DZF17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DZF17 v Minister for Home Affairs [2019] FCA 979

Appeal from: DZF17 v Minister for Immigration [2018] FCCA 3619
File number: NSD 62 of 2019
Judge: THAWLEY J
Date of judgment: 21 June 2019
Catchwords: MIGRATION – appeal from orders of Federal Circuit Court of Australia affirming decision of Immigration Assessment Authority to refuse protection visa – leave granted to advance new grounds of appeal – leave granted to adduce further evidence – Authority failed to give real consideration to the appellant’s claims and evidence – whether the Authority unreasonably failed to consider exercising the discretion to get new information under s 473DC(1)
Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Federal Court of Australia Act 1976 (Cth) s 27

Federal Court Rules 2011 (Cth) r 36.57

Migration Act 1958 (Cth) Pt 7AA, ss 473CC, 473DB(1), 473DC(1), 473EA(1)

Cases cited:

BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605

ETA067 v Republic of Nauru (2018) 92 ALJR 1003

Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Tickner v Chapman (1995) 57 FCR 451

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588

Date of hearing: 20 June 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 73
Counsel for the Appellant: Mr A Aleksov
Solicitor for the Appellant: Esser Legal
Counsel for the Respondents: Ms D Watson
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

NSD 62 of 2019
BETWEEN:

DZF17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

THAWLEY J

DATE OF ORDER:

21 JUNE 2019

THE COURT ORDERS THAT:

1.The appellant is granted leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) to rely upon the affidavit of Hassan Alsudani filed on 31 May 2019.

2.The appellant is granted leave to rely upon Ground 1(a) in the amended notice of appeal.

3.The appeal is allowed.

4.The orders of the Federal Circuit Court of Australia are set aside and in lieu thereof:

(a)the decision of the second respondent is quashed;

(b)the matter be remitted to the second respondent for determination according to law;

5.The first respondent pay the appellant’s costs of the appeal, except the costs of and incidental to the appellant’s application for an adjournment which was heard on 6 May 2019.

Note:    Entry of orders is dealt with in…

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Details
Case
[2019] FCA 979
Decision Date

CaseChat Overview and Summary

In the case of DZF17 v Minister for Home Affairs, the appellant, a former intelligence officer from Iraq, challenged the decision of the Immigration Assessment Authority (IAA) to refuse his application for a protection visa. The appellant, who had worked for the Intelligence Office, Department of Justice in Iraq, claimed that he faced persecution due to his involvement in gathering intelligence on militia groups and testifying against them in court. The Federal Circuit Court of Australia had previously affirmed the IAA's decision, but the appellant sought leave to advance new grounds of appeal and to adduce further evidence. The central legal issue was whether the IAA unreasonably failed to consider the appellant's claims and evidence, particularly the risk he faced from militia groups aware of his role in their arrests.

The court found that the IAA failed to give real consideration to the appellant's claims and evidence. The court highlighted that the appellant had provided detailed evidence about his duties, the risks he faced, and the specific threats from militia groups who were aware of his involvement in their arrests. The IAA's reasons did not address these critical aspects of the appellant's claims, leading the court to infer that the IAA did not properly consider the evidence. The court also noted that the appellant's claims about the infiltration of the court system by militia agents were significant and centrally relevant, yet they were not considered by the IAA.

The court concluded that the IAA's failure to properly consider the appellant's evidence was a material error in the decision-making process. Consequently, the appeal was allowed, the orders of the Federal Circuit Court were set aside, and the matter was remitted to the IAA for redetermination according to law. Additionally, the Minister was ordered to pay the appellant's costs of the appeal, except for the costs related to an application for an adjournment.

Orders

Orders of the court

1. The appellant is granted leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) to rely upon the affidavit of Hassan Alsudani filed on 31 May 2019.

2. The appellant is granted leave to rely upon Ground 1(a) in the amended notice of appeal.

3. The appeal is allowed.

4. The orders of the Federal Circuit Court of Australia are set aside and in lieu thereof:

(a) the decision of the second respondent is quashed;

(b) the matter be remitted to the second respondent for determination according to law;

5. The first respondent pay the appellant’s costs of the appeal, except the costs of and incidental to the appellant’s application for an adjournment which was heard on 6 May 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The Authority had affirmed a decision of the delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) not to grant the appellant a protection visa.BACKGROUND The appellant is a Shia Muslim citizen of Iraq who arrived in Australia at Christmas Island on 23 June 2013 as an unauthorised maritime arrival. He applied for a protection visa on 10 January 2017. In 2004, he commenced employment with the Intelligence Office, Department of Justice in Location A. He later transferred to Location B. The Appellant’s Statutory Declaration The appellant described his duties in some detail in his statutory declaration made on 3 December 2016. He explained that he collected information by employing secret informants, performing character checks of the secret informants and checking their ideological backgrounds. He made inquiries in relation to militia movements, drug trafficking, sectarian killings and the methods by which terrorist attacks were implemented. The information he collected was sent to the intelligence analysis centre. He was responsible for gathering information about people suspected of and involved in terrorist activities such as car bombings and attacks on US bases. In his statutory declaration he also stated he believed a lot of people in Location B knew he worked as an intelligence officer because of the interviews he carried out to obtain information. He reported to the Location B intelligence service which, in turn, reported to the General Directorate of Intelligence in Baghdad. He also stated that, whilst his duty was to collect information, he was at times called to assist police and security forces within their operations against militia groups. He gave as an example that he would “witness the arrest of a person under the security forces”, where he had been the source of the information which led to the arrest of the person. He stated that, although he testified in court in a secretive way (as part of his duties), there were people who worked in the court system who might leak information: 9.Sometimes I would have to testify about my information collected before a court of law, and this was usually done in a very secretive way and I would never see the suspect face to face. However, the courts in Iraq are full of people who can tell the militias about my activities within the court and my role in testifying against someone who belongs to a terrorist militia, or those charged under section 4 of the Counter Terrorism Act. In early 2013, the appellant was informed of a security brief from the General Directorate of Intelligence that militia groups had lists of various intelligence and security officers that the militia intended to target. The appellant stated that, on the day he was informed of the security brief, he was also spoken to privately by his commander and told that the government was releasing a number of prisoners. Amongst those to be released was A, a prominent figure associated with the Mehdi army and militia. The appellant’s commander had checked relevant records and seen that the appellant was the officer who had furnished the relevant information which had been used to secure the arrest of A. The commander was concerned for the appellant’s safety because A had been heard to say that he knew who had collected the information against him and would punish him:14.… [M]y commander [Captain R] at the intelligence office called me to his office. There he told me that the Government in Baghdad had an agreement with some of the parliamentarians who belong to some militia from mehdi army; asaeb ahlaq alhaq and alfadheela party, in which the Government facilitated the release of some of the militia members in order to calm down the critics against the government. He told me that some of the people who were released had plans to target the people who were behind their arrests. Specifically, he was concerned about a released person called [A] who was considered a prominent figure in the mehdi army and militias, as that he was overheard saying that he knew who gathered information against him and he will punish that person accordingly. My commander said he checked [A]’s file and found that I was the officer that provided all of the intelligence information against him. He said that he was gravely concerned that [A] actually lives in the same suburb where I did.

Evidence

Evidence Before The Court

The Authority affirmed the decision not to grant the protection visa.LEAVE TO ADVANCE NEW GROUNDS OF APPEAL AND EVIDENCE The appellant sought leave to rely upon grounds which had not been argued before the Federal Circuit Court.The principles applicable to whether leave should be granted to rely upon grounds first advanced on appeal are well known. It is sufficient to refer to VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-599. One important consideration is the merit of the proposed new grounds. For the reasons identified below, Ground 1(a) has merit sufficient to warrant leave to rely upon it. The appellant also sought leave under r 36.57 of the Federal Court Rules 2011 (Cth) to rely on fresh evidence being a double-translated transcript of the PV interview. This was said to demonstrate unsatisfactory interpretation of the appellant’s evidence. Section 27 of the Federal Court of Australia Act 1976 (Cth) permits the Court to receive further evidence on appeal. As the Full Court stated in NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [42] (Beaumont, Lindgren and Tamberlin JJ), two conditions must ordinarily be satisfied for the court to receive further evidence on appeal: 1.first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and2.secondly, the evidence must be such that very probably the result would have been different. I have reached the conclusion that the appeal should be allowed on the basis of Ground 1(a). The reasoning for that conclusion does not depend upon the later translation of what the appellant said. Nor does that later translation improve the merit of the remaining grounds (Grounds 1(b) and 2) to the point where leave to rely upon those grounds should be granted. The double translation also contains a written record of the interpretation given by the interpreter who attended the PV interview. No such written record was before the Federal Circuit Court and nor was the audio recording of the PV interview which formed part of the review material given to the Authority. The Minister did not contend that the translations provided in the double translation were inaccurate in any way. In my view, the double translation should be admitted into evidence notwithstanding the first condition mentioned in NASB is not met. GROUND 1 The first proposed ground of appeal was:1.The IAA failed to consider important and centrally relevant evidence in the review, in that the IAA did not consider the evidence that:a.the appellant gave evidence in Court against [A] and that the Courts are penetrated by agents acting for [A]; orb.there was an explanation for why the appellant had not earlier raised the claim that [A] had visited his brother’s house in Iraq.Paragraph (a) In support of Ground 1(a), the appellant relied upon two aspects of the appellant’s evidence which had been given at the PV interview, namely that:1.first, he had given evidence at the court hearing which led to the imprisonment of A; and2.secondly, the court was “penetrated” by people working for insurgent groups who could have communicated the appellant’s status as a key witness in the case against A.

Decision

Reasons for decision

Section 25D of the Acts Interpretation Act 1901 (Cth) provides:Content of statements of reasons for decisionsWhere an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The Full Court has held that reasons given under s 473EA must comply with the requirements of s 25D of the Acts Interpretation Act 1901 (Cth): BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35 at [45]-[49]. The obligation under provisions such as s 473EA does not require a decision-maker to refer to all of the evidence before it. In ETA067 v Republic of Nauru (2018) 92 ALJR 1003 at [13], Bell, Keane and Gordon JJ stated in analogous circumstances (citations omitted):[13]The absence of an express reference to evidence in a tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it. However, where reasons do not refer to particular evidence, provisions imposing an obligation to provide reasons may entitle a judicial review court to draw the inference that the decision-maker did not regard the evidence as material – see: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]. Further, in an appropriate case, a failure to refer to evidence (or a claim) might enable the inference to be drawn that the decision-maker did not consider the evidence (or claim), either at all or in a real way. The more significant the evidence or claim, the easier the inference. A failure to consider evidence might also lead to a conclusion that there was a failure to consider or engage properly with a claim made. In Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67, the Full Court stated at [34]:[34]The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: [Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594] at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: [Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431] at [52].

Ratio Decidendi

Legal Principle Established

In 2004, he commenced employment with the Intelligence Office, Department of Justice in Location A. He later transferred to Location B. The Appellant’s Statutory Declaration The appellant described his duties in some detail in his statutory declaration made on 3 December 2016. He explained that he collected information by employing secret informants, performing character checks of the secret informants and checking their ideological backgrounds. He made inquiries in relation to militia movements, drug trafficking, sectarian killings and the methods by which terrorist attacks were implemented. The information he collected was sent to the intelligence analysis centre. He was responsible for gathering information about people suspected of and involved in terrorist activities such as car bombings and attacks on US bases. In his statutory declaration he also stated he believed a lot of people in Location B knew he worked as an intelligence officer because of the interviews he carried out to obtain information. He reported to the Location B intelligence service which, in turn, reported to the General Directorate of Intelligence in Baghdad. He also stated that, whilst his duty was to collect information, he was at times called to assist police and security forces within their operations against militia groups. He gave as an example that he would “witness the arrest of a person under the security forces”, where he had been the source of the information which led to the arrest of the person. He stated that, although he testified in court in a secretive way (as part of his duties), there were people who worked in the court system who might leak information: 9.Sometimes I would have to testify about my information collected before a court of law, and this was usually done in a very secretive way and I would never see the suspect face to face. However, the courts in Iraq are full of people who can tell the militias about my activities within the court and my role in testifying against someone who belongs to a terrorist militia, or those charged under section 4 of the Counter Terrorism Act. In early 2013, the appellant was informed of a security brief from the General Directorate of Intelligence that militia groups had lists of various intelligence and security officers that the militia intended to target. The appellant stated that, on the day he was informed of the security brief, he was also spoken to privately by his commander and told that the government was releasing a number of prisoners. Amongst those to be released was A, a prominent figure associated with the Mehdi army and militia. The appellant’s commander had checked relevant records and seen that the appellant was the officer who had furnished the relevant information which had been used to secure the arrest of A. The commander was concerned for the appellant’s safety because A had been heard to say that he knew who had collected the information against him and would punish him:14.… [M]y commander [Captain R] at the intelligence office called me to his office. There he told me that the Government in Baghdad had an agreement with some of the parliamentarians who belong to some militia from mehdi army; asaeb ahlaq alhaq and alfadheela party, in which the Government facilitated the release of some of the militia members in order to calm down the critics against the government. He told me that some of the people who were released had plans to target the people who were behind their arrests. Specifically, he was concerned about a released person called [A] who was considered a prominent figure in the mehdi army and militias, as that he was overheard saying that he knew who gathered information against him and he will punish that person accordingly. My commander said he checked [A]’s file and found that I was the officer that provided all of the intelligence information against him. He said that he was gravely concerned that [A] actually lives in the same suburb where I did.