Fxo18 v Minister for Immigration
[2020] FCCA 2223
•8 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FXO18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2223 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Temporary Protection Visa (TPV – Whether the Authority fell into jurisdictional error by adopting an erroneous construction of s 473DD of the Migration Act 1958 (Cth), in that it failed to consider new information accordance with the law – Whether the Authority failed to consider explanations and reasons advanced by the applicant and adopted an unduly narrow construction of s 473DD of the Migration Act 1958 (Cth) – Whether the Authority’s findings in its decision revealed jurisdictional error – Whether the Authority failed to consider certain integers of the applicant’s claims leading to a failure to exercise jurisdiction – The application is upheld. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 473CB, 473DC(1), S473DD Privacy Act 1988 (Cth), s.6 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 593 AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 BOS17 v Minister for Immigration and Border Protection [2020] FCA 75 Dranichnikov v Minister For Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260 Minister for Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs. (1994) 52 FCR 437 at [451]) Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 |
| Applicant: | FXO18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3169 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 12 August 2020 |
| Date of Last Submission: | 12 August 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 8 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Okereke-Fisher |
| Solicitors for the Applicant: | ABU Legal |
| Counsel for the Respondents: | Mr Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is upheld.
The decision of the Immigration Assessment Authority be quashed.
A writ of mandamus directed to the Immigration Assessment Authority, requiring them to determine the applicant’s application according to law.
An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
The first respondent pay the applicant’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3169 of 2018
| FXO18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iraq. The applicant first arrived in Australia on 24 June 2013 as an illegal maritime arrival. On 1 February 2017, the applicant applied for a Temporary Protection Visa (“TPV”).
On 22 March 2018 a delegate of the Minister for Immigration and Border Protection (“the delegate”), refused to grant the applicant a TPV.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 19 October 2018, the Authority affirmed the delegate’s decision not to grant the applicant a TPV.
The applicant now seeks judicial review of the Authority’s decision.
Preliminary Issue
An amended application containing two new grounds of judicial review, together with the applicant’s written submissions were filed on 7 July 2020, in accordance with Court orders made on 25 June 2020. Inexplicably, while the amended application contains two grounds, the written submissions make reference to three grounds of review. By consent, leave was granted to further amend the application to include the third ground and a direction made that a further amended application be filed.
The Court also notes that the applicant’s written submissions exceed the page limit directed by the Court in previous orders. The Court has a reasonable expectation that page limits on submissions will be complied with and that the page limit is not optional at the discretion of Counsel for either the applicant or the respondent. It is simply unfair for one side to comply with a page limit while the other side does not. It adds to the work of the Court in having to digest additional information and submissions.
The Immigration Assessment Authority’s Decision
Following an introduction, at paragraphs 4 to 6 of its decision, the Authority considered a 20 page submission together with 13 annexures and a media article that were made available to it by a third party on behalf of the applicant. The material consisted of new country information and other information that was not previously provided as the information was not known to the applicant’s previous Migration Agent. The portion of the submission that related to the applicant’s claims and addressed the delegate’s decision was regarded as argument rather than information, and was considered.
Some of the information was already before the Minister, and was considered. In terms of country information, which was stated to be previously unknown to the applicant, this appeared to be drawn from an archive. The country information was also undated. The Authority was not satisfied that it could have been provided to the Minister before the Minister made his decision. The remaining information predates the delegate’s decision by some months, was general in nature, and could not be described as personal information. The Authority was not satisfied that s 473DD(b) of the Migration Act 1958 (Cth) (“the Act”), was met and the information was rejected.
Two Authority decision records dated 8 June 2017 and 29 January 2018 predate the delegate’s decision, were provided to the delegate. Both were published Immigration Assessment Authority decisions. It was determined that the decisions did not contain information about an identifiable individual. The Authority was not satisfied that s 473DD(b) of the Act was met, and rejected the information.
Further, a Department of Foreign Affairs and Trade (“DFAT”) Smart Traveller advice that was provided on Iraq dated 10 September 2018 postdates the delegate’s decision and a media article entitled “Iraq protesters killed in Basra clashes with security forces” is dated 4 September 2018. They could not have been provided to the Minister before the Minister made the decision. However, they contain general information not personal information. The extract from the DFAT Smart Traveller advice, concerns the type of places that have been targeted in Iraq. Other similar security information was noted to be already before the Authority. The new material was not considered to be relevant, given it was formulated with Australian citizen travellers in mind. A hand annotated map that was provided does not indicate who was targeted, or how often attacks occurred, or cite the sources which were used to create the map. The Authority was not satisfied that there were exceptional circumstances to justify the consideration of the new information.
An Immigration Assessment Authority decision record, dated 23 May 2018, post-dates the delegate’s decision and could not have been provided Minister before the decision was made. The Authority noted at paragraph 9 of its decision that no information had been provided as to how this decision was relevant to the applicant’s circumstances. Whilst it concerned another Iraqi citizen, their circumstances differed markedly in the Authority’s view. The Authority was not satisfied that there were exceptional circumstances to justify considering the new information.
The Authority noted at paragraph 10 of its decision that the final annexure was a letter dated 11 April 2018 from G4S confirming the applicant’s employment by the company. The letter post-dated the delegate’s decision. The Authority noted it had accepted that the applicant worked for the company as a driver, and was not satisfied there were exceptional circumstances to justify receipt of the information.
At paragraph 15 of its decision, the Authority accepted that the applicant is of Arab ethnicity, that he was born and lived in the Basra governorate of Iraq, where he completed his schooling and where he worked in the construction and ceiling decoration areas and as a bus driver. The Authority accepted that the applicant is a single person.
At paragraph 17 of its decision, the Authority noted the applicant claimed that he got a job in 2011 with a British security company transporting and protecting foreign employees, delegates and visitors of oil companies that operated in the north and south of the Rumaila oilfields. The job entailed security hazards. These included interceptions and attacks. The applicant provided identity cards from the Olive Group, GW and G4S.
The applicant claims that in about May 2013, he was accosted by a group of unknown persons. The applicant stated that he was kidnapped, taken to a house, beaten, and told he was a British spy. The applicant’s captors tried to extract information about the company and the persons who worked for it and their addresses. After three days, he was released. The applicant’s captors told him to stop working with the occupiers otherwise he would be killed. The applicant reported the matter to police but was told that he should not make a big deal as it would bring him more harm. Subsequently, the applicant says he received a message on his mobile phone threatening him with murder, because he complained to the police. As a result of this incident the applicant made arrangements to leave Iraq.
At paragraph 23 of its decision, the Authority was willing to accept that the applicant and his family experienced difficulties under the former regime of Saddam Hussein, however, the applicant was a child at the time. The applicant did not claim fear in the future as a result of these events. The Authority was not satisfied that the applicant would suffer harm as a result of these events.
At paragraph 25 of its decision, the Authority accepts that the applicant may have worked in a security role for a previous foreign company. The Authority did not accept that the applicant worked as a security guard for his last employer, G4S. The Authority noted the applicant’s own evidence in the protection interview, was that he worked as a driver for G4S, and the photographs he provided where he was wearing a company uniform show that he was unarmed.
At paragraphs 26 and 27 of its decision, the Authority did not accept that the applicant was kidnapped and tortured by a militia or terrorist group in May 2013 because he worked for G4S, or because he previously worked for any other foreign company. The Authority found that this was inconsistent with country information, which stated that while kidnappings do occur in Iraq, more recent information indicates the security situation in Basra has improved significantly. Credible sources indicate that Sunni armed groups have limited operational capacity in southern Iraq. The country information does not support that low-level and short-term employees of foreign companies operating in southern Iraq have been targeted by Shia or Sunni armed groups in either 2013 or in more recent years. The Authority did not accept that if the applicant was kidnapped, he would be simply let go with a warning. Accordingly, the Authority was not satisfied that the applicant complained to police about the kidnapping or that he received a telephone warning subsequently. In relation to the document produced purporting to be a contemporaneous report of what the applicant told police concerning his kidnapping, the Authority noted that fraudulent documents are commonly and cheaply available in Iraq. Accordingly, the police report did not overcome the considerable concerns the Authority had with the applicant’s other evidence in respect of the kidnapping claim.
At paragraph 28 of its decision, the Authority found that country information did not support a conclusion that Shia or Sunni groups targeted persons who formerly worked for the international community once they are no longer employed in that capacity. Accordingly, the Authority was not satisfied that the applicant would suffer harm because he was formerly employed for around seven months as a driver with G4S over five years ago or with any other foreign company prior to that.
At paragraphs 30 to 31 of its decision, the Authority considered relevant country information and concluded that it was not satisfied there was a real chance that the applicant would suffer harm because he is a Shia Muslim or because of security conditions in the Basra governorate either now or in the reasonably foreseeable future.
At paragraphs 32 to 35 of its decision, the Authority considered risks associated with the applicant returning to Iraq as a failed asylum seeker. The Authority was not satisfied that the applicant would be regarded as an apostate or Kafir as a result of his time in Australia. The Authority did not accept that the applicant had any particular profile or was of any adverse interest to militias or terrorist groups when he departed Iraq in 2013 and therefore, would not be at risk for that reason upon his return. The applicant would be able to return to Basra, which was the airport from which he departed Iraq, and his travel would not involve particular dangers. Accordingly, the Authority was satisfied that the applicant did not meet the requirements of s 36(2)(a) of the Act.
Paragraphs 37 through to 41 of the Authority’s decision, deal with complimentary protection considerations. For the same reasons as outlined above, the Authority was not satisfied that there was a real risk to the applicant or that he would suffer significant harm if returned to Iraq. The Authority concluded that the applicant did not meet the requirements of s 36(2)(aa) of the Act.
Grounds of Judicial Review
There are now three grounds of judicial review for consideration. The grounds of judicial review are as follows:
Ground One:
Jurisdictional Error - The Authority fell into jurisdictional error by adopting an erroneous construction of s473DD in that it failed to consider new information in accordance with the law, failed to consider explanations and reasons advanced by the Applicant and adopted an unduly narrow construction of s473DD. In doing so, it constructively failed to exercise its jurisdiction under s473DD leading to jurisdictional error.
Particulars:
a) In the Applicant's submission to the Authority on 13 September 2018 (the "Submission"), the Applicant's Representative provided new information including
i.13 annexures (labelled "A-Z") and a media article (CB 221).
ii.an IAA decision made on 29 January 2018, IAA Decision Record IAA 17/02422 (Annexure K, CB 268-286)
iii.Map of Iraq marking all locations with safety and security issues (Annexure J, CB 267)
iv.Department of Foreign Affairs – Smart traveller advice on Iraq (Annexure M CB 299).
Ground Two:
Jurisdiction Error - The Authority's findings at [23] & [28] of its decision reveal jurisdictional error constituted by (i) making a finding unsupported by evidence;(ii) making an erroneous finding, contrary to evidence; or (iii) making a finding of jurisdictional fact that no rational or logical decision-maker could have reached: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Particulars
a) The Applicant stated that his position at G4S made him a target and automatically a traitor in the eyes of the militias and terrorists in Iraq for protecting and supporting the British (CB 141 at [9]).
b) Furthermore, he stated that G4S was contracted to provide security to British employees and the Iraqi militias, terrorists, gangs and authorities hate the western countries and anyone that works or supports them (CB 141 at [8]-[10]).
c) The Applicant provided a letter from Senior HR of G4S confirming his employment as a driver (Annexure D, CB222).
d) The Applicant states that if forced to return to Iraq, he will be hunted and killed because the militia and terrorists will believe that he is a traitor. (CB 141 at [19]).
Ground Three:
Jurisdictional Error - The Authority failed to consider certain integers of the Applicant’s claims leading to a failure to exercise jurisdiction.
Particulars:
a) The Applicant stated "I am haunted by fear and mental Hallucination. I am suffering a state of sleeplessness." (CB 77).
b) In the Submission, the Applicant's representative implored the Authority to consider the emotional and mental aspects of the Applicant in making its decision (CB 201)
c) The Applicant stated that his position at G4S made him a target and automatically a traitor in the eyes of the militias and terrorists in Iraq for protecting and supporting the British (CB 141 at [9])
d) Furthermore, he stated that G4S was contracted to provide security to British employees and the Iraqi militias, terrorists, gangs and authorities hate the western countries and anyone that works or supports them (CB 141 at [8] - [10])
e) The Applicant states that if forced to return to Iraq, he will be hunted and killed because the militia and terrorists will believe that he is a traitor and he will have no way of escaping from being killed. (CB 141 at [19])
The Applicant’s Submissions
During the course of the hearing an issue arose as to whether a decision of the Authority that relates to another person constituted new information, and was subject to the provisions of s 473DD of the Act, or whether it could be characterised as a legal decision and part of normal legal submissions. As this point was not considered by Counsel for both the applicant and first respondent, leave was given for supplementary submissions to be filed covering this issue.
Counsel for the applicant submitted that new information was provided, being an Authority decision made on 29 January 2018. Counsel for the applicant contended that the applicant was at higher risk of being attacked and persecuted because he will be perceived as a traitor and that there is no area in Iraq that is safe for the applicant. The decision was cited as precedent or authority for the proposition that where an applicant cannot obtain protection from authorities in Iraq, he would face a risk of significant harm if returned to Iraq. Annexure K comprised solely of an Authority decision record IAA2017/02422. It was submitted by Counsel for the applicant that the Authority fell into error by finding that the decision did not “contain information about an identifiable individual” and further considered another decision dated 8 June 2017 in circumstances where it was neither advanced by the applicant, nor obtained by the Authority.
Counsel for the applicant submitted that by reason of the Authority decision record number, the applicant in the decision is reasonably identifiable and accordingly, it does meet the term of “personal information” in that it is information or opinion about an identified individual or an individual who is reasonably identifiable: (see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (“M174”)).
In the supplementary submissions, Counsel for the Applicant submitted that it was irrelevant if the material was a legal decision or not, it was new material for the purposes of s 473DC(1) and S473DD. It was submitted by Counsel for the applicant that Authority decisions are information about firstly a particular event being a previous Authority review, secondly, a particular fact being whether the applicant cannot obtain a protection from the authorities in Iraq, and thirdly, a particular subject, being the referred applicants’ in the Authority’s decisions. These decisions are new information because they were are not before the Minister when the Minister made the decision, because they were not part of the review material given by the Secretary to the Authority pursuant to s 473CB of the Act.
It was noted that the Explanatory Memorandum to the Migration and Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, supports the view that Authority decisions constitute “information” as defined by the plurality in M174 by providing the discretionary power for the Authority to publish decisions that the Principal Member thought were of particular interest so as to provide information or insight into the jurisdiction of the Authority, the procedures for the conduct of reviews, and how it interprets and applies the law and policy. However, published versions of any decision were to be anonymized.
Counsel for the applicant submitted that the decisions contained information about an identifiable individual which was credible personal information. Further it was information which was not previously known to the applicant in this matter.
In relation to Annexures J and M, being a DFAT advice and a map, Counsel for the applicant submits that the Authority erred by proceeding if the matters and sub-para, 473(b) of the Act were cumulative, rather than alternative, and failed to consider the representatives reasons for citing the information in annexure J and how it relates to the factual matrix of the applicants protection claims. Counsel for the applicant contended that there was no place in Iraq that was safer for the applicant if he returns. Counsel for the applicant submits that the facts and matters sought to be relied upon, had a material bearing upon the Authority’s consideration as to whether it could be satisfied as to the applicant’s arguments. That information was capable of lending support and weight to the claim that the applicant faces serious or significant harm, if returned to Iraq.
In relation to ground two it is submitted by Counsel for the applicant, that the finding that the applicant is not at risk of harm due to his previous employment evince a want of reason, irrationality or illogicality amounting to jurisdictional error. Counsel for the applicant submits that the Authority’s reasoning implies, that the risk of harm will exist if the applicant were to resume employment with foreign companies for the international community in Iraq in the future. It was submitted by Counsel for the applicant that the applicant did in fact claim that it was impossible for him to change his field of work, it was contrary to his post-interview submissions, there was no material before the Authority that enabled this assumption, and that the material before the Authority supports the view that if he was likely to return to Iraq he would resume employment with foreign companies.
In his post interview submission, the applicant stated that he had considered changing his field of work but it was impossible to do so. That was due to the fact that the applicant was already a target. Counsel for the applicant submits that the applicant’s statement is not compatible with the Future Employment Finding because the applicant had already considered changing his field of work but formed the view that it is impossible to do so. A brief overview of the applicant’s work history showed that he had worked solely for foreign companies in Iraq. There was no evidence before the Authority to suggest that the applicant did not intend to work in the same capacity or would have an opportunity to work in another capacity. Counsel for the applicant submitted that this was not a case where logical rational or reasonable minds might adopt differing reasoning. The only possible answer to the question, was that the applicant was likely to work with a foreign company on return to Iraq.
In relation to ground three, Counsel for the applicant submitted that a claim of psychological harm was explicitly made or that alternatively, the psychological harm claim arose squarely from the material before the Authority. It is submitted by Counsel for the applicant that the Authority’s failure to refer to the mental health claim leads to an inevitable conclusion that it overlooked this aspect of the claim and thus failed to exercise jurisdiction. In the supplemental submissions Counsel for the applicant raised the issue that the applicant made arrangements to leave Iraq after receiving an envelope containing writing and a bullet. Counsel for the applicant submitted that the Authority did not address this contention
This was due to the fact that the applicant’s fear stemmed from the fact that he was perceived as a traitor and supporter of Western countries due to his previous employment. Counsel for the applicant submitted that the finding that armed groups no longer target persons who are not employed by foreign entities is not dispositive of the applicant’s previous employment claim, as it does not address fear of harm from feared entities other than armed groups, including gangs, terrorists and authorities. It is suggested that there was no evidence before the Authority that the applicant would not work for and a foreign entity upon his return. Accordingly, this amounts to jurisdictional error.
The First Respondent’s Submissions
After setting out the history of the applicant’s claims, Counsel for the first respondent noted that the applicant claimed in his supporting statement that he was “haunted by fear and mental hallucination. I am suffering a state of sleeplessness. My country is living in conflagration.” The applicant’s Migration Agent asked in a post interview submission that the delegate should consider the “emotional and mental aspects of the applicant”. No independent medical or other relevant evidence was provided concerning the applicant’s mental state or that he was suffering from a particular psychological or mental illness.
Ground one alleges a misapplication by the Authority of the provisions of s 473DD of the Act. What constitutes “exceptional circumstances” pursuant to s 473DD(a) of the Act is “inherently incapable of exhaustive statement”: “to be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”; (See M174 at [30]).
The Authority is not required in its evaluation, to be satisfied of a particular fact or facts: see DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260 at [17]. Further, there is no statutory mandate that requires consideration of the limbs in s 473DD(a), (b)(i) or (b)(ii) of the Act in a particular order or that requires separate consideration of the matters in (a) as well as in (b)(i) or (b)(ii) or vice versa: see AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14]. In terms of Annexure K, (two prior Authority decisions), it was submitted by Counsel for the first respondent that while it may be necessary in a particular case for the Authority to take the matters in sub-para (b) into account in considering sub-para (a) this is not an absolute requirement. If the requirements of sub-para (b) are not met, then the applicant does not meet the section as a whole.
In this case, the applicant argues that the Authority was in error to conclude that the information contained was not “personal Information” pursuant to s 473DD(b)(ii) of the Act. Counsel for the first respondent submitted that the decisions were not about an identifiable individual. It was submitted by Counsel for the first respondent, that it is not contentious that the concept of an identifiable individual referred to by the High Court in M174 involves information about an individual who is identifiable or reasonably identifiable. The High Court referred to the definition of “personal information” in s 5 of the Act which, in turn, imports the definition of the same phrase in s 5 of the Privacy Act 1988: (see BOS17 v Minister for Immigration and Border Protection [2020] FCA 75 at [59]-[60]).
The critical issue for the Court to determine, is the correct construction of the phrase identifiable or reasonably identifiable. The idea of identification inherently requires consideration of who an individual is, so as to allow the Authority to be satisfied that the evidence relates to a specific, necessarily unique person. In that context, it cannot be an individual who is capable of being identified with some further step, or steps on the part of the Authority. That requirement would place an onus on the Authority, contrary to the terms and purpose of PT 7AA of the Act. In the current situation, the individuals are anonymized and appear only as a decision record number and are inherently incapable of being identified.
Additionally, the applicant’s contention that the Authority referred to another Authority decision not relied upon by the applicant, is incorrect factually and cannot succeed. In the Authority’s submission, the applicant identified at paragraph 55, that he relied upon a decision of the Authority dated 8 June 2017. The decision was thus advanced on the basis that the Authority should take account of it and consider it. It was plainly new information and the Authority was correct to assess it on the basis of whether it met the requirements of s 473DD of the Act.
In relation to the issue of whether or not the Authority’s decision could be properly characterised as “a legal decision”, it was submitted by Counsel for the first respondent that the nature of the Authority’s decisions were of an administrative nature amenable to judicial review. There was thus, no conceptual room for the application of any notion of them being a precedent. Each decision stands on its own, based on the facts. This reinforces the idea that Authority decisions should be properly treated as documents containing information, rather than clothing it in the concept more readily applicable to a Court decision
In terms of Annexures J and M, the applicant argues that the Authority’s assessment of the information in question, was impermissibly narrow (and therefore, by extension, failed to take account of the totality of material potentially relevant to “exceptional circumstances”). The information contained in the two annexures was country information. The Authority accepted that the information could not have been provided to the delegate prior to the decision being made and therefore the requirements of s 473DD(b)(i) of the Act were met.
The Authority considered some of the information unnecessary, in the light of other country information had already before it and was considering. The Authority also considered that some of the information had little benefit, given it was directed to Australian citizens. In relation to the map, the Authority found it did not give meaningful support to the applicant’s claims because it had insufficient detail to make it meaningful. The Authority’s reasons disclose it had meaningful engagement with the circumstances of the applicant and the significance of the evidence. It is difficult to see how such reasoning failed to take account of all the relevant factual circumstances appropriate to an assessment of exceptional circumstances.
Contrary to the applicant’s assertion the Authority did not make any finding in respect of s 473DD(b)(ii) of the Act. Rather, the Authority was recording that the information was country information that was of a general, rather than personal nature and was relevant for the purposes of s 473DD(a) of the Act only.
In relation to ground two, the applicant asserts that there was, in effect, no basis for the finding at paragraph 28 of the Authority’s reasons that “the applicant does not claim that he intends to, or will have the opportunity, to obtain future employment with an international company if he returns to Iraq”. Counsel for the first respondent submits that this ground is misconceived. It relies on a misreading about the applicant’s claims and the Authority’s reasons.
Counsel for the first respondent submitted that the applicant’s characterisation is that the finding was based on no evidence or was irrational, in the sense discussed by the High Court in Minister for Citizenship v SZMDS (2010) 240 CLR 611. In relation to the no evidence rule, it is well-established that such ground can only succeed if there is no evidence whatsoever. No error arises where there is even a “skerrick” of evidence: (see MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378 at [54]).
In relation to irrationality, the threshold is high, and the Court must be satisfied that no reasonable decision-maker could have arrived at the same Court conclusion: (see SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1). Counsel for the first respondent submitted that the applicant did not claim that if he returned to Iraq he intended to get employment, or could get such employment, with a foreign company. The Authority rejected the idea that the applicant had been placed at risk by reason of his connection to foreign companies at paragraph 17 of its decision. The applicant’s statement in his post interview submission, was that it was impossible for him to change jobs because he had already become a target. In other words, the claim was predicated upon a finding of harm that the Authority ultimately rejected. It had nothing to do with what employment the applicant would seek out on his return. Indeed, the applicant’s statement that “even if he did find a different job” he may come to harm, indicates that it was not impossible for him to get a job but rather that he claimed to be at risk because of the kidnapping claim, a claim that the Authority subsequently rejected.
Counsel for the first respondent submitted that there is nothing irrational or illogical in the Authority’s finding at paragraph 28 of its decision. Counsel for the first respondent further submitted that it matters not, even if the conclusion of the Authority was wrong, so long as it fell within the framework of rationality that a reasonable decision-maker might adopt. The Authority did so in the present case.
In relation to the third ground, the first respondent noted it is uncontentious that a decision-maker may fall into error if they fail to consider a claim, clearly arising from established facts, or an integer of a claim: (see Dranichnikov v Minister For Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1). The applicant identifies two alleged integers that were not considered. First, psychological harm if returned to Iraq and secondly, risk of harm from militia, terrorists or gangs not affiliated with, or otherwise designated as, Saudi or Shia Muslims. A third integer was claimed in oral submissions, being the receipt of a letter containing writing and a bullet.
In relation to the first matter, the applicant referred to evidence in the supporting statement about fear, hallucination and state of sleeplessness. This was a statement about how the applicant felt at the time. The applicant said nothing about whether he had been diagnosed with a medical condition, whether he was receiving treatment and how it affected him more broadly. No independent medical evidence of any psychological condition was provided. Critically, the applicant at no point indicated he feared harm on his return to Iraq as a result of the way that he felt or as a result of condition that he might have. Rather, the applicant was simply expressing how he felt bearing in mind the position he was in.
Secondly, the applicant’s Migration Agent alluded to the applicant’s medical condition, however the nature of the condition was not specified, no further details were provided and no claim was made that by reason of his condition the applicant would face harm upon his return to Iraq.
In this context, it is notable that at no point anywhere in the applicant’s other evidence does he give clear evidence as to his mental or emotional state or the psychological problems he may be facing. Relevantly, there are no clearly established facts from which any inference might be drawn or even available, as to any claim the applicant was making. It was open to the Authority to proceed on the basis that no such claim was ever advanced by the applicant.
In relation to the second matter, being harm from militia terrorists and gangs, it is clear that at paragraph 28 of its decision, the Authority addresses the applicant’s claim that he was at risk of harm by reason of his previous employment with foreign companies. The Authority accepted that the applicant had been previously employed working for foreign companies, however, it did not accept he had been at risk or been harmed when so employed. At paragraph 26 of its decision, the Authority also found that low level employees of private foreign companies were not targeted. In any event, at paragraph 28 of its decision, the Authority makes it quite clear that it found that those who formerly worked for foreign companies were not at risk, based on country information. These findings were nothing to do with the applicant’s current employment and were not restricted to the time when the applicant was employed.
Further, the applicant suggests that his claim was broader than in fact it was. The applicant’s claims were for the most part framed in very general terms and when they were specified, were by reference Shia Militia. The use of the term “terrorists or gangs” adds nothing in this context, particularly the light of the fact the applicant himself gave those phrases no specific meaning. On a fair reading of the Authority’s decision, it is plain the Authority addressed the claim as it was advanced by the applicant. There was no additional element that involved what the applicant now seeks to reify and designate as the “feared entities” in his written submissions.
In relation to the claim by the applicant seeking to rely upon a new ground which was raised during the course of oral submissions by the applicant’s Counsel, it was submitted by Counsel for the first respondent that leave had not been granted to rely upon the new ground. It was submitted by Counsel for the first respondent that the applicant should not be encouraged to raise new grounds of review during the hearing simply on the basis that the first respondent has an opportunity to respond to that ground. It was noted that at no point after the entry interview did the applicant continue to maintain the assertion about the bullet and the envelope. This assertion was also plainly at odds with the evidence of the applicant that he did not rely on in the supporting statement and way continue to maintain thereafter about the circumstances of his departure from Iraq. The Authority was thus open to treat the applicant’s claims as not extending to the assertion contained in the entry interview and no error arises.
Consideration
It is well established, that the Authority is not required to accept uncritically any and all claims made by the applicant: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs. (1994) 52 FCR 437 at [451]). The onus of proof, lies upon the applicant for a visa: (see Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at [195]). Nor does the Authority have to possess rebutting evidence before holding a particular assertion: (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348]).
The Authority’s reasons should not be read with ‘an eye too finely attuned to error’. Nor is the Authority necessarily required to provide reasons of the kind that might be expected of a Court of law: (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 593 at [604]).
Reviews by the Authority are governed by Part 7AA of the Act. It is a limited form of review, generally undertaken on the material provided to the Authority by the Minister (see s 473CB of the Act) and without accepting or receiving new information or interviewing the applicant (see s 473DB of the Act).
Section 473DD of the Act sets out the conditions upon which new information may be considered by the Authority. It states as follows:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment 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 new information 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 personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Ground one asserts that the Authority adopted an erroneous construction of s 473DD of the Act in that it rejected material that may have made a difference to the applicant’s case.
Counsel for the applicant submitted that Authority decisions are merely information, and must be treated in the same manner as any other new information. They are not legal precedents and should not be given the same status as a decision of this, or any other Court. The applicant argues that the Authority decisions in relation to other individuals, constitute personal credible information about an identifiable individual within the meaning of s 473DD (b) of the Act.
Authority decisions are capable of being publicly accessed but in such circumstances are anonymized. Each contains a particular identifier which is unique to that decision. No other decision of the Authority has the same identifier. Whilst the individual name of the applicant in a particular matter is not known, they are identifiable by reference to the identifier in the decision heading. This is exactly the same as would be the case, in the name of a particular matter within the Court. Additionally, whilst there may be more than one particular individual who goes by the same name, for example, John Smith or Tom Jones, Authority decisions and identifiers are unique to the particular individual.
The Court rejects the assertion by Counsel for the first respondent that in order to meet the definition of personal credible information, it would require a further step on the part of any person seeking to assert that, of actually knowing the individual name of the applicant. As pointed out by Counsel for the applicant, Parliament in its Explanatory Memorandum to the amendments allowed the publication of Authority decisions, it wanted them to be available to assist in understanding the nature, processes and decisions of the Authority. To suggest that they then could not be used in argument before the Authority, to the Court’s mind is nonsense. The Court is prepared to accept that they are of the nature of information and are not legal precedent, however, the Court is satisfied the Authority was in error in finding that they did not contain information about an identifiable individual and that the provisions of s 473DD(b) of the Act were not met. The Court is satisfied, that the identifier used, as it is unique to each matter, is sufficient to meet the requirements under s 473DD of the Act of personal credible information. The Court upholds this aspect of the application.
Annexures J and M consist of a DFAT Smart Traveler advice and a hand annotated map marking security incidents between 2013 and 2018.The Authority found that the DFAT advice, was not relevant as it pertained to Australian citizen travelers. Other information was already before the Authority, in relation security conditions in Iraq. The Authority was not satisfied that there were exceptional circumstances to admit the information. Given that there was already information before the Authority in regards to the security situation in Iraq, there is nothing unreasonable or exceptional in rejecting this evidence, given the limited nature of the review process and the provisions of s 473DD of the Act, cited above. The rejection does not involve a misreading of s 473DD of the Act. A finding that there were no exceptional circumstances was of itself sufficient to reject the information, particularly given the meaning of what is exceptional set out above in the first respondent’s submissions.
Ground two asserts jurisdictional error, by making findings at paragraphs 23 and 28 of the Authority’s decision, unsupported by evidence, making an erroneous finding contrary to evidence, or making a finding that no rational decision maker could have reached. While the written submissions initially refer to paragraph 23 of the Authority’s decision, given the content of the submissions, the Court assumes this is an error and in fact the reference to paragraph 23 should be a reference to paragraph 25 of the Authority’s decision. As submitted by the first respondent, a no evidence submission cannot succeed where there is a skerrick of evidence to support the finding.
Legal unreasonableness is invariably fact dependant and requires a careful evaluation of the evidence.
‘If the probative evidence can give rise can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence it cannot be said by a reviewing Court to be illogical or irrational or unreasonable simply because of the conclusion that has been preferred to another possible conclusion’: (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]).
At paragraph 25 of its decision, the Authority accepts that the applicant worked in a security role for a previous foreign company but that he only worked as a driver for his last employer, G4S. That conclusion was based on the applicant’s own evidence at his protection visa interview that he worked as a driver for G4S. The Court is satisfied that there was evidence before the Authority that supported this finding. At paragraphs 26 and 27 of its decision, the Authority does not accept that the applicant was kidnapped. The Authority found that the claim was inconsistent with country information and indicated that low level and short-term employees of private foreign companies, were not targeted for kidnapping in either 2013 or in more recent years.
The Authority found that the claim made by the applicant that, due to the fact he was not carrying his company ID when kidnapped, he was able to convince his kidnappers that he was a cleaner seemed implausible. Similarly, the Authority did not accept that his kidnappers would simply let the applicant go with a warning as plausible. It was on this basis that the Authority found that the applicant was not kidnapped.
At paragraph 28 of the Authority’s decision is the conclusion that flows from these findings. The Authority was satisfied that there was not a real chance that the applicant would suffer harm due to his previous employment. The Court is satisfied that there was evidence before the Authority, to make that finding. Further, the finding was reasonably open to the Authority based on that evidence. Accordingly, while the applicant may disagree with it, the finding is not legally unreasonable. Further, the Court is not satisfied that there was a claim before the Authority that the applicant would be required or would be likely to in the future again work for a foreign company in a security area. Ground two reveals no jurisdictional error.
Ground three asserts that Authority failed to consider certain integers of the applicant’s claims in terms of psychological harm if returned to Iraq and the risk of harm from militias, terrorists, gangs and authorities other than Sunni or Shia armed groups as a result of his previous employment with foreign companies. This ground should be rejected.
In terms of the risk of psychological or other mental harm, these claims were bare assertions without any supporting psychiatric or psychological evidence in the form of reports or otherwise. The Court agrees with the submission by the first respondent, that in the absence of any evidence, in order for the Authority to find established facts that the applicant was suffering from such a condition, and that it would be exacerbated upon his return, it was open to the Authority to proceed on the basis that no real claim had been made requiring consideration by the Authority. This aspect of ground three must fail.
At paragraph 26 of its decision, the Authority was not satisfied that the applicant had been kidnapped as a result of his work as a driver for G4S or because he had worked for any other foreign company. The Authority found that country information indicated that low level and short term employees of private foreign companies operating in southern Iraq had not been targeted in either 2013 or in more recent years. The Authority was not prepared to accept that if the applicant was kidnapped, he would simply be let go with a warning. The Court is satisfied, that this finding was not illogical, unreasonable or irrational and was reasonably open to the Authority on the evidence it had before it
At paragraph 28 of its decision, the Authority specifically considered the risk of harm to the applicant, on return to Iraq, due to his previous employment. The Authority noted that the applicant did not claim that he intended to or would have the opportunity to work for a foreign company if he returns. The Authority was not satisfied that there was a real chance that the applicant would suffer harm as a result of his previous employment for around seven months as a driver with G4S over five years ago, or with any other foreign companies prior to that. The Court does not accept that the use of the phrase ‘terrorists or gangs’ adds anything to the consideration of the matter. The Authority specifically considered the risks associated with the applicant’s previous employment and rejected them. This finding was reasonably open to the Authority based on the evidence it had before it. This aspect of the ground must fail.
In relation to the claim that the applicant was threatened as a result of receiving a letter and a bullet, the Court notes that this was only raised during the course of oral argument and then argued further during the course of supplementary submissions which were requested in relation to another matter. The Court notes the submissions of Counsel for the first respondent that this claim appears to have been abandoned by the applicant and therefore did not require consideration by the Authority. The Court notes the submission of Counsel for the first respondent that leave in such circumstances should not be granted where matters are sought to be raised in this manner.
The Authority did not accept that the applicant had been kidnapped. Accordingly, the Authority did not accept that the applicant complained to police about his kidnapping or that he would have been threatened subsequently because he complained to police. The Court is satisfied that this last claim, belatedly raised, was dealt with by the Authority in a finding of greater generality that the applicant was not kidnapped. The Court is also satisfied that this claim was not relied upon by the applicant as the matter went forward and was effectively abandoned. The Court is not satisfied that ground three, either in its original or revised form, reveals any jurisdictional error. Leave to rely upon the additional claim is refused.
Conclusion
Accordingly, the application is upheld.
The Court’s orders are as follows:
a)The application is upheld.
b)The decision of the Immigration Assessment Authority be quashed.
c)A writ of mandamus directed to the Immigration Assessment Authority, requiring them to determine the applicant’s application according to law.
d)An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
e)The first respondent pay the applicant’s costs fixed in the amount of $.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Date: 8 October 2020
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