DRY16 v Minister for Immigration

[2019] FCCA 3484

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRY16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3484

Catchwords:
MIGRATION – Administrative Appeals Tribunal – cancellation of a Subclass 866 (Protection) visa – whether necessary to grant an extension of time under s.477 of the Migration Act 1958 (Cth) – whether the Tribunal had a duty to obtain an Independent Protection Assessment recommendation and audio record of interview – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal based its findings on a matter not particularised within the s 107 notice – no jurisdictional error made out – further amended application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.36
Electronic Transmissions Act 1999 (Cth)
Federal Circuit Court Rules 2001 (Cth), r.2.05
Migration Act 1958 (Cth), ss.5, 5AAA, 101, 107, 109, 438, 476, 477

Applicant: DRY16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3425 of 2016

Judgment of: Judge Street

Hearing date: 2 December 2019

Date of Last Submission: 2 December 2019

Delivered at: Sydney

Delivered on: 2 December 2019

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law Firm

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Leave is granted to the applicant to rely upon the further amended application filed on 13 November 2019.

3. Leave is granted to the applicant to rely upon the proposed ground which is marked Exhibit A and the Court dispenses with the need for the filing of a second further amended application.

4. The further amended application is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER 2 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3425 of 2016

DRY16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

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 Administrative Appeals Tribunal (“the Tribunal”) made on 28 October 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) to cancel the applicant’s Subclass 866 (Protection) visa (“Protection visa”).

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. On 22 October 2011, the applicant arrived in Australia as an unauthorised maritime arrival. The applicant attended a Biodata interview on 22 October 2011 and an Entry interview on 16 November 2011. On 15 January 2012, the applicant provided a statutory declaration identifying his claims.

3. In January 2012, the applicant lodged a request for protection obligations determination. The applicant was interviewed in that regard on 24 January 2012. On 28 February 2012, the Department of Immigration and Citizenship (“the Department”) issued a notification of protection obligations determination outcome which concluded that the applicant did not meet the requirements.

4. The applicant applied for an automatic review and the matter was referred to an Independent Protection Assessor for further consideration. On 14 June 2012, the applicant attended an interview with the Independent Protection Assessor. On 7 August 2012, the Independent Protection Assessor made a recommendation that the applicant meets the requirements for a protection visa.

5. On 17 September 2012, following the lifting of the bar notified to the applicant on 7 September 2012, the applicant lodged an application for a Protection visa. On 24 September 2012, the applicant was granted a Protection visa.

6. Between 15 January and 20 June 2013, the applicant returned to Iraq to visit his family. Between 9 February and 24 April 2015, the applicant returned to Iraq to visit his family.

7. On 30 December 2015, the Department sent the applicant a notice of intention to consider cancellation of the applicant’s Protection visa (“the s 107 notice”).

8. On 30 March 2016, in the context of that application, the Department sent the applicant a letter identifying that it was undertaking an International Treaty Obligations Assessment (“ITOA”) assessment. On 18 April 2016, the ITOA assessment was finalised with a finding that non-refoulement obligations are not engaged in the applicant’s case.

9. On 17 June 2016, the Delegate made the decision cancelling the applicant’s Protection visa, having found that the non-compliance in the s 107 notice was made out and that it was an appropriate matter for the discretionary exercise of the power to cancel the applicant’s Protection visa.

10. On 17 June 2016, the applicant applied to the Tribunal for review of the Delegate’s decision.

11. On 2 August 2016, the Tribunal wrote to the applicant identifying that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone and invited the applicant to attend a hearing on 30 August 2016. The hearing date was rescheduled to suit the applicant and the applicant was sent a further letter dated 25 August 2016 inviting the applicant to attend a hearing on 23 September 2016. The applicant appeared on that date to give evidence and present arguments.

12. Following the hearing, further submissions were provided by the applicant to the Tribunal on 30 September 2016. Those submissions were referred to in the Tribunal’s reasons.

13. The Tribunal in its reasons identified the background to the application for the review. The Tribunal correctly identified the statutory provisions in respect of the power to cancel the Protection visa under s 109 of the Act and the requirements of a notice under s 107 of the Act.

14. The Tribunal considered whether there was non-compliance in the way described in the s 107 notice. The Tribunal referred to the applicant’s claimed fear that, if he returned to Iraq at the time he was granted a Protection visa, he would be abducted, abused, tortured and/or killed by anti-US insurgents and/or the Al Hara movement and that he feared he would be mistreated or harmed for his membership of a particular social group, namely, employees of foreign companies contracted to the US-led multi-national forces.

15. The applicant’s Protection visa application answered numerous questions with “Please see statement included herewith”. The reference to “statement” was to a statutory declaration. That statutory declaration asserted that the applicant had been a truck driver for the Afaq Umm Qasr Marine Services Co, identified an alleged incident arising from that work and referred to an alleged threat letter received by the applicant.

16. The Tribunal identified that, in support of the Protection visa application, the applicant provided copies of a driver’s identification card titled “AFAO Um Qaser Marine Services” with the applicant’s name, badge number, photograph and also a warning letter and certain other documents.

17. The Tribunal referred to the outcome of the Delegate’s decision. The Tribunal referred to the submissions which were advanced by the applicant’s representative.

18. The Tribunal identified that there was a s 438 certificate which was raised with the applicant in the course of the hearing and which was found by the Tribunal not to be relevant. The s 438 certificate and the documents the subject of the certificate did not result in any practical injustice in the conduct of the review.

19. The Tribunal identified the information provided by the applicant in relation to his claims. The Tribunal referred further in detail to the alleged threat letter.

20. The Tribunal expressly referred to the submissions about the applicant’s limited memory. The Tribunal noted that the applicant had not provided any corroborative evidence from the psychologist that the applicant allegedly saw. The Tribunal was prepared to accept that the applicant has had difficulty sleeping.

21. The Tribunal was not satisfied that any sleeping or memory difficulties that the applicant may suffer from account for the evidentiary concerns identified by the Tribunal in respect of the applicant’s evidence, which the Tribunal found to be vague, lacking relevant details and inconsistent with other claims. The Tribunal found that this raised issues of veracity in relation to the applicant’s claims.

22. The Tribunal was satisfied that the lack of details and incoherence in the applicant’s evidence suggested a fabrication. The Tribunal found that the applicant had fabricated his claims to enhance his prospects of being granted a Protection visa. The Tribunal referred to the documents provided by the applicant and found that they did not overcome the Tribunal’s concerns. Accordingly, the Tribunal gave those documents no weight.

23. The Tribunal referred to having discussed with the applicant his trips to Iraq. The applicant confirmed that he went to Iraq in January 2013 and returned to Australia in June 2013 and that he went to Iraq for a second time in February 2015.

24. The Tribunal referred to the applicant’s alleged good reasons for returning to Iraq. The Tribunal was not satisfied that those reasons explained the applicant’s return to Iraq or that they mean the applicant feared harm but had to go to Iraq.

25. The Tribunal was satisfied that the fact that the applicant returned to Iraq for substantial periods of time on two occasions supports the finding that the applicant fabricated his protection claims and that the applicant returning to Iraq raised serious doubts about his claimed fear of harm. The Tribunal identified the illogicality of a person claiming to fear harm returning for such substantial periods.

26. In these circumstances, the Tribunal found that the applicant had provided incorrect information in the manner described in the s 107 notice and found that there was non-compliance with s 101(b) of the Act by the applicant in a way described in the s 107 notice.

27. Section 101(b) of the Act refers to the giving, relevantly in the present case, of incorrect answers. Those incorrect answers referred to the statutory declaration, as identified in the Tribunal’s reasons, advancing the applicant’s claimed fear of harm.

28. The Tribunal then considered the issue, in light of the finding of non-compliance in the way identified in the s 107 notice, whether the s 107 notice should be cancelled under s 109(1) of the Act. The Tribunal correctly identified the discretionary considerations in that regard.

29. In the course of the Tribunal’s reasoning in that regard, the Tribunal referred to the driver identification card and the threat letter. The Tribunal found that those were bogus documents within the meaning of s 5(1)(b) of the Act. The Tribunal gave that matter significant weight in the context of the discretion.

30. The Tribunal took into account the applicant’s family circumstances and other considerations, identified under headings by the Tribunal in its reasons.

31. The Tribunal concluded that there is not a real chance or real risk of the applicant facing serious or significant harm as contemplated by the Act on the basis of being a returnee from Australia.

32. The Tribunal was not satisfied that the applicant has any profile of any adverse interest to any group or the Iraqi authorities that would mean that there was a real chance or a real risk that the applicant would face harm as contemplated by the Act. In these circumstances, the Tribunal was satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution for any one or more of the 1951 Refugee Convention reasons.

33. The Tribunal referred to the ITOA assessment that Australia does not have a non-refoulement obligation to the applicant.

34. The Tribunal considered the applicant’s claims singularly and cumulatively. The Tribunal was not satisfied that the applicant faced a real chance of persecution or there was a real chance he would suffer serious harm for any other claimed reason. The Tribunal found that there were not substantial grounds for believing that, as necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk the applicant would suffer significant harm.

35. In these circumstances, the Tribunal decided that there was non-compliance by the applicant in a way described in the s 107 notice and that, having regard to all the relevant circumstances including the PAM3 guidelines, the applicant’s Protection visa should be cancelled.

36. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. The proceedings in this Court were commenced by the filing electronically on 2 December 2016 at 4:59:32 pm AEDT of the application. Mr Kaplan of the counsel on behalf of the first respondent correctly drew the Court’s attention to r 2.05(3) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) that identifies that, if a document is received by the Registry after 4:30 pm on a day the Registry is open, it is taken to have been received on the next business day.

2. The Rules will not, however, govern the construction of s 477 of the Act. There is a reference to “day” in the Acts Interpretation Act 1901 (Cth) which, relevantly, is in s 36 of that Act, and there is no relevant provision in the Electronic Transmissions Act 1999 (Cth).

3. The reference in s 477 of the Act to the 35-day period does not refer to a requirement that the application is filed in accordance with the Rules. It is apparent as a matter of fact that the application was received by the Court electronically within the 35-day period.

4. In these circumstances, there is no requirement for an extension of time under s 477 of the Act. The Court notes that, had there been such a requirement, the Court would have extended time under s 477 of the Act.

Grounds of the Further Amended Application

1. Mr Zipser of counsel on behalf of the applicant was granted leave to rely upon a further amended application, the grounds of which are as follows:

   1. A central issue for the Administrative Appeals Tribunal (“the Tribunal”) was whether the applicant’s claims in his protection visa application concerning events he experienced in Iraq in 2011 were true. The applicant gave evidence concerning the claims at an interview with an Independent Protection Assessor on 14 June 2012. Parts of the applicant’s answers given at the interview were recorded in the assessor’s decision dated 7 August 2012 which was part of the materials before the Tribunal. The Tribunal failed to give proper and genuine consideration to this evidence in a manner which involved jurisdictional error.

   2. It is well-accepted that a person’s recollection of a particular event or set of events diminishes as time passes (“the Memory-Time Deterioration Principle”). The Tribunal gave no weight to the Memory-Time Deterioration Principle. In circumstances where the applicant gave a detailed account of relevant events at interviews in 2012 and a poor account of the same events at an interview in 2016, the Memory-Time Deterioration Principle is important. The Tribunal’s failure to take this principle into account involves jurisdictional error.

   3. The Tribunal made a finding in its decision at [38] that a driver identification card and warning/threat letter contained incorrect information and were bogus documents. The Tribunal then gave this matter “significant weight”. But the notice of intention to cancel letter sent by the Department to the applicant dated 30 December 2015 (“the NOICC”) did not state or put the applicant on notice that the decision-maker was concerned that the driver identification card or warning/threat letter may contain incorrect information or be bogus documents. In summary, the Tribunal based its decision on a matter not particularized in the NOICC. This is a jurisdictional error.

Grounds 1 and 2

1. As a result of evidence adduced by the Minister in respect of the first and second grounds, Mr Zipser acknowledged that neither ground could succeed because the relevant document, which was at page 106 of the Court Book, and the interview the subject of that Independent Protection Assessment dated 7 August 2012, were not before the Tribunal.

2. It was a concession by Mr Zipser that no jurisdictional errors were made out by grounds 1 and 2 of the further amended application.

New Ground of Exhibit A

1. Mr Zipser was, however, granted leave to rely upon a new ground which was identified in Exhibit A as follows:

   The Tribunal ought to have obtained from the Department of Immigration (“the Department”), or if the Department did not have the documents from the body that carried out Independent Protection Assessments:

   (a) the Independent Protection Assessment recommendation concerning the applicant dated 7 August 2012; and

   (b) the audio record of interview between the applicant and the Independent protection Assessor (“the Assessor”) on 14 June 2012.

   Once the Tribunal obtained one or both of the above documents, the Tribunal ought to have had regard to the evidence of the applicant which the Assessor relied in recommending that the applicant be recognised as a person to whom Australia has protection obligations. The Tribunal’s failure to take the above steps involved a failure to inquire about a critical matter, the existence of which is easily ascertained as discussed in Minister v SZIAI (2009) 259 ALR 429.

2. Mr Zipser contended that the Independent Protection Assessment, which gave rise to the applicant being granted a Protection visa in the first place, and the fact that there must have been an interview, were easily ascertainable documents by the Tribunal. The Court accepts that part of Mr Zipser’s submission.

3. The difficulty arises as to whether or not the existence of that Independent Protection Assessment or the interview the subject of that Independent Protection Assessment identifies any easily ascertainable material fact. There is no doubt that the recommendation obviously accepted the applicant’s claims that the applicant advanced in the interview.

4. This, however, is a case where the Tribunal wrote to the applicant, explaining that it was unable to make a final decision on the information currently before it in respect of the cancellation and the exercise of discretion and invited the applicant to attend a hearing and, indeed, rescheduled the hearing for the applicant’s attendance and the applicant attended to give evidence and present arguments and provided further submissions.

5. The fact that the applicant had earlier successfully obtained a report identifying that the applicant should be granted a protection visa in 2012 and that the applicant provided information at an interview in June 2012 supporting his claims does not identify any easily ascertainable or critical fact in respect of the s 107 notice the subject of the determination by the Tribunal.

6. Mr Zipser endeavoured to argue that Independent Protection Assessment interview would have provided more reliable information in respect of the applicant’s claims. In that regard, as Mr Kaplan pointed out, the Tribunal received a submission in relation to the applicant’s explanation for memory problems and did not accept the same.

7. This does not identify that the Independent Protection Assessment or the interview identifies any critical fact. The information is not of a kind that can be said to have been critical or of a kind that gave rise to a duty upon the Tribunal to make enquiry, as alleged in the proposed new ground.

8. The Court accepts that the duty to enquire is, on one view, the reverse side of the same coin of legal unreasonableness. Looking at it through that lens, in circumstances where the applicant was represented, had an opportunity to put on submissions, was told that there was insufficient information to make a favourable decision and had an opportunity to present further information to the Tribunal, the absence of any step by the Tribunal to obtain the Independent Protection Assessment recommendation or the record of interview in respect of that assessor cannot be said to lack an evident and intelligent justification.

1. Further, in the circumstances of the present case, at the time of the deliberation in the process for cancellation, s 5AAA of the Act had application and provides, relevantly, that it was for the applicant to provide sufficient evidence to establish his claim in relation to protection. Albeit a cancellation decision, the substance of the applicant’s claim in relation to the discretion was advancing such a claim. Section 5AAA of the Act provides a further reason which is an evident and intelligible justification for the absence of any step by the Tribunal to obtain the Independent Protection Assessment recommendation or the record of interview for the assessor.

2. Accordingly, the Court finds there is no duty upon the Tribunal to enquire. The circumstances of the present case did not require the Tribunal to obtain the Independent Protection Assessment recommendation or the interview record by the assessor.

3. No jurisdictional error as alleged in the new ground the subject of Exhibit A is made out.

Ground 3

1. Mr Zipser also relied upon a third ground that was in the further amended application. Mr Zipser took the Court to the Tribunal’s reasons referring the driver’s licence and threat letter being bogus documents. Mr Zipser contended that these were not a non-compliance in the manner described in the s 107 notice.

2. The evaluation of the driver’s licence and the threat letter as being bogus documents was in the context of the consideration by the Tribunal on the discretion to cancel it. The Tribunal, in its reasons leading up to paragraph 33, at least found that there was non-compliance in the way described in the s 107 notice. The reasoning in paragraph 38 of the Tribunal’s reasons was not further reasoning in respect of non-compliance with the s 107 notice but rather further reasoning in respect of the adverse exercise of the discretion.

3. In these circumstances, the finding of non-compliance was not based on a matter not particularised within the s 107 notice. Rather, the Tribunal was referring to a finding in respect of the applicant providing bogus documents in the context of the exercise of the discretion as to whether the Protection visa should be cancelled.

4. The Court notes that the Tribunal identified the documents provided by the applicant in support of the Protection visa in the context of the s 107 notice and identified giving those documents no weight. In light of that finding, there is no proper basis to find that the reasoning in paragraph 38 of the Tribunal’s reasons concerning the bogus documents in any way was a step in the finding of the non-compliance under s 107 of the Act in the way described in the s 107 notice.

5. No jurisdictional error as alleged in ground 3 of the further amended applications is made out.

6. Accordingly, the further amended application is dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 2 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  26 February 2020