AGF18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 169
Federal Circuit and Family Court of Australia
(DIVISION 2)
AGF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 169
File number(s): SYG 137 of 2018 Judgment of: JUDGE LAING Date of judgment: 9 March 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) – whether the IAA applied a narrow interpretation of the term "exceptional circumstances" or otherwise misconstrued the criteria within s 473DD of the Migration Act 1958 (Cth) – application dismissed. Legislation: Migration Act 1958 (Cth) s 473DD Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 171 ALD 477
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 19 December 2022 Place: Sydney Solicitor for the Applicant Mr M. Jones (Michael Jones, Solicitor) appeared in person Counsel for the First Respondent Ms N. Maddocks (Counsel) appeared in person Solicitor for the First Respondent Sparke Helmore Solicitor for the Second Respondent Submitting appearance, save as to costs ORDERS
SYG 137 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGF18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
9 MARCH 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Sudan, who arrived in Australia as an unauthorised maritime arrival on 25 May 2013.
The applicant applied for a protection visa on 15 November 2016.
On 20 September 2017, the Delegate refused the application. The matter was referred to the IAA on 26 September 2017.
On 22 December 2017, the IAA affirmed the Delegate’s decision not to grant the applicant a protection visa.
THE IAA’s DECISION
The IAA observed that it had received submissions and documents from the applicant’s representative (at [4]-[5]). The IAA summarised the documents provided at [6], by reference to their characterisation as:
(a)a “statement of claims” made by the applicant, which restated some of the applicant’s claims but also contained some new information (Statement of Claims);
(b)a purported letter from the applicant’s lawyer stating that he had been briefed to defend the applicant, who had been detained and released on bail after an assurance was given by his brother (Lawyer’s Letter); and
(c)a translated and original report, referring to the sentencing of "22 employees of the local Administration and 73 members of their families ... as a result of a tribal bloodletting", referring to men submitted to be members of the applicant’s tribe (Report).
In relation to the new information contained within the Statement of Claims, the IAA stated (at [7]-[8]):
7. The applicant's statement of claims contains some new information. I am satisfied that the document itself could not have been given to the delegate before the decision was made, and that s.473DD(b)(i) is satisfied. I am not satisfied, however that there are exceptional circumstances to justify considering the new information in the statement. It contains a number of new claims which have never been mentioned before; there is no explanation for the applicant's failure to mention these matters, and it is not apparent why he could not have done so, as many relate to events which it is claimed occurred before the delegate's decision was made.
•The applicant claims that he was arrested in 2012. Although, according to the statement, the applicant told the delegate about his claimed arrest in 2012, there is nothing in the referred material to indicate that he did so. The applicant has not provided any explanation as to why he would have omitted this key claim, if it were true. He was informed at the entry interview and at the SHEV interview of the necessity to provide all claims and information at the earliest possible opportunity and was told that an adverse inference may be drawn about his credibility if he did not. He did not mention ever having been arrested either at the entry interview, in the written claims made in his SHEV application or at the SHEV interview. At each stage he was specifically asked whether he had ever been arrested or faced charges. The applicant was represented in relation to the SHEV application. The delegate conducted a thorough interview and in my view gave the applicant every opportunity to provide all relevant information, and this information specifically, as she repeatedly asked him about claimed arrests and about his travel in and out of Sudan, which he indicated had occurred without problems. I am not satisfied that this information could not have been provided to the delegate, or that it is credible personal information, and there are no other factors which, in my view, would constitute exceptional circumstances to justify considering this new information.
•As to the "recent" claimed arrest of the applicant's brother who put up an assurance so that the applicant could be released, it is not clear when this was and the applicant has not satisfied me that this information could not have been given to the delegate. I am also not satisfied that this further new information is credible personal information. Again, there do not appear to be any exceptional circumstances to justify considering this information.
•The claimed arrests of the applicant's tribe and family "three months ago" appears to pre-date the delegate's decision and it is not apparent why this information could not have been given to the delegate, who told the applicant at the SHEV interview in May 2017 that any further information provided prior to the decision being made would be considered. The applicant also did not tell the delegate that members of his family or his fiancee's father were involved in the local administration, despite discussion at the SHEV interview about their political activity. Moreover, it is not evident how the circumstances of the applicant's relatives in Darfur would be relevant to the situation of the applicant, whose home area is Khartoum, given the lack of detail about the reason for their arrests.
•The applicant's claim that his relative [(Relative)] leads an armed group in which many of the applicant's relatives and cousins are involved was also not raised before the delegate; no explanation has been provided for this omission, and the applicant was asked numerous questions, including at both the entry and SHEV interviews, about the involvement of his family members in such groups.
8. Overall, I am not satisfied that there are exceptional circumstances to justify consideration of the new claims contained in the statement, and so s.473DD(a) is not met.
In relation to the Lawyer’s Letter, the IAA stated (at [9]):
9. The lawyer's letter, dated 2 October 2017, post-dates the delegate's decision. I am satisfied that the letter itself could not have been given to the delegate before the decision was made, and that s.473DD(b)(i) is satisfied. I am not satisfied that there are exceptional circumstances to justify considering the letter, as it relates to an event - the applicant's claimed arrest and release on bail - which it is claimed took place in 2012. It is not apparent why information from the lawyer about this event was not and could not have been given to the delegate. As noted above, the applicant was represented in relation to the SHEV application, he was aware of the necessity to provide supporting evidence as he did so in relation to other matters, and he was questioned specifically and extensively about the matters to which the letter relates. I am not satisfied that there are exceptional circumstances to justify consideration of the letter, and so s.473DD(a) is not met.
In relation to the Report, the IAA stated (at [10]):
10. The applicant has not satisfied me as to why the undated and unsourced report about arrests of his family members and members of his tribe, which he said occurred three months before October 2017 and which apparently therefore predated the delegate's decision, could not have been provided to the delegate before the decision was made. Nor am I satisfied that this is credible personal information that could have affected consideration of the applicant's claims, given that the source of the report is not identified, it is not dated, and it indicates that the arrests of members of the applicant's tribe and another tribe were related to "tribal bloodletting", whereas the applicant suggests that the arrests were political in nature and directed against members of his tribe by the central government. In these circumstances, and given its lack of probative value, I am also not satisfied that there are exceptional circumstances to justify consideration of the report.
The IAA considered that there were no issues regarding the applicant’s identity and nationality (at [14]). However, the IAA considered that the applicant had substantially fabricated his protection claims regarding threats and harm that he claimed to have experienced in the past due to his tribal and geographical origins, and refusal to work as an informer for the National Intelligence Security Service (NISS) (at [15]-[33]). The IAA observed that in his entry interview, the applicant had stated that nothing had happened to him in Sudan and that he had left due to a lack of economic opportunity and a need to help his family. The IAA was not persuaded by the applicant’s attempts to explain this difficulty in the evidence (at [15]-[19]).
The IAA was prepared to accept that the applicant had left his original place of residence in Darfur due to conflict, which was consistent with country information regarding the security situation there. However, the IAA was satisfied that Khartoum was the applicant’s home area to which he would return (at [20]).
The IAA accepted that there may have been some politically related problems at the applicant’s university campus that affected the applicant to some degree. However, the IAA did not accept that the applicant was abducted, detained for several days and tortured in 2002 because he refused to inform for the government. If this had happened, the IAA considered that it would have been mentioned at the entry interview. The IAA did not accept that the applicant had an adverse profile with the government or the NISS because he refused to work with them or because he was once detained (at [21]).
The IAA accepted that the applicant may have experienced extra tax being demanded and been accused of selling stolen goods. In this regard, the IAA observed that country information indicated that corruption was prevalent in Sudan. However, the IAA did not accept that this occurred because of the applicant’s ethnicity or that the extortion that he experienced amounted to serious harm. Whilst the IAA accepted that the applicant may have been denied employment with the electricity department due to discrimination based upon his origins, the IAA did not accept that this one incident amounted to serious harm (at [22]). Nor was the IAA satisfied that any discrimination that the applicant had faced because of his origins amounted to significant harm (at [38]).
The IAA did not accept the applicant’s claim to have relatives who were members of the Umma party. As the applicant had stated in his entry interview that none of his family members were associated or involved with any political group or organisation, the IAA considered this late claim to be a fabrication (at [23]).
The IAA considered that the fact the applicant had travelled in and out of Sudan on four occasions supported its conclusion that he was not facing significant harassment, discrimination or harm in Sudan. The IAA did not accept that he was incapable of finding out about asylum possibilities in the countries to which he had travelled (at [24]).
The IAA expressed doubts about the applicant’s claims regarding various incidents of armed robbery he said occurred whilst travelling between Khartoum and Darfur. Whilst it accepted that there would be some risk of being harmed in criminal and generalised violence if the applicant travelled regularly between Khartoum and Al Daien, the IAA considered that there appeared to be no compelling reason for such travel on a regular basis. The IAA was satisfied that the risk could be managed and minimised to less than a real chance without any impermissible modification of behaviour (at [25]).
The IAA accepted that Darfur had experienced armed conflict since the 1980s. It considered country information indicating that those from Darfur faced a moderate risk of discrimination or violence. However, the IAA was satisfied that the applicant was not perceived as a Darfuri of “African” tribal origin, or as an opponent of the government because of his tribe, place of origin, family association, activities or expressed views. The IAA considered that there was no independent information before it to indicate that the applicant’s tribe, as a group, were targeted by the government or government supported forces, or that the applicant would be affected by this in Khartoum (at [26]-[27]).
The IAA did not accept the applicant’s claim that his fiancée had been recently questioned about him. This was because the IAA did not accept that the applicant had a profile as an actual or perceived opponent of the government in Sudan. The IAA considered that there was no reasonable explanation for sudden interest in the applicant by government forces four years after his departure from the country, in an area where he had spent little time after the age of 10 (at [28]).
The IAA accepted that some of the applicant’s personal information was disclosed on the Department’s website for a brief period in 2014. The IAA considered it unlikely that this would have been accessed by the Sudanese authorities, but considered that even if it had, it would tell them no more than that the applicant had possibly applied for asylum in Australia. This may be suspected anyway. The IAA accepted that the applicant may be identified as a failed asylum seeker on return (at [29]-[30]).
Having regard to available country information, the IAA was satisfied that even if the applicant were identified as a failed asylum seeker, this would not result in a real chance of serious harm. The IAA accepted that the applicant may come to the attention of the authorities upon returning to Sudan, as he may be travelling on an emergency travel document. There was some possibility that he may be detained and investigated for a period of possibly up to 24 hours. However, having regard to the applicant’s circumstances and profile, the IAA was not satisfied that this would result in a real chance of relevant harm (at [31]-[33] and [39]).
On the basis of the above, the IAA was not satisfied that the applicant was a person to whom protection obligations were owed. Accordingly, the IAA affirmed the Delegate’s decision (at [34]-[40]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by an application filed on 17 January 2018, relying upon the following ground:
1.The Authority constructively failed to exercise its jurisdiction.
Particulars
The Tribunal applied an unduly narrow interpretation of the term "exceptional circumstances" in relation to new information submitted by the Applicant.
The ground contended that the IAA applied an unduly narrow interpretation of the term “exceptional circumstances” in s 473DD of the Migration Act 1958 (Cth) (Act), which provided as follows:
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 applicant relied upon AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494. In that case, it was stated at [10]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ (footnotes omitted):
10. Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12. The result, as has been recognised by the Federal Court in numerous other cases16, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a)17.
The applicant also relied upon CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16), in which at [39]-[44] Bromberg J found that the IAA erred in applying a higher standard to the construction of “credible personal information” than considering whether the information was “capable of being believed” (see also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 171 ALD 477 at [62] per Mortimer and Jackson JJ).
By reference to the above authorities, the applicant contended that the IAA erred in interpreting and applying s 473DD of the Act.
Specifically, the applicant took issue with the first dot point of [7] of the IAA’s decision. There, the IAA noted that despite the applicant submitting that he had claimed before the Delegate that he had been arrested in 2012, there was no evidence that he had done so. The IAA stated that the applicant had “not provided any explanation as to why he would have omitted this key claim, if it were true”.
I am not persuaded that in doing so, the IAA fell into the species of error considered in CSR16. I accept that it would have done so, had it asked itself whether the information in question was true, rather than “capable of being believed”. However, the lack of any explanation as to why the claim, if true, had not been made earlier in the circumstances identified was also capable of informing the question of whether it was “capable of being believed”. I am therefore not persuaded that the IAA’s language in this regard demonstrated a misunderstanding of the test in s 473DD(b)(ii) of the Act.
The applicant also took issue with the second dot point of [7], in which the IAA referred to the applicant’s claim that his brother had been arrested. The IAA observed that it was not clear when this was said to have occurred. The IAA concluded that it was not satisfied that the information could not have been given to the Delegate, or that it was credible personal information. The applicant submitted that the IAA “summarily dismissed this claim as being credible personal information without any explanation”.
However, the IAA was not obliged to give reasons for its non-acceptance that the requirements of s 473DD were met: FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456 (FMA17) at [68]; CGS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1196 at [9]-[10]. Although the applicant made the formal submission that FMA17 was wrongly decided, he did not direct the Court to any authority establishing that the IAA was obliged to state reasons for its finding that the information at issue did not meet the requirements of this provision. In any event, some basis for the IAA’s conclusion is discernible in the decision of the IAA. The IAA at [7] considered that although s 473DD(b)(i) was satisfied, the applicant had not provided any explanation for failing to mention the new claims previously (including regarding his brother’s arrest). It is apparent from the first dot point that such lack of explanation was, in the particular circumstances, a matter that the IAA considered capable of bearing adversely on credibility as distinct from the ability of the new information to meet s 473DD(b)(i).
In relation to the third dot point in [7], the applicant submitted that the IAA gave no consideration to whether his claim that others in his family had been arrested or fled was credible personal information.
I accept that the IAA did not expressly use the language in s 473DD(b)(ii) in that paragraph. However, the IAA again in relation to this dot point raised concerns that the applicant’s claims in this regard had not previously been raised despite contextually relevant discussion having occurred at an earlier interview. From the introduction and first dot point in [7], it is apparent that the IAA considered that this impacted adversely on the credibility of the new claims. Further, the IAA expressed that it was not evident how the circumstances of the applicant’s relatives in Darfur were relevant to the applicant’s situation, given the lack of detail that had been provided. I therefore accept the Minister’s submission that the requisite assessment against s 473DD(b)(ii) of the Act occurred. The IAA was not required “to engage in any particular formulaic consideration of s 473DD(b)”: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79].
I would have reached the same conclusion regarding the fourth dot point in [7], for similar reasons. The IAA in this case had, for the reasons I have explained, raised the particular circumstances surrounding the applicant’s previous failure to mention the new claims, and the lack of explanation as to why this had occurred, as matters of potential relevance to s 473DD(b)(ii) of the Act. In any event, I did not understand the applicant to challenge the fourth dot point in his submissions.
In relation to [9], the applicant submitted that the IAA gave no consideration to whether the Lawyer’s Letter was credible personal information. Again, the IAA did not expressly invoke the language of s 473DD(b)(ii). However, I accept the Minister’s submission that the substance of this assessment nonetheless occurred. It is apparent from the language used at [6] that the IAA doubted the provenance of the letter (which it described as having been “purportedly written” by the applicant’s lawyer). At [9], the IAA accepted that s 473DD(b)(i) was met in relation to the letter itself, which post-dated the Delegate’s decision. However, the IAA expressed concerns that it was not apparent why the information had not been provided earlier. This was in a context where the IAA expressed that, “[a]s noted above”, the applicant had been represented, was aware of the need to provide supporting evidence, and was questioned “specifically and extensively” about matters relating to the letter. These were matters that the IAA had, at [7], regarded as potentially affecting whether or not new information provided by the applicant was credible.
In relation to [10], the applicant submitted that although the IAA “purported to consider” whether the Report contained credible personal information, it did so on the basis of an analysis of the lack of date and source and whether reference to “tribal bloodletting” matched the applicant’s claims that the charges were political in nature. This was contended to have misapplied the definition of “credible personal information” in a similar manner to that which was considered in CSR16. However, the IAA did not make any finding as to whether or not the information in question was true or genuine. Instead, the IAA identified matters capable of bearing upon whether the information was “credible”, and concluded that it was not satisfied that the information was “credible personal information that could have affected consideration of the applicant’s claims”. This was the correct test, applied within the “context of the referred applicant’s claims more generally”: see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [105]. I am not persuaded that the IAA misconstrued the applicable test in the manner considered in CSR16 or otherwise relevantly erred in its construction or application.
Having regard to the above, I am not persuaded that the IAA applied an unduly narrow interpretation of the term "exceptional circumstances", or otherwise misconstrued the criteria within s 473DD of the Act.
It follows that the sole ground relied upon by the applicant is unable to succeed.
Whilst I am grateful for the parties’ helpful submissions regarding materiality, I have concluded that it is unnecessary to determine that issue in the present case.
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Laing. Associate:
Dated: 9 March 2023
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