Ebq19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 312
•3 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EBQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 312
File number(s): SYG 2726 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 3 December 2021 Catchwords: MIGRATION – Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal failed to consider evidence – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 476, 477(1), 477(2), 501(3) Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387
Minister for Immigration and Border Protection v MZYTS [2013] FCFCA 114
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Tickner v Chapman (1995) 57 FCR 451Division: General Number of paragraphs: 29 Date of hearing: 3 November 2021 Place: Sydney Counsel for the Applicant: Mr L Karp, by video Solicitor for the Applicant: Legal Edge Australia Counsel for the First Respondent: Mr T Liu, by video Solicitor for the First Respondent: Clayton Utz ORDERS
SYG 2726 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EBQ19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
3 DECEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s 477(1) of the Act for making an application for relief under s 476 of the Act in relation to the decision of the second respondent made on 9 August 2019 is extended up to 22 October 2019.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $6,100.
THE COURT NOTES THAT:
4.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The principal question that arises on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is whether, in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa, the second respondent (Tribunal) failed to consider an issue or information relevant to the applicant’s claims for protection.
The application for remedies under s 476 of the Act was filed outside the period provided for by s 477(1) of the Act. The Minister accepts it would be necessary in the interests of justice that an order be made under s 477(2) of the Act extending the 35 day period up to the day on which the applicant commenced this proceeding. Having considered the explanation for delay, and the ground the applicant raises, I am satisfied it is necessary in the interests of the administration of justice to make an order under s 477(2) of the Act, and I propose to do so.
It would be convenient to begin by setting out the applicant’s claims for protection.
BACKGROUND AND CLAIMS FOR PROTECTION
The applicant is a Syrian national, and an Alawite. He first arrived in Australia in August 2007, and stayed for 3 months. The applicant returned to Australia in 2009 on a prospective marriage visa. That visa was cancelled in September 2009, and the applicant has remained in Australia as the holder of bridging visas until 13 September 2016. In July 2017 the applicant was convicted and sentenced to 3 years imprisonment, with a non-parole period of 1 year and 6 months. The applicant was released from prison on 11 January 2019, and he was transferred to an immigration detention centre.
On 29 March 2019 the applicant lodged an application for a protection visa. In his form of application the applicant claimed that he left Syria as the holder of a partner visa, and he came to Australia with his partner and two children. Syria is a dangerous place for the applicant because, if he returns, the military will force him to join the army or kill him. The village and house in which the applicant stayed no longer exists; all is ruined. The applicant also claimed that he had been forced to join the army, but he escaped. If he returns he will be killed or jailed.[1]
[1] CB14-15. I omitted to mark the Court Book as an exhibit. I have arranged in chambers for the electronic version of the Court Book to be marked exhibit “CB”.
Before the delegate, the applicant claimed that during the war the Syrian government asked everyone who had served in the army to come back to join them during the war; the applicant was asked to join the army around 4 years ago; the applicant’s sister, who lived in Lebanon, received a letter telling the applicant to return to Syria to join the army; the applicant completed 2 years military service when he was 20 years old; the applicant held no rank, but was only a soldier in the internal security force; the applicant travelled to Lebanon in 2000 and remained there until 2006; the applicant never experienced harm in Syria; and the applicant’s sister and brother-in-law frequently travel between Lebanon and a city in Syria to check on their family home.[2]
[2] CB51-52
COURSE OF PROCEEDING BEFORE TRIBUNAL
After the hearing before the Tribunal, the applicant’s migration agent provided country information to the Tribunal. Relevant to the ground on which the applicant relies is a report titled “Syria: Reactions against deserters and draft evaders” published by an organisation named “Landinfo” (Landinfo Report).[3] The report itself describes “Landinfo” as the “Norwegian Country of Origin Information Centre”, being “an independent body within the Norwegian Immigration Authorities” which “provides country of origin information to the Norwegian Directorate of Immigration” and to “the Norwegian Ministry of Justice and Public Security”.[4] The Landinfo Report summarised its findings as follows:[5]
Syrian males who do not show up for compulsory military service risk being listed as wanted by the government. Security forces are actively searching for draft evaders in government controlled areas. Those caught are in most cases dispatched directly to the military, but in some cases additional punishment is meted out. During the first years of the civil war, tens of thousands of soldiers and officers deserted. Deserters are treated in the same fashion as other opposition activists and risk being killed or jailed and subjected to torture if caught. Family members of deserters have in some instances been arrested or put under pressure. A number of amnesty decrees have been issued for deserters and draft evaders. These amnesties also cover some of the men left behind in opposition areas that have concluded local truce agreements with the government. These men are forced to enrol in the military, but are in most cases not subjected to other punishment.
[3] CB98
[4] CB99
[5] CB100
The applicant particularly relies on the following passage from the Landinfo Report (Information in Question):[6]
According to analyst Christopher Kozak of the American Research Foundation Institute for the Study of War (as quoted by UNHCR 2017a), the rules for exemption and deferral are not always implemented consistently. Local authorities may commit irregularities, such as intelligence officers, police officers and managers at checkpoints making decisions on arrests at their own discretion. Such arbitrary decisions to arrest persons with valid exemption or deferral are overlooked by officers higher up in the decision making hierarchy, because they wish to fill quotas for recruitment to military service or enrich themselves through bribery. Much of the decision-making has become decentralised during the conflict. Central authorities in Damascus may issue vaguely formulated orders to local commanders to conduct recruitment campaigns, whereupon the local commanders will take [sic] their own decisions on how to implement the orders. This may mean that they do not follow national rules on deferral of military service to the letter . . . .
[6] CB106-107
The applicant’s migration agent also provided to the Tribunal a document that purported to represent that the applicant had completed his compulsory military service and “is now required to do his reserve service”. The document also stated that “[t]his certificate is given to” the applicant “for the purpose of obtaining citizenship”.[7]
[7] CB124
Before the Tribunal the applicant gave evidence that he had previously completed his military service, but that 4 or 5 years ago the applicant’s sister received a document from the government stating the applicant was required to re-join the military. The applicant said he only found out about the letter his sister received about 6 months ago when the applicant was released from prison.[8]
[8] CB230, [30]
TRIBUNAL’S REASONS
The Tribunal accepted the applicant is a Syrian national, and that he is an Alawite from a city in Syria. The Tribunal also accepted the applicant lived in Lebanon from about 2000 to 2006 before travelling to Australia in 2007 on a Sponsored Family Visitor visa; the applicant returned to his city but travelled to and from his city and Lebanon between 2007 and 2009; and the applicant travelled to Australia in 2009 holding a Prospective Marriage visa.[9]
[9] CB248, [56], [57]
The Tribunal appears to have accepted the applicant had completed his compulsory military service in Syria, and it accepted, based on country information, that the Syrian government has recalled reservists for active duty as a strategy to bolster the strength of its army.[10] The Tribunal, however, did not accept the applicant was recalled for military service by the Syrian authorities, as the applicant had claimed; and, for that reason, the Tribunal did not accept the applicant evaded military service, or that there is a real chance that the applicant’s name is on a list of wanted persons, or that he will be arrested, jailed, or sent to fight in the war if he returns to Syria for this reason.[11] The Tribunal relied on the following matters:
(a)The applicant did not produce evidence of any written conscription notice.[12]
(b)The applicant gave differing accounts of the method by which he was notified of his military obligations. On one occasion the applicant said a letter was sent to his sister; on another occasion the applicant said his sister was personally informed of the applicant’s obligations when she presented to a government department for an unrelated reason.[13]
(c)The original document of what the applicant claimed was a notice from the government was nothing more than a handwritten note on a blank piece of paper, bearing no hallmarks of an official document. Further, the Tribunal found that the reference in the document to the applicant’s obtaining citizenship related to the applicant’s intention to remain in Australia.[14]
(d)Although the Tribunal accepted that country information shows that the Syrian government has recalled reservists for active duty as a strategy to bolster the strength of its army, the Tribunal was not persuaded that each and every reservist has been recalled. The Tribunal relied on the applicant’s having been 40 years of age at the time he claimed the Syrian government recalled the applicant to serve, and country information suggesting that the authorities took a more active interest in recruiting younger people into the military and, to the extent the government recruited older persons, they were more likely to be people with specialist skills in their military history.[15]
(e)The applicant did not inform the compliance officer who interviewed the applicant in January 2019 that he feared harm because the Syrian government had recalled him. The applicant first made that claim later. The Tribunal did not accept the applicant’s explanation he had not been notified earlier because he was estranged from his family since 2012 due to his drug use and imprisonment, and that his relationship with his family improved after he was released from prison.[16]
[10] CB249, [65]
[11] CB250, [69]
[12] CB249, [61]
[13] CB249, [62]
[14] CB249, [64]
[15] CB250, [65]
[16] CB250, [67], [68]
The Tribunal accepted that the Syrian government is continuing to send conscript notices to individuals, including Syrians who have previously undertaken military service, and to persons who are the subject of an amnesty for draft evasion;[17] and the Tribunal further accepted that the Syrian authorities are keeping thousands of Syrian men in its military service, serving for an unspecified period and refusing to discharge successive batches of army conscripts.[18] The Tribunal, however, was not satisfied there is a real chance the applicant will be recalled for military service if he returns to Syria now or in the reasonably foreseeable future.[19] The Tribunal relied on the following:
(a)Country information indicates that, following the July 2018 offensive, the Syrian government now controls around 60 percent of Syria, including nearly all of the southern areas of the country, and most major urban centres.[20]
(b)The number of civilians killed in the war has decreased to its lowest level since the start of the war, dropping from a high of 6,657 in 2015 to 139 in September 2018.[21]
(c)The applicant is now 45 years of age and, therefore, is outside the official age range for conscription;[22] and the applicant has no specialist military or other skills likely to increase the chances of him being recalled for service outside of the age of 42.[23]
(d)The Tribunal found persuasive the opinion expressed by a Syrian expert quoted in a 2018 Finnish Immigration Service report that while some people in their late 40s and early 50s have been forced to sign up, the age limit is dependent on the government’s mobilising efforts and local developments, rather than on the universal draft; and that, in any event, Syrian authorities are usually following younger people between 18 and 27 years of age, more closely.[24]
[17] CB250, [70]
[18] CB250, [70]
[19] CB251, [72], [74]
[20] CB251, [71]
[21] CB251, [71]
[22] CB251, [72]
[23] CB251, [73]
[24] CB251, [72]
The Tribunal also considered other claims that arose on the material before it, but it is unnecessary to refer to these claims, and the reasons for which the Tribunal did not accept them.
GROUND OF APPLICATION
The applicant relies on the following ground of application contained in the amended application:
The Tribunal failed to consider information in a Landinfo document at Court Book pages 106-7, to the effect that local officials place their own interpretation on vaguely formulated directives, and in some cases make their own rules, those matters being relevant to the chances of the applicant being forcibly conscripted into the Syrian Army.
Parties’ submissions
In his counsel’s written submissions, the applicant refers to a passage from the judgment of the Full Federal Court in Minister for Immigration and Border Protection v MZYTS in which the Full Court said that, when reviewing a decision, the Tribunal was required to assess and determine what might happen to an applicant for protection if he were compelled to return to his country of origin; and that the Tribunal could not lawfully undertake these tasks “without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there”.[25]
[25] Minister for Immigration and Border Protection v MZYTS [2013] FCFCA 114, at [38]
At the hearing counsel for the applicant referred to the judgment of the Full Federal Court in Carrascalao v Minister for Immigration and Border Protection.[26] The question in that case was whether, in purporting to exercise the power under s 501(3) of the Act to cancel the applicants’ visas on the ground that the applicants did not satisfy the “character test” and the Minister was satisfied the cancellation was in the national interest, the Minister failed to give “proper, genuine and realistic consideration to the merits on each visa cancellation”. The Full Federal Court held that, in determining whether to cancel a visa on the grounds provided for in s 501(3) of the Act, the Minister is required to consider the merits of the visa holder’s case and that required the Minister to “consider” the merits in the sense “consider” has been construed in a number of cases. The Full Federal Court referred to the explication of “consider” given in the judgments in Tickner v Chapman.[27] The Full Federal Court referred to a passage from the judgment of Burchett J, which included the following: [28]
What is it to “consider” material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others:
[26] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
[27] Tickner v Chapman (1995) 57 FCR 451
[28] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, at [39] quoting from Tickner v Chapman (1995) 57 FCR 451, at page 476
The Full Federal Court also referred to the following passage from Kiefel J (as her Honour then was):[29]
To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.
[29] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, at [40] quoting from Tickner v Chapman (1995) 57 FCR 451, at pages 495-496
The Full Federal Court concluded that “consider”, as explicated in Tickner, applied to the exercise of the power to cancel a visa conferred by s 501(3) of the Act:[30]
We are of the view that the meaning of the word “consider” set out in Tickner v Chapman and the requirement for a decision-maker to engage in an active intellectual process in giving consideration to the relevant matters or criteria should also be applied in determining grounds 1 and 2 of the present applications. As noted above, under s 501(3), the Minister has a discretion to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest. Otherwise, the Act does not expressly oblige the Minister to consider any particular thing or matter before deciding to exercise his powers under that provision. Nevertheless, as we have noted above, the Minister did not contest that he was under a general legal obligation to consider the merits of their cases before cancelling the visas of both Mr Taulahi and Mr Carrascalao. An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a “more precisely defined duty”, as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).
[30] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, at [46]
Counsel for the applicant referred to the judgment of Murphy J in Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[31] and in particular his Honour’s reliance on the following passage from the judgment of the Full Federal Court in Minister for Immigration and Border Protection v SZSRS:[32]
…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.
[31] Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387, at [73 ([48])]
[32] Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, at [34]
Counsel for the applicant also referred to the following passage from the judgment of Murphy J in Gunatillake:[33]
In my view engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight. Lawful decision-making by an administrative decision-maker must be based on the evidence and it requires genuine consideration of the evidence. Care must, however, be taken to ensure that the Court does not stray into merits review.
[33] Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387, at [74]
Counsel for the applicant submits that the Tribunal did not refer to the Information in Question, and from that it should be inferred the Tribunal did not consider that information in the manner the authorities on which the applicant relies required the Tribunal to have considered it.
The Minister, on the other hand, accepts the Tribunal did not refer to the Information in Question. The Minister submits, however, the Tribunal did not do so because the Information in Question was relevant only to a particular factual premise, namely, that the applicant had received a recruitment notice; but the Tribunal rejected that factual premise. The Minister, therefore, submits that the Information in Question was subsumed by the Tribunal’s general findings.[34] In the alternative, the Minister submits the Information in Question does not provide evidence of arbitrariness in the recruitment process which directly affected the applicant’s chances of being conscripted; and that is because the Information in Question only refers to some instances of “local authorities” disobeying central orders without any specificity that would make it relevant to the applicant’s circumstances.[35]
[34] First Respondent’s Outline of Submissions, at [13], relying on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, at [47]
[35] First Respondent’s Outline of Submissions, at [14]
Determination
It is the case that the Tribunal did not expressly refer to the Information in Question. The Tribunal did, however, refer to the Landinfo Report; and that by itself would be some basis for inferring that the Tribunal was aware, and considered all, of the information contained in the Landinfo Report, including the Information in Question. Whether this inference should be drawn must be assessed by reference to what the Tribunal did.
The Tribunal identified and considered country information about “how compulsory military service has operated in Syria since the Civil War began in 2011”.[36] In other words, the Tribunal did not simply look at laws and regulations. The Tribunal identified information about how compulsory military service operated in Syria in practice. Thus, the Tribunal referred to country information about desertion, draft evasion, and what occurs to draft evaders. Here the Tribunal referred to the Landinfo Report noting it reported that “the manner in which draft evaders are treated in practice can differ from what is provided for under Syrian law”.[37]
[36] CB233, [55]
[37] CB243, [55] (emphasis added)
The Tribunal also referred to the measures the Syrian government has taken to remedy the shortage of recruits. These included the government’s not demobilising soldiers already in service; the calling up of more and more reservists; active searches for deserters through house searches and the setting up of security checkpoints; and the issuing of an amnesty for draft evaders, only for the government to issue fresh conscription notices to those who took advantage of the amnesty. The Tribunal particularly referred to a number of items of country information about the raising of the age limit for military service. The Tribunal referred to a report that the Syrian army “has raised the maximum age for voluntary conscription to 42, and is conducting forced conscription”;[38] the Tribunal referred to a report that “[a]ccording to some sources, in practice, the age limit for military service/reserve duty has been increased and people in their late 40’s and early 50’s and as old as 55 have been forced to sign up”;[39] and the Tribunal referred to a report by a Christopher Kozak who said he has not personally seen “any change to the maximum age of military service at 42”, but “[w]e nonetheless do see some individuals recruited outside the age of 42”.[40]
[38] CB246.8
[39] CB247.2 (emphasis added)
[40] CB247.9
Given that the Tribunal saw as its task the identification of how compulsory military service had operated in practice in Syria since the Civil War began in 2011, it follows that the information it sought to identify, and did identify, included information about the recruitment of soldiers on the basis of practices that included practices the Information in Question identifies in general terms. In those circumstances, I do not accept the applicant’s submission that the Tribunal did not actively and genuinely consider the Information in Question. On the contrary, it did; and it did so by seeking to identify from the country information before it information about what in practice was occurring in Syria in relation to compulsory military service.
Ground 1, therefore, fails.
DISPOSITION AND COSTS
In addition to making an order under s 477(2) of the Act I propose to dismiss the application. Counsel for both parties agreed that costs should follow the event. Mr Liu, who appeared for the Minister, submitted that if the Minister were to succeed, he would seek an order that costs be set in the sum of $6,100. I propose to order that the applicant pay the Minister’s costs set in the amount of $6,100.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 3 December 2021
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