EPE18 v Minister for Immigration

[2020] FCCA 3081

FEDERAL CIRCUIT COURT OF AUSTRALIA

EPE18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3081

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise subclass 790 visa – Applicant raised further claims during the hearing – whether the Authority did not consider the Applicant’s claims or integers of a claim – whether the Authority asked itself the wrong question or addressed the wrong issue – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958, ss.5H, 5J, 36(2A), 36(2)(aa), 437CB, 473DB, 473DC, 473FB

Cases cited:

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: EPE18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File number: MLG 2683 of 2018

Judgment of: Judge Blake

Hearing date: 13 October 2020

Date of last submission: 13 October 2020

Delivered at: Melbourne

Delivered on: 13 November 2020

REPRESENTATION

Advocate for the Applicant: In person

Solicitors for the Applicant: None

Counsel for the Respondents: Mr Hibbard

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The Application filed on 7 September 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2683 of 2018

EPE18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 13 August 2018.  In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise subclass 790 visa (‘visa’).

2. For the reasons that follow, I have decided to dismiss the application for review.

Background

1. The Applicant is an Iranian national. He arrived in Australia on 15 December 2012 by boat.

2. On 3 January 2017, the Applicant applied for the visa. The Applicant’s claims are set out in a statement he signed on 8 July 2016 (Court Book 61). In summary, the Applicant claimed to fear harm from the Basij and Sepah on the basis that he was in a relationship with a woman (‘WM’) who was separated from a Basiji man. He also claimed to fear harm on the basis of being a failed asylum seeker returning from a Western country.

3. On 10 January 2018, the Applicant was interviewed by a delegate of the Minister. The Applicant’s representative subsequently provided post-interview submissions (Court Book 122 – 134).

4. On 9 March 2018, a delegate of the Minister refused to grant the Applicant the visa. On 14 March 2018, the delegate’s decision was referred to the Authority for review.

5. The Applicant’s legal representatives provided submissions to the Authority on 11 April 2018 (Court Book 182 – 186). 

6. On 13 August 2018, the Authority affirmed the decision of the delegate not to grant the Applicant the visa.

7. On 7 September 2018, the Applicant applied to this Court for judicial review of the Authority’s decision (‘Application’). The Applicant also filed an affidavit in support of the Application which annexed the Authority’s decision.

8. On 21 April 2020, orders were made concerning the future conduct of this proceeding. The Minister filed and served written submissions and a Court Book.  The Applicant did not file any further material.

The Application for Review

1. The Application contains one Ground of Review, which is as follows:

   ‘The Second Respondent committed jurisdictional error by failing to consider the Applicant's claims or their component integers and/or by asking itself the wrong question or addressing itself to a wrong issue’

The Applicant’s submissions during the hearing

1. During the hearing, the Applicant made the following submissions:

   a)the Authority did not interview him in person and he therefore was denied the opportunity to defend himself, or give an explanation;

   b)the decision of the Authority is a ‘copy/paste’ of the delegate’s decision;

   c)the Authority reached the wrong conclusions in respect of the Applicant’s claims.  The Applicant submitted that his account of what occurred with WM was true, and that he had tried to be accurate and honest at all times;

   d)he did not believe in the Islamic faith and if he was deported, then on top of any penalty he may face for adultery, he would face additional harm as a returned asylum seeker from a Western country and a non-believer in Islam.

2. It is convenient to deal firstly with the Applicant’s submissions as advanced during the hearing before me, before turning to a broader consideration of the Ground of Review and the decision of the Authority.

3. The Authority is required by section 473DB of the Migration Act 1958 (‘Act’) to conduct a review by considering the review material provided to it under section 473CB. This is often referred to as a review on the papers. The Authority is not required to interview a review applicant prior to reaching a decision. While the Authority may invite a review applicant for an interview under section 473DC of the Act, whether it does so is a matter within the discretion of the Authority. The Applicant did not advance before me today any reason as to how the Authority may have fallen into error by failing to exercise the discretion available to it.

4. For the reasons outlined above, I am satisfied that the Authority was not in error when it did not interview the Applicant.

5. I have undertaken a review of the delegate’s decision and the decision of the Authority with a view to determining whether the Authority copied verbatim from the decision of the delegate.  There are three aspects that emerge from that review.

6. First, the reasons of the delegate are far more extensive than the reasons given by the Authority. 

7. Second, there is a degree of overlap in the content contained within the two decisions.  A degree of commonality is, in my view, to be expected.  The Authority is considering the same or similar claims as the delegate.  The Authority is considering essentially the same responses or submissions of an applicant.  Further, as noted earlier, the Authority is confined to conducting the review on the papers.  A commonality in the material covered does not, in my view, lead to a conclusion that the Authority has cut and paste, or copied, directly from the delegate’s decision.

8. Third, apart from one area, there does not appear to me to be any large scale copying of text from the delegate’s decision by the Authority.  There is one paragraph (paragraph [21]) in the reasons of the Authority which appears to be a direct copy of two sentences in the delegate’s reasons.  There are two observations to be made about this.  First, it is one paragraph of 27 paragraphs of the reasons of the Authority which appears to lift text directly from the decision of the delegate.  Second, the text copied are quotes from individuals, or reporting services.  It is understandable that text which contains a quote or direct reference from an individual might be expressed in identical terms.

9. In my view, when the reasons of the Authority are considered as a whole, and having regard to the matters identified above, the Authority did not copy and paste from the delegate’s decision.  I am satisfied that the Authority engaged in an active intellectual consideration of the matters before it and arrived at its own conclusion.

10. The next matter raised by the Applicant during the hearing was that the Authority was wrong to reach the conclusions that it did.  This submission amounts to an invitation to this Court to conduct a merits review.  It is well-established that this Court is not permitted to engage in a review of the merits.  Further, to the extent that the Applicant makes complaints about findings made by the Authority as to the Applicant’s credibility, they were matters that the Authority was entitled to consider and make findings about.  It was not unreasonable for the Authority to reach the conclusions that it did.

11. Finally, during the hearing, the Applicant claimed to fear harm if forced to return to Iran, on the basis that he does not believe in the Islamic faith.  I have reviewed the Court Book, including the Applicant’s claims and the submissions made by his representatives.  This is a new claim.  There is nothing in the material before me, which I can locate, that indicates that this claim was advanced previously.  This claim being raised now invites the Court to review the merits of the matter.  I decline to do so for the reasons previously articulated.

12. I now turn to consider the single Ground of Review.

The Ground of Review

1. The single Ground of Review raises two separate alleged errors.  The first is a failure by the Authority to consider the Applicant’s claims, or integers of the claims.  The second is that the Authority committed an error by asking itself the wrong question or addressing itself to a wrong issue.

2. To the extent that the Ground of Review is taken to relate to submissions advanced by the Applicant during the hearing, I rely on my reasons set out above.  To the extent it deals with other matters, I deal with these below.

3. The first observation to be made is that absent the submissions received from the Applicant at the hearing, both of the matters raised by the single ground of review are unparticularised.  An unparticularised ground may be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

4. The Authority summarised the Applicant’s claims at paragraph [11] of its reasons.  The summary of claims set out at paragraph [11] reflects accurately the claims made by the Applicant in his statement at Court Book 61.

5. The Applicant’s claims in relation to the relationship he had with WM are dealt with by the Authority at paragraphs [15] to [18] of its reasons.  The Authority did not accept that the Applicant had entered into a relationship with WM, or was threatened because of it: at paragraph [16] of its reasons.  The Authority also did not accept that the Applicant was a member of a particular social group consisting of adulterers in Iran: at paragraph [16] of its reasons.

6. The Authority in reaching these conclusions reviewed the evidence before it.  The Authority was of the view that the Applicant was not credible (at paragraph [15]).  The Authority reached that view having regard to, among other things, numerous inconsistencies in the evidence given by the Applicant.  Those inconsistencies are set out within paragraph [15] of the decision.  It is well accepted that findings as to credit are matters for a decision-maker and that Courts should exercise a high degree of caution when reviewing such findings: See DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at paragraph [30].

7. Further, in reaching its conclusion, the Authority considered a translated copy of on an Iranian Court Summons.  The Authority gave no weight to that document given, among other things, the incomplete nature of the document and the Authority’s concerns about the Applicant’s credibility.

8. The Applicant’s other claims regarding the nature of his departure from Iran and the harm that he feared in respect of it, and his claim to fear harm on the basis that of being considered to be a failed asylum seeker from a Western country, were addressed by the Authority at paragraphs [19] – [22] of its reasons.  Among other things, the Authority considered country information and the circumstances of the Applicant in reaching its conclusion that he did not face a real chance of serious harm on account of being a returned asylum seeker from Australia.

9. When these matters are considered, in my view, the assertion that the Authority failed to consider the Applicant’s claims or integers of the claims must fail.  It also must be observed that there is nothing in the reasons of the Authority which indicates that it failed to afford the Applicant procedural fairness in relation to these matters, or that its reasoning was illogical or irrational.

10. The other claim advanced by the Applicant under the single Ground of Review is that the Authority asked itself the wrong question or addressed itself to the wrong issue.

11. I have already outlined above the manner in which the Authority addressed the Applicant’s claims. Insofar as the Applicant seeks to contend under this ground that the Authority applied the incorrect law, that, in my view, is not capable of being sustained. The Authority identified the relevant provisions of the Act being, among others, sections 5H and 5J of the Act. Insofar as the complementary protection assessment was concerned, the Authority referenced expressly section 36(2A) of the Act and section 36(2)(aa) of the Act. Further, it is apparent that the Authority assessed the claims and the facts against the statutory criteria set out above.

12. A common cause of complaint in relation to decisions of the Authority relates to any consideration by the Authority of new information.  In this matter, the Authority refused to consider new information submitted by the Applicant’s representatives.  The manner in which the Authority dealt with that issue is set out in paragraphs [4] – [10] of its reasons.

13. A review of the decision of the Authority also discloses the following. The Authority formed the view that it was not required to accept new information because the Applicant had failed to comply with a relevant direction as contemplated by section 473FB of the Act. The Authority found that the Applicant had failed to comply with Practice Direction No 1, and that practice direction was a relevant direction for the purposes of section 473FB(5).

14. This, however, was not the only basis upon which the Authority refused to admit new information.  The Authority separately, at paragraph [10] of its reasons, was not satisfied that there were exceptional circumstances to justify the consideration of new information.  The Authority formed this view because, among other things, none of the information referred to was identified as being published after the delegate’s decision, it was not apparent why the information could not have been provided earlier, and there was nothing about the information that indicated it was credible personal information.  Accordingly, the Authority was of the view that there were not exceptional circumstances to justify the admission of new information.

15. For all of the reasons set out above, I am unable to discern any jurisdictional error committed by the Authority.  Accordingly, the Application must be dismissed. 

Costs

1. The Minister sought costs in the amount of $8,567 which comprises of the Scale amount of $7,467 (Item 3, Division 1, Part 3 of Schedule 3 the Federal Circuit Court Rules 2001 (‘Rules’)) and a disbursement cost of $1,100 (Item 14, Part 1 of Schedule 1 of the Rules). The Minister submitted that the disbursement costs are on account of Counsel’s fees for the preparation and attendance at the Final Hearing of the matter first listed on 6 October 2020.

2. On that day, it became apparent that the Applicant did not have a copy of the Court Book or the submissions filed by the Minister. The Minister’s Counsel informed the Court that the Court Book and submissions were emailed to the Applicant. The Court Book was emailed to the Applicant by way of sending a large file share link. That link expired after a certain number of days and had expired by the Final Hearing on 6 October 2020.

3. Subsequently, I made orders on 6 October 2020 adjourning the matter for Final Hearing on 13 October 2020 and for the Minister to electronically serve the Applicant with the Court Book and submissions. This was attended to and the Applicant confirmed he had received the Court Book and submissions and had access to them. 

4. Taking into account the above, I do not consider it appropriate that the Minister be awarded costs in addition to the Scale set out in the Rules. I will award costs to the Minister in the sum of $7,467.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 13 November 2020