FCV18 v Minister for Home Affairs
[2020] FCCA 126
•23 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FCV18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 126 |
| Catchwords: MIGRATION – Review of decisions – judicial review – decision of Immigration Assessment Authority. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 473CA, 473DB(1), 473DC(2), 473DD |
| Cases cited: DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 |
| Applicant: | FCV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 510 of 2018 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 22 January 2020 |
| Date of Last Submission: | 22 January 2020 |
| Delivered at: | Perth |
| Delivered on: | 23 January 2020 |
REPRESENTATION
| The Applicant appeared in person with the assistance of a Pashtun interpreter |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 2 October 2018 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 510 of 2018
| FCV18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a national of Afghanistan. He arrived in Australia by boat in such a way that he meets the description of unauthorised maritime arrival as provided for in the Migration Act 1958 (Cth). He arrived on Christmas Island on 16 July, 2013.
On 22 September, 2017 he lodged an application for a Safe Haven Enterprise (Subclass 790) visa. To obtain that visa, the applicant needed to establish (among other things) that at the time of the decision he met the refugee or complementary protection criteria in ss.36(2)(a) or 36(2)(aa) of the Act.
On 21 May, 2018 a delegate of the first respondent refused the visa. Because the delegate’s decision was a fast track reviewable decision it was referred to the second respondent for review. On 22 May, 2018 the first respondent referred the delegate’s decision to the second respondent in accordance with s.473CA of the Act.
On 3 September, 2018 the second respondent affirmed the delegate’s decision.
On 2 October, 2018 the applicant applied to this Court for orders quashing the second respondent’s decision and for the issue of a writ of mandamus, directed to the second respondent, requiring it to re-make its decision according to law. The applicant also sought that the first respondent be restrained from making the future decision or taking any action the subject of the proceedings.
Orders were made so as to progress the application to hearing. The applicant was ordered to file any amended application and further affidavit evidence by 9 January, 2019. He was also ordered to file written submissions 35 days prior to the hearing day. He has filed no submissions. The first respondent has filed written submissions for the Court’s assistance.
The applicant appeared at the hearing of the application with the assistance of a Pashtun interpreter. He made oral submissions largely directed towards the merits of the second respondent’s decision.
The first respondent seeks the application be dismissed with costs. The second respondent enters a submitting appearance save as to question of costs.
Background
The applicant is an Afghan citizen of Pashtun ethnicity and an adherent of orthodox Sunni Islam. Prior to coming to Australia, he lived in the village of Charbagh, Laghman Province in Afghanistan and was a farmer. In summary he claimed that:
a)the applicant was married in 2011. After their marriage, the applicant and his wife lived with his parents;
b)soon after they were married, the applicant and his wife decided to establish a school in the family home. At the school, the applicant’s wife taught English to the students. Some of the students were female;
c)his village was infiltrated by members of the Taliban who opposed the teaching of English and the education of female children generally;
d)the applicant’s father, as the head of the household in which they all lived, received three written threats from the Taliban to close the school, but his father ignored these threats and did not mention the threats to the applicant or his wife;
e)in late 2012, the applicant’s father was murdered as a consequence. After his father was murdered, the applicant’s mother informed him of the threats;
f)in spite of the death of his father, the applicant and his wife persisted with the school;
g)after the death of his father, the applicant received threats. They were over the telephone. After the third threat, the applicant decided to depart Afghanistan. He and his wife and child departed Afghanistan for Pakistan, where the applicant left his wife and child in the care of her family. The applicant continued to travel to Australia;
h)the applicant fears to return to Afghanistan, as he fears that he would be harmed by the Taliban because he had previously operated the school.
The first respondent’s delegate who made the primary visa decision did not accept the applicant as a witness of credit. The delegate did not accept the applicant’s claims as to his identity. When the delegate’s decision was referred to the second respondent, the applicant’s migration agent sent emails to the second respondent. The first attached a certificate from the Embassy of the Islamic Republic of Afghanistan dated 24 May, 2018. It attested that the applicant’s “Taskira” was genuine and that the applicant was a citizen of Afghanistan. The purpose of that evidence was to deal with the delegates difficulties with the applicant’s claims as to his identity.
The second respondent considered that the certificate was new information for the purposes of s.473DD of the Act but determined not to take into account for two reasons. The first was that there were no exceptional circumstances to justify its reception. The second and perhaps more important was that the second respondent determined to accept the applicant’s claims as to his identity and so the evidence became unnecessary and irrelevant.
The second email was sent on 5 August, 2018 and contained a legal submission of the migration agent on the applicant’s behalf. One of the arguments raised in that submission was that the protection visa interview conducted by the delegate was unfair and prejudicial to the applicant. It argued that the interview was prolonged and intense and caused stress and anxiety for the applicant preventing him from participating freely in the interview. This was similar to an earlier post-interview submission that had been made on the applicant’s behalf.
The second respondent dealt with that submission by listening to the audio recording of the protection visa interview. Of this matter, the second respondent said:
8. I have carefully listened to the applicants February 2018 Protection Visa Interview. There are times throughout the interview when the delegate expresses clear doubt about the applicant’s claims and I am willing to accept that the applicant felt stress and anxiety given the importance of the Protection Visa Interview to his ongoing visa application and his chances of staying in Australia. However, I am unable to discern any indication that the delegate instilled fear in the applicant, or that he was deprived of his capacity to participate justly and freely in the interview. My observation is that the interview proceeded on routine and straightforward lines. Where the delegate did have doubts, these were clearly articulated to the applicant (and his Migration agent who was present) in order to give the applicant the opportunity to respond to, and mitigate the delegate’s doubts. I note the applicant was able to answer questions throughout the interview and did not, to my mind, show any indication of fear. I note that despite being present throughout, the migration agent did not indicate put forward any of these issues at the time of the interview. I do not accept that the interview was unduly long, or was particularly intense and I conclude that the use of these terms in the two submissions these terms mischaracterises the tone and duration of the interview. I do not accept that the interview was unfair, unjust or unreasonable as variously asserted in the two submissions. I am not persuaded that this argument in the legal submission (or in the earlier post-interview submission) is fair or reasonable or is anything more than a spurious attempt to undermine the delegate’s decision.
Although the second respondent expressed some concerns about some of the documents provided by the applicant to prove his identity, ultimately the second respondent was satisfied of the applicant’s identity and accepted that he was an Afghan citizen of Pashtun ethnicity. The second respondent found that his receiving country was Afghanistan. The second respondent found that the applicant had no discernible links to areas in Afghanistan other than his home village and that his legal submission made clear that he would not seek to return to other locations within Afghanistan. The second respondent concluded that the applicant would reside in his former village where he owns a home and agricultural property and still has family members. His claim was assessed on that basis.
The second respondent:
a)accepted that the applicant and his wife had operated a home school that taught English to children, including female children;
b)did not accept:
i)the applicant’s claims that he and his father received threats from the Taliban as a result of running the school;
ii)that the applicant’s father was killed by the Taliban because of the school;
iii)that the applicant was ever of interest to the Taliban while in his home village; or
iv)that the applicant fled his home village in order to escape the Taliban.
As to those matters, the second respondent explained its reason for not accepting them in the following terms:
24. The country information cited above is generally supportive of the applicant’s claims about what happened in his village. However, some problems still remain with the applicants wider claims. He has characterised his interest in opening the school as being motivated by a desire to help the children of his village; nevertheless, I observe that the school operated as a ‘for profit’ private school and the motivation of the applicant appears to have been financial rather that pedagogic. There are more pressing issues with his evidence though. As noted by the delegate, it seems very implausible that the applicant could live in the same house as his parents and yet be unaware that his father was receiving threats from the Taliban due to a business owned and operated by the applicant and his wife. The applicant claims that he only became aware of the threats against his father, after he had been killed. However, on his own evidence he himself never saw the threatening letters which he says were sent to his father. Furthermore, the applicant says that he and his wife decided to continue to operate the school even after his father had been murdered for that very reason. This, to my mind, seems highly improbable. The applicant says that during the third and final threatening phone call he received, the Taliban indicated they had only then become aware that the applicant was responsible for the school which was operating from his house; but if that was the case, it is unclear why he had received the earlier two calls, since on his own evidence his father was dead by this time. This is also clearly inconsistent with his earlier claims that he personally had been threatened in the earlier calls.
25. When questioned about these issues at interview, the applicant was vague, and generally evasive. His answers were unpersuasive. He was unable to provide explanations for these issues. I note that the applicant’s problematical evidence relates to the threats he said he received. In contrast, he was able to provide comprehensive answers about other issues.
The second respondent was not satisfied that the applicant would face a real chance of harm arising from his former connection with the school. It did not accept that he or his family were targeted, or were otherwise of interest to the Taliban and as a consequence the second respondent recorded that the applicant had not been active in any political or social movements which might draw attention to him from anti-government elements in Afghanistan since arriving in Australia. Moreover, the second respondent considered that because the applicant and his wife had ceased to operate the school, the applicant would not be of any interest to the Taleban now, over six years after he had departed Afghanistan. He did not indicate at any point that he would attempt to reopen the school if he returned or had any desire to do so. The second respondent concluded that if the applicant returned to Afghanistan, he would return to his farming occupation.
The second respondent considered whether there was any risk to the applicant travelling from Kabul to Charbagh, on the basis that he would be returned to Afghanistan in Kabul and would thereafter seek to return to his home village. The second respondent found that the risk arose from the level of violence that generally existed in Afghanistan and would not be for any convention related reason.
The second respondent acknowledged that the delegate had considered whether the applicant would face harm as a failed asylum seeker and as a “westernised” Afghan. It considered that it was not necessary to address those claims as the applicant had not made any such claims and they did not arise on the materials before the second respondent. In this regard the second respondent said (footnotes omitted):
40. Notwithstanding the delegate’s decision to consider these claims, I am not persuaded that there is any need to do so. I observe that that the fast track legislative framework which underpins the IAA review process is designed to encourage applicants to put forward all their claims and supporting information upfront and does not permit the IAA to consider new claims other than in exceptional circumstances. There appears to be nothing in this framework to suggest any obligation on the part of the IAA to consider a claim that has not been made by the applicant, and is not apparent on the material. I have concluded that these claims do not arise, and so, notwithstanding the delegate’s decision, I decline to consider them further.
The second respondent determined that the applicant did not have a well-founded fear of persecution, did not meet the definition of refugee and consequently the applicant did not meet the requirements of s.36(2)(a) of the Act.
Further, the second respondent determined the applicant would not face a real chance of harm pursuant to s.36(2A) of the Act.
The second respondent affirmed the decision of the delegate not to grant a visa to the applicant.
The applicant’s grounds
The applicant asserts three grounds of review in his application. I will deal with each separately.
Ground 1
This ground is in the following terms:
The IAA having accepted that the questions asked by the delegate being irrelevant to the assessment of his protection visa claim cannot make assessment on the applicant's credibility without interviewing the client because the basis on which the delegate assesses the applicant's credibility no longer exist in order to assist the IAA in making determination on the applicant's credibility.
The genesis of this ground lies in this paragraph of the second respondent’s reasons for decision:
9. I note that throughout the applicant’s Protection Visa Interview the delegate questioned him about his family membership, financial transactions and his nationality, but ultimately did not address these issues in the s.65 decision. This treatment was identified in the legal submission as problematic. As this is a de novo review of the applicant’s claims, I will not canvas these aspects of the legal submission other than to say that I do not consider much of this material was relevant to the applicant’s claims for protection and so I have not addressed them either, other than where they are expressly (and briefly) mentioned in this decision.
The applicant’s first ground of review, in my view, is confined to the comments made by the second respondent in the above extracted paragraph. There is nothing in the second respondent’s decision to suggest that it considered all of the questions asked by the delegate to be irrelevant to the assessment of the applicant’s claims.
There is nothing in the second respondent’s reasons for decision that would suggest that despite what the second respondent said in paragraph 9 of those reasons, it thereafter took into account what the applicant had to say to the delegate in relation to those questions. As the first respondent suggests, the second respondent’s reasons demonstrate that the applicant’s answers to questions at his protection visa interview about his family members, financial transactions and nationality did not form any part of the adverse credibility findings made by the second respondent.
I have set out above, the paragraphs in which the second respondent expressed its reasons for concern about the applicant’s claims.
Further, to the extent that the applicant intends to suggest by this ground that the second respondent should have invited him to an interview before making adverse credibility findings, I accept the first respondent’s submissions that the ground must fail. There is no denial of procedural fairness or unreasonableness occasioned by the second respondent not inviting the applicant to an interview because:
a)the second respondent would ordinarily review the matter on the papers and is under no obligation to invite the applicant to an interview: ss.473DB(1) and 473DC(2) of the Act;
b)nothing in the provisions of Division 3 of Part 7AA required the second respondent to invite the applicant to an interview to assess his credibility.
In this respect, the first respondent directed my attention to observations made by Lee J in DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 at [17]:
As the primary judge found, the IAA was under no obligation to request or accept new information from the appellant, whether orally or in writing and even if requested to do so: see s 473DC(2). As to the oral interview, again, as the primary judge pointed out at [46], while the IAA has a discretion under s 473DC(1) and/or (3) to invite an applicant to an interview to give new information, it is plain that is has no duty to do so: see s 473DC(2). As the primary judge noted (at [46]):
If the [IAA] were (sic) compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be the [IAA] generally coming under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s. 473DC(2), but would also defeat the purpose of the [FTRP].
That observation was endorsed by the Full Court in DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74] where it was said:
Finally, we note the appellant’s criticisms of the IAA’s findings in respect of credibility. However we endorse the observation of Lee J in DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 at [17] that if the IAA were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be that the IAA would generally come under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s 473DC(2), but would also defeat the purpose of the fast track review process.
I accept the first respondent’s submission that the second respondent’s failure to invite the applicant to an interview reveals no error on the second respondent’s part.
I also accept the first respondent’s submission that whilst the second respondent has a discretion to invite the applicant to attend an interview, in the circumstances of the present case its failure to do so reveals no error on its part.
Ground one reveals no jurisdictional error.
Ground 2
This ground is in the following terms:
The IAA also made jurisdictional error by incorrectly finding that the applicant said Charbagh village was heavily infiltrated by members of the Taliban when he did not say so.
The second respondent set out at [11] of its reasons that the applicant claimed that his home village was heavily infiltrated by members of the Taliban. The applicant’s case is that he did not say that was the case.
But, during the course of the hearing before me, I asked the applicant about this ground and he confirmed to me that his home village was indeed heavily infiltrated by members of the Taliban. Thus, even if it is the case that he did not say those words to the second respondent, the fact recorded by the second respondent accords with the applicant’s case. Thus even if the second respondent was in error in making such a finding because there was no evidence before it to sustain that finding, it would be futile to remit the application to the second respondent on that ground alone because the fact upon which the error was based is part of the applicant’s case in any event.
Even if I am wrong about that, as the first respondent submits, the onus is on the applicant to establish that he did not say what the second respondent has attributed to him, or anything that could reasonably be summarised or paraphrased as a suggestion that his home village was heavily infiltrated by members of the Taliban. He has not placed before the Court a transcript of the protection visa interview from which one might conclude that his claims about that are correct. Moreover, in his written claims, the applicant wrote, “There are many Taliban and their supporters in my village and in Laghman”. At best, therefore, the second respondent’s reasons might be seen as an immaterial misdescription of the applicant’s evidence.
Moreover, as the first respondent submits, the second respondent’s error is an error of fact in summarising the applicant’s claims. It does not affected the assessment of the applicant’s claims. It does not demonstrate jurisdictional error.
This ground is not established.
Ground 3
This ground is in the following terms:
The IAA also made jurisdictional error by incorrectly finding that the applicant inherited the family home and agricultural land when there is no evidence to support these findings.
Again, during the course of the hearing before me, the applicant confirmed that he had indeed inherited his family home and agricultural land. The material in the court book suggests quite clearly that there was evidence to that effect before the second respondent. The delegate’s decision refers to the applicant’s statements during the protection visa interview to the effect that he owned the property and land in his home village. He told the delegate that his uncle was looking after his property and farmland. He told me the same thing when I asked him about this ground of his application for review.
This ground does not reveal jurisdictional error.
Conclusion
The three grounds of review set out in the application for review do not reveal jurisdictional error on the part of the second respondent. I have also considered the second respondent’s decision without confining a consideration of it to the three grounds set out in the application. Notwithstanding that broader consideration of the second respondent’s reasons for decision, I can discern no jurisdictional error in it.
Accordingly, the application for review must be dismissed. Costs should follow the event. The amount claimed for costs by the first respondent is less than that fixed by Schedule 1 of the Federal Circuit Court Rules 2001. I am satisfied that they are reasonable. I make the orders set out at the commencement of these reasons.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 23 January, 2020
Associate:
Date: 23 January, 2020
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