ACO18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 463
•27 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ACO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 463
File number: MLG53 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 27 May 2024 Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – where Authority recorded finding that new information not credible – whether Authority misconstrued s 473DD(b)(ii) of the Migration Act 1958 (Cth) by assessing the truth of the new information rather than assessing its capacity to be believed – error identified from the language adopted by the Authority and the narrow focus of its inquiry – error material – writs issued Legislation: Migration Act 1958 (Cth), s 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 384 ALR 196; [2020] HCA 37
BOS17 v Minister for Immigration and Border Protection (2020) 170 ALD 1; [2020] FCA 75
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
CVS16 v Minister for Immigration and Border Protection [2018] FCA 951
FNF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 10
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submissions: 20 May 2024 Date of hearing: 20 May 2024 Place: Melbourne Counsel for the Applicant: Mr S Sharify Counsel for the First Respondent: Mr N C Dour Solicitor for the Applicant: Carina Ford Immigration Lawyers Solicitor for the Respondents: Mills Oakley ORDERS
MLG 53 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACO18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
27 MAY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 8 December 2017.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
3.The first respondent pay the applicant’s costs as agreed or in default of agreement, in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 10 January 2018 and amended on 27 February 2024, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 8 December 2017. The Authority affirmed a decision of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa). The Minister opposes the application. The Authority enters a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu religion, who arrived in Australia on 16 November 2012 after travelling by boat from Sri Lanka. Due to the circumstances of his arrival, he has the status under the Migration Act 1958 (Cth) (Act) of an unauthorised maritime arrival.
On 3 January 2013 the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 2-16).
On 19 April 2016 the applicant applied for the visa (CB 26-90). The applicant was assisted by a migration agent in the preparation of his application.
The applicant’s claims for protection were set out in a statutory declaration dated 2 April 2016 which was provided with his visa application (CB 70-73). The applicant’s claims for protection included that:
(a)The applicant was born and lived in Tharmapuram, Kilinochchi, Northern Province with his family, including four brothers. Tharmapuram is a Tamil town.
(b)In 2006, war broke out and the LTTE began to forcibly recruit young men aged 18 and over. The applicant’s brother, “N”, was taken at this time.
(c)In 2008, due to the encroachment of the army to Tharmapuram, the applicant and his family moved to Udaiyarkattu and then, after two months to Mathalan, Mullativu. In March 2009. The army transported the applicant and his family to the Maruthamadu refugee camp, where they remained until November 2009.
(d)The applicant’s family returned to Tharmapuram in February 2010, but the applicant decided to stay in Vavunia with his brother, “S”, to progress his studies.
(e)On 28 April 2010, the applicant’s brother, “S” was taken by the Criminal Investigation Department (CID). On 30 April 2010, his body was found in a well having been tortured and killed. He had been taken because he was suspected of being a member of the LTTE.
(f)At around this time, the applicant’s brother “N”, who had not been seen since his forcible recruitment in 2006, was trying to escape Sri Lanka. He was identified at the airport when he attempted to flee and was arrested. The applicant’s family has not seen or heard from him since.
(g)Following the death of “S”, the applicant returned home to Tharmapuram where he completed his studies, worked with his father in his business and got a job selling ice creams in November 2011.
(h)During the next three months, the applicant was approached by the CID while at work. The first time was after two months. The CID wanted to know why the applicant was in Vavunia, where he had been after his brother’s death and when he returned.
(i)Four or five days later, the CID returned and told the applicant to go to an address in Thekkuwathai. The applicant went to the location that evening. Two people questioned the applicant for an hour about the bomb blast which had taken place outside his brother’s shop, about the people who had associated with his brother and about his family and his father’s vocation. They took the applicant’s phone and got all of his contact details.
(j)Three days later, the applicant was followed and then picked up and taken to the same place where he had previously been questioned. On this occasion, three people questioned him about the bomb blast. When the applicant was unable to answer the questions, the people became violent and kicked him off the chair he was sitting on. The applicant had a seizure and woke up in hospital. The attackers had kept his phone.
(k)When the applicant left hospital, he went to stay at his older sister’s place in Kanagapuram. He became aware that “they” had visited his accommodation and questioned people about his whereabouts. They had gone to the applicant’s father’s place and questioned him as to where the applicant was.
(l)The applicant decided at this point that he should leave Sri Lanka and arrangements were made through a friend in Colombo for him to escape.
The applicant identified his fears on any return to Sri Lanka as being that he would experience the same fate that had happened to his two older brothers (“S” and “N”) because of his family’s close relationship with the LTTE.
On 5 October 2016, the applicant participated in a TPV interview (CB 196).
On 15 May 2017, a delegate of the Minister made a decision to refuse to grant the applicant the visa (CB 199-214).
On the same day, the decision of the delegate was referred to the Authority for a review (CB 215-222).
On 6 June 2017, the applicant, through his representative, provided to the Authority a written submission and “other documents” comprising translations of newspaper articles reporting on the bomb blast and the death of the applicant’s brother, “S”. The written submission contained a challenge to the delegate’s credibility findings and made allegations of a denial to the applicant of procedural fairness. Under the heading “Exit from Sri Lanka” it read:[1]
We note the lack of meaningful questioning surrounding Mr X’s departure from Sri Lanka. At interview Mr X advised that he had left Sri Lanka with an agent and that his father had paid a ‘singhalese man with influence’ a bribe to ensure that he departed the country safely. No further questioning or consideration was given to this statement. Our client advises that in addition to the bribe that was paid, the agent handed him the passport at the airport and then walked him, and two other young men through to security. Our client was advised he had to go to a certain counter and was escorted by his agent onto the plane and met in Malaysia by two other men who organised his tourist visa.
The account that our client has given is also consistent with country information. DFAT assesses that document fraud is prevalent in Sri Lanka. Most official records in Sri Lanka continue to be kept in hard-copy format: government departments lack computerised information databases. Genuine identify documents can be obtained by submitting fraudulent supporting documents. Counterfeit documents are the primary cause of fraud within the issuance process for the NIC, passport or driver’s licence. As such, we submit that it would be plausible that Mr X was able to depart Sri Lanka unimpeded using his passport which may not have been genuinely issued, and also by his agent providing bribes to airport and security staff. As such, his ability to successfully exit Sri Lankan should not form the basis of the assumption that he was not of interest or not placed on a ‘stop’ or ‘watch’ list. Given that his brother who had been a member of the LTTE has disappeared during an attempt to flee Sri Lanka through the airport we submit this would indicate that the authorities are aware of his past membership and would also indicate our client is also at risk of being identified on return.
[1] CB 232.
On 8 December 2017, the Authority affirmed the delegate’s decision and produced a set of written reasons (Reasons) (CB 245-266).
THE DECISION OF THE AUTHORITY
The Authority acknowledged receipt of the applicant’s nine-page submission and Tamil newspaper articles with translations (Reasons, [4]).
The Authority found, due to its page length, that the submission did not comply with the practice direction. The Authority recorded that despite this irregularity, it had on this occasion accepted and considered the submission (Reasons, [5]-[6]).
The Authority recorded that it had considered the applicant’s submissions about credibility. The Authority did not consider the translation of articles about “S’s” death to be new information and noted that it had considered them (Reasons, [8]-[9]).
The Authority did not consider the country information referred to in the submission as it did not consider there to be exceptional circumstances to justify its consideration; the information was similar to general country information about Tamil/authority tensions that had been before the delegate (Reasons, [10]-[11]).
At Reasons [12]-[17] the Authority considered what it referred to as the information about “Leaving Sri Lanka”. The Authority said:
12. The new information was also that when leaving Sri Lanka, the applicant paid a bribe; the agent walked him through the airport and security and he had to go to a certain counter and was escorted by the agent onto the plane and met two other men in Malaysia who organised the visa. It was submitted that it would be plausible that the applicant was able to depart unimpeded using his passport, which may not have been genuinely issued, by bribing airport officials and the applicant would be at risk upon return.
13. I consider the applicant could have provided the information earlier, either in his statement or interviews, but he did not. It was information personal and known to him. I do not accept he did not have the opportunity at interview as he raised bypassing security at the airport. Further, he was asked if there was anything more he wanted to add but did not mention this. I consider the information does not meet s 473DD(b)(i).
14. I do not accept the information is credible as the applicant did not mention anything about departing illegally or through bribery in his arrival interview or statement. Further, in his application he stated he departed Sri Lanka legally. I consider if it were true, that he would have mentioned such a key claim earlier. Further, it is contrary to his claim in the application that he departed on his own passport legally. I am not satisfied the information meets s 473DD(b)(ii).
15. Further, I do not accept there are exceptional circumstances to consider the information as the applicant has had plenty of opportunity to mention this in interviews and his written statement. He was informed a number of times in writing and at interview of the importance of providing all information. Further, he had legal representation in his application. As indicated above, I do not accept that he was not accorded procedural fairness. Further, his claims are contrary to his application form that he departed legally.
16. I have considered the applicant’s circumstances and explanations, but I do not accept there are exceptional circumstances to justify having regard to the new information (s. 473DD(a)).
17. I am not satisfied the requirements of s. 473DD are met in respect of the new information and I have not had regard to that information.
The Authority then summarised the applicant’s claims as they appeared in the applicant’s statutory declaration and by noting that at the TPV interview, the applicant had, amongst other things, claimed he was assisted to bypass security at the airport when he left Sri Lanka on his genuine passport (Reasons, [18]).
The Authority accepted that the applicant was a young single Tamil Hindu male from the Northern Province whose family lived in an LTTE controlled area during the war and had moved around during this period due to the conflict and had lived in an internally displaced persons (IDP) refugee camp between May and November 2009 (Reasons, [19]-[22]).
In other respects, the Authority did not find the applicant’s account of events in Sri Lanka to be credible. Specifically, the Authority:
(a)Did not accept that the CID or anyone had taken the applicant’s brother “N” or that he was arrested and disappeared. The Authority did not consider it plausible that “N” could have evaded detection in the IDP camp had he previously worked for or had been suspected of working for the LTTE (Reasons, [23]-[31]);
(b)Did not accept that the applicant’s brother “S” had been taken by the CID and tortured and killed by them (although the Authority did accept that “S” had died). The Authority identified inconsistences in the applicant’s account as well as inconsistencies between his account and the newspaper articles he had provided (Reasons, [34]-[42]);
(c)Did not accept that the applicant was taken, questioned or harmed or threatened by the CID or that he or his family had any anti-government (or imputed) or suspected LTTE profiles. The Authority did not accept that the authorities wanted or were interested in the applicant, his brothers or his family. The Authority identified inconsistencies in the applicant’s account of his interactions with the CID and found it difficult to believe that authorities would wait 18 months to question the applicant about the bomb blast or the death of “S” (Reasons, [43]-[53]);
(d)Considered that the applicant had fabricated his claim to have bypassed security at the airport with the help of influential persons and found instead that the applicant departed Sri Lanka legally (Reasons, [54]).
Having made these findings and by reference to country information, the Authority was not satisfied that the applicant satisfied either the refugee or complementary protection criteria.
As far as the applicant’s departure from Sri Lanka was concerned, the Authority found that the applicant would not be subject to fines pursuant to the Immigrants and Emigrants Act as his departure had not been illegal (Reasons, [79]).
PROCEEDINGS IN THIS COURT
GROUND ONE
The amended application identifies two grounds of review. However, at the commencement of the hearing, counsel for the applicant, Mr Sharify, informed the Court that his client no longer pressed ground two. The remaining ground one is as follows:
The Immigration Assessment Authority (Authority) fell into error by making a final assessment of the credibility of new information at the preliminary stage of decision-making.
Particulars
a.The Applicant provided new information to the Authority in relation to the circumstances of his departure from Sri Lanka.
b.The Authority rejected considering this new information stating “I do not accept the information is credible” [14]
c.The correct test was whether the new information was capable of being believed, not whether it was definitely credible or not.
d.The error was material as it may have informed the determination of the Applicant’s claimed refugee status.
Applicant’s submissions
The applicant submits as follows.
First, the applicant identifies what he describes as “the statutory framework for the consideration of new information” and in this context submits that the following are settled principles of law:
·In determining whether there are exceptional circumstances to justify considering new information under s 473DD(a), the Authority must first consider the alternative criteria in s 473DD(b): AUS17 v Minister for Immigration and Border Protection (2020) 384 ALR 196, [11] (Kiefel CJ, Gageler, Keane and Gordon JJ);
·The decision to consider new information under s 473DD is a separate and antecedent decision to the “ultimate” decision of whether the Authority affirms or remits the delegate’s decision under s 473CC of the Act: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [28]-[29] (Bromwich J).
The applicant observes that in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[42], Bromberg J described the decision whether to consider new information as the “anterior stage of decision-making” and reflecting this, held that the Authority must not make a s 473DD decision based on whether the proposed new information would actually impact its decision, but whether it could do so.
The applicant submits that the anterior stage is to be contrasted with the “deliberative stage” of decision-making, at which point the Authority may substantively consider the new information admitted under s 473DD, along with all other information before it, in reaching findings of fact necessary to determine whether to affirm or remit the decision to refuse the grant of a visa.
The applicant submits that the Authority approached what is described as “the bribe claim” (being the claim referred to in the Authority submissions and reproduced at [10] above) on an erroneous basis in that it made a definitive finding as to its veracity – “I do not accept the information is credible” (Reasons, [14]) – at an anterior stage of decision-making.
Instead, the Authority should have applied what in effect was a lower threshold and asked whether the information “was capable of being believed” (CSR16 at [42]). The applicant submits that there is no evidence in the Reasons that the Authority applied this correct approach.
Minister’s submissions
The Minister submits that the applicant’s identification of error places more weight on the Authority’s finding (“I do not accept”) than it can capably bear and attempts to compartmentalise parts of the Authority’s intellectual justification as falling into either an anterior or deliberative stage of decision-making. While the Authority is not permitted to reach a concluded view, there is no “particular formulaic consideration required” for the Authority in expressing its findings in respect of s 473DD (referring to FNF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 10 at [27(b)]).
The Minister submits that on a fair reading of the decision, the Authority did not accept that the information was open to be capable of being accepted as truthful, after providing an intelligible justification; namely, because the evidence in the entry interview was to the contrary (the applicant left Sri Lanka in May 2012 by departing from Katunayake International Airport to Kuala Lumpur in Malaysia by a tourist visa: CB 14) and because the applicant had failed to raise the illegal bribe claim at any point before the delegate handed down its decision (Reasons, [12]-[17]).
CONSIDERATION
The sole ground of review is concerned with the Authority’s exercise of the discretion contained in s 473DD of the Act which provides:
473DD Considering new information in exceptional circumstances
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.
The parties agree that insofar as s 473DD(b)(ii) is concerned, the following reasoning from the judgment of Bromberg J in CSR16 (as endorsed by the majority of a Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 at [37]) identifies the correct approach to the assessment of whether new information is “credible”.
41. In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42. The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
43. The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: [citations omitted].
Although the issue is finely balanced in this case, I am persuaded that the Authority did misconstrue s 473DD(b)(ii) in its application to the bribe claim.
The Authority’s reasoning directed at this subsection is contained in Reasons [14]. While the applicant places emphasis on the first line (I do not accept the information is credible) as disclosing error, I consider instead that the clearest evidence that the Authority applied the wrong lens to the new information is the statement appearing later in that paragraph – I consider if it were true, that he would have mentioned such a key claim earlier.
This is a finding that self-evidently is concerned with the truth of the bribe claim and contextualises the first reference to “credible”. In other words, the Authority’s reasons are best understood as involving an appreciation that the word “credible” is synonymous with “truth” in the absolute sense, rather than capacity to be believed.
I am fortified in this conclusion given the absence of evidence that the Authority had a consciousness of the correct threshold to be applied to the new information. For example, the Authority did not say anything to indicate that it had made any assessment of whether the new information was “obviously incredible or inherently capable of belief”: compare BOS17 v Minister for Immigration and Border Protection [2020] FCA 75 at [43].
The approach of the Authority also involved a focus on the failure of the applicant to disclose the bribe claim to the delegate (or at an earlier point in time). While this consideration is not legally irrelevant to the assessment required under s 473DD(b)(ii), it is a consideration that is germane to s 473DD(b)(i) and the Authority’s continued reliance on it, instead of broadening the scope of inquiry to consider the substance of the new information, is further suggestive of error.
Finally, while I accept that the Authority was not obliged to give reasons for the exercise or non-exercise of a procedural power such as s 473DD(b)(ii),[2] the fact is that it did purport to provide such reasons and these reasons addressed only one of the three requirements of the subparagraph (and even then, imperfectly) and was silent on the remaining two; whether the information was previously known by the applicant or the delegate and whether, had the information been known, it may have affected consideration of the applicant’s claims for protection. This last inquiry required the Authority to engage in an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [105].
[2] BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [16].
The failure of the Authority to expand its inquiry beyond the “credibility” of the bribe claim underscores the myopic approach taken by the Authority.
In the context of s 473DD(b)(ii) the Authority was only required to decide whether the new claim was “capable of being believed”; that is, whether it was “obviously incredible or inherently incapable of belief”. On a fair reading, at what should have been the preliminary stage of deciding the scope of the information it would consider, the Authority instead seems to have assessed the credibility of the new information by deciding whether the bribe claim was ultimately truthful.
The applicant submitted that the error was material because it may have affected the Authority’s assessment of the interest of the Sri Lankan authorities in him. The Minister did not challenge the applicant’s submissions on materiality or otherwise submit that the Authority’s error was not material. Applying the “undemanding” standard of “reasonable conjecture”[3] I am satisfied that there is a realistic possibility that had the Authority not erred as it did, it might have reached a different conclusion about the applicant’s claims to have departed Sri Lanka legally and/or his credibility more generally. On either eventuality, there remained the realistic possibility that the outcome might have been different.
[3] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [32]-[33].
CONCLUSION
I have found that ground one is established. It follows that writs of certiorari and mandamus will issue to quash the Authority decision and require the Authority to reconduct the review of the delegate’s decision according to law.
There is no reason why costs should not follow this event. There will be an order that the Minister pay the applicant’s costs to be agreed or in default of agreement to be in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 27 May 2024
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