DTK17 v Minister for Immigration
[2018] FCCA 746
•27 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTK17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 746 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – whether the Authority misapplied s.473DE – whether the Authority failed to consider important information – meaning of “before the Minister” – no jurisdictional error made out – amended application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth) s.25B Migration Act 1958 (Cth), ss.5H, 36, 54, 55, 56, 57, 58, 59, 62, 63, 65, 66, 473BA, 473BB, 473BC, 473BD, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 476 |
| Cases cited: Bushell v Secretary of State for the Environment [1981] AC 75 Minister for Aboriginal Affairs v Peko‑WallsendLtd [1986] HCA 40 |
| Applicant: | DTK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2633 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 27 March 2018 |
| Date of Last Submission: | 27 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr David Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Ms Joanna Davidson |
| Solicitors for the Respondents: | MinterEllison |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2633 of 2017
| DTK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 21 July 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia by boat on 6 December 2012 and on 26 September 2016 applied for a protection visa.
The applicant claimed to fear harm in Afghanistan on the basis of his Shia religion and Hazara ethnicity. The applicant claimed, while he lived in Afghanistan, the Taliban had repeatedly attacked his village and that on one occasion had shot him. The applicant also claimed that he feared that the Taliban would be aware that he had applied for protection because of the disclosure of his personal information by the Department in 2014.
On 20 January 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The delegate, in the course of the delegate’s reasons referred to various country information including DFAT country information reports and an Issues Paper: Afghanistan: Returnees and Relocation dated 31 January 2014.
The Authority’s decision
On 27 January 2017, the Authority wrote to the applicant identifying that the application for a protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.
Information before the Authority
The applicant took advantage of that opportunity by providing to the Authority submissions and information under cover of a letter dated 14 March 2017. Part of that submission included a reference in the context of submissions in relation to new information to the vulnerability of the Hazara population being exacerbated by the small number of Hazaras remaining in the district after decades of persecution and that the Department of Immigration and Border Protection’s July 2014 Hazaras Issues Paper stated that “Uruzgan is a mainly Pashtun Province … Today only Gizab and Khas Uruzgan districts have Hazara minorities – about 25% in each case,” following which there was a footnote reference 14.
The footnote reference 14 relevantly provided: Department of Immigration and Border Protection (Cth), Afghanistan: Hazaras Issues Paper (July 2014) 34 - 37. This report was written and prepared by the Department of Immigration and Border Protection and as such was before the delegate at the time of decision. This report should not be considered “new information”.
The Authority in its reasons referred to the submissions and in particular, referred to the 2014 Department of Immigration and Border Protection Issues Paper. The Authority did not accept the submission that because this was a publication of the Department of Immigration and Border Protection that it should be considered to have been before the delegate at the time of decision. The Authority observed that the paper was not in the referred material which was a reference to the material referred under s 473CB of the Act. The Authority also expressed the view that the Authority was not satisfied the delegate considered that report relevant or had regard to it.
The Authority then referred to having considered the representative’s submissions about this publication and was not satisfied that the country information included in the submission that predates the delegate’s decision was not and could not have been provided to the Minister before the delegate’s decision was made. The Authority was also not satisfied it was credible personal information that was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. It was in those circumstances the Authority expressly identified not having regard to the information in the decision.
Part of the information in the Afghanistan Hazaras Issues Paper issued on 18 July 2014 included at page 10:
There is conflicting information on the broader security situation in Kabul. In January 2013 ANSO reported that attacks by insurgents in Kabul province (a much larger area than Kabul city where almost all the Hazaras live) have declined steeply steeply since 2010. Reflecting the decline in violence, the Danish Immigration Service report from March 2012 cites advice from NGOs based in Kabul that describe security in the capital as stable and under control. Other sources suggest that the general security situation in Kabul is extremely dangerous with a ‘very high threat of terrorist attack’. Although the reports note a high level of attacks in and around Kabul, most target government and international personnel and no reports suggest that Hazaras and Shias are being disproportionately targeted by these attacks.
Assessment of the refugee convention
In the course of the Authority’s reasons, the Authority accepted that beyond the Islamic State, other insurgent groups, including the Taliban, are highly active and have the capability to orchestrate serious attacks in Kabul, but based on the information referred to by the Authority, the Authority was not satisfied those groups are seeking to target Hazara Shias for reasons of their ethnicity and/or religion in Kabul.
The Authority found there to be no chance or risk of the applicant being harmed for reasons of the applicant’s religion and ethnicity in areas outside of Khas Uruzgan and was satisfied that the real chance of persecution does not relate to all areas of the receiving country. The Authority found there was not a real chance of the applicant being seriously harmed in Kabul for reasons of his ethnicity or religion by the Taliban, Islamic State, or any other insurgent group, or any other person or group active in the area and found the applicant does not have a well‑founded fear of persecution for these reasons.
The Authority found there was not a real chance of the applicant being seriously harmed on the basis of his religion or ethnicity, as a returnee from the west, as a person who sought asylum in Australia, in generalised violence, or on the basis of any other actual or imputed opinion or profile. The Authority found any remote chance of harm the applicant may face in generalised violence would not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion.
The Authority accepted that was there was a real chance of the applicant being seriously harmed if he returns to Khas Uruzgan as a result of his past history with the Taliban, and in the context of any potential land dispute, however the Authority was satisfied the risks to the applicant are localised to his home area and that the real chance of persecution does not relate to all the areas of the receiving country. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and the applicant failed to meet the criteria in s 36(2)(a) of the Act.
Assessment of complementary protection criteria
The Authority referred to the issue of relocation in relation to complementary protection and identified a number of factual errors in the assessment made by the delegate. The Authority found, however, the applicant had family in Kabul and did not accept the applicant’s brother was dead or missing and found he is alive and likely living in Kabul. The Authority was satisfied the applicant’s personal characteristics, and language and employment skillsets are factors in favour of him being able to successfully relocate to Kabul. The Authority was satisfied that he would be able to find work, accommodation and access to services and took that into account in finding that it was reasonable for the applicant to relocate to Kabul.
The Authority was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Afghanistan there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before the Court
Mr Hughes, counsel for the applicant, confirmed that ground 1 was abandoned.
The ground of the amended application is as follows:
2. The IAA misapplied s 473DE of the Act and failed to consider important information relied upon by the applicant.
Particulars
a. The applicant relied upon a report created by the First Respondent’s department dated July 2014 (see submissions to IAA dated 14 March 2017 footnote 14) (Departmental Report).
b. The Departmental Report was constructively before the First Respondent’s delegate.
c. By reason of (b), the Departmental Report was not “new information” within the meaning of s 473DC(1), and so was not information which the IAA was prevented from considering by reason of s 473DD or otherwise.
d. In deciding whether to consider the Departmental Report, the IAA held that it court not regard the Departmental Report because it was not satisfied that the delegate considered the report to be relevant or had regard to it. This test had no foundation in the Act and was the wrong test.
e. The IAA erred in refusing to have regard to the Departmental Report: at [6].
Ground 2
In relation to ground 2, Mr Hughes of counsel took the Court to the provisions in Part 7AA of the Act and also to the authorities that had identified a breadth of scope to the content of the material found to be in the possession of the Minister in relation to the Minister exercising powers under the Act. Mr Hughes in particular, relied on the Minister for Aboriginal Affairs v Peko‑WallsendLtd [1986] HCA 40 (“Peko-Wallsend Ltd”), relevantly at [32], and also [66] and [45]. Emphasis was also given to the quote by Lord Diplock in Bushell v Secretary of State for the Environment [1981] AC 75 at [95] to the effect that:
The collective knowledge, technical as well as factual, of the civil servants in the Department and their collective expertise is to be treated as the Minister’s own knowledge, his own expertise.
Brennan J as he then was, observed in Peko-Wallsend Ltd at [28] that the Minister cannot be regarded in his exercise of the power there under consideration as unaware of information possessed by his Department.
Mason J as he then was, in Peko-Wallsend Ltd at [20] referred to it being:
A strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.
Mason J in that regard said at [20]:
In one sense this conclusion may be seen as an application of the general principle that an administrative decision maker is required to make his decision on the basis of material available to him at the time the decision is made.
Mason J however continued at [20]:
But that principle is itself a reflection of a fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision maker.
The passage referred to by Gibbs CJ in Peko‑Wallsend Ltd highlighted by Mr Hughes was:
The material in the possession of the department must clearly be treated as being in the possession of the Minister.
Section 65 of the Act provides a delegate with power whereby the Minister may grant a visa if satisfied of certain criteria and that if not so satisfied is to refuse to grant the visa.
Section 66(2)(c) of the Act expressly requires written reasons to be given (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of a visa. Relevantly in the circumstances of the present case, there is a right of review for a fast track reviewable decision under Part 7AA of the Act.
A decision made under s 65 of the Act is one in respect of which subdivision AB of the Act provides a code of procedure for dealing fairly, efficiently and quickly with visa applications.
Section 54 of the Act imposes a mandatory obligation on the Minister in deciding whether to grant or refuse to grant a visa, to have regard to all the information in the application.
Section 55 of the Act permits an applicant to give the Minister additional relevant information and the Minister must have regard to that information in making a decision.
Under s 56 of the Act, in considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant, and provides that if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa. Under s 56 of the Act, the Minister is also given a power to invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
Section 57 of the Act identifies relevant information, carving out under s 57(1)(b) of the Act information that is not specifically about the applicant or another person and is not just about a class of persons of which the applicant or another person is a member. This carves out relevant information, country information and accordingly country information is not one that requires the Minister to take the steps identified in s 57(2) of the Act, and s 58 of the Act provides the meanings by which the invitation must be made.
Section 59 of the Act imposes an obligation on an applicant to make every reasonable effort to attend an interview including a power to obtain information from the applicant by telephone or in any other way. In s 62 of the Act, as a consequence where the applicant, when invited to give additional information, does not give the information, this permits the making of a decision without taking any action to obtain additional information and the same consequence in relation to any invitation to comment.
Section 63 of the Act provides when a decision about a visa may be made and that the Minister may grant or refuse to grant a visa at any time after the application has been made. That provision provides for the Minister not to refuse to grant a visa until certain events happen.
Part 7AA provides a simplified outline of the part in s 473BA of the Act, and certain definitions in s 473BB of the Act. Section 473BC of the Act permits the Minister to identify fast track decisions and the certificate in that regard under s 473BD of the Act when it is a conclusive certificate to be issued by the Minister.
Section 473CA of the Act provides that:
The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.
Of importance for the argument by Mr Hughes in the present case is s 473CB of the Act, which relevantly provides as follows:
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.
Mr Hughes emphasised that the power under s 473CB(1)(c) of the Act does not reflect the same content as found in s 473DC(1)(a) of the Act. The work done by s 473CB(1)(c) of the Act means that the Secretary may include or exclude country information in accordance with the consideration as to what the Secretary considers relevant to the review. The scope of the power is not limited to country information in determining what the Secretary considers to be relevant or not relevant to the review.
Section 473CC of the Act imposes the obligation on the Authority to review the fast track decision with either an outcome of affirming the decision or remitting the matter. Section 473DA of the Act, of Division 3 subdivision A, identifies:
This Division, together with section 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
Section 473DA(2) of the Act provides that:
To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Section 473DB of the Act requires the Authority to review the decision by considering the review material, which is defined in s 473CB of the Act, and would include what the Secretary considers relevant to the review as referred to above, and that that function by the Authority is to take place without accepting or requesting new information and without interviewing the referred applicant, subject to Part 7AA of the Act.
Section 473DC of the Act provides as follows:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give newinformation:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Mr Hughes of counsel’s argument in the present case is that the Afghanistan: Hazaras Issues Paper, which has a Commonwealth seal under which appears Australian Government Department of Immigration and Citizenship and is dated 18 July 2014, is a document that was in the possession of the Department and, accordingly, was before the Minister when the Minister made the decision under s 65 of the Act.
Mr Hughes also submitted that the purpose of the document is to provide an overview of the Hazara Shia ethnic minority in Afghanistan, and that the paper provides information on living conditions and security for Hazaras in the capital, Kabul, and in the central provinces known as Hazarajat, and refers to issues relating to returnees and relocation by the Afghanistan returns and relocations issues.
Section 473DD of the Act provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any newinformation given, or proposed to be given, to the Authority by the referred applicant, the new 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.
It is apparent in the present case that the Authority treated the Afghanistan: Hazaras Issues Paper as not having been before the Minister and treated the same as new information, and found it did not meet the two limbs in relation to s 473DD of the Act. The Court infers that the Afghanistan: Hazaras Issues Paper was not provided to the Authority under s 473CB of the Act.
Section 473DE of the Act provides as follows:
(1) The Immigration Assessment Authority must, in relation to a fast track reviewabledecision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the newinformation:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
In the present case, the issue of construction in the context of the scheme of the Act arises as to the meaning of “material that was before the Minister when the Minister made the decision under s 65 of the Act”, as referred to in s 473DA(2) of the Act. The same concept addressed in s 473DC(1)(a) of the Act.
Mr Hughes of counsel submitted that records of the Department must be treated as being before the Minister, consistent with the principles identified in Peko Wallsend Ltd and the other authorities referred to in his submissions. As the observation by the learned Mason J in that case identifies at [20], the concept of what information the Minister has actual constructive knowledge of turns on the subject matter, scope and purpose of the statute.
It is apparent from s 66 of the Act, whilst there may be reasons given that refer to evidence or other materials upon which findings were based, consistent with the application of s 25B of the Acts Interpretation Act 1901 (Cth) in respect of the obligation to give reasons, under s 66 of the Act there may be other material before the decision maker not referred to in the reasons. Equally, it is apparent that there may be material that was before the Minister when the Minister made the decision under s 65 of the Act that has not been found by the Secretary to be considered to be relevant to the review, and has not been included in the review material under s 473CB of the Act.
The scheme of the decision making power under s 65 of the Act is one in which the applicant has the benefit of an obligation in s 57 of the Act, where the Minister is required to give certain particulars to the applicant of the relevant information in a way in which the Minister considers appropriate under the circumstances and to ensure, as far as reasonably practical, the applicant understands why it is relevant to the consideration of the application and invite the applicant to comment on it.
A similar scheme of obligation arises under s 473DE of the Act. Similar to the decision making process under s 65 of the Act, there is a carve out of what is generally called country information by s 473DE(3)(a) of the Act. Mr Hughes of counsel identified the document Afghanistan: Hazaras Issues Paper in the present case as being country information, which would not enliven or engage the obligation under s 57 and s 58 of the Act unless the requirements of procedural fairness in the particular case were found to require otherwise. There is no such suggestion in the present case.
Nonetheless, the breadth of the meaning of the content of what is before the Minister was accepted by Mr Hughes as limiting, then, the obligation that might arise under s 473DE of the Act or, for that matter, under s 57 or s 58 of the Act. The words “before the Minister”, in my opinion, should be given its plain ordinary and natural meaning in the context of the criteria when the Minister made the decision under s 65 of the Act. In my opinion, its plain ordinary meaning is a document or information that is physically before the Minister, not one in respect of which the Minister may have constructive knowledge because of the breadth of material held by the Department. Nor does “before the Minister” mean in the Minister’s control. Further, construction that includes the breadth of material held by the Department would, in my opinion, circumscribe the obligation under the scheme as identified under s 473DE of the Act and in relation to s 57 and s 58 of the Act. The subject matter, scope and purpose of the statute and the text of Part 7AA of the Act do not support a meaning of “before the Minister” that includes constructively before the Minister.
Mr Hughes of counsel identified that there may be circumstances, for example when a submission has been overlooked and error has been made in the assessment under s 65 of the Act by failing to take into account a submission that was made prior to the making of the decision. That obligation does not in my opinion, arise from the breadth of meaning of being before the Minister as extending to constructive information. Rather, that applies by reason of obligations of procedural fairness. I reject the submission that the Afghanistan: Hazaras Issues Paper was constructively before the Minister.
I find that the Afghanistan: Hazaras Issues Paper in the present case was correctly identified by the Authority as not being before the Minister when the decision was made under s 65 of the Act. Accordingly, the Authority was correct to assess the new information in relation to the requirements for both limbs under s 473DD of the Act. I do not regard the observation by the Authority in paragraph 6 of its reasons, as meaning that the Authority misunderstood or misconstrued s 473DC of the Act or s 473DD of the Act.
The observations about whether the delegate considered the document relevant or had regard to it was a comment that did not deflect the Authority from the correct application of the provisions in light of Authority’s reasons as a whole. The Authority correctly considered and applied s 473DC of the Act and s 473DD of the Act. No jurisdictional error as alleged in ground 2 is made out.
Accordingly, the amended application is dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 4 May 2018
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