AFE18 v Minister for Home Affairs
[2019] FCCA 2225
•23 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFE18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2225 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority erred in assessing new information or failed to consider an integer of the applicant’s claims considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.473DA, 473DC, 473DD |
| Cases cited: ADN18 v Minister for Home Affairs [2018] FCA 1677 AYK17 v Minister for Immigration [2019] FCA 1053 CVK16 v Minister for Immigration [2017] FCA 1434; 257 FCR 297 Minister for Immigration v BBS16[2017] FCAFC 176; (2017) 257 FCR 111 Minister for Immigration v SZMTA (2019) 93 ALJR 252 Minister for Immigration v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 |
| Applicant: | AFE18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 128 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu of Hodges Legal |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The second amended application the subject of leave granted on 14 August 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 128 of 2018
| AFE18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 21 December 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from submissions filed on behalf of the applicant on 8 July 2019.
The applicant is a male, born in Vavuniya District, in the Northern province of Sri Lanka on 31 March 1982, and is of Tamil ethnicity.[1]
[1] Court Book (CB) 3.
The applicant arrived in Australia at Christmas Island without a valid visa by boat on 12 October 2012 and applied for a Safe Haven Enterprise Visa (SHEV) on 2 February 2016.[2]
[2] CB 46 and 169 at [1].
The delegate refused to grant the visa on 13 June 2017.[3]
[3] CB 169 at [2].
The delegate’s decision was reviewed by the Authority. The Authority affirmed the delegate’s decision and refused to grant the applicant a visa on 21 December 2017.[4]
[4] CB 168.
The applicant’s claims
The applicant is a Sri Lankan citizen, of Tamil ethnicity and Hindu faith.[5]
[5] CB 5.
The applicant’s claims include the following:[6]
a)in 2008, after four Sinhalese men were killed by the Liberation Tigers of Tamil Eelam (LTTE), the applicant was chased and harassed by other Sinhalese men;
b)in 2012, the applicant became involved in a land dispute with his Sinhalese neighbours. The neighbours claimed that the land, which had been handed down to the applicant from his grandfather, was Sinhalese land;
c)the Farmers’ Association and Land Registry told the applicant to stop clearing the land until the matter was settled.[7] The applicant did so;
d)unknown people in white vans unsuccessfully searched for the applicant, because of the land dispute, and threatened the applicant’s sister. The applicant believes that these unknown people are members of the Sri Lankan Army (SLA) or Criminal Investigation Department (CID);
e)after he arrived in Australia, the applicant’s home (in Sri Lanka) was burnt down; and
f)the applicant cannot approach the authorities with his concerns because they are Sinhalese and he fears that they will take adverse action against him on the basis of his ethnicity.
[6] CB 170 at [9].
[7] CB 127; CB 172 at [17]
The applicant claims to fear harm or persecution from the Sri Lankan authorities, for the following reasons:
a)he is of Tamil ethnicity;
b)he will be perceived as an LTTE supporter;
c)he departed Sri Lanka illegally; and
d)he applied for asylum in Australia.
The decision of the Authority
The Authority considered the applicant’s claims and made findings which included the following:
a)it found that there was insufficient evidence to support the applicant’s claim that he was harassed by the Sinhalese majority after the killing of four Sinhalese men;[8]
b)it accepted that there was a dispute over the applicant’s land, between the applicant and his Sinhalese neighbours, which was being settled by the relevant authorities;[9]
c)it found that it was implausible that the unknown men in the white vans would be SLA or CID members, and that the Sri Lankan authorities would involve themselves in a land dispute;[10] and
d)it accepted that the applicant’s house was burned down, but found that there was insufficient evidence to suggest that the arson was related to the 2008 incident or the land dispute.[11]
[8] CB 172 at [15].
[9] CB 172 at [17].
[10] CB 172 at [18].
[11] CB 173-174.
The Authority found that the applicant would not be of adverse interest to the Sri Lankan authorities by virtue of his ethnicity, due to post-war reconciliation efforts.[12]
[12] CB 176 at [35].
The current proceedings
These proceedings began with a show cause application lodged on 16 January 2018. The applicant now relies upon a second amended application, in respect of which I granted leave at the trial on 14 August 2019. There are three grounds in that application, numbered Grounds 2, 3 and 4 (Ground 1 in an earlier version of the application having been abandoned). The remaining grounds are:
Ground 2
The Authority failed to put to the Applicant what it was that the Authority considered to be “new information” when it chose to exercise non-statutory powers or capacities and correspond with the Applicant by way of a letter.
PARTICULARS
i.Submissions were sent “on behalf of the applicant” [CB 169, 4] to the Authority by way of letter [CB 157 – 159].
ii.The Authority corresponded with the Applicant by way of letter dated 25 July 2017 [CB 160].
iii.The Authority in its letter dated 25 July 2017 states “Some of the information referred to in the correspondence appears to be new information” [CB 160].
iv.Having chosen to correspond with the Applicant who was not represented by way of a letter, it was obliged to specify what it was that the Authority considered to be “new information”.
v.The failure to specify what it was that the Authority considered to be “new information” contained in the submissions that were sent “on behalf of the applicant, in the instant matter amounts to jurisdictional error.
Ground 3
The IAA failed to assess an essential integer of the applicant’s claims when assessing future harm the applicant would face under [complementary] protection provisions.
PARTICULARS
i.The IAA accepted that “there is a dispute between the applicant’s family and neighbouring Sinhalese people over a portion of the land…” [17]
ii.The IAA accepted that the applicant’s parents’ house was burned down however this incident was not linked to the land dispute or the 2008 incident as claimed.
iii.Though the IAA also states at [17] that the dispute “is currently being dealt with by the relevant authorities in Sri Lanka and that no further land clearing activities are currently being carried out on the disputed portion of land until the issue is resolved”, the IAA ought to have assessed future harm the applicant would face due to the dispute that remains current, when assessing the applicant’s claims against the [complementary] protection provisions.
iv. The real risk of significant harm that emanates from neighbouring Sinhalese people over a portion of the land should have been assessed separately.
v.The applicant in his statement raised the following claim under the heading “Complementary protection” [CB 65, 24],
a. “I will be subjected to this hard because I was trying to clear the land near the Sinhalese villages, it would become Tamil land and the Sinhalese people did not want this to happen”
Ground 4: The Authority committed jurisidictional error at the “step of its reasoning” concerning whether the “information” was “new information” and “relevant”.
PARTICULARS
i. The determination of the question whether the “information” was before the delegate when the decision under s.65 was made and whether the information “may be relevant” under s.473DC(1), is “anterior” to the decision to be made under s.473DD.
ii. The letter dated 25 July 2017 sent by the Authority states “Some of the information referred to in the correspondence appears to be new information” [CB 160].
iii. The letter dated 25 July 2017 is indicative of the Authority having engaged in the step of reasoning required under s.473DC, which is an anterior step prior to the decision to be made under s.473DD concerning new information.
iv.The Authority failing to clearly specify what exactly it thought to be new information that was contained in the letter dated 25 July 2017 was so unreasonable.
(applicant’s emphasis retained)
I have before me as evidence the court book filed on 28 March 2018.
Consideration
The first and third grounds (Ground 2 and 4) in the second amended application are related and were considered at trial together. A question bearing upon both of these grounds is whether the Authority came under any obligation pursuant to s.473DC of the Migration Act 1958 (Cth) (Migration Act). There is no doubt that the Authority was obliged to consider the matters prescribed in s.473DD and there is also no doubt that an anterior question, in that regard, was whether the material proffered by the applicant to the Authority following the referral to the Authority was new information. It is likewise uncontroversial that the expression “new information” has the same meaning in s.473DD as it does in s.473DC. In the circumstances, it is unnecessary to resolve the question whether s.473DC applies in circumstances where the Authority does not “get” new information of its own volition but, rather, is presented with it by an applicant. Both the applicant and the Minister prepared their submissions on the assumption that the section did apply, although I expressed doubt, having regard in particular to the terms of subsection (1). As counsel for the Minister pointed out, however, subsection (2) suggests that the section may have a broader application to circumstances such as the present. In the present case, there can be no doubt that the material provided by the applicant might have had some relevance to the review and the Authority plainly understood that it needed to determine whether that material included new information.
Ground 2: failure to inform the applicant of what information was considered new information
The applicant provided a written submission to the Authority on 6 July 2017.[13] The Authority sent a letter to the applicant on 25 July 2017 stating that some of the information appears to be “new information (information that was not before the Minister’s Department)”. The Authority invited the applicant to provide an explanation for why the information:
a)could not have been given to the Minister’s Department before the decision was made; and
b)is credible personal information which was not previously known and may have affected consideration of his claims, had it been known.
[13] CB 157-159
This invitation reflected the statutory test in s.473DD(b) of the Migration Act. It also reflected the information that had been provided to the applicant when the Authority invited him to provide a submission.[14]
[14] CB 146; 154 at [23]-[24]
The applicant concedes that the Authority was not required by the Migration Act to send the additional letter giving the applicant a further opportunity to make submissions on the question of whether new information should be taken into account.[15] The applicant’s submissions to the Authority did not address the questions which arise under ss.473DC and 473DD of the Migration Act. Although it was not required by the Migration Act, the Authority by its letter gave the applicant an opportunity to address this omission. It was not required to do more. There was, therefore, no denial of procedural fairness. This is especially so in circumstances where s.473DA of the Migration Act operates to exclude the natural justice hearing rule except to the extent that rule is already incorporated within the statutory scheme.[16]
[15] applicant’s submissions at page 5, subparagraph (e)
[16] Minister for Immigration v BBS16[2017] FCAFC 176; (2017) 257 FCR 111 at [93]
In any event, and as submitted by the Minister for two reasons, this ground fails on the facts.
First, the Authority did in fact inform the applicant of the new information in question. It appears that the Authority telephoned the applicant using an interpreter and invited submissions on whether the Authority should consider the hyperlinked media articles referred to in the submission, but which were not before the delegate.[17]
[17] CB 161
Secondly, the applicant’s initial submission did not address the statutory test in s.473DD. The Authority went to the effort of putting the applicant on notice that some of the information provided in his submission was “new information” and invited him to make comments on why the Authority should take this information into account. The applicant made no attempt to make a further submission. It is speculative to think that he would have made a submission had the new information been specifically identified in the second letter. In those circumstances, the applicant suffered no “practical injustice”. He was not denied an opportunity to make a submission in a sense that could be said to be material to the Authority’s ultimate conclusion.[18]
[18] Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [38]
While the letter sent by the Authority to the applicant seeking a further submission on the question of new information was not particularly helpful to the applicant at the purported new information was not identified, the Authority should not be criticised for going beyond its statutory obligations, provided that the additional steps do not mislead an applicant or give rise to some other irregularity constituting jurisdictional error. No such error occurred in this case.
I reject the first ground.
Ground 4: failure to make a finding under s.473DC
Ground 4 alleges unreasonableness in respect of the Authority’s finding that certain information contained in the applicant’s submission was “new information” within the meaning of s.473DC of the Migration Act. It ambiguous whether the applicant’s complaint relates to:
a)the substantive finding as to the information being new information being unreasonable; or
b)the failure of the Authority in its letter of 25 July 2017 to specify the new information in question.
The Minister’s submissions addressed both contentions. I accept those submissions.
The applicant relies on the decision of Farrell J in AYK17 v Minister for Immigration.[19] Her Honour held, at [34]-[38], that the assessment of whether information is “new information” for the purposes of s.473DC is one that is anterior to the assessment of whether the information meets the requirements of s.473DD. That proposition is not controversial.
[19] [2019] FCA 1053
Further, the assessment under s.473DC requires the Authority to consider two questions:
a)whether the information was before the delegate at the time of the primary decision; and
b)whether the Authority considers the information may be relevant.
The first question is a factual one. The second question is an evaluative one which requires the Authority to make an assessment of the possible relevance of the information. In saying that, the applicable threshold in s.473DC is low (“…may be relevant…”). A consequence of this is that it will often be unnecessary for the Authority to make an explicit finding about the possible relevance of the information. If the Authority finds that the information was not before the delegate and then proceeds to consider the requirements of s.473DD, it will readily be inferred that the Authority concluded that the information was of some potential relevance.[20] That is what occurred in this case. The Authority made a factual finding that certain information was not before the delegate and went on to consider the operation of s.473DD in respect of that information.[21]
[20] see AYK17 at [35]-[37]
[21] CB 169 at [5]-[7]
The applicant contends that when the Authority sent the letter on 25 July 2017 it had already formed the view that information in the submission was new information for the purposes of s.473DC. This contention is doubtful. The language of the letter is not suggestive of a concluded position having been reached (“…some of the information referred to in the correspondence appears to be new information…” (emphasis added)), although it does suggest at least a preliminary view.
Insofar as the applicant claims the Authority reached an unreasonable conclusion that the information in question was new information, the complaint is without merit. The focus of this attack appears to be the finding that the applicant made a new claim that because he and his family were “unable to access their ancestral land they are deprived of their subsistence”.[22]
[22] see applicant’s supplementary submissions at [8]
In this regard, there can be no doubt that the Authority accurately summarised a submission made by the applicant to the Authority.[23] Further, the applicant had not previously been recorded as saying that the land dispute threatened his capacity to subsist. The submissions therefore amounted to a new claim. It was not simply argument. It is well established that a new claim may amount to “new information” for the purposes of s.473DC.[24] The Authority’s approach at [5]-[6] of its reasons does not involve error.
[23] see applicant’s submission to the Authority at CB 157
[24] CVK16 v Minister for Immigration [2017] FCA 1434; 257 FCR 297 at [49]-[50]; ADN18 v Minister for Home Affairs [2018] FCA 1677 at [39]
Insofar as it is said that it was unreasonable for the Authority not to specify the particular new information in its letter of 25 July 2017, the complaint is simply an attempt to re-agitate the matters the subject of Ground 2 under the rubric of unreasonableness. I have addressed the issue above at [15]-[22].
There is a further difficulty for the applicant in respect of this ground. The test for unreasonableness is “necessarily stringent”.[25] It must be shown that the decision-maker’s assessment lacked an evident or intelligible justification having regard to the particular facts and circumstances of the case, including the relevant statutory context.[26] In this case, the Authority was not under any statutory obligation to write to the applicant inviting a further submission on the question of whether new information should be received. In the absence of any statutory obligation, it is difficult to see why the requirement to act reasonably required the letter to adopt a particular form or include any particular details.
[25] Minister for Immigration v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [11]
[26] SZVFW at [10] and [82]
A failure to consider a claim?
The applicant claims that the Authority erred by failing to consider an “essential integer” of the Applicant’s claims, specifically the proximity of his family’s property to Sinhalese neighbours and villages with Sinhalese populations.
The Minister submits that this ground fails on the facts. I agree. The Authority did consider the proximity of his family’s property to local Sinhalese populations. In particular:
a)the Authority referred to the applicant’s claim to have been chased by, and shot at by, Sinhalese people, and the claim that Sinhalese people would pass by his house and scream at him;[27]
b)the Authority referred to the land the subject of the dispute being “on the Sinhalese border” and that the applicant claimed to fear harm from “Sinhalese people from the neighbouring area” who had asked him to stop clearing the land;[28]
c)the Authority found that the applicant had given inconsistent evidence about his claim to have been shouted at by Sinhalese people;[29]
d)the Authority found that the applicant’s claim to have been shot at by Sinhalese people had been fabricated;[30]
e)the Authority found that there was no evidence that the applicant had been the subject of “adverse interest from the Sri Lankan authorities, or the local Sinhalese people” (emphasis added);[31]
f)the Authority accepted that there had been a dispute in relation to land between the applicant’s family and “neighbouring Sinhalese people” and that, pending resolution of that dispute by Sri Lankan authorities, no land clearing was occurring on the disputed land;[32]
g)the Authority referred to the applicant’s evidence that his family’s house was visited by groups of Sinhalese people on two occasions, but did not accept that the SLA or the CID were involved;[33]
h)ultimately, the Authority concluded that the applicant was not at risk of harm because of the land dispute. It addressed this risk by reference to harm from “the CID, army or any other group”.[34] The reference to “any other group”, in the context, must include Sinhalese people including those involved in the land dispute who lived in the vicinity of the land; and
i)the Authority then went on to consider extensively the position of ethnic Tamils in post-civil war society in Sri Lanka.[35] This analysis only makes sense against the historical background of conflict between at least some Tamils and the majority Sinhalese population.
[27] CB 170 at [9] and 171 at [14]
[28] CB 170 at [9]
[29] CB 171 at [14]
[30] CB 171 at [15]
[31] CB 172 at [15]
[32] CB 172 at [17]
[33] CB 172 at [18]
[34] CB 173 at [20]
[35] CB 174-175 at [24]-[31]
Given this analysis, it is clear that the Authority was cognisant that the disputed land was located in an area proximate to areas with a Sinhalese population. The Authority also considered and dealt with the claim that local Sinhalese people contested the applicant’s family occupation of the disputed land and the clearing of that land. The Authority expressly referred to the claimed fear of harm from neighbouring Sinhalese. In light of the findings summarised above, there is no basis to conclude that the Authority overlooked this aspect of the applicant’s claim.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 September 2019
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