FEDERAL COURT OF AUSTRALIA

BGV18 v Minister for Immigration and Border Protection [2019] FCA 602

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Iraq of Shia Muslim faith, appeals from a judgment of the Federal Circuit Court of Australia. In the proceeding in the Federal Circuit Court, the appellant sought judicial review of a decision of the Immigration Assessment Authority (IAA) pursuant to Pt 7AA of the Migration Act 1958 (Cth). The appellant, who was represented in the Federal Circuit Court, relied on three grounds of review. Each of these was rejected by the primary judge. One of the grounds was to the effect that it was legally unreasonable for the IAA not to consider exercising its power in s 473DC of the Migration Act.

2    The appellant’s sole ground of appeal is in substance the same as the legal unreasonableness ground at first instance.

3    For the reasons that follow, the appeal is to be dismissed.

Background

4    On 13 April 2013, the appellant arrived in Australia as an unauthorised maritime arrival.

5    On 11 June 2013, the appellant attended an interview with an officer of the department (the arrival interview). The materials before the Court include a form headed “Irregular Maritime Arrival & Induction Interview”. The form indicates that the interview took approximately 1 hour and 40 minutes. The appellant was assisted by an interpreter. The form contains “Important Information” on pages 1-2, including the following:

I need information about you and your arrival in Australia. This interview will be recorded. This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.

You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.

6    The form contains a series of questions and boxes or fields for the appellant’s responses. The responses are typed rather than hand-written. The completed form is 18 pages in length. In response to question 32 (which was “Why did you leave your country of nationality (country of residence)?”), the following appears:

In Iraq there is no future and no studies.

Is the main reason you came to Australia for employment?

No, there is no future over there and the people over there are savage. I feel the people are monsters and I am not a human being.

Did anything specifically happen to you that caused you to leave Iraq?

No to become one of them you need to be a member of the party and I am not a member of the party. My mother kept telling me leave you have no future here so I ended up leaving.

What party do you have to be a member of?

A member of a party and there are many parties Mahdi army, Bader forces, Al Fadila.

Apart from what you have said is there any other reason you left Iraq?

No, that’s it if you are not a member of one of these you have no future and I do not like to be a member of any of these parties. My mother was insisting I leave because I have no future because I am not a member of any of these parties.

7    On 9 May 2016, the appellant was invited to make an application for a temporary protection visa or safe haven enterprise visa, after the first respondent (the Minister) lifted the bar under s 46A of the Migration Act.

8    On 14 August 2016, the appellant applied for a temporary protection visa (protection visa). The appellant’s application was accompanied by a statutory declaration dated 1 August 2016 (the statutory declaration), which summarised his claims. The appellant’s claims were, in summary, as follows:

(a)    The appellant was approached by members of the Mahdi Army who suggested he should join their group. The appellant declined. The Mahdi Army members approached the appellant a second time at his house. The appellant again declined and claimed the Mahdi Army members said “okay” in a way that conveyed a threat. The appellant also claimed that the Mahdi Army members were angry that the appellant had referred to them as a “militia”.

(b)    After the appellant arrived in Australia, members of the Mahdi Army visited the appellant’s mother and said the appellant should be punished for calling them a “militia” and for refusing to cooperate with them.

9    On 5 June 2017, the appellant attended an interview (the protection visa interview) with a delegate of the Minister.

10    On 20 June 2017, the delegate decided to refuse the appellant’s application for a protection visa. I note the following in relation to the delegate’s decision:

(a)    The delegate stated that the appellant had been broadly consistent in his account of being approached by members of the Mahdi Army, and found at page 3 that “it is plausible that he may have been approached in the manner described”.

(b)    The delegate found at page 3 that the “basic facts” provided by the appellant relating to his encounter with the Mahdi Army members were “substantially true”, but that the appellant had “either misconstrued or exaggerated any threat or menace”.

(c)    The delegate noted that the appellant stated that the Mahdi army members did not harm or threaten to harm him at any point.

(d)    After further discussion of the appellant’s claims, the delegate concluded that he did not find that the appellant faced a real chance of persecution or serious harm in the reasonably foreseeable future.

(e)    The delegate was not satisfied that the appellant was a refugee as defined by s 5H(1) of the Migration Act. Therefore, the delegate was not satisfied that the appellant was a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a).

(f)    The delegate also concluded that Australia did not have protection obligations with respect to the appellant under s 36(2)(aa).

The decision of the IAA

11    The decision of the delegate was referred to the IAA pursuant to Pt 7AA of the Migration Act.

12    The appellant provided a submission to the IAA. On 26 February 2018, the IAA decided to affirm the delegate’s decision. I note the following in relation to the IAA’s decision:

(a)    The IAA had regard to the material provided by the Secretary to the Department pursuant to s 473CB of the Migration Act. The IAA also had regard to certain country information, some of which was published after the delegate’s decision.

(b)    It is apparent from the IAA’s reasons (at [5] and [15]) that the IAA listened to a recording of the arrival interview and a recording of the protection visa interview.

(c)    The IAA summarised the appellant’s claims at [8]. In describing the appellant’s claims, the IAA referred to the Asa’ib Ahl al-Haq (AAH) as the particular militia group that was claimed to have approached the appellant.

(d)    The IAA did not accept that the AAH or any Shia militia group attempted to recruit the appellant in the past or that he came to the adverse attention of the AAH or any Shia militia group for any reason, including insulting them, forgetting to attend prayers, for playing soccer or for choosing to live in the west rather than to fight (at [13]). The IAA’s reasoning for this conclusion was set out at [14]-[20]. I note the following:

(i)    The IAA considered that the appellant had provided “differing evidence” to the Department regarding his protection claims. The IAA referred to the arrival interview and stated at [14] that, “while he did mention the existence of Shia militia groups, he did not at any stage indicate that the AAH, or any other militia group attempted to recruit him or state that he had been threatened by these groups for any reason”. Rather, the IAA noted, the appellant stated that “he left because there was no future and no studies; that nothing specifically happened to him but you need to be a member of a militia group to have a future in Iraq and that he was not a member of, and did not want to be a member of, any of these organisations”. This was in direct contrast with the appellant’s claims in his protection visa application that the AAH attempted to recruit him and threatened him.

(ii)    The IAA noted at [15] that the evidence provided by the appellant was raised during the protection visa interview, and the appellant “acknowledged that he had given different evidence but stated that it was because he was emotionally tired after the sea journey, he was told he would have another interview to discuss his protection claims, and because he was scared that he would be deported”.

(iii)    The IAA considered that the appellant had provided “inconsistent evidence” in relation to certain aspects of his claims.

(e)    The IAA concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) and that he did not meet the criterion in s 36(2)(a).

(f)    The IAA also concluded that the appellant did not meet the complementary protection criterion in s 36(2)(aa).

The proceeding in the Federal Circuit Court

13    The appellant applied to the Federal Circuit Court for judicial review of the IAA’s decision. There were four grounds of review set out in the appellant’s amended application. As noted in the reasons for judgment of the primary judge (the Reasons) at [20], ground 2 was not pressed. The other grounds are set out in [20] of the Reasons. For present purposes, it is only necessary to refer to ground 1. By this ground, the appellant contended, in summary, that: the IAA had reversed a finding of fact in the appellant’s favour made by the delegate as to whether a militia group attempted to recruit the appellant; and, in reversing the finding by the delegate without exercising its power in s 473DC of the Migration Act to give the appellant an opportunity to comment, the IAA acted in a way that was legally unreasonable.

14    In relation to ground 1, the primary judge’s reasoning is at [21]-[26] of the Reasons. After describing the decision of the delegate, and noting that the IAA did not accept that the appellant was approached by the Mahdi Army, the primary judge summarised the appellant’s submission, which was to the effect that: the approach by the Mahdi Army was central to the appellant’s claim; in relation to that assessment, the IAA did not have the benefit of observing the appellant’s demeanour; it was legally unreasonable to depart from the delegate’s finding without considering whether or not to exercise the power under s 473DC to give the appellant an opportunity to comment on the issue. The primary judge reasoned as follows at [25]-[26]:

25.    The Authority is not bound by the findings made by the delegate and the issue relating to the approach by the Mahdi Army, the threat to the applicant’s mother and the alleged forcible recruitment of the applicant was a live issue as a result of the delegate’s reasons. It is apparent from the submissions advanced on behalf of the applicant to the Authority, that the applicant was contesting the issue in those submissions as in respect of the threat as well as the issue of forced recruitment.

26.    I do not accept that the departure from the delegate’s finding in relation to the approach to the application for recruitment by the Mahdi Army gave rise to circumstances in which it was legally unreasonable for the Authority to expressly consider exercising the power under s 473DC of the Act. I take into account in that regard what was said in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72]. It was appropriate for the Authority to evaluate for itself the material that had been considered by the delegate and in that regard, to make findings dispositive of the applicant’s claims. The Authority gave reasons for the adverse credit findings. The Authority’s reasons cannot be said to lack an evident and intelligible jurisdiction. The adverse finding in respect of the applicant’s claims concerning the approach by the Mahdi Army was open to the Authority. No jurisdictional error as alleged in ground 1 is made out.

15    The primary judge also rejected ground 3 and 4. The application for judicial review was dismissed.

The appeal to this Court

16    The appellant (who is now unrepresented) relies in his notice of appeal on a single ground of appeal as follows:

The appellant’s principal claim for a protection visa was based on the fact that a militia group attempted to recruit him in Iraq. The Minister’s delegate accepted that the event occurred in his decision dated 20 June 2017. In contrast, the Immigration Assessment Authority (“the IAA”) found at [13] that the event did not occur. Where the IAA reverses a finding by the Minister’s delegate in a visa applicant’s favour concerning a significant and material claim by the applicant without giving the applicant an opportunity to comment, such conduct by the IAA may be legally unreasonable. In the present case, the IAA, in reversing the finding by the Minister’s delegate in the appellant’s favour concerning whether the appellant was approached for recruitment by a Shia militia group, without exercising its power in s 473DC to give the appellant an opportunity to comment, involved conduct by the IAA which was legally unreasonable. Judge Street in the Federal Circuit Court erred in failing to find that the IAA’s conduct was legally unreasonable.

Apart from the last sentence, this ground is substantially the same as ground 1 at first instance.

17    The appellant did not file an outline of submissions. At the hearing of the appeal, the appellant made brief oral submissions. The Minister filed an outline of submissions and made brief oral submissions at the hearing.

18    Section 473DC of the Migration Act provides as follows:

Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

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

19    As I noted in Minister for Home Affairs v AYJ17 [2019] FCA 591, the principles concerning legal unreasonableness have been considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 (SZVFW) and by the Full Court of this Court in cases including Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. In SZVFW, Kiefel CJ stated at [10] that in the joint judgment in Li “it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification”. This may be the case where a decision is one which no reasonable person could have arrived at. The Chief Justice emphasised, at [11], that “the test for unreasonableness is necessarily stringent”.

20    The principles of legal unreasonableness were applied in the context of s 473DC in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, an issue of relocation arose before the IAA. That issue had not been considered by the delegate. The Full Court stated, at [67], that, as explained by Gageler J in Li, reasonableness is closely linked to procedural fairness. The Full Court stated: “Nevertheless, in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness rather than the principles of procedural fairness.” The Full Court also stated: “Further, in our opinion, that the outcome is unfair ‘in an ordinary sense’, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.” The Full Court stated at [77] that “[t]he analysis of legal unreasonableness in respect of statutory powers and discretions must be founded in the terms in which both powers and discretions are conferred”. The Full Court considered both the powers available to the Authority and the broader statutory context. It concluded that it was legally unreasonable for the IAA not to consider getting documents or information from the respondent in circumstances where the IAA knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation.

21    Applying these principles to the present case, the appellant has not established that it was legally unreasonable for the IAA not to consider exercising the power in s 473DC. The IAA was not bound by the findings of the delegate; rather, it was for the IAA to make its own findings on the basis of the material provided to it. Unlike in CRY16, where the issue of relocation was not a live issue before the delegate and the IAA did not have information from the respondent about that issue, in the present case the issue of whether the appellant was approached by a militia group was a live issue before the delegate and the IAA had information from the appellant about that issue. This issue was a central component of the appellant’s claims before the delegate and was addressed by him in the statutory declaration and protection visa interview, both of which were included in the material provided to the IAA. In these circumstances, it was open to the IAA to come to a different finding as to whether the appellant was approached by a militia group as claimed and to do so without considering whether to exercise the power in s 473DC.

22    It was also open to the IAA to rely on the differences between the appellant’s evidence at the arrival interview and his evidence in the statutory declaration and protection visa interview. I note that the arrival interview in this case provided an opportunity for the appellant to provide a detailed account as to why he left his country of nationality, and that the “Important Information” on page 1 of the form stated that the interview was the appellant’s “opportunity to provide any reasons why [he] should not be removed from Australia” and that he “should understand that if the information [he gives] at any future interview is different … this could raise doubts about the reliability of what [he had] said”. The appellant was questioned about his evidence at the arrival interview during the protection visa interview (as the IAA noted at [15]). The IAA listened to the recordings of both the arrival interview and the protection visa interview and discussed various matters concerning the arrival interview at [15] of its decision. Further, in reaching the conclusion that it did, the IAA did not rely solely on omissions from the arrival interview, but also relied on other matters as set out at [16] and [17] of its decision.

23    Taking these matters into account, it is not established that it was legally unreasonable for the IAA not to consider exercising the power in s 473DC. No error is shown in the primary judge’s conclusion in relation to ground 1 below. The appellant’s sole ground of appeal is not made out.

Conclusion

24    It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also make an order that the appellant pay the Minister’s costs of the appeal, to be fixed by way of a lump sum.

Associate:

Dated:    3 May 2019