DVF16 v Minister for Immigration

[2017] FCCA 2778

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVF16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2778

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq due to him having witnessed human rights abuses – applicant’s wife abducted and killed – applicant disbelieved in part and his fears otherwise found not to be well-founded – whether the Authority erred in considering what it identified as new information or whether the Authority overlooked a claim made by the applicant considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 473DD, 473GB

Cases cited:

BVZ16 v Minister for Immigration [2017] FCA 958

CHF16 v Minister for Immigration [2017] FCAFC 192

Minister for Immigration v BBS16 [2017] FCAFC 176

Applicant: DVF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3524 of 2016

Judgment of: Judge Driver

Hearing date: 3 November 2017

Delivered at: Sydney

Delivered on: 7 December 2017

REPRESENTATION

Counsel for the Applicant: Mr M Nesbeth

Solicitors for the Applicant: Westside Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 18 November 2016 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3524 of 2016

DVF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 November 2016.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the Minister filed on 27 October 2017. 

3. The applicant is a male citizen of Iraq who arrived on Christmas Island on 16 September 2012.  He applied for the visa on 28 September 2015.[1]  The applicant claimed he worked in a “reception role” in the Ministry of Youth and Sport in Iraq, and that his father was employed by the Ministry of Education in a senior position.  The applicant claimed he witnessed people being executed by the Mahdi Army (a Shia militia group) in a building next to his home.  The applicant claimed he reported this to the police and the Mahdi Army “became aware” of this and raided his house looking for him when he was not home.  The applicant also claimed the Mahdi Army abducted his wife and it was these events that led to the applicant’s departure from Iraq.  After he arrived on Christmas Island, the applicant claimed he was informed by his family that his wife had been found dead.  The applicant claimed to have “recently” published material on Facebook that was critical of the Mahdi Army leader, and that he recently received a “threatening anonymous” phone call from “someone” in Australia about the material he had published.[2]  

   [1] Court Book (CB) 81-136

   [2] CB 203

4. The applicant claimed he had problems with his heart and arteries following his arrival in Australia in 2012 and that he received medical treatment and psychological support while in immigration detention.  

5. The applicant claimed to fear harm from Shia and Sunni armed groups and the Iraqi government because he was an educated, secularised civil servant and “perceived to be an apostate”.  He also claimed to be a member of the particular social group of “educated Shia civil servants with a belief in the rule of law and the rights of all citizens.”  The applicant claimed he was perceived to have a political opinion that was “hostile to the radical Islamist goal of establishing Iraq as an Islamic State.”[3]

   [3] CB 203

6. The applicant was interviewed by the delegate on 10 March 2016. On 20 September 2016 the delegate refused to grant the applicant the visa,[4] and the matter was referred to the Authority on 28 September 2016.

   [4] CB 162-176

7. The Authority[5] found that the “inconsistent and vague” nature of the applicant’s evidence regarding his education, employment and travel led it to question the veracity of those aspects of his claims. Whilst the Authority had “significant reservations” in relation to those aspects of the applicant’s evidence, it found they were of “less concern” than the “substantial variation” in his account of the events that led to his departure from Iraq[6].

   [5] at [10]-[14]

   [6] at [15]

8. The Authority relied upon significant inconsistencies in the applicant’s claimed reporting of the Mahdi Army to the police and the police response[7] to find that he was not of any adverse interest to the Shia militia as a result of his claimed report to the police regarding the Mahdi Army’s activities.[8] For example:

   a)in an initial invalid protection visa application dated 19 August 2013, the applicant claimed that after observing suspicious militia activity for about a month, he witnessed a man being decapitated inside the building.  The applicant claimed he reported this to the police and the police officer gave him his phone number and asked the applicant to call him the next time the Mahdi Army came to the building.  Five days later, the applicant saw two cars approaching the building and called the police, who came and raided the building.  Members of the Mahdi Army were subsequently arrested;[9]

   b)however, in the statement of claims accompanying the temporary protection visa application, the applicant claimed that he saw people being shot by the Mahdi Army; he reported this to the police who accompanied him back to his home, bringing a detachment of police officers; the applicant “sensed that the police officer in charge was overwhelmed with fear”; the police returned to the police station without taking any action; and the applicant was asked to make a formal written report;[10] and

   c)in his amended statement,[11] the applicant again claimed he saw people being shot by the Mahdi Army and made claims consistent with the invalid protection visa application.[12]

   [7] at [17]-[20]

   [8] at [55]

   [9] at [17]

   [10] at [18]

   [11] CB 157-159 submitted 9 March 2016, prior to the temporary protection visa interview

   [12] at [19]

9. In addition, the Authority noted that at the temporary protection visa interview on 10 March 2016, the applicant had provided a vague response in answer to how many times he had witnessed people being shot in the house next door.  In the course of the temporary protection visa interview, the applicant also gave differing accounts as to what happened after he reported the incident to the police, namely whether the police officer gave the applicant his phone number or whether the officer accompanied the applicant back to his home.[13]

   [13] at [20]

10. The Authority also found there were further inconsistencies in the applicant’s account of the abduction and death of his wife, particularly in relation to his location when the abduction occurred, who told the applicant about the abduction and his wife’s place of death.[14]  For example, at the arrival interview the applicant made no mention that his wife had been abducted, when asked why he left Iraq.  At the subsequent entry interview, he alleged that his wife had been abducted.  In his invalid protection visa application, the applicant claimed he was visiting his uncle in Karbala when he received a phone call from his family advising that his wife had been abducted.  However, in the statement accompanying the temporary protection visa application, the applicant claimed he was in Baghdad and that his mother called him about his wife, whereas, in his temporary protection visa interview the applicant said he was in Najaf when his friends called to tell him that his wife had been abducted.[15]  

    [14] at [21]

    [15] at [21]

11. The Authority found it difficult to accept that the applicant did not recall what city he was in when he heard of his wife’s abduction.[16]  The Authority found the applicant’s explanation that he was in shock and psychologically unwell at the arrival interview had not adequately explained why he had failed to mention his wife’s abduction and death given that these matters were “directly related” to his departure from Iraq.[17] The Authority placed “no weight” on the applicant’s wife’s death certificate, which indicated that his wife died on 15 July 2012 in Baghdad as a result of a “terrorist act”,[18] given the information before the delegate and the Authority’s concerns in relation to the applicant’s evidence regarding his wife’s death, including that the applicant had claimed in his invalid protection visa application that his wife’s body had been found in a river in Baghdad.[19]  The Authority also found there were inconsistent aspects in the applicant’s description of him witnessing the killing of Sunni men in the building next door by the Mahdi Army.[20]

    [16] at [22]

    [17] at [23]

    [18] at [26]

    [19] at [24]

    [20] at [27]-[28]

12. The Authority accepted the applicant was in a poor psychological state while in immigration detention and was treated for psychological and heart problems.[21] It noted, however, that he had not provided any documentary evidence about his past or present health and was not satisfied that any health problems prevented him from effectively presenting his case.[22]  In this regard, the Authority noted that representatives assisted the applicant to prepare each of his statement of claims and accompanied him during the temporary protection visa interview.

    [21] at [30]

    [22] at [31]

13. Having regard to the “very vague and inconsistent nature of the applicant’s evidence”, the Authority found that he was not a credible witness, and did not accept that he had witnessed the Mahdi Army killing people, that he reported this to the police, that his wife was abducted and killed as a result, or that he was of any adverse interest to the Mahdi Army, his wife’s family, the Iraqi authorities or anyone else as a result of these claimed events.[23]

    [23] at [34]

14. In the absence of any credible evidence that the applicant had published an item on Facebook criticising the head of the Mahdi Army, and the implausibility of the claim, the Authority did not accept that the applicant published such an item, received any threat in response or was of any adverse interest to or faced a real chance of harm from Shia militia groups for this reason, or for the other reasons he had advanced.[24]

    [24] at [37], [55]-[56]

15. The Authority did not accept that the applicant was educated or was perceived to be educated or to have any “secular leanings.”[25]  The Authority found that the applicant had provided vague and inconsistent evidence regarding his level of education[26] and did not accept that he had completed year 12.[27]  The Authority did not accept that the applicant was of any adverse interest to any group or person on the basis of his former role as a “junior civil servant”.  In any event, the Authority did not accept that the applicant would return to his former role in the Ministry of Youth and Sport in Iraq[28] given that he had “left the role in 2011 after working there for less than a year”.[29] The Authority was not satisfied that there was a real chance that the applicant would be harmed on that basis.[30]

    [25] At [57]

    [26] at [39]

    [27] at [40]

    [28] at [57]

    [29] at [42]

    [30] at [58]

16. Whilst accepting that the applicant’s father was employed by the Ministry of Education, the Authority did not accept that as a retired civil servant the applicant’s father was of any adverse interest to Sunni, Shia or any other group or person on the basis of his former employment.[31]  Although the Authority was willing to accept that the applicant’s family was “moderately well off”,[32] it noted the applicant had not claimed that he or his family had been previously targeted on the basis of their wealth, or their father’s profile as a civil servant or retired civil servant.[33] Accordingly, the Authority was not satisfied there was a real chance that the applicant would be harmed on this basis.[34]

    [31] at [46]-[47]

    [32] at [48]

    [33] at [49]

    [34] at [61]

17. The Authority noted that the applicant was a Shia Muslim[35] but did not hold a profile, such as a doctor, journalist or NGO worker that would put him at risk of being harmed by armed Sunni groups.[36]  In relation to the general security situation in Iraq, the Authority was satisfied that the applicant would return to Najaf travelling via Basra international airport and by car, avoiding roads used by pilgrims to access Shia holy sites.[37]  The Authority placed weight on the accepted independent country information,[38] which assessed that the southern provinces of Iraq had remained relatively more secure than central Iraq and that Shias in southern Iraq faced a low risk of generalised violence. Having regard to the totality of information before it, while the Authority accepted that there were instances of violence in Najaf, it found the chance that the applicant would be harmed to be remote and less than the real chance of persecution required to meet s.5J(1)(b) of the Migration Act 1958 (Cth) (Migration Act).[39]

    [35] at [62]

    [36] at [63]

    [37] at [66]

    [38] at [72]

    [39] at [72]

18. While the Authority accepted the applicant suffered from psychological and heart problems in immigration detention,[40] it was not satisfied he had current health issues that required medical treatment.[41]  The Authority referred to reports before it that there could be lengthy waiting times for treatment in public hospitals and difficulty accessing medication in Iraq[42] but held that this would not restrict the applicant’s access to healthcare for any of the reasons in s.5J(1)(a) of the Migration Act. It was therefore not satisfied that the applicant had a well-founded fear of persecution for these reasons.[43]  The Authority relied on country information that indicated the practice of Iraqis to seek asylum and later return to Iraq was well-accepted amongst Iraqis.[44]  The Authority did not accept that the applicant faced a real chance of harm as a person returning to Iraq as an unsuccessful asylum seeker after living in Australia for approximately four years.  The Authority was not satisfied that any combination of the applicant’s circumstances would combine to expose him to a real chance of harm in Najaf province.[45]

    [40] at [73]

    [41] at [74]

    [42] at [75]

    [43] at [75]-[76]

    [44] at [78]

    [45] at [80]

19. On the basis of its earlier findings, the Authority found that there was not a real risk that the applicant would suffer significant harm.[46] The Authority concluded that the applicant did not satisfy s.36(2)(aa) of the Migration Act.[47]

    [46] at [84]

    [47] at [92]

The present proceedings

1. These proceedings began with a show cause application filed on 13 December 2016.  The applicant now relies upon an amended application tendered in court by leave on 3 November 2017.  There are two particularised grounds in that application:

   1. The Second Respondent failed in undertaking its statutory task as required by s 473DD of the Migration Act and in so doing fell into jurisdictional error.

   Particulars

   a. After the First Respondent refused to grant the applicant a temporary protection visa, but before the Second Respondent made a decision, the applicant provided the Second Respondent … additional documentation.

   b. In refusing to consider what it characterised as new information, the Second Respondent failed to have regard to consider all relevant circumstances that were available before it.

   c. The Second Respondent incorrectly applied s 473DD of the Migration Act and failed to consider both s 473DD(a) (to the extent it was considered) and s 473DD(b).

   d. In incorrectly applying s 473DD of the Migration Act, the Second Respondent [constructively] failed to exercise jurisdiction.

   2. The Second Respondent failed to consider claims raised by the applicant as to why he would face a real risk of significant harm as a consequence of his removal from Australia.

   Particulars

   a. In his arrival interview the applicant stated that he worked with the Iraqi army and undertook counter terrorism and weapons training because he it was dangerous to work with the Americans.

   b. The Second Respondent failed to take into consideration this aspect of the applicant’s claim.

   The failure of the Second Respondent to consider this claim amounts to jurisdictional error.                (errors in original)

2. I have before me as evidence the court book filed on 26 May 2017 and a supplementary court book filed on 22 August 2017. 

3. The parties’ written submissions were substantially overtaken by the amended application.  The applicant and the Minister made oral submissions through their counsel at the trial of the matter on 3 November 2017. 

Consideration

Ground 1 – did the Authority fail to undertake its statutory task as required by s.473DD of the Migration Act?

1. The applicant contends that the Authority fell into error in failing to consider both s.473DD(a) and s.473DD(b) in considering new information furnished by the applicant to the Authority. The Authority dealt with the issue of new information in its reasons at [4]-[8][48] where it stated:

   On 25 October 2016 the IAA received five documents from the applicant’s representative. Two of these documents, a copy of the death certificate for the applicant’s wife and a copy of the marriage contract between the applicant and his wife, were before the delegate and are not new information. Copies of his wife’s Iraqi certificate of nationality, a document entitled ‘court decision’, and a photograph of his wife’s headstone, together with translations into English, are new information.

   Section 437DD requires that the IAA must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. In relation to information provided by the applicant, there is a further requirement that the applicant must satisfy the IAA that the new information was not, and could not have been, provided to the delegate before the delegate made his decision, or that the new information is credible personal information that was not previously known and, had it been known, may have affected the outcome of the applicant’s claims.

   The IAA ‘Practice Direction for Applicants, Representatives and Authorised Recipients’ directs applicants, representatives and others seeking to provide new information to the IAA on behalf of the applicant to provide an explanation as to why the information could not have been given to the Department before the decision was made, or the information is credible personal information which was not previously known and may have affected consideration of the applicant’s claims, had it been known. The new documents were not accompanied by any such explanation.

   The copy of his wife’s Iraqi certificate of nationality is dated 13 October 2011, the court decision is dated 13 July 2012 and the date on the headstone in the photograph is 15 July 2012, well before the date of the applicant’s temporary visa application of September 2015.

   Having regard to the totality of the circumstances, I am not satisfied that there are exceptional circumstances to justify the consideration of this new information.

   [48] CB 202

2. It is debatable whether the photograph of the tombstone, reproduced at CB 192 with a translation of the Arabic inscription on it, amounts to new information.  To the extent that the inscription on the tombstone repeats the details in the death certificate that was before the delegate, it was not, in my opinion, new information.  What probably is new information is that the photograph provides information that there is a tombstone.  That corroborates the fact of the applicant’s wife’s death.  The delegate was concerned that the death certificate might have been fabricated and gave it little weight.[49] The Authority reasoned similarly at [26].[50]  The Authority placed “no weight on this document as corroboration” of the applicant’s claim.  It is unclear whether this is a rejection of the claim that the applicant’s wife was dead or merely a rejection of the claimed manner of her death.

   [49] CB 169

   [50] CB 207

1. Counsel for the Minister submitted that it was patently obvious that the photograph was put forward to corroborate the evidence in the death certificate, having regard to the concerns expressed by the delegate in his decision.  The Minister contends that, because it was obvious, the Authority did not need to specifically consider the corroborative value of the photograph in deciding whether to accept it as new information.  On the other hand, counsel for the Minister submitted that it was pertinent that the applicant had not provided any explanation of why the information had not been given to the Minister’s Department before the decision was made or whether the information was credible personal information not previously known, which might have had a bearing on the consideration of the applicant’s claims.

2. In my opinion, the Minister cannot have it both ways.  If it was blindingly obvious that the photograph was being provided to the Authority in order to corroborate the evidence in the death certificate, in circumstances where that evidence had been doubted by the delegate, the applicant hardly needed to say to the Authority that the photograph was provided because it was not known until the delegate’s decision that the death certificate would not be accepted, and that it was obtained specifically for the purpose of corroborating that evidence.  Although the Authority states at [8] that it had regard to the “totality of the circumstances”, the silence of the Authority on the corroborative value of the photograph in the context of considering s.437DD indicates to me that this statement was no more than a verbal formula.

3. The applicant relies upon the decision of White J in BVZ16 v Minister for Immigration[51] for the purposes of this ground.  At the time of the trial of this matter, there were issues concerning the interpretation of s.437DD arising out of that judgment which were before the Full Federal Court on appeal.  Those issues have now been resolved by the Full Federal Court in Minister for Immigration v BBS16[52] at [102]-[106] where the Court stated:

   We are unpersuaded by the Minister’s contentions that in BVZ16 White J misconstrued or misapplied the term “exceptional circumstances” under s 473DD. We respectfully agree with his Honour’s reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.

   That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.

   As White J explained, the phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or there are “exceptional circumstances” (see the authorities cited by his Honour at [39]-[41] of BVZ16).

   For the reasons given by his Honour, including his references to relevant extrinsic material, we respectfully agree that subparagraphs (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.

   We also respectfully agree with White J’s conclusion and reasons for rejecting the Minister’s claim in support of his notice of contention in BVZ16 that, on the proper construction of s 473DD(b)(ii), the phrase “which was not previously known” should be construed as meaning “not previously known to [the referred applicant]”. The provision applies to new information which is given to the IAA by a referred applicant which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims for protection. This is made clear by [29] of the Supplementary Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which, in addressing revised paragraph 473DD of the Bill said (emphasis added):

   This new provision will extend the types of “new information” that a referred applicant may present to the IAA to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected consideration of the referred applicant’s asylum claims by the Minister.

   [51] [2017] FCA 958

   [52] [2017] FCAFC 176

4. In the recent decision of the Full Federal Court in CHF16 v Minister for Immigration[53], the earlier Federal Court decisions in BVZ16 and BBS16 were applied in circumstances relevant to this case. Relevantly, at [44], the Full Court stated:

   In our opinion, the proper and fair reading of [5] the Authority’s reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims. We do not accept the submission on behalf of the Minister that the paragraph should be read as, in effect, containing other reasons for the conclusion of the Authority. In so concluding, we have read the paragraph as a whole and in context.

   [53] [2017] FCAFC 192

5. In the present case, the critical issue is whether the Authority had regard to anything other than the temporal question, and in particular, whether it had regard to the corroborative value of the photograph of the tombstone of the applicant’s wife in considering whether to accept it as new information. On a fair reading of the Authority’s reasons reproduced at [23] above, I find that, notwithstanding [8] of the Authority’s reasons, it did not. Indeed, it thereby failed to have regard to the totality of the circumstances required in considering the application of s.473DD.

Ground 2 – did the Authority fail to consider claims raised by the applicant as to why he would face a real risk of significant harm as a consequence of his removal from Australia?

1. The applicant contends that the Authority failed to consider a claim by him arising out of his work with the Iraqi army.

2. The Minister responds that no such claim clearly arose on any of the materials.

3. In my view, the factual basis of the supposed claim was clearly set out in the applicant’s arrival interview, in particular in relation to questions 22 and 23[54] and question 17.[55]  The delegate considered the claim at CB 172.  While that is so, it is relevant that the delegate found that the applicant had not made any claim to fear harm for the reason of his military service.  Neither had the applicant claimed to have previously experienced any difficulties for the reason of his military service. 

   [54] CB 3

   [55] CB 13

4. In my opinion, in the light of the delegate’s reasoning, there was no obligation on the Authority to revisit the bare facts set out in the protection visa application in relation to a claim that had not been advanced by the applicant. 

5. I reject this ground.

The Ministerial certificate

1. The supplementary court book contains a purported certificate under s.473GB of the Migration Act. The issue of the certificate was dealt with in the Minister’s submissions but no issue about the certificate was raised either in the amended application or in the applicant’s oral submissions at the trial. Having regard to the Full Federal Court decision in BBS16 at [89]-[100], the statutory regime under which the Authority operates, the lack of any evidence whether the Authority relied in any way on the certificate, and the apparent lack of relevance of the document purported to be covered by the certificate, I see no issue of jurisdictional error arising in relation to the certificate.

Conclusion

1. The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error in relation to Ground 1.  He should receive relief in the form of the constitutional writs of certiorari and mandamus.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 7 December 2017