GNI18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1171
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GNI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1171
File number: PEG 194 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 November 2024 Catchwords: MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise Visa – whether it was open to the Authority to make findings in respect of s 91WA – Authority provided logical and rational basis for its findings – capacity of the Authority to make findings that differ from the delegate - no merit – application dismissed. Legislation: Migration Act 1958 (Cth) – ss 5(1), 36(2)(a), 36(2) (aa), 65, 91WA, 473DA, 473CC, 499, 501. Cases cited: BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448; [2017] FCAFC 169
CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362
CPX16 v Minister for Immigration and Anor [2019] FCCA 199
Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387
Htun v Minister for Immigration and Multicultural Affairs (2001) 244 FCR 136; [2001] FCA 1802
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1; [2023] FCAFC 64
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16[2019] FCA 2033 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48; 284 FCR 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v We Shan Liang (1996) 185 CLR 259
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 30 October 2024 Place: Perth Counsel for the Applicant: Mr Stagliorio Solicitor for the Applicant: Mr Hayden (Hayden Lawyers) Counsel for the First Respondent: Mr Reilly Solicitor for the First Respondent: Mr Knuckey (Mills Oakley) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 194 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GNI18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Immigration Assessment Authority (“Authority”) on 10 May 2024 to refuse to grant the applicant a Safe Haven Enterprise (class XE) (subclass 790) visa (“the protection visa”).
BACKGROUND
The applicant is a male citizen of Iraq who entered Australia on 13 October 2012 as an unauthorised maritime arrival.
In a letter dated 21 December 2015, the applicant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.
On 13 April 2017, the applicant lodged an application for the protection visa. This application was refused on 26 September 2018 by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“delegate”). The delegate found that the applicant was not a person in respect of whom Australia has protection obligations nor a member of the same family unit of a person who is owed protection obligations by Australia and holds a protection visa.
The delegate referred the decision to the Authority for review. On 30 November 2018, the Authority affirmed the delegate’s decision not to grant the protection visa.
The applicant applied for judicial review of the decision by the Authority to the then, Federal Circuit Court by application filed on 28 December 2018. On 21 March 2024, by consent, the Court ordered the following:
1.A writ of certiorari issue directed to the Second Respondent quashing the decision of the second respondent dated 30 November 2018 (IAA reference: IAA 18/05782).
2.A writ of mandamus issue directed to the second respondent requiring it to determine the decision of a delegate of the First Respondent dated 26 September 2018 according to the law.
3.The parties bear their own costs of and incidental to this proceeding.
Consequently, the matter was remitted to the Authority. On 10 May 2024, the Authority (differently constituted) again affirmed the decision not to grant the applicant a protection visa.
The Court notes at this point that the consent orders referred to above were made by myself in Chambers. At the commencement of the hearing of this matter, both parties indicated no objection to my hearing what is a second application for judicial review in the same matter.
IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
The Authority had regard to review material given by the Secretary under section 473CB of the Migration Act 1958 (Cth) (“the Act”) and initially considered and determined whether new submissions, various country reports and other new information should be considered.
The applicant’s claims were summarised as follows:
•He is an Iraqi citizen of Faili Kurd ethnicity;
•His family fled from Iraq to Iran due to his father’s links to communism and/or due to their Faili Kurd ethnicity;
•In Iran, his family was issued an Identity Card for Foreign Citizens;
•He shares his father’s communist beliefs;
•He departed Iran by air, using a fake passport;
•If returned to Iraq, he fears harm due to:
- his ethnicity
- his status as a non-Muslim and non-practise of Islam
- his actual or imputed beliefs or ties to communism.
The Authority considered the applicant’s evidence regarding his life in Iran as a stateless person and found it to be highly unpersuasive. Combined with the applicant’s admission during the Safe Haven Enterprise visa (“SHEV”) interview on 4 July 2018, concerning false identity documentation and his Iraqi citizenship, the Authority accepted that the applicant is an Iraqi national and that Iraq is the receiving country.
Despite concerns about the applicant’s credibility, the Authority was prepared to accept at [31]- [36] that the applicant is a Faili Kurd. However, the Authority found that the applicant was not a credible or reliable witness. The Authority found that the applicant had gone to considerable lengths to conceal his identity and true circumstances, including providing false and misleading information about both his and his family’s respective situation and status. The Authority did not find any information provided in relation to these matters to be reliable. The Authority was not satisfied the applicant was born in Iran, resided in a camp, or that his family was expelled to Iran. It was also not satisfied that he departed Iran using a fake Iranian or Iraqi passport, and found it highly likely that he departed Iran (or Iraq) using a genuine Iraqi passport.
The Authority at [37] referred to submissions made by the applicant’s representative in 2024 which argued that as a Faili Kurd, the applicant’s ability to travel freely, access accommodation, employment and, more generally survive, is restricted. This assertion referenced the 2023 Department of Foreign Affairs and Trade (DFAT) Country Information Report. The Authority reviewed the referred section of the report and found there to be little indication that Faili Kurds are restricted in these ways.
The Authority also found at [38] the applicant’s claims concerning his family’s migration due to links to communism and the applicant’s self-stated belief in similar political views to be unconvincing. The Authority found the claims lacked specificity and doubted the genuineness of the claims in view of the timing and circumstances in which they were raised. The Authority was not satisfied that the applicant had any such links, imputed links or genuinely held communist views.
The applicant gave evidence in his protection visa application that his family migrated to Iran due to their Shia faith. The applicant denied being a Shia Muslim during the SHEV interview which the Authority found to be unpersuasive and was not accepted. The Authority preferred the evidence given in the application, supported by country information, being that the applicant is a Shia Muslim and found at [39] he would identify as such if he returned to Iraq.
The Authority did not accept at [41] that the applicant or his family were expelled from Iraq or that they have any ties to communism. After reviewing all the information, the Authority was not satisfied the applicant faces a real chance of harm due to past events in Iraq involving him or his family, or his actual or imputed political opinion now, or in the reasonably foreseeable future.
In finding the applicant to be a documented Iraqi national and citizen who would identify as a Shia Muslim if returned to Iraq, the Authority was not satisfied the applicant faces a real chance of harm as a Shia, a Faili Kurd, or as a Shia Faili Kurd now, or in the reasonably foreseeable future.
The Authority accepted at [51] that upon arrival in Iraq, the applicant would be identified as a failed asylum seeker returned from Australia. The Authority considered the applicant’s profile with regard to Iraqi authorities or any other group, along with challenges accessing public services, employment and housing, as well as the challenges and period of adjustment to reintegrate into life in Iraq. These challenges did not satisfy the Authority that they would lead the applicant to face a real chance of harm, including the denial of access to basic services or a livelihood. Ultimately, the Authority was not satisfied that the applicant faces a real chance of harm as a failed asylum seeker or due to his time spent in or return from a Western country like Australia now, or in the reasonably foreseeable future, should he return to Iraq.
On the information, at [54] the Authority found the chance that the applicant would be harmed as a bystander, or inadvertently caught up in an attack, or otherwise harmed through generalised violence in Iraq is remote. The Authority was also satisfied that any harm the applicant may possibly face in relation to generalised violence would also not be for the essential and significant reason or reasons of his race, religion, nationality, membership of a particular social group or political opinion. As a result, sections 5J(1)(a) and 5J(4)(a) of the Act were also not satisfied.
The Authority found the applicant did not have a well-founded fear of persecution within the meaning of section 5J of the Act.
The Authority concluded the applicant did not meet the requirements of the definition of a refugee in section 5H(1) and does not meet section 36(2)(a) of the Act.
A complementary protection assessment was also performed. The Authority considered whether a protection visa should be granted on the basis that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
The applicant’s specific circumstances and the challenges he may face upon a return to Iraq were assessed with regard to whether they would amount to significant harm as defined in section 5(1) of the Act. The Authority at [60] – [62] was not satisfied that there was the intention to inflict pain or suffering that can be regarded as cruel or inhuman in nature, severe pain or suffering, or to cause extreme humiliation, necessary to constitute cruel or inhuman or degrading treatment or punishment. It was also not satisfied that there is a real risk the applicant will face other forms of significant harm on this or any other basis.
The Authority concluded there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant did not meet s 36(2)(aa) of the Act.
It was noted that whilst not necessary to consider given the abovementioned findings, an issue arose concerning an identity document provided by the applicant and whether the grant of the protection visa is prevented by s 91WA of the Act. If this section were engaged, the protection visa must be refused under s 65 of the Act.
The Authority noted at [67] the applicant had provided an ‘Identity Card for Foreign Citizens’ during the SHEV interview which was issued in May 2011 by the General Office of Foreign Citizens and Immigrations, a division of Iran’s Ministry of Interior. The applicant had admitted the document did not accurately reflect his date of birth and was indeed fraudulent during the SHEV interview, following consultation with his representative. The applicant had also indicated that a vaccination certificate with a different date of birth was also fraudulent.
The representative for the applicant indicated the document was provided after the applicant received “bad guidance”. No further elaboration or explanation was provided in submissions following the SHEV interview.
The Authority found that the provision of the bogus document by the applicant in this case was intended to frustrate the delegate’s ability to establish the applicant’s nationality, which was a core element of the applicant’s (false) identity. In the circumstances, the Authority found at [70] – [75] it was not satisfied that the applicant had provided a reasonable (or genuine) explanation for why he provided a bogus Identity Card for Foreign Citizens as evidence of his identity. Overall, the Authority considered that the applicant provided the bogus document to conceal his Iraqi nationality, and to support a claim that he faced a real chance of persecution as a stateless minority in Iran.
Despite the applicant’s claims and provision of genuine documentary evidence of his identity, the Authority considered all the circumstances and was not satisfied the applicant had a reasonable explanation for producing a bogus document nor that s 91WA(2)(a) of the Act was met.
Therefore, the Authority was satisfied that s 91WA applied to the applicant and found that the grant of the visa was prevented by this section in accordance with s 65 and must thereby be refused.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in an application first filed on 6 June 2024 and amended on 16 October 2024. The following grounds were relied upon (less particulars):
1.The IAA failed to consider a claim made by the Applicant in relation to harm from Sunni Muslims. Further or alternatively, it impermissibly considered “new information” when assessing a claim of harm from Shia Muslims. As such, it made jurisdictional errors.
2.The IAA failed to consider a claim made by the Applicant in relation to official discrimination in Iraq. Thus, it constructively failed to exercise its jurisdiction, thereby making a jurisdictional error.
3.Ground 3 was abandoned during the hearing.
THE APPLICANT’S SUBMISSIONS
In a written outline of submissions filed on 16 October 2024, the applicant surmised the Grounds of Judicial Review as follows:
Ground 1: the IAA’s consideration of claims made in relation to risk of harm from religious groups miscarried.
Ground 2: the IAA failed to consider a claim in relation to official discrimination.
Ground One
The applicant submits he made two claims before the Authority through written submissions dated 22 April 2024 by his solicitor. The first was that “non-religious secular views would expose him to risk from… the Faili Kurdish community (identified as a Shia Muslim majority) referred to as the “Harm from Shias Claim”. He submits the Authority rejected this claim and the finding that the applicant was a Shia Muslim was vitiated by the Authority’s impermissible consideration of new information. The rejection of the Harm from Shias Claim was also vitiated with error.
The second claim was that the applicant’s “ethnicity as a Faili Kurd would also result in targeted harm from Sunni [Muslim] extremist groups” referred to as the “Harm From Sunnis Claims”. The applicant submits the Authority failed to consider this claim having made no findings about it which constituted a constructive failure to exercise its jurisdiction.
A further submission was made alleging the finding under s 91WA of the Act was erroneous and did not render the abovementioned error immaterial. The applicant cites four “self-sufficient” reasons on why the finding on s 91WA was erroneous.
First, had the Authority not made any of the errors pleaded in grounds one to three, it could have come to a different view under s 91WA(2)(a) as to whether the Applicant had a ‘reasonable explanation’ for providing the bogus document, namely his very fear of harm.
Second, the Authority denied the Applicant procedural fairness by assessing s 91WA without inviting him to comment on it before doing so. Importantly, neither the delegate nor the first decision by the Authority had considered s 91WA. Section 473DA(1) provides:
This Division [(i.e., Division 3 of Part 7AA of the Act, encompassing ss 473DA to 473DF)] together with sections 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 Immigration Assessment Authority.
However, s 91WA was not included in Division 3 of Part 7AA of the Act. It follows that s 473DA(1) did not apply to an exercise of power under s 91WA(1).
The applicant contends that as a result, the common law applied. In the absence of statutory language to the contrary, a legislative power ought to be interpreted as requiring those directly affected by the exercise of such power to be afforded procedural fairness. Here, not only was there no statutory language to the contrary, but it even (at least indirectly) confirmed that procedural fairness ought to have been afforded when exercising the power in s 91WA, as revealed by the requirement under s 91WA(2)(a) for the decision-maker to consider whether there was a ‘reasonable explanation’ for the giving of a bogus document, which implies that the first decision by the Authority ought to have invited comments as to the reasons for providing a bogus document.
In the current decision under review, the Authority failed to inform the applicant that it was considering exercising the power in s 91WA(1) and to invite comments on it, even though neither the delegate nor the first decision by the Authority had considered that provision. That failure amounted to a denial of procedural fairness.
Third, the Authority lacked jurisdiction and/or power to make a decision under s 91WA. The delegate had made the decision under s 65, not under s 91WA, which is confirmed by the following provisions of the Act, referring to the Minister making the original decision “under section 65”; ss 473DA(2); 473DC(1)(a); 473DD(b)(i); and the note to section 473DE. The only powers given to the Authority, by s 473CC(2), were to either affirm the delegate’s decision, made under s 65, or to remit the matter for reconsideration.
That s 65 referred to other provisions, such as ss 91WA and 501, did not mean that a decision made under the latter provisions was ultimately made under s 65. On the contrary, the very referral in s 65 to provisions such as ss 91WA and 501 makes it clear that s 65 is a power separate from the powers in ss 91WA and 501. Indeed, in the context of ss 65 and 501, it was held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48; 284 FCR 1 that the Tribunal lacks the power to make a decision under s 65 when reviewing a decision made under s 501. As the Tribunal lacks that power, it conversely lacks the power to make a decision under s 501 when reviewing a decision under s 65. By analogy, the Authority lacks the power to make a decision under section 91WA (being a separate power, as much as section 501) when reviewing decisions under s 65.
Fourth, even if the Authority were entitled, generally speaking, to determine whether s 91WA was satisfied, it was not entitled to do so in the particular circumstances of this case, as it was limited to assessing satisfaction of the same provisions assessed by the delegate, none of which was s 91WA; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16[2019] FCA 2033 at [56]-[71] (Rares J).
Ground Two
The claim that the applicant’s ethnic origin as a Faili Kurd would expose him to societal and official discrimination in Iraq was referred to as the “Harm from Official Discrimination Claim”. The applicant submits this claim was capable of satisfying ss 36(2A)(c), (d) and (e) of the Act, and thus 36(2)(aa) which the Authority failed to consider.
The applicant elaborated. First, the Harm From Official Discrimination Claim was clearly articulated or clearly arose from the materials, as is obvious from the Submissions, that were made to the Authority.
Second, the Authority considered two reports from the Department of Foreign Affairs and Trade, one from 2018 (2018 DFAT Report) and the other from 2023 (2023 DFAT Report), finding that the Applicant faced a risk of official discrimination in Iraq.
The Authority only acknowledged what the report said and what they had said departed from the 2018 DFAT Report. The Authority was obliged to consider the 2023 DFAT Report, by reason of s 499(2A) of the Act and Direction 84, which the Minister did not add to the CB, but is included in the Affidavit of Julian Hayden affirmed on 16 October 2024.
The applicant states their third contention that the Authority did not discuss the reasons on discrimination, let alone made findings on the terms contained in ss 5(1) relevant to 36(2A)(c), 5(1) relevant to 36(2A)(d), or 5(1) relevant to 36(2A)(e) of the Act.
The applicant further states the mere extraction of the provisions in the attachment to the reasons and their formulaic “recitations in the introduction or conclusions”, such as in the Authority’s decision at [60], are far from determinative, citing CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [26]. They argue this is especially so as the Authority expressed a bare conclusion, not reasons.
Fourth, the reasons do not even refer to Article 26 of the International Covenant on Civil and Political Rights.
Fifth, the reasons do not refer even to the Convention itself.
The applicant filed an outline of submissions on 25 October 2024 in reply to the respondent’s written submissions. The claims included the repetition of the arguments contained in the previous written submissions.
With regard to ground one, the applicant contests the first respondent claim that the Authority considered the harm from Sunnis claims. The applicant elaborates on their preferred interpretation of the Authority’s decision and states the first respondent’s recollection is not true. The applicant further submits the first respondent misinterprets BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448; [2017] FCAFC 169 (“BMB16”) in a fundamental way and claims the issue in this case is far removed from the present case.
With regard to the second ground, the applicant claims the first respondent did not dispute that the Harm From Official Discrimination Claim could satisfy the criteria under ss 36(2A)(c), (d) and (e), and therefore 36(2)(aa). The applicant further disputes the interpretation of the Authority’s decision and the principles of Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 (“Gunatillake”).
THE FIRST RESPONDENT’S SUBMISSIONS.
Ground One
The first respondent submits this ground goes no further than to express the applicant’s disagreement with the Tribunal’s conclusion and ought to be dismissed.
Ground one is summarised an allegation that; the applicant claimed to fear harm from Sunni extremists, the Authority found that the applicant was a Shia Muslim and would identify as such upon return to Iraq, and the Authority failed to consider the applicant’s chance of harm as a Shia Muslim from Sunni extremists.
The first respondent noted that the Authority would be in error if it failed to consider a claim by the applicant, either expressly made or which could be said to clearly arise from the available materials: (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (“NABE”), at [60] per Black CJ, French and Selway JJ). However, it is evident the Authority considered the claim that the applicant may face harm from Sunni extremists as a Shia Muslim and made findings that were open to it on the available materials.
The first respondent also submitted that the Authority expressly considered and rejected the claim that the applicant feared harm on the basis of being a non-Muslim, or not practising Islam.
It was further submitted that is it evident the Authority engaged with the relevant evidence and gave detailed consideration to the claim that the applicant may face harm from Sunni extremists. The Authority’s finding were reasonably open on the available material and for the reasons it had given: (Htun v Minister for Immigration and Multicultural Affairs (2001) 244 FCR 136; [2001] FCA 1802 at [42] per Allsop J). The Authority’s decision does not lack an evident or intelligible basis: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, at [135] per Crennan and Bell JJ.
In relation to an addendum to ground one where the applicant states that if ground one is made out, the Authority’s findings under s 91WA cannot be used in a materiality argument, it is submitted that the Authority’s finding with respect to s 91WA are without error, and irrespective, the relevant substantive ground one for this complaint is also without error. The Authority’s findings under s 91WA were open on the evidence before it, and for the reasons it gave. The Authority provided logical and rational reasons for the finding that the applicant’s explanation for providing the bogus document was not reasonable within the meaning of s 91WA of the Act.
The first respondent outlined the Authority is not restricted to the correction of an error made by the delegate, and has the power to make findings of fact, or take an approach, that differs from that of the delegate relying on BMB16 at [16] per Dowsett, at [31] per Besanko J, and at [88] per Charlesworth J.
Ground Two
The first respondent surmises ground two as the argument that the Authority failed to consider a clearly articulated claim against s 36(2)(aa) of the Act, specifically the societal and official discrimination in Iraq against the applicant as a Faili Kurd (“Official Discrimination Claim”).
The first respondent highlights the allegation is a clear example of what the High Court of Australia warned against in Minister for Immigration and Ethnic Affairs v We Shan Liang (1996) 185 CLR 259 at [272], namely the assessment of a decision with an eye finely attuned to the perception of error. Other than the core argument in the ground, being whether the Authority considered the Official Discrimination Claim, the applicant provides various iterations of the allegation which cannot be sustained.
The first is that the Authority failed to provide reasons that identify the relevant provisions and country information considered. This argument cannot succeed because the Authority is not required to refer to every item of evidence and each relevant provision. Rather, the requirement to engage in an active intellectual process requires a real consideration of the evidence, not merely a recitation of parts of the evidence without consideration of the weight or significance to be given to it (Gunatillake at [74] per Murphy J). The Authority did engage with the applicant’s evidence and gave detailed consideration to the claims. The choice and assessment of the weight to be given to country information is a matter for the decision-maker (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, at [11]-[13] per Gray, Tamberlin and Lander JJ).
The second iteration comprised of the Authority’s reference to “serious harm” in its complementary protections assessment and the failure to provide its findings of fact with any detail in relation to s 36(2)(aa) of the Act. This argument mischaracterises the Authority’s findings and there is no basis to any contention the Authority applied the wrong test. Otherwise, there is no error. The Authority is permitted to refer to its previous finding of fact in relation to an applicant’s refugee claims when assessing his claims under the complementary protection provisions (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54][56] per Robertson J; MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J). Nor does brevity in the complementary protection findings of itself reveal any error where the ultimate findings of the decision-maker have an apparent, comprehensible connection to the basis for those findings; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1; [2023] FCAFC 64, at [62]-[64] per Markovic, Thomas and Button JJ.
CONSIDERATION
During oral submissions, Counsel for the applicant conceded that in order to be successful overall, the applicant needed to succeed in relation to claim a jurisdictional error as regards to s 91WA and then succeed in either the first or second ground. If the applicant was unsuccessful in relation to the contention as regards s 91WA, then it was not necessary for the Court to consider grounds one and two.
Section 91 WA reads as follows:
Providing bogus documents or destroying identity documents
(1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant's identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant's identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i) provides documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to provide such evidence.
(3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
The review conducted by the Authority was under the provisions of Part 7AA of the Act. Section 473DA indicates that the division ‘is taken to be an exhaustive statement of the requirements of natural justice hearing rule in reviews conducted by the Immigration Assessment Authority’. Section 473DB exhorts the Authority to conduct its reviews without accepting or requesting new information (s 473DB(1)(a)) and without interviewing the referred applicant (s 473DB(1)(b)).
First, the Court is satisfied that the Authority was entitled to make findings of fact or take an approach that differs from the delegate. In BMB16, Dowsett J had the following to say at [15] – [16]:
[15] It may be arguable that the Authority is, nevertheless, bound by findings of fact made by the delegate. However the better view is that the Authority must satisfy itself as to whether there should be a remitter with permissible directions or recommendations. That the Authority may, in certain circumstances, consider new material, leads inevitably to the conclusion that the review is not limited to a review on the material before the delegate. It follows that any review is not dependent upon identifying error in the delegate’s decision. There is no basis for arguing that the form of review will vary, depending upon whether the Authority considers, or does not consider new information. Whilst appropriate deference should be given to findings of fact based on “evidence” given in person to the delegate, such deference does not limit the nature of the review. It is rather a factor to be taken into account in conducting such review.
[16] On the other hand, the review cannot be entirely at large. It is limited to a consideration of matters relevant to the available permissible directions or recommendations, pursuant to reg 4.43(2) and reg 4.43(4), but limited by reg 4.43(3). Given that s 473CC plainly contemplates that the extent of the review will be limited by regulation, there can be no justification for assuming that the review is to be of the same nature as reviews prescribed by other provisions of the Migration Act. Nor is there any basis for reading down the ambit of review so as to exclude the rejection of findings of fact or the adoption of a different approach from that adopted by the delegate.
In CPX16 v Minister for Immigration and Anor [2019] FCCA 199, Judge Heffernan had the following to say about the capacity of the Authority to make a different findings with regard to s 91WA at [48]:
In this matter, the finding of the delegate that s 91W(2) did not apply, and that there was no evidence before her that indicated the applicant had provided, given or presented a bogus document to an officer of the Department or Minister was part of the decision made by the delegate in considering the applicant’s claims and determining that the applicant did not meet the criteria for a temporary protection visa. That being the case, and applying the reasoning of the full Court in BMB16, it was open to the IAA to consider the evidence relating to identity in the documents provided to establish identity and make contrary finding, as it did, that section 91WA did apply to the applicant. It then affirmed the decision of the delegate, albeit for different reasons. It did not fail to conduct a review in accordance with the Act.
Firstly, the Court rejects the contention of the applicant that it was not open to the Authority to consider and make a finding in respect of s 91WA. The issue of the applicant providing false documents was clearly raised with the applicant during the SHEV interview. At [70] the Authority noted the response from the applicant’s representative was that the applicant had received “bad guidance”. The post-interview submission provided by the representative fails to include any reasons or explanation in relation to this issue. The Court is satisfied the applicant would not have been taken by surprise that the Authority considered this issue. The Court is satisfied the Authority was entitled to consider the issue and to make a finding on it.
Secondly, the Court rejects the assertion that, as s 91WA falls outside Part 7AA of the Act, a separate common law requirement arose in relation to natural justice that required the applicant to be put on notice as to the possibility of an adverse determination under s 91WA and afforded the opportunity to make representations. The review was a Part 7AA review, and the requirement of the natural justice hearing rule is severely limited by the sections set out above. The Authority was entitled to make a s 91WA finding provided it complied with the relevant procedural fairness guidelines set out in Part 7AA. Nothing more, nothing less. The Court is satisfied it complied with those requirements.
Thirdly, the Court is satisfied that the Authority was entitled to come to the conclusion that it did, that the explanation given in relation to the use of the bogus documents was not reasonable. At [70] – [75] the Authority considered the explanation given, during the applicant’s SHEV interview being that he was given “bad advice”. It noted the lack of any further material addressing the issue. The Authority provided a logical and rational basis for coming to the conclusion that it did, being that the applicant sought to conceal his Iraqi nationality to support a claim that he faced a real chance of persecution as a stateless minority in Iran. The attack on the findings of the Authority in relation to s 91WA have no merit.
Given the concession by Counsel for the applicant that he needed to succeed in relation to the issue of s 91WA first, and then succeed either in relation to ground one or two, the application can be dismissed at this point of time because it is not necessary to deal with either grounds one or two.
DETERMINATION
Accordingly, the application is dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 November 2024
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