ABC17 v Minister for Immigration

[2017] FCCA 2290

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABC17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2290

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – the adverse finding that the new information did not satisfy a requirement of exceptional circumstances was open – the weight to be given to a document is matter for the Authority – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 472CB, 473DD, 476

Cases cited:

BVZ16 v Ministerfor Immigration and Border Protection [2017] FCA 958

Applicant: ABC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 25 of 2017

Judgment of: Judge Street

Hearing date: 20 September 2017

Date of Last Submission: 20 September 2017

Delivered at: Sydney

Delivered on: 20 September 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Hodges Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 25 of 2017

ABC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA, made on 9 December 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 5 November 2012. The applicant claimed to have been threatened by his cousin’s murderers to deter him from giving evidence against them in a Court, and that he departed Sri Lanka illegally for Australia prior to his Court appearance. The applicant applied for a Safe Haven Enterprise visa on 15 January 2016. A delegate refused the grant of the visa on 25 August 2016 and the found that the applicant failed to meet the criteria under the Act.

The Authority’s Decision

1. By letter dated 26 August 2016, the Authority wrote to the applicant, identifying that the matter had been referred to the Authority for review. The letter identified that there were only limited circumstances in which the Authority could consider new information and provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions. The applicant provided submissions and new information to the Authority.

Material before the Authority

1. The Authority in its reasons, delivered on 9 December 2016, identified the applicant’s visa background and also identified having regard to the material referred under s.473CB of the Act. In relation to the material provided on 15 September 2016, the Authority identified that that was new information in the form of two documents purporting to be extracts from the information book of a police station. The Authority identified that both documents were provided as evidence of complaints lodged by the applicant’s wife with the police station. The Authority descended into the detail of the documents by noting that the wife alleged that she, her brother, and the applicant’s children had been repeatedly threatened and physically assaulted by persons looking for the applicant. Having identified the nature of the information, the Authority identified that the extracts were issued on 7 September 2016 and accordingly post-dated the delegate’s decision. The Authority however, noted that the complaints themselves were lodged on 30 June 2016 and 7 July 2016, and found that this was approximately seven and eight weeks respectively before the delegate’s decision was made.

2. The Authority noted that no explanation had been provided as to why the information had not previously been provided and the Authority observed that while it accepted it may be credible personal information, the applicant was represented, and provided a detailed written statement and has been questioned about the nature of the threats against him, the dates that such threats were made, the reason he believed he feared perpetrators would still target him upon return, and about his family’s wellbeing in Sri Lanka.

3. The Authority noted that the applicant of his own volition, at a separate point in the interview, stated that at that time his family had not been threatened since his departure from Sri Lanka. The Authority was satisfied the applicant understood that such information may be relevant to his case. The Authority noted the delegate told the applicant at the interview that any information provided before a decision was made may be considered.

4. The Authority was satisfied that the applicant had ample opportunity to raise that people were threatening his family, being the subject matter of the complaints lodged on 30 June 2016 and 7 July 2016, identified by the Authority and the Authority identified that that opportunity was one in respect of which the applicant had seven and eight weeks before the delegate’s decision was made.

5. It was in those circumstances that the Authority was not satisfied there were exceptional circumstances in the present case to justify considering the new information in accordance with s.473DD of the Act, which relevantly provides as follows:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

6. The Authority also made reference to a further submission on behalf of the applicant, regarding a claim that was allegedly overlooked. The submission stated that the applicant owned a fishing boat which, since his departure, was being handled by his brother and which had nine or ten people working on the boat. The submission stated that through the post-return screening checks the applicant would undergo as a failed asylum seeker who departed illegally, the authorities would become aware that the applicant owns a reasonably sized/large vessel and on account of this, they may perceive he has had involvement in human trafficking and people smuggling. It was suggested that he could be detained, imprisoned and exposed to serious harm for a longer period than usual until he could be cleared of such offences.

7. The Authority observed that this claim had not been previously raised. The Authority noted that the applicant’s fishing boat had continued to operate in the fishing industry in Sri Lanka since his departure, when there had been no suggestion by the applicant or his representative at any stage prior to the decision of the delegate that the applicant feared being investigated for or accused of people smuggling, human trafficking activities, or that his ownership of the fishing boat would give rise to any claim of harm. The Authority was satisfied that the claim did not arise on the facts and that it constituted new information. The Authority provided reasons in support of a finding that it was not satisfied there were exceptional circumstances to justify considering the new information.

8. The Authority identified the applicant’s background being a Sinhalese Buddhist from the Southern Province, and summarised the applicant’s claims. The Authority made reference to the applicant’s claimed involvement in a Court case and accepted that the applicant was subject to some harassment, intimidation and threats from J and S, and that the applicant departed Sri Lanka before he testified in the main trial before the High Court of Matara. The Authority however, considered that the applicant overstated the extent of the threatening behaviour against him and the claimed inaction from police, and the Authority was not satisfied that the case had been stalled due to the absence of the applicant as a witness.

9. The Authority had concerns about the allegation J and S threatened and intimidated the applicant between 2010 and 2012, where they themselves had come forward and turned themselves in for the murder in the first place. The Authority found it implausible that J and S would repeatedly harass the applicant to prevent him from testifying against them in a murder case, while at the same time publicly stating their intention to commit the same crime against the applicant in front of witnesses at social gatherings. The Authority was satisfied that J and S did not take any steps to act on the threats, or to physically harm the applicant in any way. The Authority found, on the applicant’s own evidence, that police had acted on his complaints in the past, and that there were other witnesses in the community, his friend who escorted him to and from work because he was afraid to travel alone, and witnesses at the social gatherings he claims J and S attended who could attest to the threats and the applicant’s fear. The Authority was not satisfied that police would not help the applicant due to corruption, nor because there was no available evidence, apart from the applicant’s verbal statements. The Authority was not satisfied the applicant approached the police for help in 2012.

10. The Authority observed having concerns that the Court case would still be ongoing in 2016, six years after proceedings commented in 2010. The Authority found it implausible that the case would be stalled over three and a half years due to the non-availability of the applicant as a witness. The Authority was not satisfied the case was still an open matter before the Courts of Sri Lanka. The Authority identified a certificate produced by the applicant, purportedly signed by an attorney, and gave that certificate no weight. The Authority identified that there was no indication that the attorney was involved in the case himself, nor was there any other evidence in the referred material to support the applicant’s claim that the matter is still before the Courts.

11. The Authority identified the relevant law. The Authority was not satisfied there is a real chance that J and S would harm the applicant now or in the reasonably foreseeable future. In relation to the allegation that J and S are continuing to search for the applicant, the Authority found that implausible when the claimed goal to prevent the applicant from testifying had been achieved and his continued absence serves J and S’s interests. The Authority did not accept that those persons have been searching for the applicant or that the applicant faces a real chance of harm for them in retaliation upon return.

12. The Authority did not accept the case is still open for the Courts, but had regard to the risk that the applicant may face should it ever be reopened. The Authority was not satisfied there is a real chance the applicant will be harmed by J and S to prevent him from testifying against them in the event that the case was reopened.

13. The Authority noted the applicant was a failed asylum seeker who departed illegally. The Authority made reference to the certification of facts, which it gave no weight, and was not satisfied, on the basis of the police note, that the applicant would be charged or prosecuted for his failure to attend Court. The Authority considered it too speculative to conclude that the police notice is indicative of the applicant being subject to an arrest warrant, charges, prosecution, or other judicial or law enforcement consequences upon return. The Authority found there is no other evidence in the referred material indicating that this would be the case, nor that the applicant is of adverse interest to the authorities for any other reason.

14. The Authority was not satisfied that the applicant would be of adverse interest to the authorities for any reason upon return, and found that country information does not support that failed asylum seekers are imputed as having committed a crime, apart from illegally departing.

15. The Authority found that the process leading to the charge, conviction and punishment, including payment of a fine for breaching the Immigrants and Emigrants Act would be the result of a law or general application applied to illegal departees and does not amount to persecution for the purpose of s.5H(1) and s.5J(1) of the Act.

16. The Authority was not satisfied, taking into account the applicant being a Sinhalese Buddhist male fisherman and boat owner from the Southern Province who was threatened and harassed by his cousin’s murderers and who departed illegally and sought asylum in Australia and failed to comply with a summons to appear as a witness in Court proceedings and to report for police enquiries in February 2014 and the time he spent in Australia, that this gave rise to well-founded fear of persecution. The Authority found the applicant does not meet the definition of refugee in s.5H(1) of the Act and found the applicant did not meet criteria under s.36(2)(a) of the Act.

17. The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm, and found the applicant failed to meet the criteria under s.36(2)(aa) of the Act.

Before this Court

1. The grounds of the amended application as follows:

   Ground l

   The IAA committed error in failing to correctly apply the provisions of s473DD of Migration Act 1958.

   PARTICULARS

   1. The IAA [paragraph 4] referred to receipt of “two documents" purporting to be extracts from the information Book of the Weligama Police Station issued on 7 September 2016.

   2. The IAA accepted that the contents of the documents may be “credible personal information".

   3. However the IAA failed to consider the contents of the documents on the basis that although they were dated 7 September 2016, they referred to incidents on 30 June 2016 and 7 July 2016.

   There was no explanation as to why the information was not previously provided.

   4. The IAA failed to seek explanations from the applicant or his advocate as to why the documents had not been provided earlier.

   Ground 3

   The IAA fell into error by failing to consider the new information provided by the Applicant (i.e extracts from the Information Book of the Weligama Police Station) and in determining that there were no exceptional circumstances to justify conside1ing the new information [4].

   PARTICULARS

   1. The IAA committed legal error by failing to have regard to s473DD(b) of the Migration Act when considering if exceptional circumstances exists to justify considering the extracts from the Information Book o(the Weligama Police Station.

   2. s473DD (b) m requires a “factual enquiry as to whether or not the new information could have been presented to the Minister" whereas s473DD {b) (ii) requires “an evaluation of the significance of the new information in the context of an applicant's claims more generally"

   See: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958, paragraph 57.

   3. Though at [4] the IAA accepted the extracts from the Information Book of the Weligama Police Station as “credible personal information", it failed to evaluate the significance of the new information in the context of the applicant's claims against s473DD (b) (ii) criteria.

   4. When considering new information under s473DD (b) (i) criteria the IAA failed to consider the following

   a. The police extracts were issued on 7 September 2016 which postdates the delegate's decision.

   b. As the incidents recorded in the 7 September 2016 police extracts occurred 7 - 8 weeks before the delegate made her decision, the IAA ought to have given consideration if “exceptional circumstances" (s473DD (a)) did exist for not informing the delegate that “people were threatening his family in their search for him…”[4].

   5. When considering new information under s473DD the IAA adopted and applied an unduly narrow interpretation of the term “exceptional circumstances” and accordingly failed to consider all matters capable of constituting the circumstances of the applicant's case as exceptional; See: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958.

   Ground 4

   The IAA failed to consider all of the new information it had received via email on 15 September 2016, thereby falling into jurisdictional error.

   PARTICULARS

   1. On 15 September 2016, the IAA confirmed having received “two documents purporting to be extracts from the Information Book of the Weligama Police Station"  [4].

   2. The Court book contains two documents referred to at 1. above, however both documents are English Translations [CB 168 and 169].

   3. The email attachment forward to the IAA on 15 September 2016 contained 4 documents (i.e. 2 documents being copies of source documents of complaints lodged on 30 June 2016 and 7 July 2016 and 2 documents being English translations of the copies of the source documents).

   4. If in fact the IAA did not have before it/consider copies of source documents of complaints lodged on 30 June 2016 and 7 July 2016 but only considered the English translations this would amount to jurisdictional error.

   Ground 5

   The IAA committed jurisdictional error at [ 17) by not informing the applicant that the IAA would not be giving any weight to an important piece of document that was before the delegate (i.e. Certification of Facts).

   PARTICULARS

   I. The IAA was not satisfied that the case against the applicant in the High Court of Matara “is still an open matter" [CB 180, 17).

   2. The IAA made this finding on the basis of its own (subjective) reasoning [CB 180, 17).

   3. The Certification of Facts [CB 127) corroborated the applicant's evidence that the “case is still an open matter" [CB 180, 17].

   4. The IAA did not give any weight to an important document that was before the delegate (i.e. Certification of Facts) [CB 180, 17].

   5. The reasons for giving no weight to the Certification of Facts was due to the following reasons,

   a. There was no indication in the Certification of Facts that the attorney is involved in the case himself.

   b. The absence of "any other evidence official or otherwise"

   6. The Certification of Facts was listed as one of the documents that was before the delegate [CB 151]

   7. The delegate did not raise concerns regarding the contents in the Certification of Facts or the absence of information that ought to have been included in this document.

   8. Though, the delegate made no express finding regarding the case being an open matter, the applicant was entitled to assume that the Certification of Facts was a document that was not of concern to the delegate.

   9. The IAA therefore ought to have informed the applicant that it would not be giving any weight to the Certification of Facts document, failing to do so amounts to a breach of procedural fairness.

Consideration

1. Mr Hodges, solicitor for the applicant, confirmed that ground 2 was not pressed. Mr Hodges sought to deal with grounds 1, 3 and 4 together, and properly identified the overlapping aspect of those grounds.

Ground 1

1. Mr Hodges, from the bar table, sought to advance theories in respect of which an explanation might have been proffered in support of why the material had not earlier been provided to the delegate. The applicant had the opportunity of providing such explanation in his submissions as a result of a letter sent by the Authority to the applicant, attaching the fact sheet and practice direction, and explaining the limited circumstances in which new information could be considered.

2. Mr Hodges sought to argue that the Authority had failed to take into account the nature of the information said to be new information. A fair reading of the Authority’s reasons reflects that the Authority clearly addressed and took into account the nature of the information said to be new information. It was a matter for the Authority to determine whether or not the circumstances constituted exceptional circumstances.

3. Mr Hodges focused on the fact that the extracts were issued on 7 September 2016, being a date after the delegate’s decision. The Authority clearly took into account the date of the extract, but properly identified that the critical information was the information in respect of the complaints that were lodged on 30 June 2016 and 7 July 2016, which the Authority identified was approximately seven and eight weeks respectively before the delegate made its decision.

4. Mr Hodges sought to argue that the Authority had not taken into account all the circumstances in determining whether or not there were exceptional circumstances. The Authority’s reasons reflect a genuine and meaningful engagement with the applicant’s submissions and the consideration of whether the criteria under s.473DD of the Act was met. The adverse finding was that the new information did not satisfy as a requirement of exceptional circumstances, was open to the Authority and cannot be said to be irrational, illogical or unreasonable. No jurisdictional error as alleged in ground 1 is made out.

Ground 3

1. Ground 3 is in substance raising the same issue, albeit Mr Hodges sought to rely upon the decision in BVZ16 v Ministerfor Immigration and Border Protection [2017] FCA 958 at [57] as assisting the finding of error in the present case. I accept the first respondent’s submissions that the reasons of the Authority indicated that it considered the nature of the material, the applicant’s circumstances and claims, and the absence of explanation as to why the claims concerning his family members being threatened and assaulted by persons looking for the applicant had not been made previously to the delegate. The Authority’s reasons do not support a narrow meaning being given to “exceptional circumstances” and the reasons support the Authority taking into account the whole of the provision of s.473DD of the Act. I accept the first respondent’s submission that BVZ16 v Ministerfor Immigration and Border Protection [2017] FCA 958 is accordingly distinguishable. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. Ground 4 is, in substance, the same information the subject of alleged jurisdictional error albeit, in that regard the criticism appears to be not referring to the untranslated documents rather than the English translations. It is apparent from the Authority’s reasons that the Authority took into account the information that was before it, and gave real and proper consideration to the information in determining whether or not it amounted to new information. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, Mr Hodges submitted that the certificate of facts was a document that should not have been given no weight by the Authority, as the Authority identified in its reasons. The weight to be given to a document is a matter for the Authority. The Authority provided cogent, rational and logical reasons for giving the document little weight. It is apparent that the Authority properly engaged with a real and meaningful consideration of the certificate and actually set out the contents of the same and identified reasons in support of giving the document no weight. Those reasons were not unreasonable. No jurisdictional error is made out by ground 5.

2. Accordingly, the amended application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 October 2017