FUR18 v Minister for Immigration
[2020] FCCA 1796
•3 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FUR18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1796 |
| Catchwords: MIGRATION – Visa – protection visa – judicial review of application for a Safe Haven Enterprise visa – unauthorised maritime arrival – applicant fears harm in Afghanistan due to identification as trans-amorous queer member of LGBTIQ community – unduly narrow construction of ‘exceptional circumstances’ in section 473DD(a) of the Migration Act 1958 – failure to consider new information – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 473DD, 476(1) |
| Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 Craig v State of South Australia (1995) 184 CLR 163 DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901 DYK17 v Minister for Home Affairs [2019] FCA 943 |
| Applicant: | FUR18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 583 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 31 March 2020 |
| Date of Last Submission: | 31 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 3 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Mr Knowles of Counsel |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 7 November 2018 be allowed.
The decision of the Immigration Assessment Authority dated 4 October 2018 be quashed.
A writ of mandamus issue requiring the Immigration Assessment Authority to determine the applicant’s application according to law.
The first respondent pay the costs of the applicant fixed in the sum of $7,467.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 583 of 2018
| FUR18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 7 November 2018 the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’ or ‘the IAA’) made on 4 October 2018. The Authority’s decision affirmed a decision of a delegate (‘Delegate’) of the first respondent (‘the Minister’) refusing to grant a Safe Haven Enterprise (subclass 790) visa (‘SHEV visa’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’).
The matter was heard on 31 March 2020.
For the reasons which follow I have concluded that the application should be allowed.
Background
The applicant is a citizen of Afghanistan from the Kandahar province. He is of Tokhi ethnicity and is from a Sunni Muslim family, but does not follow any religion.
On 27 June 2013, the applicant arrived in Australia as an unauthorised maritime arrival.
On 17 July 2013, the applicant completed an entry interview.
On 12 July 2016, the applicant received a letter from the Department of Immigration and Border Protection (‘the Department’) inviting the applicant to apply for either a Temporary Protection (subclass 785) visa or a SHEV visa. The Court Book indicates that this letter was also sent on 29 November 2016.
On 23 January 2017, the applicant applied for a SHEV visa.
On 19 May 2017, the Department invited the applicant to an interview with the Delegate.
On 21 June 2017, the applicant attended the interview with the Delegate.
On 24 May 2018, the Delegate refused to grant the SHEV visa.
On 29 May 2018, the matter was referred to the Authority.
On 4 July 2018, the applicant provided further submissions to the Authority regarding his long-term de facto relationship with his fiancé who is an Australian citizen and identifies as a male-to-female transgender person. Amongst other things, it stated that:
The Applicant has been in a long-term de facto relationship with Delilah since approximately May 2015. The Applicant identifies as trans-amorous – meaning he has relationships with transgender persons, specifically MtF transgender persons. The Applicant’s relationship is non-heteronormative and he identifies as Queer (a term used to denote a non-heteronormative sexual identity that may not easily be classified under other known terminology such as gay or lesbian, etc) and as a member of the LGBTIQ community.
The relevance of the above information is that the Applicant fears harm in Afghanistan as a result of:
a. his membership to the particular social group of Queer persons in Afghanistan;
b. his membership to the particular social group of members of the LGBTIQ community in Afghanistan;
c. his membership to the particular social group of men in relationship with pre- operative MtF transgender persons;
d. his actual or perceived non-conformity with socially defined and traditional gender roles in Afghanistan (as a result of his trans-amorous sexuality); and
e. his relationship being illegal in Afghanistan;
f. his perceived or actual un-Islamic behaviour; and / or
g. his perceived or actual Westernised behaviour.
The relevance of the above information is that the Applicant fears harm in Afghanistan as a result of societal and official discrimination and harm, including blackmail, assault, arrest, rape and death.
The claims that the applicant was in a stable relationship with a male-to-female transgender person were new claims. The applicant had raised with the Delegate that he was in a relationship with an Australian citizen, but had not raised her status as a transgender person nor his fears of harm because of the relationship.
On 4 October 2018, the Authority affirmed the Delegate’s decision not to grant the applicant the SHEV visa. With respect to the new claims, the Authority concluded that this was ‘credible personal information which was not previously known to the Minister’ and ‘that had it been known to the Minister, it may have affected the consideration of the applicant’s claims’: decision at [13].
At [15]–[18] of its decision, the Authority set out the following reasons for finding that there were not ‘exceptional circumstances’:
15. The applicant has stated that he formed the view that the interpreter was a strict Muslim and was thus afraid to discuss his claims in front of the interpreter. As noted, he made no objections to the interpreter when given the opportunity to do so. I note the majority of the interview, at the applicant’s choice, was conducted in English and the applicant was able to communicate reasonably well in English.
16. Despite having formed the view that the interpreter was a strict Muslim, the applicant did freely discuss, in front of the interpreter during the SHEV interview, his relationship with a Christian Australian citizen girlfriend with whom he occasionally attended church
17. Apart from the SHEV interview, the applicant wrote directly to the delegate prior to the SHEV interview in March 2017 and after the SHEV interview in July 2017. On neither occasion did he seek to raise these new claims, despite the claimed relationship being on foot. . I do not accept as satisfactory the applicant’s explanation as to why these claims could not have been articulated earlier. He did not indicate he had any subjective fears on these bases in his written application, the SHEV interview or any pre or post-interview submissions. I do not accept, given this history and these circumstances, and having consideration to the specific capabilities/vulnerabilities of the applicant, that there are exceptional circumstances to justify my consideration of these new claims.
18. It follows that I do not accept that there are exceptional circumstances to justify my consideration of the accompanying documentation or country information submitted evidencing these new claims or supporting the claimed persecution flowing from these new claims. It also follows that I consider it inappropriate to exercise my discretion to interview the applicant about these new claims.
Grounds of review
The applicant relied on one ground of review at the hearing (the second ground having been abandoned):
1. The Immigration Assessment Authority (IAA) erred by adopting and applying an unduly narrow interpretation of the term ‘exceptional circumstances’.
Particulars
a. In his written submission to the IAA, the Applicant raised new claims that he feared harm in Afghanistan on the basis of him being in a de facto relationship with a transgender Australian citizen.
b. However, the IAA found there were no ‘exceptional circumstances’ to justify its consideration of this new claim.
c. In determining there were no ‘exceptional circumstances’ the IAA relied on its own finding that the Applicant ‘did not indicate he had any subjective fears on these bases in his written application, the SHEV interview or any pre or post-interview submissions’.
d. The IAA erred in using this as a reason for finding there were no ‘exceptional circumstances’, as there is no requirement that an Applicant have a subjective fear of harm under the complementary protection provisions.
Applicant’s submissions
Ground 1 – Exceptional circumstances
The applicant says the Authority’s error is two-fold.
Firstly, the applicant alleges that the Authority erred by applying an inappropriately narrow construction of the term ‘exceptional circumstances’ in s 473DD(a) of the Act.
The applicant submits that the Authority wrongly confined its assessment of what may constitute ‘exceptional circumstances’ to consideration of whether or not the ‘new information’ could not have been provided to the Minister before the Delegate’s decision pursuant to s 473DD(b)(i) of the Act. The applicant cites the decision in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (‘BBS16’) where the Full Court found that while the requirements of subparagraphs (a) and (b) of s 437DD are ‘cumulative’, they ‘may nevertheless overlap to some extent’.
The applicant also relied on Kerr J’s decision in DYK17 v Minister for Home Affairs [2019] FCA 943 to support his proposition that the Authority can err by wrongly limiting its consideration of ‘exceptional circumstances’.
Secondly, the applicant claims that, when assessing whether ‘exceptional circumstances’ existed, the Authority wrongly considered that the applicant ‘did not indicate he had any subjective fears on these bases’. The applicant relies on SZVVE v Minister for Immigration and Border Protection [2015] FCA 837 (‘SZVVE’) to support his contention that there is no requirement that he hold or express a subjective fear of harm under the complementary protection provisions.
The applicant asserts that there is nothing in the Authority’s decision which suggests it had other, undisclosed reasons for finding there were not ‘exceptional circumstances’[1], and that:
19. […] the IAA’s reasons dealt with this matter in some detail and in this context, it is unlikely that such other important aspects were considered but went unexpressed in the reasons: DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901 at [22].
[1] Citing at [19] Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 per French CJ and Kiefel J.
The applicant also contends at [20] of his submissions that it was not sufficient for the Authority to conclude under s 473DD(a) of the Act that there are no ‘exceptional circumstances’ ‘only because the Applicant could have provided the information to the Delegate prior the making of her decision and failed to provide an adequate reason for not doing so.’[2]
[2] DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901 at [12], [13] and [21]; BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [47]; and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [112].
Ultimately, the applicant says that the Authority erred because it was ‘guided by an unduly narrow view of what may constitute’ ‘exceptional circumstances’.
First respondent’s submissions
Ground 1 – Exceptional circumstances
In response to the applicant’s claim that the Authority confined its consideration to matters relevant to s 473DD(b)(i), the Minister submits that it was open to the Authority to take into account the matters in that subsection as also bearing upon s 473DD(a) of the Act.[3]
[3] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [45]-[46] and [50]-[51].
The Minister says that there is nothing in this case which suggests that the Authority approached the issue on the basis that s 473DD(a) is confined to the factors in s 473DD(b)(i), rather the ‘proper inference’ is that the Authority considered the matters that might also be relevant under s 473DD(b)(i) were important to the existence of ‘exceptional circumstances’, having regard to the particular circumstances of this case.
The Minister claims that this is ‘not surprising’ in circumstances where the applicant’s submissions to the Authority as to why there were ‘exceptional circumstances’ focussed on the reasons the applicant did not raise them at an earlier stage.
In response to the applicant’s second contention in this ground, the Minister says that while the Authority is not required to form a view that the applicant holds a subjective fear of harm, that issue is not irrelevant to the question of whether there were ‘exceptional circumstances’.
The Minister asserts that the applicant’s failure to articulate a subjective fear of harm on previous occasions was a matter that the Authority could rationally take into account in determining the existence of exceptional circumstance. At [13] of his submissions, the Minister states that:
13. […] This is because a subjective fear of harm is relevant to the satisfaction of s 36(2)(a). Nothing in the Authority’s reasons suggest it somehow misunderstood the applicable visa criteria. Rather the Authority simply relied on the fact that the applicant before the Authority was, for the first time, claiming a fear of harm on the basis of his relationship with a transgender person.
Consideration
Section 473DD of the Act provides:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the ImmigrationAssessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any newinformation given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personalinformation which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The Authority focused on the considerations arising under s 473DD(b)(i) of the Act in considering whether there were ‘exceptional circumstances’ under s 473DD(a), and at [17] concentrated on the applicant’s failure to express subjective fears arising from the relationship in his written application, the SHEV interview and any pre or post-interview with the Delegate.
The Authority effectively confined itself to consideration of matters under s 473DD(b)(i) of the Act and failed to give the phrase ‘exceptional circumstances’ a broad meaning, including whether the circumstances are unusual or out of the ordinary: see BBS16 at [102]–[103].
At [13] of its decision, the Authority found that the claims and grounds raised in the applicant’s submissions and statutory declaration are credible personal information which was not previously known to the Minister. Those materials are detailed and made reference to the Department’s policy dated 25 May 2018 in dealing with claims related to sexual orientation and gender identity and the reluctance that some applicants may have in raising such claims. The applicant’s statutory declaration declared that he had been in a relationship with his transgender fiancé since 2015 and provided reasons (which were referred to by the Authority) as to why he had not mentioned the transgender status of his partner earlier.
The Authority summarised the substance of the new information in its reasons but where it has not undertaken the task of explaining why ‘exceptional circumstances’ do not arise, given the nature of the information and the apparent credibility of the applicant, the Court assumes that it has failed to exercise jurisdiction in considering the impact of that information on the applicant’s claims.
The finding that there were no ‘exceptional circumstances’ arising from the applicant’s failure to provide the information to the Delegate prior to the Delegate making a decision are not a sufficient ground to not then go on and consider in detail the matters under s 473DD(b)(ii): DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901 at [12], [13] and [21].
In my view the Authority was in error in the manner in which it approached its task in considering whether to consider the new claims for the reasons identified by the applicant in his written submissions.
The Authority gave an unduly narrow definition of ‘exceptional circumstances’ and, similar to the approach adopted by White J in BVZ16 v Minister for Immigration and Border Protection & Anor [2017] FCA 958 (‘BVZ16’), I find that there was a constructive failure by the Authority to exercise jurisdiction of the kind identified in Craig v State of South Australia (1995) 184 CLR 163 at 177-178. As was the case in BVZ16, the Authority did not accept that there were reasons to justify consideration of the new information because of the particular circumstances, but did not go on to consider the significance of the new information ‘in light of the (applicant’s) personal circumstances more generally’: BVZ16 at [34]. The features of the new information, in particular that the applicant was engaged to a transgender person, means that the applicant’s case was unusual and out of the ordinary (and I do not mean that in any pejorative sense). See AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [17].
The new information may have affected consideration of the applicant’s claim and this was a matter which was accepted by the Authority at [13], and therefore the error is material as it could have affected the Authority’s decision.
I also accept that the fact that the applicant’s failure to express a subjective fear of harm before the Delegate also provides an insufficient basis for that finding: see SZVVE at [21].
For these reasons the Court will make orders in the terms sought by the applicant.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 3 July 2020
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