CGL17 v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 15 June 2018. The Federal Circuit Court dismissed the appellant's application for judicial review of a decision of the Immigration Assessment Authority (the Authority) which affirmed a decision to refuse the appellant the grant of a Temporary Protection Visa. 2 The appellant arrived in Australia in 2013 by boat. In 2016, he applied for a Temporary Protection Visa. 3 The appellant commenced employment with the Electoral Commission in Iraq in the lead-up to provincial elections in 2013. He made the following claims: (1) On 10 April 2013, the appellant received a telephone call from a person claiming to be from the Al Dawa Party asking him to alter the vote counting in favour of Al Dawa. He refused the request, the caller threatened to kill him and the appellant then ended the conversation. (2) On 13 April 2013, the appellant was stopped in the street by three men claiming to be from the Al Ahrar Party. They requested the appellant's assistance in respect of the upcoming elections. He refused and the men assaulted him and threatened to kill him with a knife. (3) The elections were held on 20 April 2013. The appellant supervised a polling centre. He was informed by members of the public that there were armed men from the Al Ahrar Party outside the polling centre. The appellant went outside and saw two armed men who looked angrily at him and pointed at him as they spoke to each other. At the end of the day, he left work and never returned. He stayed at home and avoided going out. (4) A colleague told the appellant that a group of militia members came to his workplace asking about him. (5) The appellant's mother told him that strangers were standing outside their family home and monitoring movements out of the house. The appellant believes that these were members of a Shia militia. (6) In October 2013, a colleague of the appellant was abducted. The appellant was told that the colleague had been abducted because he had not cooperated with militias during the election. 4 The appellant left Iraq on 10 June 2013. He claimed to fear harm from Shia militias if he returned to Iraq. 5 On 8 February 2017, a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) made a decision to refuse the applicant the grant of a Temporary Protection Visa. In her reasons, the delegate accepted that the first and second events described above had occurred, but described these events as "intimidation" rather than "serious death threats". The delegate appears to have found that these events could not themselves be described as "serious harm". The delegate did not deal with the third event. The delegate found that the fourth, fifth and sixth events were implausible and did not accept that they had occurred. 6 The delegate also concluded that, while the appellant had experienced intimidation from Shia party or militia groups, he "did not have an adverse profile with any of those groups". By this, the delegate appears to have meant that such groups had no continuing interest in harming the appellant. She concluded that there was no real chance that the appellant would be seriously harmed if he returned to his home area on the grounds of his political opinion. The delegate also found that the appellant did not face a real chance of serious harm on the basis of his Shia ethnicity or religion. The delegate was not satisfied that the appellant was a person to whom Australia has protection obligations within s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act). 7 In contrast to the delegate, the Authority accepted that each of the six events described above had occurred in the way described by the appellant. However, the Authority concluded that "Shia militias do not have a continued interest in personally harming him". The Authority reached that conclusion for four reasons. First, it found that the appellant, as a Shia, did not fall within the profile of those predominantly targeted by Shia militias. Second, the appellant had remained in Iraq for almost two months after the election and, on his own evidence, members of a Shia militia knew where he resided, and watched his home, but did not harm him. The Authority considered that if the militias had wanted to harm the appellant, they would have done so then. Third, four years had passed since the appellant was threatened, his family continued to reside in the same town and the appellant had made no claim of any threats against him or his family since he had left. Fourth, the appellant had not indicated that he would return to work with the Electoral Commission and, given that he had left his position about four years ago, it was unlikely the position remained available. 8 The Authority found that it was not satisfied that the appellant faced a real chance of harm on the basis of his political opinion, religion, ethnicity or any other reason if he returned to his home town now or in the reasonably foreseeable future. The Authority was not satisfied that the criteria in s 36(2)(a) or (aa) were satisfied. It affirmed the delegate's decision. 9 The appellant then applied for judicial review of the Authority's decision to the Federal Circuit Court. The sole ground of review was that the Authority's decision was legally unreasonable because the Authority failed to consider whether to exercise its power under s 473DC of the Act to invite the appellant to put forward new information when it proposed to decide the review on a basis different from the basis of the delegate's decision. 10 The Federal Circuit Court recorded that the appellant's counsel conceded that the Court was bound by the judgment in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 to dismiss the application. His Honour considered and accepted that concession and dismissed the application with costs. 11 The appellant's notice of appeal before this Court contends that: The primary judge, though bound by DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, erred in holding that the decision of the second respondent was not legally unreasonable because the Authority failed to consider whether or not to exercise s 473DC of the Migration Act 1958, with respect to new information invited to be put forward by the applicant regarding the basis on which the Authority proposed to decide the review so far as that basis was different from the basis for the delegate's decision. (Typographical errors corrected.) 12 The appellant submits that where the Authority is considering determining an applicant's case on a basis different from that of the delegate, there are circumstances where it will be legally unreasonable for the Authority not to exercise its power under s 473DC(3) to invite the applicant to comment or respond to the different basis. The appellant cites Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 as authority for that proposition. He argues that DGZ16 is not inconsistent with that proposition. The appellant submits that legal unreasonableness is fact dependent and requires evaluation of the evidence and circumstances of each case. He submits that the extent of the departure of the Authority from the delegate's decision was such that it was legally unreasonable for the Authority not to give the appellant the opportunity to comment upon the different basis upon which it proposed to determine the case. 13 The Minister submits that the appellant's reliance on CRY16 is misplaced as it involved a quite different circumstance where the appellant had not had the opportunity to put material concerning a central issue before the delegate and the Authority did not have material upon which it could make findings upon that issue. The Minister submits that a more apposite analogy for the circumstances of this case is provided by DGZ16. He submits that it was not legally unreasonable to proceed without getting new information from the appellant. 14 The parties' submissions must be considered in the context of the statutory framework for the fast track review process under Pt 7AA of the Act. Section 473DB(1) requires the Authority, subject to Pt 7AA, to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant. 15 However, s 473DC then provides: 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 16 It may be seen that s 473DC(1) of the Act confers a discretion on the Authority to get any information or documents that were not before the Minister which the Authority considers may be relevant, although, under s 473DC(2) it does not have a duty to do so. Section 473DC(3) gives the Authority a discretion to invite a person to give new information in writing or at an interview. 17 In CRY16, the circumstances were that the Minister's delegate had refused the respondent a visa on the basis that his evidence as to incidents of harm was not credible. The delegate did not go on to consider whether, under s 36(2B) of the Act, it would be reasonable for the respondent to relocate to another area of the country. The Authority, in contrast, accepted the respondent's evidence as credible, but affirmed the delegate's decision on the basis that he could reasonably relocate elsewhere within the country to a place where there was no real risk of significant harm. As there was nothing in the interview between the respondent and the delegate which concerned the issue of relocation, there was no information before the Authority from the respondent to the reasonableness of relocation. The Full Court held at [82] that it was legally unreasonable for the Authority not to consider getting documents or information from the respondent in circumstances where it knew that it did not have, but the respondent was likely to have, information about his personal circumstances and the impact upon him of relocation. The Tribunal's failure to consider the exercise of its discretionary power meant that it had disabled itself from considering what was reasonable, in the sense of practicable, in terms of relocation. 18 In Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526, the Full Court observed at [80] that: CRY16 establishes that particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion under s 473DC. 19 In DGZ16, the Minister's delegate had concluded that the appellant's claims to have been targeted were not plausible. The delegate disbelieved, amongst other things, the appellant's claim that he had been an informant for the Iraqi Counter Terrorism Service (CTS), finding that there was no counter terrorism office in the appellant's town during the relevant period. In contrast, the Authority accepted that the CTS had operated in the town in the relevant period and also accepted certain other parts of the appellant's claims as credible. However, the Authority was not satisfied that the appellant had worked for the CTS as an informant as he had claimed, and it affirmed the delegate's decision. 20 In DGZ16, the Full Court said: 70 It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3). … 74 We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant's case, and to provide the appellant with an opportunity to respond. 75 There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant. 76 It was open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond. 21 In DGZ16, the Full Court distinguished the case from the situation in CRY16 where the Authority decided an application on a basis not considered by a delegate and where additional information was required in order to complete the review. That distinction is also apposite in this case. 22 The Authority had before it information that allowed it to reach the conclusion that the appellant did not face a real chance of persecution that amounted to serious harm. It knew the nature and context of the events and that they had occurred four years before. It had information that the appellant had remained in Iraq for two months after the election without being harmed. It knew that the appellant, as a Shia Muslim, did not fall within the profile of those predominantly targeted by Shia militias. It knew that the appellant had not claimed that militias had continued to make threats against him or his family. These matters led the Authority to conclude that Shia militias did not have a continuing interest in harming the appellant. This was not a case like CRY16 where, in order to carry out its function of reviewing the application, the Authority had to obtain information from the appellant. The Authority's decision was not legally unreasonable. 23 In any event, I do not accept the premise of the appellant's argument, namely that the Authority decided the review on a basis that departed extensively from that of the delegate. The delegate concluded that there was no real chance that the appellant would face persecution that involved serious harm, as is required under s 5J(1)(a) and (4)(b) of the Act, if he returned to his home area. The delegate reached this conclusion for several reasons. First, she rejected the appellant's evidence that the fourth, fifth and sixth claimed events happened, and did not accept that the first and second events were events of "serious harm". Second, the delegate found that the appellant did not have "an adverse profile" with Shia militia groups, by which the delegate meant that such groups had no continuing interest in harming him. The delegate said, "Shia militias are not known to target Shia civilians, as their attention is focused elsewhere". Third, the delegate found that the fact that he remained in Iraq for almost two months after the elections "leads me to find that he did not have a pressing need to depart Iraq". While the Authority reached a different conclusion upon the first matter, it reached similar conclusions concerning the second and third, as may be seen from para [7] above. Accordingly, contrary to the appellant's submission, the Authority did not decide the review on a substantially different basis to the delegate. 24 The appeal must be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.