DWL17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 771
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DWL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 771
File number(s): SYG 2713 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 25 August 2023 Catchwords: MIGRATION LAW – JUDICIAL REVIEW – Where delegate made favourable findings and authority made adverse findings – Whether it was legally unreasonable for authority to not exercise discretion to seek new information under s.473DC – Where adverse finding by authority related to an integral component of the applicant’s claims –Jurisdictional error established Legislation: Migration Act 1958 (Cth) s.473DC Cases cited: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
DPI17 v Minister for Home Affairs [2019] FCAFC 43
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Border Protection v SZMTA
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of last submission/s: 1 March 2023 Date of hearing: 1 March 2023 Place: Parramatta Counsel for the Applicant: Mr Zipser Solicitor for the Applicant: Westside Legal Counsel for the Respondents: Ms Case Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 2713 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DWL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
25 AUGUST 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the second respondent dated 1 August 2017 to affirm the decision of a delegate of the first respondent (“delegate”) to refuse to grant the applicant a Protection Visa.
2.A writ of mandamus issue, remitting the matter to the second respondent and requiring it to determine according to law the application referred to it by the first respondent for review of the delegate’s decision.
3.A writ of prohibition issue, prohibiting the first respondent and his delegates, servants and agents from acting upon or giving effect to the decision of the second respondent.
4.The Minister pay the applicant’s costs as agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
INTRODUCTION
These are the Reasons for Judgment of the Amended Application filed 14 February 2023 for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) dated 1 August 2017, which affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the delegate”) to refuse the applicant a protection visa (“PV”).
BACKGROUND
The applicant is a Shia Muslim from Qadisiyah, Iraq, and is a citizen of that country.
The applicant arrived in Australia as an unauthorised maritime arrive on 7 July 2013, and on 5 August 2013 participated in an irregular maritime arrival and induction interview (“arrival interview”).
Following the lifting of a bar, the applicant applied for a PV on 22 November 2016. The application included a statutory declaration by the applicant dated 14 November 2016, setting out his claims. On 20 January 2017, he participated in a PV interview (“PV interview”).
On 24 March 2017, the delegate refused to grant the applicant a PV.
On 29 March 2017, the matter was referred to the Authority.
On 14 May 2017, the applicant’s agent provided a submission to the Authority.
On 1 August 2017, the Authority affirmed the decision of the delegate not to grant the applicant a PV.
The applicant applied for a judicial review of the Authority’s decision on 30 August 2017, and then, after leave was granted, filed an Amended Application on 14 February 2023.
THE DELEGATE’S DECISION
The delegate understood the applicant’s claim for protection as centring on his belief that, if he returned to Iraq, he would be threatened and killed by militias for his former work as a police officer arresting members of the militia.[1]
[1] CB:197.
The delegate made the following findings of fact:[2]
•The applicant is a Shia Muslim of Arab ethnicity.
•The applicant’s home area in Iraq is located in the Qadisiyah governorate of Iraq.
•The applicant joined the police force in 2009, employed by the Ministry of Interior.
•He was part of the “ambush police”, patrolled “International Street” in Qadisiyah, and arrested militia members from the Mahdi Army or Asa’ib Ahl al-Haq.
•The applicant received threatening phone calls from unknown individuals identifying themselves as members of the Mahdi Army as a result of him working with Americans and arresting members of militias.
•The applicant resigned from the force in January 2013.
•Following the threatening phone call in January 2013, after his resignation, the applicant resided at the police station until May 2013. He then formalised his resignation from the police force by surrendering his pistol, Kalashnikov and police car.
[2] CB:199.
The delegate refused the application for a PV on the basis that it was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act. The delegate found that the applicant did not face a real chance of serious harm in the reasonably foreseeable future as a former police officer who worked with Americans and arrested members of militias. In reaching this conclusion, the delegate had regard to of the applicant’s personal circumstances, the fact that he had not been a police officer for more than three years, the general security of Qadishiya, and an absence of country information indicating police officers being targeted by militia. The delegate also found the following:[3]
(a)That the applicant could take reasonable steps to modify his behaviour with regards to employment so as not to resume work as a police officer;
(b)There are no discernible problems for returnees to Iraq such that there is a real chance of facing serious harm; and
(c)The delegate was satisfied that there would not be a real chance of the applicant facing prosecution on his return to Qadisiya.
[3] CB:200-2.
Furthermore, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iraq, there was a real risk of the applicant suffering significant harm. Accordingly, the delegate was not satisfied that the applicant was a person to whom protection obligations were owed under s.36(2)(aa) of the Act.[4]
[4] CB:203.
On this basis, the delegate refused the granting of the PV.
THE AUTHORITY’S DECISION
The Authority summarised the relevant information going towards the applicant’s claim for protection, including the following:[5]
[5] CB:235[4].
(a)The applicant joined the police force on 1 January 2009 as the only available jobs were in the police or army;
(b)After five months in the police force he was assigned to the “ambush police” manning a checkpoint in “International Street” searching people and vehicles for armaments. In this role, once the squad arrested suspects, they were handed over to the Americans and many of the people arrested were members of militia groups including Mehdi Army and Asa’ib Ahl Al-Haq (“AAH”);
(c)Following the withdrawal of US Forces from Iraq, the applicant was transferred to a unit that repaired police vehicles where he had no daily contact with militia groups;
(d)In August 2012, he received a phone call from a person identifying themselves as a follower of the Mehdi Army. This caller told the applicant that he would be killed if he continued to work for the police, and that he was being given a chance as he was new to the police and should declare his repentance;
(e)The applicant immediately resigned, but his resignation was not approved until January 2013;
(f)Shortly after his resignation was approved, the applicant received a further phone call stating that the caller’s religious group had issued a death sentence against him as he was a traitor and agent for the Americans;
(g)The applicant told his commander about the second phone call, but was told he could not leave the country until he surrendered his pistol, Kalashnikov and motor vehicle, which could not be done until an order was received from the Minister;
(h)While waiting for the order from the Ministry, which arrived in May 2013, the applicant lived at the police quarters; and
(i)The applicant could not return to Iraq because, if he does, he would be killed by the people who were threatening him, namely the Mehdi Army.
A key concern for the Authority was the applicant’s account of the two phone calls. Specifically, the Authority was concerned that “there has been a significant change in the applicant’s evidence relating to the threatening telephone calls that he received.”[6] In summary, the Authority concluded that:
(a)At the time the first phone call was received, consistently stated as August 2012, the US Forces had completely withdrawn from Iraq. However, the Authority was prepared to accept that, for part of the applicant’s time in the police, he had worked with the US Forces;[7]
(b)During the arrival interview, the applicant stated that the first call demanded he resign from the police or be killed. Then in his statutory declaration dated 14 November 2016, the applicant added that he had been given a chance due to him being new to the police force and would not be killed if he resigned and declared repentance. Following this, in his PV interview, the applicant claimed that the caller demanded he resign in order that they could kill him, as he would no longer be protected by the police. The Authority noted that the delegate returned to the account from the PV interview on several occasions and the applicant confirmed that this was correct. The applicant added that, if he did not resign, then one of his family members would be killed;[8]
(c)According to the Authority, there was a disparity in the evidence as to at what point the applicant resigned. In the statutory declaration he claimed to have resigned immediately after the first phone call (August 2012), but in the arrival interview and PV interview he stated his resignation date as January 2013;[9] and
(d)In the applicant’s evidence, he claimed that he was unable to leave Iraq after resigning as he needed to return his police motor vehicle, pistol and Kalashnikov, and that these needed to be returned to a Baghdad liaison officer. However, the applicant also claimed that he had been working in a factory repairing police vehicles after US withdrawal and had been “living in the factory” since August 2012, a role with no public contact duties. The Authority considered these claims to be inconsistent and was thus not satisfied that the applicant would have still been in possessions of his police issue motor vehicle, pistol and Kalashnikov in 2013.[10]
[6] CB:236[7].
[7] CB:236[7].
[8] CB:237[8].
[9] CB:237[8].
[10] CB:237[9].
In light of the above, the Authority made the following factual findings:[11]
Having taken into account all of the applicant’s evidence I am satisfied that he was a member of the Iraqi police force from January 2009 and that he resigned in May 2013. I accept that he had some interaction with US Forces during the earlier part of this period. I accept that he manned a checkpoint and arrested individuals who were carrying arms and explosives. It is likely that such individuals were members of Sunni or Shia militia groups. I do not accept that he received telephone calls from the Mehdi Army or AAH threatening his life, accusing him of being a traitor or demanding that he resign from the police force. I consider that he was a member of the police force until May 2013 and was not of any particular interest to any militia groups prior to his departure from Iraq. I do not accept that militia members approached his father seeking his whereabouts or threatening to kill him if he returned to Iraq. I do not accept the applicant resigned for the reasons he claims.
(emphasis added)
[11] CB:237[11].
The Authority then considered the applicant’s PV claim under s.5J of the Act. The Authority concluded that:
(a)It was not satisfied that there would be a real chance of serious harm to the applicant due to his former role as a police officer;
(b)There was not more than a remote chance that he would be harmed due to his police duties from 2009 until the US withdrawal;
(c)There was not a real chance that he would be persecuted as a Shia Arab if he were to return to Diwaniyah in the reasonably foreseeable future;
(d)The threat from generalised violence was not at a level that would give rise to a real chance that he would be seriously harmed on account of this; and
(e)It was not satisfied that the applicant faced a real chance of harm on account of having spent time in Australia or having unsuccessfully sought asylum.
Accordingly, the Authority concluded that the applicant did not meet the requirements of the definition of refugee in s.5H(1) and did not meet s.36(2)(a) of the Act. On the basis that “real risk” and “real chance” involve the application of the same standard, the Authority was also not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa) of the Act.[12]
[12] CB:240[24].
JUDICIAL REVIEW APPLICATION
The application for judicial review raises one ground only.
Part of the applicant’s claims for a PV was that he received two threatening phone calls, in August 2012 and January 2013 respectively. The delegate accepted that the applicant had received such threatening phone calls. The Authority did not.
The Authority made a finding which was adverse to the applicant in place of a finding by the delegate which was favourable to the applicant. In those circumstances, the applicant submitted that it was legally unreasonable for the Authority to not exercise its power, or in the alternative, not consider exercising its power under s.473DC(3) of the Act to invite the applicant to respond to the Authority’s concerns as to whether the applicant received the two phone calls.
As the claim in relation to the phone calls was material to the success of the PV application, the applicant submits that this failure of the Authority to exercise its powers within the bounds of legal reasonableness was a jurisdictional error.
DETERMINATION
Section 473DC of the Act provides as follows:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The statement of reasons of the Authority must be read fairly and not in an unduly critical manner, and it must be read in light of the content of the statutory obligation pursuant to which it was prepared.[13]
[13] BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [38] (“BVD17”) citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 606 [32], 617 [70], 623 [91]-[92].
The following principles are well understood:[14]
1. as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant”;
2. the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied;
3. the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) (at [21]);
4. the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant;
5. although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably; and
6. s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision.
[14] DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [35] (“DPI17”) citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [1], [17], [21], [24], [26] and [35].
The issue presently before the Court is not only whether the Authority considered if it should exercise its power under s.473DC, it is that it did not exercise its power when it could and should have done so. The two are argued in the alternative.
The Authority is under no obligation to give reasons for its exercise or non-exercise of any procedural power, and the mere failure by the Authority to mention the discretion conferred by a relevant statutory provision cannot support the drawing of an inference that the exercise of the discretion was not considered.[15] Merely because there is a failure to consider the exercise of the power under s.473DC does not of itself involve error, let alone jurisdictional error.[16]
[15] BVD17 at [40] but in respect of s.473GB, citations omitted.
[16] DPI17 at [37].
The applicant has not established, on the facts of this case, that the Authority erred by not considering the exercise of its power under s.473DC(3). There is nothing to indicate, in fact, whether or not it did consider the exercise of its power. It is a fact though, that it did not exercise its power. As such, if the Authority did consider whether it should exercise its powers, it must have come to the conclusion that it should not do so (as it did not do so).
It is not in contention that the power in s.473DC has to be exercised reasonably.[17] Nor is it in contention that legal unreasonableness is invariably fact dependent and requires evaluation of the evidence.[18]
[17] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217.
[18] DPI17 at [37] citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47].
The Court must apply the relevant general principles to the particular factual circumstances of the case, and not engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases. The starting point for analysis in a case such as this, which raises the ground of legal unreasonableness, is not through the lens of natural justice.[19]
[19] DPI17 at [37] citations omitted.
There is no doubt that an integral, if not core part, of the applicant’s claim in support of his application for a protection visa is that he received two phone calls from members of the Mehdi Army in August 2012 and January 2013. The applicant claims that after the first phone call in August 2012 he took steps to resign from the police force, and he further claims that after his resignation, and consequent upon the second phone call in January 2013, he left Iraq shortly thereafter. The threatening phone calls have to be considered in the context of the applicant’s claim as a whole. In his entry interview, the applicant gave a “specific threat or incident” as the principal reason for leaving Iraq.[20]
[20] CB:121.
The relevant specific facts are as follows:
(a)On 5 August 2013, at his entry interview, the applicant stated:
Someone called me August 2012 and warned me and told me to either resign from the army or be killed. In Jan 2013 I resigned from the army but was threatened again. I got another phone in January telling me that I will be killed.
(b)The applicant made the same claim in a statutory declaration dated November 2016, which accompanied his application for a protection visa:[21]
My problems started in august 2012, when I received a phone call from an unknown phone number , the caller described himself as "follower of the mehdi army"… the caller threatened me that he and his group will kill me if I continue my work for the police force…
I, immediately applied for resignation from my post after receiving this phone call…
In January 2013 , my resignation from the police force was approved few days after that I received a second threatening phone call , the caller stated that their religious court issued death sentence against me and that I should be punished for what I done in the past…
(c)The delegate, in the decision dated 24 March 2017, accepted the applicant’s claims concerning the phone calls.[22] These findings were favourable to the applicant.
(d)The Authority did not accept the applicant’s claims concerning the phone calls.[23] These findings were adverse to the applicant.
(e)The phone calls were a critical part of the applicant’s claim.
[21] CB:45.
[22] See [11] above.
[23] See [17] above.
On 14 May 2017, the applicant made submissions to the Authority in accordance with the Authority’s Practice Direction, which stated that a submission should be no longer than 5 pages.[24]
[24] CB:219[21].
The very nature of the limited submissions which are permitted to be made to the Authority invite, realistically speaking, an applicant to only address those matters concerning the delegate’s decision with which an applicant disagrees. It would be entirely surprising if an applicant was to submit to the Authority that the delegate was correct in respect of matters which were found to be in the applicant’s favour.
It is so in this instance.
The applicant’s submissions to the Authority concentrated on the reasons as to why the delegate found against the applicant in his protection visa application. The submissions did not, in any manner, address any of the matters which were favourable to the applicant in the delegate’s decision. Had the applicant had notice about these matters, he may have provided a satisfactory explanation.
It is well accepted that the Authority is under no duty to notify an applicant of proposed adverse findings in advance of making its decision.[25]
[25] See e.g. ABT17 at [24].
The conclusion of legal unreasonableness, in respect of the Authority’s failure to exercise its powers under s.473DC, heavily relies on the particular facts and circumstances in which it is raised.
The Authority provided reasons for rejecting the applicant’s evidence about the phone calls and those reasons disclose that it considered the applicant was not a witness of truth and that there were a number of discrepancies/inconsistencies in the applicant’s accounts which caused the Authority to sufficiently doubt the applicant’s narrative that it rejected central parts of his claim.
The delegate accepted the applicant’s claims concerning past events, and there is nothing in the delegate’s decision which might suggest that the delegate had concerns about the applicant’s credibility and/or truthfulness. None of the inconsistencies/discrepancies which the Authority found seemed to have troubled the delegate at all.
The Authority did not provide any notice to the applicant that it was considering making an adverse finding in respect of matters the delegate had made a favourable finding regarding.
The Authority’s decision not to invite the applicant for an interview, in all of these circumstances, was legally unreasonable. It was material.
A breach is material only if compliance could realistically have resulted in a different decision.[26]
[26] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445[45].
The Court is satisfied that if the Authority had invited the applicant under s.473DC to comment, the Authority may have accepted that the applicant had received the two phone calls and gone on to accept that the applicant met the criteria in sub.ss.36(2)(a) or (aa) of the Act.
The applicant has established jurisdictional error.
For those reasons, the Authority’s decision will be set aside and the matter will be remitted back to the Authority to be decided in accordance with the law.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 25 August 2023
0
8
0