EVO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 445
•30 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EVO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 445
File number(s): SYG 2637 of 2018 Judgment of: JUDGE DRIVER Date of judgment: 30 March 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – Authority accepting parts of the applicant’s claims but his fears found not to be well‑founded – whether the Authority unreasonably failed to consider inviting the applicant to give new information considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 5, 5AA, 473DB, 473DC
Federal Circuit Court Rules 2001 (Cth)
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407
BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35
BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Number of paragraphs: 32 Dates of hearing: 18 March 2020, 9 March 2021 Place: Sydney Counsel for the Applicant: Mr P Bodisco Solicitors for the Applicant: ABU Legal Solicitors for the Respondents: Mr G Pasas of Clayton Utz ORDERS
SYG 2637 of 2018 BETWEEN: EVO18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
30 MARCH 2021
THE COURT ORDERS THAT:
1.The further amended application filed on 4 December 2020 is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 16 August 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a Shia Arab from Iraq from a named location in the Muthanna governorate, who arrived in Australia on 13 October 2012[1] as an unauthorised maritime arrival[2] and therefore his Safe Haven Enterprise Visa (SHEV) application was subject to, and governed by, Part 7AA of the Migration Act 1958 (Cth) (Migration Act). On 21 October 2012 the applicant participated in an irregular maritime arrival interview. He applied for a SHEV on 22 February 2017. He attended an interview before the delegate and provided submissions. He was notified of the refusal by the delegate on 16 February 2018.[3] On 22 February 2018 the matter was referred to the Authority.
[1] Court Book (CB) 120, 158 [1].
[2] Migration Act, ss 5(1)(a)(i)-(iii), 5AA.
[3] CB 117-135.
The applicant claimed to fear harm from Sunni militias (including ISIL), the Bani Malik tribe and/or from Shia militias, and from the Iraqi authorities, if returned to Iraq.[4] In particular, the applicant claimed that he had served in the Iraqi Special Forces Counter Terrorism Unit (ISF) alongside the US Forces in Baghdad and Basra from 2006 - May 2012 and that, during that employment, he had been shot at from another car and, later, members of a militia had approached his mother, calling him a traitor. The applicant also claimed that his uncle was approached by the Bani Malik tribe who were in conflict with his tribe and called the applicant a traitor. The applicant claimed that he deserted the ISF in May 2012, departed Iraq in mid‑August 2012, and that a warrant had been issued for his arrest so that if he returned he would be arrested, tried, and detained for desertion.
[4] [1], [6].
Before the Authority, the applicant's representative put on various material, including submissions and new information.[5] The Authority distinguished those materials that were already before the Minister, or were "argument", and had regard to them at [4]-[5]. The Authority found that a police report and statement of the General Sheikh were "new information", noted that whilst the documents themselves post-dated the delegate's decision their contents concerned events pre-dating the decision by five years and no explanation was provided (nor was apparent) as to why they were not obtained earlier. The Authority further noted that the applicant had been repeatedly told of the need to put all information before the delegate and that there was time to provide further information after the SHEV interview, and also noted that the documents on their face contradicted (or otherwise sat "uneasily" with) the applicant's own evidence. For those reasons, the Authority was not satisfied at [5] that there were exceptional circumstances and declined to accept the "new information".[6]
[5] at [4].
[6] CB 158-159.
The Authority accepted at [19]-[20][7] certain aspects of the applicant's claims, namely, that the applicant had worked for the ISF, including as a driver for an Iraqi major and working "in a general way" with the American forces and that the applicant had been shot at in 2011 and a former colleague had been captured and executed in 2014. However, the Authority did not accept at [20] that the 2011 shooting was personally targeted at the applicant or that the 2014 event was connected to the applicant in any way. The Authority also did not accept at [21] that the applicant's uncle or mother had been approached and did not accept at [23] that the applicant had deserted the ISF. In turn, the Authority found at [21]-[23] that the applicant had not been of adverse interest to any groups upon his departure from Iraq and would likewise not be of adverse interest or face a real chance of harm upon return. More generally, the Authority accepted at [27] that Shias had been subject to some isolated attacks, but was not satisfied that the applicant would face a real chance of harm, and further found at [28] that the applicant would be able to subsist. The Authority also rejected at [31]-[33] the applicant's claim that he would face harm as a returning failed asylum seeker or by reason of any medical conditions. For those reasons, the Authority held at [34]-[40] that the applicant had not satisfied s 36(2)(a) or (aa) of the Migration Act.
[7] CB 163.
THE CURRENT PROCEEDINGS
This matter has unfortunately had a protracted procedural history. The proceedings began with a show cause application filed on 18 September 2018. The applicant was at that time legally represented and the application was professionally prepared and supported by an affidavit filed with it. I made procedural orders on 3 October 2018 to prepare the matter for a hearing on 18 March 2020. An amended application, again prepared by a legal practitioner, was filed on 31 January 2020. However, the applicant’s solicitors withdrew from the record in accordance with the Federal Circuit Court Rules 2001 (Cth) on 12 February 2020.
At the hearing on 18 March 2020, the applicant appeared unrepresented and was completely unfamiliar with either judicial review application or the Minister’s submissions. Neither had the applicant possessed a copy of the court book. I adjourned the hearing until 4 September 2020. There were two subsequent administrative adjournments until the matter was finally heard on 9 March 2021. Over that period the applicant obtained new legal representation and a further amended application was filed on 4 December 2020. There is one particularised ground in that application as amended:
The Immigration Assessment Authority (IAA) committed Jurisdictional error in making the relevant decision, it failed to exercise its statutory powers reasonably.
Particulars
“The IAA has failed to exercise its statutory powers reasonably, namely to provide an intelligible reason as to why it did not consider exercising its powers to invite the Applicant, in person, orally or in writing, to give new information to confirm that he suffered post traumatic stress disorder, was receiving treatment for it and that this diagnosis and the symptoms that include memory loss may have explained any inconsistencies in the account he gave at the Entry Interview and later iterations of his claim, particularly given that the IAA was to make findings that deviated from the delegate’s.”
In addition to the court book lodged on 30 October 2018, I have before me as evidence the affidavit of the Minister’s solicitor, George Paul Pasas, detailing the costs that have been thrown away by the Minister in the course of the proceedings. Counsel for the applicant conceded that the applicant would not resist a costs order in relation to costs thrown away in the event that the applicant succeeded on the application. The Minister did not seek anything other than scale costs in the event that the application were to be dismissed.
CONSIDERATION
The applicant takes issue with the Authority’s statement of reasons at [32] and [33][8] where the Authority stated:
In the SHEV application the applicant claimed he attended monthly meetings with a psychologist to treat PTSD, stuttering and depression. He also claimed in October of 2013 the home he was sharing was mistakenly raided by the NSW Police. As a result he claimed he no longer feels safe in Australia and this event re-ignited the PTSD he had suffered while he was in Iraq. He also claimed the answers he gave at the entry interview were accurate. Since then he has forgotten a lot of what he provided because he has suffered stress and trauma. He has been under a lot of pressure since arriving in Australia. Although the applicant made no claim for protection regarding any medical conditions, the delegate considered whether he would suffer harm for this reason if he were to return to Iraq.
I do not accept the applicant has been diagnosed with or treated for any medical conditions. He was represented before both the Department and the IAA but provided no documentary evidence in support of this claim despite stating he regularly saw a medical professional and providing documentary evidence to support some of his other claims. I have also listened to the audio recording of the SHEV interview ·and the applicant did not seem to suffer from a stutter when communicating with the interpreter. I also note he has not claimed that he was previously unable to access medical treatment for any conditions he said he suffered when he lived in Iraq. In any event, if the applicant were to require medical treatment country information before me indicates Iraq's 2005 Constitution guarantees the right to healthcare and states the Government will maintain public health and provide the means of prevention and treatment. DFAT notes that Iraq has a mixture of public and private hospitals and primary healthcare is provided by both private and public clinics. Although it acknowledges that Iraq's health infrastructure has suffered from decades of insecurity and recent conflict has further reduced access to health services, although mainly in conflict-affected areas, which the applicant's home area of Samawa is not[9]. While I accept that medical facilities in Iraq can be inadequately resourced and overburdened and that the standard of care in Iraq is not likely to match that available in Australia, the evidence that is available to me does not suggest that in the event treatment were required, which I have not accepted is presently the case, that the applicant would be denied treatment, or restricted in his ability to obtain treatment, for any of the reasons in s.5J(l)(a).
[8] CB 167.
[9] DFAT, Country Information Report for Iraq 2017, 26 June 2017, CISEDBS0AD4631, paragraphs 2.14-2.15.
The applicant’s complaint is that the Authority unreasonably failed to seek, or consider seeking, further information from the applicant concerning his asserted medical conditions.
In oral submissions, counsel for the applicant addressed in more detail the Authority’s reasoning at [33], especially the Authority’s assessment concerning the applicant’s claimed stutter after listening to the audio recording of the SHEV interview and the Authority’s assessment of the availability of appropriate medical facilities and treatment in Iraq.
In my view, although the Authority decision is silent on the issue of s 473DC, it would be wrong to conclude that the Authority did not consider seeking further information from the applicant under that provision. Further, even if the Authority did fail to consider that issue, it was not, in the circumstances of this case, unreasonable.
I agree with and adopt the Minister’s submissions in relation to this issue.
To make out his case, the applicant bears the onus of establishing that:[10]
(a)the Authority did, as a matter of fact, fail to consider exercising its discretion under s 473DC of the Migration Act; and
(b)there was jurisdictional error in failing to consider exercising the discretion.
[10] CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38].
It is convenient to address both in turn.
Did the Authority fail to consider exercising its discretion?
The applicant accepts that his submissions "proceed from the initial premise that the Authority in fact gave no consideration to the exercise of the discretion conferred by s 473CD [sic]". The only matter relied upon to support this inference is that the Authority’s reasons for decision make no reference to the discretionary power and do not otherwise evidence any consideration having been given to it.[11]
[11] applicant’s submissions at [42].
It is well-established, however, that the absence of a reference to the consideration or exercise of the discretion does not, of itself, give rise to an inference that its exercise was not considered.[12] This is because the Authority was not required to provide reasons regarding its exercise or non-exercise of the procedural power conferred by s 473DC.[13]
[12] BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196 at [39]-[40]; CQ17 at [39].
[13] BVD17 (2019) 373 ALR 196 at [16].
Given that:
(a)it is not for the Minister to establish that the Authority did, in fact, consider the exercise of the discretion;[14] and
(b)the applicant has not otherwise pointed to any matter which supports the inference that the discretion was not considered, the applicant's claim must fail at the outset.
[14] BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35 at [41].
Further, a fair reading of the Authority’s reasons[15] reasonably suggests that the Authority did consider the exercise of that discretion and chose not to seek further information in circumstances where the applicant was represented before both the Minister’s Department and the Authority and had not provided the relevant evidence earlier.
[15] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31].
I also accept that any failure by the Authority to consider exercising the discretion under s 473DC would not be legally unreasonable in the present case.
Section 473DC confers a power, but not a duty, on the Authority to obtain new information.[16] Whilst this discretion must be considered and exercised reasonably,[17] a very stringent test must be met before a decision will be held to be legally unreasonable.[18]
[16] Section 473DC(2) of the Migration Act.
[17] ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407 at [3].
[18] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11], [52], [135].
Reduced to its core, the applicant's argument appears to be that:
(a)the Authority rejected the applicant's claim that he had post-traumatic stress disorder (PTSD);
(b)if the Authority had accepted that claim, that could have had a material impact on its assessment of the applicant's credibility and the inconsistencies in his accounts over time; and
(c)accordingly, the Authority acted unreasonably in failing to consider whether to obtain further information pursuant to s 473DC before rejecting the applicant's claim that he had PTSD.
Before considering this argument, it must be recognised that no complaint is (or could be) made regarding the Authority's finding of fact that the applicant did not suffer from PTSD. That finding of fact was made because:[19]
(a)the applicant was represented before both the delegate and the Authority and did not provide any documentary evidence in support of such a claim (notwithstanding the fact that documentary evidence was provided to support other claims); and
(b)the applicant did not claim that he was previously unable to access medical treatment for conditions he suffered when he lived in Iraq.
[19] CB 167 at [33].
Those were cogent and intelligible reasons for rejecting the applicant's claim that he suffered from PTSD. It is not for this Court to review the merits of that finding.[20]
[20] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 48.
With that context, it is difficult to discern the precise reason that the applicant submits rendered the Authority’s actions legally unreasonable. To the extent that the applicant submits that the Authority was required to consider s 473DC because:
(a)it made a different finding on the PTSD claim to the delegate; or
(b)the PTSD claim was important to credibility,
those submissions are contrary to the statutory scheme in Part 7AA of the Migration Act.
In that regard:
(a)the Authority's task is to undertake a de novo consideration of the decision which has been referred to it;[21]
(b)the Authority was not required to notify the applicant that it was considering taking a different view, adverse to the applicant, of the material considered by the delegate;[22]
(c)any assessment of reasonableness must take place against the statutory scheme in Part 7AA of the Migration Act, including that it is “one of limited review on the papers with a default position of not accepting or requesting new information”;[23] and
(d)this is not a case like ABT17where there was an informational gap between the material relied upon by the delegate and the material relied upon by the Tribunal.[24]
[21] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17].
[22] DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72]-[76].
[23] CCQ17 at [48]; s 473DB(1) of the Migration Act.
[24] ABT17 at [13]-[18].
Given those principles, the Authority was not required to seek further information "merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate".[25]
[25] ABT17 at [24].
In essence, the applicant's complaint appears to be that the Authority acted unreasonably because it relied upon inconsistencies in the applicant's accounts over time without seeking further information in relation to his PTSD.[26]
[26] see the applicant’s submissions at [19], [21], [24] - [26], as well as pages 10 and 11.
That argument faces difficulties as:
(a)the Authority was aware of the applicant's submission that he had forgotten his previous evidence as a result of his claimed PTSD;[27]
(b)the Authority made an (unchallenged) finding of fact that the applicant did not suffer from PTSD; and
(c)as a result, it was reasonable for the Authority to not consider the existence of PTSD as a potential explanation for inconsistencies in the applicant's claims.
[27] CB 167 at [32].
CONCLUSION
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
The parties at the trial made submissions as to costs. Costs should follow the event and I will order that the Minister receive scale costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 30 March 2021
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