Federal Court of Australia

AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Paragraphs 3 and 4 of the orders made by the primary judge on 23 September 2020 be set aside and in lieu thereof it be ordered that:

(a)    A writ of certiorari issue quashing the decision of the second respondent.

(b)    A writ of mandamus issue, remitting the matter to the second respondent and requiring it to determine the matter according to law.

(c)    Subject to paragraph 4 below, the first respondent pay the appellants’ costs of the proceeding before the Federal Circuit Court, as agreed or taxed.

3.    Subject to paragraph 4 below, the first respondent pay the appellants’ costs of the appeal, to be fixed by way of a lump sum.

4.    If any party wishes to seek a variation of the costs orders in paragraph 2(c) or 3 above, the party may within seven days file and serve a written submission (of no more than two pages). In that event, the other party may file and serve a responding written submission (of no more than two pages) within a further seven days, and the issue of costs will be determined on the papers.

THE COURT DIRECTS THAT:

5.    Subject to paragraph 4 above, within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellants’ costs of the appeal.

6.    In the absence of any agreement:

(a)    within 21 days, the appellants 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 first respondent 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 appellants’ 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 appellants appeal from the judgment and orders of the Federal Circuit Court of Australia delivered on 23 September 2020: AYT18 v Minister for Immigration & Anor [2020] FCCA 2646. The Federal Circuit Court ordered that the appellants’ application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the Authority) be dismissed. The Authority affirmed a decision of a delegate of the first respondent (the Minister) not to grant each of the appellants a Safe Haven Enterprise visa (SHEV), which is a form of protection visa.

2    By their notice of appeal, the appellants rely on one ground, which is as follows:

The Federal Circuit Court erred by failing to find that the Immigration Assessment Authority (Authority) fell into jurisdictional error by unreasonably failing to consider exercising its power and/or unreasonably failing to get new information under s 473DC of the Migration Act 1958 (Cth) (Act).

Background facts

3    The background facts are set out in the reasons of the primary judge at [3]-[9]. The following paragraphs are based on those paragraphs of the primary judge’s reasons, supplemented by certain documents in the Appeal Book (AB) to which the Court was taken during the hearing of the appeal.

4    The first appellant, aged 40 years at the time of the judgment at first instance, first came to Australia on 12 February 2013 in the company of his wife and eldest child who are the second and third appellants, doing so without visas. The fourth appellant, who is the youngest child of the family, was born in Australia. The first to third appellants came to Australia as Irregular Maritime Arrivals via Christmas Island. Each appellant is a Lebanese citizen.

5    On 5 December 2016, the first appellant applied for a SHEV. The application was made on his own behalf and on behalf of his family members. He was the only person to advance claims that he was a refugee by reason that he held a well-founded fear of harm or was otherwise entitled to complementary protection. In the first appellant’s visa application, in response to question 16 (at AB 78), he stated that his place of birth was “Zharia”, Lebanon. This appears to be a reference to Zahriyeh, a suburb of Tripoli, Lebanon. In a subsequent form, the first appellant provided a list of addresses, including “Tripoli Zehriyeh” for the period March 1980 to June 2007 and certain later periods (AB 218).

6    However, a number of identity documents provided by the first appellant to the Department indicated that his place of birth was Deddeh (a village about 9 km south of Tripoli in the Koura, or Al Koura, district of Lebanon). These included:

(a)    a “Copy of Family Civil Register” (AB 232), with Deddeh as the first appellant’s place of birth; and

(b)    a “Copy of Individual Register” (AB 234), with Deddeh as his place of birth.

7    Further, in a statutory declaration provided by the first appellant in support of his visa application, he stated in paragraph 1 (at AB 177): “I am also a member of the [AYT] family from Deddeh”.

8    The first appellant’s claims included having a fear of harm on return to Lebanon on the basis of an actual and imputed political opinion arising from his family’s association with the Syrian Social Nationalist Party (SSNP) in Lebanon. It was claimed that his family was well known to have members of high importance within the SSNP and that one of his uncles had been killed in 1982 because of this political affiliation. These claims were adhered to by the first appellant at his original entry interview on 25 February 2013 and again at an identity interview conducted on 22 October 2013. The first appellant maintained that he was a Syrian citizen until challenged as to his identity.

9    The first appellant further claimed a fear of harm by reason of the increasing instability and violence in north Lebanon. In a statutory declaration made on 22 November 2016, attached to his visa application, the applicant set out the matters upon which he sought protection as he was “terrified to return to my home country of Lebanon” on the ground of his membership of the SSNP and because he was a member of the AYT family (an expression used by the primary judge to refer to the first appellant’s family), who were “well known to have members of high importance within the SSNP”.

10    The first appellant’s declaration described the world-wide reach of the SSNP and the particular danger that he said he faced. He claimed that other members of his family had relocated out of Lebanon to avoid danger. His claims included that he was suspected to be an intelligence officer and informer to the Syrian regime, and for this reason, he would be attacked in the street and that his house had been shot at “about 20 times” and that his bakery businesses had also been threatened.

11    On 17 May 2017, the first appellant attended an interview with a delegate of the Minister (the Protection Visa Interview). The transcript of the Protection Visa Interview was in evidence before the primary judge. This indicates that, in answer to a question where he was born, the first appellant initially answered “Deddeh Koura” in Lebanon (AB 427). He was asked in what places in Lebanon he had lived. The transcript records that he answered “Tripoli” and then added: “Tripoli and another suburb in Tripoli called Zari”. (Following the reference to “Zari”, a question mark appears in the transcript.) The following exchange then took place (through an interpreter):

 Q51.    Okay, so you were born in Deddeh, how long did you live there?

A    Okay, he wasn’t born in Al Koura but it’s considered to be originally from the Koura but he wasn’t born there. So he lived all his life - - -

 Q52.    In Tripoli?

 A    In Tripoli.

 Q53.    Okay, at the same address?

 A    Tripoli, Zari.

12    The first appellant’s clarification – that he was not born in Al Koura (i.e. Deddeh), but is “considered to be originally from” there – was not the subject of further questions by the delegate.

13    On 8 June 2017, in response to a request made by the delegate during the Protection Visa Interview, the first appellant’s lawyers provided to the delegate certain additional Lebanese identity documents, together with a post-interview submission. The additional identity documents comprised:

(a)    a copy of the first appellant’s driver’s licence (AB 337), with Deddeh as his place of birth;

(b)    a “Family register document” (AB 339), with Deddeh as his place of birth; and

(c)    an “Individual register document” (AB 335), applied for in 2017, with Tripoli as his place of birth (the 2017 Individual Register Document).

14    On 28 July 2017, the delegate decided to refuse the first appellant’s application for a SHEV. The decision of the delegate is summarised at [10]-[13] of the reasons of the primary judge. The delegate did not make any finding as to the first appellant’s place of birth or in relation to the identity documents submitted by the first appellant.

15    On 14 August 2017, the delegate refused the second, third and fourth appellants’ applications for a SHEV.

16    The appellants’ applications were referred to the Authority.

17    The appellants did not seek to provide the Authority with any further information before it made its decision. The Authority did not seek or obtain any new information before making its decision.

18    On 29 January 2018, the Authority decided to affirm the decisions not to grant the appellants protection visas. The decision and reasons of the Authority are summarised at [16]-[25] of the reasons of the primary judge. Paragraph 9 of the Authority’s reasons, in the section of the reasons dealing with credibility, reads as follows:

I am also satisfied that the majority of the husband’s current claims for protection have also been fabricated. In the current application, the husband claimed he was born in Zehriyeh in Tripoli and claims he lived there for the majority of his life in Lebanon except for a period in 2007 when he lived another suburb in Tripoli. During the protection visa interview he claimed that he is considered to be from Al Koura but he was not born there and lived all his life in Zehriyeh, Tripoli. His youngest son’s Australian birth certificate also states the husband was born in Tripoli. However, the majority of the Lebanese identity documents that were provided with the application for protection states that the husband was born in Deddeh, Al Koura. The husband’s family register document dated 2008, the applicants’ family civil register document dated in December 2009, the husband’s individual register document applied for in 1997 and his Lebanese driver’s licence issued in 2003 all state that he was born in Deddeh. A further individual register document for the husband was submitted after the protection visa interview and states that he was born in Tripoli and was applied for by the husband on 22 May 2017. I have significant concerns about this document given the timing of its provision and the fact that it indicates the husband applied for it whilst he was residing in Australia and that all the details are the same as the 1997 version except for his place of birth. For this reason I have given more weight to the 1997 version of this document which states he was born in Deddeh and which is consistent with the other Lebanese identity documents he provided. I am satisfied that the husband deliberately provided the 2017 version of this document after the protection visa interview to strengthen his claim to protection. I do not accept that the husband was born in Tripoli and I am satisfied, on the evidence before me, that he was born in Deddeh, Al Koura.

(Emphasis added.)

19    In the above passage, the Authority stated that it had “significant concerns” about the 2017 Individual Register Document, having regard to the timing of its provision, the fact that the first appellant applied for it while he was residing in Australia, and because the place of birth was stated to be Tripoli (unlike an earlier version of the document). Read together with the second last sentence of the paragraph (referring to the first appellant “deliberately” providing this document to strengthen his claim to protection), and in the context of the first sentence of the paragraph, the Tribunal appears to have considered the 2017 Individual Register Document to be a false document. Further, having regard to the second last sentence, the Authority appears to have formed the view that the first appellant provided it as a false document to the Department.

The proceeding in the Federal Circuit Court

20    The appellants applied to the Federal Circuit Court for judicial review of the Authority’s decision. Ground 2 in the Federal Circuit Court proceeding was in substantially the same terms as the sole ground of appeal in this Court. The primary judge dealt with that ground at [81]-[97] of his reasons. His Honour did not accept that the suggested failure to consider getting information from the first appellant was legally unreasonable: at [92]. His Honour held that the case was not one in which the Authority decided the review on a basis that was substantially different to that which formed the basis for the delegate’s decision: at [93]. Further, his Honour held that any error was not jurisdictional: at [95]. His Honour also held that any error was not material, accepting a submission by the Minister that, even if the Authority had invited the first appellant to provide new information with respect to his birth place or usual residence, this could not realistically have resulted in a different decision: at [96].

The parties’ submissions

21    The appellants’ submissions, in brief outline, are as follows:

(a)    In his application for a SHEV, the first appellant claimed that he was born in and resided all his life in Zehriyeh, a suburb of Tripoli. In contrast, most of the first appellant’s identity documents provided in support of the application identified Deddeh as his place of birth.

(b)    At the Protection Visa Interview before the delegate, the first appellant provided the beginning of an explanation that he was considered to be from Koura despite being born in Tripoli. However, the first appellant’s place of birth or home region in Lebanon was not in issue before the delegate and no further information on the subject was sought or provided.

(c)    The Authority nevertheless relied upon apparent inconsistencies in the first appellant’s identity documents to find that the first appellant was born in Deddeh, and not Tripoli.

(d)    This finding was relied upon by the Authority for two purposes: first, as an aspect of the Authority’s finding that the first appellant was not a credible witness; and second, to dismiss the first appellant’s implied claim that he would be exposed to harm in northern Lebanon, including Tripoli.

(e)    The Authority did not invite the first appellant to explain the apparent inconsistencies in his identity documents or the consequence, if any, of a finding that he was born and resided in Deddeh and not Tripoli. Nor is there any evidence that the Authority considered inviting the first appellant to provide more information.

(f)    In circumstances where the issue of the first appellant’s place of birth and any inconsistencies in the identity documents were not explored by the delegate, and the Authority ought to have known the first appellant was likely to have more to say on the subject, it was unreasonable for the Authority not to consider exercising, or not to exercise, its power in s 473DC of the Migration Act 1958 (Cth) to get new information, namely the first appellant’s explanation for any perceived inconsistency.

22    The appellants’ submissions rely, in particular, on the judgment of the High Court in ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407 (ABT17).

23    The Minister’s submissions in response can be summarised as follows. In relation to the alleged failure to consider exercising the power in s 473DC, the Minister submits that where, like here, the Minister does not concede that the Authority failed to consider exercising its power under s 473DC, the appellants must discharge the onus of proof of demonstrating, on the balance of probabilities, that the Authority did not consider exercising the power: see BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196 at [38]; ASB17 v Minister for Home Affairs (2019) 268 FCR 271 at [46]-[49]; DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [44]. The Minister submits that the Authority is under no obligation to give reasons for decisions regarding the exercise of procedural powers and, in such circumstances, the appropriateness of drawing a factual inference, such as a failure to consider, is to be evaluated having regard to settled principles that an administrator’s reasons must be read fairly and not in an unduly critical manner, and must be read in light of the content of the statutory obligation pursuant to which they were prepared. The Minister submits that, with those principles in mind, the inference that the Authority did not consider exercising its power under s 473DC is not open because the Authority expressly stated “[n]o further information has been received or obtained”.

24    The Minister contends that it was not legally unreasonable not to exercise the power in s 473DC(3), for the following reasons (in summary):

(a)    First, unreasonableness will not arise simply from the Authority making factual findings different to the delegate without first inviting an applicant to an interview pursuant to s 473DC. In this case, the Authority was not required to inform the appellants of its specific reservations about whether the first appellant was born in and resided in Tripoli, and provide them with an opportunity to respond: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72]. Further, the Authority is not required to interview a referred applicant merely because credibility is in issue: ABT17 at [24].

(b)    Here, the Authority did not decide its review on a basis that was substantially different from the delegate’s decision, and its finding was based on documents provided by the appellants. In such circumstances, “there is nothing … to suggest that the [first appellant] did not have an adequate opportunity to advance any evidence or submissions he wished to in support of his claims, or that the [Authority] had disabled itself in some way from considering an issue” (DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at [71]) because:

(i)    both the delegate and the Authority found the first appellant was not a credible witness – i.e. the appellants knew that the first appellant’s credibility was in issue before the Authority made its decision;

(ii)    given the first appellant admitted he had provided false information about being a Syrian citizen, it would have been plain to him that his identity and associated issues, such as his place of origin and place of residence, would have been assessed by both the delegate and the Authority; and

(iii)    with that knowledge, the appellants provided various identity documents to the delegate, but did not provide any additional submissions or new information to the Authority.

(iv)    both the delegate and the Authority found the first appellant was not a credible witness – i.e. the appellants knew that the first appellant’s credibility was in issue before the Authority made its decision;

(v)    given the first appellant admitted he had provided false information about being a Syrian citizen, it would have been plain to him that his identity and associated issues, such as his place of origin and place of residence, would have been assessed by both the delegate and the Authority; and

(vi)    with that knowledge, the appellants provided various identity documents to the delegate, but did not provide any additional submissions or new information to the Authority.

(c)    This is not a case where legal unreasonableness arises because “the Authority knew that it did not have, but the [appellants were] likely to have, information” (Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]) about whether the first appellant was born in and resided in Tripoli. A large number of documents about where the first appellant was born and had resided had been given to the delegate by the appellants.

(d)    The appellants’ reliance on ABT17 is misplaced. This is not a case where the Authority, without good reason, did not invite the first appellant to an interview in order to gauge his demeanour for itself before deciding to reject an account given in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given to the delegate.

(e)    The Authority’s reasons show it rejected the claims about the first appellant being from, or residing in, Tripoli on the basis of documentary material. In those circumstances, the Authority could not have been “disadvantaged in comparison with the delegate” in any way (ABT17 at [22]) – the same documents were before both the delegate and the Authority. There was no informational gap, let alone an informational gap that was significant or central to the review being undertaken by the Authority: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58 at [51] and [77]. The Authority’s failure to invite input from the first appellant before it proceeded to reject his narrative was not beyond what it was free to decide: BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 at [144] and [173].

(f)    Absent legal unreasonableness, the Authority is under no obligation to reveal to an applicant new issues that may be dispositive: Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at [56].

25    Further, the Minister submits that, even if the Authority erred, the error was not jurisdictional (noting that in the present case the alleged legal unreasonableness relates to a procedural rather than an ultimate decision – cf MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [33]). The Minister submits that compliance could not have realistically resulted in a different outcome because the Authority’s finding as to whether the first appellant was born in Deddeh or Tripoli was not determinative of its review; it was the finding that he was not a real or imputed member or supporter of the SSNP or the Syrian regime that was determinative.

Consideration

26    Section 473DC(1), which is located in Div 3 of Pt 7AA of the Migration Act, confers on the Authority a power to “get” documents or information (described as “new information”) that were not before the Minister when the Minister made the decision under s 65 of the Migration Act and that the Authority considers may be relevant. Section 473DC(2) provides that the Authority does not have a duty to get, request or accept, any new information. Section 473DC(3) provides that the 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.

27    It is established that the powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li): see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21] per Gageler, Keane and Nettle JJ; ABT17 at [3] per Kiefel CJ, Bell, Gageler and Keane JJ.

28    As set out above, the first appellant claimed in his application form to have been born in Zahriyeh, a suburb of Tripoli. He also provided a list of addresses indicating that he lived in Tripoli for nearly all of the time he lived in Lebanon. On the other hand, in his statutory declaration he stated that he was “a member of the [AYT] family from Deddeh”. He also submitted identity documents indicating that his place of birth was Deddeh. In the Protection Visa Interview, the first appellant initially said that he was born in Deddeh, Koura, but then clarified that he was not born in Al Koura, but that he was “considered to be originally from” there. He was not pressed further on the issue.

29    In her decision, the delegate made no express finding in relation to the first appellant’s place of birth. Although the delegate made adverse findings as to the first appellant’s credibility, she did not refer specifically to his identity documents, and did not make any adverse finding regarding the 2017 Individual Register Document.

30    The first appellant was not on notice that there was an issue as to whether the 2017 Individual Register Document was a false document, or an issue as to whether he had knowingly provided it as a false document to the Department. Not being on notice of those issues, there was no reason for the first appellant to seek to provide information to the Authority on those issues.

31    In the circumstances, in my view, it was unreasonable (in the sense discussed in Li) for the Authority not to exercise the power in s 473DC to get new information, namely a response or explanation from the first appellant in relation to those issues. It was evident to the Authority that the two issues had not arisen in the interview with the delegate. (The Authority’s reasons, eg at paragraph 11, indicate that it had access to, and reviewed, a record of the Protection Visa Interview.) It was also evident to the Authority that the two issues had not been raised in the delegate’s decision. Further, it would or should have been evident to the Authority that the first appellant may well have a response or explanation in relation to the two issues.

32    Further, in the circumstances, the Authority’s error was material. The Authority, at paragraph 9 of its reasons, stated that it had “significant concerns” about the 2017 Individual Register Document (because it stated that the first appellant’s place of birth was Tripoli, unlike an earlier version of the document) and that the Authority was “satisfied that the [first appellant] deliberately provided the 2017 version of this document after the protection visa interview to strengthen his claim to protection”. Read in context (including the first sentence of paragraph 9), this is tantamount to a finding that the first appellant deliberately provided a false document to the Department. This formed part of the Authority’s adverse assessment of the first appellant’s credibility. While the Authority had several other bases for its adverse view of the first appellant’s credibility, the adverse credibility finding in relation to the 2017 Individual Register Document may well have affected the Authority’s assessment of the first appellant’s credibility generally: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4] per Gleeson CJ; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 per Kirby J. In the present case, the Authority’s adverse view of the first appellant’s credibility was fundamental to its rejection of his refugee claims.

33    In my respectful opinion, the primary judge erred in his consideration of the corresponding ground below. His Honour observed at [92] that the first appellant’s birthplace and where he had lived were integers of the claim to have a well-founded fear of harm in the north of Lebanon. However, the first appellant was not on notice that there was an issue as to whether the 2017 Individual Register Document was a false document and an issue as to whether the first appellant had deliberately provided it as a false document. His Honour stated at [93] that the case was not one in which the Authority decided the review on a basis that was substantively different to that which formed the basis for the delegate’s decision. However, the Authority made an adverse credibility finding on a basis that was different from any finding made by the delegate. At [96], the primary judge held that any error was not material. However, his Honour’s reasons in this regard did not consider the impact that the adverse credibility finding in relation to the 2017 Individual Register Document may have had on the Authority’s assessment of the first appellant’s credibility generally.

34    It follows that the appeal should be allowed. Paragraphs 3 and 4 of the orders made by the primary judge should be set aside and in lieu thereof it should be ordered that: (a) a writ of certiorari issue quashing the decision of the Authority; and (b) a writ of mandamus issue, remitting the matter to the Authority and requiring it to determine the matter according to law. In relation to costs, it would appear to be appropriate to order that the Minister pay the appellants’ costs, both in relation to the proceeding at first instance and the appeal. I therefore propose to make orders to this effect (with the costs of the appeal to be fixed by way of a lump sum), but I will give the parties a short opportunity to seek a different costs order.

Associate:

Dated:    4 June 2021

SCHEDULE OF PARTIES