Federal Court of Australia

CFK16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 470

ORDERS

THE COURT ORDERS THAT:

1.    The Appellants’ appeal be dismissed.

2.    The Appellants will pay the First Respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

1    The Appellants appeal from a decision of the Federal Circuit Court of Australia dated 16 July 2020: see CFK16 & Ors v Minister for Immigration & Anor [2020] FCCA 1940 (Primary Judgment). In the Primary Judgment, the primary judge dismissed the Appellants’ application for judicial review of a decision of the Second Respondent (Authority) dated 22 July 2016. The Authority had affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse to grant to the Appellants Temporary Protection (subclass 785) visas (visas).

2    The Appellants advance the following single ground of appeal:

The Federal Circuit Court fell into error by failing to find that the [Authority] had failed to have regard to various claims made by the First and Second Appellants in their first Protection visa application made to the Department of Immigration and Border Protection which was found to be invalid.

3    The Appellants seek the following Orders:

1.     The appeal be allowed.

2.     The orders of the Federal Circuit Court be set aside and, in lieu thereof, order that:

a.     The decision of the Authority be quashed;

b.     The matter be remitted to the Authority to be decided according to law;

c.     The First Respondent pay the appellant’s [sic] costs of the proceeding before the Federal Circuit Court;

3.     The First Respondent pay the Appellant’s [sic] costs of and incidental to the appeal[.]

4    For the reasons that follow, the Appellants’ appeal will be dismissed with costs.

BACKGROUND

5    The First Appellant and Second Appellant are husband and wife. Their two children are the Third Appellant (their son) and Fourth Appellant (their daughter). The Appellants are citizens of Iran.

6    The Appellants came to Australia as “irregular maritime arrivals”. On 23 August 2012, they came to Australia aboard a boat that departed from Indonesia and was intercepted by Australian authorities.

The invalid protection claims

7    On 24 October 2013, the First and Second Appellants purported to apply for a Protection (subclass XA) visa (Invalid Protection Applications). The Invalid Protection Applications were deemed invalid because they were subject to the bar in s 46A of the Migration Act 1958 (Cth) (Migration Act). For present purposes, the relevant fact is that the First and Second Appellants each attached a signed statutory declaration to the Invalid Protection Applications.

8    In the Invalid Protection Applications, the First and Second Appellants made six claims that are relevant for present purposes. First, it was said that the First Appellant “was born a Shia Muslim but [does not] practice anymore” and that his “children are not interested in following Islam because religion is forced in Iran”. Second, it was claimed that the Second Appellant and Third Appellant “attended political demonstrations as part of the Green Movement”. Third, it was claimed that the First Appellant “protested against the government by climbing on to the roof of [a] house and shouting “Allah Akbar”, as encouraged by the opposition party” (internal quotations in the original). Fourth, the First Appellant claimed that he was “concerned about retribution for being apathetic about Islam”. Fifth, it was claimed that the Second Appellant was being “harassed in the street all the time by the Basij for not wearing what they thought was appropriate clothing” and other “nonsense regulations discriminatory towards women”. Sixth, it was said that the First and Second Appellants’ daughter was not able to “attend any international [swimming] competitions due to the need to cover her body”. These matters were summarised by the Authority at [20] of its Reasons.

9    In this appeal, these matters, and particularly the First Appellant’s claim that he was “concerned about retribution for being apathetic about Islam”, were generally referred to as the “Religious Apathy Claim” made by the First Appellant.

10    On 16 July 2015, the Department of Immigration and Border Protection wrote to the First Appellant and invited him to apply for either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.

The valid protection claims

11    On 24 August 2015, the Appellants applied for Temporary Protection (subclass 785) visas (Valid Protection Application). In the correspondence which attached the Valid Protection Application, the First Appellant was described as the “main applicant”. Attached to the Valid Protection Application was a statutory declaration declared by the First Appellant on 23 August 2015. In that statutory declaration, the First Appellant claimed to fear harm resulting from a business dispute he had with a company, “Sepah Sad”, which was said to be affiliated with the Islamic Revolutionary Guard Corps (IRGC). In this proceeding, this claim was referred to as the “Sepah Sad claim”. The Appellants’ written submissions conceded that this statutory declaration “did not expressly refer” to the First Appellant “being apathetic about Islam”. That is, it did not refer to the Religious Apathy Claim.

12    As to the Sepah Sad claim, by way of summary, the First Appellant said that Sepah Sad owed him approximately $300,000 for office equipment which he had supplied as part of a business venture. The First Appellant claimed that Sepah Sad refused to make payment. The First Appellant said that he subsequently lost his temper and “started swearing at … the IRGC, the corrupted system, the Supreme Leader and the president of the time, Ahmadi Nejad”. The First Appellant said he then “immediately realised” he would be in “big trouble” because “insulting the Supreme Leader … and the IGRC could put [him] in jail for several years”. The First Appellant stated that he and his family “decided that [they] should leave [Iran] at the earliest”. The First Appellant stated that these types of matters were serious offences in Iran. The statutory declaration concluded as follows:

… [I]f I am returned to Iran, I will face arrest, arbitrary detention, torture and long imprisonment in the hands of the Iranian authorities on the basis of insulting the Supreme Leader, the Islamic regime of Iran, the president of the time, Ahmadi Nejad[,] and the IRGC. The authorities in Iran will not protect me if I go back to Iran.

13    On 26 November 2015, the Department wrote to the First Appellant inviting him to attend an interview to discuss his visa application and his claims that he is a person in respect of whom Australia has protection obligations: see Appeal Book (AB), 470.

14    On 3 June 2016, the Delegate refused to grant the visas to the Appellants: AB, 480-498. Among other things, the Delegate was “not satisfied that the [First Appellant] had any altercation with Sepah [Sad] officers, or that he left Iran in fear”: AB, 489. The First Appellant and his legal representative and migration agent were provided with the “Practice Direction for Applicants, Representatives and Authorised Recipients” (Practice Direction) given under s 473FB of the Migration Act: AB, 499. At [1] and [20]-[21], the Practice Direction provides as follows:

1.    [The Authority], in carrying out its functions under the [Migration Act], is required to provide a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 of Part 7AA of the [Migration Act].

…

20.    For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department.

•    any claim or matter that you presented to the Department that was overlooked.

21.    Any submission must be concise. It should identify and address the issues you want us to consider in our review …

(Emphasis added.)

15    On 8 June 2016, the matter was referred to the Authority for a review: AB, 503.

16    On 30 June 2016, the First Appellant’s legal representative and migration agent forwarded to the Authority submissions on behalf of the First Appellant: AB, 509-515. The Appellants accepted that these submissions did not raise the Religious Apathy Claim but expanded on matters relating to the First Appellant’s dealings with the Sepah Sad.

17    On or around 22 July 2016, the Authority affirmed the Delegate’s decision not to grant the Appellants the visas. The Authority’s findings are set out at [8] to [38] of its “Decision and Reasons”: see AB, 521-532. At [20], the Authority’s Decision and Reasons stated:

I note also that the applicants lodged a Protection visa application on 24 October 2013 which was deemed [i]nvalid under s.46A (the invalid 2013 PV application). Both the applicant and the applicant’s wife raised claims in this invalid application, and these included matters additional to the matters raised in the 2015 TPV application, such as: that the applicant no longer practises Shia Islam and his children are not interested in following Islam, the involvement of the applicant’s wife and son in green movement demonstrations, the applicant’s support for the green movement and opposition to the Iranian government, his wife and daughter being harassed for transgressing the dress code and having suffered other discrimination as women, and his daughter’s [sic] being not allowed to attend international swimming competitions because of the dress code. These claims have not been pursued by the applicant [i]n his 2015 TPV application, they were not considered in the delegate’s decision, and they have not been raised in the 2016 IAA submission. I have therefore not considered these claims any further.

(Emphasis added.)

The Federal Circuit Court

18    On 11 August 2016, the Appellants filed an application for judicial review of the Authority’s decision. At [7] of the Primary Judgment, the primary judge stated that the “first and second grounds of review in the application filed on 11 August 2016 … were formally abandoned at the hearing before [the Federal Circuit Court] on 20 May 2020”.

19    The Primary Judgment stated at [8]:

The third ground of review in the application is:

The [Authority] failed to consider an integer of the claim[.]

Particulars

a)     The [Authority] failed to consider claims made by both the First and Second Applicants that were presented to the Department of Border Protection in the Applicant’s invalidated protection visa application.

b)     The claims clearly arose on the material before the Authority.

20    The Primary Judgment stated at [9]:

The applicants said in their written submissions filed on 3 January 2020 in support of this ground that:

2.     The applicant advances a single ground, alleging that the [Authority] failed to consider several claims advanced by the appellants (sic).

3.     The claims are recorded at [the Authority’s] Reasons [20], where the [Authority] refers to an invalid application for a protection visa made by the applicants at a time prior to the bar under s 46A being lifted in respect of them. Statement (sic) from the first and second applicant accompanied this invalid application. The claims made in those statements were never “abandoned” in any sense. Although the IAA was correct to observe that these claims were not mentioned in the statements made which accompanied the later, valid application for a protection visa, that did not permit an inference of abandonment.

4.     These statements had to be “considered” by the [Authority] in order to perform lawfully the function of reviewing the delegate’s decision because the statements were part of the review material (s 473DB(1)). The IAA stated expressly that it did not consider the information in these statements, and so, failed to perform the review required by law.

21    After setting out parts of an interview between the First Appellant and the Delegate, the Primary Judgment stated at [29]-[31]:

29.     … [A]t page 5 of the transcript of the delegate’s interview, the delegate asked the first applicant why he left Iran. He said it was because he had insulted the Supreme Leader and the Government, in the context of a business dispute. The delegate then asked the first applicant if he had any other fears when he left Iran. The first applicant said no.

30.     At that point, the first applicant did make it clear what all of his claims were. The delegate and the Authority considered precisely the claim about the first applicant insulting the Supreme Leader and the Government in the context of a business dispute. The Authority rejected that claim. That aspect of the Authority’s reasons for decision is not challenged in this proceeding.

31.     The Minister’s main argument was that the religious apathy claim, although clearly articulated and substantial in the 2013 claims, was not a clearly articulated and substantial claim by the time of the 2015 claims and the delegate’s consideration of them. I accept that argument. For the reasons expressed in paragraphs 29 and 30 above, I consider that the religious apathy claim had been abandoned by the time of the delegate’s decision, and, as such, was not at that time a clearly articulated and substantial claim.

The Parties’ submissions

Summary of the Appellants’ submissions

22    Mr Aleksov, of counsel, who appeared on behalf of the Appellants, referred to a statement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45 (Peko-Wallsend). That statement referred to the “general principle” that “an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made”. Justice Mason then stated:

… that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

23    The Appellants submitted that general principle ensured an administrative decision maker, such as the Delegate, is required to make his or her decision on the basis of the material available to them at the time the decision was made. The Appellants submitted that, in this case, the available material included the information contained in the 2013 Invalid Protection Applications.

24    The Appellants further submitted that there is nothing in the Migration Act which departs from that general principle. In this respect, the Appellants referred to ss 54 to 56 of the Migration Act.

25    Section 54(1) provides that “[t]he Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application”.

26    Section 54(2) provides:

For the purposes of subsection (1), information is in an application if the information is:

(a)     set out in the application; or

(b)     in a document attached to the application when it is made; or

(c)     given under section 55.

27    Section 55(1) provides that:

Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

28    Section 56 provides:

(1)     In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

(2)     Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

29    The Appellants submitted that nothing in ss 54 to 56 of the Migration Act departs from the general principle in Peko-Wallsend referred to above.

30    The Appellants submitted that the power to conduct an interview with an applicant arises from s 56 of the Migration Act. The Appellants submitted that s 56 is a departure from the concept of a hearing that one has before a tribunal or before a court. The Appellants submitted that there is a difference between the interview process conducted by a Delegate pursuant to ss 54 to 56 of the Migration Act and a hearing in a court of law. The Appellants submitted that one consequence of that difference is that an applicant failing to refer to a claim in an interview does not amount to the abandonment of a claim previously made. The Appellants referred to a number of features of the Migration Act and the application process which were said to support that proposition.

31    In light of those matters, the Appellants submit that the key issue in this appeal is whether the Religious Apathy Claim had been “abandoned” by the First Appellant such that it did not need to be considered by the Authority or whether the claim did need to be considered. The Appellants submit the First Appellant had not abandoned the Religious Apathy Claim.

32    The Appellants submit that the correct process of analysis in this appeal was as follows. The Appellants submitted that the Court should ask whether the Religious Apathy Claim had been abandoned before the Delegate. If so, the Appellants accepted that this appeal must fail. If not, then the Appellants submitted that the issue would become whether there was an abandonment before the Authority, which requires consideration of the function of the Authority under Part 7AA reviews.

33    The Appellants submit that there was no express abandonment by the First Appellant of the Religious Apathy Claim before the Delegate. The Appellants further submit that there was no abandonment of the Religious Apathy Claim before the Authority.

34    The Appellants submit that, as the Religious Apathy Claim was not abandoned before the Delegate, no inference adverse to the Appellants’ interests should be drawn from the submissions put to the Authority that did not mention the Religious Apathy Claim. It follows, in the Appellants’ submission, that the “clearly articulated claim” about religious apathy should have been considered by the Authority.

Summary of the Minister’s submissions

35    The Minister submits that the primary judge was correct in concluding in the Primary Judgment at [31] that the Religious Apathy Claim, although clearly articulated and substantiated in the 2013 Invalid Protection Applications, was not a clearly articulated and substantial claim by the time of the Delegate’s decision. The Minister submits that the primary judge correctly considered that the Religious Apathy Claim had been abandoned by the time of the Delegate’s decision.

CONSIDERATION

Principles

36    In DFU16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 222 (DFU16), Middleton J recently summarised the following principles at [15]-[22]:

The principles associated with a failure to consider a claim that gives rise to jurisdictional error are well-settled.

The appellant must show that he had “sufficiently raised the relevant issue” … before the Tribunal: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (‘NABE’) at [60] (Black CJ, French and Selway JJ) quoting SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [18] (Selway J).

In this respect, Allsop J (as his Honour was then) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (‘NAVK’) stated (at [15]):

… From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

I accept, as the Appellant suggests, that a matter that “squarely” arises does not need to be raised as a claim if it is self-evident from materials which, if accepted, would have satisfied the statutory test (in this case, the test set out in s 36(2)(b) or (c)): see NABE at 18-19 [58]; SDAQ v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] (Cooper J). Whether a matter is squarely before a Tribunal is determined objectively by reference to the facts of each case but it must be “tolerably clear” (NAVK at [15]) from the material itself such that a competent Tribunal would appreciate its existence.

The position in NABE reflects the principle expressed in Paramananthan v Minister for Immigration (1998) 94 FCR 28 at 63 (Merkel J), which emphasises the inquisitorial nature of the review proceedings and reminds us that articulation of the case is not required where the ground is apparent from the materials before the Tribunal.

The assessment of whether a Tribunal acting reasonably could have appreciated the existence of a claim should be undertaken by a reviewing court as best as it can without the advantage of hindsight: MZAJC v Minister for Immigration & Anor [2016] FCA 208 (‘MZAJC’) at [11] (Mortimer J). It is not for the reviewing court to retrospectively piece together a possible claim that might have been made before the Tribunal: MZAJC at [12] (Mortimer J).

I accept that this duty to review according to the merits is unaffected by whether or not a party is represented, as representation may affect duties in relation to procedural fairness but cannot alter the fundamental requirements of the Tribunal’s inquisitorial review.

Jurisdictional error will only arise where it is established that the failure to consider was material to the relevant decision (ie the Tribunal Decision): see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [32]-[37] (Kiefel CJ, Gageler and Keane JJ).

(Emphasis added.)

37    The parties’ submissions proceeded on the basis that the threshold issue in this appeal was whether the Religious Apathy Claim had been abandoned by the First Appellant or, put another way, whether the Religious Apathy Claim was put before the decision maker and therefore required assessment. The parties’ submissions also proceeded on the basis that such a question is a question of fact. That position is consistent with the principles extracted above from DFU16.

Application to the facts of this case

38    Having reviewed the materials provided by the parties, in my view, the First Appellant abandoned the Religious Apathy Claim. This is so for the following reasons.

39    First, as I understood it, it did not seem to be in dispute that the Religious Apathy Claim was made in 2013 in the Invalid Protection Applications. The relevant question was whether it was raised before the decision maker as part of the Valid Protection Application.

40    Second, on 27 May 2014, the First Appellant was advised that the 2013 Invalid Protection Application was invalid.

41    Third, on 16 July 2015, the Department of Immigration and Border Protection wrote to the First Appellant and again advised that the 2013 Invalid Protection Application was invalid. The First Appellant was invited to lodge an application for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa. In that correspondence to the First Appellant, the First Appellant was advised that it was “important that [he] explain why [he is] seeking protection in Australia and give details of [his] protection claim(s)”.

42    Fourth, as I have stated above, in support of the Valid Protection Application made on 24 August 2015, the First Appellant made a statutory declaration which did not refer to the Religious Apathy Claim.

43    Fifth, as indicated above, on 26 November 2015, the Department of Immigration and Border Protection wrote to the First Appellant and invited him to attend an interview “to discuss [the First Appellant’s] visa application and [his] claims that [he is] a person in respect of whom Australia has protection obligations”.

44    Sixth, on 11 December 2015, the First Appellant attended an interview with the Delegate. A consideration of this transcript reveals that the First Appellant verbally abandoned the Religious Apathy Claim during the interview with the Delegate (see AB 549-550). That transcript relevantly records the following:

DEPARTMENT OFFICER: … If you do not understand my question or anything else that is said, please ask me to repeat or rephrase the question. The purpose of this interview is for you to present further information in support of your application for a protection visa. The officer who decides your application for protection visa will take into account all information you have provided to the Department including during this interview …

(Emphasis added.)

45    This part of the transcript plainly invites the First Appellant to bring forward any claims the First Appellant may wish to make. In the context of the correspondence which preceded this interview (referred to above), the references to “your application” in the above extract should be taken to be a reference to the Valid Protection Application, not the Invalid Protection Applications. In addition, the second emphasised sentence above (being that “[t]he [relevant] officer who decides your application for [a] protection visa will take into account all information you have provided to the Department including during this interview”) should be taken to refer to “all information” provided in support of the Valid Protection Application. That is because the Valid Protection Application (and not the Invalid Protection Applications) were plainly the context and purpose of the interview.

46    The transcript then recorded the following relevant matters:

DEPARTMENT OFFICER: … if your application is refused based on your claims, it will be reviewed by the Immigration Assessment Authority. The Information Assessment Authority can only consider material provided by you to the Department in your application, unless exceptional circumstances apply. It is extremely important, therefore, that you give the Department full, personal and accurate protection claims as early as possible in the protection visa application process and that includes during this interview. If you do not give the Department all of your protection claims, and any additional relevant information you may have, and your application is refused by the Department, you might not have another chance to provide these claims …

(Emphasis added.)

47    Again, this part of the interview made clear that any protection claims should be made.

48    The transcript continued:

DEPARTMENT OFFICER: Now, of course, I’ve read your application and the statement you’ve put in there. So it appears from your application that your main concern is the threat from the guards corps, specifically the procurement officers you used to do business with.

…

DEPARTMENT OFFICER: Tell me about that.

INTERPRETER: Should I explain?

DEPARTMENT OFFICER: Please.

49    In relation to this passage, the Delegate referred to what the Delegate understood was the First Appellant’s “main concern”. The First Appellant did not respond by referring to the Religious Apathy Claim as being a “main concern” or an additional concern.

50    The transcript also included the following passage:

DEPARTMENT OFFICER: So you left Iran because, what was your fear why did you leave Iran?

INTERPRETER: It was because I had insulted the supreme leader and the government. Others told me that when that happens, when you insult the supreme leader and the government, when they take you nobody will ever find you again.

DEPARTMENT OFFICER: Ok, so you feared being detained, and something worse, because of what he said, and it’s because of that fear that you left Iran?

INTERPRETER: Yes.

DEPARTMENT OFFICER: Did you have any other fears when you left?

INTERPRETER: No. It was only fear – it was only fear for my life and I didn’t want anything to happen to my family as well.

DEPARTMENT OFFICER: Ok. I’ll ask you some questions about your business.

(Emphasis added.)

51    In relation to this passage, I reject the Appellants’ submission that there was a close relationship between the claims arising from having insulted the Supreme Leader of an Islamic theocracy and having an apathy towards Islam. The First Appellant’s insult to the Supreme Leader occurred in the context of a business dispute. It was unrelated to religious apathy. The First Appellant stated at the interview before the Delegate that he did not have any further claims beyond the Sepah Sad claim. In response to the question, “and it’s because of that fear that you left Iran?”, the First Appellant gave an unqualified positive response of “Yes”. This was in the context of an interview in which the First Appellant had earlier been told that “[i]t is extremely important … that you give the Department full, personal and accurate protection claims”. In those circumstances, it was open to the Delegate to treat the Religious Apathy Claim as abandoned.

52    The transcript also included the following passage:

DEPARMENT OFFICER: Ok, this is the important one … The concern for me is that when your arrived into Australia up to now, the reason you can into Australia has changed.

APPLICANT: Nah.

DEPARTMENT OFFICER: In your first interview with the Department you said you’d come here because you had some problems with Sepah, but more importantly you said you had problems with your son at school because he had friends who were not Muslims. Ok, I mean you haven’t raised those in your application today so there’s no need to go into them in detail.

INTERPRETER: It wasn’t part of my case … That didn’t put us in any sort of life threatening harm for me or my wife.

DEPARTMENT OFFICER: You haven’t put it in your application for protection[.] [T]hat’s why I’m not going to it in any detail, not going to consider it unless you raise it as a claim …

(Italicised and underlined text added.)

53    In this passage, the First Appellant made no mention of the Religious Apathy Claim. The First Appellant was specifically told that matters relating to the Religious Apathy Claim would not be considered by the Delegate unless the First Appellant raised them “as a claim”. In response, the First Appellant did not refer to matters concerning the Religious Apathy Claim.

54    The transcript also included the following passage:

DEPARTMENT OFFICER: … Ok, now is there anything else you’d want to address or anything else you want to raise?

INTERPRETER: [Matters were raised which are not now particularly relevant to this appeal.]

…

DEPARTMENT OFFICER: … Ok, now before we finish the interview is there anything else you would like to say in regard to your protection visa application?

INTERPRETER: Uh so we filled out everything again but app- this is second time we filled everything this time, uh, but the last time everything was, uh, disqualified, something like that?

DEPARTMENT OFFICER: That’s right, yes.

…

DEPARTMENT OFFICER: No, this application will be processed and it will be decided. The reason [the] last one was disqualified was nothing to do with your application, it had to do with changes in government policy …

DEPARTMENT OFFICER: It is indeed, yes. This application will be decided. Alright, have you put forward all your claims for protection?

INTERPRETER: Yes.

(Emphasis added.)

55    In this passage, after being asked on a number of occasions if the First Appellant had “anything else” to raise, no mention was made of the Religious Apathy Claim.

56    In the context of the manner in which the interview was conducted by the Delegate, I am satisfied that the First Appellant expressly abandoned the Religious Apathy Claim during the course of the interview.

57    In addition, on 3 June 2016, the Department of Immigration and Border Protection wrote to the First Appellant and advised him that the Delegate had refused to grant the relevant visas. The First Appellant accepted that, as part of this correspondence, the First Appellant was provided with the Practice Direction (referred to above). The First Appellant accepted that the Practice Direction advised the First Appellant of certain highly relevant matters. First, it advised the First Appellant that, for “the purposes of [any] review” by the Authority, the First Appellant could “provide a written submission” regarding “[w]hy you disagree with the decision of the Department” and, critically, “[a]ny claim or matter that you presented to the Department that was overlooked” (emphasis added). Second, the Practice Direction advised the First Appellant that any such “submission must be concise” and “should identify and address the issues you want [the Authority] to consider in our Review” (emphasis added). In these circumstances, the First Appellant and those representing him were expressly put on notice that, if any protection claim was said to have been “overlooked” by the Delegate, such a claim should be addressed in the submissions to the Authority.

58    However, notwithstanding this express notice, the submissions to the Authority made on 30 June 2016 did not refer (expressly or impliedly) to the Religious Apathy Claim. It is not the case that those submissions were drafted by a person who was unfamiliar with migration law or migration law processes. To the contrary, the Appeal Book shows (at, for example, AB 505) that the First Appellant at that time was represented by a lawyer and migration agent employed by Ghaffari Lawyers. It was that lawyer that signed the submissions to the Authority that made no mention of the Religious Apathy Claim. The First Appellant submitted that the failure of these submissions to refer to the Religious Apathy Claim was a mistake. I do not accept that submission because there is simply no evidence to support it. By way of example, there is no evidence from the lawyer that drafted the submissions which might indicate that the First Appellant instructed that lawyer to include the Religious Apathy Claim in the submissions, but the lawyer failed or inadvertently omitted to do so.

59    In short, before the Authority, the First Appellant’s legal representatives filed submissions and at no point did those submissions purport to pursue the Religious Apathy Claim or complain about the Delegate’s failure to consider the Religious Apathy Claim.

60    For the reasons given, the First Appellant abandoned the Religious Apathy Claim before the Delegate and that position of abandonment was maintained before the Authority. Put another way, the Religious Apathy Claim was not material that was put before the Delegate or the Authority.

MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948

61    The Appellant also submitted that this case was analogous to the decision of Dodds-Streeton J in MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948 (MZYQZ). In MZYQZ, it was alleged that the relevant decision maker failed to consider a claim previously raised orally in an interview with the relevant delegate.

62    At one level, there are some similarities between MZYQZ and the facts of this case. However, there were a number of factors that were present in MZYQZ which are not present in this proceeding. For the following reasons, MZYQZ provides no assistance to the Appellants.

63    First, in MZYQZ, it was “not disputed that … the appellant raised orally a claim based on his membership of the social group of young male Hazaras”: MZYQZ, [8]. In MZYQZ, this was referred to as the “conscription claim”. In contrast, in this proceeding, it is far from clear that the First Appellant raised the Religious Apathy Claim before the Delegate. Indeed, I have found that the First Appellant in fact abandoned the Religious Apathy Claim before the Delegate. In addition, in this proceeding, it is in fact not disputed that the religious claim was not raised before the Authority. Put another way, it was an uncontroversial factual premise of MZYQZ that a claim was raised. In this proceeding, whether that factual premise exists is the very matter in issue.

64    Second, in MZYQZ, the conscription claim was not referred to in the relevant delegate’s decision and the matter proceeded to an independent merits review process. The written submissions to the independent merits reviewer in MZYQZ expressly stated that the appellant “refer[red] to and rel[ied] on all previous oral and written evidence and submissions previously provided by or on behalf of the [appellant] …”: MZYQZ, [12]. There is no statement of that kind in the matters raised by the First Appellant before the Delegate or the Authority. In fact, it was accepted by the First Appellant that the Religious Apathy Claim was not raised in the submissions to the Authority. There was certainly no statement to the effect that, to the extent the First Appellant had made claims in the Invalid Protection Applications, those claims were repeated and relied upon for the purposes of the Valid Protection Application.

65    Third, in MZYQZ, the independent merits reviewer expressly stated the following to the appellant:

I have all the information previously provided by you and your advisor or referred to in the earlier decision and that will be taken into consideration whether or not we specifically cover it again today.

(MZYQZ, [15].)

66    That representation was made to the appellant in MZYQZ, but the independent merits reviewer “did not consider the information, including the conscription claim, that the appellant provided to the [delegate]”: MZYQZ, [29]. In contrast, in this proceeding, the Delegate did not represent to the First Appellant that the Delegate had “all the information previously provided” by the First Appellant and that such information would be “taken into consideration whether or not” it was specifically covered at the interview. To the contrary, the Delegate expressly represented to the First Appellant that the First Appellant had not “put [matters related to the Religious Apathy Claim] in [his] application for protection” and, as a result, the Delegate “was not going to it in any detail” and was “not going to consider it unless [the First Appellant] raise[d] it as a claim” (emphasis added). In addition, unlike the representations made to the appellant in MZYQZ, in this proceeding, the Delegate expressly told the First Appellant:

If you do not give the Department all of your protection claims, and any additional relevant information you may have, and your application is refused by the Department, you might not have another chance to provide these claims[.]

67    In these circumstances, I do not accept that MZYQZ is analogous to the facts of this proceeding. The decision in MZYQZ and this proceeding have different factual foundations.

68    In MZYQZ, Dodds-Streeton J stated at [56]:

It was not disputed that the conscription claim was not expressly raised either in writing or orally before the [independent merits reviewer (IMR)]. It was made only as an oral claim in the course of the [refugee statues assessment (RSA)] interview, first briefly by the appellant and then more substantially by his migration agent. It was common ground that the RSA officer failed to deal with the conscription claim in his reasons, but the appellant (although represented by a firm of migration agents), did not complain of the omission or refer at all to the conscription claim in written or oral submissions to the IMR, although there were many logical occasions and ample opportunity to do so.

(Emphasis added.)

69    That type of statement could not be made in respect of the First Appellant’s interview before the Delegate.

70    Justice Dodds-Streeton continued at [57]:

The central question is whether the IMR’s opening statement (particularly after the appellant’s avowed reliance on previous oral and written evidence and submissions) displaces the inference of abandonment that would otherwise arise from the failure to complain of the RSA’s omission or to repeat or refer to the conscription claim before the IMR.

71    Justice Dodds-Streeton stated at [63]:

The IMR’s obligation to consider information or claims raised only orally in the RSA interview arose from the unqualified statement he made, particularly in conjunction with the appellant’s foregoing statement that he relied on all previous oral and written submissions and evidence.

(Emphasis added.)

72    It was in that context that Dodds-Streeton J concluded at [65]:

As the conscription claim … was[,] in my opinion, incorporated by the reference of both the appellant and the IMR to the previously provided information, and was in that sense before the IMR, the failure to deal with it was procedurally unfair.

73    In light of the matters referred to above, in this proceeding, the “inference of abandonment” referred to by Dodds-Streeton J was not displaced and remained firmly in place. The question of whether that “inference of abandonment” had been displaced arose in MZYQZ due to two factors. First, as Dodds-Streeton J stated at [63], certain statements had been made to the appellant in that case (which are set out above). Second, it was uncontroversial that the appellant there had in fact previously raised the relevant claim before the relevant delegate. Neither of those factors is present in this proceeding.

74    MZYQZ is not analogous to facts of this case, and it provides no assistance in resolving this proceeding.

DISPOSITION

75    For the reasons given, the single ground of appeal must fail.

76    The appeal will be dismissed with costs.

Associate:

Dated:    11 May 2021

SCHEDULE OF PARTIES