EPT17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

EPT17 v Minister for Home Affairs [2019] FCA 570

Appeal from: EPT17 v Minister for Immigration & Anor [2018] FCCA 240
File number: NSD 277 of 2018
Judge: PERRY J
Date of judgment: 24 April 2019
Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court (FCC) dismissing the appellant’s application for judicial review of a decision by the Immigration Assessment Authority (IAA) under Part 7AA, Migration Act 1958 (Cth) – where IAA affirmed delegate’s decision refusing to grant the appellant a safe haven visa – where the primary rule in Part 7AA is that the fast track review is conducted on the papers by reference only to the material provided by the Secretary under s 473CB(1) – whether the IAA erred in failing to consider whether new information may have affected the consideration of the appellant’s claims under s 473DD(b)(ii) of the Act – where IAA referred in its statement of reasons to the new information – appeal dismissed
Legislation:

Migration Act 1958 (Cth) s 473DD

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221

BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

CVS16 v Minister for Immigration and Border Protection [2018] FCA 951

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780

Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481

Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 92 ALJR 798
Date of hearing: 10 August 2018, 18 September 2018
Date of last submissions: 16 April 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 65
Counsel for the Appellant: Mr C Jackson with Mr P Berg
Counsel for the First Respondent: Mr J Kay Hoyle
Solicitor for the First Respondent: HWL Ebsworth Lawyers
Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS

NSD 277 of 2018
BETWEEN:

EPT17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

PERRY J

DATE OF ORDER:

24 APRIL 2019

THE COURT ORDERS THAT:

1.Leave be granted to the appellant to raise the proposed new ground of appeal and to amend the notice of appeal in terms of the proposed amended notice of appeal annexed to the appellant’s written submissions dated 7 August 2018.

2.The amended notice of appeal referred to in…

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Details
Case
[2019] FCA 570
Decision Date

CaseChat Overview and Summary

In the case of EPT17 v Minister for Home Affairs, the appellant, a non-citizen, sought a judicial review of a decision by the Immigration Assessment Authority (IAA) which had affirmed a delegate's refusal to grant him a safe haven visa. The appellant argued that the IAA had erred in not considering new information that might have affected the assessment of his claims. The primary legal issue in this case was whether the IAA was correct in not considering the new information under section 473DD(b)(ii) of the Migration Act 1958 (Cth).

The court examined the statutory framework governing fast track reviews under Part 7AA of the Act. It noted that section 473DC(1) permits the IAA to obtain new information not previously available to the Minister, but section 473DD(b) restricts this by requiring that such information must either have been unforeseeable or, if known, might have influenced the applicant's claims. The court held that for new information to be considered, there must be exceptional circumstances and the information must meet one of the conditions set out in section 473DD(b). The IAA's consideration of new information is thus circumscribed by these statutory provisions, and it did not err in not considering the information in this case.

The court found that the IAA did not breach any legal principles in declining to consider the new information. The new information provided by the appellant did not meet the statutory criteria for consideration, and there were no exceptional circumstances justifying its review. The court concluded that the IAA's decision was correct and dismissed the appeal. The appellant was ordered to pay the costs of the first respondent as agreed or assessed.

Orders

Orders of the court

1. Leave be granted to the appellant to raise the proposed new ground of appeal and to amend the notice of appeal in terms of the proposed amended notice of appeal annexed to the appellant’s written submissions dated 7 August 2018.

2. The amended notice of appeal referred to in Order 1 is taken as filed.

3. The appeal is dismissed.

4. The appellant is to pay the costs of the first respondent as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, leave should be granted to the appellant to raise the new ground of appeal and to file and serve the amended notice of appeal. However, the appeal should be dismissed. 2. BACKGROUND 2.1 The criteria for the grant of a protection visa The safe haven visa for which the appellant applied is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary among other things for the appellant to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or subs 36(2)(aa) (the complementary protection criterion): see s 35A(6) of the Act. Turning first to the refugee criterion, at the relevant time s 36(2)(a) provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations “because the person is a refugee”. A person is a “refugee” for the purposes of the Act if the person (relevantly) “is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country” (s 5H). In turn, s 5J(1) of the Act provided that: (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.(emphasis added) In this regard, I note that the enactment of s 5J by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) had the effect of rendering the question of whether a visa applicant could reasonably relocate irrelevant to a consideration of the refugee criterion. In the alternative, s 36(2)(aa) of the Act provides that it is a criterion for a protection visa that the applicant is a non-citizen in Australia “in respect of whom the Minister is satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. The phrase “significant harm” is defined in s 36(2A) to mean arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Relevantly for present purposes, s 36(2B)(a) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.2.2 The appellant’s claims

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellant also claimed that while his brother had lived in Kabul, his brother felt so unsafe that he had moved to Iran.2.3 The delegate’s decision After summarising the appellant’s claims, the delegate made a number of findings of fact relevantly, in relation to the appellant’s family situation. The delegate noted that at the protection visa interview, the appellant claimed that he financially supported only his mother and younger brother, Mr S. However, the delegate put to the appellant that there was information before the Department indicating that he was sending money to his father in Kabul which in turn suggested that his father was not missing but was residing in Kabul. The appellant testified that the money being sent in his brother’s and father’s names eventually went to his home village, and that, while the money was initially sent to Kabul in his brother’s and father’s names, his father was not present in Afghanistan or Kabul. Rather the money was forwarded to his home through an agent. The appellant’s representative added that under the hawala system, a money agent in Kabul has the father’s Taskera, and Departmental records do not indicate who is collecting the money. The delegate however found that the appellant’s father had been living in Kabul based upon the transaction report indicating that his father was the beneficiary of funds sent to Kabul and was not satisfied that the appellant’s father was working in Iran, as the appellant claimed. The delegate did accept however that the appellant’s brother had resided in Kabul but is now working in Iran, even though the delegate did not accept that he had been in Iran for three years as the appellant claimed. The delegate then turned to consider whether Australia owed the appellant protection obligations. Turning first to the refugee criterion, while the delegate accepted that the appellant would face serious harm amounting to persecution if he were to return to his home area in the Uruzgan province on the basis of his race and religion, he did not consider that the real chance of persecution related to all areas of Afghanistan, and focused on Mazar-e-Sharif. The delegate also found that the appellant was not without support in Afghanistan and was satisfied that the appellant’s father, who (the delegate had found) was residing in Kabul, would provide assistance to the appellant should he require it. The delegate concluded that he was not satisfied that there is a real chance that the appellant would face persecution from the Pashtuns, the Taliban or any affiliated group, or any other extremist groups in Mazar-e-Sharif by reason of his religion, race or any other reason. For the same reasons, the delegate found that the appellant did not face a real risk of significant harm in Mazar-e-Sharif due to his race or religion so as to satisfy the criterion for complementary protection under s 36(2)(aa) of the Act and found that it was reasonable for the appellant to relocate to Mazar-e-Sharif. Nor did the delegate consider, based upon country information, that the appellant would face a real risk of significant harm due to generalised harm in Mazar-e-Sharif as he does not have a profile or association with those identified as targets of the Taliban or other anti-Government elements in Mazar-e-Sharif.

Ratio Decidendi

Legal Principle Established

While initially opposing the grant of leave to file the amended notice of appeal, at the hearing the Minister submitted that leave is neither opposed nor consented to. In the circumstances, I consider that it is appropriate to grant the leave sought. 4. CONSIDERATION 4.1 Circumstances in which new information may be considered by the IAA under the Act on a fast track review As earlier mentioned, the conduct of the fast track review was governed by Div 3 of Part 7AA (comprising ss 473DA-473DF). Section 473DC(1) provides that:Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:(a) were not before the Minister when the Minister made the decision under section 65; and(b) the Authority considers may be relevant. (emphasis added) “New information” in turn is “limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 (Plaintiff M174) at [24] (Gageler, Keane and Nettle JJ) (citations omitted). As required by the words emphasised above in s 473DC(1), that section must be read subject to Part 7AA. Importantly, s 473DD limits the discretion conferred on the IAA to consider new information obtained under s 473DC(1) to cases where the requirements of subparas (a) and (b) are met. Thus, s 473DD provides that:For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.(emphasis added) The requirements of ss 473DD(a) and 473DD(b) are cumulative. As the Minister submits, the precondition in subpara (a), together with either of the preconditions in subpara (b)(i) or (ii), must apply in order for the IAA to be satisfied that the requirements of s 473DD are met and for the new information to be considered: Plaintiff M174 at [31] (Gageler, Keane and Nettle JJ) (with whom Edelman J agreed at [100]) and [88] (Gordon J); see also Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 (BBS16) at [102] (the Court); and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13] (the Court).