DYK16 v Minister for Immigration
[2017] FCCA 2749
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DYK16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2749 |
| Catchwords: MIGRATION – Immigration Assessment Authority – whether the Authority was required to disclose the reasons it was satisfied there were exceptional circumstances to justify considering new information – whether the Authority failed to disclose the particulars of new information – whether the Authority relied on evidence obtained where the applicant was denied procedural fairness – no error disclosed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473CC, 473DC, 473DD, 473DE, 473EA Sentencing Act 1991 (Vic), ss.31 (5), 31(5A) |
| Cases cited: Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 R v Steggall [2005] VSCA 278 |
| Applicant: | DYK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2788 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 13 July 2017 |
| Date of Last Submission: | 13 July 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $7328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2788 of 2016
| DYK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an amended application filed 15 June 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘IAA’) dated 2 December 2016 (‘the IAA decision’) pursuant to s.473CC(2)(a) of the Migration Act 1958 (Cth) (‘the Act’). The IAA affirmed a decision of the delegate of the first respondent under s.65(1)(b) to refuse to grant the applicant a Safe Haven Enterprise Visa (‘SHEV’).
The amended application lists four grounds of review:
1. The Second Respondent’s finding that there were exceptional circumstances to justify its consideration the new information was made without disclosing any basis on which the Second Respondent could be satisfied that such exceptional circumstances existed, with the result that the Second Respondent failed to conduct its statutory task.
2. The Second Respondent failed to meet the requirements of section 473DE of the Migration Act 1958 (the Act) by not providing sufficient particulars.
3. The Second Respondent denied the applicant procedural fairness by failing to disclose the existence of a certificate under section 473GB of the Act and failing to give the applicant an opportunity to seek a favourable exercise of discretion under section 473GB of the Act and/or the validity of the certificate that was issued under s473GB (MZAFZ v Minister for Immigration and Border Protection 2016 FCA 1081).
4. The decision of the Second Respondent was affected by jurisdictional error, in that it relied upon the evidence obtained in the hearing before the delegate, in which the applicant was denied procedural fairness.
Ground three was not pursued by the applicant at the hearing.
Background
The applicant is a national of Albania. The applicant’s claims for protection are summarised at paragraph [16] of the IAA decision. In summary, he claims to fear harm on return to Albania for the following reasons:
a)he says that gang members, or their associates, who he claims to have associated with on a trip to Belgium in October/November 2010, will seek hakmarrja (a blood feud) against him and/or prevent him from revealing their homosexuality;
b)as a victim of rape he will be imputed to be homosexual;
c)he was a witness to attempted corruption by the Magistrate;
d)his personal details were included in a departmental data breach; and
e)as a failed asylum seeker.
He also claimed complementary protection on the grounds that he faced a real risk of significant harm from gang members or their associates, from a Magistrate, or as a perceived homosexual as a consequence of returning to Albania.
The applicant applied for a SHEV on 6 May 2016. On 26 September 2016 a delegate of the Minister refused to grant the applicant a SHEV.
On 4 October 2016, the Department referred the matter to the IAA with submissions due on 25 October 2016. On 21 October 2016, the IAA granted the applicant an extension of time until 28 October 2016 to make submissions.
On 16 November 2016, the IAA issued a direction under s.473GD(1) regarding information contained in an Interpol Red Notice (‘IRN’) issued in relation to the applicant in April 2013. By that direction, the IAA invited the applicant to comment in writing on the IRN pursuant to s.473DE by 21 November 2016. In the s.473GD notification, the delegate explained that the IRN may be relevant to his decision and why.
On 18 November 2016, the applicant’s representative requested a five day extension of time to provide a response to the s.473DE invitation. The IAA refused the applicant’s request for an extension of time on 18 November 2016.
On 21 November 2016 the applicant’s representative provided a detailed written response to the IAA which addressed the IRN, and the following day provided a signed statutory declaration made by the applicant.
By its response of 21 November 2016, the applicant’s representative stated inter alia in relation to the invitation to respond:
We submit that IAA’s description of the IRN the applicant does not contain any information which undermines the applicant’s claims for protection against his country of reference, being Albania as explained below, we also respectfully submit that the IAA implicitly overstates the function of an IRN and that description provided by the IAA supports the applicant’s claim and does not, as stated, negatively affect his credibility. In addition to this, however, we submit that the IAA has failed to provide particulars to the applicant explaining why the information is relevant to this review and why the information may be the reason or part of the reason for affirming the decision of the Department of Immigration and Border Protection.
On 2 December 2016 the IAA affirmed the decision of the delegate.
The IAA decision
The IAA was not satisfied that the IRN was before the delegate at the time of the delegate’s decision. At [9] the IAA referred to the IRN. The IAA noted that the IRN was not referred to in the delegate’s decision and that although the applicant did not refer to the IRN at the SHEV interview (he stated that he believed he was the subject of interest by Interpol) the IRN was not before the delegate.
The IAA concluded that the IRN was new credible and personal information that was relevant as it may affect consideration of the applicant’s claims.[1]
[1] IAA decision [9].
Relevant statutory provisions
Section 473DC(1) of the Act provides relevantly:
Subject to this part, the Immigration Assessment Authority may, in relation to a fast tracked decision, get any documents or information (new information) that:
(a) was not before the Minister when the Minister made the decision under section 65; and
(b) that the Authority considers may be relevant.
Section 473DD 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.
Section 473EA(1) and (2) provide:
Written statement of decision
(1) If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
How and when written decisions are taken to be made
(2) A decision on a review is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Findings
Ground One
The complaint of the applicant is that the IAA failed to reach a state of satisfaction under s.473DD(a) that there were “exceptional circumstances” before relying on new evidence because it had failed to identify in its reasons the basis upon which it was satisfied in its written statement issued under section 473EA of the Act. The applicant does not complain that the IAA obtained the IRN under s.473DC of the Act or that the Authority characterised the information in the IRN as “new information”.
For the reasons set out below, in my view, the provisions of s.473DD do not require the Authority to set out reasons why it is satisfied that there are exceptional circumstances to justify considering new information. I do not accept the submission that a failure to provide particulars of a state of satisfaction pursuant to s.473DD(a) establishes that the Authority was not so satisfied.
Further, the requirement on the part of the Authority to provide a written statement of decision pursuant to s.473EA does not impose a requirement on the part of the Authority to provide a written statement as to why it considered that there are exceptional circumstances that justified considering the IRN. The obligation under s.473EA on the part of the Authority is to give reasons for its final decision on a review under s.473CC.
I accept the submission of the respondent citing Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 at [11] where Mortimer J observed that:
[t]he proposition that neither s 430 (in relation to the Refugee Review Tribunal…) nor s 368 (in relation to the Migration Review Tribunal) extend beyond an obligation to give reasons for the decision on review itself, rather than discretions exercised as part of the review, is well established.
By parity of thinking, that observation applies to s.473EA of the Act in relation to the Authority. There was no requirement on the part of the Authority to give reasons for the discretions exercised including why it concluded there were exceptional circumstances that justified considering the IRN.
The applicant referred the Court to R v Steggall [2005] VSCA 278 where Nettle J considered the expression "exceptional circumstances" as it is used in the context of ss. 31 (5) and 31(5A) of the Sentencing Act 1991 (Vic). Nettle J referred to Owens v Stevens (Supreme Court of Victoria, unreported, 3 May 1991, Hedigan J) in relation to the use of the expression “exceptional circumstances” as it is used in the Bail Act in the Magistrates Court Act 1989 (Vic).
The use of the phrase 'exceptional circumstances' is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.
Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning 'unusual, special, out of the ordinary course'. This does not mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation. (Footnotes omitted)It was put on behalf of the applicant that if Parliament set such a high threshold being "exceptional circumstances", it beggars belief that it would not require the decision maker to do any more than simply recite that he or she was satisfied without saying what those circumstances were.
In my view, the consideration of the expression "exceptional circumstances" as used in the Sentencing Act 1991 (Vic) or Bail Act is not material to the consideration of that expression as used in the Migration Act 1958 (Cth). In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, the plurality (Keifel CJ, Nettle and Gordon JJ ) at [24] – [25] state:
[24] Statutes in pari materia, in the sense that they deal with the same subject matter along the same lines, may form part of the context for the process of construction. Acts of this kind are said to form a kind of code or scheme, which arises from the degree of similarity involved. Without this feature there is no warrant to transpose the meaning of a word from one statute to another or to assume, where the same words are used in a subsequent statute, that the legislature intended to attach the same meaning to the same words.
[25] The Criminal Code and the Act are not statutes in pari materia.
(footnotes omitted)
The reference to those cases dealing with the Sentencing Act and Bail Act does not support a finding that the Authority was in error in considering the new material contained in the ICN on the basis that there were exceptional circumstances. That the expression is used does not require there to be particular details of the reasons why the decision maker considered there to be exceptional circumstances. Further, the considerations going to what are exceptional circumstances in the context of the Sentencing Act 1991 (Vic) and the Bail Act are likely to be quite different.
Furthermore, even if the Authority was required to give reasons for reaching a level of satisfaction, it did do that at [9] where it stated:
[h]aving reached that conclusion, the IRN is therefore new information. I consider the IRN is relevant. I am satisfied too that the IRN contains credible personal information which may affect consideration of the applicant’s claims. I am satisfied there are exceptional circumstances which justify my considering the IRN.
Those reasons are not suggestive of a legal irrationality as was contended by the applicant.
Ground two
Ground two alleged non-compliance with section 473DE(1)(a) of the Act. Section 473DE(1) provides:
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
The IAA in this case did not provide the IRN to the applicant but instead provided a paraphrased summary in four dot points of certain aspects of the IRN (court book, 166 – 167). Setting out the relevant parts of the correspondence, the letter dated 16 November 2016 stated:
[y]ou are invited to comment on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection:
· Interpol published a Red Notice in May 2013 naming you as a fugitive wanted for prosecution in relation to organised or armed robbery, forgery of administrative documents and tracking of administrative document offences that you are suspected of committing in Belgium in 2012 as part of a gang with four other individuals. The maximum penalty possible for these offences is 10 years imprisonment.
· That Red Notice states too you were arrested in December 2012 on suspicion of committing offences of aggravated theft in company and in the possession of false Bulgarian identity documents, following which, you were deported to Albania. It states you are caught ‘red-handed’ attempting a theft at a business premise premises.
· The Red Notice states additionally, four other gang members were arrested in January 2013.
· Communications equipment of similar origin and stolen from a business premises in October 2012 were found in your position at the time of your arrest in December 2012 and in the possession of one of the other gang members at his arrest in January 2013.
At [31] of the applicant submissions it is stated in relation to the phrase:
“It (the IRN) states that you were caught “red-handed” attempting a theft at a business premises.” No context or further explanation of that phrase is provided.
At [33], the applicant’s submissions refer to correspondence from the applicant’s representative to the Tribunal wherein it noted:
“it is not clear what the IAA’s interpretation of the IRN’s use of the words ‘red-handed’ means (letter from the applicant’s representative to the IAA 21 November 2016, CB 175).
The applicant submits that because a copy of the IRN was not provided to the applicant or alternatively particulars of the IRN were not provided, the applicant has been denied procedural fairness because he has not been provided with a meaningful opportunity to respond to the IRN. In my view, this ground lacks merit.
In relation to the meaning of the expression “caught red-handed”, the Authority is repeating what was stated in the red notice. Furthermore the expression “caught red-handed” is a common expression meaning “caught in the act”. [2] The Authority referred to the Macquarie Dictionary definition as “to discover in the very act of a crime or other deed”.[3] Although in a Statutory Declaration made by the applicant, the applicant claimed that he did not understand what the IRN meant by “caught red handed”, the applicant went on to state to the effect that he was not caught red handed. The Authority considered the applicant’s statutory declaration and submissions made about it and rejected the claims.[4]
[2] Brewer’s Concise Dictionary of Phrase and Fable, 1992.
[3] IAA decision [32].
[4] IAA decision [32].
The Authority gave a detailed description of the information in the IRN that it considered ‘would be the reason, or part of the reason, for affirming the fast track reviewable decision.’ And the Authority gave a detailed explanation why it considered that information to be relevant to the review. In asking for particulars of what was meant by the expression “caught red-handed”, the applicant is asking the Authority to explain what the author of the IRN meant by the use of that expression. The applicant was provided with particulars as requested under s.473DE(1).
Further, the reasons for the decision do not disclose that the Authority went beyond the information disclosed to the applicant regarding the IRN in in making its decision and in that regard I refer to paragraphs [31], [32] and [37] of the Authority’s decision where reference is made to the IRN. The decision discloses that the Authority relied on those matters in the IRN which it disclosed to the applicant and which it considered relevant to the application. It did not go beyond that information in reaching its decision.
The applicant was not denied procedural fairness because he had the opportunity to respond to information in the IRN which the Authority thought was relevant information including that the applicant was caught “red-handed” attempting a theft.
For these reasons, there is no basis to conclude that the Authority failed to comply with section 473DE(1)(b) of the Act.
Ground four
The applicant’s submissions in relation this ground provided at [44]:
The applicant’s representative submitted to the IAA that there had been a number of serious deficiencies in the manner in which the hearing had been conducted before the delegate, such that the applicant did not receive a fair hearing before the delegate. Inter alia, multiple interpreters were used, the quality of the interpretation and of the telephone connection to the interpreters was often poor, and at least one of the interpreters had been shopping in conducting other conversations while interpreting.
At [47] of its submissions, the applicant stated that:
[t]he applicant accepts the IAA is required to conduct a review on the papers and that it is not obliged as a matter of course to conduct the hearing, although it has the discretion to do so under s473DC. However, where “the papers” on which the review is conducted are affected by denial of procedural fairness by the delegate, the decision of the IAA that relies on that material similar will be similarly tainted unless the defect is cured on the review (citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 [175]).
It is said that in these circumstances, the IAA could have cured the denial of procedural fairness by exercising its discretion to conduct an interview with the applicant.
In the Authority’s reasons for its the decision, the Authority considered the applicant’s submissions in relation to the quality of interpreting at the SHEV interview and submissions that the delegate was biased. At [7] the Authority set out to its reasons as to why it considered it reasonable proceed to make a decision without seeking new information from the applicant at an oral interview.
At [7] the Authority observed:
I am not persuaded by the submission the applicant was not given an opportunity to fully discuss his claims generally. I consider the applicant was given a full opportunity to do that before the delegate. I have listed [sic] to the SHEV interview. It is a very long interview, exceeding 5 hours. Regarding the interpreting, a few different interpreters were used via telephone across the SHEV interview. I agree with the comments of the migration agent and the applicant there were occasions were [sic] there was difficulty in communicating with the interpreters. However, neither the first IAA submission nor the first IAA statement identifies any specific instances of misinterpretation which materially affected the participants’ understanding of the SHEV interview. On occasions were [sic] there were difficulties communicating, the applicant, the interpreters and/or the delegate all sought clarification. I note too the applicant conducted a considerable amount of the SHEV interview in competent English. On the evidence before me, I am not satisfied there were any interpreting errors which materially affected the SHEV interview.
I agree with submissions made by the respondent that there is no jurisdictional error apparent from the reasons which the Authority gave as to why it declined to exercise its discretionary power conferred on it by s.473DC of the Act to interview the Applicant. The applicant’s disagreement with the decision made by the Authority is essentially an exercise in impermissible merits review.
Further, no evidence was produced to establish that the applicant was denied a meaningful opportunity put his case before the delegate or to establish that the quality of interpretation was of such a poor standard as to affect the applicant’s ability to put his case.
For these reasons I dismiss the application.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 10 November 2017
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