Egy17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 651
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EGY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 651
File number(s): SYG 2970 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 17 August 2022 Catchwords: MIGRATION – review of a decision of the Immigration Assessment Authority which affirmed a decision of a delegate not to grant the applicant a protection visa – whether Authority based its decision on unwarranted assumption – whether Authority expressed doubt about a finding such that it should consider the possibility that it was wrong
PRACTICE AND PROCEDURE – first respondent opposed leave to file amended application – Commonwealth’s obligation to act as a model litigant – interests of the administration of justice – leave to rely on amended application granted
Legislation: Migration Act 1958 (Cth) s 474 Cases cited: Brandon v Commonwealth [2005] FCA 109
BYM16v Minister for Immigration and Border Protection [2017] FCCA 2445
BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 73 ALJR 584
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451
WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 5 April 2022 Place of hearing: Sydney Counsel for the Applicant: Ms F McNeil Solicitors for the Applicant: Alkafaji Lawyers Solicitors for the Respondents: Clayton Utz ORDERS
SYG 2970 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
17 AUGUST 2022
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely upon the proposed amended application filed on 28 February 2022.
2.The application, as amended, is dismissed.
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
JUDGE GIVEN:
The applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 18 August 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
BACKGROUND
The following statement of background facts is derived from the submissions of the applicant.
On 7 July 2013 (Court Book (CB) 99) the applicant arrived in Australian waters as an unauthorised maritime arrival.
On 29 July 2013 the applicant participated in an “Irregular maritime arrival and induction interview” (CB 1-26).
On 22 November 2016 (CB 29, 99), following the lifting of a bar notified by letter dated 28 July 2016 (CB 27), the applicant lodged an application for a protection visa (CB 30-74). The application was accompanied by a statutory declaration of the applicant dated 18 November 2016 setting out his claims (CB 68-70).
On 8 March 2017, the applicant was invited to attend an interview with the Minister’s delegate (CB 90) (protection visa interview). The applicant attended the protection visa interview on 22 March 2017 (CB 100).
On 10 May 2017 the delegate made a decision refusing to grant the applicant a protection visa (CB 99-109).
On 16 May 2017 the matter was referred to the Authority (CB 114).
On 12 June 2017 an agent for the applicant provided to the Authority a submission on behalf of the applicant (CB 116-122).
On 18 August 2017 the Authority made a decision affirming the decision of the delegate not to grant the applicant a protection visa (CB 126-133).
Authority decision
After setting out the background to the matter, the Authority accepted matters pertaining to the applicant’s background, his nationality, family and education and that the applicant was from a (named) place near Nasiriyah (CB 128 at [5]).
The Authority set out the applicant’s central claim which was that he and his family were targeted by a militia group because one of his brothers (H) had worked with coalition forces for about a year (CB 128 at [6]) and the applicant and his family were threatened because they would not hand it over to the group. The Authority accepted that H had undertaken the work claimed, that during the time H worked for the coalition forces he would have been targeted by militia groups and one group in particular, Asa’ib Ahl Al-Huq (AAH), and that H relocated to Baghdad as a result of the threats (CB 128 at [6]).
However, the Authority was not satisfied that the applicant’s brother was at risk of death in Baghdad because certain prisoners had escaped and H had been the interpreter during the interrogation of one of the escapees. The Tribunal was not satisfied that a member of the militia would identify the interpreter being used during an interrogation and an article submitted in support also did not indicate that the escapees were even members of AAH (CB 128 at [7]).
The Authority considered a claim that H had returned to Nasiriyah at their father’s request in 2013, and commenced work with the applicant in the applicant’s mobile phone shop around which time, a threatening letter had been sent to the shop (CB 128 to 129 at [8]) (threat letter). The Authority undertook a balanced assessment of inconsistencies in the manner in which this claim had been made and repeated (CB 129 at [8] to [9]) and made allowances for the effluxion of time and that the applicant’s migration agent may not have precisely recorded the applicant’s written claims. However, even with such allowances having been made the Authority was concerned that, in contrast to the claim that the applicant and his family were being targeted because they would not hand H over, the translation of the threat letter which was advanced by the applicant was directed in essence only to H (CB 129 at [9] to [10]). While the concluding words of the threat letter did make reference to H’s family, the Authority noted that there was no mention that H needed to be handed over.
The Authority did not accept that the threat letter was genuine (CB 129 at [10]).
The Authority noted that the applicant had not claimed that he or his family had received adverse attention from militia groups until April/May 2013 and found, as a matter of fact, that they had not (CB 129 to 130 at [11] to [12]).
The Authority recorded the applicant’s claims that another of his brothers was killed on 25 May 2013, while the militia were searching for H. The applicant claimed to have left Iraq because of receiving the threat letter and after the death of this other brother, which happened in the span of a month. At the protection visa interview, the applicant claimed that shortly after his departure for Australia, his father shut down the family businesses, rented out the shops and the family home, and relocated with his wife and children to another province (CB 130 at [13]).
The applicant claimed that in 2016 his father was returning to Nasiriyah to collect rent when he was killed by the same militia who had threated the family in 2013. The Authority noted that the death certificate pertaining to the applicant’s father listed his address as being in a named place near Nasiriyah, and that the death was reported by a person described as being his neighbour who is also resident in the same named place near Nasiriyah. The Authority found that this did “not support the applicant’s claim that his father and family left Nasiriyah” (CB 130 at [14]).
At [15] the Authority expressed itself as not being satisfied about the applicant’s credibility, taking into account “numerous inconsistencies”. While accepting basic aspects of the applicant’s claims including the fact that one of his brother’s and his father had died, the Authority was not satisfied that the deaths were related “in any way” to H’s former employment or had any implications for the applicant in terms of his being a target of militia groups as claimed (CB 130 at [15]).
APPLICATION TO THIS COURT
By an application to show cause filed with this Court on 22 September 2017 (originating application), the applicant seeks judicial review of the Authority’s decision. The originating application raised two grounds of review. At all times since the commencement of the proceedings the applicant has been represented by a solicitor, who recently retained Counsel.
The matter was initially docketed to Judge Dowdy. On 26 October 2017 his Honour made orders, by consent, which included that the applicant file and serve any amended application giving complete particulars of each ground of review relied upon by 8 December 2017 and listing the matter for a callover on 16 March 2018, again before his Honour.
On 12 March 2018 the callover was vacated. The matter was thereafter transferred to the Central Migration Docket where it remained until when, on 22 December 2021, it was transferred to my docket and orders were made by a Registrar listing the matter for hearing (and for the preparation thereof) on 5 April 2022. The applicant and Minister were ordered to file written submissions 14 and 7 days before the hearing, respectively. Those orders did not include an order granting the applicant further leave to amend. However, given the significant effluxion of time since the commencement of the proceedings and the significant developments in the law relating to Part 7AA of the Migration Act 1958 (Cth) (Act) in that time, in fairness to the applicant they probably ought.
On 28 February 2022 a proposed Amended Application was filed with the Court (Amended Application), together with the applicant’s written outline of submissions which were prepared by Mr Zipser of Counsel (albeit alternate Counsel appeared for the applicant at the hearing to speak to those submissions). The filing of these documents was 36 days before the hearing and, in the case of the written submissions, also 22 days in advance of the date on which they were due. The Minister filed written submissions on 28 March 2022, being eight days before the hearing and one day before the last date for the filing thereof.
These matters are relevant because the Minister opposes leave being granted on the following bases:
(a)the originating application filed 22 September 2017 should be dismissed, as the applicant no longer presses the ground of review set out therein;
(b)leave to rely upon the proposed Amended Application filed, without leave, on 28 February 2022 ought to be refused, as:
(i)the explanation given for the delay of over four years in filing the Amended Application is inadequate and unsupported by probative evidence, and
(ii)the proposed grounds are without sufficient merit to justify the grant of leave; and
(c)in any event, the proposed Amended Application ought to be dismissed with costs, as it fails to establish that the Authority's decision is affected by any error, let alone any jurisdictional error. Accordingly, the decision is a “privative clause decision” within s 474 of the Act.
From the Affidavit of the applicant’s solicitor made on 31 March 2022 (in response to the Minister’s written submissions presaging the aforementioned position), he deposes to having briefed Mr Zipser of Counsel on 23 December 2021. This was within two days of having been notified that the matter was listed for hearing. The applicant’s solicitor sets out the various steps taken by himself and Counsel to prepare the matter for hearing. The applicant’s solicitor also offers an explanation for why he did not assist the applicant in availing himself of the grant of leave to amend in 2017. I accept that explanation.
The Minister relies on the decision of BYM16 v Minister for Immigration and Border Protection [2017] FCCA 2445 at [6] to [8] where Judge Smith said the following in obiter:
[6] There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
[7] The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
[8] There is no excuse for the delay in this case. The same solicitors have acted throughout these proceedings. They were involved in the review process conducted by the IAA. They knew of the orders allowing an amendment 2½ months after the orders and 7 months before the hearing. They had all of the relevant material by early October 2016, if not far earlier. They knew of the timetable for submissions. In those circumstances, the solicitors’ conduct of this case is unforgiveable and cannot be condoned by the grant of leave to amend.
Counsel for the applicant says that BYM16 is relevantly distinguishable because in that case the proposed amendment was advanced together with the written submissions on the date they were due, giving the Minister only seven days in which to consider the proposed amendment and also prepare his own written submissions. This is a late amendment on any view of it, and his Honour’s ire in that situation was understandable.
Five years is a long time in the migration jurisdiction and it is clear at least from the chronology in BYM16 that the matter was being heard by his Honour within a year of it having been filed. That is a factor which relevantly distinguishes it from the current caseload which confronts the Court. The exigencies of this jurisdiction, the delays which confront parties and the Courts, the compounding effects on those factors which have been caused by the COVID-19 pandemic and the significant developments in the case law pertaining to the Part 7AA regime are all relevant factors which were not extant at the time that his Honour Judge Smith determined BYM16. None of those factors is unknown to the Minister, nor to those who represent him.
The reference in BYM16 at [7] to the perceived breadth of the model litigant obligations as encouraging applicants in this jurisdiction to attempt last minute amendments with impunity was apt. There will be many occasions in which a late amendment will cause prejudice to other parties. In assessing the rights of the parties the Court will need to examine the conduct of the parties, the diligence with which they have prosecuted or defended the proceedings, the explanation for why the amendment could not reasonably have been made earlier and the question of the prejudice, including whether that prejudice can be met by an adjournment (without causing other deleterious effects) and/or a costs order, or whether there is no way to meet the prejudice.
There appears to be a common misunderstanding of the scope of the Commonwealth’s obligation to act as a model litigant, in part because it is often invoked in litigation either by an opposing party or the Court as a way of saying that the Crown must do everything to assist an applicant in litigation even to its own detriment. This is simply incorrect: see Brandon v Commonwealth [2005] FCA 109 per Whitlam J at [11].
However, Judge Smith’s observations in BYM16 should not be taken to mean that the Minister can resist an amendment in any circumstances. Where there is no real prejudice to a party who is a model litigant, taking a technical position is not in keeping with the obligation. The Minister’s position in relation to the proposed amendment in this matter is therefore surprising.
Since its earliest invocation by his Honour Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, that obligation has included restraint being exercised in taking technical points. While not a pleading point, as such, it is a matter of moment that a Crown litigant would oppose leave being granted to a protection visa applicant (even if he has been represented by a solicitor) to raise grounds drafted with the benefit of the timely retention of Counsel, against a background of almost half a decade of developments in the interpretation of a statutory regime which was in its early stages as at the time of the originating application, where that delay of five years appears to have been through no fault of the applicant, and in the face of an impending hearing when the document was filed well in advance of that date and augmented by the early filing of written submissions to further ameliorate any prejudice.
The interests of the administration of justice are best served by the applicant being able to advance salient grounds, relevant to the current state of the law. On one view, had the applicant’s solicitor availed himself of the grant of leave in the applicant’s favour to amend four years ago, arguably another amendment may have been necessary in any event. Serendipitously, by waiting to amend the applicant has prevented unnecessary time and fees for both parties in not taking up that grant.
Given that the interests of justice and of the parties are best served by the Court considering a freshly amended application, and where there is little or no prejudice to the Minister, the staunch position taken by him in relation to the proposed amendment is disappointing. Further, I observe that one quarter of the written submissions of the Minister were devoted to resisting the amendment (the remainder going to address the proposed amended grounds themselves, further highlighting the lack of prejudice caused). In retaining external legal service providers the Minister is engaged in the expenditure of public funds. The aforementioned submissions do not seem to be a sensible use of those funds. This may be a relevant factor to be considered in any dispute regarding costs which follows the outcome of the matter.
In all of the circumstances of this case, I am of the view that leave should be granted to the applicant to rely on the proposed amended application and I will so order. Accordingly the grounds in the amended application which arise for consideration are:
1.The applicant claimed that on 25 May 2013 militia who were searching for his brother [H] went to the house of another brother [I] to search for [H], and killed [I] on that day. The IAA found that in paragraph 15 of its decision that it was not satisfied that [I]’s death related to [H]’s former employment. The IAA’s reasons indicate that it was not confident about this finding. In the circumstances, the IAA was required to consider the possibility that [I]’s death was linked to [H]’s former employment, and its failure to do so involved jurisdictional error: see Minister v Rajalingam (1999) 93 FCR 220
2.Part of the applicant’s claim was that, following (and as a result of) the killing of [I] in May 2013, his father and his father’s family fled Nasiriyah where the family had lived for many years to Diyala province. The IAA had a copy of the father’s death certificate in respect of the father’s death in 2016 which recorded an address in Nasiriyah as the father’s address. The IAA found at [14] that the recording on the death certificate of an address for the father in Nasiriyah “does not support the applicant’s claim that his father and family left Nasiriyah in 2013”. Thus, the IAA used information in the father’s death certificate to query and reject a claim by the applicant that the father and his family left Nasiriyah in 2013. The IAA’s assumption that the address for the father on the death certificate recorded his residential address at the time he died in 2016 was unwarranted. Where an administrative decision-maker bases its decision, or a finding on which the ultimate decision relies, on an unwarranted assumption, this involves jurisdictional error.
GROUND 1
Ground 1 relies on Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, and in particular the decision of Sackville J at [60] to [67]. The applicant says that the Authority should be understood as being “not confident” that the death of the applicant’s brother was linked to H’s employment. This is said to arise from the Authority’s expression that it was “not satisfied that the deaths of the applicant’s brother [NAME] or his father were in any way related to [H’s] former employment” (CB 131 at [18]; anonymisation added).
The applicant says that there is a difference between a decision-maker making positive adverse findings, and a decision-maker not being satisfied.
The aforementioned reasoning in Rajalingam relied in part upon the High Court’s decision in in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 73 ALJR 584 and applies where the decision-maker “is uncertain as to whether an alleged event occurred, it may be necessary to take into account the possibility”.
The Minister says that the Authority’s reasoning in this matter is not such an expression of uncertainty. In particular the Minister says that a full and contextual reading of the Authority’s reasons for decision shows it had no real doubt that the death of the applicant’s brother was related to H’s employment including (at CB 130 at [15]) its non-acceptance of:
(a)the applicant's evidence on this issue was credible;
(b)that H “was the subject of any threats or adverse attentions after ceasing this employment in 2009 and moving to Baghdad”;
(c)that H was “targeted by any militia groups or that he is perceived as being a traitor or collaborator”; and/or
(d)that the applicant or the members of his family were threatened with death for refusing to hand over H to militias including AAH.
Accordingly, the Minister says that the reasons do not disclose any “real doubt” about its findings, and as such do not give rise to the “what if I am wrong?” test needing to be applied.
Having regard to the entirety of the Authority’s findings, there was no residual doubt, let alone uncertainty in the Authority’s finding about the death of the applicant’s brother being related to H’s employment. The expression within that finding at [18] of the reasons (CB 131) that the deaths were not “in any way related” to the employment of H by coalition forces, emphasises that lack of doubt. The Authority was seeking to eliminate any residual aspect of the employment that could be linked to the deaths. While there were alternate ways of making the finding in an unequivocal way, I find that this was one such method.
As a result, there was no relevant uncertainty which remained and required the Authority to explore alternatives in the event it was wrong, because there was no lingering doubt in the relevant sense: see Rajalingam (supra) per Kenny J at [147].
Accordingly, ground 1 is not made out.
GROUND 2
This ground also relates to the findings regarding the death of the applicant’s relatives, this time his father. The applicant alleges that by reference to the father’s death certificate (a copy of which is found at Supplementary Court Book (SCB) 3), the Authority made an unwarranted assumption that because it contained an address in Nasiriyah, the father was taken to reside at that address, meaning that he had not relocated to another province as claimed by the applicant.
The applicant says there were other explanations for this address including that:
(a)the father had not updated his address with authorities which was quite likely because he was relocating from one province to the another because of a fear of persecution; or
(b)the official who completed the death certificate used an out of date form of ID which had not been renewed or updated
The applicant seeks to rely on DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 and BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292 in respect of this ground.
In DAO16 the applicant claimed that his homosexuality gave rise to a well-founded fear of persecution. In a particular line of reasoning which turned upon there being a lack of independent witnesses to the applicant’s homosexual activity the Tribunal was found to have relied, among other things, on an unwarranted assumption that if the applicant were truly homosexual he would have had sexual relationships with a larger number of men than claimed: see DAO16 at [45].
In BZD17, the applicant’s claims also pertained to his homosexuality as well as a claim to be a high profile gay activist. The Tribunal in that case said a claim of the applicant having been assaulted was undermined by there being no posts on social media about it, notwithstanding that the Tribunal had before it independent country information regarding strict social media controls in the country in question. The Full Federal Court said “[t]hat unwarranted assumption, in turn, was relied upon by the Tribunal as material in forming its view as to the credibility of the appellant” and therefore was an error of the kind identified in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 per Flick J at [22]: see BZD17 (supra) per Perram, Perry and O’Callaghan JJ at [58].
The applicant places reliance on SZVAP which in turn relied on WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at 685 which turned upon unwarranted assumptions made in the course of formulating a view as to the applicant’s credibility. This is said to be analogous to this case where [14] of the Authority’s reasons concludes with the finding about the address in Nasiriyah on the death certificate belying the claim that the family had relocated, and is followed immediately thereafter by the first sentence of [15] which says:
Taking into account the numerous inconsistences in the applicant’s evidence as discussed above, I am not satisfied as to his credibility…
The Minister says that the death certificate was provided by the applicant who sought to rely upon it in support of his claims. Accordingly, the Minister says that it was open to the Authority to treat that document as being an accurate record of its contents.
In relation to the alternate explanations proffered by the applicant (as summarised above at [45]) the Minister says these are no more than unsupported speculation.
The death certificate (at SCB 3) provides an array of information, including the place of birth, address, and place of death. It was open against those categories for the Authority to conclude, as it seems to have, that address meant “current” address. I find nothing unwarranted about that assumption. In fact, it seems the most logical and therefore warranted inference which might be drawn.
In the cases upon which the applicant primarily relies, namely DAO16 and BZD17, the reasoning of the respective decision-makers appears to be to reject a claim as true and then justify that conclusion by reference to the non-existence of some hypothetical factor or conduct which might otherwise have supported the claim. The opposite is true here. The applicant advanced the death certificate replete with that address for his father. The Authority found no more than that the inclusion of the address “did not support” a claim that his father lived somewhere else.
Even if this could be taken as an outright rejection of the claim that the father had moved to another province, then unlike DAO16 and BZD17, it was not unwarranted. However, it does not constitute such a rejection. The Authority did not say categorically that the father had not moved provinces, nor did it find as a matter of fact that the applicant’s father lived at that address in Nasiriyah. All the Authority did was find that the address stated in the death certificate “did not support” the claim of relocation.
The ground fails at a factual level. In finding as it did at the conclusion of [14] of the decision, the Authority did not proceed on an unwarranted assumption. Accordingly, the ground must fail.
By the amended application, the applicant abandoned the grounds in the originating application. Accordingly, by the grant of leave to reply upon on the amended application those grounds no longer arise for consideration.
There being no error as alleged by the amended application, or at all, the decision of the Authority is a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 August 2022
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