DWK17 v Minister for Immigration
[2018] FCCA 148
•24 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWK17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 148 |
| Catchwords: PRACTICE AND PROCEDURE – Application for adjournment – factors for consideration – whether right to legal representation. |
| Legislation: Migration Act 1958 (Cth), Pt 7AA, Div.3, ss.5J, 46A, 65, 473CB, 473DA, 473DB, 473DD, 473DE, 473GA, 473GB Migration Regulations 1994 (Cth), reg.4.43 |
| Cases cited: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68, (2016) 241 FCR 30; (2016) 338 ALR 551 AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 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 Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 Minister for Immigration & Multicultural Affairs v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 |
| Applicant: | DWK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 464 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 8 December 2017 |
| Date of Last Submission: | 8 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 24 January 2018 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr P J Hannan |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 464 of 2017
| DWK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 29 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 Visa (Subclass 780) (“TP Visa”) visa under s.65 of the Migration Act.
A copy of the IAA Decision dated 17 July 2017 is at Court Book (“CB”) 208-228.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is an Afghan national who arrived in Australia as an unauthorised maritime arrival on 26 April 2013: CB 172;
b)on 11 May 2016 the Minister ‘lifted the bar,’ pursuant to s.46A(2) of the Migration Act, and invited the applicant to apply for a TP Visa: CB 22-23;
c)on 27 July 2016 the applicant lodged a TP Visa application making the following claims for protection:
i)the Taliban stopped him as he was delivering parcels from Ghazni to Kabul, the parcels contained stationery items, and he was accused of working for a non-government organisation (“NGO”): CB 65;
ii)the Taliban handcuffed, blindfolded and pushed the applicant into the back of a car and transported him to an unknown destination, the next day he was transported to another place, and he was able to escape during the night: CB 65;
iii)a person from his village told him the Taliban were looking for him and he was afraid because he is a Hazara and the Taliban have informers everywhere who will tell the Taliban where to find him: CB 66;
iv)his family moved to Kabul to escape but he could not live his life in hiding forever: CB 66;
v)he will be harmed by the Taliban, who have arrested and beaten him previously, by reason of being a Hazara Shia Muslim perceived as being supportive of the government and international communities who oppose the Taliban’s Islamic principles: CB 66; and
vi)the government in Afghanistan cannot protect him and he has already tried to relocate, if returned he will be unable to sustain himself in Kabul and will likely be killed in his home town by the Taliban: CB 67;
d)the applicant attended the TP Visa interview with the Delegate on 28 October 2016, and the applicant provided a number of screenshots of his Facebook page: CB 116-142;
e)a representative of the applicant provided post interview submissions to the Delegate on 28 November 2016: CB 142-185;
f)on 30 November 2016 the applicant was advised of the Delegate’s Decision to refuse the applicant a TP Visa: CB 169-171;
g)the Delegate advised the IAA certain information was covered by s.473GB of the Migration Act: CB 169 and 186; and
h)the IAA received a referral from the Delegate on 7 December 2016, and on 28 July 2017 the IAA Decision affirmed the Delegate’s Decision not to grant the TP Visa: CB 208 and 224.
IAA Decision
The IAA considered and referred to the information provided by the Delegate under s.473CB of the Migration Act, and expressly noted this included the post interview submissions from the applicant’s representative: CB 209 at [2]. The IAA obtained no further information, nor did the applicant supply any new information for the IAA.
In the IAA Decision the IAA:
a)noted the applicant had been generally consistent in his evidence about the incident where he was stopped by the Taliban, and, while there were discrepancies with dates it considered these immaterial, and thus accepted the claims the applicant worked as a driver carrying people and goods between Jaghori, Ghazni and Kabul and that on one of these journeys he was detained by the Taliban on suspicion of working for an NGO, and that he managed to escape and then returned to Jaghori: CB 210 at [5]:
b)found it implausible that the applicant would make an approach to the Taliban, even indirectly, to recover his car from them so soon after the event, and particularly by sending representatives from his own village, or someone who had been captured and just escaped from the Taliban would deliberately turn the Taliban's attention back on himself and effectively reveal to them his location by virtue of sending his village representatives to approach the Taliban: CB 210 at [7];
c)accepted the applicant’s claims he stayed in Jaghori for two months making arrangements to leave after the incident, and that the Taliban have the capability to find persons of interest, however did not accept the claims the applicant stayed in his house to avoid detection because he feared the Taliban would locate him by reason of informants advising them of his whereabouts, or that the Taliban had in fact made any attempt to locate him: CB 211 at [8];
d)was not satisfied the applicant was of adverse interest to the Taliban when he left Afghanistan, nor of any current interest, given the four to five years his family have lived in Kabul without any problems arising from their connection with the applicant, and during which time there was evidence of siblings attending university, a university graduation and attendance by family, participation in taekwondo events, as well as money transfers from the applicant to a sibling, all of that evidence being available in Facebook posts, which indicated that the family did not maintain a low profile in Afghanistan: CB 211 at [10];
e)noted that the applicant has chosen to embellish his Facebook image with an Afghan government profile and did not consider that to be commensurate with the behaviour of someone who still fears the Taliban are pursuing him and concluded that the applicant does not fear reprisal from the Taliban on the basis of his “previous imputed profile”: CB 212 at [11];
f)did not accept the Taliban have, or would have, access to the applicant’s Facebook page and were the applicant to conceal or alter the content of his profile (considering his admission he has provided false information on the page regarding his employment history) it would not be considered a concealment of a characteristic fundamental to his identity or conscience, or which would otherwise fall within the limitations in s.5J(3) of the Migration Act: CB 213 at [18] and 222 at [50];
g)took into account that insecurity affects Afghanistan's road network and due to the activities of the Taliban and other insurgent groups the applicant’s home province is one of the most volatile provinces in Afghanistan in terms of attacks on defence forces, international forces and civilians, but that the government maintains effective control in Kabul, has implemented a range of counter-measures to detect threats, deter insurgents and quickly respond to attacks which are still carried out, but mostly against high-profile targets, and as the applicant is not a high-profile target and his family has otherwise lived safely in Kabul the applicant could relocate, or simply return to this region to avoid the significant harm he fears: CB 215 at [24] and 223-224 at [57]-[60];
h)referred to country information stating that the Taliban has specifically condemned the recent mass casualty attacks against Shias and spoken out convincingly against sectarianism that Islamic State has purported to inject in the region, and was not satisfied that Islamic State's influence in Afghanistan is such that the Taliban or other key actors will share or support its sectarian stance in the reasonably foreseeable future: CB 216 at [28]-[29];
i)acknowledged the applicant’s claim of fearing harm from Pashtuns on account of his ethnicity as a Hazara, but was not satisfied he would be of adverse interest to the Pashtun community, and observed that Hazara Shias are free to participate fully in public life and where discrimination exists, it is low-level discrimination only and that State protection would not be withheld from the applicant because he was a Hazara Shia, or that the applicant would face discrimination from the Afghan government or authorities which would amount to serious harm: CB 217 at [32];
j)was satisfied that the applicant's familiarity with Kabul and his existing family connections were favourable to his ability to take reasonable precautions, like those taken by other ordinary civilians in Kabul, such that the chance the applicant would be harmed as a bystander, inadvertently getting caught up in attacks, or otherwise through generalised violence, would be remote: CB 220 at [40]-[42] and 222 at [51]; and
k)affirmed the Delegate’s Decision not to grant the TP Visa: CB 224.
Judicial Review Application
The grounds of the Judicial Review Application lodged by the applicant are as follows:
1. JURISDICTIONAL ERROR
2. BIAS BASED ON CONSCIOUS OR UNCONSCIOUS PREJUDICE BY IGNORING RELEVANT MATERIAL
3. ASKING THE WRONG QUESTION
4. NOT FOLLOWING THE CORRECT PROCEDURE IN ASSESSING EVIDENCE
[copied without amendment].
The applicant was provided with an opportunity by a Registrar of this Court to file an amended Judicial Review Application or further affidavits and submissions with the Court prior to hearing (“Registrar’s Orders”). The applicant did not do so.
At hearing, with the assistance of an interpreter and without legal representation, the Court invited the applicant to make any oral submissions in support of the four grounds stated in his Judicial Review Application. The applicant required the Court to tell him what the four grounds of his own Judicial Review Application were before stating:
a)the Delegate did not ask him many questions about his risk of returning back to Afghanistan and mainly asked about his family, and told him his family members had travelled to other parts of Afghanistan, including Herat;
b)it is known it is a ‘world war’ in Afghanistan, and the Delegate did not even pay attention to the conditions in his country, and was only asking irrelevant questions;
c)the Delegate only asked him what happened in the incident with the Taliban, he explained it and no more questions were asked about it;
d)the Delegate did not ask what would happen if he was returned to Afghanistan and did not tell him if the Department were “ignoring the visa, not giving the visa, not giving the protection, what’s going to happen to me”; and
e)after the interview, his Migration Agent told him that he will send another letter or submission on the applicant’s behalf, but he has no idea what was submitted.
At hearing the Minister raised pre-hearing correspondence in which the applicant had seemingly sought an adjournment of the hearing. It would appear that on 10 November 2017 the Minister forwarded to the Registry of the Court correspondence the applicant had addressed to the Court and the Minister, but which did not provide a postal address for the Court and was simply posted to “Federal Circuit Court Registry Perth”. The Court would not have been made aware of the content of the letter had the Minister not drawn it to the Court’s attention. The applicant’s letter, dated 20 October 2017, requested an extension of time to submit his amended application and an adjournment of the final hearing date whilst he secured pro bono assistance. The Minister responded to the applicant’s letter advising that an adjournment of the final hearing date was opposed, and that the applicant was required to attend the final hearing on 8 December 2017. The Minister advised the applicant that the Minister would agree to a three day extension in which the applicant could file his amended Judicial Review Application, but the applicant did not respond to the correspondence sent to him on behalf of the Minister, nor did the applicant make any amended Judicial Review Application in the matter. The Minister otherwise opposed the application for adjournment.
When asked at hearing the applicant stated he asked for an extension of time as he was struggling to find a lawyer in the limited time and the ‘lawyer’ who filed his application to the Court said he would not be able to go to Court with him. The Court notes that no lawyer has ever appeared on the record in this Court for the applicant, and the Judicial Review Application was filed by the applicant on his own behalf. The Court notes the Judicial Review Application was hand-written in English, and therefore most likely written by a person other than the applicant, as the applicant does not appear to be able to speak or write in English, but the form and content of the Judicial Review Application is such that it is most unlikely that it was prepared by a lawyer.
At hearing the Minister otherwise submitted as follows:
a)the applicant has not identified the jurisdictional error that he alleges the IAA made and ground 1 must therefore fail;
b)disagreement with the IAA’s findings of fact does not support a contention that the IAA failed to consider the evidence properly or fairly: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J;
c)there is nothing in any of the material before the Court to suggest that the IAA carried out its task other than in a proper and fair manner;
d)the focus of the IAA Decision was on whether the applicant was owed protection obligations in Australia by meeting the criteria in s.36(2)(a) or (aa) of the Migration Act;
e)the IAA reviewed the documents and oral recordings of the applicant’s interviews and considered the evidence and formed its own views as it was required to do;
f)it is for the person applying for the TP Visa to make out a case for the grant of a TP Visa, and not to leave it to the Department, or the IAA, to help make a case for the TP Visa; and
g)the applicant’s migration agent provided post-interview submissions dated 23 November 2016 to the Delegate, suggesting that the applicant had migration assistance at the interview stage, and in those circumstances it was particularly appropriate for the Delegate to leave it to the applicant and his migration agent to present the applicant’s case for a TP Visa in the way which they saw fit.
Consideration
Adjournment
While the applicant did not appear to press the application for adjournment to secure legal assistance with his matter at hearing the Court will address the issue given that it was at least raised during oral submissions at hearing.
This Court may refer a person for pro bono legal assistance: Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) r.12.02(1), but there is no right to a referral, or to apply for a referral: FCC Rules r.12.03; WZATG v Minister for Immigration & Anor [2014] FCCA 2730 at [21] per Judge Lucev, rather, a referral requires the positive exercise of a discretion by the Court, taking into account and weighing the factors in r.12.02(2) of the FCC Rules. Where a referral is made, a Registrar will attempt to arrange pro-bono legal representation: FCC Rules rr.12.02(4).
The Court notes that on 28 September 2017 the applicant was emailed a stamped copy of the Registrar’s Order, attached to which was a flyer outlining the availability of legal aid assistance for parties in this Court. While the legal aid assistance did not extend to making court appearances on behalf of an applicant, it did state a legal advice service could be provided, and to contact the Registry to make an appointment. While the Court is unaware if the applicant sought to act upon this offer, an opportunity to seek free legal advice was nevertheless extended to him.
There is no right to legal representation in judicial review proceedings under the Migration Act: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; WZASY v Minister for Immigration & Anor [2017] FCCA 1623 at [20]-[21] per Judge Lucev (and cases there cited). It is not a requirement of procedural fairness for an applicant to have publically funded legal representation, nor is it a reasonable ground for an application or proceeding to be stayed because an applicant does not have such representation: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68, (2016) 241 FCR 30; (2016) 338 ALR 551 at [51] per Flick, Griffiths and Perry JJ.
When making a decision upon an adjournment application, the Court notes that it has a broad discretion in relation to whether or not it adjourns: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev. The principles set out by the High Court, those being the interests of the administration of justice, issues associated with case management and wastage of public resources, in Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14, noting that those principles have been adopted by this Court in migration proceedings, on a number of occasions, including recently, for example, in CVA17 v Minister for Immigration & Anor [2017] FCCA 3208 at [13] per Judge Lucev and BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly (“BHG16”), are to be applied when considering an application for an adjournment. Were this matter to be adjourned, it would be very difficult to find another hearing date within a reasonable period of time, there would be wastage of public resources by having to have the Court reconvene, and in having the Minister’s lawyers and another interpreter reappear, at any reconvened hearing: BHG16 at [28] per Judge A Kelly.
The application for an adjournment was for the sole reason of seeking to find legal assistance. The applicant was previously represented by a ‘lawyer’ and said he was looking to find a lawyer and it was ‘hard.’ The applicant stands in the same situation as many others with migration proceedings before this Court with regards to means of the party, capacity to obtain legal assistance elsewhere and the nature and complexity of proceedings.
The Court also takes into account the likely merits of the Judicial Review Application, and is not satisfied that they warrant the adjournment of the hearing whilst legal assistance is sought. The Court also bears in mind that it may not be possible for the applicant to obtain legal assistance.
For these reasons the applicant’s adjournment application, if such it was, is dismissed.
Jurisdictional error required
The IAA Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the IAA, will only constitute jurisdictional error if the IAA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for 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 (“Yusuf”). In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: 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 (“SZBEL”).
Particularisation of grounds required
None of the grounds were particularised in the Judicial Review Application. This provides a basis for each of grounds 1, 2, 3 and 4 of the Judicial Review Application to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited); AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J.
Where a proposed ground of review is considered to not be, because of lack of language competence or legal training, well expressed, if on a fair reading it does disclose what could be considered a jurisdictional error, then it must to be so regarded: BHK15 v Minister for Immigration & Border Protection [2016] FCA 569 at [10] per Logan J (“BHK15”). In BHK 15 at [14] per Logan J the Federal Court said as follows:
Quite apart from the earlier opportunity extended to the applicant to amend his judicial review application, his Honour … offered the applicant an opportunity orally to particularise the basis of his generally alleged legal error. In so doing, his Honour observed all that was necessary to afford the applicant procedural fairness.
At hearing this Court offered the applicant an opportunity to particularise his claims and identify the specific jurisdictional error, material ignored by the IAA which was allegedly an instance of bias, what wrong question the IAA asked itself and what procedure was breached when assessing the evidence. The applicant was unable to articulate anything which particularised the grounds of the Judicial Review Application.
Oral Submissions at hearing
The oral submissions made by the applicant at hearing each referred to the conduct of the Delegate at the interview, and there was no reference to the IAA Decision. If the IAA Decision is not flawed it cures any relevant defect or relevant irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J; AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 at [10] per Judge Lucev. The IAA notably:
a)expressly stated it had regard to the material referred under s.473CB of the Migration Act, and no other material was provided: CB 189 and 209 at [2];
b)referred to the post-interview submission provided by the applicant’s previous legal representative which the Court notes contained specific information on what would happen if the applicant was to return to Afghanistan and why relocation was not an option: CB 143-149 and 209 at [2];
c)referred to the manner in which the applicant provided his evidence: CB 210 at [4]; and
d)a transcript or recording of the applicant’s interview was provided to the IAA and the IAA did not exercise the discretion under s.473DE of the Migration Act to invite the applicant to another interview implying the IAA was satisfied the applicant had made his claims in their entirety.
The applicant was accompanied by a representative at the interview with the Delegate, and post interview submissions were made in furtherance of the applicant’s claims none of which suggested the interview was flawed or should be undertaken again. The Court has no jurisdiction to review the Delegate’s Decision, and each of the applicant’s claims refers to the interview with the Delegate.
In the circumstances, the applicant’s oral submissions made at hearing fail to establish any jurisdictional error in the IAA Decision.
Ground 1
The IAA has set out the relevant law against which it is required to assess the applicant’s TP Visa: CB 213 at [16], 221 at [44]-[47] and 226-228. There is nothing to suggest any breach of the IAA’s procedural fairness obligations: Migration Act, Pt.7AA, Div.3 ss.473DA(1), 473GA and 473GB. The IAA’s consideration of the applicant’s claims was comprehensive and it made findings, including its adverse view of the credibility of some of the applicant’s claims, that were open to it on the evidence. The IAA has addressed the each of the applicant’s claims, and has performed its limited review function without any apparent or evidenced jurisdictional error. There is nothing in the IAA Decision which suggests that the IAA has identified a wrong issue, asked itself a wrong question, ignored relevant material or relied on irrelevant material in reaching its decision: 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; Yusuf at [82] per McHugh, Gummow and Hayne JJ.
The onus is upon the applicant to establish the jurisdictional error: Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J. The applicant has not identified the nature of the jurisdictional error relied upon in ground 1. The Court cannot deduce the applicant is asserting some other, unidentified, jurisdictional error. The applicant has therefore failed to establish any jurisdictional error in the IAA Decision by reason of ground 1 of the Judicial Review Application.
Ground 2
The applicant has given no details as to why he says that the IAA Decision is affected by bias, other than to make a general statement that the IAA was biased because it ignored relevant material.
An allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). The applicant has not distinctly or clearly proven that the IAA was either consciously or unconsciously biased because it ignored relevant material, particularly so where the applicant has failed to identify what relevant material was ignored.
In accordance with s.473CB of the Migration Act all materials referred to and before the Delegate and any other materials considered relevant to the applicant’s circumstances and assessment by the Secretary of the Department of Immigration and Border Protection are considered by the Delegate. This included the written submissions of the applicant’s representative. The IAA was bound by s.473DB of the Migration Act to proceed on the papers before it subject to the exception in s.473DD of the Migration Act which the IAA expressly addressed at CB 209 at [2].
A claim the IAA was biased because it ignored relevant material is unfounded in circumstances where the material relied on by the IAA was only that which it was permitted to consider. Had the IAA used other materials which did not warrant inclusion pursuant to s.473DD of the Migration Act, the IAA may have committed jurisdictional error by exceeding the authority given to it under the Migration Act: Yusuf at [82] per McHugh, Gummow and Hayne JJ.
Regarding the IAA findings both generally, and as to credibility of the applicant, there is no evidence:
a)that the IAA had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, any proper assessment of the evidence before it: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the IAA, might reasonably apprehend that the IAA may not have brought an impartial mind to the assessment of the material before it: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The applicant has failed to establish any jurisdictional error in the IAA Decision by reason of ground 2 of the Judicial Review Application.
Ground 3
The IAA was required to determine if the Delegate’s Decision needed to be remitted back to the Delegate with a permissible direction as expressed in reg.4.43 of the Migration Regulations 1994 (Cth). In BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169 at [87] per Charlesworth J the Federal Court said:
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 IAA thoroughly addressed and considered each of the applicant’s claims, including in comprehensive detail:
a)the concerns raised by the applicant’s representatives in the post-hearing submissions relating to the Facebook page of the applicant: CB 211-212 at [10]-[12];
b)claims concerning the applicant’s ethnicity, religion and previous experiences: CB 214 at [20], CB ; and
c)the current situation in Afghanistan with extremist factions: CB 216-217 at [27]-[30].
In relation to whether the IAA asked the wrong question:
a)the applicant has failed to identify the wrong question that the IAA is alleged to have asked; and
b)the focus of the IAA Decision was on whether the applicant was owed protection obligations in Australia by meeting the criteria in s.36(2)(a) or (aa) of the Migration Act, and therefore the right question was asked and considered by the IAA.
The applicant has failed to establish any jurisdictional error in the IAA Decision by reason of ground 3 of the Judicial Review Application.
Ground 4
In relation to ground 4:
a)the fast track review process effected by Part 7AA of the Migration Act provides for a limited form of merits review, which will ordinarily be a “review on the papers” (that is, on the material before the Delegate);
b)the IAA reviewed the documents that the applicant provided to the Delegate and oral recordings of interviews attended by the applicant with the Delegate, and considered that evidence and formed its own views, as it was required to do; and
c)as part of its fact finding functions, the IAA was entitled to accept, reject or give weight to evidence as it considers to be appropriate in all the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J; 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 281-282 per Brennan CJ, Toohey , McHugh and Gummow JJ..
It is well accepted that fact finding and the weight to be attached to the material and evidence before it is a matter for the IAA: Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 at [32] per Sundberg, Emmett and Conti JJ; Minister for Immigration & Multicultural Affairs v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 at [32]-[33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“SZJSS”). If the conclusions reached by the IAA are unreasonable in that they lack any evident and intelligible justification jurisdictional error may occur: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ (“Li”).
The applicant led no evidence to suggest the IAA has not given proper, genuine and realistic consideration to the applicant’s claims and evidence: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29], [32]-[33] per Griffiths, White and Bromwich JJ; SZJSS at [26] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, and there is nothing on the face of the IAA Decision which suggests that the determination to affirm the Delegate’s refusal of the grant of a TP Visa to the applicant lacks any evident and intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ.
The applicant has failed to establish any jurisdictional error in the IAA Decision by reason of ground 4 of the Judicial Review Application.
BBS16
In Minister for Immigration & Border Protection v BBS16 (2017) FCAFC 176 at [82] per Kenny, Tracey and Griffiths JJ (“BBS16”) (referring to S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112) the Full Court of the Federal Court stated:
… the IAA should have asked why the first respondent had not in the past practised his religion more extensively or been more politically active and, moreover, why he would not alter his past behaviour if he were returned to Iran. The IAA needed to inquire, and make relevant findings, as to whether this was because of the very harm which the IAA accepted confronted more prominent and active religious and political proponents.
The applicant claimed he went into hiding because he had been imputed to be a member of a NGO by the Taliban, the IAA accepting this imputation. The applicant also revealed he had fabricated, since arriving in Australia, information on his Facebook profile, including a reference to his being employed in the Afghan Ministry of Foreign Affairs. The IAA was not satisfied, and did not accept the Taliban or other anti-government associations had accessed the applicant’s Facebook profile, and expressly stated it was not going to engage in speculation they had: CB 211-212 at [11]-[12], and further the applicant had made his profile ‘public’ such that any person could find him and this was inconsistent with the applicant claiming to fear being imputed with an affiliation to government entities, and he and his family keeping a “low profile”: CB 211 at [10].
The applicant had never been a member of, or affiliated with, a NGO or a government department in Afghanistan, rather he was a taxi driver and a courier. The applicant had not altered his behaviour any time prior to the Taliban taking him away suspecting he was working for an NGO, and he vehemently denied doing so when questioned by the Taliban and upon escaping he stated he fled and remained in hiding. The IAA went on to make findings regarding the credibility of the applicant’s claims the Taliban was still looking for him and that they would seek him out if he returned to Afghanistan in circumstances where:
a)it was “satisfied on the evidence that the family has not sought to keep a low-profile … [and] are active members of their local community. There is nothing before me to suggest they have been approached by anyone looking for the applicant”: CB 211 at [10];
b)the applicant being able to do everything he needed to do, including selling land and animals, from inside his house prior to leaving for Australia, was not consistent with his living in hiding in his house during the two month period to avoid detection from the Taliban or Taliban informants: CB 211 at [8]; and
c)the applicant sought to reclaim his car from the Taliban almost immediately after escaping from them by sending villagers to ask on his behalf, such that those villagers could easily have disclosed his location or lead the Taliban back to him: CB 210 at [6]-[7].
When summarising the findings in regard to harm from the applicants Facebook profile expressly stating he worked at the Afghan Ministry of Foreign Affairs the IAA stated at CB 213 at [17]-[18]:
17. I have not accepted the Taliban or any other insurgents in Afghanistan have accessed the applicant's Facebook page or that the information on that page has otherwise come to their attention. Nor do I consider that they would seek out his Facebook page.
18. I have also considered what the applicant would do with regards to his Facebook upon return. Given the applicant's travel to Australia was prompted initially by his being detained and harmed by the Taliban upon accusation of working for an NGO, that the applicant moved his family to Kabul because he feared being intercepted by them again, claims that he made the journey to Australia to avoid attention from the Taliban and has articulated that he fears retribution because of the information on Facebook, I do not accept he would leave his Facebook profile and settings as they are if he were to return to Afghanistan. I am satisfied the applicant would take steps to manage his Facebook page by removing the information about Kabul University and his employment with the MFA and his residence in Australia from his Facebook profile, or would otherwise change his security and privacy settings so that only chosen trusted people could view his profile. I am not satisfied that removing false information from the applicant's Facebook page or changing his settings so that his profile is no longer public are steps that would amount to serious harm in themselves, or that it would involve concealing an innate or immutable characteristic or conflict with a characteristic fundamental to his identity or conscience, or would otherwise fall within any other s.5J(3) limitation. I am satisfied these are reasonable steps the applicant could take to avoid a real chance of persecution arising from the information on his Facebook page …
and at CB 222 at [50]:
50. Taking into account the applicant's Facebook profile, I am satisfied the applicant would actively manage his Facebook profile and settings, by either removing the information regarding his University studies and MFA employment and his residence in Australia and/or managing his security and privacy settings so that only trusted persons can view his profile. I am not satisfied that acts of changing his profile details and/or restricting his security/privacy settings would lead to a real risk of significant harm or that they would amount to significant harm in themselves.
The IAA seemingly was not required to ask itself the questions raised by the Full Federal Court in BBS16 as it did not accept the applicant had in fact altered his behaviour in fear of Taliban repercussions. Indeed the applicant did state he moved after the incident, and the IAA accepted this, but as stated in s.5J(1)(c) of the Migration Act a fear of persecution must relate to all areas of the receiving country, and having found the applicant moved from Jaghori to Kabul and was able to do so without being further sought by the Taliban the IAA does not appear to have committed an error of the type identified in BBS16.
No jurisdictional error in the IAA Decision has been established on the basis of BBS16 considerations.
Conclusion and Orders
No jurisdictional error has 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 fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 24 January 2018
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