GSN18 v Minister for Immigration

[2020] FCCA 2227

FEDERAL CIRCUIT COURT OF AUSTRALIA

GSN18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2227

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation: 
Migration Act 1958 (Cth), ss.473DD, 473DE

N/A

Applicant: GSN18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 684 of 2018

Judgment of: Judge Vasta

Hearing date: 28 July 2020

Date of Last Submission: 28 July 2020

Delivered at: Brisbane

Delivered on: 28 July 2020

REPRESENTATION

Counsel for the Applicant: Mr M. Guo

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the First Respondent: Ms K. Hooper

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Applications filed 21 December 2018 and amended on 19 June 2020 are dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

PEG 684 of 2018

GSN18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 4 December 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, GSN18, a protection visa.  On 21 December 2018, the Applicant asked this Court to review that decision.  Usually I would give a fairly detailed summary of the background and the decision that had been made by the IAA. 

2. In this case, it is sufficient to say that the Applicant is a national of Iran and that he was claiming, in effect, that he and his brother were trainers who worked with people; giving them alternatives to drugs and promoting a healthy lifestyle. The brothers worked at gymnasiums and the two of them had been threatened gang members. The brother of the Applicant had been attacked by someone with a sword or a knife, which needed hospital and surgery treatment, and that the threats continued after he left hospital and, for those reasons, the two brothers left Iran.

3. The gravamen of this review as that it was the same reviewer who reviewed both the application of GSN18, this present Applicant, and his brother, GSM18.  The reviewer was a person, SM.  The date of decision of GSM18 was 4 December 2018 at 12.30 pm, and the date of this present Applicant, GSN18, was 4 December 2018 at 12.36 pm; that being that the decisions were made, it would seem, six minutes apart. 

4. Of course, that does not mean that the same reviewer decided the matter of GSN18 in a mere six minutes.  The date and time is needed to comply with the legislation and, of course, that is the time from which the period in which to launch any review application begins. So, for that reason only, the date and time are important.

5. This application has proceeded upon a presumption that the GSM18 decision was delivered before the GSN18 decision was delivered, but that is a presumption that is really only based on the fact that one was delivered six minutes before the other.  As I said to both Counsel during the course of argument, it would seem to me that there was definitely a period where the IAA reviewer did have both matters under consideration at the same time.

6. The ground of this application is that:

   1.The IAA erred in considering the review material in respect of his brother GSM18… and/or the reasons in respect of the IAA’s decision to affirm the matter under review in respect of GSM18:

   a. without the IAA first determining whether it was satisfied that there were exceptional circumstances justifying its consideration under s473DD of the Act, and/or

   b. without the IAA complying with its obligations under section 473DE of the Act, and…

   c. Further, s 473DE required the IAA to give the Applicant particulars of the information, which it did not do.

7. The real question is, did the IAA consider the GSM18 material when looking at the GSN18 application?  It may be said that the same question may arise conversely.  That is, did the reviewer consider the GSN18 material when looking at the application of GSM18?  But that was not a question that arose in the GSM18 review.  I should note at this stage that I have already decided the GSM18 application for review.  I did so earlier today and have already given ex tempore reasons dismissing that application.

8. What is significant, in this case, is that both brothers had, in their initial applications, told the Department that they were not religious.  In their respective interviews with delegates – and I add that there were separate delegates who assessed each brother – the brothers said to those delegates that they did not have any religious leanings – that they thought that religion was divisive and that none of them were religiously inclined.

9. The brothers were interviewed very soon after each other, and the respective delegates made decisions in relation to both their matters very close in time to each other.  What occurred after each delegate made their respective decision, was that the two brothers were both baptised into the same Christian congregation.  The IAA was given material in relation to both brothers, which ended up being exactly the same material – that is, certificates of baptism, and statements made by members of the congregation talking about the baptism and the attendance by the brothers at the congregation.

10. As I say, the new material was exactly the same in both matters. However, when it came to the claims, there were significant differences, even though it is obvious that the brothers were talking about the same matter. 

11. At paragraph 14 of the GSM18 reasons, which are at page 184 of that particular court book, the IAA said this:

    ·Over the course of 2012 and 2013 he [GSM18] and his brother [GSN18] developed a good reputation as personal trainers. Some people heard about their reputations and started sending them messages and calling them telling them to stop their work as personal trainers. The harassment intensified in the winter of 2013 and over the course of three to four months they called him about 15 times.

    ·He guessed they were working for a well-known criminal gang in his neighbourhood. Messengers were sent to them two to three times saying they were sent by MM and HB, two well-known criminals in his area. They also harassed his brother. They told them to stop working.

    ·In the winter of 2013 he was working at T gym. When he left the gym, a car screeched to a halt and four to five people got out. One of them attacked him with a large samurai style sword which made contact with his back. He was taken to hospital on B Street and his wound received three layers of stitches over the muscle and skin requiring two to three surgeries. He was released from hospital after two to three days and then recovered at home for two months.

    ·While at hospital he was questioned by the police. He told his close friends what had happened. The next day messengers from the gang came to hospital to tell him to stop telling everyone that they were responsible for the attack.

    ·After he got out of hospital he was told by a mutual acquaintance the gang was going to attack him again because he had passed on information about them to the community. He decided to leave Iran.

    ·He believes the gang was targeting body builders and personal trainers because they are helping people get fit and healthy rather than use drugs. He does not believe the police can guarantee his safety.

    ·He was also taken into custody three times by the Basij in 2007, 2009 and 2012, for attending parties where men and women and they were drinking alcohol. [Identifying information removed]

12. I then turn to GSN18. GSN18, being the brother of GSM18, is also it would seem, four to five years older than GSM18.  The IAA reviewer said this at paragraph 18 of the reasons, which is at page 138 of the GSN18 court book:

    Approximately a year before he left Iran, about five or six people came to E Gym where he was working and were selling drugs to the young people at the gym.  He intervened and told them they could not do this and asked them to leave.  His brother [GSM18] was working at the gym when this occurred.  They returned the following day and threatened him with a knife and said he could not stop them from what they were doing at the gym. 

    He told police people were trying to sell drugs at the gym, but the police did not do anything.  He told his friends, who told him these people were dangerous.  They had seen them in fights before and were aware they were an organised gang.  Three or four months after the gang first came to the gym – which was close to Iranian New Year – his brother (GSM18) was leaving the gym when he was attacked from behind by someone with a sword.  His brother was struck on his back, cut badly, including his lungs. 

    He spent two months in SB Hospital in Tehran.  His brother did not see who attacked him, but other people who witnessed the attack said it was the same gang.  A week later, when he visited his brother in hospital, two people told him (that is GSN18), the gang was responsible and that he should not interfere.  GSN18 believes the gang sent them, and this was their way of claiming responsibility for the attack. 

    Three to four months after his brother was attacked, acid was placed over his car parked in front of his house and the tyres were punctured.  He reported it to the police.  The same day, he received a phone call from HB, one of the leaders of the gang, who said that he would be in the same state as his car if he stayed in the area.  He thinks HB got his number from his business card left at the gym. 

    He told police he knew who placed the acid, but they were not interested, probably because they were paid by the gang.  The gang continued to operate.  He believes all this happened because he and his brother tried to stop the gang members from coming to the gym and to stay away from drugs and body building drugs, including steroids.  Although they stopped them selling drugs in the gym, they continued selling them in nearby cafés. 

    After he told the young people not to take drugs, some of them tried to return the drugs and told them it was because of what he, GSN18, had said.  The gang became angrier.  The telephone calls and threats continued until he left Iran.  In addition to threatening phone calls, the gang came seven or eight times to the shop where he worked and told him they were going to burn his brother’s ship.  After his car was damaged a month later, he decided to leave Iran because of the threats from the gang. 

13. Then GSN18 made this claim:

    He has also been arrested two or three times by the police for attending parties that had music, alcohol and women, and he is not religious because it causes separation between groups.

14. As I said to the Counsel in the course of this hearing, it is very difficult, if not impossible, to not even subconsciously be comparing both stories, given that they are talking about the exact same incident.  As it is that I am the judge hearing both matters, even if I had not talked about it in this way, no person would ever think that I had not looked at both matters and not even subconsciously compared and contrasted them.  However, that is part of a judge’s training; that judges can look at matters and consider them and realise whether they can take matters into account or not, and if they do not take matters into account, to simply ignore the matter and move on.

15. In the same way that I have made it clear that, even subconsciously, there is some form of acknowledgment of the differences, the Applicant in this case says that there must have been exactly that same form of at least subconscious acknowledgment of the matters from GSM18’s file when considering GSN18’s file. 

16. That, according to the Applicant, causes problems. Section 473DD says,

    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.

17. Section 473DE(1) says that

    Certain new information must be given to referred applicant

    (1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

    (a) give to the referred applicant particulars of any new information, but only if the new information:

    (i) has been, or is to be, considered by the Authority under section 473DD; and

    (ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

    (b) explain to the referred applicant why the new information is relevant to the review; and

    (c) invite the referred applicant, orally or in writing, to give comments on the new information:

    (i)  in writing; or

    (ii) at an interview, whether conducted in person, by telephone or in any other way…

18. Obviously, this section goes on to say that this does not apply to new information that is not specifically about the referred Applicant and is just about a class of persons, or is non-disclosable information, and so on. 

19. The question for me is whether the inference, that I have spoken of, is sufficient for me to infer, as well, that the IAA has considered this new information, that being the matters in the file of GSM18. That material was not before the delegate who considered GSN18’s original application. 

20. During the course of this hearing, there was discussion between Bench and Bar which did veer off into areas that were not particularly relevant, though I must say that this was my fault entirely.  Part of that discussion spoke of a judge’s training, in that a judge can recognise matters, if they do come to their attention, that are irrelevant, or immaterial, or simply not admissible.  Judges do this all the time.  There is no information as to whether IAA reviewers have such training, or how it is that they know to do this. 

21. One then takes some solace from s.473DD itself. Before a member of the IAA can consider new information, they have to consider whether it is:

    a)new information, then

    b)whether there are exceptional circumstances to consider that, and

    c)if the material is coming from the Applicant, whether it could have been before the delegate, and whether it is credible personal information. 

22. In many ways, the Authority is asked to do exactly what it is that judges do; that is, to look at a particular matter, decide whether it is relevant and, if it is not, then discard it and continue on with the process.  It is a task that IAA members are equipped to do. They have noted what the information is; they have decided whether it was new; and, if it is that they do not consider it in their assessment, then they simply do not consider it.

23. It seems to me that, in many ways, I can infer that the same thing has happened here; that is, the IAA has been given information, albeit on a subconscious level and not formally given, but the fact that the GSM18 and the GSN18 file are both in that particular reviewer’s docket. Having looked at both of those, the IAA has, in effect, been able to say that this information is not information under s.473DD that can have any further consideration or action in the assessment of this particular claim.

24. I say that because, having gone through the decision of the IAA in GSN18, there is no reference whatsoever to the material in GSM18 where one would consider that, if the GSM18 material was under active consideration, there would have been some reference to it. 

25. As I said to Counsel during the course the hearing, that if the cover sheet of both GSM18 and GSN18’s IAA reasons were taken away, and one did not know the name of the reviewer or the time and date of the decision, one could not discern that the IAA in one matter knew about the facts of the other matter, and vice versa.

26. That obviously is very much my subjective analysis, but it is one that leads me to come to that point that, whilst it is impossible to say that the material in both matters did not come to the attention of the IAA reviewer, the IAA reviewer has, in effect, done exactly what s.473DD has asked of that reviewer.

27. Obviously, the reviewer has not said any of that and this may be a flaw in my reasoning which may need appellate comment, but it seems to me that this is the only inference that I can come to on the facts before me.

28. For that reason, I find that there is no jurisdictional error.  I therefore dismiss the application. 

29. I must do so, in my view, with costs, though I acknowledge if there is an appeal, then the making of the costs order will end up being really in the hands of the appellate court.  But for completeness, I make the costs order in the sum of $7,467.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 21 August 2020.