Efa18 v Minister for Home Affairs

[2019] FCCA 740

FEDERAL CIRCUIT COURT OF AUSTRALIA

EFA18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 740

Catchwords:
MIGRATION – Application for safe haven enterprise visa – inconsistencies in applicant’s history – adverse credibility findings – country information adverse to applicant’s claims – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 473BB, 473CA, 473CB, 473DD

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: EFA18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 838 of 2018

Judgment of: Judge Egan

Hearing date: 13 March 2019

Date of Last Submission: 13 March 2019

Delivered at: Brisbane

Delivered on: 13 March 2019

REPRESENTATION

Counsel for the Applicant: Mr. A. Hartnett

Solicitors for the Applicant: Chand Lawyers

Counsel for the First Respondent: Mr B. McGlade

Solicitors for the First Respondent: Sparke Helmore

IT IS ORDERED THAT:

1. The amended application for review filed on 13 March 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 838 of 2018

EFA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Afghani citizen who originates from Ghazni city in Afghanistan. He arrived in Australia by boat on 5 June 2013 as an unauthorised maritime arrival. On 8 July 2016 an officer of the first respondent informed the applicant that the Minister had exercised the power under section 46A(2) of the Migration Act 1958 (Cth) (‘the Act’) to “lift the bar” and, thereby, the applicant was permitted to make a valid application for a Safe Haven Enterprise visa (SHEV). On 1 July 2016 the applicant lodged an application for a SHEV. On 19 September 2017 a delegate for the Minister refused the application for the SHEV.

2. The delegate’s decision was a fast track reviewable decision within the meaning of section 473BB of the Act. The delegate’s decision was referred to the Immigration Assessment Authority (‘the Authority’) pursuant to the provisions of section 473CA of the Act. On 19 July 2018 the Authority affirmed the delegate’s decision. On 14 August 2018 the applicant filed an application for judicial review of the Authority’s decision.

3. In the reasons of the Authority it was recorded at [3] of its reasons that the Authority had had regard to the material provided to it by the secretary pursuant to the provisions of section 473CB of the Act.

4. At [8] of its reasons, the Authority set out the applicant’s claims for protection as follows:

   ·The applicant is a Sunni Tajik male from Ghanzi city, Afghanistan;

   ·In 2010 or 2012, the applicant opened a mobile phone retail store in Ghazni city;

   ·Soon after, due to customer demand and to increase profits, the applicant included music and pornography on the internal memory of the mobile phones that he sold;

   ·In 2012, the Taliban threatened the applicant by telephone on three occasions. He was told that by selling pornography he was breaking Sharia Law and that he would be killed;

   ·A day following the third telephone threat, a bomb exploded outside the applicant’s mobile phone store;

   ·After a brief stay in hospital, the applicant moved to Kabul and lived in hiding. About five months later he left Afghanistan;

   ·On his way to Australia, the applicant learned that his brother had been kidnapped by the Taliban. He was subsequently released following intervention by a local Imam and members of his community;

   ·Since being in Australia, strange people have asked the applicant’s family about him. He has also received friend requests from unknown people on Facebook. He fears these people could be Taliban;

   ·If returned to Afghanistan, the applicant fears he will killed by the Taliban for selling pornography prior to his departure from Afghanistan.

5. The Authority accepted that the applicant came from Afghanistan and that he originated from Ghazni city.  It also accepted that the applicant operated a mobile phone business before he came to Australia.  At [19] of its reasons the Authority stated that having regard to all of the information before it, including the applicant’s evidence at the SHEV interview, the Authority accepted that the applicant operated a mobile phone store in Ghazni for about 12 months prior to coming to Australia. 

6. It also accepted the broadly consistent evidence that the applicant had installed pornography onto the phones for a number of months so as to boost profits.  The Authority was not satisfied, however, that the applicant had come to the adverse attention of the Taliban or other persons on that basis.  Nor was it satisfied that, if returned to Afghanistan, the applicant would face a real chance of coming to the adverse attention of the Taliban or other persons due to any events of 2012 and 2013.  The Authority pointed to a number of respects in which it was satisfied that there was inconsistent evidence put forward by the applicant in support of his claims as follows:

   a)The applicant gave inconsistent evidence as to when he operated his mobile phone store and the ownership of the business (see [12-18] of Authority reasons). In his SHEV application the applicant asserted that he was a self-employed shopkeeper from February 2012 until February 2013.  But in his SHEV interview the applicant gave evidence that he had commenced running the business in 2010 – some two years earlier.  At the SHEV interview the applicant also said that he ran the business with a partner (namely, that the business was not solely owned by him) and, further, that he ceased operating the business in mid or late-2012 and not February 2013.

   b)The applicant gave inconsistent evidence as to where he lived in the months leading up to his departure from Afghanistan in May 2013.  In the SHEV application and entry interview, the applicant said that he lived in Ghazni city until his departure in May 2013, whereas in his SHEV interview the applicant said that he moved to Kabul some five months prior to his departure from Afghanistan in May 2013. 

   c)The applicant gave inconsistent evidence concerning the timing of an alleged bombing of his store by the Taliban.  In his SHEV application the applicant stated that he had operated his store until February 2013, but in his SHEV interview the applicant indicated that his store was bombed in mid-2012.  Later on in the SHEV interview the applicant stated that his store was bombed at the end of 2012.

   d)The Authority found the applicant’s statements as to what happened after the alleged bombing to be unpersuasive.  Prior to the SHEV interview the applicant had not indicated that he had moved to Kabul following the alleged bomb blast.  Though it was claimed that three people had been killed in the blast, the applicant produced no media reports of such explosion or killings.  Though the applicant stated that he had been rendered unconscious as a result of the bombing and had been taken to hospital, the applicant could not point to any injuries or scars as a result thereof. 

   e)The applicant’s assertion that he was removed from hospital after the bombing by his brother – who it was alleged took him out of the hospital in the middle of the night with the applicant disguised in a burka – and the assertion that the brother had later smuggled the applicant out of Ghazni city to Kabul, was found by the Authority to be implausible and inconsistent with the fact that, prior to the SHEV interview, the applicant had given no indication that he had ever moved to Kabul following the bomb blast.

7. The Authority found that the applicant’s evidence in relation to his brother’s alleged kidnapping was unconvincing.  In that regard, prior to the applicant arriving in Australia, the applicant was said to have been informed of his brother’s kidnapping by his uncle and, further, that the applicant’s family had received a letter from the Taliban taking responsibility for bombing the store, however, the applicant made no mention of his brother’s kidnapping or his family’s alleged receipt of the letter from the Taliban prior to the SHEV interview. 

8. The Authority noted that there was an inconsistency between the applicant’s claim at the SHEV interview that his store had been destroyed by a bomb in 2012 whereas the applicant was recorded as having told the entry interviewer that he operated his business until 2013, selling that business prior to his leaving Afghanistan ([18] of Authority reasons). 

9. The grounds upon which the applicant seeks review of the decision of the Authority are contained in grounds 3 and 4 of the amended application filed by leave today.  Those grounds are as follows:

   3. The Authority exceeded its jurisdiction by failing to determine according to law whether certain new information provided by the Applicant should have been considered in the review of the delegate’s decision in accord with section 473DD of the Act as follows:

   a) The Applicant provided new information to the Authority, namely:

   i) An undated newspaper article about an explosion in Ghazni Province;

   ii) A medical certificate dated 3 October 2017 from Nisar Medical Complex and Kidney Centre;

   iii) An undated letter from community elders in Ghazni City about the kidnapping of the Applicant’s brother; which comprised new claims about W.

   b)The Authority declined to find that exceptional circumstances existed to justify considering the information;

   c) In determining whether exceptional circumstances existed, the Authority found that it was not satisfied that the Applicant could not have provided the information to the Minister before the delegate made his decision;

   d) In determining whether exceptional circumstances exist, the Authority considered the credibility of the information;

   e) In determining whether exceptional circumstances exist, the Authority considered whether the information would affect the assessment of the significant or serious harm that may be suffered by the Applicant;

   f) The proper construction of section 473DD(b)(ii) is that the information was not previously known by either the Applicant or the Minister;

   g) The credibility of the information, whether it was previously known by the Applicant or the Minister and an assessment of whether it may have affected the consideration of the Applicant’s claims are to be considered after it is determined whether exceptional circumstances exist;

   h) By reason of the Authority’s failure to decide whether to receive the new information in accordance with section 473DD of the Act, the decision to refuse the new information was not made according to law and, as a result, the Authority failed to exercise its jurisdiction as required by law.

   4. The decision of the Authority was affected by jurisdictional error in that the reasoning by which the Authority made adverse findings concerning the Applicant’s claim for a safe haven visa was beset by illogicality:

   a) In [14], the Authority found that there was an inconsistency between a statement that the Applicant had lived in Ghazni City his entire life and a subsequent statement that the Applicant had lived in Ghazni City up until May 2013 until he went to Kabul for a few months before leaving Iraq in circumstances where it is common when describing where one has lived to omit short periods where one has lived somewhere else;

   b) In [19] and [20], the Authority found that the Applicant operated a mobile phone store and sold pornography and that he was likely to do that as part of making a living from his electronics skills were he to return to Afghanistan. However, the Authority found that the Applicant had not and would not receive any adverse attention from the Taliban were he do this. While this finding is partially based on rejecting the claim that the Applicant’s mobile phone store was bombed by the Taliban, that finding (that the store was not bombed) was, itself, more easily arrived at because of the finding that pornography was prevalent in urban parts of Afghanistan without apparent harm to those involved. However, the Authority leaves out of its analysis the undisputed country information that market sellers of pornography are wary; that police close down shops of people selling pornography or receive bribes not to do so; that the Taliban had a significant presence in Ghazni at the relevant time; that improvised explosive devices were used to kill officials and citizens; that the Taliban impose extra-judicial punishments for perceived breaches of Sharia Law (delegate’s reasons, pages 4-6). The Authority gives no consideration to the likelihood that selling pornography is a breach of Sharia law. This overlooking of undisputed and crucial circumstantial information tending to establish a real chance that the Applicant would be subject to persecution resulting in serious harm undermines the reliability of both individual findings of fact by the Authority and the Authority’s ultimate rejection of the claim of genuine fear of persecution and the real chance that the Applicant would be persecuted.

10. As to ground 3, it was asserted that the Authority misapplied the provisions of section 473DD of the Act when assessing, firstly, a medical certificate dated 3 October 2017 from Nisar Medical Complex, and secondly, an undated newspaper article concerning an explosion in Ghazni Province, each of which were treated as “new information”. Section 473DD of the Act provides as follows:

    Considering new information in exceptional circumstances

    473DD ?? For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

11. The Authority found that both limbs of section 473DD had been met. Firstly, when considering the “exceptional circumstances” limb in section 473DD(a) of the Act, there was nothing in the reasons of the Authority to indicate that the Authority did not take into account all of the matters before it, or all of the circumstances of the case before it, when arriving at its decision.

12. At [5-7] of its reasons, the Authority was particular as to why it was not satisfied that there were exceptional circumstances justifying it considering the two pieces of new information submitted to it.  It did so in a cogent and logical way.  The Authority did not have to refer to each and every circumstance before it when arriving at its decision that there were no such exceptional circumstances. [1] 

    [1]        AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [15] – [17].

13. The Authority dealt with the question of whether exceptional circumstances existed or not in sufficient detail as to make it clear as to why it considered that there were no such exceptional circumstances. Looking more closely at each of the documents submitted as new information, the applicant did not point to any error in the Authority’s application of section 473DD(a). To submit that the Authority ought to have come to a different factual finding is to invite this court to undertake an impermissible merits review, which it is not entitled to do.

14. As to the newspaper article itself, the Authority expressed concerns about the authenticity of the article, particularly in circumstances where it used the same language and format as used by the delegate, which suggested possible concoction.  Secondly, the newspaper article recorded that the blast happened opposite the mobile phone store, which was contrary to the applicant’s claims. 

15. The applicant also failed to put forward any reason why there were exceptional circumstances justifying consideration of the information contained in the article.  In those circumstances, the Authority was not obliged to endeavour to find such exceptional circumstances on behalf of the applicant, particularly in circumstances where it was not obvious that there were any.  The applicant did not put forward any reason as to why the newspaper article could not have been brought to the attention of the delegate before the delegate made the decision, nor how the newspaper article was purportedly found after the making of such decision.  It was clearly open to the Authority to find that it was not satisfied that the newspaper article could not have been provided to the delegate before the delegate made the decision.  The Authority was not obliged to inquire of the applicant as to how the applicant had allegedly come into possession of the newspaper article, particularly in circumstances where the applicant failed to provide an explanation how it did come into his possession. 

16. As to the “credible personal information” limb of section 473DD, the Authority appropriately dealt with such question when discussing at [5]-[7] of its reasons the bases on which it might consider that there were or were not exceptional circumstances justifying consideration of the information. As to the medical certificate, the same considerations applied for the same reasons as in respect of the newspaper article. The Authority properly dealt with the issues before it and no jurisdictional error was demonstrated in relation to its approach.

17. As to ground 4 of the amended application for review, it is noted that the applicant asserts that the way in which the Authority dealt with the applicant’s claims was “beset by illogicality”.  It has not been demonstrated that the ultimate decision of the Authority was so affected by illogicality. If there was any irrationality or illogicality in the facts found by the authority, it cannot be said that such findings were so material as to give rise to jurisdictional error.

18. In SZUXN v Minister for Immigration and Border Protection[2], when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were either irrational or illogical, Wigney J, at [55], said:

    [55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal:  SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

    [2] (2016) 69 AAR 210

1. In CQG15 v Minister for Immigration and Border Protection[3]  the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] as follows:

   [60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   [3] (2016) 253 FCR 496 at [60]

   …

   54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

   55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

2. As to ground 4(a), the applicant said at his entry interview that he had lived in Ghazni city for the whole of his life until his departure for Australia in May 2013.  That was repeated in his SHEV application.  However, at his SHEV interview, the applicant claimed that he had moved to Kabul some five months prior to his departure to Australia.  That was inconsistent with his prior evidence.  The Authority, in observing the inconsistency in such evidence, was entitled to look to discrepancies when assessing the nature of the information put before it by the applicant.  It was something that a logical and rational decision‑maker was required to do.  The Authority looked at that inconsistency in the context of other inconsistencies and anomalies referred to above.  The Authority also relied upon country information, as it was entitled to do, when it arrived at its findings.  There is no basis for criticising the way in which the Authority dealt with that country information.

3. The Authority properly made findings based on country information when assessing the risk of the applicant possibly selling pornography in the future, finding that the prospect of him suffering harm from the Taliban for doing so was remote.  It was entitled to do so quite apart from any reference in the country information to what the prevalence of random clashes in and about the Ghazni region was.  It was entitled to make findings to the effect that the chance that the applicant would come to the adverse attention of the Taliban or face harm if he chose to sell pornography on return to Afghanistan was remote.  Again the Authority looked at all of the information before it, both individually and cumulatively, in that regard. 

4. The Authority dealt with the inconsistencies in the evidence presented by the applicant concerning when he did or didn’t operate the business.  There are at least two different versions provided by the applicant as to when he ceased operating such business.  Initially, the applicant advised the delegate that the bombing occurred in mid‑2012.  Later, in the SHEV interview, the applicant claimed that the bombing occurred at the end of 2012.

5. At the entry interview, the applicant made no mention of his mobile phone stall having been bombed when asked why he had left Afghanistan.  At the second entry interview, the applicant stated that he sold his business in order to pay the smuggler to facilitate his travel to Australia in May 2013.  The authority was entitled to take those inconsistencies into account when arriving at its decision.

6. In closely examining the inconsistencies in the applicant’s evidence, the Authority was not demonstrating that it had acted illogically in any respect.  An Authority is placed in the position of having to deal with the information before it.  When it is palpably obvious that there are inconsistencies, then, if it points to such inconsistencies in its reasoning process, and relies upon such inconsistencies when making its decision, it cannot be said to have failed in its duty to conduct a fair hearing.

7. It cannot be said that no other rational or logical decision‑maker could not have made the same decision as the Authority did in the present circumstances.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

   [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

8. Further, the decision could not be considered as legally unreasonable or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76]  As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

9. No jurisdictional error has been demonstrated.

10. The application for review is without merit and is dismissed. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:   

Date:  25 March 2019