Eil17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 347
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 347
File number(s): MLG 2086 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 12 May 2022 Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority failed to exercise its power under s 473DC of the Act by failing to obtain translations of Applicant’s employment contract – whether the Authority’s reliance on omissions in the arrival interview was unreasonable – whether the Authority failed to consider new information – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 473DC, 473DD. Cases cited: BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
ERO17 v Minister for Immigration and Border Protection (2019) 165 ALD 78
Minister for Home Affairs v AYJ17 [2019] FCA 591
Minister for Immigration v CRY16 [2017] FCAFC 210
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436
Plaintiff M174 of 2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481; (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 21 March 2022 Place: Melbourne Counsel for the Applicants: Dr McBeth Solicitor for the Applicants: Victoria Legal Aid Solicitor for the Respondents: Mr Sypott Solicitor for the Respondents: Australian Government Solicitor
Table of Corrections 13 May 2022 The citation has been amended to reflect the correct name of the First Respondent and “& Ors” has been removed from the title. ORDERS
MLG 2086 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIL17
First Applicant
EIM17
Second Applicant
EIN17 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
12 MAY 2022
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 13 May 2022.
THE COURT ORDERS THAT:
1.The Application filed on 28 September 2017 and amended on 25 February 2022 be dismissed.
2.The Applicant’s pay the First Respondent's costs of the proceeding fixed in the sum of $7,853.
3.The title of the proceeding be amended so that the name of the First Respondent is “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
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 BLAKE
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority ('Authority') on 30 August 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicants a protection visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicants are a family unit of four (husband, wife and two children) and are Iranian nationals. They fled Iran in October 2012. The Applicants arrived in Australia on 30 November 2012 as unauthorised maritime arrivals.
On 12 January 2013, the First Applicant and the Second Applicant participated separately in irregular maritime arrival entry interviews.
The Applicants applied for the visas on 29 April 2016.
On 14 November 2016, the First Applicant and the Second Applicant attended a Protection visa interview.
Following the protection visa interview, the Applicant's representatives provided submissions and additional documents to the Department. Included within the documents provided were documents (not written in English) said to be the employment contract(s) between the First Applicant and the local council that employed him as a driver. The Applicants submitted that they could not provide translated versions of those documents because they did not have the funds to do so.
On 27 February 2017, a delegate of the Minister ('delegate') refused to grant the Applicants the visas.
On 2 March 2017, the delegate's decision to refuse to grant the Applicants the visas was referred to the Authority for review of the delegate's decision. Pre-hearing submissions were submitted by the Applicants' legal representative on 26 March 2017. Those submissions referred to three pieces of Country Information.
On 30 August 2017, the Authority affirmed the decision not to grant the Applicants the visas.
The Applicants filed an Application for review in this Court and affidavit in support of the application on 28 September 2017.
Subsequently and in the lead up to the hearing, the Applicants filed an Amended Application and outline of submissions on 2 March 2022, and an affidavit of their solicitor on 28 February 2022. The Minister filed an outline of submissions and a Court book. Each party also prepared a bundle of authorities.
THE APPLICANTS' CLAIMS
The Applicants' claims were summarised by the Authority in paragraph [7] of its reasons. No issue was taken with this summary of claims which appears to be drawn from the statement of claims that accompanied each visa application (see in particular Court Book page 174 and Court Book page 181). Relevantly for present purposes, three claims were advanced. First, that the Applicants feared harm because as a crane driver employed by the local council in Ilam, the First Applicant was forced to participate in an execution of another Kurd from the Arkowazi tribe and as a result of his participation, was subjected to threats from members of that tribe. Second, that the Applicants feared persecution within Iran as Faili Kurds. Third, that they feared harm because they had sought asylum in a Western country.
THE APPLICATION
Ground 1
The first ground of review in the Application is:
The failure of the IAA to seek a translation of the first applicant's employment contracts was an unreasonable failure to exercise its power under s 473DC of the Act, or alternatively, an unreasonable conduct of the review under s 473CC.
Particulars
(a)The delegate had accepted the fact that the first applicant had been employed by the local council as a truck and crane driver. That fact was not in dispute following the delegate's decision.
(b)The IAA had before it employment contracts written in Farsi and was aware that the applicants had not provided English translations due to a lack of funds.
(c)In circumstances where the IAA proposed to depart from the delegate's factual finding regarding the first applicant's employment, it was unreasonable for the IAA not to request English translations of the contracts before making a decision.
There is no dispute about the principles relevant to this ground of review. The task of the Authority is to consider the application for a protection visa afresh and determine the matter for itself: Plaintiff M174 of 2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481. The Authority is not bound by the findings of the delegate: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59]. The Authority is not required to notify an applicant that it is considering taking a different, adverse view of the material considered by the delegate: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70]-[72]. The Authority may also reach its own conclusions about documents and other material before it, and is entitled to reach its own conclusion on the same information and arrive at a different result: BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49 at [69]-[72]. It is accepted that the discretion in section 473DC of the Act is one that is to be exercised reasonably.
In assessing this ground of review, it is important to understand the context. The protection claim advanced by the Applicants was that the First Applicant had, inter-alia, been involved in an execution which had resulted in him being threatened by the Arkowazi tribe. The First Applicant claimed that he became involved in the execution because he worked as a crane driver for the local council, and because he was threatened by the authorities that it was his job to operate the crane for the public execution. The critical issue for the Authority to engage with was the claim that the Applicant had been involved in the execution and had been threatened by the Arkowazi tribe.
The delegate found the First Applicant had been employed by the local council (Court Book at page 270). The Authority, however, had doubts about the First Applicant's claim that he worked with the council (reasons of the Authority at [14]-[16]) and ultimately concluded that '[it was] not convinced the applicant did have a three year casual contracting role with the council as claimed or that it was his sole employer or contract during that period'. The following matters, need to be borne in mind in respect of the above matters.
First, while the delegate and the Authority arrived at different views in relation to the First Applicant's employment with the local council, neither the Authority nor the delegate gave any weight to the untranslated employment contracts (see Court Book page 270 in respect of the delegate's decision, and paragraph [14] of the Reasons of the Authority).
Secondly and significantly, insofar as the claim it was required to determine, neither the delegate nor the Authority accepted that the First Applicant was pursued and threatened by the Arkowazi tribe for operating a crane used for a public hanging in Ilam (Court Book 268 in respect of the delegate's decision, and paragraph [33] of the reasons of the Authority).
The Applicants contended that whether the First Applicant was employed by the Council was a material factor. It was submitted that if the Authority had been convinced of his employment status, it may have been convinced of his claim. That submission, in my view, ought to be rejected for the following reasons.
First, the principal claim advanced by the Applicants was the involvement of the First Applicant in the execution, and the alleged threats that he was subjected to by the Arkowazi tribe. The First Applicants employment by the Council was simply one of a number of matters relevant to assessing this claim of harm.
Second, in assessing the claim by the Applicants that they had been subjected to threats by the Arkowazi tribe because of the involvement of the First Applicant in the execution, the Authority had regard to a number of matters. Those matters included the following:
(a)the failure of the Applicants to mention the matter during their arrival interview: reasons of the Authority at [33];
(b)various inconsistencies in the evidence given by the First Applicant as to the timing of the purported execution, and what took place thereafter, as well as inconsistencies between the accounts given by the First Applicant and the Second Applicant: reasons of the Authority at [34];
(c)that the First Applicant would have had a choice as to whether or not he took part in the execution: reasons of the Authority at [35];
(d)the 'unconvincing' response of the First Applicant as to why he did not wear a balaclava during the purported execution: reasons of the Authority at [36].
The Applicant submitted that the situation in the present matter was analogous to that which occurred in Minister for Immigration v CRY16 [2017] FCAFC 210 ('CRY16'). In my view, the circumstances of this matter are different to that which confronted the Court in CRY16. In CRY16, the Authority had proceeded to affirm the decision of the delegate on an issue that was not before the delegate, being whether the applicant in that case could relocate within his country of origin. That issue was a new and determinative issue. The facts before me are different. The relevant principal and determinative issue in the present matter was the issue of the First Applicant's involvement in the execution. This, unlike the situation in CRY16, was a live issue both before the delegate and before the Authority and considered by both. The claim was ultimately rejected by the Authority.
The Applicants also contended that the Authority acted unreasonably for two further reasons. First, it would not have been an onerous step to alert the Applicants to the fact that the Authority was considering making a different factual finding in relation to the status of the Applicant's employment. Second, the content of the Authority’s Practice Direction meant that the Applicant’s were never invited to address the issue about which the Authority ultimately took a different view. In my view, no unreasonableness arises as a result of the submissions. The Applicants were represented before the Authority and the principles governing the way in which the Authority conducts its reviews (which I have set out above) are clear. Further, while the Authority might have taken a different view as to the employment status of the First Applicant, the position in relation to the weight given to the employment documentation was clear to the Applicant's following the delegates decision, that is, those documents were given no weight. The Applicants were on notice that the documents were given no weight.
For all of the above reasons, there has not been an unreasonable failure to exercise power under section 473DC of the Act, nor has the Authority unreasonably conducted the review. I therefore dismiss Ground 1 of the Grounds of Review.
Ground 2
The second ground of review in the Application is:
The IAA misconceived the nature of an arrival interview and its reliance on omissions from the arrival interview was unreasonable or constituted a constructive failure to review.
Particulars
(a)The IAA relied on the failure of the first and second applicants to mention the first applicant's involvement in an execution in their arrival interviews as a basis for finding that claim to be fabricated.
(b)The IAA failed to have regard to the fact that both applicants appropriately answered the specific question they were asked.
(c)The IAA further misunderstood the proper role of an arrival interview in the context of the overall protection visa process.
The principles in relation to considering a ground of review such as the present have been considered in cases such as MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [55]-[57]; ERO17 v Minister for Immigration and Border Protection (2019) 165 ALD 78 at [21]-[25] and Minister for Home Affairs v AYJ17 [2019] FCA 591 (‘AYJ17’). In advancing this ground of review, the Applicant accepts that information obtained during the arrival interview can be relied on by the Authority in reaching a conclusion, however in the circumstances of this case, it is contended that the Authority fell into the type of error identified by Moshinsky J in AYJ17.
The Applicants submitted that in reaching the conclusion that the Applicants had 'fabricated this claim' (at [36]) (being the claim that the First Applicant had participated in an execution and been subjected to threats by the Arkowazi tribe), the Authority had relied principally on the failure of the Applicants to mention the claim in the arrival interview. The error was said to be compounded or laid bare when regard was had to the transcripts of the arrival interviews. It was submitted by the Applicants that they had answered questions put to them in the terms requested by the interviewer. It was also submitted that nothwithstanding what was said (or not said) during the arrival interview, the Applicants had maintained the claim to the First Applicant's involvement in the execution at all other stages of their application, including in the SHEV application and the accompanying statements, the protection interview with the delegate, the post interview submissions and the submissions to the Authority.
The relevant parts of the interview with the First Applicant are as follows:
Q190.Very briefly could you tell me what the main reason, tell me one reason why you left Iran for to make this journey?
A.Couldn't find a proper job, we were Kurdish minority in that area. No matter how long we had been living in that area we were still considered Arabs, so that - being minority made life really hard, so we started - we decided to come over so our children wouldn't suffer from the same issues.
Q191.Was there any one incident that made you leave or was it just a general (indistinct)?
A.Not a single incident but a general (indistinct) the fact that we were under pressure. I wasn't a lazy person, I was always working hard but that was never enough to cover all the costs and I knew my children would have a good future here, so we had to do the journey.
Later, the First Applicant was also asked what might happen if he returned to Iran. The relevant extract is set out below:
Q254. What do you think might happen to you if you return to Iran?
A. I under no circumstances wish to go back to Iran.
Q255.Yeah. I'm just talking hypothetically, what if you did go back? What would happen to you?
A I would have no life back there. We've lost whatever we had.
Similar questions were asked of the Second Applicant during the arrival interview. The relevant part of the interview with the Second Applicant is as follows:
Q131.Okay, very briefly tell me what the main reason was that you and your children left Iran (indistinct).
A(Indistinct) was difficult living in Iran (indistinct) government wouldn't care about people that's minority - like Kurdish people and during the post-war era we didn't grow as much as other cities or other areas and (indistinct) area there is only (indistinct) even more restrict. I remember I was or at that year 4 or year 5 I had to (indistinct) and it last for 3 days and we went. We didn't want our children to grow up in that - such environment.
Then later, the following exchange occurred:
Q168. What did you think might happen to you?
A. You don't have a life and you have nothing, (indistinct).
The authorities make clear that there is not a prohibition on relying on the omission of matters at entry interview. Rather, decision-makers are to take a cautious approach to fact-finding when relying on an omission and entry interview.
The first matter to observe in the present circumstances is that the Authority was aware of the limitations of the arrival interview process. The Authority made this clear in dealing with a submission by the Applicant's representative as to why the information was not revealed to the authorities when the Applicants first arrived in Australia. At paragraph [28] of its reasons, the Authority stated:
28.The applicant husband’s representative stated in a post interview submission of 29 November 2016 that the applicants’ behaviour in not revealing the information to the authorities on first arriving in Australia was ‘consistent with persons who have been subject to torture and trauma in the past.’ There was also a considerable level of shame and guilt because of his participation in the event. She also referred to the Department’s Procedures Advice Manual in relation to Asylum Claims and assessing credibility and that ‘entry interviews are not for the purpose of obtaining details of asylum claims and investigating those claims’. Whilst I acknowledge the purpose of the arrival interview is more limited, I consider a request to provide the reason for departing one’s country does not equate to ‘detail’ or an ‘investigation’.
(emphasis added)
The second matter to observe is that the present matter differs from what occurred in AYJ17. The finding of Moshinsky J that the Authority's reliance on the arrival interview was illogical or irrational occurred in circumstances where a delegate had not expressly referred to the failure by the applicants in that case to mention the claim in the arrival interview. That is not what occurred here. In the present matter, the delegate had noted and considered the failure by the Applicants to mention the claim during the arrival interview and taken it into account. Moreover, in the present matter, there were two applicants, both of whom failed to mention the claim when interviewed separately. That was not the situation that Moshinsky J faced where His Honour was dealing with a sole applicant. Finally, in the present matter, not only were both applicants asked why they had departed Iran, but they were also asked whether there was anything to prevent their return to Iran. Each separately failed to mention the First Applicant's involvement in the execution.
Third, I am unable to accept the submission that the Authority did not give weight to or consider the Applicant’s responded in the way the question in the arrival interview asked them to, or that the Authority relied principally on the failure of the Applicants to mention the claim in the arrival interview in order to arrive at the conclusion that the Applicants had fabricated the claim. A cursory review of the reasons of the Authority discloses that a number of matters were considered by the Authority in arriving at its conclusion. Matters considered by the Authority included:
(a)at paragraph [34], the Authority reviewed the evidence given by the Applicants and noted that 'it is also unclear when the actual execution purportedly took place'.
(b)at paragraph [34], the Authority noted inconsistencies in the evidence given by the Applicants. This included inconsistencies in the various versions given by the First Applicant.
(c)at [35] that the Applicant 'would have had a choice not to take part' in the execution notwithstanding his knowledge that of the 'Arkowazi tribe's reputation and that they might seek revenge'.
(d)the finding by the Tribunal that the explanation given by the Applicant as to why he did not wear a balaclava, despite being given advance notice of his participation in the execution, was 'unconvincing'.
When all of the above matters are considered, the Authority did not misconceive the nature of the arrival interview. Its treatment of the arrival interview was not unreasonable nor did it constitute a constructive failure to review. The facts of this matter are different from those in AYJ17. The second ground of review must therefore be dismissed.
Ground 3
The third ground of review in the Application is:
The IAA failed to consider whether there were circumstances to justify considering the new information regarding the applicant's explanation for not wearing a hood or balaclava, and the new information that a Google search showed many cases of public executions where some people involved did not wear balaclavas, or alternatively, if either matter was not new information, the IAA failed to give proper consideration to that submission.
The term 'new information' is defined within section 473DC of the Act. It is a definition that has attracted comment by Courts, including the High Court: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24] (Gageler, Keane and Nettle JJ).
In his submission to the Authority, the Applicant raised two issues in relation to research produced by the delegate that individuals who participated in public executions often wore balaclavas. In summary, the Applicants submitted to the Authority (at Court Book page 309) that 'it was his first time that he participated in a public execution and that was the reason he did not consider wearing a balaclava and was not told to do so'. He also claimed in his submission that 'a Google search shows many cases of public executions where some people involved in them did not wear a balaclava'.
The Applicants submit that the Authority failed to assess the information above under the criteria set out in section 473DD of the Act. It is submitted that such failure constitutes a failure by the Authority to complete the statutory task required of it.
In my view, the Authority was not required to assess the purported new information by reference to the criteria set out in section 473DD of the Act. The 'Google search' or perhaps more accurately the Google search results were not annexed to the submission. The proper characterisation of the information from the Google search is that it was a submission. It therefore was not new information which the Authority was required to assess by reference to the criteria set out in section 473DD. The Applicant's explanation for not wearing a balaclava was, likewise, not new information that the Authority was required to assess by reference to the criteria set out in section 473DD of the Act. That is because the Applicant had provided the same explanation during his protection visa interview, see Court Book page 269.
Alternatively under this ground of review, the Applicants submit that the Authority failed to consider either the submission in relation to the 'Google search' results, and the explanation for not wearing a balaclava. The failure to consider the Applicants submissions is said to be material and to therefore constitute jurisdictional error.
The relevant issue for the Authority to consider in relation to this matter was the Applicant's explanation for not wearing a balaclava. This issue was the subject of consideration by the Authority. At [22] of its reasons, the Authority stated:
22.The applicant husband said they knew he was the driver because they saw him. At this stage the delegate informed the applicant husband that she had done some research and the pictures she had seen of this practice occurring in Iran they all have black balaclavas on to protect the identity of those involved. The applicant husband said it was a mistake he probably didn’t even think about it that he should have done it. All the officers, the people in charge were covered like that. In their country it is very easy to find out who was the driver of the crane, it is a small city and everyone knew each other.
Then, at paragraph [36] of its reasons, the Authority stated:
36.Whilst the delegate’s research indicates balaclavas are often worn by those participating in public executions, it does not state they are definitively worn by all participants. However, given the applicant husband was purportedly given advanced notice of his participation I find his response that everyone else was wearing a hood except him and it was a mistake he probably didn’t even think about it but he should have done it, unconvincing. The applicant sounded somewhat surprised by the delegate’s question. As noted the applicant claimed to have discussed it over with his wife. He did not wanted to be involved in the execution. Seeing everyone else dressed as so I would expect him too to at least have requested anonymity. His response I consider is further evidence he has fabricated this claim.
It can be seen from the extracts above that the substantive issue raised by the Applicants had been dealt with. The Authority is not required to refer specifically to every submission made to it. The inference to be drawn from the passages above is that the information raised by the Applicants was considered by the Authority but found to be irrelevant.
There is one final point to mention. The Applicant's own evidence was that everyone at the execution was wearing a balaclava. That seems to me to render as somewhat irrelevant the Google search results he claims were not considered by the Authority.
In my view, this ground of review is not made out. There was not a failure by the Authority to consider the purported new information in accordance with the criteria set out in section 473DD of the Act. The Authority also did not fail to give proper consideration to the Applicants' submissions. Accordingly, this ground of review must be dismissed.
CONCLUSION
The Applicant has been wholly unsuccessful. The Minister seeks costs. I will award costs to the Minister in the amount of $7,853.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 12 May 2022
SCHEDULE OF PARTIES
MLG 2086 of 2017 Applicants
Fourth Applicant:
EIO17
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