FZH18 v Minister for Home Affairs
[2020] FCCA 738
•3 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FZH18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 738 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – Decision of the Immigration Assessment Authority – Whether the IAA erred in assessing the applicant’s evidence – where the applicant was a minor at the time of the entry interview – whether the IAA was required to address applicant’s age – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.67, 68 Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 65, 414, 415, 473CA, 473DA, 473DC, 473DD, 473GA, 473GB, 476 |
| Cases cited: ABJ19 as Representative of ABI19 v Minister for Home Affairs [2020] FCA 136 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 29 |
| Applicant: | FZH18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 618 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 24 and 25 March 2020 |
| Dates of Last Submission: | 24 and 25 March 2020 |
| Delivered at: | Perth |
| Delivered on: | 3 April 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 618 of 2018
| FZH18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 19 October 2018.
The IAA affirmed a decision of the first respondent (the “Minister”) to refuse the applicant a Safe Haven Enterprise Visa (the “visa”).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
The Court had before it:
a)the applicant’s application for judicial review dated 19 November 2018;
b)correspondence between the Court, the applicant and Counsel for the Minister concerning a request for an adjournment (marked as Exhibit 1);
c)a Court Book (“CB”) numbering 307 pages (marked as Exhibit 2);
d)Ministerial Direction 56 (marked as Exhibit 3);
e)Annexure 1 of the PAM3 Guidelines (marked as Exhibit 4);
f)correspondence confirming service of the Minister’s submissions, Exhibit 3 and Exhibit 4 on the applicant on 3 March 2020 and 19 March 2020 (marked as Exhibit 5); and
g)an outline of written submissions filed by the Minister on 3 March 2020.
The Court confirmed with the applicant at the hearing of this matter that he had received a copy of the Court Book and that he had it with him. The applicant also indicated that he had a copy of the Minister’s written submissions.
This matter was heard over two days – 24 and 25 March 2020. The hearing proceeded by way of teleconference pursuant to ss.67 and 68 of the Federal Circuit Court of Australia Act 1999 (Cth). The Court determined that in light of current health advice, a telephone hearing was preferable. The parties agreed to this course of action.
At the hearing on 24 March 2020 there were issues with the phone connection and audio quality. The Court adjourned that hearing and relisted the matter for the following day. The matter returned for hearing on 25 March 2020. The Court is satisfied that both parties were given a meaningful opportunity to participate and advance their respective cases.
Background
The Minister’s written submissions (at [4]-[10]) accurately summarise the factual background to this matter. The Court adopts that summary as its own. With some amendments, it provides as follows.
The applicant is a citizen of Afghanistan who lived in Pakistan from 2006 to 2013 (CB 157). He entered Australia on 18 July 2013 as an unlawful maritime arrival (CB 141).
On 22 August 2016, the Minister advised that the bar pursuant to s.46A of the Act had been lifted. The applicant was invited to apply for the visa (CB 107-108).
On 21 July 2017, the applicant applied for the visa (CB 120-163). The applicant claimed to fear harm from the Taliban because his father had been killed by the Taliban in 2006. The applicant’s father was suspected of providing information to the government. As a result of this, the applicant’s brother, who was expected to join the Taliban, instead fled to Pakistan with the applicant and other family members. None of his family now reside in his home village in Afghanistan. The applicant’s family members are also well known and are relatively wealthy landowners in their village in Afghanistan. If the applicant returns to Afghanistan, people will know who he is and he will be identified by the Taliban. Further, the applicant claimed that he cannot relocate as he will be easily recognised because of his different mannerisms, accent and way of thinking (traits that he acquired in Pakistan) and he believes he will face harm as a returnee from the West (CB 159-160).
On 17 January 2018, the applicant attended an interview before a Ministerial delegate to discuss his claims for protection (CB 168). On 28 January 2018, the applicant’s lawyer forwarded various identity documents to the delegate.
On 21 February 2018, the delegate refused to grant the visa (CB 214-229). The delegate was not satisfied that the applicant faced a real risk or chance of harm for the reasons claimed.
The delegate’s decision was referred to the IAA for review pursuant s.473CA of the Act (CB 233-245).
The applicant’s lawyer provided a submission to the IAA dated 19 March 2018 (CB 249-253). This submission responded and took issue with the delegate’s findings.
On 12 October 2018, the applicant’s lawyer gave the IAA a copy of the applicant’s brother’s Refugee Status Assessment Record (the “RSA Record”) (CB 260-272). On 13 October 2018, the same lawyer provided a further brief submission to the IAA (CB 274-276).
On 15 October 2018, the IAA contacted the Minister’s Department seeking documents which had been included in the materials referred to the IAA. The Minister’s Department provided those documents on 19 October 2018 at approximately 10.00am (CB 277-283).
On 19 October 2018 (at approximately 5.30pm), the IAA affirmed the delegate’s decision to refuse the visa.
IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act and limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act. That section provides:
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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
Here, the IAA’s decision is 14 pages long and spans 42 paragraphs.
At [8]-[9] and [38]-[39], the IAA summarised the refugee and complementary protection criterion.
At [1]-[2], the IAA summarised the background to the application.
In relation to the materials before the IAA, the IAA noted that:
a)it had had regard to the material referred by the Secretary under s.473CB of the Act (at [3]);
b)it had considered the submissions dated 19 March 2018 and 13 October 2018 insofar as they made argument in relation to the delegate’s decision, the claims made to the delegate and the information that was before the delegate (at [4] and [6]); and
c)the RSA Record of the applicant’s brother was credible personal information that could have affected the decision and it was satisfied that “exceptional circumstances” existed that would warrant it being considered. The IAA ultimately considered the RSA Record.
The IAA then summarised the applicant’s claims for protection (at [7]).
The IAA found the applicant’s evidence about the claimed events in Afghanistan to be unconvincing as there were numerous inconsistencies in the account provided. This, the IAA found, undermined the credibility of the applicant’s claims (at [10]). In this regard, the IAA recounted in detail the applicant’s evidence as provided in his application, his interview with the delegate and his entry interview in 2013 (at [11]-[15]).
At [16], the IAA stated:
As detailed above, there were numerous inconsistencies in the applicant’s evidence including when he first lived in Pakistan, his family composition and whether his father was killed in 2006 as claimed. Significantly, the applicant gave no indication in the entry interview that he had ever lived in Afghanistan for any substantial period.
At [17], the IAA noted that the applicant had explained the reasons for inconsistencies in his evidence in the entry interview and his visa application. It was specifically noted that the applicant had stated that he did not give the correct answers at the entry interview because of advice from people smugglers and because he was “young, desperate, and scared that he would be sent to Nauru or Manus Island, or be deported to Afghanistan”.
At [18], the IAA stated:
Having listened to the audio recording of the entry interview, I note that that applicant was initially advised that he was expected to give true and correct answers, and that if information given at a future interview differed it could raise doubts about the reliability of that information. He responded that he understood this. I also note that the applicant referred to his father several times in the entry interview. For example, he provided a telephone number of his last address in Pakistan. The interviewing officer asked whose number it was, to which he replied “it’s my home number, my father or mother will answer it”. Later, the applicant was asked to provide an emergency contact. His response was his “father or mother”. The interviewing officer advised that there was space for only one name, and the applicant said “my father”. Later in the interview, the applicant confirmed that his father’s name was “[name omitted]” (the same name provided for his biological father on the SHEV application) and that he was approximately 60 years old. He said “he doesn’t work, he’s at home”. Towards the end of the entry interview, the applicant was asked if anyone on the boat to Australia told him to not tell the truth. He advised that people on the boat were telling him to say he was from Pakistan and not Afghanistan. The interviewing officer asked if he was told to say anything else that was not true and he said “that’s it”. The interviewing officer also advised the applicant that it is best to tell the truth, to which the applicant confirmed that he had been. Later in the entry interview, the applicant was asked whether anyone told him what to say when dealing with the Australian authorities, to which he replied “no”. The applicant was also asked if there was any reason why he could not be taken to a regional processing facility such as Nauru or Manus Island, to which he replied “no”.
At [19]-[21], the IAA referred to information gathered from the RSA Record and visa application and the applicant’s mother’s offshore visa application.
The IAA accepted:
a)the applicant’s identity as being that of a Sunni Pashtun from Afghanistan (at [22]);
b)that the applicant comes from a family who are ‘relatively rich’, that his family continue to own land in a particular area and that the land continues to generate income for the applicant’s family. The IAA also accepted that the applicant’s uncle and his sister (and her family) continue to reside in the wider province of Kandahar (at [23]); and
c)(despite some concerns) that the applicant moved to Pakistan with his family in around 2006 or 2007 and that, as he was a child at that time, he may not have been aware of the offshore visa application lodged by his mother (on which he was identified as a dependent). The IAA drew no adverse credibility finding from the applicant’s lack of knowledge of his mother’s application (at [24]).
The IAA had “difficulty accepting” the applicant’s claim that his father was killed by the Taliban in 2006. It noted that aspects of this claim were consistent with his brother’s claim (made in 2009) and his mother’s claim (made in 2010). Nonetheless, the IAA found the applicant’s own evidence to be unpersuasive (at [24]).
The IAA noted:
a)there were significant inconsistencies between the applicant’s evidence at the entry interview and his visa application as to when he first lived and went to school in Pakistan (at [25]);
b)in the entry interview the applicant nominated his father as the emergency contact which was “not insignificant” given that the applicant had the opportunity to list his mother as the contact (at [25]);
c)it was not persuaded that the reasons provided by the applicant in his visa application as to why he did not declare certain information in the entry interview adequately explained why he stated in the entry interview that his father was still alive and living “at home” (at [25]);
d)the applicant’s evidence in the interview with the delegate did not support his claim that his father was killed in around 2006. The IAA referred to the delegate putting to the applicant that he reported in October 2013 that his father was sick in hospital (thus still alive). The applicant explained this by stating that he referred to his uncle as “father” and that this uncle passed away in 2013. The applicant had earlier in the interview with the delegate spoken about both uncles as though they were both alive to which the applicant’s response was that he had just one uncle living in Kandahar (at [26]). The applicant’s evidence in his visa application was that his father’s two brothers continue to lease and receive income from the family land; and
e)the applicant claimed it was unlikely that he would be able to provide a death certificate for his uncle (who passed away in 2013) because deaths are not recorded in Pakistan (at [26]).
At [27], the IAA found as follows:
Overall, I consider the applicant’s evidence supports that his father was alive when he arrived in Australia in 2013. I also consider the inconsistencies between the applicant’s, his brother’s, and his mother’s claim of when his brother purportedly came to the adverse attention of the Taliban, and his brother’s evidence that he continued to travel to his home village up until 2009, not insignificant. Further, I consider the applicant’s evidence in the entry interview in respect of his life, background, and family composition, to bear little resemblance to the information put forward in his SHEV application. While I acknowledge that [the brother’s] evidence in his 2009 protection application and the applicant’s mother’s evidence in the 2010 offshore application supports aspects of the applicant’s claims, on the totality of the information before me, including his own evidence presented at different times in respect of his father, I am not satisfied that the applicant’s father was killed in the circumstances claimed. I also find the applicant’s reasons for not declaring in the entry interview that his father was deceased unpersuasive. Overall, I consider the applicant was not recalling a truthful account of events. For these reasons, I reject the applicant’s claim that his father was killed by the Taliban in around 2006 (or at any other time), and that his brother came to the adverse attention of the Taliban in connection with their father’s death, or on an independent basis. I conclude that the applicant has fabricated these claims in order to enhance his application for protection. On the evidence before me, I am not satisfied that the applicant faces a real chance of harm from the Taliban, or any other person or group, in connection with his father’s or brother’s claimed adverse Taliban profile.
The IAA then considered the applicant’s chance of harm as a failed asylum seeker and a returnee from the West (at [28]). The IAA referred to various sources of country information and found as follows:
a)the IAA was not satisfied that the applicant held any profile affiliated with the government or international community, nor any proximity to persons who are so affiliated and there was no information to indicate he would do so upon return (at [30]);
b)noting that the applicant had lived in Pakistan for a significant period, the IAA determined that there was no information that indicated that persons returning to Afghanistan from Pakistan face harm from insurgents or due to their accent, mannerisms, appearance, or their time spent in Pakistan (at [31]);
c)while the applicant had spent the last five years of his life in a Western country, the IAA did not accept that he would have lost his knowledge and practise of his Afghan culture. The IAA was satisfied (noting country information) that any foreign or Western mannerisms that the applicant may have acquired in Australia or Pakistan would be minimal and would not put him at a risk of harm (at [32]); and
d)country information did not indicate that in the applicant’s home area there is systematic targeting of returnees, including those who return from Australia or Pakistan, or who are failed asylum seekers. The IAA noted that, even accepting that the applicant may be identified as a former asylum seeker from Australia, it was nonetheless not satisfied that the applicant has any identifiable affiliations with international organisations or the Afghan government which would raise his profile and lead to a real chance of him being targeted by the Taliban or other insurgents in his home area (at [33]).
At [34], the IAA concluded:
On the evidence before me, I am not satisfied that returnees like the applicant, who have lived in Pakistan or a western country like Australia for several years and have sought asylum, are targeted by the Taliban, insurgents, or other groups due to an imputed pro-western opinion, or as a returnee asylum seeker, in [home area]. I am not satisfied that the applicant faces a real chance of harm in his home area due to his asylum application in Australia, due to his background, due to his time spent in Australia, due to the way he thinks, due to any perceived westernisation, or a combination of these factors.
At [35], the IAA considered the applicant’s risk of harm on the basis of generalised violence. The IAA found that any chance that the applicant would be harmed as a bystander, or inadvertently caught up in an attack, or otherwise harmed through generalised violence was remote.
The IAA was not satisfied that the applicant met s.36(2)(a) of the Act (at [36]-[37]).
Relying on the findings in relation to the refugee assessment, the IAA was similarly satisfied that the applicant did not face a real risk of significant harm on return (at [40]-[42]).
The IAA affirmed the delegate’s decision not to grant the visa.
Proceedings in this Court
The application for judicial review contains one ground of review as follows:
The IAA committed jurisdictional error when it failed to take account of the fact that the applicant was a minor at the time of the arrival interview and accordingly failed to consider the best interest of the child and that a minor might not present their claims for protection with the same level of detail or precision as an adult (PAM Annexure 1: Guidelines on minors[P AA326-4.112]
The applicant was legally represented until 29 July 2019. However, at the hearing of this matter by this Court, the applicant appeared without legal representation.
On 10 March 2019, the applicant emailed Chambers asking that the matter be adjourned. The Court responded that the applicant needed to contact the Minister seeking consent and, if consent was not forthcoming, he could make a formal application to the Court to adjourn proceedings (Exhibit 1 reflects the correspondence in that regard).
At the hearing of this matter (on 24 March 2020), the Court asked the applicant whether he still required an adjournment. The applicant advised the Court that he no longer required an adjournment and was prepared to proceed with the hearing on a final basis as scheduled.
It is now standard practice in this Court to allow an unrepresented party an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground: applying DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8].
To assist the applicant, the Court explained to him that this Court is limited to determining whether the IAA fell into jurisdictional error. It was explained that for migration decisions of this sort, the types of errors the Court tends to see include but are not limited to the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration & Citizenship v SZRKT (2013) 302 ALR 572 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant that this Court cannot undertake a “merits review” of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This Court cannot grant him the visa he seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in a material error of the sort outlined above.
The applicant was then asked to explain in his own words what he felt the IAA “did wrong”.
The applicant stated that at the time of his entry interview he was 17 and he did not tell the full truth at the interview because people smugglers told him not to. He also explained that the submission that the applicant’s lawyer gave to the IAA was not properly considered.
The Court will consider the applicant’s oral submissions and sole ground of review below.
Consideration
The applicant’s sole ground claims that the applicant was a minor at the time of his entry interview and this was not given appropriate weight or consideration by the IAA. For ease of reference, the ground of review in full reads:
The IAA committed jurisdictional error when it failed to take account of the fact that the applicant was a minor at the time of the arrival interview and accordingly failed to consider the best interest of the child and that a minor might not present their claims for protection with the same level of detail or precision as an adult (PAM Annexure 1: Guidelines on minors[P AA326-4.112]
As noted above, in his oral submissions, the applicant again stated that he was 17 at the time of the entry interview.
The question here is: did the IAA err by not taking into account the applicant’s age and any vulnerabilities this might cause? This ground, in effect, argues that the IAA did not properly consider the applicant’s young age at the time of the interview when addressing the inconsistencies between the applicant’s evidence at the entry interview and the evidence in his visa application.
The applicant made the following comments in his visa application concerning the arrival interview:
I was 17 years old when I arrived in Australia.
What I am know stating here is true. In the entry interview I did not tell everything - specifically I did not tell that my brother was in Perth and that my father was killed by the Taliban. I was afraid to tell these things because I was told by the smuggler to be short and simple otherwise I would be interrogated for 4-5 hours and I would be sent to Nauru or Manus Island or may also be deported to Afghanistan immediately. The smugglers specifically said not to tell if I have any family members in Australia. Furthermore I don’t have very detail information about how father was killed and brother was at danger.
I was young, desperate and scared that I would be sent to Nauru or Manus Island or deported to Afghanistan.
The IAA specifically acknowledged this submission at [17]. However, the IAA found that this did not adequately explain the many inconsistencies in the evidence as a whole (at [25] and [27]).
The IAA was not obliged to accept the applicant’s explanation for why his evidence was inconsistent. The IAA specifically acknowledged the applicant’s explanation and, appropriately, listened to the audio recording to form a view about the applicant’s evidence as a whole (at [18]). The matters the IAA referred to at [18], including the fact that the applicant had indicated that he understood that he should tell the truth and his confirmation that he had told the truth when answering questions, provided a probative basis upon which the IAA could reasonably find that the applicant’s explanation for the inconsistencies (including the fact that he was “young” at the time) was not persuasive.
The applicant’s sole ground of review asserts that the applicant was a minor and that, as such, he may not have provided his claims with the same precision and detail as an adult.
Here, it was not a lack of precision or detail in the applicant’s entry interview that was of concern to the IAA. Rather, it was the fact that the applicant’s evidence at the entry interview was contradictory and inconsistent with the matters he raised in his visa application. All of the evidence, as a whole, was surveyed by the IAA. In that context, the IAA was entitled to find that there were too many inconsistencies and the explanation provided to explain those many inconsistencies did not adequately explain them.
Not only did the IAA acknowledge the applicant’s reasons for the inconsistencies (including his age), the IAA engaged with these reasons and formed a reasoned conclusion that was open to it. There was no error in the IAA’s use of and reasoning in relation to the evidence from the entry interview.
To the extent that this ground suggests that the IAA was required to consider the “best interests of the child” (in circumstances where, at the time of the visa application, the applicant was not a child), this is not a relevant consideration. There is no requirement that the IAA consider the “best interests of the child”. The IAA is required to determine whether the criteria in s.36 of the Act are met: ABJ19 as Representative of ABI19 v Minister for Home Affairs [2020] FCA 136 at [28].
Here, the applicant also refers to “PAM: Guidelines on Minors”. To the extent that the applicant is suggesting that the IAA may not have considered PAM or misapplied PAM, PAM is not a mandatory consideration. While the delegate was required to take into account Direction 56 (which required the delegate to take into account the PAM 3 Refugee Law Guidelines and the Complementary Protection Guidelines), the IAA was not required to take PAM into account. As Exhibit 3 indicates, as the IAA was not exercising powers under ss.65, 414 or 415 of the Act, Direction 56 was not a relevant consideration in relation to the IAA’s decision.
Further, Exhibit 4 includes Annexure 1 of the PAM Guidelines. This indicates that the section concerning “Unaccompanied Minors” (which the applicant refers to in his sole ground of review) applies to persons who apply for a visa when they are under 18. Here the applicant was at least 21 when he applied for the visa.
The Annexure does state that the “procedures are, however, useful for children’s cases in general”. In this regard, it should be noted that at the entry interview, there was a responsible adult and an interpreter present. The record of the entry interview also indicates that no “vulnerability indicators” were marked (CB 98). In these circumstances, there is nothing to indicate that proper processes and procedures were not followed or that the applicant’s answers at the interview demonstrated an inability to engage. Further, the IAA itself specifically acknowledged the applicant’s reference to his being “young”. There is nothing to suggest that, even if PAM did apply, the IAA did not act fairly and appropriately when assessing the entry interview.
Overall, the Court is satisfied that the IAA gave due consideration to the applicant’s evidence as to his capacity at the time of the entry interview.
The Court is satisfied that the IAA did not err in assessing and relying upon the applicant’s entry interview in circumstances when the applicant may have been a minor at the time of that interview. The IAA’s findings and reasoning acknowledge this issue but reject the explanations offered for inconsistencies in the applicant’s evidence. While this Court might have found otherwise, this is not the test relevant to judicial review in this Court. Overall, the IAA’s findings were logical and reasonable and no jurisdictional error of the sort this Court is asked to address is evident.
The sole ground of review is, accordingly, dismissed.
Otherwise
Having addressed the sole ground of review and the oral submissions advanced by the applicant in relation to his age, the Court has otherwise remained alert to any error in the IAA’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
The IAA was missing the applicant’s brother’s protection visa application in the “review materials”. After making inquiries, the IAA received this information at 10am on 19 October 2018. The IAA’s decision was made at 5.30pm – that is, just over seven hours later.
The Court has considered whether the IAA had sufficient regard to these documents in light of the close proximity between when they were provided and the IAA’s decision.
The Court is satisfied that the IAA did have regard to these documents.
The IAA acknowledged the relevant documents at [19]-[20] and [27]. Relevantly, the IAA recognised that the information supported the applicant’s claims (even though the IAA was ultimately not satisfied that the applicant’s claims were established on the evidence as a whole).
This indicates that the IAA did consider the corroborative nature of the information and actively engaged with it.
The Court also asked Counsel for the Minister the extent to which the positive outcome in relation to the applicant’s brother’s protection visa application was a relevant consideration. The applicant’s brother had been provided protection on the basis of similar claims to those advanced by his brother.
The Court agrees with counsel for the Minister that the IAA was not bound to follow the determination reached by the reviewer in the applicant’s brother’s case. Relevantly, the IAA was not bound to accept (as the decision-maker in the applicant’s brother’s case had) that the applicant’s father was killed by the Taliban because he was perceived to be an informer against the Taliban.
The IAA was required to draw its own conclusions on the evidence and materials before it: DTH17 v Minister for Immigration & Anor [2018] FCCA 729 at [32]. The IAA expressly referred to the brother’s case and noted that the brother’s claim (that the father was killed by the Taliban) was accepted. However, the IAA found that, on the totality of the information before it, it was not satisfied that the applicant’s father was killed in the circumstances claimed (at [27]). It was open to the IAA to do so for the reasons that it provided at [27].
Finally, the applicant stated in his oral submissions that his lawyer’s submission had not been properly assessed. The Court does not agree. Here, the IAA referred to these submissions and stated that it had had regard to them at [4]-[6]. The IAA also referred to the content of the submissions at [19]. The submissions largely pertained to the applicant’s brother’s refugee determination. As noted above, the IAA considered this issue and then provided reasons as to why it found differently to the reviewer in the brother’s case.
The Court has otherwise reviewed the IAA’s decision and cannot identify any jurisdictional error.
Conclusion
The application for judicial review has failed to establish any error. The Court has otherwise assessed the IAA’s decision and is unable to detect any error of the sort this Court can address.
The application is, accordingly, dismissed.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 3 April 2020
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