ABL18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

ABL18 v Minister for Home Affairs [2020] FCA 536

Appeal from: ABL18 v Minister for Home Affairs & Anor [2019] FCCA 1178
File number: SAD 75 of 2019
Judge: CHARLESWORTH J
Date of judgment: 24 April 2020
Catchwords: MIGRATION – parties to application for judicial review proposing orders by consent allowing the application – primary judge refusing to proceed in accordance with the parties’ agreed position – primary judge dismissing application for judicial review – grounds of review contending the Immigration Assessment Authority erred in construing and applying s 473DD of the Migration Act 1958 (Cth) – no jurisdictional error as asserted – appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 36, 473CB, 473DC, 473DD, Pt 7AA
Cases cited:

ABL18 v Minister for Home Affairs & Anor [2019] FCCA 1178

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388

BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221

CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148

DLB17 v Minister for Home Affairs [2018] FCAFC 230

DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111

Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249

WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511

Date of hearing: 10 December 2019
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 41
Counsel for the Appellant: Dr S Churches
Solicitor for the Appellant: Wallmans Lawyers
Counsel for the First Respondent: Mr P Knowles
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice

ORDERS

SAD 75 of 2019
BETWEEN:

ABL18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

24 APRIL 2020

THE COURT ORDERS THAT:

1.To the extent that leave is necessary, the appellant has leave to raise the argument articulated in the first ground of appeal in the amended notice of appeal filed on 19 November 2019.

2.The appeal is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

CHARLESWORTH J:

  1. This is an appeal from an order of the Federal Circuit Court of Australia  dismissing an application for judicial review of a decision of the Immigration Assessment Authority:  see ABL18 v Minister for Home Affairs & Anor [2019] FCCA 1178.

  2. The appeal should be dismissed for the reasons given below.

    THE VISA APPLICATION

  3. The appellant is a citizen of Sri Lanka of Hindu religion and Tamil ethnicity. He arrived in Australia by boat on 28 October 2012 as an “unauthorised maritime arrival” as defined in s 5AA of the Migration Act 1958 (Cth). He lodged an application…

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Details
Case
[2020] FCA 536
Decision Date

CaseChat Overview and Summary

In the case of ABL18 v Minister for Home Affairs, the appellant, a foreign national, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse to consider new information provided in relation to his application for a Subclass 859 visa (SHEV). The appellant contended that the IAA erred in its construction and application of section 473DD of the Migration Act 1958 (Cth), which outlines the conditions under which the IAA may consider new information in exceptional circumstances. The primary judge dismissed the appellant's application for judicial review, holding that the IAA had not committed jurisdictional error in its consideration of the new information provided by the appellant.

The central legal issue before the court was whether the IAA had erred in its interpretation and application of section 473DD in deciding not to consider the new information provided by the appellant. The appellant argued that the IAA failed to properly evaluate whether exceptional circumstances existed to justify considering the new information, particularly in relation to his claims of providing support to the Liberation Tigers of Tamil Eelam (LTTE). The appellant contended that the IAA's adverse credibility finding concerning one aspect of his claims should not have precluded consideration of other new information.

The court held that the IAA had not committed jurisdictional error in its evaluation of the new information. The court found that the IAA had properly considered whether exceptional circumstances existed for the purposes of section 473DD(a) and had adequately assessed the credibility of the new information in accordance with section 473DD(b). The court rejected the appellant's contention that the IAA had wrongly dismissed all new claims based on an adverse credibility finding concerning one aspect of his claims. The court found that the IAA had appropriately considered the new information in the context of the overall application and had provided sufficient reasons for its decision.

The appeal was dismissed, and the appellant was denied leave to raise the argument articulated in the amended notice of appeal. The court's decision affirmed the IAA's authority to determine whether exceptional circumstances exist to warrant the consideration of new information and upheld the IAA's assessment of the appellant's new claims.

Orders

Orders of the court

1. To the extent that leave is necessary, the appellant has leave to raise the argument articulated in the first ground of appeal in the amended notice of appeal filed on 19 November 2019.

2. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A delegate of the Minister for Home Affairs refused to grant the SHEV. That decision was automatically referred to the Authority for review under Pt 7AA of the Act.THE AUTHORITY’S DECISION Section 473CB of the Act provides that the Secretary of the Department of Immigration and Border Protection must give to the Authority (among other things) the material that was before the delegate. This appeal concerns the Authority’s refusal to consider information provided to it by the appellant in two emails, being information that was not before the delegate. The Authority’s power to get and consider new information is conferred and conditioned by s 473DC and s 473DD of the Act. They provide: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.473DD Considering new information in exceptional circumstancesFor 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. The effect of the information contained in the emails was summarised by the Authority at [9] of its reasons. It is necessary to consider that paragraph and the passages that follow together:9.The new information about the applicant’s circumstances provided on 1 and 4 December 2017 stated that:•his main responsibility as head of the village was to provide new recruits to the LTTE’s air base … located about two kilometres from the applicant’s village;•the Sri Lankan army became aware of what he did approximately one month prior to the applicant leaving Sri Lanka. The Sri Lankan army searched for the applicant and insisted that he inform and identify LTTE members or face serious consequences;•the applicant wholeheartedly provided assistance to the LTTE including providing food and performing sentry duties located about one kilometre before the LTTE air base;•the applicant has close relatives that were members of the LTTE and most were killed during the recent conflict that ended in 2009; and•his father was killed by the army.10.The applicant submitted that he did not disclose the information because he was told by other detainees in Australia that disclosure of involvement with the LTTE to the extent described would mean he could be detained indefinitely or be returned to Sri Lanka.11.The applicant was assisted by the Refugee Advocacy Service of South Australia (RASSA) to prepare his application and statement of claims. The applicant did not make reference to the new information during his arrival or SHEV interview. During the SHEV interview the applicant was informed that it was his responsibility to raise all claims to support his application and that, if his application was refused, he may not be able to raise additional claims at a later date. The applicant was informed that details of his claims would not be shared with the authorities or public of Sri Lanka. The applicant was informed of the importance of raising his claims as soon as possible including during the SHEV interview. The applicant was given a recess during the SHEV interview to consider what he had told the delegate and whether there was anything further he needed to say. After the recess the applicant told the delegate that he had nothing further to add.

Ratio Decidendi

Legal Principle Established

Only one ground of appeal is pressed. It is expressed as follows:1.That the primary judge erred in failing to find that the Immigration Assessment Authority (‘the IAA’) had dealt with the ‘new information’ provided by the Appellant on 30 November 2017 (referred to in the IAA’s decision as provided on 1 and 4 December 2017: AB 152.4) in a legally incorrect manner that involved it committing jurisdictional error.ParticularsThe IAA did not properly reach a state of satisfaction when exercising its powers under s473DD(a) of the Migration Act 1958, in that it did not properly consider, or failed to give proper, genuine and realistic consideration to whether there existed exceptional circumstances to justify considering the new information. To the extent that leave might be required to introduce the argument raised by this ground of appeal, it is plainly in the interests of justice that leave be granted in the circumstances I have described. That is most of the substantive submissions underlying the ground were considered by the primary judge, and because the appellant was self-represented at on his application for judicial review. The Minister does not oppose the grant of leave.THE APPELLANT’S SUBMISSIONS The appellant’s submissions focus on the information summarised in the first and third dot points set out at [9] of the Authority’s reasons, namely the newly introduced claims that he had been responsible as the head of his village for providing new recruits to an LTTE air base and that he had otherwise “wholeheartedly” assisted the LTTE, including by providing food and performing sentry duties in connection with the base. I will refer to these as the LTTE support claims. The ground of appeal appears to be limited to an error in the application of s 473DD(a) of the Act. However, the appellant’s oral and written submissions alleged error in the application of s 473DD as a whole, including in respect of s 473DD(b). So as not to go beyond the ground of appeal, the asserted error in relation to s 473DD(b) will be considered to the extent that it may have affected the Authority’s evaluation of whether “exceptional circumstances” existed for the purposes of s 473DD(a). It was submitted that the appellant’s new claim that his father had been killed by the army was given discrete attention by the Authority at [12] of its reasons and rejected as lacking in credibility and that the Authority had wrongly tarred the LTTE support claims as lacking credibility simply because it had determined the claims in relation to the death of the appellant’s father to be implausible. It was submitted that the Authority had erred in the manner discussed by the Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [42], [46], [53] and [70]. In that case, a tribunal was found to have committed jurisdictional error by failing to afford natural justice to a visa applicant before concluding that documents produced by the visa applicant had been forged to support his claims. It was submitted that it was not open to the Authority to conclude that the appellant had lied in relation to all of the new claims simply because it had made an adverse credibility finding against him in relation to the reason for his father’s death.