EGJ18 and Ors v Minister for Home Affairs and Anor

[2019] FCCA 1097

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGJ18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1097

Catchwords:
MIGRATION  Adverse findings made against first applicant by IAA based in part upon contents of PV interview - order by registrar for lawyers for the first respondent to prepare a bundle of all “relevant documents” in electronic form for the purpose of the conduct of the review proceedings – absence in bundle of either a transcript of, or a recording of, the PV interview, or of any other interview – applicants unable to fully address adverse findings based upon conduct of PV interview – matter adjourned to enable lawyers for first respondent to address whereabouts of audio recording of interview – costs reserved. 

Legislation:

Migration Act 1958 (Cth) s.476

Cases cited:

DPI17 v Minister for HomeAffairs [2019] FCAFC 43.

First Applicant: EGJ18

Second Applicant: EGK18

Third Applicant: EGL18

Fourth Applicant: EGM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 853 of 2018

Judgment of: Judge Egan

Hearing date: 10 April 2019

Date of Last Submission: 10 April 2019

Delivered at: Brisbane

Delivered on: 10 April 2019

REPRESENTATION

Counsel for the Applicant: Mr S.K. Hartwell

Solicitors for the Applicant: Salvos Legal

Counsel for the First Respondent: Mr J.D. Byrnes

Solicitors for the First Respondent: MinterEllison

ORDERS

1. The matter be adjourned for further hearing to a date to be fixed.

2. By 4:00pm on 8 May 2019, the parties file and serve any further affidavit material upon which they propose to rely.

3. By 4:00pm on 5 June 2019, the applicants file and serve any further consolidated written submissions upon which they intend to rely.

4. By 4:00pm 19 June 2019, the first respondent file and serve any further consolidated written submissions upon which they intend to rely.

5. Each party have liberty to apply on the giving of three days’ notice, each to the other.

6. Costs be reserved

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 853 of 2018

EGJ18

First Applicant

EGK18

Second Applicant

EGL18

Third Applicant

EGM18

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing before the Court today pursuant to the provisions of s. 476 of the Migration Act 1958 (Cth).

2. By paragraph [15] of the reasons of the Immigration Assessment Authority (‘the Authority’) handed down 23 July 2018, the Authority laid the basis for a finding that it did not accept that the applicant had abandoned Islam, concluding that, on the applicant’s return to Iran, he would continue to practice Islam in the same manner as before his departure.  Paragraph [15] of the Authority reasons is as follows: 

   “15. From his evidence given at the PV interview it is clear that the applicant’s knowledge of any Christian concepts is very shallow. In terms of the applicant’s “true beliefs”, these appear to be that Christianity is about love and kindness. He displayed very little knowledge of any specifics of the bible, despite claiming to have attended church services and bible studies for some four years. He claimed that the Ten Commandments were “loyalty, kindness and love”. When asked what being a Christian meant to him he replied kindness and love. When asked what he had learned in church recently he discussed giving to the poor and needy. I note that the giving of charity is also a fundamental obligation in Islam. I do not accept that the applicant has undertaken any significant exploration of Christianity or that he worships as a Christian. I accept that the applicant underwent baptism on 27 July 2014 and subsequently has attended one or more Christian churches for services but do not accept that this is indicative of a genuine conversation to Christianity. I conclude that his attendance at church and his baptism were solely for the purpose of furthering his claims for protection. I do not accept that the applicant has abandoned Islam and conclude that on return to Iran he would continue to practise Islam in the same manner as before his departure.”

3. By ground 1 of the applicants’ grounds for review, the applicants contend that the findings of the Authority relating to the first applicant’s non-abandonment of Islam, and its finding that the first applicant would continue to practice the Islamic faith if returned to Iran in the same manner as before his departure from Iran, was unreasonable and lacking a rational foundation and illogical.  In that context, the issue arose as to where, in the Court book, either a transcript of the PV interview was to be found or, otherwise, where a USB stick recording that interview was to be found, so that the audio recording of the interview might be the subject of examination by the applicant for the purposes of making any relevant submission to the Court as to the contents of that interview, and as to the findings of the Authority based upon that interview. 

4. The Court was helpfully taken to parts of the Court book by each of the counsel for the applicant and the first respondent.  It would appear that in respect of the audio recording of the first applicant’s arrival interview conducted on 21 September 2013, there is no record of the contents of such interview before the Court.  The index of the Court book records that such audio recording was “N/R”.  Though various suggestions were made by each counsel as to what N/R meant (no definitive position was arrived at in that regard), no concluded view was able to be arrived at. 

5. Counsel for the first respondent indicated that he would have to seek instructions, and he indicated that steps would have to be taken by his instructing lawyers to identify what that acronym was meant to refer to and, further, whether an audio recording of the first applicant’s arrival interview still existed or not, or whether a hard copy transcript of such interview existed or not and, further, if either did, where they were.  The same considerations applied in relation to the audio recording of the second applicant’s arrival interview, the first applicant’s additional arrival interview, the audio recording of the first and second applicant’s protection visa interview, as well as other documents referred to in the index to the Court book which were not produced in such Court book, but which had the acronym N/R recorded next to them. 

6. The Court was referred to a recent decision of the full Court of the Federal Court of Australia handed down on 15 March 2019, namely DPI17 v Minister for Home Affairs [2019] FCAFC 43. In that case, the Court was dealing with, in part, the extent to which reliance had been placed by the primary Judge upon findings of the Immigration Assessment Authority based upon a SHEV interview, a transcript of which was before the Court. On its face, DPI17 was a case where a consideration of a transcript was important for the disposition of justice. 

7. So too, in this matter, is it important that the applicant have an opportunity to examine, in its entirety, either a transcript or a complete audio recording of a PV interview which has been referred to and relied upon by the Authority for the purpose of making findings adverse to the interests of the first applicant and the second applicant.  It is, in the Court’s view, fundamental to the consideration of an applicant’s claims made before the Court that the applicant has made such claims in circumstances where it is fully apprised of the matters which were, relevantly, relied upon by the Authority when making adverse findings against any such applicant. 

8. In this case, there is no transcript in the Court book recording what constituted the complete PV interview before the delegate.  It was not documentation able to be examined by the legal practitioners representing the applicants for the purpose of deciding whether appropriate submissions ought to be made in relation to the context of anything said during such interview, or not.  In that regard, I was referred by counsel for the applicants to an order of Registrar Belcher made on 26 September 2018 at Brisbane.  Paragraph 3 of that order, under the heading, “The Court orders further that:” appears the following:

   “3. By 4.00pm on 17 October 2018 the first respondent shall file and serve a bundle of relevant documents (green book) in electronic form and for that purpose, the document shall:

   (a) be in portable document format (pdf);

   (b) be capable of being searchable for specified text;

   (c) have an index and shall be paginated;

   (d) have each entry in the index bookmarked; and

   (e) be set so that when opened:

   (i) it shall display at 100% zoom; and

   (ii) the bookmarks menu shall be displayed.”

9. It is of note that the first respondent was ordered to file and serve a bundle of “relevant documents” (green book) in electronic form …

10. It is, prima facie, difficult to see how a transcript of a PV interview which, in part, was relied upon by the Authority for the making of adverse findings against the applicants is not a “relevant document” required to be compiled and included in the Court green book as envisaged by paragraph 3 of the order of Registrar Belcher.  Mr Byrnes of counsel on behalf of the first respondent properly has indicated to the Court that, in order to address the matters of concern raised by the Court, he would need to receive instructions from his instructing lawyers as to those matters. 

11. Mr Hartwell of Counsel on behalf of the applicants agreed that the matter should be adjourned for the purpose of Mr Byrnes, by his instructing lawyers, being in a better position to address the concerns of the Court.  More generally, the Court would invite the first respondent to examine what constitutes a relevant document for the purpose of inclusion, either in hard copy or electronic form, of a record before the Court in matters such as the present. 

12. The parties have indicated that they will need to consider the filing of affidavit material on point, and have undertaken to address that issue by seeking to formulate some consent directions.  The Court awaits receipt of such directions for inclusion in the order which, ultimately, will be made.  However, it is clear that this matter needs to be adjourned so that the relevant considerations can be addressed, and addressed in a punctual manner which the Court is sure will occur.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 26 April 2019