FLW17 v Minister for Immigration

[2018] FCCA 1285

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLW17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1285

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to exercise its power under s.473DD of the Act – no jurisdictional error made out – amended application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5J, 36, 473CB, 473DB, 473DC, 473DD, 473DE, 473DF, 476

Cases cited:
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Applicant: FLW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3877 of 2017

Judgment of: Judge Street

Hearing date: 21 May 2018

Date of Last Submission: 21 May 2018

Delivered at: Sydney

Delivered on: 21 May 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 8 May 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3877 of 2017

FLW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 9 November 2017 under Part 7AA of the Act affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Egypt and his claims were assessed against that country. The applicant arrived in Australia on 16 July 2013, as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise visa on 15 September 2016.

3. The applicant claimed to be a Shia convert from Egypt and claimed that he feared harm from the Muslim Brotherhood in Egypt because he is regarded as an apostate from the Sunni faith.

4. On 25 September 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate did not accept the applicant had converted from Sunni to Shia Islam when living in Egypt and was not satisfied the applicant was differentially targeted and harmed by the Muslim Brotherhood in Egypt. The delegate did not accept the applicant generally feared being harmed for religious reasons if he returns to Egypt. The delegate noted the applicant claimed he had attended Friday prayers at a mosque in Arncliffe and that he had not attended any other mosques in Australia and that mosque was identified as a Shia mosque. The delegate found that if the applicant had attended that mosque in Arncliffe, the applicant had engaged in such conduct for the sole purpose of strengthening his claim to be a refugee and accordingly had to be disregarded in determining whether the applicant had a well-founded fear of persecution.

5. In relation to complementary protection, the delegate referred to taking into account the applicant’s claim that he had attended Friday prayers at the Al Zahra mosque in Arncliffe and noted that there was no evidence to corroborate the assertion that the applicant had done so and referred to the finding that such activity were for contrite reasons in order to bolster the applicant’s claims that he is a refugee. The delegate found the applicant would not practice or adhere to the doctrine of Shia Islam if he returned to Egypt because he’s not a genuine convert to Shia Islam and there is no evidence before the delegate which indicates that persons who have attended the Al Zahra mosque in Arncliffe would be subjected to significant harm as a necessary and foreseeable consequence of being removed to Egypt. The delegate found the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence if removed from Australia to Egypt.

The Authority

1. The Authority wrote to the applicant on 29 September 2017, explaining that the application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information and the letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information.

2. The applicant did provide further submissions and documents to the Authority dated 26 October 2017, and the Authority noted, to the extent that the submissions engaged with the delegate’s reasons, that the submissions did not constitute new information.

3. The Authority expressly referred to a letter dated 17 October 2017, which was unsigned and was purported to be written by the “Manager/Director” and stated that the applicant regularly attended the centre for lectures, congregation, prayers and celebrations for over three years. The letter stated as follows:

   We are happy to see him as part of our community as his presence is pleasant as he is a kind-hearted, honest and righteous individual. He continuously encourages mateship, abides by the rules of the community and helps other members in the community as well.

4. The Authority found that the letter itself post-dated the delegate’s decision and for that reason could not have been provided to the delegate before the decision was made. The Authority found the applicant had not satisfied the Authority that the letter constitutes credible personal information which was not previously known and which if known, may have affected the Authority’s consideration of the applicant’s claims. The Authority referred to it being unclear what the particular entity “Husseineyat Al Yassin” is. Nonetheless, the Authority noted that the letter made no mention of anything to do with the Shia faith and did not confirm that the applicant is a practising Shia. The Authority noted that the letter stated that the applicant had been attending the centre for three years, whereas at the Temporary Protection visa interview, the applicant stated that in Sydney he had only attended the Al Zahra mosque which was in Arncliffe. In those circumstances, the Authority noted the letter was unsigned and found the letter was of no assistance in assessing the applicant’s claim to be a convert to Shia Islam, or in addressing the delegate’s findings that the applicant’s attendance at a Shia mosque in Sydney was not conduct engaged in otherwise and for the purpose of strengthening his claims to refugee status. The Authority referred to the extremely limited probative value of the letter and the fact that the applicant claimed at the Temporary Protection visa interview to have been attending Shia services and it would have been open to him to provide proof of that to the delegate even if he was not on notice that his conversion was in issue. It was in those circumstances, that the Authority was not satisfied they were exceptional circumstances which justify consideration of the letter.

5. Relevantly, in the Authority’s reasons dated 9 November 2017, the Authority made adverse credibility findings and did not accept the applicant converted to the Shia faith in Egypt, or that he had attended lectures by Sheikh Shehata, or prayed as a Shia Muslim in his home. Further, the Authority found that even if the applicant had attended a Shia mosque and Shia worship in Sydney, the Authority was satisfied this was for the purpose of strengthening the applicant’s claims to refugee status and accordingly, it was disregarded under s 5J(6) of the Act.

6. In relation to complementary protection, the Authority noted the significant doubts about the applicant’s overall credibility because the Authority did not accept that the applicant had converted to Shia faith or attended Shia worship in Egypt. The Authority expressed serious doubts about the applicant’s claim that he attended a Shia mosque in Sydney and found that even if he had done so, the Authority was not satisfied that this was evidence of a genuine conversion to or adoption of Shia faith.

7. The Authority was not satisfied on the basis of the credible evidence that the applicant would wish to follow the Shia sect on return to Egypt. The Authority was not satisfied that even if the applicant has attended a Shia mosque in Sydney that this would be known to any individual or group in Egypt who may wish to harm the applicant as a consequence. The Authority was not satisfied the applicant would face a real risk of harm in Egypt even if he had attended a Shia mosque in Sydney.

8. The Authority found there were not substantial grounds for believing that, as a necessarily foreseeable consequence of the applicant being returned to Egypt from Australia, there is a real risk that the applicant will suffer significant harm. The Authority found the applicant failed to meet the criterion under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The ground of the amended application is as follows:

   Ground 1

   The Authority failed to undertake its statutory task as required by s.473DD of the Migration Act.

   Particulars

   The applicant contends that the Authority fell into error in the course of deciding whether to consider new information furnished by the application to the Authority, specifically a letter from Hussaineyat Ale Yassin dated 17 October 2017 at page 314 of the Court Book. The Authority dealt with the issue of new information in its reasons at [5-8], however the authority failed to make an obvious and simple inquiry relating to the letter, being an Internet search of the website of Hussaineyat Ale Yassin recorded on the letter, or alternatively a phone call to the organisation’s phone number recorded on the letter. It was legally unreasonable for the Authority not to make this inquiry. The Authority’s failure to make this inquiry was a jurisdictional error.

2. Mr Zipser of counsel on behalf of the applicant, submitted that this was a case where the Authority’s failure to exercise the power under s 473DC(1) of the Act to make enquiries as to the nature of the entity Husseineyat Al Yassin, or to get information in relation to the same, was legally unreasonable. Mr Zipser drew the Court’s attention to the Authority’s reasons, which referred to it not being clear what that entity was. Mr Zipser submitted that in the circumstances, it was legally unreasonable for the Authority not to take further steps, either to contact the telephone number on the document, notwithstanding it was unsigned, or to engage in further enquiry of the applicant, or to take steps to identify the identity through an internet search.

3. In that regard, Mr Zipser put on an affidavit by his solicitor identifying the website at which the relevant entity, Husseineyat Al Yassin, could be found and that on that website the entity was identified as a Shia Islamic centre. That information identified a contact address in Carlingford Street, Sefton, as well as an ASIC search that identified Husseineyat Al Yassin incorporated to be a registered body.

4. Objection was taken to the tender of the material by the first respondent on the basis of relevance. I accept that the material is not admissible for the purpose of proving a jurisdictional error, or to show that it was legally unreasonable for the Authority not to exercise its powers. It is however, admissible on the question of materiality if it were to arise. It is for that reason that the Court permitted the tender of the material, subject to relevance.

5. Mr Zipser of counsel, through his submissions, both orally and in writing, took the Court through the legislative scheme under Part 7AA of the Act, and took the Court to the various sources of information that the letter itself identified; being a website, a street address and a mobile number, as well as an ACN number.

6. Mr Zipser submitted that the Authority had the power to get new information under s 473DC of the Act and whilst there were constraints as identified under s 473DB of the Act nonetheless, Mr Zipser submitted that there was a power that could not be the subject of legal unreasonableness in respect of the failure to exercise the same. In that regard, Mr Zipser took the Court both to the significance of the applicant’s claims in relation to the alleged conversion in the Authority’s reasons, as well as to the subject matter of the new information and took the Court to authorities in relation to the principles identifying legal unreasonableness and in particular Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [67] – [82].

7. The Court notes the High Court of Australia has more recently confirmed the application of the principles of legal unreasonableness in relation to the powers under s 473DC of the Act in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16. I do not accept that the letter unsigned with the high level information described correctly by the Authority was material information that gave rise to circumstances in which it could be said to be legally unreasonable for the Authority to fail to exercise its powers under s 473DC(1) of the Act or in that regard under s 473DC(3) of the Act. Materially, the Authority was under no duty to get, request or accept new information as identified under s 473DC(2) of the Act. The nature of the process is one which, subject to the exercise of powers under ss 473DC, 473DD, 473DE and 473DF of the Act, the Authority must review the fast track reviewable decision by considering the review information provided to the Authority under s 473CB of the Act without accepting or requesting new information and without referring it to the applicant. It is apparent on the face of the Authority’s reasons in the present case that the Authority took into account the information under s 473CB of the Act.

8. Mr Zipser submitted that an enquiry of Google was an obvious inquiry that could easily be made in the context of the Authority’s reference to it not being clear what the entity is. The Authority’s reasons reflect that the Authority understood the substance of the letter in relation to the applicant’s attendance at particular locations for particular sessions over a particular period. It was not the Authority’s task to take steps in the circumstances of the present case to obtain further information in relation to the applicant’s alleged conversion to the Shia faith. It was apparent from the delegate’s decision that this was a both dispositive issue before the delegate and clearly an issue of which the applicant was alive to and seeking to address in the submissions and new information which was provided to the Authority. The Authority provided rational and logical reasons that supported the finding that there were not exceptional circumstances to justify considering the letter. That reasoning of the Authority was not legally unreasonable. There was no obvious, easily ascertainable information that the Authority could take steps to access to determine whether the applicant had genuinely converted to the Shia faith. Identifying the nature of the entity described in the letter is not something that would have been an easily ascertainable fact in respect of a critical matter that would assist in the determination of the material issue in the present case, being whether the applicant had converted to the Shia faith.

9. Indeed, the Authority took into account the possibility that the applicant had attended mosques of the Shia faith in its adverse determination. The Authority also pointed out inconsistencies between the alleged attendance at the particular centres for lectures, congregation, prayers and celebrations for over three years and the information that had been provided at the Temporary Protection visa interview. In those circumstances, the unsigned letter and its contents did not in the circumstances of the present case, give rise to circumstances in which it was legally unreasonable for the Authority to fail to exercise its power under s 473DC of the Act to get or seek further information in respect of the entity Husseineyat Al Yassin.

10. I do not accept the Authority was uncertain as to the entity being one in respect of which it is alleged that the applicant had attended congregation, prayers and celebrations for over three years. The circumstances of the present case found by the Authority are not submitted to be legally unreasonable by the Authority, rather it is alleged that it was legally unreasonable for the Authority to fail to make enquiries to get further information in relation to the entity Husseineyat Al Yassin under s 473DC of the Act. I accept the first respondent’s submission that the Authority’s assessment of the letter was not affected by any legal error and that it is relevant to take into account the absence of any accompanying explanation in relation to the significance of the same in determining whether or not there is any legally unreasonable exercise of power. Further, there was no request in the present case for the Authority to exercise any power under s 473DC of the Act. The failure to examine the power under s 473DC of the Act in the circumstances of this case cannot be said to lack an evident and intelligible justification.

11. I accept the first respondent’s submission that the Authority undertook the task by reference to the terms of the document itself and the absence of any explanation provided in support of the document’s significance. There was nothing evidently unintelligible about the consideration of whether a document had met the applicable statutory criteria without recourse to further information sourced by the Authority itself where that further information involving investigation of matters beyond the document. That is particularly so in the circumstances of the present case where the applicant was given the Authority’s letter to which I have referred, with a copy of the Practice Direction and giving the applicant an opportunity to put on submissions and new information and stating that the Authority must be satisfied there are exceptional circumstances to justify considering new information. There is no failure by the Authority to undertake this statutory task required under s 473DD of the Act and no legally unreasonable failure by the Authority to exercise the power to make inquiry as alleged in ground 1 of the amended application.

Conclusion

1. Accordingly, as the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  27 June 2018