Eou18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCCA 3955
•20 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
EOU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3955
File number(s): PEG 470 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 20 November 2019 Catchwords: MIGRATION – Administrative Appeals Tribunal – Safe Haven Enterprise visa (SHEV) – whether incorrect country information was used in determining the applicant’s case – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 473, Cases cited: Abebe v The Commonwealth of Australia [1999] 197 CLR 510
ALI18 v The Minister for Immigration and Border Protection [2019] FCCA 2257
Appellant P119/2002 v Minister for Immigration 2002 FCAFC 230
AQN v Minister for Immigration and Border Protection [2016] FCCA 58
BZAID v The Minister for Immigration and Border Protection [2016] FCA 508
Minister for Immigration and Multicultural Affairs v ESHETU 199 197 CLR 611
NAHI v Minister for Immigration, and, then, Indigenous Affairs [2004] FCAFC 10
Perera v The Minister for Immigration and Multicultural Affairs [1999] FCA 507
Number of paragraphs: 30 Date of last submission/s: 20 November 2019 Date of hearing: 20 November 2019 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms S.J Oliver appeared on behalf of the First Respondent. ORDERS
PEG 470 of 2018 BETWEEN: EOU18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
20 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the amount of $6000.00.
REASONS FOR JUDGMENT
(As revised from transcript)JUDGE HUMPHREYS
INTRODUCTION
The applicant is a Shia Muslim from Iraq. The applicant arrived in Australia on the 21 January 2013. On 3 May 2017, the applicant lodged an application for a Safe Haven Enterprise visa (“SHEV”). On 16 May 2018, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused the application. The applicant was referred for merits review to the Immigration Assessment Authority (“the Authority”). In a decision dated 21 August 2018, the Authority affirmed the delegate’s decision to refuse the applicant’s visa. The applicant now seeks judicial review in this Court. The question for determination by the Court is whether or not there has been jurisdictional error in the Authority’s decision.
At the commencement of the hearing, it was explained to the applicant that jurisdictional error is not the same as merits review. The Court cannot grant a visa, simply, because it thinks that this is a deserving case. All the Court can do is, if it finds that there has been legal error in the Authority’s decision, is to quash the decision, and send the matter back to the Authority to
re-determine it, according to law. This, of necessity, constricts the Court’s capacity to deal with matters. The Court cannot deal with the matter on the merits, it can only deal with the matter, on the strict legal issues that appear before it.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
The Authority’s decision is, some, 19 pages in length. The decision notes, at paragraph 3, that new information was provided in correspondence to the Authority, dated 25 July 2018. The new claims are set out in paragraph 4 of the Authority’s decision.
One of the claims being that, militia members in Najaf suspected the applicant of being a spy and were suspicious that he was awarded government contracts to undertake building work on government buildings without having paid a commission, or bribes, to the militias.
With the rise of the Islamic State (“IS”) in Iraq, local militias were integrated into the Iraqi army and police. The applicant fears, that if he is forced to return to Iraq, he will be targeted by militias on the basis that they suspect he is a spy. At paragraph 5 of its decision, the Authority noted that at no time at his visa interview did the applicant say that he was threatened because he did not pay commissions to the militias. Nor did the applicant say, that he was suspected of being a spy as he was awarded building contract work for government departments. At paragraph 7 of its decision, the Authority noted that the applicant had not provided any independent country information that contractors were required to pay commissions, or bribes, to the various militias. At paragraph 8 of its decision, the Authority rejected information in a report from Ireland of 2009. Whilst the applicant was legally represented, the submission did not comply with the Authority’s practice direction, in regards to the proper referencing of new material. The Authority rejected the new information, pursuant to s 473FB(5) of the Migration Act 1958 (Cth) (“the Act”).
The Authority went on to say that, even if it did not reject that information on the basis of it not being in compliance with the practice direction, the Authority was not satisfied that the information complied with the provisions of s 473DD (b)(1) or (2) of the Act. Paragraphs 9 to 10 of the Authority’s decision deal with claims that the applicant would drink alcohol with the head of the Alaweh Police Station. The Authority found that no plausible explanation was provided as to why this claim was not made to the delegate. The information was rejected, as the Authority considered that the provisions of s 473DD(b) (1) and (2) of the Act, were not met. Paragraphs 11 to 15 of the Authority’s decision deal with documents provided. A sample death certificate was rejected, pursuant to s 473DD(a) of the Act. However, the Authority accepted the death of the applicant’s brother in a car explosion. Paragraph 16 of the Authority’s decision sets out the applicant’s claims.
They are, in summary: the applicant worked with his brother K – and the Court uses that as a pseudonym – in construction, including maintenance on police stations. In December 2010, the applicant, and his brother, found a threat letter from a militia under their door. In February 2011, the applicant and his brother were told that there would be consequences if they did not stop working for the police. On 26 February 2011 the applicant’s car was bombed while his brother was driving it, and his brother was killed. The applicant states that he then left Najaf, went to another part of Iraq, and then came to Australia by boat in November 2012. In paragraph 17 of its decision, the Authority accepts that the applicant is a Shia Muslim from Najaf in Southern Iraq. The applicant’s parents, brothers, and sisters – in a family which appears to total some 12 siblings – are all still living in Najaf. At paragraph 18 of its decision, the Authority accepts that the applicant had a building material shop and did some renovation work on police stations.
However, the Authority does not accept that the applicant was threatened by militias, or that his brother was killed by the militias as claimed. At paragraph 19 of the Authority’s decision, the Authority concludes that the applicant gave no meaningful explanation as to why a militia group considered him a spy due to him conducting renovation and maintenance work at police stations. The Authority concluded that the applicant provided no credible explanation as to why he would be considered a spy by militias some two years after he had done this type of work. At paragraph 20 of its decision, the Authority found that the applicant did not take the threats seriously and was not consistent with his belief that the militias, “have no mercy”. At paragraph 21 of its decision, the Authority notes that the applicant does not claim that his family were harassed or threatened to ascertain his whereabouts after he left Najaf, following his brother’s death, and went to Karbala.
At paragraph 22 of its decision, the Authority noted inconsistencies of the applicant in the accounts given at his entry interview and SHEV interviews. These inconsistencies added to the Authority’s concerns regarding his claim of threats from the militias. In paragraph 24 of its decision, the Authority places no weight on certain documents provided by the applicant post-entry interview. Paragraph 28 and 29 of the Authority’s decision, deal with residual risks associated with the applicant being a Shia Muslim in Iraq upon his return. The Authority was of the view that the overall evidence is that the chance of violence to Shia Muslims in Najaf is remote. Inter Shia violence in Najaf is also low. Paragraphs 30 and 31 of the Authority’s decision, deal with the chance of harm from the militias if the applicant was to return to Najaf.
The Authority found that, given the applicant’s family have not been targeted since he left, even if the applicant were to reopen his building business upon return, he does not face a real chance of harm. Any chance of harm is remote. Paragraphs 32 to 34 of the Authority’s decision, deal with risk associated with being a returnee. Given that the applicant left Iraq on his own passport, the Authority was not satisfied the applicant faces a risk on return, as he was not an illegal departee. Accordingly, the Authority found that the applicant was not a person to whom the refugee criteria, under s 36(2)(A) of the Act, apply, or that he meets the complimentary protection requirements under s 36(2)(aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
Two grounds of appeal were set out in the Initiating Application filed with the Court. They are as follows verbatim:
Ground One
I believe incorrect country information was used in the review of my case.
Ground Two
I believe there has been judicial error in the review of my case.
APPLICANT BEFORE THE COURT
The applicant appeared before the Court unrepresented, and was assisted by an Interpreter. During the course of the hearing, the applicant asked to speak to the Court directly, in English, which he did. No written submissions were filed with the Court, to support the appeal grounds.
The applicant told the Court that he had a number of complaints in relation to the standard of interpreting, because the Interpreter was Lebanese, and spoke a different dialect. The applicant pointed out, in particular, that the matters raised at page 132 of the Case Book, which was the delegate’s decision, which related to whether or not the applicant took the threats seriously, was a wrong understanding of the information he gave. The applicant says that he, actually, took the threats seriously and that he was careful as a result. The applicant says that there are other mistakes within the delegate’s decision and, also, within the information that he provided in his initial interview which he attributes to the standard of interpretation.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent provided written submissions which were provided to the applicant prior to the hearing. The applicant had the opportunity of perusing and reading the first respondent’s submissions in detail.
Counsel for the first respondent noted that, the threats contained in the applicant’s legal representatives submissions addressing the Departmental Refusal reasons, which are set out at page 168 of the Court Book onwards, appear to contain the same information in regards to the way that the applicant considered the threats. For example, at paragraph 14 the submissions addressing the Departmental Refusal reasons, the following appears:
The applicant was scared but did not give it a serious consideration, as he initially thought it was from a competing business who was trying to intimidate him.
Given the lack of detail in the applicant’s grounds of appeal, the first respondent said that it was very difficult to respond, but it had done so, as best it could in the circumstances.
In relation to ground one, Counsel for the first respondent submitted that some information was rejected by the Authority as it was several years old and could have been provided to the delegate at the time of the applicant’s interview and, thus, the provisions of s 473DD(b)(1) of the Act were not satisfied. Further, there were no exceptional circumstances.
The way the legislation is constructed is that, the Authority is required to conduct a fast-track review. This means that the Authority will not, generally, accept new information and it will not interview the applicant. There are considerable constraints upon any new information which might be provided. They include that, information should not be accepted unless there are exception circumstances, or that the information that was available could have been provided to the delegate at the initial interview stage, or, that it was credible information, which came to light after the interview which might have affected the outcome. Counsel for the first respondent noted that, some information, notwithstanding the fact that the applicant was legally represented, although cited in the submission, an extract or full copy of the report upon which the information was drawn was not provided. This did not comply with s 473FB(5) of the Act.
This requires that information be fully cited and, under the practice direction, the Authority is entitled to reject it, if it does not comply with the requirements of the practice direction. This particular provision, and the capacity to reject information, was confirmed by this Court in ALI18 v The Minister for Immigration and Border Protection [2019] FCCA 2257 at [66]. Further, the accuracy of country information and the weight that is to be given to that country information is a matter for the Authority, and not a matter for the Court to review: see; NAHI v Minister for Immigration, and, then, Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]. As to ground two, the first respondent submitted that the absence of particulars makes it impossible to meaningfully respond.
This is, of itself, sufficient for a Court to conclude that the ground cannot be made out:
see; AQN v Minister for Immigration and Border Protection [2016] FCCA 58 at [31] to [35]. In any event, there is nothing illogical, irrational or unreasonable in the Authority’s decision. Relevant procedural fairness was afforded. No relevant material was ignored. Nor was irrelevant material relied upon. The conclusion that the Authority came to, it was submitted, was opened to it based on the information that it had before it. That information also included relevant credit assessments it made of the applicant, based on inconsistences within the accounts he had given.
CONSIDERATION
Regrettably, the grounds, as articulated in the application filed with the Court are so broad, and bereft of particulars, to, almost, make them meaningless. If anything, they appear to be nothing more than a disagreement in a broad sense with the findings of the Authority, and invite this Court to undertake impermissible merits review: see; Abebe v The Commonwealth of Australia [1999] 197 CLR 510 at [53] to [54].
Indeed, the matters that the applicant raised before the Court in his oral submissions in English, which the Court took into account, regrettably, only relate to matters of merits review. They did not relate to matters of law. As was indicated, this Court can only deal with this matter on the basis of whether or not there has been jurisdictional error. Notwithstanding the fact that there was a lack of particulars, the Court has done its best to consider the application, in terms of the matters that were put to it.
GROUND ONE
In relation to ground one, it was well settled that country information that the Authority has regard to and the weight it gives such information is entirely a matter for the Authority:
see; NAHI. The Court is satisfied that the Authority reasonably exercised its discretion to reject information that did not comply with the relevant practice directions. This was a matter within the Authority’s discretion and the rejection of the Ireland report, under s 473FB(5) of the Act, and earlier country information under s 473DD(b)(i) of the Act, as it could have been provided to the delegate, is entirely unremarkable. The Authority was entitled, further, to find that there were no exceptional circumstances to admit the information.
It is, with some regret, that the Court notes, that the legal practitioner who prepared the applicants submissions addressing the Departmental Refusal reasons was, either, unaware of, or if they were aware of the relevant practice direction, did not comply with it. It is reasonable for the Authority to expect that legal practitioners will comply with relevant practice directions. The Court agrees with the first respondent’s submissions that there was no requirement to put any updated country information that was used to the applicant as this was not personal information. The Authority is entitled to seek out updated country information, however, it is not required to put that to the applicant, as it is not personal information: see; s 473DE(3)(a) of the Act.
GROUND TWO
Again, in the absence of particulars, this ground invites merits review. The Court is satisfied there was nothing illogical, unreasonable, or irrational in the Authority’s reasons. It was for the applicant to prove that he was a refugee: see; Minister for Immigration and Multicultural Affairs v ESHETU 199 197 CLR 611 at [95]. Further, the test for legal unreasonableness, which is what is necessary for this Court to find jurisdictional error, is necessarily stringent. It is fact dependent, and a very high bar. Disagreement with the outcome does not equate to legal unreasonableness. There was no evidence that the Authority used impermissible or irrelevant material in its consideration. The Court is satisfied that all relevant procedural steps were followed. The procedures, under Part 7AA of the Act, were complied with, and the applicant had an opportunity to provide new information for the Authority to consider.
The Court is satisfied that the reasoning process followed by the Authority is unremarkable and does not show jurisdictional error. The one matter that the applicant did raise for the Court’s consideration was the standard of interpretation. The Courts have considered matters of interpretation on a number of occasions. Firstly, there must be evidence before the Court that the standard of interpretation was so inadequate that the applicant was prevented from giving evidence, or that the errors made in interpretation were material to the conclusion and adverse to the applicant: see; Appellant P119/2002 v Minister for Immigration 2002 FCAFC 230 [16] and [17]. In SZOYU v The Minister for Immigration and Citizenship [2012] FCA 936, Jacobson J summarised the law on the issue as follows, particularly at [29] to [32]. In that decision, Jacobson J said:
[32] Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s 425 so as to give rise to jurisdictional error. The onus is on the applicant to demonstrate that the departure related to a matter of significance in his, or her, claims and that there was a sufficient connection between this and the inadequate translation, and the Tribunal’s decision. Whether any inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing, in accordance with Section 425, involves a qualitive assessment of the conduct of the hearing before the Tribunal as a whole: : SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] (Jagot J).
In BZAID v The Minister for Immigration and Border Protection [2016] FCA 508 at [50] to [54], Edelman J summarised the relevant legal principles as to whether defective interpretation will cause a denial of procedural fairness. Edelman J said, approving of a decision of Kenny J in Perera v The Minister for Immigration and Multicultural Affairs [1999] FCA 507:
Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.
Whilst the applicant in this case has raised issues in relation to the standard of interpreting, the Court needs to conduct an evaluative exercise. The Court needs to look at to whether or not what has been said is, in fact, entirely correct or has, in fact, conveyed substance. The Court needs to be satisfied that there are frequent, or continuous, errors in translation such that the applicant has been denied procedural fairness. Where there are intermittent errors, the errors must be assessed in the context of the overall fairness. Individually, errors may not be significant. But, when viewed in the aggregate, they might demonstrate a pattern that indicates a denial of procedural fairness.
The applicant in this case has, merely, made a number of complaints about various words. On the evidence before the Court and, given the lack of material, including a check interpretation, the Court cannot be satisfied that the applicant has been denied procedural fairness to the extent that there is jurisdictional error. Whilst the Court appreciates that there may be issues that revolve around the dialect, that, of itself, is not sufficient to demonstrate jurisdictional error. After careful consideration, the Court cannot find that there has been any jurisdictional error in the decision of the Tribunal.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 1 June 2021
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