Fur17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1063
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FUR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1063
File number(s): SYG 4062 of 2017 Judgment of: JUDGE LAING Date of judgment: 24 November 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA denied the applicant procedural fairness – whether the IAA failed to consider claims or evidence – whether the IAA otherwise failed to carry out its statutory duties, assessed the applicant’s case unfairly or made a jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5, 473DC, 473DE, 476 Cases cited: DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 25 August 2023 Date of hearing: 22 August 2023 Place: Sydney Applicant: In person Solicitor for the First Respondent: Mr T Goodwin, Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 4062 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUR17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of the People’s Republic of China (China) who arrived in Australia some time ago. He unsuccessfully made two protection visa applications before making the protection visa application that is the subject of the current proceedings. The latter application was made on 15 September 2017.
The Delegate refused the application on 26 October 2017. The applicant was designated as a Fast Track Applicant under s 5(1) of the Migration Act 1958 (Cth) (Act) through IMMI 17/015. His matter was accordingly referred to the IAA for review.
On 19 December 2017, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA accepted that the applicant was a national of China and that this was the receiving country for the purposes of the review (at [8]).
However, the IAA did not accept that the applicant was a committed Christian who would be harmed if he returned to China for reasons including his claimed religious beliefs. The IAA observed that the applicant had provided limited evidence regarding his religious beliefs and practices in Australia. Whilst the IAA accepted that it was possible that the applicant had attended church services in Australia, it was not satisfied that this had occurred regularly or that his ideologies had been greatly influenced by Christianity (at [10]-[18]).
The IAA did not accept that the applicant faced a real chance of harm on the basis of his political opinion or imputed political opinion. The IAA accepted that the applicant was a village chief for a number of years prior and up to 2010. The IAA did not accept that the applicant suffered any harm or was at risk as a result of an appeal or complaints made in the 1990s. Due to inconsistency in the applicant’s evidence, the IAA did not accept that the applicant wrote letters of complaint in 2007, 2010 or at all, or that he was threatened by the authorities as a result. The IAA did not accept that the applicant had an adverse profile with the Chinese authorities before coming to Australia, noting that the applicant had managed to hold an official position for a number of years and apply for a passport without issues (at [19]-[31]).
The IAA accepted that the applicant published stories in a Chinese community newspaper over some months in 2012 (Stories). However, the IAA did not accept that the Stories were of the political nature contended. The IAA considered that there was “very little information in the stories which could be considered critical of the Chinese Communist Party and Chinese government”. The IAA was not satisfied that the applicant would be identifiable from the Stories only from his name, or that the Stories would bring the applicant to the adverse attention of the Chinese authorities. The IAA did not accept that the applicant’s family had experienced political pressure and harassment due to the Stories. It did not accept that his wife had been visited by the Public Security Bureau in 2012. The IAA was not satisfied that the applicant had been politically active in Australia, had an adverse political profile in China, or that he would face harm on the basis of his imputed political opinion in China (at [19]-[45]).
The IAA accepted that some of the applicant’s personal details may have been disclosed on the Department’s website during a “data breach”. The IAA accepted that it was possible that the authorities may conclude that the applicant applied for refugee status and that he may be questioned on his return. However, the IAA did not accept that the applicant would a face a real chance of harm as a result. The IAA did not accept that the authorities would be aware of the applicant’s previous unsuccessful protection applications or that the applicant would have a profile that would bring him to the interest of the authorities as a result of the “data breach” (at [46]-[55]).
Having regard to the above, the IAA concluded that the applicant did not face a real chance of harm on account of any of the matters claimed. The IAA therefore found that the applicant did not meet the criteria for a protection visa and affirmed the Delegate’s decision (at [56]-[63]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 29 December 2017 relying upon the following grounds:
1.DIBP and IAA failed to provide me (the applicant) with the opportunity to comment on the information/evidence for my claims.
2. DIBP and IAA failed to look at all the aspects of my claims
3.DIBP and IAA failed to carry out their statutory duties and they assessed my cases unfairly
4.I believe that DIBP/IAA made jurisdictional error in their decisions to refuse my applications.
To the extent that the grounds challenged the decision of the Delegate, this Court has no jurisdiction to review that decision: s 476(2)(a) and (4)(c) of the Act.
Ground 1 – opportunity to comment and provide evidence
Ground 1 contended that the IAA failed to provide the applicant with the opportunity to comment on information or evidence for his claims.
At the hearing, the applicant referred to moving house and not receiving correspondence. As was submitted by the Minister, this appeared to be a reference to the reason that the applicant gave for not applying for review of the refusal of his first protection visa application. However, the applicant does appear to have attended interviews with the Department in relation to his second and third protection visa applications.
The applicant then referred at the hearing to not having had representation or assistance. However, I noted that it appeared that the applicant had been represented before the IAA. The applicant responded that he could not recall what had happened before the IAA.
I accept that the IAA did not invite the applicant, either directly or through his representative, to attend a hearing or provide further submissions. However, as was explained in the Minister’s written submissions and discussed at the hearing before the Court, the IAA was under no general obligation to do so. The default or “primary rule” in relation to reviews under Part 7AA of the Act contemplated the IAA reviewing the Delegate’s decision on the papers and without accepting or requesting new information: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217at [22] per Gageler, Keane and Nettle JJ.
The IAA did, however, have a discretion to obtain new information under s 473DC of the Act. This discretion was required to be exercised reasonably: see DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 at [35]-[43] per Griffiths and Steward JJ.
I accept the Minister’s submission that the IAA’s non-exercise of its discretion to obtain such information was not unreasonable in circumstances where:
(a)the applicant was made aware of how he could provide further information or submissions to the IAA through an email sent to his authorised representative, but did not seek to do so;
(b)the IAA had before it a considerable body of material regarding the applicant’s claims that had been provided over the course of his three visa applications;
(c)the IAA did not decide the matter according to a completely different issue, such as relocation, in respect of which it lacked evidence; and
(d)there was no other feature, such as a contrary favourable reliance by the Delegate on demeanour, that might be said to have made it unreasonable for the IAA not to have conducted its own interview.
There does not appear to have been any “new information” before the IAA that was required to have been put to the applicant in this matter in accordance with s 473DE of the Act.
Having regard to the above, ground 1 is unable to succeed.
Ground 2 – consideration of the applicant’s claims
Ground 2 contended that the IAA “failed to look at all the aspects of [his] claims”.
The applicant did not identify any aspect of his claims that the IAA was contended to have failed to have considered, either in his application or when given the opportunity to do so at hearing. It is not apparent from my reading of the materials that any claim that was made by the applicant was overlooked.
I accept that the IAA did not set out in its decision every aspect of the evidence that was before it. In particular, it did not refer to every part of the material contained within the Stories that could potentially have been considered relevant to the IAA’s assessment at [39] that there was “very little information in the stories which could be considered critical of the Chinese Communist Party and Chinese government”.
However, I accept the Minister’s submission that the IAA was not required to set out in its decision every aspect of this evidence. The IAA’s reasoning at [39] demonstrates a level of engagement with a number of features of the Stories that might have indicated a level of criticism of the government or government officials, even if the IAA did not set out in detail all of such features of the Stories in its decision. I accept the Minister’s submission that the IAA’s reasoning at [39] was consistent with the IAA recognising that there was some material within the Stories that might have been considered critical of the government. However, this fell to be considered within the context of such content being contained within a substantial volume of Stories and the applicant’s evidence that he did not consider that the Stories criticised the Chinese Government or the Chinese Communist Party (CB 315 [51]).
Having regard to the above, I accept the Minister’s submission that it was open to the IAA to have characterised this evidence in the manner that it did at [39] of its decision and that an inference ought not to be drawn that any aspect of this evidence was overlooked. In any event, I accept the Minister’s submission that any error in this regard could not have been relevantly material to the IAA’s decision in the sense of depriving the applicant of the possibility of a successful outcome: see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [2]-[4] per Kiefel CJ, Gageler, Keane and Gleeson JJ. This is because at [40] of its decision, the IAA additionally rejected that the applicant would be able to be identified as an author of the Stories, regardless of their content.
For the above reasons, ground 2 is unable to succeed.
Grounds 3 and 4 – other contentions of jurisdictional error
Grounds 3 and 4 contended that the IAA failed to carry out its statutory duties, assessed the applicant’s case unfairly and made a jurisdictional error.
The applicant did not elaborate upon these grounds when given the opportunity to do so at hearing.
It is not apparent from my own review of the materials how the IAA could be said to have fallen into jurisdictional error in this manner. As considered above, the IAA’s procedural fairness obligations under Part 7AA of the Act were limited. It is not apparent how they could be said to have been breached in the present case.
Grounds 3 and 4 are therefore unable to succeed.
Affidavit
In an affidavit filed on 18 May 2018, the applicant sought to explain his claims for protection, including by reference to the country situation after the IAA’s decision. As I explained during the hearing, however, the powers of the Court in judicial review proceedings are limited. It is not part of the Court’s role to assess whether or not an applicant’s claims should be accepted, or whether or not an applicant meets the criteria for a protection visa. All this Court can do is consider whether the IAA’s decision was lawfully open to the IAA on the material that was before it. The applicant confirmed at hearing that he understood this.
The affidavit also made reference to the applicant experiencing mental injuries and memory problems, particularly after his time in detention. The applicant stated that this was correct at his hearing before the Court. I am not unsympathetic to the applicant’s situation. However, as I explained at the hearing, a difficulty is that the applicant has not provided any medical evidence capable of demonstrating the extent of his mental or memory issues, nor how this could be said to have affected his review before the IAA. In the absence of such evidence, it is not apparent how the applicant’s submissions in this regard are capable of providing any basis for overturning the IAA’s decision.
CONCLUSION
For the above reasons, I am required to dismiss the application that is before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 24 November 2023
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