DWZ17 v Minister for Immigration

[2018] FCCA 2908

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2908

Catchwords:
MIGRATION – Judicial review – safe haven enterprise visa – where the Authority has refused to consider information – where the information was not written in English.

Legislation:

Migration Act 1958 (Cth), ss.7AA, 463, 473CB, 473DC, 473DD

Cases cited:

Minister For Immigration & Border Protection v BBS16 (2017) FCAFC 176

BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221

Applicant: DWZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 361 of 2017

Judgment of: Judge Young

Hearing date: 19 September 2018

Date of Last Submission: 19 September 2018

Delivered at: Darwin

Delivered on: 19 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Barnes

Solicitors for the Applicant: Beena Rezae Legal & Migration

Counsel for the First Respondent: Mr d’Assumpcao

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed 5 September 2017 be dismissed.

2. The Applicant is to pay the Respondents costs in the sum of $7328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 361 of 2017

DWZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 2 August 2017 affirming a decision a delegate of the Minister made on 18 January 2017 refusing the applicant a Safe Haven Enterprise Visa.

3. The review by the Immigration Assessment Authority, which I will call the Authority, was carried out under the fast track review process in part 7AA of the Act.

4. The applicant presses only ground 1 of the amended application, but ground 1 has four parts, and I will summarise the grounds set out in those four parts.

5. The first is a claim that the Authority refused to consider information that a former Taliban leader had “recently” moved into the same street as the applicant’s family home in Kabul in Afghanistan. I should have said that the applicant is of Hazara ethnicity and Shia religion from Afghanistan. Returning to the review ground, it was said that the Authority’s reason for refusing to consider the information, that is, that the applicant did not give an explanation why the information could not have been provided to the Minister before the Minister’s decision or why it should be considered credible personal information, misapplied section 473DD of the Act, which does not, in terms, require such an explanation.

6. The second ground or the second aspect of the one ground is a claim that the Authority ought to have considered something called the “Negaah report,” which is a newspaper report dated 22 January 2017.  That report refers to general crime in the applicant’s home suburb in Kabul.  It was said that the Authority’s reason for refusing to consider the information, which was that “no explanation was given as to how it is pertinent to the consideration of his case”, is also a misapplication of section 473DD.

7. The third aspect of the ground of review is a claim that the Authority refused to consider material relating to the death of the applicant’s cousin in Afghanistan, which was said to be relevant to an assessment of the risk of harm to the applicant in Afghanistan.  The written material that the applicant referred to consisted of a death notice, a Facebook entry and – or a Facebook post, perhaps, is the more accurate description – and other material.  The only document that was translated into English from Dari was the death notice, which did not show the cause of the cousin’s death.  The other documents, which the applicant said he would provide translations for, remained untranslated.

8. It was said that the fact that the Authority could not understand the documents, that is, the documents other than the death notice, was not a reason for refusing to consider that information or that new information, although in the ground of review, it was said that the Authority rejected the information, and it was said that in assessing whether or not special circumstances existed to justify the consideration of any new information, it was, one might have thought, obviously, necessary for the authority to understand that information.  There appeared to be an implication, unstated, that it was the Authority’s duty in those circumstances to obtain an English translation of the documents.

9. The fourth aspect of the review was a claim that the Authority refused to consider various media articles and country information and that its review was irrational when it was apparent from a reading of the Authority’s reasons that it went on to consider other country information.

10. Turning to a consideration of those claims in ground 1, it should be noted that in each case, the Authority accepted that the information proffered by the applicant was new information within the terms of the definition in section 473DC of the Act, that is, it was information that was not before the Minister or the Minister’s delegate when the decision was made, and it may be relevant.

11. In relation to the first aspect of the ground of review, that is, relating to the claim that a former Taliban member moved into the same street as the applicant’s family home in Kabul, the Authority, at paragraph 6, said this:

    However, the representative does not address why this information could not have been provided to the Minister before a decision was made or why it should be considered credible personal information.

    And the Authority went on to say that it was not satisfied that the requirements of section 473DD subsection (b) were met.

12. To understand that conclusion by the Authority it is necessary to understand the timeline.  The Minister’s decision by his delegate was made on 18 January 2017, and the information was provided by the applicant on 2 February 2017, that is, about two weeks later.

13. In those circumstances, there is an obvious question, in my view, about why that information was not given to the Minister or, in other words, why it could not have been given to the Minister, and whether it was credible.  Indeed, in my view, the formulation adopted by the Authority is a clear verbal reference to the criteria set out in section 473(b)(i) and (ii), which the Authority found were not satisfied.  I do not consider, in those circumstances, that there has been any misapplication of the section or misinterpretation of the section in relation to the material advanced by the applicant, and I see no error.

14. In relation to the second aspect of ground 1, the information was, as I said, general crime information about the applicant’s suburb in Kabul. The Authority said in its reasons at paragraph 7 that the information was similar to information that had already been considered by the Authority, that is, presumably information that had been referred to the Authority by the secretary pursuant to section 473CB. The Authority said of the information as follows:

    The report refers to general crime, and no explanation is given of how it is pertinent to the consideration of his case.

    That is a reference to the applicant’s case.

15. I am unable to interpret that paragraph and that passage in particular as the Authority requiring an explanation simpliciter, but it is, in my view, alluding to the fact that it is not satisfied that the information is significant having regard to the context of the applicant’s claim, and I refer to paragraph 105 of the decision of the Full Court of the Federal Court in the Minister for Immigration and Border Protection v BBS16 (2017) FCAFC 176; 158 ALD 198. Paragraph 105 says as follows, referring to section 463, which is a reference to the decision of White J in 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.

16. The passage that I have quoted from, paragraph 7 of the Authority’s decision, appears to me, in terms, not to be requiring, as I say, an explanation per se or not indicating that the Authority misdirected itself as to the meaning of 473DD but rather as undertaking an assessment of the significance of the new information consistently with the requirements of subsection 473DD(b) as described by the Full Court in BBS16.  I see no error in the Authority’s approach.

17. The third aspect relates to the claimed error in the Authority refusing to consider the material relating to the death of the applicant’s cousin.  The Authority discusses that material at paragraph 9 of its decision and it said that it received a translation of the obituary notice or the death notice; however, a translation of the social media post and a statutory declaration was not received.  It was accepted that the information about the death of the cousin was new information and the Authority was satisfied that it could not have been provided to the Minister prior to the delegate’s decision because the death occurred after that decision.

18. The Authority, however, pointed out that the death notice and some photos that were included as well did not indicate the manner of the cousin’s death or at whose hands, if it was a homicide, and given the absence of a translation of the Facebook or social media post, the Authority was unable to assess the significance of that information, including whether it was credible personal information pertinent to the consideration of the applicant’s claims and then went on to say that it was not satisfied that there were exceptional circumstances to consider that information.

19. If documents are in Dari and untranslated, it seems to me it is impossible to assert that the criterion or criteria set out in section 473DD, that is, exceptional circumstances for considering the new information and the criteria in subsection (b), could possibly be met. To state the obvious, the Authority needs to be satisfied about those matters and if a document was in a language other than English, unless the Authority speaks Dari, it is impossible for it to reach the relevant state of satisfaction. I see no merit in the claim.

20. The fourth aspect relates to alleged irrationality by the Authority.  In paragraph 10 at the third dot point, the Authority refers to media information proffered by the applicant about attacks in Kabul.  As I read the material, it appeared to relate to separate bombing attacks, one in April 2017 and one in June 2017, both obviously after the delegate’s decision. The Authority said it had not been given any reasons about why that information was pertinent to the applicant.  It was said the refusal to consider that new information, presumably on the basis that there are exceptional circumstances to justify it, was irrational when it was compared to the delegate’s decision, described at paragraph 11 of the decision, to consider new country information about Afghanistan, including Mazar-i-Sharif.

21. I do not accept that claim.  It is clear from the description of the bombing attacks in April 2017 and June 2017 that they were violent events and indicative of a country at war.  How that related to the applicant himself or his claims was not clear.

22. The information referred to at paragraph 11, however, is information about the security situation in Afghanistan, judging from the description of the information. (I was told that the actual information was not included in the court book.) It was said by the Authority on considering this information:

    The situation in Afghanistan has evolved over recent times, and the information addresses the broader security situation and how it may impact on the real chance or risk of harm to the applicant in Afghanistan in the reasonably foreseeable future.

23. It appears to me that country information that is about a changing or evolving security situation affecting, as it would, an assessment of the risk of harm to the applicant if he returned to Afghanistan is, of its nature, somewhat different to information about what appeared to be two – I will not say isolated – but two separate bombing attacks in Kabul without any information about the context or how that might impact on or affect the applicant himself.

24. I do not accept that it is irrational to accept one type of information under section 473 and to reject the other.  It appears to me that there is a basis for a distinction between the types of information and a basis for the distinction in the significance of the two pieces of information.

25. Accordingly, I do not accept that the rejection of the information by the Authority about the bombing attacks in April and June 2017 was irrational.

26. Accordingly, I find that ground 1 is not made out, and as I have said, ground 2 is not pressed, so the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  12 October 2018