Fon17 v Minister for Immigration
[2020] FCCA 2173
•7 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FON17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2173 |
| Catchwords: MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority acted unreasonably by not considering whether to exercise or by not exercising the power under s.473DC of the Migration Act 1958 (Cth) to obtain new information. |
| Legislation: Migration Act 1958 (Cth), s.473DC |
| Cases cited: ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 |
| Applicant: | FON17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3929 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 17 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hochroth |
| Solicitors for the Applicant: | Norton Rose Fulbright Australia |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 17 November 2017 into this court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3929 of 2017
| FON17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) dated 17 November 2017 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Safe Haven Enterprise visa (SHEV).
The Applicant, a Shia Muslim and a citizen of Iraq, arrived in Australia in September 2012. He participated in an arrival interview on 21 September 2012. The record of interview bears a notation that the Applicant had a brother in Sydney who had been granted a protection visa.
On 10 January 2017 the Applicant applied for a SHEV. In a statutory declaration in support of his visa application, the Applicant claimed that in Iraq he had worked with his brother (A) who operated a hairdressing shop in their home town. He was informally trained as a hairdresser by A. He claimed that in 2010 A secured work providing hairdressing services to the staff of an American company that was working in the area sweeping mines.
The Applicant claimed that subsequently members of the Al Sadr Shia militia visited the hairdressing shop and demanded to know why A was providing services to the Americans. The Applicant also claimed that during 2010 they began to do western style haircuts. He claimed that A received several threatening letters from a related Shia militia and was summoned to the Al Sadr office to explain his actions. The Applicant claimed that A was in extreme danger because of threats from the militia.
The Applicant claimed that in July 2010 A’s friend (K), whose father had a contact with the American company, was killed by gunmen while taking his children to school. He claimed that A believed the militia killed K and that he was also a target. A left Iraq on 8 October 2010 to seek asylum in Australia.
The Applicant claimed that on 16 October 2010 gunmen shot at and damaged the hairdressing shop which he was operating. He also claimed that shortly after A left Iraq their 16 year old step-brother (H) was shot while riding his motorbike and subsequently died. He claimed that he knew that H was shot by the militia because they had been receiving threatening letters from the militia, which were placed underneath the shop door. The Applicant claimed that he lodged a formal complaint against the militia, but that the police did not take any action.
In addition, the Applicant claimed that because he had visited the Al Sadr militia office in an agitated state demanding to know who shot his brother H, he was suspected of being responsible for a subsequent shooting at that office in which a militia member was injured. He claimed that members of the militia came to his home and told his mother they suspected he had shot at the office. He claimed that he hid from the militia and worked on a friend’s farm for 18 months, but that after the militia learnt of his whereabouts he moved again and then left Iraq in August 2012.
The Applicant claimed to fear he would be killed or seriously harmed by the militia group which killed H and threatened A. He claimed the militia believed that he had attacked their office and shot one of their members and that they considered him a traitor because the family hairdressing business had provided services to the Americans in the region, whom they considered infidels.
The application was refused by a delegate of the First Respondent on 6 October 2017. As the delegate’s decision was a fast track reviewable decision, it was referred to the Authority on 12 October 2017.
On 13 November 2017 the Applicant’s representative sent a written submission to the Authority which reiterated the Applicant’s claims and contained legal argument addressing the delegate’s decision.
On 17 November 2017 the Authority affirmed the decision not to grant the Applicant a SHEV. I note that the record of arrival interview had recorded the Applicant’s middle name as his family name. The Applicant was initially referred to by the Department of Immigration (the Department) by this (incomplete) name. As discussed in the delegate’s decision, the Applicant subsequently corrected this error. The corrected name was used in the delegate’s decision and in the Applicant’s submissions to the Authority. However the Authority’s acknowledgment of referral and the Authority’s decision reverted to referring to the Applicant by the name in the record of arrival interview. There is, however, no issue raised as to the identity of the Applicant.
The Authority’s decision
In its reasons for decision the Authority summarised the Applicant’s claims as elaborated on before the delegate, including his claim that his brother A had been granted a protection visa in Australia.
The Authority understood that the Applicant claimed to fear harm from members of a Shia militia group because they considered him to be a traitor because his brother A, or their hair dressing business, had provided haircuts to employees of an American mine clearance company in 2010; because they disapproved of his and A’s provision of impermissible western style haircuts; and because they believed that the Applicant was responsible for a 2010 attack on their office.
The Authority accepted that from 2003 to 2010 the Applicant worked as a barber or hairdresser in the business established by his brother A. It found that the hairdressing shop was primarily A’s business.
The Authority considered the Applicant’s claim that in 2010 his brother A was employed to cut the hair of employees of an American company following an introduction from K, whose father worked for that company. However the Authority found that there was no documentary evidence regarding “this” employment (presumably that of A) and limited information about how these services were delivered. The Authority noted that in his SHEV application the Applicant had stated that A “secured work with this American company providing hairdressing services to their staff’”, whereas during the SHEV interview he had said that A “used to work for an American company” and that A was first threatened in 2010 after members of the Shia militia saw him “going to work in the company, and also they came to the shop as well”.
The Authority found:
12. The applicant’s description of his brother A’s provision of hairdressing services to the employees of the American mine clearance company suggests that A did not simply provide haircuts to individual employees of the American mine clearance company who visited his shop in the manner that he provided services to other customers. Rather, his evidence suggests that A was employed, or contracted, by the company to provide services to its employees as a group. He said that A was seen on his way to, or entering, the premises of the company to deliver these services. As mentioned, the applicant claimed that ‘also they came to the shop as well’. I find it surprising that the company would have permitted A to deliver his services to its employees in his own hairdressing premises given that the benefits of contracting A for this purpose would appear to have included the ability to secure his services for their employees for a dedicated period of time on their own, presumably more secure, premises.
The Authority was “willing to accept that the applicant’s brother A was employed or contracted by an American mine clearance company for a number of months during 2010 to provide hairdressing services to its employees”. The Authority found that while providing those services, “A continued to operate his hairdressing business” with the Applicant. It was also “willing to accept that A occasionally provided hairdressing services to employees of the American company in the hairdressing shop”, but found that “A generally provided his services to the employees of the American company on the company’s premises”.
The Authority found that the extent of the Applicant’s involvement in cutting the hair of American company employees was “unclear”. It observed that the Applicant’s evidence in his SHEV application and interview had largely referred to A’s employment by the American company and that he did not claim to have been employed by the company himself. It also had regard to the fact that in his SHEV application the Applicant did not claim to have cut the hair of the American mine clearance company employees or of any other Americans. The Authority observed that at the SHEV interview, when discussing who he thought might want to harm him and why, the Applicant had suggested that “militia group members consider him a traitor because his brother A worked with the Americans providing hairdressing services to them” and also that the militia believed that he had attacked the militia office and shot a member. The Authority acknowledged that at the SHEV interview the Applicant had also stated that the last time he cut the hair of an American was in 2010 “with his brother”, claimed that the Shia militia hated “them” because “they” used to work with the Americans and cut their hair, and that the Applicant’s representative had stated that the Applicant had been a hairdresser to the Americans.
However the Authority found that the omission from the SHEV application of any reference to the Applicant’s own involvement in cutting the hair of company employees or any other Americans and his “tendency” to link his own involvement to A’s provision of such services, led it to question whether the Applicant himself had provided any haircuts to employees of the American mine clearance company.
The Authority also noted that while in the Applicant’s biodata (arrival) interview he had claimed that he had received threats to his life because he was cutting the hair of “US forces” and that “they” were threatened because “they” did this, he had not repeated the claim about US forces in his SHEV application or interview. The Authority considered it “unlikely” that the reference to US forces was intended to be a reference to cutting the hair of employees of the American mine clearance company. It considered that the Applicant would have been aware of the difference between US military personnel and employees of a private mine clearance company. As the Applicant did not advance this claim in his SHEV application or interview, the Authority did not accept that “the applicant, or his brother A, provided any hairdressing services to members of the US forces”.
The Authority considered that the Applicant had been “deliberately vague” in his evidence concerning his own involvement in cutting the hair of employees of the American company to give the impression that he had a higher level of involvement in those activities than he did. The Authority did not accept that the Applicant had provided any hairdressing services to employees of the American company in the hairdressing business or in any other location in 2010. It found that he had serviced a local clientele in the hairdressing shop.
The Authority noted that the Applicant had referred to the Shia militia groups who threatened and attacked his family by three different names, that he had not provided a copy of any of the written threats which he claimed were left under the door of the business or any other information as to their content which may have identified the source of the threats. The Authority found it “odd” that the Applicant “had no clearer idea of the source of the written threats”, but noted that they appeared to be directed to his brother A and found that it was “at least possible” the Applicant did not see them. It accepted that the Applicant might use various names interchangeably to refer to the same Shia militia.
The Authority found that the Applicant’s evidence suggested that Shia militia groups had an adverse interest in A primarily because of his work for the American company, and also due to his provision of “western hairstyles”. It had regard to the fact that while in his written statement the Applicant had claimed that both he and A provided western hairstyles in 2010, there was no evidence before the Authority regarding the types of western hairstyles the Applicant or his brother had provided or as to how often or to whom they provided these styles. It acknowledged that the Applicant had explained at the SHEV interview that such hairstyles were considered “haram” or religiously impermissible by Shia militia who had killed many barbers for this reason and that A or his family received the following threat: “Don’t work with the Americans and you are cutting hair in western styles”.
However the Authority found:
20. In the applicant’s statement accompanying his SHEV application, he said that he feared that if he returned to Iraq he would be killed or harmed by Shia militia groups because these groups believe that he attacked their office and shot one of their members, and because his brother A had provided hairdressing services to Americans. He did not refer in this context to any fears based on his or A’s past cutting of western hairstyles. The applicant did not refer to any threats related to A’s or his own cutting of western hairstyles during the SHEV interview other than the threats already discussed, which he said referred both to A’s work for the Americans and to western haircuts. When asked during the SHEV interview what he thought would happen to him if he returned to Iraq, the applicant said he feared that Shia militia would kill him. When asked why they would try to kill him, the applicant said that whether you are still working with the Americans or not, if you have you worked for the Americans in the past, they will kill you. He did not refer to any fears based on his or A’s cutting of western hairstyles. The applicant did not refer to his brother A’s, or his own, cutting of western hair styles, or any threats or fears related to this in his bio data interview. In that interview, he referred only to cutting the hair of members of the US forces, a claim I have not accepted.
The Authority accepted that country information indicated that hairdressing or barbers shops considered to be behaving in an “un-Islamic” way had been targeted in attacks by extremist groups in Iraq in the past. It observed that there was information that the enforcement of strict Islamic rules “appeared” to have eased, but noted that occasional attacks had been reported.
While the Authority was “willing to accept” that “in the course of their business, the applicant and his brother A cut some western hairstyles”, despite the “limited evidence provided by the applicant about his and his brother A’s involvement in cutting western hairstyles”. Having regard to country information suggesting that attacks on barbers and hairdressers in Basra were rare “at this time”, the Authority did:
... not accept that the applicant or his brother A were threatened by, or were of any adverse interest to, members of any Shia militia group, or any other armed group, because of their involvement in cutting western hairstyles or because they worked as hairdressers or operated a hairdressing business.
The Authority acknowledged that there was information suggesting that some individuals associated with the international community, particularly the US Government, had been targeted in attacks in Iraq, including by Shia militia groups. However it stated that having regard to “the low level and limited nature of A’s employment by the American mine clearance company”, it had “some reservations” about the “veracity of the applicant’s claim that A was threatened by Shia militia groups”. Nevertheless, it did not consider it “entirely implausible” and was “willing to accept” that A had received one or more written threats and that he “may have been visited” by members of Shia militia groups due to his employment by the American mine clearance company. However, it did “not accept that these incidents were related to any provision of western hairstyles or the fact that A and the applicant operated a hairdressing business”.
The Authority also addressed the Applicant’s claim that A’s friend K (whose father was said to have worked for the American mine clearance company) was killed in about July 2010 while dropping his children off at school and that A believed that Shia militia were responsible for K’s death and left Iraq because he thought that he would be similarly targeted. The Authority observed that during the SHEV interview the Applicant had indicated that it was K’s father who was killed by Shia militia, but that this apparent inconsistency had not been discussed during the interview. On the “limited and inconsistent evidence” before it (“including the limited evidence as to why A believed Shia militia to be responsible for the death”), the Authority was not satisfied that Shia militia were responsible for the death of K or his father. While it was willing to accept that A left Iraq in October 2010 “for reasons related to the threats he received” from a Shia militia group, it did “not accept that [A’s] departure was prompted by any fears related to K or K’s father’s death”.
The Authority considered the Applicant’s claim that he continued to operate the hairdressing business following A’s departure from Iraq until 16 October 2010 when the shop was shot at and badly damaged by a Shia militia group. It referred to what was said to be a copy and translation of a record of the Applicant’s statement to the local police on 16 October 2010. However the Authority noted that this document was handwritten with no letterhead. It had concerns about the document’s authenticity given its unofficial appearance and also agreed with the delegate that as the document purported to be a record of the Applicant’s own statement about the incident, it was of limited corroborative value.
The Authority found it “somewhat difficult to accept” that the Applicant “happened” to be at the shop when this claimed incident occurred and stated that it appeared that the aim of the attack was to damage the shop, rather than to harm the Applicant. It considered that it was not apparent why the militia would fire on the shop just after it closed, in sight of the Applicant, or why the militia would continue to target the shop after A had complied with their demands, stopped cutting the hair of American company employees and had left Iraq. It reiterated that it did “not accept… that the applicant or A was of any adverse interest to Shia militia on the basis of his provision of any western hairstyles or the operation of the hairdressing business”.
Having regard to what it found was the “implausibility” of the Applicant’s claims in relation to this incident and its “concerns” in relation to the documentary evidence provided, the Authority did not accept that this incident occurred. It accepted that the shop closed when or after A left Iraq, but considered it “highly likely that this was because the business was primarily A’s business”.
The Authority addressed the Applicant’s claim that in October 2010 his younger brother H was shot at while riding his motorbike and died in November 2010 as a result of his injuries. The Applicant attributed this shooting to Shia militia because “we” had received threatening letters at the shop. When asked about threats to the family, the Applicant had referred only to the threats to A left under the door of the shop. On the limited evidence before it, the Authority did not accept that the Applicant or any member of his family, other than A, had received any written or other threats from Shia militia groups for any reason.
The Authority found it difficult to accept that a Shia militia group would have such a level of interest in H, as the brother of A who cut Americans’ hair, that they would attempt to kill H, particularly as A had left Iraq and the hairdressing business had ceased to operate. It was not satisfied that Shia militia were involved in the events leading to H’s death or that the Applicant believed that his step-brother H was killed by Shia militia, rather than in an accident. While it accepted that H had died, the Authority was of the view that the Applicant had “advanced this claim in order to provide a pretext for his claimed subsequent visit to the office of a Shia militia group in an enraged state”. The Authority did not accept that the Applicant visited the office of any Shia militia group or yelled at or abused militia members for any reason. Nor did it accept that Shia militia went to the Applicant’s home looking for him because they suspected him of involvement in an attack on their office.
The Authority noted that the Applicant’s evidence in relation to when the claimed visit by Shia militia to his family home occurred had varied. It was concerned that he had provided “quite different” information in his SHEV application and interview. The Authority saw this as a significant inconsistency in the Applicant’s evidence.
In light of country information, the Authority also found it “implausible” that the Applicant would be of such a level of adverse interest to Shia militia groups that two or more carloads of armed members would travel to his family home with the intention of killing him due to his connection to A who had “provided hairdressing services to employees of an American mine clearance company for a limited period” and who had left Iraq. It reiterated that it did “not accept that the applicant or his brother A were threatened by, or were of any adverse interest to, members of any Shia militia group” on the basis that they provided western hairstyles or operated a hairdressing business. It did not accept that members of a Shia militia group had visited the Applicant’s home looking for or seeking to kill him for any reason.
The Authority did not accept that at the time the Applicant left Iraq he was of any adverse interest to any Shia militia group, or any other armed group, “due to A’s involvement in providing haircuts to employees of an American mine clearance company”; “any perception that the applicant was involved in or associated with the provision of such services to an American company or US forces”; “due to A’s or [the Applicant’s] provision of any western-style haircuts”; “due to A’s or [the Applicant’s] operation of a hairdressing business”; or for any other reason. It continued:
43. There is recent information before me to suggest that individuals who are perceived to be associated with international companies may still be targeted in attacks by armed groups. I have found that the applicant did not personally provide any services to employees of an American mine clearance company or to US forces, and was not of any adverse interest to Shia militia groups, or any other armed group, on the basis of any perceived association with the provision of these services at the time he left Iraq. Having regard to the applicant’s lack of any personal involvement in the provision of services to employees of an American company or US forces, to the junior and limited nature of the services provided by A to the employees of the American company, and to the passage of time since A was involved in these activities, I do not accept that the applicant would be of any future adverse interest to any Shia militia group or any other armed group on this basis on his return to Iraq.
44. I have not accepted that the applicant was of any adverse interest to Shia militia groups on the basis that he provided any western hairstyles, or on the basis that he had worked as a hairdresser at the time he left Iraq. Given the passage of time since the applicant worked as a hairdresser in Iraq, I do not consider that he would be of any future adverse interest to members of Shia militia groups, or any other armed group, on the basis of his past hairdressing work in Iraq, including any past provision of western hair styles.
(footnote omitted)
Having regard to the absence of evidence of recent attacks on barbers or hairdressers in Basra province, the Authority was of the view that if the Applicant were to work as a hairdresser in Basra again, even if he were to cut western hairstyles and even having regard to A’s past employment by an American company, he would not be of any future adverse interest to Shia militia groups or any other armed groups.
The Authority also concluded that there was not a real chance of harm to the Applicant now or in the foreseeable future as a result of the security situation, including violence, in Basra province, having regard to country information and the Applicant’s individual circumstances.
The Authority stated that, having considered “all the evidence” before it, including the Applicant’s Shia faith, his history and his profile, it was not satisfied that there was a real chance of harm to the Applicant in Basra province for any reason now or in the foreseeable future.
In considering the complementary protection criterion, the Authority stated at paragraph 55 of its reasons:
I have concluded that there is not a real chance of harm to the applicant in Basra province as the brother of a man who provided haircuts to employees of an American mine clearance company in 2010, as a former hairdresser who provided some western hairstyles in the past and may work as a hairdresser and provide some western styles in future, as a Shia Muslim, as a result of the security situation in Basra, or as a result of any combination of these matters. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa) on these grounds.
(footnote omitted)
These proceedings
There are two grounds in the amended application. They were addressed together in submissions. They are as follows:
1. The IAA failed to conduct a review as required by s 473DB of the Migration Act 1958 (Cth) because it acted unreasonably by not considering whether to exercise the power under s 473DC to obtain new information, namely information from the Departmental file relating to the protection visa application made by the Applicant’s brother.
2. The IAA failed to conduct a review as required by s 473DB of the Migration Act 1958 (Cth) because it acted unreasonably by not exercising the power under s.473DC to obtain new information, namely information from the Departmental file relating to the protection visa application made by the Applicant’s brother.
PARTICULARS
a. The IAA member was aware that the Applicant’s brother had been successful in his application for an Australian permanent protection visa.
b. The IAA member was aware, or ought to have been aware that the Departmental file relating to the protection visa application made by the Applicant’s brother was likely to contain information relevant to assessing the Applicant’s protection claims.
c. If the IAA has exercised its power under s.473DC to obtain the Departmental file relating to the protection visa application made by the Applicant’s brother, the IAA would have become aware that the Applicant’s brother had made a statement on 30 December 2010 in which he stated:
i. That he cut the hair of US officers, both at his hairdressing shop and at their base;
ii. That the Applicant’s step-brother had been targeted by the Al Sadr movement, shot at, and killed in revenge for the Applicant’s brother’s involvement with the Americans and for having performed anti-Islamic work for his barber shop; and
iii. The father of a friend of the Applicant’s brother father (sic) was killed while taking his children to school and this was one of the reasons the Applicant’s brother fled Iraq.
d. The information referred to in (c) above was relevant to the Applicant’s claims and to an assessment of the Applicant’s credibility.
e. If the IAA had obtained the information referred to in (c) above, the IAA could have formed the view that the information should be considered under s 473DD of the Act.
f. In the premises, if the IAA had considered exercising its power under s 473DC of the Act, and/or had exercised that power, the outcome of the IAA’s decision could have been different.
Section 473DC of the Act provides:
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new 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.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The Applicant submitted that the Authority’s powers to “consider” whether to exercise its power to get new information under s.473DC and (if it engaged in such consideration) to “get” such information had to be exercised within the bounds of reasonableness (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18). Reliance was placed on Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 at [82]; DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 at [45]; BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 at [44] and [49].
It was submitted that an unreasonable failure to exercise either such power could render invalid a purported performance by the Authority of the duty imposed on it by s.473CC of the Act to conduct a review (see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], [49] and [71]).
The Applicant pointed out that there was no reference in the Authority’s reasons to any consideration of whether to exercise its power under s.473DC to get any new information. It was contended that in the circumstances of this case it could be inferred that the Authority did not consider exercising that power (see CRY16 at [75]). The Applicant acknowledged that a mere failure by the Authority to consider exercising or to exercise its power would not, in itself, establish jurisdictional error (DPI17 at [39]). However it was submitted that in the particular circumstances of this case the Authority had acted unreasonably in failing to consider getting, or getting, documents in Department of Immigration files relating to A’s protection visa application.
The Applicant acknowledged that to establish legal unreasonableness it was necessary to identify the asserted failure with precision; to examine the terms, scope and purpose of the statutory power which the decision-maker was said to have failed to consider; and to evaluate the failure to determine whether it had the character of being legally unreasonable, for example in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense (see CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [51] and DPI17 at [38]).
While it was recognised that Part 7AA of the Act provided a significantly limited review process, the Applicant also referred to authorities which supported the proposition that a failure by an administrative body with inquisitorial powers to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, could amount to a constructive failure to exercise jurisdiction or a legally unreasonable decision (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [51]; Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [63]).
The Applicant contended that in this case the information provided to the Authority by the Secretary of the Department (as identified in a checklist in the courtbook) did not include any information drawn from any files held by the Department in relation to the Applicant’s brother A and his successful protection visa application. There was no evidence or suggestion that such information was before the delegate who made the original decision in relation to the Applicant.
It was submitted that the information that the Authority could have obtained under s.473DC (had it considered whether to do so) included a written statement by A of 30 December 2010, which was apparently submitted to the Department in support of his protection claims, and the Department’s Refugee Status Assessment (RSA) Record of 25 February 2011 in which a case officer of the Department made a determination that A was a refugee within the meaning of the Refugees Convention. The Applicant relied on an affidavit of Nadine Darling affirmed on 19 July 2019 which annexed copies of A’s written statement and the RSA Record which were released by the Department in response to a request under the Freedom of Information Act 1982 (Cth).
The Applicant pointed out that in the written statement A had provided in support of his own protection visa application, A had made a number of claims in relation to his activities in Iraq. Subsequently these activities were relied on by the Applicant. The Authority considered that there was limited information about aspects of the claims about A’s actions and motivation, but made findings about such matters, which were of fundamental importance to the Applicant’s claims, even though, in all probability, there would have been directly relevant information in A’s file to resolve such shortcomings.
The Applicant submitted that some evidence from A’s protection visa application file was directly inconsistent with the Authority’s reasoning and findings about A on which its conclusions were based, in particular the fact it did not accept that the Applicant’s brother A provided any hairdressing services to members of the “US forces”; that A was threatened by or was of adverse interest to members of any Shia or other militia group because of their involvement in cutting western hairstyles or because either of them worked as hairdressers or operated a hairdressing business; that threats A received and visits by members of a Shia militia group were related to any provision of western hairstyles or the fact that A operated a hairdressing business; that A’s departure from Iraq was prompted by any fears related to the death of K or K’s father; or that H was killed by Shia militia.
It was pointed out that, relevant to A’s work for the Americans, in his statement in support of his protection claims A had claimed that his friend’s father had a contract with the “US forces” to remove mines in a particular area in Iraq and that “US officers” used to come to A’s hairdressing shop to have their hair cut; that A had been told by members of the Al Sadr movement (the Shia militia group referred to in the Authority’s decision as feared by the Applicant) that he was in collaboration with the American occupiers and that he was shaving beards and cleaning people’s faces with a thread, which was “haram”; that, as the Applicant also claimed, A had heard that his step-brother H had been shot and killed in cross fire on his way to work and suspected that members of the Al Sadr movement had targeted H in revenge for A’s involvement with the Americans and the fact he had performed anti-Islamic work in his barber shop; and that A’s friend’s father was killed in an ambush while taking his children to school, and that this was one of the reasons that A had decided to seek protection outside Iraq.
Counsel for the Applicant referred to various parts of A’s statement which addressed issues about A’s actions and motivation which were of particular concern to the Authority in considering the Applicant’s protection claims based on his relationship to A. It was pointed out that this material provided evidence about what A claimed he had done in Iraq and why, and indicated what was accepted in the assessment of A’s protection visa application.
The Applicant also noted that the RSA Record in relation to A’s protection claims included the following (RSA Record, page 12):
On the evidence before me, I accept that the claimant faces a real chance of persecution on return to Iraq because of his religion or imputed political opinion for being a hairdresser and a supporter of the coalition.
I accept that the claimant is a secularised Shia Muslims (sic). I also accept that the claimant is a hairdresser by profession. Furthermore, I also accept that the claimant was targeted in Iraq because of his occupation as a hairdresser. Furthermore, I accept he was perceived by Islamic fundamentalists/insurgents as being anti-Islam because of his professional (sic) i.e. hairdresser.
I also accept that the claimant as a hairdresser was contracted to provide his services to US civilians working for the coalition forces and as a result incurred the wrath of the Al Sadr movement.
While the Applicant acknowledged that the RSA officer had not expressly accepted all of A’s evidence, it was pointed out that no adverse credibility findings had been made in respect of A and suggested that A’s evidence had apparently been generally accepted as credible. The RSA officer was satisfied “having carefully considered the claimant’s account in terms of detail, internal consistency and credibility in relation to country information” (RSA Record, page 14) that A had a well-founded fear of persecution. Further, the RSA officer had accepted A’s claim that as a hairdresser he was perceived as and targeted for being anti-Islam by Islamic fundamentalists and also that because he provided his services to US civilians working for the coalition forces he would be targeted by the militia.
The Applicant submitted that the terms and scope of s.473DC of the Act plainly extended to getting new information of this kind, as information that was not before the delegate when he made the decision in relation to the Applicant which was obviously capable of being considered by the Authority to be information which “may be relevant”. It was also contended that the apparent purpose of s.473DC(1) was to relax the restrictive rule in s.473DB of the Act so as to enable the Authority to get further information which appeared to be relevant to the assessment of a fast track review applicant’s claims, as the information in A’s statement and RSA Record was said to be.
The Applicant submitted that in light of the terms, scope and purpose of s.473DC(1), in the particular circumstances of this case it was legally unreasonable for the Authority not to consider exercising (or to exercise) its power to get what information there was on A’s protection visa file for the purpose of assessing the Applicant’s claims. It was submitted that such failure could be described as plainly unjust, irrational, or lacking in an evident or intelligible justification in circumstances where the Authority had been made aware that A had come to Australia and had been granted a protection visa; it was obvious that A’s protection claims would overlap with the critical factual matters on which the Applicant’s protection claims relied; the Authority could have obtained the Department’s files relating to A’s protection visa application quickly and easily; and where the documents would be relevant to an assessment of the Applicant’s credibility in a case in which the Authority would otherwise reject the Applicant’s claims essentially on credibility grounds.
In particular, the Applicant suggested that in circumstances where the Authority doubted the veracity of many of his claims about the events which prompted him to leave Iraq and seek asylum in Australia, where it was of the view there was limited evidence about A’s actions, where the Applicant’s claims were necessarily bound up in claims that many of the same events had prompted his brother A to similarly depart Iraq and seek asylum in Australia, and where A had been granted a protection visa in Australia, there was no rational basis for the Authority not to consider getting the information from A’s protection visa file for the purpose of assessing the Applicant’s claims.
The First Respondent contended that to succeed the Applicant must first establish, as a fact, that the Authority had failed to consider exercising its power under s.473DC to get new information. It was pointed out that the Applicant bore the onus of establishing the factual foundation for a conclusion that such a failure or the failure to get such new information constituted jurisdictional error (see VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67]; ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [25]). While it was acknowledged that in particular circumstances it may be legally unreasonable for the Authority not to consider exercising or not to exercise its discretionary power, it was submitted that such circumstances would be rare because there is an area of decisional freedom in which administrative decision-makers are entitled to operate (Li at [28] per French CJ).
The First Respondent submitted that in this case the court would not draw an inference that the Authority had failed to consider getting any new information, because in giving reasons for an ultimate decision to affirm or remit, the Authority was not required to give reasons for the non-exercise of a procedural power such as that conferred on it by s.473DC(1) of the Act: BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34 at [16] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [50] per Thawley J; CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [26]–[29] per Bromwich J. On this basis it was contended that the Applicant had not established that there had been a failure by the Authority to consider exercising its power under s.473DC of the Act.
In any event, the First Respondent submitted that even if the court were to be satisfied that the Authority had failed to consider exercising its discretionary power to get new information, it was not compelled or to consider exercising, or to exercise, such power. The First Respondent noted that, as stated by the High Court in M174/2016 at [23], s.473DC was “entirely facultative”. It was submitted that while questions of legal unreasonableness required consideration of the facts of a particular case, the kinds of circumstances that had led to findings of unreasonableness in the context of s.473DC demonstrated that the present case was not in such a category (cf. CRY16 at [82]; see also DPI17).
It was contended that the fact that information the Authority might have obtained might be said to have been relevant in its assessment of the Applicant’s claims did not, in itself, point to legal unreasonableness in the Authority’s failure to consider getting, or to get, that information. The First Respondent submitted that the question of whether the Authority had proceeded in a legally unreasonable way had to be considered by reference to the information the Authority had before it (although it was conceded that the information from A’s protection visa file annexed to Ms Darling’s affidavit may be relevant to materiality if legal unreasonableness was established). Further, it was noted that while the Authority is not obliged to procure information even if requested to do so by an applicant, in this case no such request had been made by the Applicant.
The First Respondent also submitted that it appeared on the material before the court that the Applicant and his brother A did not seek protection for the same reasons. A was the business owner, for whom the Applicant claimed to have worked as an employee. Further, A’s refugee status assessment was conducted in 2011 in circumstances where he had arrived at Christmas Island in November 2010, whereas the Applicant left Iraq in August 2012. The First Respondent argued that even if a positive assessment had been made of A’s claims that had some relation to the Applicant’s claims, nonetheless it remained for the Authority to determine the review in relation to the Applicant for itself without reference to outcomes in other cases. It was also submitted that the fact that parts of A’s claims might be said to be similar to the Applicant’s claims did not, of itself, corroborate the Applicant’s claims, even if A’s claims had been accepted as truthful. It was suggested that there was no evidence before the court as to which of A’s protection claims were actually accepted as truthful by the Department.
The First Respondent submitted that evidence such as the RSA Record and the statement of a person who “purports to be” the Applicant’s brother A did not establish that it was unreasonable for the Authority not to obtain that information.
It was also contended that had the Applicant wished to put before the Department, or the Authority, information of the kind annexed to the affidavit of Ms Darling in order to assert that his circumstances were similar to those of his brother, he could have taken steps to obtain that information, as he had now done. It was said not to be incumbent on the Authority to get information in order to assist the Applicant to make out his case and that any such suggestion ran contrary to the Authority’s functions under Part 7AA.
Consideration
It is not in dispute that powers conferred by statute such as those under s.473DC of the Act, must be exercised reasonably. In DPI17 Griffiths and Steward JJ found (at [35]) that the plurality’s judgment in M174/2016 (Gageler, Keane and Nettle JJ) established the following in relation to Part 7AA of the Act:
(1) as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);
(2) the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);
(3) the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]);
(4) the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);
(5) although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and
(6) s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).
As stated by the plurality in M174/2016 at [21], an unreasonable failure to exercise a power conferred on the Authority under Division 3 of Part 7AA of the Act “can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review”.
Notably, in DPI17 Griffiths and Steward JJ also referred (at [37]) to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 and other authorities in emphasising that legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [47] and SZVFW at [84]). Their Honours stated that:
… the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases…
In addition, Griffiths and Steward JJ pointed out that the starting point for analysis in a case which raises the ground of legal unreasonableness is not through a “natural justice lens” (and see DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 at [60] and [72]) and observed that (as the Applicant conceded) a mere failure to consider the exercise of the power in s.473DC did not, “of itself”, involve error, let alone jurisdictional error (DPI17 at [37] and [39]).
Nonetheless, it was accepted in DPI17 that, as stated in DGZ16 at [70] (cited in DPI17 at [42]), “there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3)”. As Griffiths and Steward JJ observed in DPI17 at [42], this statement from DGZ16 “serves to underline the central importance of paying close attention to the particular facts and circumstances in which the issue of legal unreasonableness is raised”.
In addition, in DPI17 at [38] their Honours referred with approval to the steps identified by Thawley J in CCQ17 at [51] as essential in determining whether an established failure to consider exercising a discretionary power was legally unreasonable, that is:
(1) identify the failure with precision;
(2) examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
(3) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
Subsequently, in BJK17 at [41] the Full Court of the Federal Court summarised relevant principles in the context of considering legal unreasonableness in the exercise of power under s.473DC of the Act as follows:
Powers conferred by statute must, ordinarily, be exercised reasonably: Li, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). The power conferred upon the Authority by s 473DC to get “new information” is subject to that requirement: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 (“M174”), 607 [21], 613 [49], 618 [71] (Gageler, Keane and Nettle JJ), 620-621 [86] (Gordon J), 624 [97] (Edelman J); DPI17 v Minister for Home Affairs (2019) 366 ALR 665 (“DPI17”), 667 [36] (Griffiths and Steward JJ), 689 [91] (Mortimer J). There are no fixed categories of circumstances by reference to which a failure to exercise, or consider exercising, the discretion might be impugned as legally unreasonable: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641, [42] (Thawley J). Rather, an assessment of whether, in any given case, the exercise or non-exercise of the discretion is attended by legal unreasonableness must, of necessity, be case-specific: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [42] (Allsop CJ, Robertson and Mortimer JJ). A decision will not be impugned as legally unreasonable simply because it is one about which different minds might form different views: Plaintiff S111/2017 v Minister for Immigration and Border Protection (2018) 263 FCR 310, 328 [66] (Perry J, with whom McKerracher and Charlesworth JJ agreed).
The preliminary issue in this case is whether I am satisfied that the Applicant has established on the balance of probabilities (see DPI17 at [44] and ASB17 v Minister for Home Affairs (2019) 268 FCR 271; [2019] FCAFC 38 at [46]-[49]) that it should be inferred that the Authority in fact failed to consider the exercise of its power under s.473DC(1) to get new information, consisting of information from the departmental file relating to the successful protection visa application made by the Applicant’s brother A.
I have borne in mind that, in giving reasons for its ultimate decision to affirm or remit, the Authority “is not required to give reasons for the exercise or non-exercise of a procedural power” (see BVD17 at [16]) such as that conferred by s.473DC(1) of the Act.
It is the case that in BCQ16 Thawley J did not infer from the lack of reference in the Authority’s reasons to consideration of a discretionary power under a provision in Part 7AA (in that case, the power in s.473GB(3)) that the Authority had failed to consider whether or not to exercise that discretionary power in the course of its review (and see BCQ16 at [47]-[48]). However Thawley J acknowledged in BCQ16 at [50] that:
… there might not be particular circumstances in which it is appropriate to draw an inference that a discretionary power was not considered by reason, wholly or partly, of the absence of a reference to the discretion in the reasons…
Indeed his Honour observed that CRY16 may be an example of such a case. CRY16, like the present case, involved the power in s.473DC (cf. CVS16 at [26]-[29] which focussed on the power in s.473DD).
In CRY16 the primary judge had found that the Authority had not considered whether or not to exercise its powers under ss.473DC and 473DD (see CRY16 v Minister for Immigration and Border Protection [2017] FCCA 1599 at [21]). On appeal, the Federal Court understood that the Minister accepted that finding. Relevantly, the Court also agreed with that conclusion, observing (at [75]-[76] ) that there was no reference to those powers in what were described as 47 paragraphs over 9 pages of the Authority’s decision, in circumstances where the Authority knew or must be taken to have known that a question of significance to its reasons (relocation) had not been considered by the delegate and depended on the particular circumstances of the visa applicant (from whom new information could have been requested).
While I do not take the absence of reference to s.473DC in otherwise detailed reasons to be determinative, the same may be said in this case. There was no reference to the power in s.473DC in 56 paragraphs over 13 pages in the Authority’s reasons. As discussed below, that was in circumstances where the Authority knew that issues of significance to its reasons in relation to an aspect of the Applicant’s claims (A’s past activities, threats he received and his beliefs or motivation) which had not been doubted by the delegate and depended on the particular circumstances of A. It knew that A had applied for and had been granted a protection visa by the Department, from which new information from A’s file could have been obtained.
I have also had regard to the fact that the Authority stated at paragraphs 3 to 4 of its reasons in relation to the information before it:
3. I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act).
4. On 13 November 2017, the applicant’s representative provided a submission to the IAA. The submission reiterates the applicant’s claims and contains legal argument addressing the delegate’s decision.
In these paragraphs the Authority was indicating the material which it had considered and the nature of that material. It can be inferred from the reference to the content of the representative’s submission that the Authority did not consider that the submission contained any new information. These paragraphs are to be seen in light of the fact that A’s activities, receipt of threats and beliefs were central to the Applicant’s claims. The Authority was aware that (as noted in the record of the Applicant’s arrival interview) A had successfully sought protection in Australia. It is apparent that this was made known to the Department at the time of the Applicant’s arrival interview in which he explained his claim by reference to what he and his brother A did and disclosed A’s presence in Australia. The departmental officer recorded that this brother held a protection visa. Further, in his statement in support of his protection visa application the Applicant made clear the extent to which he claimed to fear harm as a member of A’s family, as well as because of his own activities, and explained that A was a permanent resident of Australia. Relevantly, the Applicant claimed that he was viewed by the Shia militia as a traitor because his brother A worked with the Americans by providing hairdressing services to them.
Consistent with the Authority’s awareness that A had been granted a protection visa, it noted this fact in summarising the Applicant’s claim. In my view, had the Authority, on the information before it, turned its mind to the question of whether to obtain information from the departmental file relating to A’s protection visa application, it could be expected that it would have mentioned this in the context of indicating the material to which it had regard. However, the Authority gave no indication that it had considered whether to exercise the s.473DC power.
I have borne in mind that in ASB17 (cited in DPI17 at [44]) the Full Court of the Federal Court had regard to the fact that while there was no express reference to consideration of the exercise of the s.473DC power, the Authority’s reasons were not entirely silent on that issue. The Court was of the view in that case that the Authority’s statement that “no further information was obtained or received” (emphasis added) was an “indication” that the Authority may well have considered whether to exercise the s.473DC power. In those circumstances the Court considered that the visa applicant in ASB17 had failed to prove that it was more likely than not that the Authority had not given any consideration to whether or not to exercise the power in s.473DC of the Act.
However, in this case not only was there was no such “indication” of consideration of the exercise of the discretion in the Authority’s reasons, but also the Authority went directly to the question of what it accepted about A’s conduct and motivation on the basis of the Applicant’s evidence, notwithstanding some apparent limitations, uncertainty and omissions. It did so in circumstances where it took a different approach in that respect to that taken by the delegate (see DPI17). The delegate had accepted that A had a profile of some interest to the militia “for collaborating with the Americans, providing them with hairdressing services”.
In so far as the First Respondent referred to the fact that the Applicant did not ask the Authority to get such new information, that is not a precondition to consideration of or to the exercise of the s.473DC discretionary power. In any event, the Applicant’s clear and repeated references to his brother A’s past activities as a significant part of the basis for his claimed fear of harm and his disclosure of the fact that A had been granted a protection visa may be viewed as an implied request (or at least an expectation) that the Authority would, at least, consider exercising its discretion to get information from A’s protection visa application file.
In the particular circumstances of this case, had the Authority considered exercising the discretion under s.473DC(1) and discarded that possibility in relation to such potentially relevant information, it can be expected that it would have explained its reasoning. It did not do so.
I am satisfied that it can be inferred that the Authority did not consider exercising the discretion under s.473DC(1). The Authority’s failure can be identified as a failure to consider whether to get information from A’s departmental file in relation to his protection claims (see CCQ17 at [51]) as well as a failure to get such information. It is necessary to consider whether either such failure was legally unreasonable.
As explained in CRY16 at [77]-[88], the analysis of legal unreasonableness “must be founded in the terms in which both powers and discretions are conferred” and the broader statutory context. The Authority had power under s.473DC(1) (set out at [42] above) to get any documents or information (new information) that was not “before” the Minister (or delegate) when the decision under review was made and which the Authority considered relevant (see M174/2016 and CRY16 at [69]). There is no suggestion in this case that the information in A’s departmental file was not “new information” within s.473DC. It is also not in dispute that the Authority had a discretion, rather than a duty, to get such new information. However this is not determinative (see CRY16 at [69]-[70]).
While s.473DB requires the Authority to conduct a review of a decision referred to it under s.473CA by considering the review material provided to it under s.473CB “without accepting or requesting new information”, that is subject to Part 7AA, including s.473DC. I accept that, as the Applicant contended, the apparent purpose of s.473DC(1) is to relax the restrictive rule in s.473DB so as to enable the Authority to seek further, “new”, information which it considers may be relevant to the assessment of a fast track review applicant’s claims, consistent with the objective of providing a mechanism of limited review that is quick, free of bias and consistent with Division 3 of Part 7AA (see s.473FA).
As stated in CRY16 at [82]: “The legislature is to be taken to intend that the Authority’s statutory power in s.473DC will be exercised reasonably”. It is necessary to consider the particular factual circumstances of this case in evaluating whether the Authority’s failure to consider exercising its s.473DC(1) power was legally unreasonable. It is relevant in this regard that, as indicated, the delegate accepted the Applicant’s claims about the activities of his brother A before A left Iraq. The delegate understood and proceeded on the basis that A fled Iraq in October due to his role in cutting the hair of Americans and his association with them; that A used to cut western hairstyles; that A had received several threatening letters; that A had been summonsed to attend a Shia militia office to explain his actions and that A fled the country after his friend, K, was killed by gunmen and due to the threats against him by Shia militia.
The delegate found that A was the primary owner of the hairdressing business in which the Applicant worked and, importantly, accepted that in October 2010 when A left Iraq he “had a profile of some interest to the militia for collaborating with the Americans, providing them with hairdressing services”. The delegate made no findings adverse to the Applicant in relation to his claims about A’s past activities. Rather, the delegate did not accept that after A’s departure the Applicant was targeted or threatened by the militia. Hence the delegate did not accept that the alleged attack on the shop by the militia had occurred or that anyone in the family, other than A, was threatened or that any threats were received by the Applicant or his family after A’s departure from Iraq.
However the Authority proceeded in a different manner (see DPI17). As described above, it made a variety of findings about the past activities of A of significance to its reasons which were based solely on the limited evidence before it. This was so notwithstanding the fact that it was, or should have been, obvious to any decision-maker in the position of the Authority on the information before it, that A’s successful protection claims would, in all probability, overlap with the critical factual matters on which the Applicant’s protection claims relied (not that they merely “might” do so), and that documents in departmental files relating to A’s protection visa application would be of relevance to the assessment of critical factual matters relevant to the Applicant’s credibility. However the Authority did not consider whether to get such information.
A significant basis for the Applicant’s claims that he feared the Shia militia was that they considered him to be a traitor because the family hairdressing business provided services to Americans. This claim was based substantially on the prior activities of A. The Authority reached its own view as to the extent and nature of A’s involvement with the Americans based on matters which included the absence of any documentary evidence before it regarding A’s employment and the limited information about how those services were delivered by A. The Authority also decided, based on the limited evidence before it from the Applicant, that A generally provided his services to employees of an American mining clearance company on the company’s premises. These were matters on which it would obviously have been likely that A would have given evidence in support of his protection visa application (as he did).
While I accept that the issue of legal unreasonableness must be considered in the context of the information that was before the Authority, the existence of such information in the part of A’s departmental file now in evidence is consistent with what the Authority would or should have expected would be found in A’s file and also demonstrates the materiality of the Authority’s failure to consider getting or to get such information.
One of the particular matters of concern to the Authority was that while in his arrival interview the Applicant had claimed that “they” had received threats because “they” were cutting of the hair of “US forces”, this claim had not been repeated in those terms in the departmental interview. The Authority had not considered it likely that the reference to US Forces was intended to be a reference to cutting hair of employees of what it understood was an American mine clearance company. On this basis the Authority did not accept that the Applicant or his brother A had provided any hairdressing services to members of the US Forces. It made this finding notwithstanding that its concerns about A’s activities were likely to have been addressed in documents from A’s protection visa application file. Despite this, the Authority did not turn its mind to whether it should get such information. As the Applicant pointed out, A’s evidence in his statement included a claim that his friend’s father had a contract with the US Forces to remove mines in a particular area in Iraq and that “US officers” used to come to his hairdressing shop to have their hair cut. He explained when the Americans came to his shop and also when, how and why he went to the American “base” (through Iraqi and US checkpoints) to work as a hairdresser.
The Authority also found, on the “limited evidence” before it, that it did not accept that the Applicant or his brother A were threatened by or were of any adverse interest to members of any Shia militia group or any other armed group because of their involvement in cutting western hairstyles or because they were hairdressers or operated a hairdressing business. It did so notwithstanding the approach taken by the delegate and the fact that it was aware that A had been granted a protection visa and that it appeared that the Applicant’s claims were largely based on A’s activities. The Authority did not even consider whether to inquire of the Department as to the basis for A’s protection claims. It was, or should have been, clear to the Authority that there would be material in that file (such as the evidence in A’s statement and indeed the approach of the decision-maker) that would be expected to be relevant to such matters (as indeed there was). Thus, A explained in his statement that he had been threatened by members of the Al Sadr militia (the Shia militia group which the Applicant also claimed to fear) because he was in collaboration with the American occupiers and because he was shaving beards and cleaning people’s faces with a thread, which was “haram”.
The veracity of the Applicant’s claims that A was threatened by Shia militia groups was of considerable significance to the Applicant’s application and to the Authority’s findings. In that context, the Authority made a finding about the level and nature of A’s employment by an American company, which it found was “low level and of a limited nature”. Further, although the Authority was prepared to accept that it was not entirely implausible that A had received one or more written threats from Shia militia groups and may have been visited in the shop due to his employment by the American company, it did not accept that these incidents were related to any provision of western hairstyles or the fact that A or the Applicant worked as hairdressers or operated a hairdressing business.
Again, these were matters about which it should have been obvious to the Authority that in all probability there was evidence readily available in the departmental file in relation to A’s successful protection visa application which would address the shortcomings in the Applicant’s evidence about A’s activities, of direct relevance to the Authority’s consideration of the basis for the Applicant’s claim for protection. I note that A’s statement recorded a claim that he had been threatened by the Al Sadr militia because he shaved people’s beards with a blade, which was against Islamic rules. He also referred to hairdressers in the area who had been attacked for this reason and killed. The statement also explained, with some specificity, the extent of the involvement of A with the Americans, both in the shop and at what A explained was the American “base”. He explained that when called into of the office of the Al Sadr militia he had been told that he was in “collaboration” with the American “occupiers”.
A further matter of concern to the Authority was what was said to be “limited and inconsistent evidence” as to why A believed Shia militia were responsible for the death of K or his father. The Authority did not accept that A’s “departure from Iraq was prompted by any fears that related to K or K’s father’s death”.
As the Applicant submitted, it was legally unreasonable in these particular circumstances where there would have been information readily available in a departmental file relevant to these matters, including what A believed in relation to the involvement of Shia militia in this death and its motivation, for the Authority not to consider getting such information.
Relevant to the materiality of the Authority’s failure, A explained in his statement in support of his protection visa application that the father of his friend had a contract “with the base”. According to A, his friend used to pick him up in his car, which had the required security clearance to enter the “base”. A also explained that he suspected that members of the Al Sadr militia had observed him entering the base on 5-6 occasions as they had to travel through Iraqi as well as US checkpoints and that as a result he had been targeted and threatened. He had also explained that it was because of the killing of his friend’s father, as well as the threats he had received, that he decided to leave Iraq.
Further, it would or should have been obvious to the Authority that information in A’s protection claims, as recorded in his departmental file, would likely have been of direct relevance to the issue of the Applicant’s credibility in relation to the claim that his younger step-brother H was shot and killed and that A suspected that members of the Al Sadr militia had targeted H. The Authority found, however, that the Applicant advanced this claim to provide a “pretext” for his claimed subsequent visit to the office of the Shia militia group in an enraged state. In addressing this aspect of the Applicant’s claims, the Authority found it difficult to accept that members of a Shia militia group would have such a level of interest in H as the step-brother of A, a person who cut Americans’ hair, that they would attempt to kill him. It would have been directly relevant to the credibility of this aspect of the Applicant’s claims for the Authority to consider whether such a claim had separately been made by A in support of his own protection visa application. Had the Authority considered getting, and had it obtained, documents from A’s successful protection visa application file, it would have seen that A claimed that he suspected that members of Al Sadr had targeted H in revenge for A’s involvement with the Americans and for having performed anti-Islamic work in his hairdressing shop, such as shaving beards with blades and cleaning men’s faces with a string.
I note also that the RSA decision-maker accepted that A faced a real chance of persecution on return to Iraq because of his religion or imputed political opinion for being a hairdresser and a supporter of the coalition; that he was targeted in Iraq because of his occupation as a hairdresser; and that he was perceived by Islamic fundamentalists and insurgents as being anti-Islam because of his profession as a hairdresser. In addition, the RSA decision-maker accepted that A, as a hairdresser, was contracted to provide his services to US civilians working for the coalition forces and as a result incurred the wrath of the Al Sadr movement. While the departmental case officer did not expressly accept all of the evidence of A, the officer made no adverse credibility finding and, it would appear, generally accepted A’s evidence as credible, being satisfied that he had well-founded fear of persecution “having carefully considered [A’s] account in terms of detail, internal consistency and credibility in relation to country information”.
While it would, of course, have been open to the Authority had it obtained information from A’s file, to conclude that such information did not resolve its concerns (or, indeed, to find that information therein raised concerns about the credibility of the Applicant’s account), it did not proceed in that manner. Rather, it rejected significant aspects of the Applicant’s claims relating to A’s past activities on the basis, in part, of adverse findings in relation to A’s past activities and motivation. It was not legally reasonable for it to proceed in that manner without considering whether to get evidence in the possession of the Department that was likely to be highly relevant to these critical matters.
I bear in mind that legal unreasonableness (in the sense explained in Li and other cited authorities) involves a stringent standard, such that it is only an exceptional case in which it will be established. However in the particular and unusual circumstances of this case, having regard to the terms, scope and purpose of s.473DC(1) of the Act and the nature of a Part 7AA review, I am satisfied that it was legally unreasonable for the Authority, in the circumstances facing it, not to consider exercising its power under s.473DC to get what information that was likely to be on A’s protection visa application file for the purpose making findings about A’s activities and the extent to which he was targeted by Shia militia in assessing the Applicant’s claims. Having regard to the Applicant’s claims, the delegate’s decision and the different approach taken by the Authority, such failure may be described as plainly unjust and lacking in common sense but also critically as lacking an evident or intelligible justification (see Li at [76] and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [10]-[11] per Allsop CJ. That is particularly so given that the veracity of many of the Applicant’s claims depended on the activities of and threats to his brother A which prompted him to leave Iraq and successfully seek asylum in Australia and the approach taken by the Authority to A’s activities and motivation.
The failure in question was a failure to consider getting what the Authority must be taken to have known would have been readily available information from the departmental file in relation to the Applicant’s brother A in circumstances where there was an obvious and critical shortcoming or obscurity in the evidence in that respect before the Authority. The Authority knew that it did not have, but the Department was likely to have, information on A’s circumstances, the precise nature of his contract with or employment by the American company, any involvement with US forces, the nature and extent of any threats he received, and other matters of concern to the Authority in relation to A’s conduct and the implications for the Applicant’s claims. Such information would be relevant to clearing up obscurity or gaps in the details the Applicant had been able to provide about A’s actions and also relevant to the Applicant’s credibility.
A substantial reason for the Authority’s rejection of the Applicant’s claims was the limited evidence which supported details of his claims about A’s activities. There was information in the possession of the Department that was extremely likely to include evidence in this respect. It has not been suggested, and nor is it apparent, that such information could not have been obtained by the Authority quickly and easily, consistent with the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 of Part 7AA (see s.473FA). There was no logical reason why the Authority would not, at the least, consider getting such information. There was no evident or intelligible justification for its failure to consider the exercise of its s.473DC power.
I am satisfied that the Authority’s failure to consider exercising its power under s.473DC(1) was legally unreasonable.
Moreover, having regard to the direct relevance and significance of the material outlined above that would have been obtained had the Authority considered whether to exercise its power and then done so, I am satisfied that this may have led to a different assessment of the Applicant’s claims for protection. There is a realistic possibility that this could have resulted in a different decision (see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34and Minister for Immigration and Border Protection vSZMTA (2019) 264 CLR 421; [2019] HCA 3). The Authority’s failure was material.
Ground 1 in the amended application is made out. The matter should be remitted to the Authority for reconsideration according to law.
For the sake of completeness, I have also considered ground 2.
While bearing in mind that it would have been open to the Authority to make findings which differed from the findings made by the RSA officer who considered A’s protection visa application, the circumstances outlined above lead me to the same conclusion in relation to the Authority’s failure to get information from A’s file. Having regard to the delegate’s approach and, in particular, the Authority’s findings about A’s activities, I am also satisfied that the Authority’s failure to exercise its power under s.473DC(1) was legally unreasonable in the absence of any evident and intelligible justification for its failure to get readily available, accessible and directly relevant information in relation to the activities of A on which the Applicant based his protection visa claims.
I do not find persuasive the Minister’s argument that had the Applicant wished to put before the Authority information of the kind contained in his brother A’s protection visa application file, he could have made a Freedom of Information request to obtain such information (as his lawyers did in the course of these proceedings). Bearing in mind the approach taken by the delegate and the intended fast track operation of Part 7AA of the Act, that does not provide a basis on which to reach a different conclusion in relation to the legal unreasonableness of the Authority’s failure to get such information.
The Applicant referred to SZIAI on the basis that the Authority’s failure to make an obvious inquiry (seeking information from A’s file) about a critical fact (what A claimed), the existence of which was easily ascertained, supported characterisation of the Authority’s failure to make such an inquiry as legally unreasonable, whether or not such a failure in the context of Part 7AA of the Act could in itself be characterised as a constructive failure to exercise jurisdiction (and see Wei per Nettle J at [49]-[51]).
While it is not incumbent on the Authority to get information in order to assist an applicant to make out his case, in this case there were particular and unusual circumstances in which there was limited information from the Applicant about the precise details of A’s past activities, but the Authority must be taken to have known that there was information readily available to it and of direct relevance to the Applicant’s claims in so far as they overlapped with and relied on critical factual matters on which A’s protection visa claims were likely to have relied. The Authority made significant findings about A’s past activities. In the particular circumstances of this case, its failure to get such information was legally unreasonable. Such failure rendered invalid the Authority’s purported performance of its duty under s.473CC to conduct a review.
As indicated, had the Authority exercised its power and considered the information in A’s file, there is a realistic possibility that its decision could have been different. This error was material and Ground 2 is also made out.
I am satisfied that the Authority fell into jurisdictional error in the manner contended for by the Applicant. The matter should be remitted for reconsideration according to law.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 7 August 2020
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