DYA16 v Minister for Immigration
[2018] FCCA 2679
•8 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DYA16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2679 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in failing to allow the provision of further documents – the Authority’s consideration of s.473DD of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CA, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 476, div.3 of pt.7AA |
| Cases cited: AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 |
| Applicant: | DYA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3595 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 2 July 2018 |
| Date of Last Submission: | 2 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2018 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the First Respondent: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3595 of 2016
| DYA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 11 November 2016. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa on 4 August 2016.
The applicant is a citizen of Iran who lodged an application for a protection visa on 7 October 2015. He claimed that, although he had been a Shi’a Muslim, he began attending a Baptist church upon arrival in Australia. He explained that his Christian faith was not the reason he left Iran but was told by his agent that it was relevant to his protection claims.
The applicant’s principal claim was that he feared harm from the family of his ex-wife. He said that he had had enormous problems with her family and had been beaten by her brother and people acting at his behest on 2 occasions. Ultimately, he requested and obtained a divorce because he feared he would be killed by his ex-wife’s brother.
The applicant claimed that his ex-wife’s family was able to influence the court to make orders in favour of his ex-wife against him and in particular, that she had been awarded full custody of their son to whom he had not spoken in over 2 years. He was also required to pay a dowry and was briefly imprisoned on one occasion at the request of his ex-wife’s family for failure to do so.
The applicant also claimed to fear harm from the authorities in Iran for reason of his having claimed asylum in Australia.
On 4 August 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. Amongst other findings, the delegate was not satisfied with the truth of the applicant’s claims to have been targeted by his former wife’s family and did not accept that the applicant was involved in any church in Australia or that he was a practising Christian in any formal sense.
The matter was then referred to the Authority for review pursuant to s.473CA of the Migration Act 1958 (Cth).
By letter dated 28 August 2016 from a migration agent, the applicant made certain submissions in respect of the delegate’s findings. The submissions attached a letter said to be from the Pastor of the Libery [sic] Baptist Church in North Rocks and, in respect of his evidence concerning his Christianity stated:
At the time of the interview the applicant was under so much stress and he claims: ‘my mind switched off’ and ‘I could not remember or say a thing about Christianity’. I believe that this may have happened because he was questioned in details about his life in Iran first and this must have reminded him of his traumatic past. The fact is the applicant goes to church 3 times a week, on Tuesdays, and Thursdays, to study the Bible, and on Sundays to attend the Sunday service. He also attends the church on Sunday afternoons to attend the Bible study sessions.
(Without alteration)
Finally, the submission requested that the applicant be invited to a short interview by the Authority for a “fresh assessment of his claims in light of his conversion into Christianity and receiving inhumane and unfair treatment by the authorities in the Iranian Judicial system”.
The Authority made its decision on 11 November 2016. In its reasons for decision the Authority first addressed the information that was before it.
The Authority was not satisfied that there were exceptional circumstances to justify consideration of the information referred to in the submission and so decided that it could not consider it: [5], [8].
The Authority also dealt with the applicant’s request to attend an interview and rejected it, at [6], because it was satisfied that the applicant was provided sufficient opportunity during the TPV[1] interview to describe his religious beliefs in detail. That finding was made in light of the earlier consideration, at [4], concerning the assertion in the submission about the applicant’s state of mind. There, the Authority said:
... Having listened to the TPV interview, it is clear that the applicant was able to respond to all questions put to him by the delegate with ease. He was able to converse with the delegate in both Farsi (with the assistance of an interpreter) and English with no apparent issues. No medical evidence has been provided in respect to the applicant’s capacity and I do not consider his ability to present his case was compromised in the manner claimed.
[1] Temporary Protection Visa.
The Authority accepted that the applicant was married and divorced and had one child, however was not satisfied that the applicant’s ex-wife’s family had any influence in the matter or that there was any corruption involved: [20]. It followed that the Authority did not accept that the applicant’s wife’s family had been asking for his whereabouts since his departure from Iran or that there were arrest warrants out against him. The Authority found that there was no credible evidence before it to indicate that the applicant’s ex-wife’s family would have any ongoing adverse interest in the applicant.
The Authority then turned to the applicant’s Christian beliefs. It found that, while it accepted that the applicant was baptised, it was not satisfied that the applicant had any ongoing interest in Christianity, or that his conversion would come to the attention of the Iranian authorities given that the applicant described his religious beliefs as personal: [26]. The Authority was not satisfied that there was a real chance the applicant would face harm on that basis now, or for any reason in the foreseeable future.
The Authority then considered the applicant’s claim concerning his application for asylum in Australia and, after referring to country information, was not satisfied that the applicant would face any harm for that reason.
On the basis of those findings, the Authority was not satisfied that the applicant met the criteria for the grant of a protection visa in either sub-ss.36(2)(a) or 36(2)(aa) of the Act and so affirmed the decision of the delegate.
Consideration
First ground: “IAA did not provide with an opportunity to defend my claims for protection.”
It is not clear precisely what this ground means. There were no particulars and the applicant did not file any written submissions. At the hearing, the applicant, who was unrepresented, relevantly stated that he was confused by the questions asked of him. Given that the Authority did not ask the applicant any questions, this complaint can only have been levelled at the interview conducted by the delegate.
However, any error (jurisdictional or otherwise) in the delegate’s decision does not affect the jurisdiction of the Authority to “review” that decision and once the Authority affirms the decision, “it is no longer solely the decision of the Minister or delegate to refuse to grant the visa, but rather the decision as affirmed by the Authority, that constitutes the determination of the fast track applicant’s valid application for a protection visa”: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [18] (Gageler, Keane and Nettle JJ). Further, as the delegate’s decision was referred under pt.7AA of the Act and, for that reason, was a “primary decision”, this Court does not have jurisdiction in relation to it: sub-ss.476(2)(a), 476(4)(c).
If, contrary to my understanding of the applicant’s oral submissions, this ground is addressed to the Authority’s decision, it faces the difficulty that the provisions of div.3 of pt.7AA of the Act (together with ss.473GA and 473GB) are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Authority: s.473DA(1). Sections 473DB(1) and 473DC(2) make it plain that, while the Authority has the power to obtain further information for the purposes of the review, there is no duty on the Authority to do so.
It should be noted, however, that the power under s.473DC does not have to be invoked by the Authority in order for it to receive new information: Plaintiff M174/2016 at [27]. This means that the applicant did have an opportunity to put whatever information he wished before the Authority. As I have observed, the applicant did in fact take that opportunity by means of submissions and supporting material sent to the Authority by the applicant’s migration agents. While the corollary of such an opportunity is the obligation on the decision-maker to consider the material submitted, that obligation is qualified by s.473DD of the Act which imposes restrictions on when the Authority can consider new information. The Authority’s consideration of those restrictions is an issue properly raised by the Minister in these proceedings and will be considered later in these reasons. For present purposes, it suffices to say that, in light of the relevant statutory context of the Authority’s duty to review, the applicant was not denied any opportunity to present his case or, as he put it, defend his claims for protection.
The first ground is rejected.
Second ground: “IAA did not provide me with a chance to provide them with further information for documents in relation to my claim for protection. At the time of interview at the department I was feeling so stressed that I lost control of my thoughts and ideas.”
This ground appears to be a restatement of the first ground and is rejected for the same reasons as that ground.
There are two additional difficulties with this ground. The first is that the applicant has not proved the fact that he was feeling so stressed that he lost control of his thoughts and ideas. That means that the applicant has not established the factual premise for the ground.
The second problem is that the Authority did consider the applicant’s claim to have been unable to properly give evidence before the delegate in determining what information it might obtain under its clear power to do so: [4]. It concluded that the applicant had been provided sufficient opportunity to explain and describe his religious beliefs in detail: [6]. For that reason, the Authority decided not to invite the applicant to give further information for the purposes of the review. This shows that the Authority was considering whether to exercise its power to invite the applicant to give new information under s.473DC(3). Its reasoning in this respect, reveals that there was an evident and intelligible justification for the decision by the Authority not to exercise that power. In light of that, the Authority’s decision on review was not affected by legal unreasonableness or other jurisdictional error and the second ground is rejected.
Additional issue: the Authority’s consideration of s.473DD
The Minister properly raised the issue whether the Authority erred in its consideration of whether it could consider the material submitted to it by the applicant. It may be accepted that that material constituted “new information” within the meaning of s.473DC. As I have already noted, s.473DD imposes a restriction on when the Authority can consider “new information”. That section provides:
...
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In DOM17 v Minister for Immigration & Border Protection [2018] FCCA 1318, I explained the operation of s.473DD as follows:
[26] The requirements of ss.473DD(a) and (b) are cumulative in that the IAA must not consider “new information” if either one of those sub-paragraphs has not been satisfied: Plaintiff M174/2016 at [31]; BRA16 v Minister for Immigration & Border Protection [2018] FCA 127 at [26].
[27] I accept the Minister’s submission that the consequence of the cumulative nature of these requirements is that the IAA is not obliged to make findings in respect of one subparagraph after it has made an adverse determination in respect of the other. However, as acknowledged by the Minster, the “real issue” in these proceedings is whether the IAA in the context of its reasons as a whole, erred in its consideration of what “exceptional circumstances” within s.473DD(a) encompasses: CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192 at [46].
[28] In Plaintiff M174/2016 the plurality explained, at [30]:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
[29] In BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958, White J at [9] explained the appropriate consideration to be given when determining whether exceptional circumstances arise:
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
[30] His Honour’s reasons for decision were subsequently approved by the Full Court of the Federal Court in Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176:
102. … 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.
103. 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.
104. 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” …
105. … 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.
[31] It is clear from both BVZ16 and BBS16 that it will generally not be sufficient for the IAA to conclude that there are no “exceptional circumstances” within the meaning of s.473DD(a) simply because the applicant could have provided the information to the delegate prior to the making of his or her decision and failed to provide an adequate reason for not doing so. Pertinent to the question posed by s.473DD(a) is whether the “new information” has any relevance to the applicant’s application for a protection visa.
(Citations omitted in original, emphasis in original)
There have been 2 further decisions of the Full Court of the Federal Court dealing with these issues: AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 and Minister for Immigration & Border Protection v CQW17 [2018] FCAFC 110. In AQU17 the Court said, at [14]:
As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.
In CQW17 the Court applied the authorities referred to above and found, at [47], that the Authority had taken an inappropriately narrow view of the breadth of the expression ‘exceptional circumstances’, and in doing so made a similar error to that identified in BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221 at [9] and [35]-[37] and the Full Court in Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [102]-[106].
The submissions sent to the Authority by the applicant’s agents included 2 other documents: a letter from Pastor Keith Piper and an excerpt from an article about corruption in the judicial system dated 1 July 2016, which the applicant sought to rely on in support of his claim that he had been the victim of corruption by his wife’s family in relation to his divorce/custody proceedings.
The Authority dealt with the Pastor’s letter at [5]:
[5] In respect to aspects of the submission referring to the applicant’s religion, this information differs to the information which the applicant presented to the delegate, such as when and how often he attends church. I consider it to be new information. The applicant has also provided a letter, written by Pastor Keith Piper which outlines the applicant’s religious beliefs and practices. The contents of this letter are inconsistent with the applicant’s account during the TPV interview. This letter was not before the delegate and I also consider this to be new information. During the TPV interview the applicant stated that he did not wish to raise his religious beliefs as a claim for protection as it was not the reason he left Iran and did not want it to be part of the consideration of his claims. The delegate nevertheless explored his faith and provided him the opportunity to explain what it meant to him to be Christian, how he practises and how it had affected his life. The applicant was also advised that the TPV interview would likely be the last opportunity for him to raise his claims for protection so he should explain as much as he can in respect to his religion. The applicant stated he had nothing further to say and did not want his religious beliefs to be part of his claims for protection as it was personal to him. I am satisfied he had sufficient opportunity to present information to the delegate and I am not satisfied that there are exceptional circumstances to justify the consideration of this new information.
The last sentence of this paragraph, read in isolation, might suggest that the Authority had fallen into the error described in BVZ17 and CQW17 that is, taking an inappropriately narrow view of the term “exceptional circumstances”. However, statements in any document, let alone in the reasons for decision of an administrative decision-maker are not to be taken in isolation but, rather, are to be considered in their context and without an eye focused on the perception of error.
The balance of the Authority’s reasons in [5] reveal that, in addition to considering the earlier opportunities available to the applicant to put forward the information, the Authority considered the credibility of the information by comparing it to the applicant’s own evidence and claims. In light of that, I accept the Minister’s submission that there was no error shown in this aspect of the Authority’s reasons.
Further, it is now well-established that, because the requirements of s.473DD are cumulative, the Authority was not required to consider the issues raised by s.473DD(b) and so did not fall into error by failing to do so.
The Authority considered the extracted material at [8] where it said:
The applicant provided an excerpt to an article published by Asharq Al-Awsat, titled, ‘Khamenei Admits Corruption in Iran’s Judiciary Amid Political Bickering, dated 1 July 2016’. This article was not before the delegate at the time of the decision and I consider it to be new information. For reasons discussed later in this assessment I have found it not credible that the applicant was subject to corruption during the judicial proceedings of his divorce and I am not satisfied there are exceptional circumstances to justify its consideration.
The reasoning of the Authority in this respect is troubling. Bearing in mind that the determination of whether s.473DD is satisfied must be done at a point anterior to consideration of the merits of the case, it seems odd that, on one view, the reason of the Authority for finding that there were no exceptional circumstances within the meaning of s.473DD(a) was based on its consideration of the merits of one of the applicant’s claims. In CSR16 v Minister for Immigration & Border Protection [2018] FCA 474, Bromberg J raised a similar point in connection with consideration of whether information was “credible personal information” within the meaning of sub-s.473DD(b)(ii). His Honour said:
[41] In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
This passage was referred to without any apparent disapproval in Minister for Immigration & Border Protection v CLV16 [2018] FCAFC 80 at [17].
That said, the Authority here was not considering the question in sub-s.473DD(b)(ii) and so that decision is not directly binding on me. Further, this is an issue that was not addressed at the hearing of the matter and so neither party has had the opportunity to address it. In those circumstances it is preferable in my view, not to come to any concluded view about it.
Otherwise, I am not satisfied that the Authority took an impermissibly narrow approach in determining whether there were exceptional circumstances to justify considering the new information. It considered the substance of the information and its potential relevance to the issues on the review.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 8 November 2018
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