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[2021] FCA 17
Federal Court of Australia
2021-01-28
Nicholas J
Original judgment source is linked above.
Background 1 Before me is an appeal from a judgment of the Federal Circuit Court of Australia (Judge Driver) dismissing an application for judicial review of a decision of the second respondent ("the Authority") affirming the decision of a delegate of the first respondent ("the Minister") not to grant the appellant a temporary protection visa ("protection visa"). The delegate's decision was a fast track reviewable decision referred to the Authority pursuant to s 473CA of the Migration Act 1958 (Cth) ("the Act)" and other provisions found in Pt 7AA of the Act. 2 The appellant is a Shia Muslim from Basra in Iraq who arrived in Australia at Christmas Island on 14 March 2013. He lodged his application for a protection visa in June 2016. On 27 April 2017 a delegate of the Minister refused to grant the appellant a protection visa. 3 The appellant was represented by experienced counsel before the primary judge. Before me he appeared for himself, assisted by an interpreter. 4 The Authority summarised the appellant's claims in its reasons for decision. No complaint appears to have been made before the primary judge as to the accuracy of that summary. According to the Authority the appellant's claims were as follows: • He is a Shia Muslim from Al Qurna in Basra province in the south of Iraq. • It was hard for him to find a job because he was not a member of any party. • He began selling alcohol from around January 2009, after his fabric business began to do poorly. He had many customers, most of whom were his friends or friends of his friends. He used to drive to Basra city each day to buy alcohol, which he would later sell from his car to customers in Al Qurna. • He regularly consumed alcohol in Iraq and did not pray. He still consumes alcohol regularly and does not regularly practice his Shia faith. • People in his area harassed and mistreated him because of his alcohol selling business and his alcohol consumption. Everyone there knew of his drinking. He was not allowed to marry the daughter of a relative for these reasons and felt degraded because of this. He was refused permission to marry other women for the same reasons. • On 5 January 2013 he received a threat via a phone call from a Shia group related to the Sadrist and Mahdi army militia. They told him that he deserved to be killed because he was selling alcohol. They said he was considered to be an unbeliever because he sold alcohol. He travelled to his aunt's house in Basra that day and left Iraq shortly after that. • His family told him that a strange car passed their home periodically after he left. His mother recently told him that strange cars still pass their home. His family said that the people who were looking for him asked members of the community whether they had seen him recently. • If he returns to Iraq he will be killed by the group who threatened him. His liberty will be denied and he could hardly subsist if he stopped trading in alcohol. • The authorities in Iraq are incapable of providing effective protection to him. • In Australia, he has been harassed and called names on Facebook. He posted a comment on a picture of a captured alcohol seller posted on Facebook by the Basra Police Headquarters. His comment was critical of the police and implied support for the man in the picture. Other people commented on his comment, saying that he deserved a similar fate to the man in the picture. • He would start his own liquor store in Australia if he were able to speak English. 5 The Authority expressed some doubt concerning the correctness of some statements made by the appellant as to the nature and scale of his involvement in the alcohol trade when he was in Basra. Nevertheless, the Authority accepted that the appellant conducted a business involving the supply of alcohol which was conducted "as discreetly as possible". 6 The Authority also said that it was willing to accept that the appellant regularly consumed alcohol, and that he did not (and still does not) actively practice his Shia faith. 7 The Authority did not accept the appellant would engage in the purchase and delivery of alcohol in Basra if he were to return there given the potential for him to secure other employment, his past experience of family disapproval, his concerns about marriage prospects, and new legislation which made the importation, production and sale of alcohol illegal in Iraq. 8 The Authority found that if the appellant was to return to Basra, he may occasionally drink alcohol in the future, but that he would do so rarely and discreetly to avoid the disapproval of his family and any negative impact on his marriage prospects in Iraq. 9 The Authority was not satisfied there was any chance of harm to the appellant, now or in the foreseeable future, resulting from any future occasional discreet consumption of alcohol in which he may engage. 10 The Authority also considered whether there was any chance of harm to the appellant as a result of the security situation in Iraq. The Authority concluded that, while violence, including criminal violence, occurs in Basra, it was not satisfied that the violence was at such a level that there was a real chance of harm to the appellant as a result of the security situation in Basra. 11 The Authority also considered whether there was a real chance of harm to the appellant as a result of him returning to Iraq as an unsuccessful asylum seeker who had been living in Australia, a western country, for over four years. The Authority did not accept the appellant would be of any interest to any armed group, the Iraqi Government or criminals, on the basis that he was returning to Iraq in such circumstances. 12 The Authority was not satisfied that the appellant's circumstances exposed him to a real chance of harm in Basra. It was not satisfied that the appellant met the requirements of s 36(2)(a) or s 36(2)(aa) of the Act.
THE PRIMARY JUDGE'S DECISION 13 The appellant, in a third further amended application, pressed five grounds of review before the primary judge. The first three grounds of review sought judicial review of a decision by an officer to seize an identification card which had been furnished by the appellant in response to a request by the Department and which the officer reasonably suspected was a bogus document. The seizure of the identification card, and the grounds of review that related to it, which took up most of the hearing time before the primary judge, are not the subject of any ground of appeal or cross-appeal. Nothing more need be said about that issue in these reasons. 14 The fourth ground of review asserted that the Authority fell into error in finding that the appellant would not face a real chance of harm, or a real risk of significant harm, if returned to Iraq, by applying an incorrect legal test. The primary judge held that the Authority posed the correct question under the Act. His Honour's conclusion on that issue is not challenged in this appeal. 15 The fifth ground of review asserted that the Authority denied procedural fairness to the appellant as follows: 5. The Fourth Respondent denied procedural fairness to the Applicant and thus fell into jurisdictional error. Particulars in relation to Ground 5 (i) The Fourth Respondent failed to inform the Applicant of the nature of the material before it. (ii) The Fourth Respondent failed to alert the Applicant to any conclusions adverse to the Applicant, which it felt would be open to it on the material before it. (iii) The Fourth Respondent failed to give the Applicant the opportunity to address, orally or in writing, any conclusions adverse to the Applicant, which it felt would be open to it on the material before it. (iv) In dealing with the review of the Applicant's claims, on the basis of only one side of the argument, where the Applicant was denied the opportunity to make submissions in his own cause, and the IAA considered itself free to make its decision on whatever material it considered appropriate, without the Applicant being told what that material was, the procedure adopted by the Fourth Respondent, suffered inherently and by definition, from bias. 16 The primary judge rejected the complaints referred to in paras 5(i), (ii) and (iii) on the basis that s 473DA(1) of the Act constituted an exhaustive statement of the requirements of the hearing rule in Division 3 of Part 7AA of the Act. The primary judge considered the differences in the scheme established under Part 7AA of the Act and the scheme of review in Parts 5 and 7 of the Act, relying on the observations of Reeves, Robertson and Rangiah JJ in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 ("DGZ16"). 17 The primary judge also rejected the complaint referred to in para 5(iv) on the basis that no properly articulated allegation of bias had been made by the appellant.
GROUNDS OF APPEAL 18 The question in this appeal is whether the primary judge's decision was affected by error. The notice of appeal refers to what are said to be two errors: 1. The primary judge erred in law when he failed to find that the Second Respondent, by failing to alert the Appellant in writing of the matters that were or might be adverse to him, and by failing to afford him the opportunity to address those matters, thereby denied the Appellant procedural fairness and so fell into jurisdictional error. 2. The primary judge erred in law when he failed to find that the Second Appellant, by the procedures it adopted for hearing the Appellant's application before it, suffered, inherently and of necessity, from bias, and therefore fell into jurisdictional error.
Notice of Contention 19 The Minister was granted leave during the course of the appeal to rely on a notice of contention. The notice of contention states as follows: The primary judge ought to have rejected ground 5 raised in the appellant's Third Further Amended Application filed in the FCCA on 18 June 2018 on the additional basis that, by not identifying, on his argument: (a) the material of which the second respondent failed to inform him; and (b) the particular adverse conclusions that the second respondent reached to which it failed to draw his attention and which it did not give to him the opportunity to address, orally or in writing, he was not able to establish any practical injustice (and, therefore, procedural unfairness on the part of the second respondent): Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]-[38]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 342 [57].
Submissions 20 The appellant did not file any written submissions and his oral submissions made no reference to the primary judge's reasons or what were said to be the errors of law referred to in the grounds of appeal. 21 In relation to ground 2, the Minister submitted that the appellant had not explained how the Authority was said to have demonstrated bias (whether actual or apprehended) in the conduct of its review of the delegate's decision. It was submitted that the allegation of bias advanced to the primary judge and the appellant's complaint involved no more than a bare allegation which the primary judge correctly rejected. 22 As to ground 1, the Minister submitted that, in order for the appellant to succeed, it was necessary for him to identify those matters adverse to him which he says procedural fairness obliged the Authority to put to him. He submitted that, in circumstances where the appellant had failed to do so, the appellant could not establish that he had suffered any practical injustice. The same point is raised in the notice of contention.
Ground 1 23 Division 3 of Part 7AA includes s 473DA and s 473DB which provide as follows: 473DA Exhaustive statement of natural justice hearing rule (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority. (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65. 473DB Immigration Assessment Authority to review decisions on the papers (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. (2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority. Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)). 24 Before the primary judge it was contended that the Authority failed to afford the appellant natural justice in that it failed to refer various matters to the appellant so that he may address such matters by way of further evidence or submissions. However, as the Minister correctly submitted, at no stage has the appellant identified what those matters are. In those circumstances, he is not able to demonstrate that the alleged failure of the Authority to refer any relevant matter to the appellant gave rise to any "practical injustice". 25 In ALR17 v Minister for Home Affairs [2019] FCAFC 182 ("ALR17"), the Full Court (Nicholas, Griffiths and Gleeson JJ) rejected a complaint of procedural unfairness on the part of the Authority similar to that which appears in ground 1. The Full Court did so principally on the basis that the appellant in that case had not established any denial of procedural fairness because he did not "identif[y] any particular "adverse matters" which were taken into account by the [Authority] and in respect of which [he] w[as] denied an opportunity to respond" (at [14]). The consequence of such failure was that the appellant in that case could not demonstrate any "practical injustice" (at [16]). 26 The Full Court went on (at [20]-[36]) to make some observations, in obiter, as to the issue of statutory construction which their Honours identified (at [1]), being "whether or not … the [Authority] was obliged by natural justice (or procedural fairness) requirements to put in writing any matters which it considered to be adverse to a referral applicant and to invite the person to comment on those matters in writing." In the light of its conclusions at [14] and [16], the Full Court considered it unnecessary to resolve that question (at [36]). 27 Like the appellant in ALR17, the appellant in the present case did not identify below, and has not identified in this Court, those matters adverse to him which he says procedural fairness obliged the Authority to put to him. That failure is fatal to ground 1 of the appeal. 28 Further, the Full Court in DGZ16 said at [72] and [75]: [72] In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of 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. 29 Those observations were correctly applied by the primary judge in this case when dealing with ground 5 of the appellant's application. His Honour's judgment on this point was correct and consistent with the Full Court's holding in DGZ16.
Ground 2 30 In circumstances where the appellant did not explain how the Authority was biased in its review of the delegate's decision, this ground must be rejected.
Disposition 31 In the result, the appeal must be dismissed. The appellant must pay the first respondent's costs of the appeal. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.
DTP17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs