FJD18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 926

Federal Circuit and Family Court of Australia

(DIVISION 2)

FJD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 926  

File number(s):

MLG 3099 of 2018

Judgment of:

JUDGE YOUNG

Date of judgment:

19 October 2022

Catchwords:

 MIGRATION – application for judicial review of decision by the Immigration Assessment Authority affirming the decision of the Minister’s delegate to refuse the applicant a protection visa – whether the Authority failed to consider relevant new information  

Legislation:

 Migration Act 1958 (Cth) Pt 7AA ,s 473DD

Cases cited:

APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BVD17 v Minister for Immigration and Border Protection [2019] 268 CLR 29

 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

Division:

Division 2 General Federal Law

Number of paragraphs:

16

Date of hearing:

19 October 2022

Place:

Darwin

Counsel for the Applicants:

Mr Kikkert

Solicitor for the Applicants:

Cifuentes Lawyers

Counsel for the Respondents:

Ms Battiste

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

MLG 3099 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FJD18

First Applicant

FKJ18

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	19 OCTOBER 2022

THE COURT ORDERS THAT:

1.The application of 15 October 2018 be dismissed.

2.The Applicants are to pay the cost of the First Respondent fixed in amount of $7,853.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 14 September 2018 to affirm a decision of the Minister’s delegate made on 20 April 2018 to refuse the applicant a protection visa.  The applicant in this matter, FJD18, has an infant child whose application is also before me but the child’s application depends on acceptance of the same grounds as those advanced by the mother.  The husband of FJD18 has also made an application for a protection visa but he and the Minister have agreed that the hearing of his application should be adjourned pending the outcome of this application because the same issues arise.

2. The applicant is an Iranian citizen of Persian ethnicity.  She claims that at the age of 20 she fell in love with her present husband, who is identified in the Authority’s reasons by the single letter ‘R’.  The applicant said her family were opposed to her relationship with R because he is some 10 years older than her.  She said she was forced to marry another man, identified by the letter ‘A’ in the Authority’s reasons.  She said she was very unhappy in that marriage and attempted suicide after a short time. A was then persuaded to agree to a divorce.

3. The length of the cohabitation between the applicant and A is somewhat unclear in the evidence but it was somewhere between a few days and a few weeks.  The applicant obtained a divorce.  For reasons which are not entirely clear, it was relevant to the terms of the divorce whether she was still a virgin.  She was examined medically and an official document was produced that declared the applicant remained a virgin.  She married R soon after her divorce.  According to the documents, the marriage to A was on 2 May 2009, the divorce was granted in August 2009 and the applicant married her present husband, R, in May 2010.  Those matters were not in real dispute before the delegate or the Authority.

4. In 2013 the applicant, her husband R and their child arrived in Australia.  The applicant’s refugee claims arise from the circumstances described above.  She claimed that A did not truly accept the divorce and continued to harass and threaten her, her husband and, later, their child.  She said A was the son of a man with connections to the police and intelligence services and who has the capacity to harm them.  Most significantly, for the present application, she said that she faced prosecution for adultery under Iranian law because she had maintained a sexual relationship with R while still married to A.  The potential penalty for adultery in Iran is death.

5. The delegate was not satisfied that the applicant faced such a risk and was significantly influenced by the fact that she had been examined and officially declared a virgin at the end of her marriage to A and at the time of the divorce.  The applicant provided vague evidence about the nature of her relationship with R while married to A.  In her entry interview she did not raise her adulterous relationship with A at all, rather she pointed to her husband’s business difficulties in Iran.  In the applicant’s statement of claims, prepared by migration agent and dated 11 January 2017, the applicant merely said, “However, even after my marriage I still kept my relationship with [R].”  The statement also said that she feared the death penalty should she return to Iran. There is no detail about the nature of the relationship and, as noted, she was officially declared a virgin at the time of the divorce.  The delegate did not accept that the applicant committed adultery. 

6. In submissions to the Authority, the applicant sought to have new information considered under section 473DD of the Migration Act 1958 (Cth) (“the Act”). That new information was, in summary:

   (1)That her sexual or adulterous relationship with R during her marriage to A did not involve penetration; and

   (2)That due to her cultural background she was embarrassed to raise this claim in any previous interview because, on each occasion the interpreter was male, even though the interviewers were female. 

   The Authority refused to consider the new information because it was not satisfied that the requirements of section 473DD of the Act were met.

7. The Authority’s reasoning is set out at paragraphs [6] to [9] of its reasons. In broad terms, the Authority:

   (1)was not satisfied, having regard to issues of prior inconsistency and failure to raise matters earlier, that the information was credible for the purpose of section 473DD (b)(ii); or,

   (2)on another interpretation, the Authority accepted this was credible personal information for the purpose of subsection 473DD (b)(ii) but it was not satisfied there were exceptional circumstances for the purpose of subsection 473DD(a).

8. Ground 1 is “The Authority fell into jurisdictional error in that it did not perform the procedural duty imposed on it by section 473DD of the Act in its conduct of the review.”  The particulars assert that the Authority did not make a separate assessment or treat the elements in subsection 473DD(a) and (b) as distinct and failed to consider the entirety of the circumstances justifying consideration of the new information.  It may be accepted, having regard to the cases cited by the applicant, that the criteria in subsection 473DD(a) and (b) are cumulative and distinct and while it is necessary to consider subsection 473DD(b), the overall circumstances to be considered in deciding whether there are exceptional circumstances in subsection 473DD(a) extend beyond the matters in subsection 473DD(b): Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23.

9. Both the applicant and the Minister interpret paragraph [7] of the Authority’s reasons as indicating that the Authority was satisfied the new information was credible personal information and subsection 473DD(b)(ii) was satisfied. (It was not asserted that subsection 473DD(b)(i) was in issue).  I should say, that on my own reading of paragraph [7], I consider that it is at least arguable that the Authority was not satisfied that the new information was credible. Paragraph [7] contains an analysis of the reliability of the information having regard to inconsistent statements of the applicant, that is, an analysis of credibility or reliability rather than truthfulness. However, given the common position of the applicant and the respondent on this, I am prepared to accept that the more likely interpretation is that offered by the applicant. 

10. The applicant says that a reading of the Authority’s reasons suggests that it ceased its analysis under section 473DD after concluding that the applicant had failed to raise the relevant claim, that is, adultery involving non-penetrative sex, when she had had ample prior opportunity. Then, according to the applicant’s submission, the Authority failed to go on to separately assess whether there were exceptional circumstances under subsection 473DD(a). The Authority concludes its discussion of whether or not to consider the new information by saying:

    Taking everything into consideration, I am not satisfied there are exceptional circumstances to justify considering this new information.

11. In my opinion, the Authority was indicating not a category confusion between subsection 473DD(b)(ii), on the one hand, and subsection 473DD(a) on the other hand, but saying that these factors were relevant to the question of whether or not there were, “exceptional circumstances” justifying the consideration of the new information.  The matters raised in paragraph [9] are:

    (a)the applicant’s claim was raised late;

    (b)there had been earlier opportunities to raise the claim; and

    (c)the explanation offered for raising the claim late was unconvincing: in particular, the alleged cultural inhibitions about raising sexual matters before a male had not prevented the applicant raising the matter with her male migration agent.

12. I am not satisfied that the Authority has confused the categories between subsection 473DD (a) and (b). I am satisfied that the Authority has first considered the matters in subsection 473DD(b) and separately the matters in subsection 473DD(a), although, I accept that the emphasis on the late raising of the claim by the applicant appears reflective of the criteria in subsection 473DD(b)(i). However, the Authority is not required to adopt a formulaic approach to its statutory task under section 473DD: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [79]. This ground is not made out.

13. Ground 2 alleges that, “The Authority fell into jurisdictional error as the first applicant was not provided with a fair opportunity to present her case and the decision was not a bona fide attempt to exercise the Authority’s power.”  The particulars set out under that ground raise matters which might broadly be described as complaints of a lack of procedural fairness.

14. In my view, the ground is not arguable in its present form. The effect of BVD17 v Minister for Immigration and Border Protection [2019] 268 CLR 29 is that procedural fairness is not the lens through which to examine Part 7AA of the Act, the fast track review process, except to the extent that procedural fairness or unfairness overlaps with the question of unreasonableness. This is recognised by the applicant because ground 3 raises a more conventional unreasonableness argument.

15. Ground 3 says:

    The Authority fell into jurisdictional error as it was legally unreasonable for the Authority to not consider the new information in the submission dated 17 May 2018 in circumstances where the first applicant had not been able to present her case due to the presence of male interpreters at the entry (arrival) interview and at the SHEV interview.

16. The particulars are, essentially, the same as those raised in ground 2 and are, in my view, indistinguishable in any practical way from the matters raised in ground 1. An unreasonableness claim sets a high bar in circumstances where the Authority, without error, was not satisfied that exceptional circumstances to justify consideration of the new information existed.  If so, it appears difficult, if not impossible, to establish that that conclusion was unreasonable.  The Authority set out the grounds for not being satisfied that there were exceptional circumstances to justify a consideration of the new information and I have discussed those above.  I am not satisfied that the refusal of the Authority to consider the new information was, having regard to those reasons, unreasonable.  Grounds 2 and 3 are also not made out.  The application is dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       8 November 2022