ECP19 v Minister for Immigration

[2020] FCCA 2364

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECP19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2364

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority took into account new information that it was not authorised to consider – whether the Authority failed to comply with and/or misconstrued s 473DE of the Migration Act 1958 (Cth) – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 65, 473CB, 473DB, 473DC, 473DD, 473DE, 476

Cases cited:
Plaintiff M174/2016 v Minister for Immigration and Border Protection and Anor (2018) 264 CLR 217

Applicant: ECP19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2723 of 2019

Judgment of: Judge Street

Hearing date: 26 August 2020

Date of Last Submission: 26 August 2020

Delivered at: Sydney

Delivered on: 26 August 2020

REPRESENTATION

Counsel for the Applicant: Mr A Aleksov

Solicitors for the Applicant: Bardo & Erci Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Leave is granted to the applicant to rely upon the amended application filed on 17 August 2020.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

DATE OF ORDER: 26 August 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2723 of 2019

ECP19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Pt 7AA of the Act, dated 12 August 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. 

3. The applicant arrived in Australia as an unauthorised maritime arrival on 9 September 2012. 

4. The applicant claimed to fear harm by reason of an imputed political opinion of support for foreign intervention in Iraq and because of his work with a foreign company and failure to cooperate with anti-foreign militias in Iraq, as well as running away and seeking protection in a western country. 

5. On 7 June 2019, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

6. It is apparent from the Delegate’s reasons, at CB 144, that the Delegate had information relating to the applicant’s endeavour to obtain an assessment of protection obligations in Nauru. That is further supported by an affidavit that has been filed by the Minister.

7. The Court finds that the Nauru protection interview was before the Delegate at the time of the Delegate’s decision. 

8. The Authority wrote to the applicant on 13 June 2019 explaining that the application for the Safe Haven Enterprise visa had been referred to the Authority for review, and provided the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions that were expressly referred to and taken into consideration by the Authority in its reasons. 

9. The Authority identified the background to the Safe Haven Enterprise visa application and had regard to the material given by the Secretary under s 473CB of the Act. 

10. The Authority considered the new information and had regard to the same insofar as it engaged with the Delegate’s decision. The Authority identified and considered the new information, consistently taking into account both limbs of s 473DD of the Act. 

11. The Authority referred to a submission that the applicant was willing to provide further information if needed. The Authority took into account the opportunity that had already been given to the applicant and found in those circumstances that there was no need to exercise the powers under s 473DC of the Act. 

12. The Authority summarised the applicant’s claims. 

13. The Authority identified that the applicant was born in a particular location where he lived throughout his life in Iraq, and that his parents still live in that particular location in the family home, and that he has five brothers and six sisters, and that his youngest brother lives with his parents, one sister lives overseas, and his other siblings live in different homes in his home region. 

14. The Authority referred to the applicant being married and having two daughters, and that his wife and children lived in the home region until they went to Turkey in 2018. 

15. The Authority referred to the applicant’s running of a grocery shop from 2010 until he was then employed by a particular oil company from 2011 to 2012.

16. The Authority referred to the applicant’s work for the oil company and accepted his employment there from a particular date in 2011 to a date in 2012.

17. The Authority identified a number of difficulties with the applicant’s claims about the adverse action he and subsequently his family suffered from militia because of his employment at that company. 

18. The Authority identified having serious concerns about the problems the applicant says his family faced in Iraq from the militia that kidnapped him.

19. The Authority also referred to the failure of the applicant to mention earlier the more extensive and serious problems that he raised in 2018 and 2019. The Authority did not consider it credible that any militia group in Iraq would maintain an interest in the applicant, including posing an ongoing threat to his family, seeking a guarantee in the form of his brother-in-law’s life and subsequently murdering his brother-in-law some six years after the original incident for something as minor as the applicant reneging on a promise to make a call to them to give them information. The Authority also identified that it was not credible that if the militia had murdered a particular person because of their adverse interest in the applicant, the militia did not also subsequently take action against some or all of the applicant’s parents and siblings that remain in his home region. 

20. The Authority also identified concerns in relation to the applicant’s kidnapping claim and found the premise for the same not to be credible.  The Authority referred to variations in the applicant’s evidence on the alleged mistreatment and the identity of the militia that he says kidnapped him. 

21. The Authority also took into account a translator’s letter that alleged there was a mistake in the applicant’s Safe Haven Enterprise visa statement. The Authority did not attach any weight to the translator’s letter. 

22. The Authority referred to taking into account difficulties that the applicant may have had in relation to recalling events and of misunderstanding material. The Authority, however, was satisfied on the information before the Authority that the applicant was of no adverse interest to a militia group in Iraq arising from his circumstances whilst living in Iraq and working for the oil company. 

23. The Authority was not satisfied that the applicant is suffering from a mental health disorder, illness or condition that requires any current or future treatment. 

24. The Authority was not satisfied that the risk level of harm to the applicant in his home region rises to a real chance of the applicant suffering harm. 

25. The Authority was not satisfied that there is a real chance the applicant will suffer any harm as an asylum-seeker returning from a western country now or in the reasonably foreseeable future. 

26. The Authority was not satisfied that there is a real chance that the applicant will suffer harm from militia groups because of any imputed political opinion, because he worked for an oil company or because he left Iraq to seek protection in a western country, from generalised violence in his home region, as a returning asylum-seeker, and/or for any other reasons based on his profile, now or in the reasonably foreseeable future. 

27. The Authority was not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act. 

28. The Authority found that the applicant did not meet the criteria of the requirements of “refugee” in s 5H(1) of the Act and found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

29. The Authority found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iraq from Australia, there is a real risk that 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 and affirmed the decision under review. 

Before the Court

1. The ground in the amended application is as follows: 

   Ground 1

   1.The decision of the IAA is affected by jurisdictional error because the IAA took into account new information that it was not authorised to considered, or failed to comply with or constructively misapplied, s 473DE, in relation to the “Nauru protection interview”.

2. The kernel of the argument advanced by Mr Aleksov, counsel on behalf of the applicant, is that there was jurisdictional error arising from the Nauru protection interview as a result of observations by the High Court in para 27 of Plaintiff M174/2016 v Minister for Immigration and Border Protection and Anor (2018) 264 CLR 217, which relevantly provides as follows:

   27.Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority's obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.

3. Mr Aleksov submits that, in the present case, the Authority took into account, on the face of its reasons, new information within the meaning of s 473DD of the Act, being the Nauru interview, and failed to comply with the requirements of s 473DE of the Act. Section 473DB of the Act relevantly provides as follows: 

   Immigration Assessment Authority to review decisions on the papers

   (1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

   (a)  without accepting or requesting new information; and

   (b)  without interviewing the referred applicant.

   (2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

   Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

4. The reference to the review material provided under s 473CB of the Act picks up the definition of “review material” as defined in section 473CB(1), as follows:

   Material to be provided to Immigration Assessment Authority

   (1)The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a)a statement that:

   (i)sets out the findings of fact made by the person who made the decision; and

   (ii)refers to the evidence on which those findings were based; and

   (iii)(iii)  gives the reasons for the decision;

   (b)material provided by the referred applicant to the person making the decision before the decision was made;

   (c)any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

   (d)the following details:

   (i)the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

   (ii)the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iii)the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iv)if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

   (v)if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

5. In substance, Mr Aleksov submits that the Nauru interview was not material that was before the Delegate, and that accordingly, the Authority was required to give the applicant an opportunity consistent with s 473DE of the Act to respond to the new material being taken into account. 

6. The Authority referred in its reasons to the Nauru interview in paras 21, 23 and 24. In para 21 there is an express reference to the applicant, in his Nauru protection interview of April 2013, confirming that nothing had happened to the whole of his family since he left Iraq. 

7. The Authority referred to the alleged kidnapping and that after the applicant was released, he was held for about one week (in the Nauru protection interview and in the Safe Haven Enterprise visa), for about two weeks (in the post-Safe Haven Enterprise interview submissions and submissions to the Authority). The Authority also made reference to the applicant saying that the militia that had kidnapped him was the Mahdi Army (in the Nauru protection interview), or that he believed it was the Shia militias (Safe Haven Enterprise visa statement), or that it was Asa’ib Ahl Al-Haq (Safe Haven Enterprise visa interview). 

8. Further, in para 24 of the Authority’s reasons,  there is a reference to there being a substantial discrepancy in relation to whether the applicant was held for that one week or two weeks, because he said twice at the Nauru protection interview that he was told by his family that he was held for one week. 

9. As the Court has already identified, the Court has found that the Nauru interview was before the Delegate, and in these circumstances there is no obligation on the Authority to take steps under s 473DE of the Act in respect of the same so far as it would have otherwise been characterised as new information. For the reasons already given, it was not new information. New information is identified in s 473DC of the Act, which relevantly provides as follows:

   Getting new information

   (1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

   (a)were not before the Minister when the Minister made the decision under section 65; and

   (b)the Authority considers may be relevant.

   (2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

   (3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)in writing; or

   (b)at an interview, whether conducted in person, by telephone or in any other way.

10. The Court accepts the first respondent’s submission that, on the evidence, the Nauru interview was before the first respondent when the decision was made under s 65 of the Act. The reference to the same, in the Delegate’s decision, to the applicant in Nauru for refugee status as referred to above, supports this finding. The finding is also supported by the affidavit of Josh Contin dated 24 August 2020 and the overlapping file container reference which included the audio recording of the Nauru interview. Mr Aleksov submitted that because the Delegate may not have listened to the audio recording, it should not be treated as being before the first respondent. There is no substance in that contention. Whilst the Delegate may have opined about what was outside the scope of “this assessment” it does not mean that the Nauru interview was not before the first respondent. The audio recording was in the file container which was before the first respondent. 

11. No jurisdictional error as alleged in the amended application is made out. Accordingly the amended application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 26 August 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 17 September 2020