were signed by the delegate whose position number was also recorded on the document. As the applicant says, this document did not include the time at which the decision was made. However, there was no obligation under s.66 of the Act for the time of the decision to be included in the written reasons or, indeed, anywhere else. That requirement arose in the next section, s.67.

8. Section 67 provides:

   67  Grant and refusal of visa—how and when

   (1)          The following decisions are taken to be made by the Minister causing a record to be made of the decision:

   (a)     a decision to grant a visa;

   (b)     a decision to refuse to grant a visa.

   (2)     The record must state the day and time of its making.

   (3)     The decision is taken to have been made on the day and at the time the record is made.

   (4)     The Minister has no power to vary or revoke the decision after the day and time the record is made.

   (5)     Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).

   (Emphasis in original)

9. The Department of Immigration maintains two databases relevant to the making of decisions to grant or refuse visas. The first is the Integrated Client Services Environment (ICSE). This database contains records relating to matters including the lodgement and processing of protection visa applications. The second system is the Total Records Information Management (TRIM) database. This is where copies of documents are kept.

10. The system followed by delegates when a decision to refuse to grant a visa is made is as follows:

    a)when refusing a visa application, a delegate prepares written reasons in the format of a “Protection Visa Decision Record”, saved into TRIM and printed;

    b)the delegate will then generate the notification of refusal letter through the Department’s Enterprise Correspondence System (ECS). Once the delegate has finalised the letter in ECS, it is automatically saved into TRIM and he or she will print a copy of the letter;

    c)the delegate will then compile the letter, the written reasons for decision and any other relevant documents to be sent to the applicant and place them in a registered post envelope for dispatch;

    d)the delegate will record the refusal decision as an event in ICSE, including the registered post tracking number.

11. Two screenshots of the Department’s ICSE database relating to the applicant’s protection visa application were in evidence. The first screenshot showed the generation of a notification of refusal letter through ECS and finalisation of it on 8 September 2016 at 14:17:28. The second screenshot relevantly showed the following:

    Event:       Refused

    Qualifier:     s36(2) Not Satisfied

    Effect date:    08/09/2016

    Effect Time:   15:08

12. The screenshot also showed that a letter was sent to the applicant in Australia on 8 September 2016 and recorded a registered post reference identifier.

13. On the basis of those facts, I am satisfied that, upon making of the decision to refuse the applicant a protection visa, a record was made of that decision stating the date and time of the making of the decision. The error in the applicant’s argument was to mistake the written reasons for the delegate’s decision prepared under s.66 of the Act for the record made of the decision under s.67 of the Act. In those circumstances, s.67 of the Act was complied with and the issues raised by the applicant do not arise. On any view of the operation of ss.65 and 67, the decision was “made” within the meaning of s.473CA and s.473CB by 13:05 on 8 September 2016. A letter from the Authority to the applicant establishes that the matter was referred to the Authority on 14 September 2016, after the decision was made.

Conclusion

1. For those reasons, the applicant has not established that no decision was made by the delegate or that, as a consequence, the Authority had no jurisdiction to review the delegate’s decision.

2. The application must be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     7 August 2018