DTX17 v Minister for Immigration
[2017] FCCA 3015
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTX17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3015 |
| Catchwords: MIGRATION – Judicial review – Immigration Assessment Authority decision – Pakistani citizen – Shia Muslim religion – Hazara ethnicity – whether failure to consider integer of claim – whether exceptional circumstances for consideration of new material – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt 7AA, Div.3, ss.5, 5J, 36, 46A, 473CA, 473CB, 473CC, 473DA, 473DD, 473GA, 473GB, 474, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), s.2(1), sch.5 it.4 |
| Cases cited: AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826 BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 |
| Applicant: | DTX17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 451 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17 November 2017 |
| Date of Last Submission: | 17 November 2017 |
| Delivered at: | Perth |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 451 of 2017
| DTX17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 22 August 2017 the applicant lodged an application for judicial review (“Judicial Review Application”) under the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Temporary Protection (subclass 785) visa (“TP Visa”). A copy of the IAA Decision dated 21 July 2017 is at Court Book (“CB”) 162-180.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a Pakistani Shia Muslim citizen of Hazara ethnicity, arrived in Australia as an unauthorised maritime arrival on 13 April 2013: CB 104;
b)on 19 January 2016 the Minister, pursuant to s.46A(2) of the Migration Act ‘lifted the bar,’ and invited the applicant to apply for a TP Visa or a Safe Haven Enterprise (subclass 790) visa: CB 19-20;
c)on 26 May 2016 the applicant applied for the TP Visa: CB 25-73;
d)on 19 June 2016 the applicant attended an interview with the Delegate where he claimed refugee status on the following grounds:
i)his religion and ethnicity caused him to fear harm and be targeted by groups such as Lashkari Jangawi, Sepah-e-sahabr & Pastun & Baluych: CB 63 and 105;
ii)on 10 January 2012 the applicant’s house and place of work were destroyed and his brother’s children were injured by two or three explosions: CB 12, 65 and 105;
iii)that he was told by seniors at his office that Quetta, his place of residence, was not safe for him on account of his ethnicity and religion: CB 65 and 105;
iv)that he sat beside dead bodies for seven days but the government did not care about the attacks and were the ones reporting and killing identified Hazara and Shia individuals: CB 12 and 66;
v)that after the explosion the applicant’s work sent him and a co-worker to a farming area approximately 20 minutes’ drive from his office. Men with guns followed and questioned what the applicant and his colleague were doing and asked to see their identification, but left when they were approached by the farmer whose property they were visiting. The farmer told the applicant not to come to the area as there were dangerous groups around: CB 106; and
vi)that he stopped working after this incident because he was scared and the men in his office said he had better not go anywhere else and should leave the country: CB 106; and
vii)Hazaras and Shias were a target throughout Pakistan and not just Quetta so the applicant is unable to relocate: CB 66 and 106;
e)on 13 October 2016 the Delegate refused to grant the applicant a TP Visa: CB 100-101;
f)the matter was referred to the IAA for review on 17 October 2016: CB 115-116;
g)the applicant’s representative provided further submissions for the IAA to consider on 22 November 2016 comprising:
i)recent media reports of attacks and events occurring in Pakistan: CB 126; and
ii)additional relevant country information: CB 127;
h)on 21 July 2017 the IAA affirmed the Delegate’s Decision and refused to grant the applicant a TP Visa: CB 161; and
i)the applicant lodged the Judicial Review Application in this Court seeking judicial review on 22 August 2017 and a hearing was held on 17 November 2017.
The IAA Decision
When considering the TP Visa application the IAA identified certain materials as being:
a)potentially relevant to assessing the TP Visa application;
b)not before the Delegate when the Delegate’s Decision was made; and
c)potentially new information.
The materials so identified were as follows:
a)country information sourced by the IAA member published after the Delegate’s Decision concerning security for Hazaras and Shia Muslims in Pakistan: CB 165 at [3];
b)the arguments presented by the applicant’s representative refuting the Delegate’s Decision: CB 165 at [4];
c)specific claims of reports some Hazaras were obtaining citizenship documents fraudulently leading to greater anti-Hazara sentiment: CB 165 at [5]; and
d)the material listed in [2(g)] above.
In accordance with s.473DD of the Migration Act, the IAA was required to be satisfied that:
a)there were exceptional circumstances to justify considering the new information; and
b)in relation to any new information given or proposed to be given, that information:
i)was not, and could not have been, provided to the Delegate before the Delegate’s Decision; or
ii)was credible personal information not previously known, which if it had been known, may have affected the consideration of the applicant’s claims.
The IAA came to the following conclusions in relation to the materials identified:
a)the need for current country information on the developing security situation in Pakistan for Hazaras and Shia Muslims is an exceptional circumstance justifying consideration of the material: CB 165 at [3];
b)the arguments presented by the applicant’s representative were argumentative and the IAA Member was not required to assess them against s.473DD of the Migration Act, but rather consider their substance when making a decision: CB 165 at [4];
c)information was before the Delegate concerning Hazaras obtaining fraudulent citizenship documents, however, the applicant made no submission he feared harm or felt his security was threatened because of this. The applicant gave no reason why he had not advanced this claim before the Delegate or why it should be considered credible personal information in circumstances where he had been notified that he needed to assert all of his protection claims and provide information to support his claim prior to the Delegate’s Decision. As such the IAA was not satisfied the material met s.473DD(b) of the Migration Act: CB 165 at [5]; and
d)all but three of the source materials provided by the applicant’s representative were published prior to the Delegate’s Decision and should have been provided to the Delegate. The three reports published subsequent to the Delegate’s Decision were not considered credible personal information and the IAA was not satisfied there were exceptional circumstances to justify considering the information: CB 166 at [6].
When determining the application the IAA:
a)accepted the applicant was a Pakistani national, an ethnic Hazara and a Shia Muslim who is identifiable as such: CB 166 at [10] and 170 at [19];
b)despite the applicant providing disparate dates of the explosions in Quetta, accepted the events had occurred in January 2013 and as many as 80 were killed and 121 injured: CB 167 at [11];
c)although absent from mention in the applicants written claims, the IAA Member was satisfied the applicant did have an encounter with armed men at a farm and resigned from his employment because of a fear of:
i)having to travel to areas outside of the city; and
ii)being targeted as a Shia Hazara: CB 167 at [13];
d)did not consider the nature of the encounter with armed men at the farm suggested the applicant was of specific interest to the armed men, but rather that the applicant was confronted in his capacity as a government energy technician in an unsecure area. The IAA did not accept these men knew the applicant’s identity, or that he was of specific interest as an individual to any militant groups: CB 170 at [18];
e)had regard to country information which analysed government scrutiny of the groups the applicant referenced in his application, statistics of religious identification and violence upon Shia Muslims, and the levels of risk to Shia Hazaras in Quetta, and noted the prevalence of attacks against Shia Muslims and Hazaras has decreased and that security forces in Quetta provide escorts for these groups in the city: CB 170 at [16]-[18];
f)accepted that Hazara Shias remain segregated and are a key target of militant groups, and that the applicant would face a real risk of being killed or seriously harmed for reason of his ethnicity or religion if he were to return to Quetta: CB 170 at [17];
g)on the evidence was satisfied the applicant would not face a serious chance of harm if he was to move to Islamabad given country information suggests that Islamabad enjoys a more favourable level of security, possesses well-integrated Shia Muslim and Hazara communities, and that attacks upon these communities are a rarity, and that many Shia Hazaras from Quetta have relocated to the area for the safety it affords: CB 171 at [23];
h)found that the applicant would not face a real chance of harm because of his former employment, or potential future employment, as a government utilities worker, as a result of generalised violence or crime, or for any other reason: CB 171 at [23];
i)was not presented with any information or evidence to suggest the applicant had experienced discriminatory behaviour as has been reported to affect Shia Muslims and Hazaras, and further considered the applicant would not face any real chance of such conduct and harm in Islamabad: CB 173 at [24];
j)confirmed the applicant satisfied the criterion of s.36(2A) of the Migration Act, in that, if he returned to Quetta, he would face a real chance, and therefore a real risk, of being killed or seriously injured by reason of his being a Shia Hazara, and was therefore satisfied that there was a real risk of significant harm in his home area of Quetta: CB 174 at [29], however, found that as the applicant could reasonably move to Islamabad, there was not a real risk of significant harm to the applicant for the purposes of s.36(2B) of the Migration Act: CB 174 at [29]; and
k)noted:
i)the difficulty the applicant may face in relocating to Islamabad without any known connections, and that he had been unable to obtain employment in Australia, but further noted that the applicant was not an impoverished person, and possessed significant skills and employment experience; and
ii)that although the applicant may be required to live separately from his fiancé for some time, his departure from Pakistan and his subsequent application for a TP Visa whilst in Australia suggests he is willing to live apart from his fiancé in order to ensure his safety,
and that in those circumstances was satisfied that it would be reasonable for the applicant to relocate to, and remain in, Islamabad: CB 175 at [32]-[35].
The IAA also considered whether the applicant met the complementary protection criteria under s.36(2)(aa) of the Migration Act, and found that the applicant did not meet those criteria: CB 176 at [36].
The IAA, having regard to all of the circumstances of the applicant, affirmed the Delegate’s Decision not to grant the TP Visa: CB 176.
Judicial Review Application
Terms of the Judicial Review Application
The applicant lodged his Judicial Review Application in this Court on 22 August 2017 seeking an order quashing the decision of the IAA and requiring his application to be determined according to law. The terms of the Judicial Review Application are as follows:
THE Assessment was unfair because IAA has only considered my ethnicity not my Religion.
As a Shia Muslim, I have no place to in pakistan to live safely-
This year alone two big gatherings were held by a terrorist organisation Ale Sunal Wal Jamat (ASJ) formally known as Sipahe Sahaba in capital Islamabad under the protection of state police.
They were openly chanting that Shia are Infidels, and calling for killing of shia openly.
It is alone almost impossible for me to hide my ethnicity, and my religious background is another fact of my persecution in pakistan.
[Transcribed verbatim].
The Court will treat the first paragraph of the terms of the Judicial Review Application as ground 1, and the remainder of the Judicial Review Application as ground 2.
The affidavit in support
The Judicial Review Application was accompanied by a supporting affidavit annexing a copy of the IAA Decision. The applicant also attached “extra evidence notes from Shaheed Foundation Pakistan.” (“Shaheed Foundation Notes”). The Shaheed Foundation Notes, and other further evidence sought to be tendered by the applicant on this Judicial Review Application are discussed below.
Further evidence on the Judicial Review Application
Shaheed Foundation Notes
The first page of the Shaheed Foundation Notes bears a date of 27 July 2017, that is six days after the IAA Decision was published. The Shaheed Foundation Notes appear to relate to the claimed bomb blast and various protests associated therewith.
The Shaheed Foundation Notes appear to invite the Court to engage in impermissible merits review, contrary to long-established principle applied regularly by this Court and the Federal Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). Further, and in any event, there is nothing in the Shaheed Foundation Notes which appears to manifest any form of jurisdictional error in the IAA Decision. In the circumstances, the Shaheed Foundation Notes are inadmissible, and the Court will have no regard to them in determining the Judicial Review Application.
USB device
On 5 October 2017 the applicant lodged a USB device (“USB”) at the Registry containing two video excerpts as follows:
a)the first video is approximately seven minutes long and shows a crowd of men walking the streets in protest while police attend the scene. The video appears to be taken by a bystander. There is no time or date stamp on the video. The men in the video are chanting, and the police in one instance use force against an individual; and
b)the second video is approximately two minutes long and again has no time or date stamp. The video depicts what looks like a rally where one individual is addressing a cheering crowd.
At hearing the applicant said that the purpose of this further evidence was to show the Court that there were groups being targeted at rallies in Pakistan consistent with the claims that he made.
In the Court’s view the USB evidence goes solely to the merits of the applicant’s claim for a TP Visa, and invites the Court to engage in impermissible merits review by straying from the narrow path of judicial review contrary to the long-standing principles established and flowing from Wu Shan Liang: see also NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ (“NADR”) and Zentai v O’Connor & Ors (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J. Further, and in any event, the videos on the USB are undated and it is not apparent whether they were in existence at the time of the IAA Decision, but if they post-date the IAA Decision then it is not open to the Court to consider them on an application for judicial review: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. In the circumstances, the USB is inadmissible and no regard will be had to it by the Court for the purposes of determining the Judicial Review Application.
Consideration of IAA Decision
The IAA Decision
The applicant was a “fast track applicant” as defined in s.5(1) of the Migration Act, and consequently the visa review process is governed by Part 7AA of the Migration Act. As required by s.473CA of the Migration Act, the Delegate’s Decision was immediately referred to the IAA for review of the particular findings upon which the Delegate refused to grant the TP Visa. In BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169 at [87] per Charlesworth J (“BMB16”) it was observed that:
87 The Authority's obligation to “review the decision” is, in that sense, an obligation to review the particular findings upon which the refusal decision was based: namely, whether the referred applicant satisfies the particular criteria which the Minister considered to be determinative. The Authority otherwise has no power to determine that the correct and preferable decision is one granting the referred applicant a visa. Accordingly, the Authority cannot perform a “full merits review” of the s 65 decision.
The IAA’s jurisdiction is limited, and the IAA may only remit a matter to the Delegate, pursuant to s.473CC(2)(b) of the Migration Act, for reconsideration where the IAA deems the applicant has satisfied a criterion the Delegate deemed determinative in the reasons for refusing a visa. The IAA may then remit the decision to the Delegate with a permissible direction under reg.4.43(2) the Migration Regulations 1994 (Cth) (“Migration Regulations”).
Jurisdictional error required
The IAA Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. Such an error will only constitute a jurisdictional error where the IAA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way that the IAA’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the appropriate statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; Craig v South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Jurisdictional error might also arise if there is a denial of such procedural fairness as is required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826 at [12] per Judge Cameron.
This Court does not have the jurisdiction to review the merits of the IAA decision, or determine the applicants claim for protection: Wu Shan Liang; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J; NADR at [5] per Heerey, RD Nicholson and Selway JJ.
Ground 1
Ground 1 of the Judicial Review Application essentially makes the claim that the IAA failed to consider an integer of the applicant’s claim, or misconceived the claim by not considering such an integer, the integer being the applicant’s Shia Muslim religion.
The failure of an administrative decision-maker such as the IAA to consider a component integer of an applicant’s claim to meet the criteria relevant under the Migration Act will constitute jurisdictional error: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J; Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”); Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ. Likewise, the IAA may commit jurisdictional error where it misconceives the applicant’s claims: AZAAA v Minister for Immigration & Citizenship [2009] FCA 554; (2009) FCR 363 per Mansfield J at [53]. In Dranichnikov the High Court observed that the failure to respond to a substantial, clearly articulated argument relying upon established facts is a failure to accord procedural fairness to an applicant: Dranichnikov at [24] per Gummow and Callinan JJ and [95] per Hayne J.
It is well recognised that where an administrative decision-maker, like the IAA, is required to consider a claim or some mandatory criteria by an Act, the decision maker must engage in an active intellectual process directly addressing that claim or criteria: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140 at [47]- [54] per Lindgren, Rares and Foster JJ; Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248; (2010) 274 ALR 438 at [57] per Stone, Foster and Nicholas JJ. In Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [47] per Griffiths, White and Bromwich JJ the Full Court of the Federal Court said:
Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context.
Mere disagreement with the IAA Decision does not support a contention the IAA failed to consider evidence properly or fairly: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J.
In this case the IAA engaged with and considered the applicant's claims relating to both his ethnicity and religion as follows:
a)referred to, and accepted, the applicant's claim to be an ethnic Hazara and a Shia Muslim: CB 166 at [7] and 167 at [10];
b)referred to the applicant's claims to fear harm as a result of his ethnicity and Shia Muslim religion: CB 166 at [7];
c)referred to country information in relation to Shia Muslims being targeted by anti-Shia militant groups: CB 168-169 at [14]-[15];
d)referred to country information in relation to the situation of Shia Hazaras: CB 169-170 at [16]-[17];
e)accepted that there was a real chance the applicant would suffer harm as a result of his “race and religion” (emphasis added) in Quetta: CB 170-171 at [19];
f)referred to country information in relation to Shia communities in Islamabad: CB 171 at [20];
g)referred to country information in relation to sectarian violence against Shias in Islamabad and Rawalpindi: CB 171-172 at [21]-[22];
h)considered the individual circumstances of the applicant, namely his profile within the Shia Muslim community, before making a specific finding in regard to the applicant’s claim on the basis of his religion at CB 170 at [23]:
Credible sources report that Islamabad hosts a large well-integrated Shia Muslim community… given the absence of any evidence of attacks upon Hazaras in Islamabad, and the rarity of attacks upon Islamabad's Shia Muslim community more broadly, I am not satisfied that the applicant would, in Islamabad, face a real chance of harm of any kind from LeJ, SSP, Islamic State, other similar extremist groups, or that he would be harassed or physically harmed in any way by members of the Pashtun or Baluch community, or by any other actors, for reason of his being a Hazara and a Shia Muslim.
i)referred to country information in relation to discrimination against Shia Muslims: CB 172-173 at [24];
j)referred to the applicant's profile in the Shia Muslim community: CB 172 at [23]; and
k)made specific findings about the applicant's chance of harm as a Hazara and a Shia Muslim: CB 172-173 at [23]-[24] and CB 174 at [29].
The Court therefore rejects the claim the IAA failed to address the applicant’s claims made with regard to his religious affiliation as a Shia Muslim. Ground 1 is therefore not made out and does not establish jurisdictional error in the IAA Decision.
Ground 2
The applicant asserted:
As a Shia Muslim, I have no place to in pakistan to live safely-
This year alone two big gatherings were held by a terrorist organisation Ale Sunal Wal Jamat (ASJ) formally known as Sipahe Sahaba in capital Islamabad under the protection of state police.
They were openly chanting that Shia are Infidels, and calling for killing of shia openly.
The further evidence seemingly sought to support this ground, however, for reasons set out at [13]-[17] above, the Court found the further evidence to be inadmissible.
The Court notes s.5J(1)(c) of the Migration Act was added by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) sch.5 it.4 (“Amendment Act”), which pursuant to s.2(1) of the Amendment Act, commenced to operate from 18 April 2015. As the applicant lodged his Protection Visa application in 2016, the assessment of his eligibility for a Protection Visa is governed by s.5J(1)(c) of the Migration Act, and not the common law principles. As such the IAA did not need to consider the reasonableness of the applicant relocating, but nevertheless it did assess the reasonableness of the applicant relocating to Islamabad: CB 175-176 at [33]-[35].
When considering the surrounding statutory context, s.5J(1)(c) of the Migration Act requires that the real chance of persecution alleged by the applicant must relate to all areas of the receiving country. For the applicant to have a well-founded fear of persecution his risk of significant harm must extend to the entirety of Pakistan. The IAA considered that the applicant could relocate to Islamabad, and subsequently the applicant did not satisfy the legislative prescription for the existence of a well-founded fear of persecution under s.5J(1)(c) of the Migration Act.
The applicant has not established that the IAA Decision is affected by any jurisdictional error on the basis of ground 2.
Whether exceptional circumstances to warrant inclusion of new information
The Minister made an additional submission in relation to the issues dealt with by the Federal Court in BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 (“BVZ16”) regarding the obligations of the IAA pursuant to s.473DD of the Migration Act, specifically whether “exceptional circumstances” existed to warrant the inclusion of “new information” by the IAA when making its determination. In BVZ16 at [43] per White J the Federal Court held that:
Further, account must be taken of the reference to the exceptional circumstances being such as to “justify” consideration of the new material. In this respect, account should also be taken of the purpose of the IAA decision, namely, to affirm the refusal of the visa or to remit for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC). That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances.
In BVZ16 the Federal Court construed the phrase "exceptional circumstances" in s.473DD(a) of the Migration Act and relevantly held that, where a referred applicant has given new information to the IAA, it is a jurisdictional requirement for the IAA to consider each of ss.473DD(a) and (b) with respect to that information: BVZ16 at [36] per White J.
In Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 (“BBS16”) the Full Court of the Federal Court agreed with the interpretation of “exceptional circumstances” adopted in BVZ16: BBS16 at [104]-[106] per Kenny, Tracey and Griffiths JJ. In BBS16 the Full Court of the Federal Court stated at [105] per Kenny, Tracey and Griffiths JJ that:
For the reasons given by his Honour, including his references to relevant extrinsic material, we respectfully agree that subparas (b)(i) and (ii) should be understood as referring to different kinds of new information. The former provision requires a factual inquiry as to whether or not the new information could have been presented to the Minister. The latter provision requires an evaluation of the significance of the new information in the context of the referred applicant's claims more generally.
A fair reading of the IAA Decision indicates that the IAA not only considered whether exceptional circumstances existed in refusing to have regard to new information for the purposes of s 473DD(a): CB 165 at [3] and CB 166 at [6], but also considered whether the new information:
a)could have been provided to the Delegate: Migration Act, s.473DD(b)(i); and
b)constituted credible personal information for the purposes of s.473DD(b)(ii) of the Migration Act: CB 165-166 at [5]-[6];
and therefore complied with the statutory requirements in considering whether there were "exceptional circumstances" in relation to the consideration of any new information.
In this case the IAA obtained the most recent information regarding the security situation for Hazaras and Shia Muslims in Pakistan, and considered such information warranted consideration under s.473CB of the Migration Act as “exceptional” given the volatility of the situation in Pakistan: CB 165 at [3]. The other evidence tendered to the IAA was deemed not to satisfy the criteria under s.473DD of the Migration Act. The IAA found the information could have been presented to the Delegate, thereby satisfying the factual enquiry required in s.473DD(b)(i) of the Migration Act. The IAA also stated that it was not satisfied that the submissions:
a)constituted credible personal information; and
b)that the explanation given for not supplying this information did not warrant it being considered:
…invites the IAA to obtain these sources as it is submitted that these, when read as whole, provide a more realistic and pessimistic view of the dangers faced by Hazaras in Pakistan. I am not persuaded that this is the case and I have not obtained this information. Further, as I am not satisfied that the reports published before the date of the delegate's decision could not have been provided before the date of the delegate's decision, and as I am not satisfied that this information amounts to credible personal information, I am not satisfied that s.473DD(b) is met, nor am I satisfied that there are exceptional circumstances to justify considering this information.
CB 166 at [6].
In the Court’s view the IAA has committed no jurisdictional error in respect of the findings made for the purposes of s.473DD of the Migration Act.
Conclusion and Orders
The applicant's grounds do not reveal any jurisdictional error in the IAA Decision and in substance, invite the Court to undertake impermissible merits review. No jurisdictional error having been established in the IAA Decision it follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 7 December 2017
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