FJE17 v Minister for Immigration

[2018] FCCA 3410

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3410

Catchwords:
MIGRATION – Application for judicial review – safe haven enterprise visa – failure to provide evidence of identity – stateless person – whether the Authority failed to consider new information.

Legislation:

Migration Act 1958 (Cth), ss.7AA, 91W, 473

Cases cited:

Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337

Applicant: FJE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 502 of 2017

Judgment of: Judge Young

Hearing date: 23 October 2018

Date of Last Submission: 23 October 2018

Delivered at: Darwin

Delivered on: 23 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Barnes of Counsel

Solicitors for the Applicant: Sparke Helmore

Counsel for the First Respondent: Ms Graycar of Counsel

Solicitors for the First Respondent: Camatta Lempens Pty Ltd

ORDERS

1. That the application filed 7 December 2017 be dismissed.

2. That the applicant is to pay the Respondent’s costs in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 502 of 2017

FJE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 21 November 2017 that the applicant was ineligible for a safe haven enterprise visa because section 91W of the Migration Act applied to him in that he had failed to provide without reasonable explanation documentary evidence of his identity, nationality or citizenship.

3. The applicant is a Faili Kurd.  He arrived in Australia in 2013 along with his brother who I will describe with the initial B.  The applicant said that he was a stateless person and although resident and born in Iran he was not entitled to Iranian citizenship. 

4. He said that as a Faili Kurd his family had originated in Iraq and crossed to Iran during the Iran-Iraq War.  He said that as a result of his lack of citizenship in Iran he was subject to discrimination and persecution in Iran.  He said his family and siblings, with the exception of his brother B and a sister, were also stateless and without Iranian citizenship.

5. The applicant’s brother B said that he was a citizen of Iran.  The circumstances in which B had obtained his citizenship were the subject of some consideration during the process of the applicant’s application for a visa.  He, that is B, had at one point produced a citizenship certificate which appeared to indicate that his parents, the same parents as those of the applicant, were born in Iran and were Iranian citizens. 

6. This particular matter, the circumstances of the applicant’s family members and their Iranian citizenship or otherwise, was the subject of what has been called a “section 57 letter” prior to the delegate’s decision. It was suggested that if the applicant’s brother was a citizen then this increased the likelihood that the applicant was also a citizen. That was relevant to whether or not the applicant was able to provide a reasonable explanation for his failure to provide the identity documents referred to in section 91W of the Act.

7. Also considered by the delegate was the applicant’s conviction for assaulting his girlfriend in Adelaide sometime after his arrival in Australia. That was also referred to in the section 57 letter. 

8. Before the delegate the applicant made the claims I have described.  He also advanced a sur place claim based on his assertion that as a result of media publicity in Adelaide related to the assault on his partner that he had been identified publically in a way that created or increased a risk of persecution in Iran. 

9. The material is described in the delegate’s reasons and consist of media reports on a retaliatory attack on the applicant by his partner’s father and brother.  Those reports disclosed that the father was said to be a former leader of what is described in the delegate’s reasons as an “outlaw motorcycle gang”.

10. The delegate rejected the applicant’s claim on 7 February 2017. That decision was then referred to the Immigration Assessment Authority under the fast-track review process in Part 7AA of the Act. As part of that process a certificate was given by the Minister under section 473GA of the Act and that certificate covered certain information, including a stateless person assessment report, various media documents of the nature I have described and an internal departmental e-mail summarising the applicant’s claim and asserting that “his father-in-law” was the leader of the Comanchero motorcycle gang and an underworld figure.  That information was subsequently obtained by the applicant under a freedom of information application.  It is not in question that the material was before the Authority at the time it considered the applicant’s claims.

11. There are four grounds of review, but grounds 1 and 2 and grounds 3 and 4 are closely related, and I will consider the first two and the second two together.  Grounds 1 and 2 can be summarised as an allegation that the Authority committed jurisdictional error by failing to provide the applicant with a full transcript of his brother B’s entry interview or statutory declaration in circumstances where the Authority used his material to make an adverse finding about his credit and to assess the claims of the applicant.  It was said that the Authority was under a duty to invite the applicant to comment on all matters relevant to that issue.

12. Ground 2 recasts that material, or that factual circumstance, as an allegation that the Authority committed error through procedural unfairness or legal unreasonableness. 

13. Part 7AA of the Act provides a limited form of review. Section 473DA says that Division 3, along with section 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule.

14. Section 473DB provides that the Authority must review a decision referred to it under that part by considering the review material by the secretary under 473CB without accepting or requesting new information and without interviewing the referred applicant. 

15. “New information” is defined in section 473DC as information that was not before the Minister (or the delegate) when the decision was made and that the Authority considers relevant.

16. Subsection 473DC(2) says that the Authority does not have a duty to get, request or accept any new information, whether the Authority is requested to do so by an applicant or any other person or in any other circumstances. While the Authority may get new information not before the Minister it does not have a duty to do so. 

17. Section 473DD provides that the Authority must not consider any new information unless there are exceptional circumstances and the new information satisfies the requirements in subsection (b)(i) and (ii).

18. Section 473DE provides that new information must be given to the applicant if it has been received pursuant to section 473DD and that information would be a reason for affirming the decision.  There is no requirement to provide information other than in conformity with Part 7AA. 

19. The information in the brother’s entry interview or the statutory declaration he made was not new information.  That information was before the Minister or the delegate.  Further, it was referred to in the section 57 letter and the particulars of that information were given to the applicant. 

20. Given that the Part 7AA is an exhaustive statement of the natural justice hearing rule, I am satisfied that the Authority was not obliged and, indeed, was prohibited from seeking the applicant’s comments in the way that the applicant said that it ought to have done in relation to the so-called full transcript or full record of the brother’s statement.  In my view, these grounds have no merit and I will dismiss them.

21. In relation to grounds 3 and 4, these grounds relate to material provided pursuant to a section 473GA certificate. That section provides that certain information, if the Minister so certifies, should not be disclosed. The broad understanding of that section, I think, is that it is a statutory formulation of public interest immunity along with part (b) which relates to confidential Cabinet information.

22. I have considered whether or not the certificate is a valid one but I was referred to a number of Full Court cases including Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 that I think clearly show that an invalid certificate of itself does not give rise to jurisdictional error in the procedure under Part 7AA. This is in distinction to the procedure under Part 7 where a number of cases, including MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1, have held that an invalid certificate gives rise to error.

23. While it may be that that certificate was invalid, neither party has suggested to me in this case that that is relevant in the circumstances of a Part 7AA application or hearing. 

24. The substance of the material I have described relates to a criminal assault on the applicant’s partner by the applicant, a retaliatory attack on him by her father and brother and the father’s alleged links to an outlaw motorcycle gang.  As I said, this was raised by the applicant himself in the hearing before the delegate as part of his claim to have a sur place claim, that is, that he had been identified in Australia in a way that created or increased a risk of persecution in Iran should he be returned.

25. There are some differences between the material that was put before the delegate or, perhaps more accurately, the delegate was invited to examine himself by Googling, and the material before the Authority.  In the delegate’s reasons the partner’s father is described as the “former leader” of an outlaw motorcycle game; in the material subject to the 473GA certificate, he is described not as a “former leader” but as “the leader” of a particular motorcycle gang, the Comancheros, which is identified as an outlaw motorcycle gang.

26. However, apart from these slight differences, the material is basically the same and I am satisfied that the material that was the subject of the 473GA certificate – which, I should say, was disclosed by affidavit – is, in substance, the same material as that which was before the delegate or, perhaps more accurately, the same information that was before the delegate. 

27. The Authority said in its reasons that it regarded the information about the criminal charges against the applicant as irrelevant. That is because the issues by the time of the review before the Authority had narrowed to a single question: whether or not the applicant had a reasonable explanation for failing to provide the identity documents described in section 91W. There is no doubt that there is authority that prejudicial and irrelevant material placed before a decision-maker, particularly in circumstances where a party is not aware of that, may give rise to apprehended bias. I was directed to Minister for Immigration and Border Protection v BBS16 at paragraph [100] where the Court, in discussing a Part 7AA review, said:

    Nothing we have said above is intended to indicate that there is no scope for the bias limb of procedural fairness to apply in an appropriate case.

28. The form of bias that is alleged by the applicant here is apprehended bias, not actual bias. The  applicant relied on Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136, a decision of the Full Court of the Federal Court, where the secretary, pursuant to section 473CB, sent material to the Authority under Part 7AA about the applicant’s criminal convictions after the hearing by the delegate.

29. It was not in question, as I read AMA16, that that material was irrelevant and was highly prejudicial.  In my view, the circumstances in this case are distinguishable from AMA16.  The information about the applicant’s criminal conviction and the subsequent retaliatory attacks by persons associated with an outlaw motorcycle gang or, as was described somewhere in the materials, part of the criminal underworld, was raised by the applicant himself before the delegate as part of his claims for protection. 

30. At that stage the material was, thus, relevant. By the time the matter came before the Authority for a decision the issues had narrowed because of the requirements of section 91W of the Migration Act which, at subsection (1), says:

    The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant's identity, nationality or citizenship.

31. Subsection (2) goes on, relevantly, to say:

    The Minister must refuse to grant the protection visa to the applicant if:

    (a)the applicant has been given a request under subsection (1); and

    (b)the applicant refuses or fails to comply with a request …; and

    (c)the applicant does not have a reasonable explanation for refusing or failing to comply with the request ...

32. In the circumstances of this case where, after request, the applicant failed to provide documentary evidence of identity, nationality or citizenship without reasonable explanation it followed that there was a mandatory requirement for the Minister to refuse a protection visa.  In that way the issue was narrowed and the other claims raised by the applicant, including the sur place claim that was related to his contact with outlaw motorcycle gang figures, became irrelevant.

33. However, the material before the Authority was not, of its nature, irrelevant material.  It was rendered irrelevant by the course of the consideration of the applicant’s claims and the narrowing of the legal question to be answered.  The bias rule is not necessarily excluded by Part 7AA but the material was introduced by the applicant himself before the delegate and the Authority, although not referring to this material directly, had expressly said that it considered the criminal conviction against the applicant to be irrelevant. 

34. In my assessment, these circumstances, having regard to the test set out in the High Court’s decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, which I will paraphrase as where a fair-minded lay observer may suspect that a decision-maker would not bring an unprejudiced mind to bear and/or may not make a decision according to the merits, do not satisfy the test for apprehended bias.

35. The other aspect of the Ebner test requires an applicant or the person asserting apprehended bias to point to the logical connection between the fact or matter that is said to have created bias and the risk that the decision-maker would not decide a matter according to its merits. In my view, that is not an abstract question and depends very much on the nature of the allegedly prejudicial material and the nature of the decision-making process. Here, the Authority defined its task, correctly, as deciding whether or not there was a reasonable explanation under section 91W. Everything else was irrelevant, including the applicant’s character.

36. In circumstances where the Authority went to some trouble to identify what was the relevant question it appears to me that a well-informed lay observer taking into account all of those matters would not consider that there was a risk that the decision would not be made according to its merits.  In my view, apprehended bias is not made out.  I dismiss grounds 3 and 4. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  22 November 2018