Ebe18 v Minister for Immigration
[2020] FCCA 1554
•3 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBE18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1554 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s decision was legally unreasonable – whether the Authority applied the relevant law – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 5H, 36, 473CB, 473DC, 473GA, 473GB, 476 |
| Applicant: | EBE18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 606 of 2020 |
| Judgment of: | Judge Street |
| Hearing date: | 11 June 2020 |
| Date of Last Submission: | 11 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2020 |
REPRESENTATION
The Applicant appeared in person via Microsoft Teams
| Solicitors for the First Respondent: | Ms B Rayment via Microsoft Teams Sparke Helmore |
ORDERS
The amended application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 606 of 2020
| EBE18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 27 February 2020 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Jordan and his claims were assessed against that country. In April 2013, the applicant arrived in Australia as an unauthorised maritime arrival. In September 2017, the applicant applied for a Safe Haven Enterprise visa.
The applicant claimed, in summary, to fear harm by reason of being a stateless Palestinian who had been living in Syria and that he could not return to Syria because he would be arrested, detained, tortured and killed by the Syrian regime and also to fear harm by reason of being a Sunni.
On 19 January 2018, the Delegate found that the applicant did not meet the criteria for the grant of a Safe Haven Enterprise visa.
The Delegate’s reasons refer to having asked the applicant questions about his alleged life in Syria and having raised with the applicant information in relation to the transfer of funds to several people in Jordan and the use of the applicant’s alleged identity to send that money and identified that the applicant denied sending the money.
The Delegate found that due to the applicant’s overall lack of credibility and the unconvincing nature of his answers to the questions relating to his claimed time in Syria and the evidence relating to the money transfer, the applicant was not from Syria but a citizen of Jordan and that Jordan is his receiving country.
The Delegate’s reasons refer having put to the applicant that he sent large volumes of money to persons based in Jordan and that the applicant denied having sent the money and that it was put to the applicant that several of the people he was believed to have sent money to have surnames the same or similar to the applicant and that the applicant denied this as well.
The Delegate found that the applicant was not a stateless Palestinian from Syria. The Delegate did not accept that the applicant’s family were killed in an explosion or rocket attack or that the applicant was arrested, detained and tortured by Syrian officials or that the applicant was further harassed after being released from hospital.
On 29 January 2018, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction, providing the applicant an opportunity to put on new information and submissions.
It is also apparent that there is a certificate dated 2 March 2018 issued under s 473GB of the Act relating to a particular document. The document, subject to redactions, was admitted into evidence, taking into account the provisions of s 473GA of the Act. The redactions cannot be said to be material in that the redactions could not have had any possible impact on the outcome of the review. The substance of the particular document was put to the applicant by the Delegate. The applicant suffered no practical injustice in the conduct of the review by reason of the s 473GB certificate or the information the subject of the s 473GB certificate. In these circumstances, the existence of the s 473GB certificate and the information the subject of the s 473GB certificate does not give rise to any arguable jurisdictional error in the exercise of a power over the Authority in the circumstances of the present case.
Following the referral letter of 29 January 2018, a differently constituted Authority made a decision adverse to the applicant on 14 March 2018 which was quashed by a Judge of this Court on 10 December 2019.
On 6 February 2020, the Authority wrote to the applicant explaining that the application had been referred back to the Authority for review or reconsideration. The letter identified the original referral which occurred on 25 January 2018 and the date of remittal on 10 December 2019. The letter also identified that the applicant should act quickly and attached a practice direction, providing the applicant an opportunity to put on new information and submissions. The letter expressly identified that a decision by the Authority may be made any time. No further submissions were provided by the applicant.
The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application.
The Authority identified having had regard to the material referred by the Secretary under 473CB of the Act.
The Authority summarised the applicant’s claims.
The Authority found that the applicant had not provided truthful evidence in relation to the account of his place of origin, his family circumstances or the events he claims caused him to leave for Australia and seek asylum.
The Authority expressly referred to having considered whether to exercise its discretion under s 473DC of the Act to obtain new information about the applicant’s ties to Syria and Jordan but, given its finding that the applicant had not been truthful in the past and given the previous opportunities that the applicant has already had to make his claims about his nationality, the Authority did not consider that the Authority would obtain any useful or new information from that process and decided not to exercise that discretion. The Authority’s refusal to exercise the discretion in these circumstances cannot be said to lack an evident and intelligible justification and it was a reasonable exercise of the power under s 473DC(3) of the Act.
The Authority identified the applicant’s claims about being stateless and where he lived in Syria and the events he claimed occurred and the absence of any corroborative evidence.
The Authority referred to the applicant’s evidence concerning his destruction of his identity documents and that he did not explain how he was able to pay a considerable amount of money to leave Syria, obtain a false passport and buy an airline ticket without access to his identity documents. The Authority referred to the applicant’s claim that he destroyed his identity documents and that he got an Iraqi passport to travel to Australia. The Authority considered that the applicant had been deliberately deceptive in his statutory declaration about his documents being destroyed in a rocket attack.
The Authority referred to the applicant having had raised with him at the Safe Haven Enterprise visa interview the absence of supporting materials for his claims, including his alleged education in Syria, a bank account in Syria, his work in Syria, his hospitalisation and considered the evidence of the applicant’s life in Syria could have been sought. The Authority took into account that the applicant had not provided any evidence to support his claims about the rocket attack on his family home or the death of his family members. The Authority also referred to the absence of any evidence such as any media article about the attack in June 2012, the absence of any police report, coroner’s report or any other documentation in relation to the deaths of the people who the applicant claimed lived their whole lives in Syria.
The Authority referred to the Safe Haven Enterprise visa interview with the Delegate where it was raised with the applicant Facebook information which may indicate that the applicant has three sons that are alive and living and studying in Norway and that it would appear there had not been any rocket attack as claimed. The applicant confirmed that his mobile number was the same number linked to the Facebook account with a name similar to his own. The applicant also confirmed that he had a Facebook account and did not deny that it was his Facebook account when the Delegate told him of the name of the account. The Authority took into account that the applicant did not submit any evidence to contradict the Delegate’s findings about the Facebook account being his.
The Authority also referred to the Delegate showing the applicant photographs of people who are friends on the Facebook account who had received remittances from the applicant since he had been in Australia and that the applicant appeared to have interacted with these people on Facebook, which suggested that they were known to him. The Authority referred to the applicant’s response that something was wrong and it was not his account, even though it was linked to his name and his phone number. The Authority identified that the applicant was shown details of photographs and that the applicant said he did not recognise the names and that his surname was different. The applicant suggested that his account may have been hacked.
The Authority referred to the post-interview submissions and identified that it was incorrect that the applicant did not have raised the issue of whether he was known by the name on the Facebook account and that it was apparent that the Authority member referred at 45 minutes of the interview to the applicant being asked the name on the account and the applicant confirming that it was his account. The Authority found that the Facebook account belongs to the applicant.
The Authority found that the applicant had not provided any evidence to support his assertion that his three sons had died. The Authority did not accept that the applicant’s family was killed by an attack by a rocket which hit their home. The Authority considered that the information points to the applicant’s sons being alive and living in Norway.
The Authority referred to the Delegate at the Safe Haven Enterprise visa interview raising information in relation to the applicant’s ties to Jordan and that the applicant had been asked if he had sent money from Australia and that he responded “yes”. The Authority noted that the Delegate raised with the applicant records in relation to funds sent to a person using the applicant’s photo identification. The Authority referred to the applicant indicating that he had previously stated he had sent money and that in response the applicant had said he had not done it from here but that he had sent it through a friend in Syria and he personally had made no remittances from Australia.
The Authority referred to the Delegate raising with the applicant that someone with the applicant’s photo identity document remitted funds overseas, which the applicant denied. The Authority further referred to the transactions being made using the applicant’s photographic identity and that the remittances appear to have been made from Adelaide and then from Sydney, which correlates with the times the applicant would have been in Adelaide and then moved to Sydney. The Authority found that the applicant did not explain why the bulk of remittances were to people with the same surname or other similar family names as him and his father.
The Authority did not accept that the applicant did not make the remittances to his family members in Jordan. The Authority was satisfied that the financial transactions were carried out by the applicant and that he was not being truthful in his recount of these matters.
The Authority referred to the applicant’s claimed fear of harm in Syria and found a number of inconsistencies and lack of specificity in his accounts about his life in Syria and the trouble he faced there. The Authority identified that the applicant’s account of being imprisoned in Syria for six months was not consistent with the Safe Haven Enterprise visa interview. The Authority referred to psychological evidence and that the applicant had spent approximately five years in the Australian community where he lived and worked without seeking psychological treatment.
The Authority referred to the applicant’s claims about being questioned and tortured. Based on the inconsistencies between what the applicant said at the Safe Haven Enterprise visa application and his arrival interview, the Authority did not accept the applicant’s father worked for Hamas.
The Authority referred to questions put to the applicant about the applicant’s address, his education and life in Syria and identified inconsistencies which raised further questions as to the applicant’s credibility. The Authority found that the applicant had attempted to conceal the true regard of his origins. The Authority was willing to accept the applicant is of Palestinian heritage. The Authority, however, found that the applicant was a resident of Jordan prior to travelling to Australia. The Authority found that Jordan was where the applicant resided before coming to Australia and that the applicant is a national of Jordan and that Jordan is the applicant’s receiving country for the purpose of the Safe Haven Enterprise visa application.
The Authority found that the applicant had not been truthful and did not accept that he came from Syria. The Authority also did not accept any of the applicant’s claims in relation to the claimed events in Syria.
The Authority also did not accept the applicant’s claim he had lost his identification documentation.
The Authority did not accept the applicant’s account of events in Syria and did not accept that the applicant had been suffering psychological distress because of those claimed events. The Authority was satisfied that the applicant does not face a real chance of harm because of his psychological health.
The Authority was satisfied that the applicant does not face a real chance of harm because of any official, societal or wasta discrimination in Jordan or because of his psychological condition.
The Authority found that the applicant does not face a real chance of harm for any reason if he was to be returned to Jordan.
The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.
The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Jordan from Australia, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.
Accordingly, the Authority affirmed the decision under review.
Before the Court
These proceedings were commenced on 11 March 2020. On 25 March 2020, orders were made providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.
The applicant submitted orally that he disagreed with the adverse findings by the Authority in not accepting his evidence that he was a stateless Palestinian from Syria and contended that the Authority’s reasons for finding that he was a national of Jordan were wrong. The applicant’s submissions, in substance, invited merits review. The Authority provided logical and rational reasons in support of the adverse credibility findings that included the want of documentation, the applicant’s Facebook account and the financial transactions to which the Authority referred, as summarised above, as well as the other inconsistencies in the applicant’s evidence as to his life in Syria.
The applicant also submitted that he had not had an opportunity to put on any further submissions or new information after the remittal of the matter. The remittal occurred on 10 December 2019. The orders made clear that the matter had been remitted to the Authority on that date to re-determine the matter according to law. The applicant had ample opportunity, from 10 December 2019 until 27 February 2020, if the applicant sought to, to put on new information and submissions. Further, the Authority wrote to the applicant on 6 February 2020, reminding the applicant of the opportunity to put on new information and submissions and identifying that the applicant would need to act quickly and that a decision may be made at any time. The applicant had further opportunity from 6 February 2020 until 27 February 2020 to put on submissions and new information and he did not do so. No jurisdictional error arises by reason of the Authority’s steps taken to reconsider the matter after the remittal and the opportunity given to the applicant by the letter dated 6 February 2020 to put on new information and submissions.
The applicant also referred to the reasons of the differently constituted Authority. The reasons of the differently constituted Authority are not capable of giving rise to any relevant error in the reasoning of the current Authority.
The applicant did, however, refer to paragraph 18 of the Authority’s reasons and, in particular, the reference to the applicant being asked whether he had sent money from Australia and the applicant responding “yes”. The Delegate’s reasons do not of themselves make any reference to that subject matter. The Court appreciates that that is a broader and different question to the remittal of moneys to Jordan that was referred to by the Delegate on page 139 of the Court Book.
The Court was, however, sufficiently concerned by the applicant’s oral submission that this was an error by the current Authority that the Court made directions requiring the first respondent to put on a transcript of the record of interview with the Delegate and any further submissions on whether anything in paragraph 18 of the Authority’s reasons gives rise to any jurisdictional error and provided a timetable for the applicant to respond. The Court also, by consent of both parties, dispensed with any further oral hearing and reserved its decision.
The first respondent filed an affidavit that makes clear at page 30 of the Transcript that the Authority was correct that the applicant was asked if he sent money overseas and the applicant responded ‘Yes”. There was no error in the Authority’s reasons in that regard and the applicant’s contention to the contrary does not give rise to any jurisdictional error. The Court has also taken into account the submissions filed by the first respondent pointing out that the applicant’s contention that the Authority’s reasons were not accurate as to what was said by the applicant to the delegate are not made out. The transcript supports that conclusion. The Court has also taken into account the affidavit filed by the applicant that endeavoured to explain the transfer of funds and invited merits review. The applicant’s reference to mistakes and assertions as to the driver’s licence does not identify any material interpretation error and is a disagreement with the adverse credibility findings rejecting the applicant’s explanation of identity fraud that were open to the Authority and does not identify any jurisdictional error. The reasons of the Authority, as summarised above, provide an evident and intelligible justification for the adverse findings and the adverse outcome was one to which a reasonable decision maker could make. The reasons of the Authority were logical, rational and reasonable. No jurisdictional error arises from the applicant’s affidavit and written submissions.
The applicant also orally submitted that the Authority had predetermined the matter. The Authority’s reasons do not support any such assertion. The Authority’s reasons are consistent with the Authority conducting the review with an open mind reasonably capable of persuasion as to the merits. Further, the adverse findings by the Authority are not conduct by reason of which a fair-minded, lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits.
The applicant also referred to the decision of this Court quashing the decision of the differently constituted Authority. Those references do not assist the Court in identifying any jurisdictional error in the decision in the review conducted by the Authority as reconstituted. In substance, the applicant’s oral submissions were otherwise an invitation to this Court to engage in impermissible merits review.
Nothing in the applicant’s recent affidavit with submission or the applicant’s oral submissions identify any jurisdictional error.
Grounds in the amended application
The grounds of the amended application were as follows:
1. The decision is legally unreasonable because the applicant does not have a well founded fear of persecution as he is a Palestinian usually resident in Jordan and not a Syrian refugee is not supported by probative evidence
2. The Second Respondent (the IAA) was legally unreasonable in deciding not to get new information from the Applicant pursuant to s.473DC(3) of the Migration Act 1958 (Cth).
a. The matter was remitted back to the IAA from the Federal Circuit Court of Australia (FCCA), by the decision of EBE18 v Minister for Home Affairs & Anor [2019] FCCA 34.
b. In the FCCA proceedings, the Applicant sought to admit new information by seeking to read 4 affidavits (altogether the New Information).
c. The IAA, having made adverse findings about the Applicant’s credibility in relation to other evidence, determined not to exercise its discretion to get new information pursuant to s.473DC(3) of the Migration Act 1958 (Cth).
d. In the circumstances, the IAA was required to consider, specifically address and make findings in relation to the New Information, rather than rely upon its earlier credibility findings on other matters to find that it would not obtain “any useful new information from this process'” at paragraph [8] of the IAA decision.
Ground 1
In relation to ground 1, this reflects a disagreement with the adverse finding in respect of the applicant’s claim to be a stateless Palestinian. The adverse finding was open for the reasons given by the Authority. Those reasons were logical and rational for the reasons summarised above. No legal unreasonableness is made out in respect of the adverse findings by the Authority as to the applicant not being a stateless Palestinian and as to the applicant being a resident of Jordan. The adverse findings were open and included the want of probative evidence by the applicant in support of his claims. In that regard, s 5AAA of the Act identifies that it is for the applicant to provide sufficient to establish his claims. No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, the applicant’s reference to four affidavits being new information was not information that was before the reconstituted Authority. Those affidavits were apparently affidavits that were identified in the earlier Federal Circuit Court of Australia proceedings and were not before the Authority. Information that was not before the Authority is not capable of giving rise to any jurisdictional error. For the reasons already given, the Authority provided an evident and intelligible justification for declining to exercise the powers under s 473DC of the Act. No jurisdictional error is made out by ground 2.
As the amended application fails to make out any jurisdictional error and no other basis advanced has made out any jurisdictional error, the amended application is dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 3 August 2020
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