BKX18 v Minister for Home Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of and incidental to the appeal, and of the application for an extension of time within which to appeal, to be fixed by a registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The appellant is a citizen of the Republic of Iraq. He is an ethnic Kurd who adheres to the Sunni branch of the Islamic faith. 2 The appellant arrived in Australia by boat on 29 September 2012. He was not then the holder of a visa issued under the Migration Act 1958 (Cth) (the Act) authorising his entry into Australia. He is therefore what the Act (s 5AA) terms an "unauthorised maritime arrival". 3 On 14 November 2015, the Minister whose office is now known as "Minister for Home Affairs" (Minister) issued to the appellant a notice under s 46A(2) of the Act. That permitted him to apply under the Act for a Temporary Protection visa or a Safe Haven Enterprise visa (SHEV). The appellant chose to apply for the latter. He applied under the Act for a SHEV on 7 March 2016. 4 On 11 April 2017, a delegate of the Minister decided to refuse the appellant's visa application. As the Act required, this decision was then referred to the Immigration Assessment Authority (Authority) for review. On 8 February 2018, the Authority decided to affirm the Minister's delegate's decision. 5 The appellant then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Authority's decision. On 12 September 2018, the Federal Circuit Court dismissed the judicial review application. The appellant failed to file a notice of appeal in respect of the order of dismissal within the prescribed time. However, I was persuaded in February 2019 to grant him an extension of time. He has now appealed pursuant to that extension against the order dismissing his judicial review application. 6 As it did in the Federal Circuit Court, and quite properly, the Authority has filed a submitting appearance. The Minister is therefore the only active party respondent. 7 The appeal was initially heard in the May 2019 appeal sittings. However, the amount of time allocated for its hearing was insufficient for submissions to be completed, having regard to the issues pressed. That meant that the hearing of the appeal had to be adjourned to the next appeal sittings, which was in August 2019. Certainly in hindsight but probably also, with respect, in prospect, the time allocation in May for this case was always fraught with the prospect of an adjournment. 8 Overlisting of this type of case by the registry can also sometimes be antithetical to their timely disposal for another reason. In some migration appeals, if efficiently argued by counsel, the issues for determination emerge with such clarity after exchanges in oral argument that it is frequently possible, time permitting, to determine them the same day with reasons for judgment delivered ex tempore. Even if this appeal were of that category, and it was not, insufficient time remained to adopt that course once the submissions were finally completed. 9 The consequence of being obliged to adjourn or to reserve judgment can be, and in this case was, that other judicial duties and approved absences intrude such that delivery of judgment is then delayed. That is a matter of personal regret. I provide this explanation as a necessary courtesy to the parties and to sound a cautionary note to the registry in relation to listing practices. Lest it be thought otherwise, I also record that the length of time required for oral submissions was not a reflection of the efficiency of counsel but rather of the complexity and diversity of the issues raised by the grounds of appeal which were pressed. Each of those grounds was truly at least arguable. I have been much assisted by the submissions of counsel in relation to them. In particular, the appellant should be assured that his counsel, Mr Rebetzke, put forward everything which might reasonably and responsibly be said in favour of the allowance of the appeal. 10 I turn then to the grounds of appeal. As filed, they are: 1. The learned trial judge erred in not holding that the [Authority] misconceived its task or asked a wrong question in the approach to the s 473DD(b)(ii) question of whether the new information was 'credible new information.' 2. The learned trial judge erred in not holding that the [Authority's] decision was affected by jurisdictional error to the extent that it its finding that all new information was not information that could not have been given to the Minister before the date of the delegate's decision on 11 April 2017 in circumstances where the new information included documents produced on 31 May 2017. 3. The learned trial judge, erred in law in interpreting s 473DD(a) of the [Act] as a 'threshold' test. 4. The learned trial judge erred in not considering whether interpretation difficulties at the SHEV interview should have been considered by the [Authority] in determining whether there were exceptional circumstances to accept new information. 5. In the premises, the learned trial judge erred in not finding that the [Authority's] decision was affected by jurisdictional error by regarding itself legally bound not to consider the new information referred to in grounds 2 and 3 of the application filed 22 March 2018 (that is, the new information with respect to the [appellant's] contact with his family [ground 2] and the new information with respect to past harm to the [appellant's] brothers and the identification of the perpetrators of past harm to the [appellant] [ground 3]). [sic] 11 The appellant subsequently abandoned appeal ground 3. Understanding the remaining grounds of appeal also requires that grounds 2 and 3 of the grounds of review in the Federal Circuit Court be reproduced: 2. The [Authority] erred in by regarding itself legally bound not to consider new information with respect to the [appellant's] contact with his family. Particulars (a) The [Authority] found the question of the [appellant's] contact with his family was "extensively discussed at the SHEV interview, during which time the delegate identified concerns about the plausibility of [the appellant's …] claim". (b) The [Authority] failed to take into account the fact that there was imperfect communication at the SHEV interview via an interpreter as relevant to the tasks required by s.473DD(a) and (b); (c) The decision not to consider the information was legally unreasonable. 3. The [Authority] erred in regarding itself legally bound not to consider new information with respect to past harm to the [appellant's] brothers and the identification of the perpetrators of part harm to the [appellant]. Particulars (a) The [Authority] failed to take into account the fact that there was imperfect communication at the SHEV interview via an interpreter as relevant to the tasks required by s.473DD(a) and (b); (b) The decision not to consider the information was legally unreasonable. [sic] 12 To deal with the grounds of appeal it is necessary to detail the claims made by the appellant for protection and the administrative consideration of those claims. 13 The appellant had the benefit of assistance from a migration agent in the preparation of his SHEV application. As initially formulated by him in a statutory declaration forming part of that application, the appellant made these claims. He stated that, on 30 May 2012, he had been engaged in organising, for delivery to customers, goods in storage in his business premises in the province ("S") in Iraq, where he was born, when three men who were armed and had their faces covered entered the premises. The lights in the premises went off. One of the armed men then threatened to kill him if he did not pay them $US200,000 in three days' time. He was also threatened with death and that "bad things" would happen to his family if he went to the police. 14 The appellant claimed that there had been an incident in his local area some six months previously in which a child had been kidnapped and, even after a ransom of $US350,000 had been paid, the child had been killed. 15 The appellant stated that he had discussed the threat made to him with his father who counselled him to leave Iraq. The appellant stated that he did not know why he personally had been targeted but that his family were considered wealthy because they operated businesses. The appellant formed the view that he would be killed if he did not leave Iraq. Accordingly, on 1 June 2012, he left Iraq for Malaysia. He then went to Indonesia and paid money to a people smuggler to be conveyed to Australia by boat. 16 As to why he did not seek help from authorities in Iraq in relation to the incident, the appellant stated: There is no law or regulation in Iraq. It is a mess in Iraq. I knew that if I sought help I would receive no protection as no one cares. Even if I wanted to ask for help I couldn't as the men threatened that if I informed the authorities they would kill me. 17 The appellant also stated in the statutory declaration that he had not been in contact with his family for three years and was not aware as to whether they still lived in the area where the incident occurred. His stated last knowledge of them was that, after he had left Iraq, his family did not open four storage facilities used for business and had stayed away from them. He also stated that they had installed security cameras around their property and "never left the house on their own". 18 The appellant stated that he feared that if he were to return to Iraq and the people who threatened him found out he was back that he would be targeted and likely killed. 19 The appellant also mentioned that, before the incident in 2012, he had travelled on separate occasions to Turkey, Syria and China on business. His business imported goods from Turkey and China. 20 Accompanied by his migration agent, the appellant attended an interview with an officer of the Minister's department in relation to his SHEV application on 21 February 2017. The interview was conducted with the assistance of a Kurdish interpreter. 21 The Minister's delegate accepted that the appellant was threatened in an attempt to extort money from him, as a member of a particular social group namely, "wealthy businessmen in [S]". However, the delegate concluded, taking into account the circumstances in which the appellant had left Iraq and country information concerning the situation in S, that the chance that, if the appellant returned there, he would suffer harm by reason of his membership of that particular social group was remote. The delegate was not satisfied that the appellant faced a real chance of persecution were he to return to Iraq. 22 The appellant had the benefit of assistance from a solicitor and migration agent in relation to the review conducted by the Authority as a sequel to the rejection of his SHEV application by the Minister's delegate. 23 The appellant's solicitor made a detailed submission to the Authority on 31 May 2017. Annexed to that submission were statements made by the appellant, other members of his family and related documents, as well as some country information. There is no dispute that, in its reasons for decision, the Authority offered an accurate summary of the submission and the annexed documents. The Authority stated (at [4]): 4. The [appellant's] representative provided a submission to the [Authority] dated 31 May 2017. To the extent this discusses findings of the delegate this is not new information for the purpose of s.473DC(l) of the Act and I have had regard to it in my assessment. However, the submission raised new information consisting of: new claims of past harm to the [appellant's] brothers; new claims that it was members of the Kurdistan Workers' Party (the PKK) who harmed the [appellant] in the past; new claims as to why the [appellant] had not been in touch with his family in the three years prior to lodging the SHEV application; new claims about the quality of interpretation at the SHEV interview; and new country information. The following documents, which also constitute new information, were attached in support of the submission: • statutory declaration from the [appellant's] dated 30 May 2017 (the statutory declaration) indicating that there were issues with the interpreter at the SHEV interview, providing new evidence on why he had not been in touch with his family, and raising new claims in relation to incidents of past harm to his brothers in Iraq; • an undated statement and accompanying translation by the [appellant's] brother [M] relating to why the family had not been in contact [M's] statement); • statement and accompanying translation by the [appellant's] brother [Y] …, dated 22 May 2017 ([Y's] statement); • 'businessmen membership card' of the [appellant's] brother [Y], issued in 2010 and expiring in 2012 (the membership card); • copy and translation of a report from the Police Department of [ST] dated 20 August 2013 regarding an incident against the [appellant's] brother [Y] (the August police report); • copy and translation of a medical report from [S] Emergency Hospital dated 15 September 2013 regarding an injury to the [appellant's] brother [Y] (the hospital report); • photographs purporting to demonstrate the claimed assault against the [appellant's] brother [Y] from an incident occurring in 2013, with an explanatory blurb from the [appellant] (2013 photos); • copy and translation of a report made by the [appellant's] brother [Y] to the Police Department of [ST] dated 20 October 2016 (the October police report); • photographs purporting to show damage to property and injuries against the [appellant's] brother [Y] from a claimed incident in December 2016 (the 2016 photos); • a purported article from PUKMEDIA dated 20 December 2016 reporting on the harm to the [appellant's] brothers (the PUKMEDIA article); and • a statement and accompanying translation by Mr [A], undated (Mr [A's] statement) [sic] 24 The Authority's reasons disclose that it then methodically addressed the submission and its annexures, commencing with the alleged deficiencies in translation at the interview on 21 February 2017. That makes it convenient first to address ground 4 of the notice of appeal.