FCG17 v Minister for Immigration
[2018] FCCA 674
•23 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FCG17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 674 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Immigration Assessment Authority – whether the Authority erred by misconstruing s.473DD of the Migration Act 1958 (Cth) – whether the Authority erred by failing to consider “new information” submitted by the applicant – whether to exercise discretion to refuse relief – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.473CA, 473CB, 473DB, 473DC, 473DD |
| Cases cited: BVZ16 v Minister for Immigration & Border Protection [2017] FCCA 775 |
| Applicant: | FCG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3587 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 23 January 2018 |
| Date of Last Submission: | 23 January 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Solicitors for the Applicant: | Curwoods Lawyers |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 15 February 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 28 October 2016 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3587 of 2017
| FCG17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority dated 15 February 2017. The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.
There are two issues in the proceedings: first, whether the Authority fell into jurisdictional error by not properly considering whether it could take into account information that was not before the delegate; and secondly, if it did not, whether relief ought to be refused in the exercise of the Court’s discretion.
Background
The applicant is a citizen of Iraq who arrived in Australia on 15 November 2012. He lodged an application for a protection visa on 13 May 2016 after the Minister had exercised his discretion to allow him to do so.
The applicant claimed that he was a bodyguard for his uncle who was a member of the Iraqi Parliament and that, in 2005 he was detained by the Badr Organisation and tortured.
A delegate of the Minister made a decision on 28 October 2016 to refuse to grant the applicant a protection visa. Part of the reason for that decision was the lack of documents supporting the applicant’s claims.
Statutory context
There was no issue that, in the circumstances of the applicant’s arrival, and what later occurred, he was a “fast track applicant” and that the delegate’s decision was a “fast track reviewable decision”. As a consequence, the matter was referred to the Authority for review pursuant to s.473CA of the Migration Act1958 (Cth).
Subject to some qualifications, the Authority was required by s.473DB of the Act to review the delegate’s decision by considering the material provided by the Department under s.473CB(1) without accepting or requesting “new information” and without interviewing the applicant. However, the Authority had the power to “get” relevant information which had not been before the Minister or the Minister’s delegate and could at its discretion invite a person to give “new information”.
The term “new information” is defined in s.473DC(1) of the Act to mean “documents or 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.
The use of new information by the Authority is restricted by s.473DD, which provides:
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.
In BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958, White J described the effect of s.473DD as follows:
8.As can be seen, s 473DD provides that the IAA “must not consider” new information unless both of two conditions are satisfied. The first is that the IAA be satisfied that there are “exceptional circumstances to justify” considering the new information. The second (which contains alternatives) is that the IAA be satisfied that the new information was not, and could not have been, provided to the Minister before the Minister made the decision, or that it be previously unknown “credible personal information” which, had it been known, may have affected consideration of the appellant’s claim.
9.The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an
applicant’s circumstances are not exceptional.
(Emphasis in original)
The new information
On 25 November 2016, the applicant’s agent wrote to the Authority requesting that it consider six items of information[1] that were not before the delegate and which, it was argued, was to “rebut the refusal grounds” of the delegate (without alteration):
[1] As set out in the applicant’s submissions filed 18 January 2018.
‘Document 1’: a copy of a letter in Arabic (with English translation) dated 17 July 2006 from the Iraqi Ministry of Communication thanking Mr [GKMA[2]] for his visit.
[2] These are the initials of the full name used in the document.
‘Document 2’: a copy of a letter in Arabic (with English translation) dated 25 January 2007 from the Iraqi Minister of Defence apparently addressed to ‘Administration Headquarters’ advising of the appointment of people named in a list, said to be attached to the letter, as ‘voluntary soldiers’. The letter is copied to the Commander of the Iraqi Army, the Iraqi Distressed People Association, the Intelligence Organisation, the Administration Secretary, the Follow-up Secretary, and the Secretary of Police and Intelligence Organisation. The list of individuals said to be attached to this letter does not appear to have been provided.
‘Document 3’: a copy of a letter in Arabic (with English translation) dated 20 November 2005 from the Iraqi Commission for Civil Society Enterprises General Council of Commissioners advising that Mr [GKMA], Generat [sic] Consultative Commissioner, has permission to use one of the organisation’s vehicles
‘Document 4’; a copy of a medical report in Arabic (with English translation) dated 15 June 2005 from the Al-Rassafah Department of Health, Baghdad, Neuroscience Hospital, apparently addressed to the Ministry for Foreign Affairs and signed by the hospital director, regarding the medical condition of Mr [ZAANA[3]]. The report indicates that the patient was found to be ‘suffering from concussion resulting from torturing him by electric shocks’.
[3] These are the initials of the full name used in the document.
‘Document 5’ is made up of four copies of photographs:
(a)a copy of an apparently old photograph of two men in suits greeting each other, accompanied by a hand-written caption in Arabic. The faces of the two men are not clearly visible. A note in English indicates that the photograph is of the applicant’s late uncle with the former Iraqi Agriculture Minister. The photograph is said to have been taken on 20 July 2006.
(b)a copy of an apparently old photograph of three men, one of whom is in military uniform, accompanied by a hand-written caption in Arabic. The faces of the three men are clearly visible. A note in English indicates that the photograph is of the applicant’s fate uncle with [HBZ[4]], a former General in the Iraqi Army. There is no indication of the date of the photograph.
(c)a copy of an apparently old photograph of three men in which one man in a suit is seated while two other men in military attire stand behind and to either side of him. The faces of the three men are clearly visible, a note in English indicates that the photograph is of the applicant's late uncle (seated) with the applicant standing to his left. The note does not indicate when the photograph was taken. …
The applicant argues, and I accept, that while “the man on the left appears to be substantially younger than the applicant, he is similar in appearance to the applicant”. I also accept the submission that the seated man appears to be the same man who appears in photograph ‘b’. It is not clear what uniform the men are wearing, although it is a military one.
(d)A poor quality copy of a photograph of a man in a suit standing beside a car. A note In English indicates that the photograph is of the applicant’s late uncle…
As submitted by the applicant, the man could be the same as the man in photographs ‘b’ and ‘c’, but it is not possible to be certain about that.
‘Document 6’: a copy of a letter in Arabic dated 28 March 2005 from the “Ministry of the Interior, At-Najaf Police Headquarters, Baghdad, addressed to whom it may concern’ advising that Mr [ZAANA] was arrested ‘on the ground of suspicion’ on 5 January 2005 but was released on 28 March 2005 because of the ‘invalidity of the evidence’.
[4] These are the initials of the full name used in the document.
Authority’s reasoning in respect of the new information
The Authority first addressed the applicant’s submissions about the relevance of each of these documents (except for documents 3 and 5 which it did not specifically refer to).
In respect of document 1 it said:
7.The applicant’s representative submits that Annexure C (document 1 above, accompanied by a photograph of two men in suits with an Arabic language label attached to the photograph) is evidence that the applicant’s uncle was a member of the Iraqi parliament in 2006. Neither the text of the translated document or the attached photograph and accompanying translation of its label appears to confirm this, for example by referring to the applicant’s claimed uncle as a member of parliament in the text of the letter or the label attached to the photograph.
In respect of Document 2 it stated:
6.The applicant’s representative submits that …(Document 2) is evidence of the applicant’s employment as a bodyguard by the Relief Federation of Wrecked Iraqis. As indicated above, this document, which purports to be from the Iraqi Minister of Defence, refers to an attachment said to list the names of individuals to be attached to a unit providing ‘services to the joint Chiefs of Staff’ which has not been provided to the IAA. Even if it had been provided and had it included the applicant’s name, it is not evident how this document, purportedly from the Iraqi Minister of Defence, would support the applicant’s claim to have been employed by the ‘Relief Federation of Wrecked Iraqis’ as a bodyguard.
In respect of Document 4 it stated:
9.…(Document 4) is claimed to support the applicant’s claim to have been admitted to hospital and treated for injuries sustained as a result of torture suffered during his detention in relation to his suspected involvement in a plot to kill [AAH[5]].
[5] These are the initials of the full name used by the Authority.
In respect of Document 6 the Authority stated:
8.The applicant’s representative submits …(Document 6) supports the applicant’s claim that he was taken to the local police station in Najaf, detained there for around three months and released due to a lack of evidence. The claim that the applicant was detained at the local police station in Najaf for three months has not previously been made.
The Authority then stated:
11.Section 437DD [sic: 473DD] requires that the IAA must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. In relation to information provided by the applicant, there is a further requirement that the applicant must satisfy the IAA that the new information was not, and could not have been, provided to the delegate before the delegate made his decision, or that the new information is credible personal information that was not previously known and, had it been known, may have affected the outcome of the applicant’s claims.
12.The IAA ‘Practice Direction for Applicants, Representatives and Authorised Recipients’ directs applicants, representatives and others seeking to provide new information to the IAA on behalf of the applicant to provide an explanation as to why the information could not have been given to the Department before the decision was made, or the information is credible personal information which was not previously known and may have affected consideration of the applicant’s claims, had it been known. The submission does not include any such explanation.
13.The applicant was represented in the TPV application process. His written application included a range of documentary evidence relating to his health and his uncle’s claimed roles. Further documentary evidence, including a copy of a document relating to his claimed employment as a bodyguard, was provided during the TPV interview. The applicant’s representative provided a submission to the delegate following the TPV interview which did not include any further documentary evidence.
14.Having carefully considered the circumstances in this case, I am not satisfied that there are exceptional circumstances to justify the consideration of the new information submitted.
The parties’ contentions
The applicant submitted that the Authority’s reasoning was that the applicant had an advisor before the delegate and had the opportunity to place the new information before the delegate with the benefit of this advice but failed to do so. He submits that the Authority failed to have regard to all the material considerations in determining whether to accept the new information pursuant to s.473DD of the Act, and in particular that its consideration of whether there were exceptional circumstances within the meaning of s.473DD(a) was not informed by any consideration of both sub-paragraphs in s.473DD(b). In particular, the Authority did not address itself as to whether the material was credible personal information or information of such a character which was not previously known to the Minister and whether, had it been known, may have affected the consideration of the applicant’s claims.
The Minister argued first, that when it receives new information the Authority is not obliged to make findings under both sub-ss.473DD(b)(i) and (ii). He drew support from the statement by the Full Court of the Federal Court in CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192 at [46] that this submission was, in a formal sense, correct. It may be noted that, in the same sentence relied upon by the Minister, the Full Court also noted that the argument had a “tendency to sidestep the real issue”. The real issue is whether the reasoning of the Authority involved an unduly narrow understanding of the phrase “exceptional circumstances” in s.473DD(a) of the Act.
The Minister argued that the Authority’s consideration of whether there are exceptional circumstances within the meaning of s.473DD(a) need not include consideration of whether the requirements of sub-ss.473DD(b)(i) or (ii) are met. He argued that the inclusion of those subparagraphs would otherwise be superfluous.
Secondly, the Minister argued that the Authority did consider both of the matters in sub-ss.473DD(b)(i) and (ii). It was submitted, first, that, given that there is no obligation on the Authority to give its reasons in respect of s.473DD of the Act, any absence from the statement of reasons provided should not be used to infer a failure to consider any particular matter: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [31]-[32]; [2011] HCA 1. Secondly, it was submitted that the Court ought to have regard to the whole of the Authority’s reasons insofar as they deal with the new information and not just at [14].
Thirdly, if the Authority was required to have regard to sub-s.473DD(b)(ii), then its failure to do so in respect of documents 3, 4 and 5(b) to (d) was not jurisdictional because they could not have affected consideration of the applicant’s claims had they been known by the delegate.
Finally, the Minister argued that if there were jurisdictional error then relief ought to be withheld on discretionary grounds because the “new information” could not have had any impact upon the Authority’s decision had they been considered by the Authority.
Consideration
The Minister’s first and second arguments must be rejected because of the binding authority of the Federal Court in BVZ16. That decision involved an appeal from the decision of Judge Cameron of this Court: BVZ16 v Minister for Immigration & Border Protection [2017] FCCA 775. Judge Cameron said at [23]:
If indeed the IAA had not considered whether s.473DD(b) had been satisfied, as the applicant contended, then its decision would have been erroneous because the matters to which that paragraph refers are, by virtue of the terms of that section, ones which the IAA is obliged to consider when dealing with “new information”. …
However, his Honour went on to find that the Authority had considered whether s.473DD(b) was satisfied. On appeal, White J accepted the proposition at [23] of Judge Cameron’s reasons, but disagreed with his Honour’s conclusion on the facts. White J said:
36.For these reasons, I respectfully disagree with the conclusion of the FCC Judge on this point. In my opinion, the FCC Judge erred in failing to find that the IAA had considered only the subpara (a) requirement. The FCC Judge had accepted (at [23]) that it would have been erroneous for the IAA not to have considered the subpara (b) requirement. It follows that the FCC Judge should have found jurisdictional error by the IAA in failing to discharge the task of review imposed by s 473DB(1).
37.I would also uphold an additional and related contention of the appellant. This was to the effect that, even if the FCC Judge had been correct in finding that the IAA had addressed s 473DD(b)(i), this would not have completed the IAA’s statutory task, given that subpara (b) is expressed in alternatives. The circumstance that the appellant may not have been able to satisfy subpara (b)(i) did not foreclose him being able to satisfy subpara (b)(ii).
I am bound to apply the reasoning of White J in BVZ16. Nothing said by the Full Court in CHF16 affects what his Honour said there as it is plain that the passage relied upon by the Minister at [46] of that judgment was said by way of obiter dicta.
That said, the Minister’s submission that the whole of the Authority’s reasons must be considered is also plainly correct: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 (Kirby J); [1996] HCA 6. Further, while it is relevant to any consideration of the Authority’s reasons that there was no obligation to give reasons in respect of its consideration of the new information for the purposes of s.473DD of the Act, the fact is that the Authority did give reasons in that respect. There is no suggestion that the Authority had some other, undisclosed, reasons for not considering the new information. Thus, while some allowance may be given for the absence of compulsion, the actual reasons of the Authority may still be considered to determine whether it properly applied itself to its statutory task. That was the approach taken by French CJ and Kiefel J in SZGUR at [33].
Taking that approach, it is clear that the Authority had looked at the documents and taken the time to consider what they were. In at least some cases, the Authority also identified the potential relevance of the document in question:
a)in respect of document 1, the Authority stated, at [7], that neither the “text of the translated document or the attached photograph and accompanying translation of its label appears” to confirm that the applicant’s uncle was a member of the Iraqi Parliament; and
b)in respect of Document 2, the Authority noted, at [6], that it was “not evident how this document, purportedly from the Iraqi Minister of Defence, would support the applicant’s claim to have been employed by the ‘Relief Federation of Wrecked Iraqis’” as a bodyguard.
The relevance of a document to the issues is pertinent to the question posed by sub-s.473DD(b)(ii). It is also pertinent to the question of whether there are “exceptional circumstances” within the meaning of s.473DD(a). Reference to the relevance of a document (or “new information”) can, for those reasons, support the conclusion that the Authority considered the question posed by that sub-paragraph and so did not take an unduly narrow approach to the existence of exceptional circumstances. However, in this case, I am satisfied that the Authority did not consider the matters in either of the sub-paragraphs of s.473DD(b) and that it took an unduly narrow approach to the question of whether there were exceptional circumstances.
First, although it made reference to the relevance of some of the new information it did not do so in the terms of sub-s.473DD(b)(ii). That provision requires consideration of whether the information “may have affected” consideration of the claims (that is, by the delegate), not, as the Authority noted at [6], it “would affect” a particular claim before it.
Secondly, the question of relevance is not limited to whether information “confirms” a particular claim (see [7] of the Authority’s reasons). Information may be relevant where it simply affects the probability of the existence of a particular factual claim.
Thirdly, on a fair reading of the whole of the Authority’s reasons in connection with the new information, the only real consideration of whether there were “exceptional circumstances” is contained in [12] and [13]. Although the Authority refers to the tests in sub-ss.473DD(b)(i) and (ii), it only directly addresses the question in s.473DD(a). Further, although, as I have noted, it does refer to the relevance of some of the new information, it does not do that in respect of all of the new information.
The fact that the Authority said, at [14], that it had “carefully considered the circumstances in this case” does not assist. That is a formulaic conclusion that does not explain in any way what circumstances the Authority did consider. The paragraphs leading to that conclusion are, in my view, the best way of understanding what it meant by this statement. As those paragraphs do not include all of the circumstances relevant to the question of “exceptional circumstances” it follows that the Authority acted on an unduly narrow understanding of that term.
The next question is whether that error amounted to jurisdictional error. It may be accepted that, in Australia, not all errors of law go to jurisdiction: Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 at [66]; [2010] HCA 1. Rather, in order to earn the epithet “jurisdictional”, an error must be one that affects the decision-maker’s exercise of power: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] (McHugh and Gummow JJ); [2001] HCA 30; Minister for Immigration & Border Protection v Lesianawai (2014) 227 FCR 562 at [60] (Buchanan J); [2014] FCAFC 141; and SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [120]-[122] (Tracey and Foster JJ); [2009] FCAFC 46.
The Minister submitted that there was no jurisdictional error here because none of documents 3, 4 or 5(b) to (d) could have affected consideration of the applicant’s claims by the delegate. I do not accept that argument.
Document 3 could have had some bearing on the applicant’s claim that his uncle was a member of the Iraqi Parliament. It refers to the uncle by name and purports to be signed by the “Head of the Iraqi Parliament for Civil Society”. There was no evidence to suggest definitively that that was not the Parliament to which the applicant’s claims referred. That is sufficient to establish jurisdictional error; however, it is worthwhile to examine the balance of the documents.
Document 4 is a medical certificate in relation to a person with the applicant’s name and states that the person “was found to be suffering from concussion resulting from torturing him by electric shocks”. The Minister submitted that the delegate had rejected the claim anterior to the infliction of harm and so this document could not have affected consideration of that claim. That submission is based on an erroneous understanding of sub-s.473DD(b)(ii). That provision focuses on “the consideration of the claims”, not on the findings actually made in respect of those claims. Absent disqualifying bias, consideration necessarily precedes determination. A document that supports the applicant’s claims in respect of harm suffered may improve the decision-maker’s opinion of his credit and thus affect his or her conclusion about the applicant’s anterior claims.
Documents 5(b), (c) and (d) were photographs of a man said to be the applicant’s uncle. They are pertinent to the claim that the uncle was some important figure and the applicant was his uncle’s bodyguard. The Minister submitted that this could not have made a difference because the Authority accepted that claim. However, once again, that submission misunderstands sub-s.473DD(b)(ii). That provision is retrospective and looks at the position before the delegate, not the Authority.
For those reasons, I am satisfied that the Authority fell into jurisdictional error by taking an unduly narrow approach to the question of whether there were exceptional circumstances for the purposes of s.473DD(a). The remaining issue is whether relief ought to be refused in the exercise of the Court’s discretion.
It is well-accepted that the Constitutional writs (and any ancillary relief) are discretionary remedies: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [5], [42]-[57], [104] and [171]; [2000] HCA 57; Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [90]; [2003] HCA 1; SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [28], [52] and [91]; [2007] HCA 26.
Here, the Minister argued that relief should be refused in the exercise of discretion because there was no possibility of a different result (sometimes described as the backward looking test): Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 165; [1996] FCA 807. That approach has been taken by the High Court to refuse relief: SZBYR.
The immediate result that could have arisen if the Authority had properly considered the question under s.473DD(a) was that it took the new information into consideration. The question, then, arises whether the Authority’s decision might have been affected by that new information once it had been considered. I accept that, in respect of three of the photographs (documents 5(b) to (d)), no difference could have arisen. That is because the Authority accepted the applicant’s claims to have been a bodyguard for his uncle. However, I do not accept that the other documents could have made no difference. The Authority made general findings against the credit of the applicant which could have been affected by the corroborating material. It is not for the Court to guess whether they would have made a difference. That is a matter for the Authority.
Conclusion
For those reasons, this is not a case where relief ought to be refused in the exercise of discretion. There will be an order for the issue of a writ of certiorari to bring the Authority’s decision into the Court in order to be quashed and a writ of mandamus directed to the Authority requiring it to complete its review of the delegate’s decision.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 23 March 2018
0
16
2