FEDERAL COURT OF AUSTRALIA

DQX16 v Minister for Home Affairs [2019] FCA 1705

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, appeals from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority (the Authority). The decision of the Authority was to affirm a decision of a delegate of the first respondent (the Minister) not to grant the appellant a protection visa.

2    The appellant appeared for himself at the hearing of the appeal and made brief submissions with the assistance of an interpreter.

3    The appellant’s notice of appeal raises five grounds of appeal of a general nature. They are to the following effect:

(a)    that the Authority erred in its consideration of the appellant’s evidence about persecution in Iraq;

(b)    that the Authority denied the appellant procedural fairness in regard to its conclusions that the appellant’s claims were not made out and that not enough evidence had been provided;

(c)    that the Authority erred in failing to consider the appellant’s “fear for life at the hands of Militia”, and in making factual and legal errors;

(d)    that the Authority erred in concluding that the appellant did not meet the relevant criteria under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) and accordingly made a legal error; and

(e)    that the primary judge failed to consider information provided and made a legal error.

4    Although not specifically raised by those grounds, it was contended on behalf of the appellant in the Federal Circuit Court (where the appellant was legally represented) that, in non-compliance with s 67 of the Migration Act, the delegate’s decision failed to state the day and time of its making, with the result that no decision had validly been made by the delegate. The primary judge rejected this contention. I will consider this contention even though it is not specifically raised by the notice of appeal.

5    After the hearing of the appeal and while judgment was reserved, the solicitors for the Minister drew the Court’s attention to the fact that the High Court had, on 15 February 2019, granted special leave to appeal from the judgment of the Full Court of this Court in BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35. That case concerned a non-disclosure certificate issued under s 473GB of the Migration Act. In circumstances where a non-disclosure certificate under s 473GB had also been issued in the present case (AB 238), the Minister’s solicitors indicated that the Minister would not oppose judgment being deferred pending the outcome of the appeal to the High Court. The appellant was copied in on the correspondence between the Minister’s solicitors and the Court and did not indicate any opposition to judgment being deferred. My associate indicated to the parties that I was content to defer judgment pending the outcome of the High Court appeal, on the assumption that the appellant was content with this course. The High Court handed down judgment in that matter on 9 October 2019: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (BVD17). Following that judgment being handed down, my associate wrote to the parties and asked the appellant to indicate by a specified date and time if he wished to file a submission in light of the judgment in BVD17. The appellant did not respond to this correspondence by the specified date and time, nor has he responded between that date and the date of this judgment.

6    For the reasons that follow, I have concluded that the appeal is to be dismissed.

Background facts

7    The following summary of the background facts is based on the reasons of the primary judge and the materials in the Appeal Book.

8    The appellant is a citizen of Iraq and a Shia Muslim, born in Basra. He arrived in Australia by boat on 23 August 2012 as an unauthorised maritime arrival.

9    On 19 August 2013, the appellant applied for a protection visa. That application was found to be invalid.

10    On 17 September 2015, the appellant was advised by the Department of Immigration that the Minister had exercised his power under s 46A of the Migration Act and invited the appellant to apply for a protection visa.

11    On 1 December 2015, the appellant applied for a protection visa. In support of his application, the appellant raised the following matters:

(a)    The appellant played professional soccer for the Shaibi Team in Basra between 2004 and 2009. He stopped in order to pursue employment as a cook for Kellog Brown Root, a contractor providing services to the United States and United Kingdom defence forces at Basra military base.

(b)    Private militia groups, such as the Mahdi Army and Al-Qaeda, attacked the base. In 2011, due to those attacks, the appellant began to live on base, as it was too dangerous to travel to and from the base.

(c)    In 2012, the appellant received an anonymous threatening phone call, in which he was accused of being a spy for the US. Also in 2012, the militia published a list of the names of those working at the Basra military base (including the appellant’s name).

(d)    Subsequently, the appellant attempted to obtain a visa to the United States, but discovered that the process would take multiple years. As a result, the appellant fled Iraq and travelled to Australia.

12    The appellant fears being harmed by various militia groups if he is forced to return to Iraq, on account of his imputed political opinion as being opposed to the militia and pro-international forces.

13    On 9 March 2016, the appellant attended an interview with the delegate.

14    On 22 March 2016, the appellant provided a post-interview submission.

15    On 8 September 2016, the delegate refused to grant the appellant a protection visa.

16    On 14 September 2016, the delegate’s decision was referred to the Authority for review, pursuant to s 473CA of the Migration Act.

17    On 21 September 2016, the appellant requested an oral hearing before the Authority. The appellant did not provide any further submissions to the Authority.

18    On 27 October 2016, the Authority affirmed the delegate’s decision.

19    On the basis of evidence provided by the appellant which included a contract, references, employee ID and certificates, the Authority accepted that the appellant had worked as a cook between 2009 and 2012 at a military base in Basra which accommodated UK and US soldiers.

20    The Authority also accepted that the military base in which the appellant had worked may have been subject to attacks by militias. However, by reference to country information, it did not accept that such attacks were as frequent as claimed by the appellant or that the appellant was of interest to, or threatened by, Sunni militias.

21    In relation to the appellant’s claim that he had received telephone threats, the Authority found the appellant’s evidence to be vague and lacking detail. Although it accepted that the appellant “would have been terrified” if he had in fact received threatening calls, it considered in the circumstances that he should have been able to provide more detailed information in response to questions about the claim such as the timing of the threats.

22    The Authority accepted that the appellant had previously attempted to apply for a US visa. However, due to discrepancies between the date of the appellant’s US visa application and the period in which he claimed to have had his name placed on a militia list, the Authority did not accept that the appellant’s name was published in a list or that he had come to the attention of militias because he was a well-known soccer player.

23    The Authority also rejected the claims based on the appellant’s religion and his status as a failed asylum seeker.

24    The Authority concluded that the appellant did not satisfy the criterion for the grant of a protection visa in s 36(2)(a) or (aa) of the Migration Act and affirmed the decision of the delegate.

The proceeding in the Federal Circuit Court

25    The appellant applied to the Federal Circuit Court for judicial review of the Authority’s decision.

26    The appellant was represented by counsel at the hearing before the primary judge. In his further amended application, the appellant raised two grounds, both of which related to s 67 of the Migration Act. In summary, the appellant contended that, in non-compliance with s 67, the delegate’s decision failed to state the day and time of its making, with the result that no decision had validly been made by the delegate. The appellant contended that there was, therefore, no decision to refer to the Authority for review (under s 473CA) and the Authority was also unable to properly determine the operation of ss 473DD and 473DE.

27    The primary judge rejected these contentions, stating at [18] that while the statement of reasons prepared by the delegate pursuant to s 66 of the Migration Act did not state the time when the decision was made, “there was a record made of the decision which did”. That record, the primary judge held, complied with s 67. The primary judge’s reasons for so concluding were set out in more detail at [20]-[29]:

20.    The statutory scheme for the grant of visas to non-citizens relevantly starts with s.47 in sub-div.AA of div.3 of pt.2 of the Act which requires the Minister to consider a valid application for a visa and provides that this obligation relevantly continues until the Minister grants or refuses to grant the visa.

21.    Sub-division AC of div.3 of pt.2 of the Act concerns the grant of visas. Section 65 relevantly provides that, after considering a valid application for a visa, the Minister must refuse to grant the visa if not satisfied that the criteria for the grant of the visa have been satisfied. That is what occurred here.

22.    Section 66 provides that “[w]hen the Minister grants or refuses to grant a visa he or she is to notify the applicant of the decision”. Sub-section 66(2) gives further substance to the obligation to notify. It requires essentially, subject to irrelevant exceptions, that written reasons for the decision be given.

23.    Here, written reasons were prepared by the delegate and sent to the applicant in accordance with s.66 of the Act. They were contained in a document entitled “Protection Visa Decision Record”. The reasons were dated 8 September 2016. They were signed by the delegate whose position number was also recorded on the document. As the applicant says, this document did not include the time at which the decision was made. However, there was no obligation under s.66 of the Act for the time of the decision to be included in the written reasons or, indeed, anywhere else. That requirement arose in the next section, s.67.

24.    Section 67 provides:

67    Grant and refusal of visa—how and when

(1)    The following decisions are taken to be made by the Minister causing a record to be made of the decision:

(a)    a decision to grant a visa;

(b)    a decision to refuse to grant a visa.

(2)    The record must state the day and time of its making.

(3)    The decision is taken to have been made on the day and at the time the record is made.

(4)    The Minister has no power to vary or revoke the decision after the day and time the record is made.

(5)    Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).

(Emphasis in original)

25.    The Department of Immigration maintains two databases relevant to the making of decisions to grant or refuse visas. The first is the Integrated Client Services Environment (ICSE). This database contains records relating to matters including the lodgement and processing of protection visa applications. The second system is the Total Records Information Management (TRIM) database. This is where copies of documents are kept.

26.    The system followed by delegates when a decision to refuse to grant a visa is made is as follows:

a)    when refusing a visa application, a delegate prepares written reasons in the format of a “Protection Visa Decision Record”, saved into TRIM and printed;

b)    the delegate will then generate the notification of refusal letter through the Department’s Enterprise Correspondence System (ECS). Once the delegate has finalised the letter in ECS, it is automatically saved into TRIM and he or she will print a copy of the letter;

c)    the delegate will then compile the letter, the written reasons for decision and any other relevant documents to be sent to the applicant and place them in a registered post envelope for dispatch;

d)    the delegate will record the refusal decision as an event in ICSE, including the registered post tracking number.

27.    Two screenshots of the Department’s ICSE database relating to the applicant’s protection visa application were in evidence. The first screenshot showed the generation of a notification of refusal letter through ECS and finalisation of it on 8 September 2016 at 14:17:28. The second screenshot relevantly showed the following:

Event:        Refused

Qualifier:    s36(2) Not Satisfied

Effect date:    08/09/2016

Effect Time:    15:08

28.    The screenshot also showed that a letter was sent to the applicant in Australia on 8 September 2016 and recorded a registered post reference identifier.

29.    On the basis of those facts, I am satisfied that, upon making of the decision to refuse the applicant a protection visa, a record was made of that decision stating the date and time of the making of the decision. The error in the applicant’s argument was to mistake the written reasons for the delegate’s decision prepared under s.66 of the Act for the record made of the decision under s.67 of the Act. In those circumstances, s.67 of the Act was complied with and the issues raised by the applicant do not arise. On any view of the operation of ss.65 and 67, the decision was “made” within the meaning of s.473CA and s.473CB by 13:05 on 8 September 2016. A letter from the Authority to the applicant establishes that the matter was referred to the Authority on 14 September 2016, after the decision was made.

28    Accordingly, the primary judge dismissed the application.

The appeal to this Court

29    The appellant appeals to this Court from the judgment of the Federal Circuit Court.

30    The appellant relies on five grounds, as summarised at [3] above.

31    The appellant did not file an outline of submissions in advance of the appeal hearing.

32    I will first consider the contentions relating to s 67 of the Migration Act that were raised before the primary judge. I will then consider the balance of the appellant’s grounds of appeal. Lastly, I will refer to the judgment of the High Court in BVD17.

Section 67 of the Migration Act

33    The appellant has not advanced any oral or written submissions in support of the contentions relating to s 67 that were relied upon at first instance. Nevertheless, in circumstances where the appellant is not legally represented, I consider it appropriate to consider these contentions. The contentions were addressed in the Minister’s outline of submissions.

34    As noted above, the appellant’s case before the primary judge was that, in non-compliance with s 67, the delegate’s decision failed to state the day and time of its making, with the result that no decision had been validly made by the delegate. It was contended that there was, therefore, no decision to refer to the Authority for review (under s 473CA) and the Authority was also unable to properly determine the operation of ss 473DD and 473DE.

35    A similar argument was considered, and rejected, by Burley J in AEW18 v Minister for Home Affairs [2019] FCA 208 (AEW18), handed down shortly after the appeal hearing in the present matter. Burley J’s reasons for rejecting the argument are set out at [35]-[42]. In particular, his Honour reasoned at [37]-[39]:

37    Section 67(1) provides that a decision to grant or refuse a visa are taken to be made “by the Minister causing a record to be made of the decision”. Sub-section 67(2) requires that the record must state the day and time of its making. By sub-section 67(3) the decision is taken to have been made on the time and date that the “record” was made. Subsection 67(4) gives the evident reason for precision in maintaining the record, by providing that after that day and time the Minister has no power to vary or revoke the decision.

38    It may be noted that there is a material linguistic distinction between the s 66(2)(c) requirement for the provision of “written reasons” and the s 67(1) requirement that the Minister cause a “record” to be made of the decision. It is the day and the time of the making of the record of the decision, not the written reasons, that s 66(2) requires. The Minister submits that the word “record” is to be given its ordinary English meaning of “a written or otherwise permanently recorded account of a fact or event” (citing the Shorter Oxford English Dictionary, 6th ed, 2007), the fact or event here being the decision to grant or refuse a visa. This is to be contrasted with the “written reasons” identified in s 66. The Minister relies on an affidavit given by an assistant director of the Protection Assessment NSW Section, Humanitarian Program Operations Branch of the Department of Home Affairs, which was admitted into evidence before the primary judge. The affidavit explains that the practice of the Department is to create a permanent record in a database of the fact of a decision having been made under s 65 in relation to a visa application together with the time and day of the decision. The evidence indicates that such a record was created in respect of the decision of the delegate.

39    I accept that the ordinary meaning of the word “record” proposed by the Minister accords with the statutory scheme and suitably defines the subject matter of s 67(1). By creating in the database an entry specifying the day and time of the decision to refuse to grant the appellant’s visa, the Minister satisfied his obligations under s 67(2). In this context, the absence of a date and time on the written reasons provided by the delegate is irrelevant.

36    These reasons are equally applicable to the present case. In the present case, as in AEW18, there was evidence that a record was created in a database of the fact of the decision having been made. For the reasons set out by Burley J in AEW18, the primary judge was correct to reject the appellant’s contentions regarding s 67.

Grounds 1 to 5 in the notice of appeal

37    The grounds in the notice of appeal are summarised at [3] above. No particulars have been provided.

38    As noted above, the appellant did not file an outline of submissions in advance of the hearing. The appellant made some oral submissions at the hearing. These were largely directed to the underlying factual merit of his claims.

Ground 1

39    This ground alleges that the Authority erred in its “consideration [of the] [appellant’s] evidence about persecution in Iraq”. No particulars are provided and thus the particular error allegedly made by the Authority and the evidence to which that error related is not apparent.

40    No error by the Authority in the treatment of the appellant’s evidence is apparent on the face of the Authority’s decision. The Authority accepted the appellant’s claim to have worked as a chef at a military base and that the base had been attacked on occasion by militia groups. It also accepted the appellant’s explanation for why he had, initially, provided false information about his brother and his past employment. No error in those findings is apparent (and the Authority’s acceptance of the appellant’s explanation is favourable to him).

41    The Authority did not accept the appellant’s claim that he had been threatened in an anonymous phone call during 2012, or that his name had been published by a militia group, or that he had applied for a US visa in 2012 as a result of the threats. The Authority pointed to a range of matters which led it not to accept those claims, including that the appellant’s evidence was vague and lacking in detail and that evidence before the Authority about his US visa application suggested it had occurred in 2010 or 2011 (i.e. not in 2012 after the threats, as claimed). The Authority’s non-acceptance of the appellant’s evidence about these matters was logical and rational, because a logical and rational decision-maker could have reached the same conclusion on the evidence before the Authority: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131], [135] per Crennan and Bell JJ.

42    Ultimately, it appears that the appellant’s complaint that the Authority erred in considering his evidence about persecution in Iraq rises no higher than an expression of his disagreement with the Authority’s factual conclusions, thereby inviting impermissible merits review.

43    For these reasons, this ground is not made out.

Ground 2

44    This ground alleges that the Authority “denied the [appellant] procedural fairness that the [appellant] claims were not made out and not enough evidence provided”. The precise allegation made by this ground is not readily apparent, but it appears to allege that the Authority was required to inform the appellant, before making its decision, that the Authority considered that his claims “were not made out” and that “not enough evidence” had been provided by him (presumably, so he could submit further evidence and argument to the Authority) and that, by failing to do so, the Authority denied the appellant procedural fairness.

45    The decision of the Authority was made under Pt 7AA of the Migration Act. Section 473DA(1) provides that Div 3 of Pt 7AA, 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 [Authority]”. The prescription in s 473DA(1) was discussed by Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ in BVD17 at [29]-[35]. As their Honours said at [34], the consequence of the codifying effect of s 473DA(1) is that, except to the extent that procedural fairness overlaps with legal unreasonableness, procedural fairness analysis is not the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.

46    Part 7AA contemplates that the Authority will evaluate for itself the material before the delegate. There was no obligation on the Authority to inform the appellant of specific reservations it held about his case, or to provide the appellant with an opportunity to respond to them: see DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [69]-[76] per Reeves, Robertson and Rangiah JJ; see also DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [61]-[62] per Barker J. In light of these principles, no denial of procedural fairness is apparent in the present case.

Ground 3

47    This ground alleges that “the fear for life at the hands of Militia was not considered and [the Authority] made factual and legal error”.

48    Contrary to this ground, the Authority did not fail to consider the appellant’s fear for his life at the hands of militia. The Authority expressly noted that the appellant claimed to fear harm from militia groups, but did not accept that the appellant had a well-founded fear of persecution for that reason. For example, the Authority was not satisfied that the appellant was of interest to, or threatened by, Al-Qaeda or Sunni militias in Basra, was not satisfied that chefs or cooks who worked for private contracting companies were targeted or threatened by militia groups, was not satisfied that Sunni or Shia militias were looking for him in 2012, and was not satisfied that JAM, Al-Qaeda or any militant groups were looking for the appellant because of his work at the military base. The Authority found that there was not a real chance that the appellant would be targeted or harmed, including by militia groups, for any reason. The Authority gave logical and rational reasons for reaching those conclusions. Ultimately, this ground appears to rise no higher than an expression of the appellant’s disagreement with the Authority’s factual findings, thereby inviting impermissible merits review. For these reasons, this ground is not made out.

Ground 4

49    This ground alleges that the Authority erred “in its judgment that the [appellant] does not meet the relevant criteria under Australian Migration Act and Migration Regulation and accordingly made legal error”. No further particulars or explanation of the alleged error by the Authority is provided. In its present form, this ground also appears to simply register the appellant’s factual disagreement with the Authority’s decision. No error is established.

Ground 5

50    This ground alleges that the primary judge had “not considered information provided and made legal error”. In the absence of particulars, it is not apparent what “information” the primary judge is said to have failed to consider and what “legal error” the primary judge is said to have made. The ground cannot succeed for that reason. In any event, no error by the primary judge is apparent.

BVD17

51    The judgment of the High Court in BVD17 held, in summary, that procedural fairness does not oblige the Authority to disclose the fact of notification under s 473GB(2)(a) to a referred applicant in a review under Pt 7AA: BVD17 at [2]. In light of this judgment, it does not appear that any additional argument would be available to the appellant in the circumstances of the present case. Although the Authority did not refer to the certificate in its reasons, as in BVD17 this does not provide a basis for an inference that the exercise of the discretion conferred by s 473GB(3)(b) was not considered.

Conclusion

52    For these reasons, the appeal is to be dismissed. It is appropriate also to order that the appellant pay the Minister’s costs of the appeal. Although the appellant submitted that he does not have money to pay the costs, this is not a basis to depart from the usual order that costs follow the event. I will provide for the costs to be fixed by way of a lump sum.

Associate:

Dated:    18 October 2019