AGS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 33
Federal Circuit and Family Court of Australia
(DIVISION 2)
AGS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 33
File number(s): SYG 167 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 January 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the Immigration Assessment Authority (Authority) affirming a decision not to grant the applicant a Safe Haven Enterprise visa – whether Authority acted irrationally in not accepting an explanation the applicant gave for giving inconsistent evidence – whether the Authority incorrectly understood or applied s 473DD of the Act when considering whether to consider new information – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 5H(1), 36(2)(a), 36(2)(aa), 46A(1), 46A(2), 65, 473BB, 473DC, 473DD, 476
Privacy Act 1988 (Cth) s 6
Cases cited: ANL17 v Minister for Immigration & Anor [2020] FCCA 637
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
DLB17 v Minister for Home Affairs [2018] FCAFC 230
Fattah v Minister for Home Affairs [2019] FCAFC 31
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Division: General Number of paragraphs: 60 Date of hearing: 1 December 2021 Place: Sydney Counsel for the Applicant: Mr P Bodisco, by telephone Solicitor for the Applicant: Abu Legal Pty Ltd Counsel for the First Respondent: Mr T Liu, by telephone Solicitor for the First Respondent: Australian Government Solicitor ORDERS
SYG 167 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGS17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
25 January 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $7,500.
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
introduction
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
BACKGROUND AND CLAIMS FOR PROTECTION
The applicant is a citizen of Sri Lanka, and a Tamil. He arrived at Cocos Island on 27 August 2012.[1]
[1] CB20
The applicant stated his claims for protection on a number of occasions. On the evidence before me, the applicant first stated his claims in an interview held on 11 January 2013 (Entry Interview). The claims are recorded in a form titled “Irregular Maritime Arrival Entry Interview” (Entry Interview Form). Relevant to the first of the two grounds on which the applicant relies is the following passage from the Entry Interview Form:[2]
The Department is careful to protect the privacy of all information given by you during this interview. This information will not be made available to authorities in the country of your habitual residence. The exception to this is if a determination is made that you have no lawful basis to remain in Australia. In this situation, personal information may be provided to authorities of a foreign government where disclosure is necessary for your removal from Australia.
[2] CB1
2013 statement
On 6 September 2013 the applicant, through his migration agent, purported to lodge an application for a Protection visa.[3] The applicant stated his claims for protection in a statement dated 5 September 2013 that formed part of the application for a Protection visa (2013 statement). The applicant there claimed as follows:[4]
[3] CB23
[4] CB49
(a)The applicant is a citizen of Sri Lanka. He is a Tamil, and a Hindu; and he fears returning to Sri Lanka.
(b)The applicant had a number of “frightening experiences” with the “Sri Lankan security services”. In 1990 the applicant was living in a camp and was arrested by the Special Task Force (STF). He was held in an unknown place for eighteen months, was tortured, and suffered an eye injury. The applicant’s family did not know where the applicant was. The applicant was taken to Colombo prison and brought before a court. The applicant was released in April 1994 with the assistance of “Sri Lanka Human Rights, UNHCR and the Red Cross”. The applicant returned to the camp in which he had been living.
(c)In 1996 the applicant went to work in Qatar where he worked until 1999 when he returned to Sri Lanka to marry his wife.
(d)In 2006 the applicant occasionally helped his brother (who he identifies in his 2015 statement) (Mr K) in a shop “outside the camp”. At the entry interview the applicant said the shop belonged to him because he thought the Australian authorities might try to find Mr K. The applicant now knows this will not happen. On one occasion “a fight erupted in the street outside the shop between the LTTE [that is, the Liberation Tigers of Tamil Eelam] and the army”. The applicant was frightened, and he ran away. The army detained Mr K and asked him “who it was who had been serving tea and who had run away”. Mr K identified the applicant, and the applicant was detained by the army along with five other people. The army took possession of the applicant’s ID card. The applicant and one other man were able to “quickly… escape”. “Nothing has been heard of the other four people who were detained” and the applicant assumed they were killed. “10 days later” the applicant flew to Qatar.
(e)While the applicant was in Qatar, security authorities went to the applicant’s house looking for him. On one occasion the applicant’s wife and son were detained and questioned for one hour and thirty minutes. The applicant’s wife left the camp with their children to live with her mother.
(f)When the applicant returned from Qatar, the Criminal Investigation Department (CID) started looking for the applicant and visited the applicant’s mother-in-law’s house “at least 10 times”. The applicant did not live at home, but stayed with friends, and in other places. The applicant decided that he would have to leave Sri Lanka and he arranged to go to Australia.
(g)After the applicant reached Australia the applicant’s wife was questioned twice by “a group of 6 men” from the army and the Karuna Group.
(h)The applicant fears that his life or liberty would be at risk if he returns to Sri Lanka. “Many people” who have returned to Sri Lanka since the end of the civil war, including people who have returned from Australia, have disappeared. The circumstances are unexplained and those responsible for the disappearances have not been identified. It is impossible to know whether “those involved” are members of, or are connected to, the army, the police, or what is left of the pro-government militias. The applicant knows that “these people” are hostile to Tamils, and if “they” suspect a person is Tamil, that person is at risk.
(i)The applicant does not think the authorities will protect him because they are the people he fears. A Tamil places himself at risk by attempting to secure protection from “the Sinhalese dominated police or army”.
(j)Relocation is not a solution because the problem is “countrywide”. The applicant will be at risk “wherever” in Sri Lanka.
Applicant applies for SHEV
Because of s 46A(1) of the Act, the applicant’s purported application for a Protection visa was not a valid application for a visa. By letter dated 18 August 2015, however, a delegate of the Minister informed the applicant that the Minister had exercised the power conferred by s 46A(2) of the Act to allow the applicant to lodge a valid application for either a Temporary Protection (subclass 785) visa, or a SHEV.[5] By 12 October 2015 the applicant, through his migration agent, lodged an application for a SHEV (SHEV application).[6] There is no dispute the applicant is a “fast track applicant” within the meaning of s 5 of the Act, and that the decision the delegate later made not to grant the applicant a SHEV is a “fast track reviewable decision” within the meaning of s 473BB of the Act.
[5] CB82
[6] CB90
2015 statement
The applicant stated his claims for protection in a statement dated 18 September 2015 that formed part of the SHEV application (2015 statement).[7] The applicant there claims as follows.
[7] CB132-CB136
Background
The applicant is a citizen of Sri Lanka, having been born in Eastern Province, Sri Lanka. He is a Tamil, and a Hindu. The applicant is married and has three children. The applicant has four brothers who live in Eastern Province, Sri Lanka. The applicant’s father also lives in Eastern Province, Sri Lanka, with the applicant’s wife. The applicant’s mother died of natural causes “in September last year”. When the applicant was about ten years old his family moved 45 kilometres away to the Ampara District, Eastern Province. The applicant understands that his parents moved because of “tensions between the Sinhalese and the Tamils”.
1991 - 1993 - arrest, detention, and torture by STF
In around 1991 the applicant was arrested by the STF along with 25 other people. Some people were released, but “they” continued to detain the applicant. The applicant was detained in various places including two camps in Ampara until, in around 1993, the applicant was sent to Colombo prison.
One of the applicant’s best friends, who was a member of the LTTE, had gone into hiding. The STF interrogated the applicant about the whereabouts of his friend. The STF tortured and beat the applicant. On one occasion, when the applicant was handcuffed, the STF “hit a stick on a tree” near the applicant, and a piece of the tree fell off and got stuck in the applicant’s left eye. The applicant partially lost vision in that eye. On another occasion the STF undressed the applicant and put chilli powder all over his body. On yet another occasion the STF filled a plastic bag with petrol and put it over the applicant’s head. Although the applicant knew his friend was with the LTTE, he did not know where his friend was, and therefore could not give the STF the information they wanted.
1993 - 1994 - conviction and release
In around 1993 the STF took the applicant to Colombo prison. The applicant was charged with supporting the LTTE, and he was taken to court. The Red Cross were allowed access to prisoners and gave the applicant the details of a lawyer to assist the applicant’s defence (Mr P). Mr P, however, was later shot dead. The applicant also received assistance from the Human Rights Commission. The applicant attended court on two occasions, and was fined “17,000 SLR”. The applicant was released two weeks later, in July 1994.
1996 - 1999 - applicant travels to and works in Qatar
After his release, the applicant went to Thirukkovil, Eastern Province. The STF told the applicant that he was not allowed to leave the area controlled by them. If the applicant did leave, the STF said they would shoot him or send him back to Colombo prison. For this reason, the applicant decided to leave Sri Lanka.
The applicant applied for, and obtained, a passport. He secured a job as a cleaner in Qatar with the help of an agent who also helped the applicant obtain a work visa. The applicant worked in Qatar from around 1996 to 1999.
Return to Sri Lanka
In 1999 the applicant returned to Sri Lanka to see his parents, even though he was concerned about the situation in Sri Lanka. While the applicant was in Qatar the applicant’s mother arranged for the applicant to marry. The applicant and his wife got married in July 1999, and they later had three children. They lived in a village outside of Thirukkovil.
The applicant lived in Thirukkovil and worked as a casual labourer. The applicant also shared with Mr K ownership of a café in a village near Thirukkovil where the applicant used to help out.
2006 “gun battle”
In around June 2006 there was a “gun battle near the café between the LTTE and the STF”. The café was about one kilometre away from the STF camp. The applicant was in the café when the fight broke out. The applicant and Mr K ran to a farm behind the café to avoid the violence. Mr K ran into the jungle, and was later detained and tortured. The applicant ran to Thirukkovil and was stopped there by the STF. The applicant was made to kneel next to the river with some “other people”. The STF took the applicant’s national ID card.
There were many ambulances and the applicant saw many bodies being taken away. Two CID officers were killed. One of the officers belonged to the “Karuna Group”, which had broken away from the LTTE, and “sided with the authorities”. The applicant, and another person, jumped into the river and were able to escape. The applicant swam for a few minutes and then hid in the jungle. The applicant returned to his village outside of Thirukkovil and hid at various places and made arrangements to flee Sri Lanka. The applicant learned from Mr K that their café was burnt down by the STF.
2006 - applicant travels to Qatar and applicant’s wife arrested
The applicant was able to return to Qatar “a week or so after” the gun battle, where he worked as a carpenter. The applicant travelled to Qatar on a passport that was issued in April 2005. While the applicant was in Qatar, the STF arrested the applicant’s wife and interrogated her about the applicant’s whereabouts. The applicant’s wife was detained for “around a couple of hours”; and after her release she moved in with her mother, along with their children.
2008 - applicant returns to Sri Lanka and again travels to Qatar
In 2008 the applicant returned to Sri Lanka to visit his family. The applicant stayed in various places to avoid the authorities. The applicant’s wife told him the CID had visited her mother’s house on numerous occasions. It was too risky for the applicant to visit his wife at her mother’s house, so his wife visited him where he was hiding. Members of the “Karuna Group” visited Mr K and asked for the applicant’s whereabouts. The applicant returned to Qatar after 45 days because it was unsafe for the applicant to stay in Sri Lanka.
2010 - applicant returns to Sri Lanka
In 2010 the applicant returned to Sri Lanka after his employer in Qatar cancelled the applicant’s work visa. On his return to Sri Lanka the applicant joined his family at his mother-in-law’s house, where he remained for around three months. The applicant, however, was afraid. The applicant moved three kilometres away from his wife’s house. The applicant stayed at a friend’s house. The applicant, however, continued to feel “very insecure”. He did some casual labouring work but he could not live freely. The applicant wanted to leave Sri Lanka for good. The applicant met with an agent who helped him travel to Australia. The applicant left Sri Lanka by boat in August 2012. He left his passport behind with his wife.
Events after applicant arrives in Australia
The applicant stayed in contact with his wife. She told the applicant that in July 2013 4 men visited her house. “They” identified themselves as being from the CID and asked for the applicant. “They” took a family photo, the wife’s national identity card, and the applicant’s passport from the applicant’s wife’s house. The applicant’s wife told “them” that the applicant was in Australia. “They” also obtained the applicant’s mobile number, but they did not call the applicant. “They” told the applicant’s wife that if the applicant returns the applicant’s wife must inform them.
In May “this year” the applicant’s family received a call from the CID, who asked if the applicant had been released from immigration detention in Australia, and whether the applicant was working. The applicant’s wife told the CID the applicant was still detained. The CID told the applicant’s wife to report to them if the applicant returned.
The applicant fears that if he returns to Sri Lanka he will be detained immediately by the authorities. The authorities have the applicant’s identity documents and have been searching for him. The applicant believes “they” will suspect him of being involved with the LTTE. The applicant has previously been tortured by the authorities. The applicant fears he will be held responsible for the deaths of the CID officers killed during the battle between the STF and the LTTE. The authorities are hostile towards Tamils. Mr K has also been tortured by the authorities. The applicant also fears the “Karuna Group” which is closely aligned with the authorities. The applicant cannot seek protection from the authorities because he fears them. The applicant cannot live safely anywhere in Sri Lanka, he has to register where he lives, and will be easily identified by the authorities.
Before the delegate
By letter dated 18 February 2016 the delegate invited the applicant to appear before the Department of Immigration and Border Protection (as the Department of Home Affairs was then known) (Department) to attend an interview to discuss the applicant’s SHEV application and the applicant’s claims for protection.[8] On 29 April 2016 the applicant’s migration agent sent an email attaching a “Translation of the prison release letter”.[9] The letter purports to be from “Kalutara Prison” and states that the applicant was detained at that prison “between 9 November 1993 and 13 July 1994”.[10]
[8] CB175
[9] CB190
[10] CB191
Relevant to the first of the two grounds on which the applicant relies is the evidence the applicant gave to the delegate about the gun battle. The delegate’s decision record notes that the applicant claimed to have cooperated with an LTTE ambush of the Sri Lankan Army or STF,[11] and that the ambush was launched from the applicant’s shop with his cooperation, and that the authorities “chanced upon him” as he fled.[12] The delegate considered this claim to be inconsistent with the applicant’s written claims, and the delegate put the inconsistencies to the applicant:[13]
I put these inconsistencies to him and he said [he] had withheld information in his past statements to the department, motivated by a fear that he would be returned to Sri Lanka, i.e. he had disclosed his role in facilitating the LTTE ambush to the department as he feared this information would become known to the Sri Lankan authorities.
[11] CB209.2
[12] CB209.3
[13] CB209.4
On 9 November 2016 the delegate refused to grant the applicant a SHEV;[14] and on 14 November 2016 the Authority notified the applicant that the Department had referred to the Authority the delegate’s decision refusing to grant the applicant a SHEV.[15]
[14] CB192
[15] CB217
correspondence with authority
On 2 December 2016 the applicant’s migration agent sent an email to the Authority attaching submissions and six media articles (media articles).[16] These are as follows:
(a)A translation of what the applicant’s agent described as “extracts from Wintamil News”, which states that another “Tamil from Eelam” had been arrested and detained by the CID on his return to Sri Lanka.[17]
(b)A translation of what the applicant’s migration agent describes as “extract from Thinathanthi dated 22 November 2016” which purports to report on a United Nations officer’s anguish about the torture of Tamils, and that hundreds of Tamils are still imprisoned without any enquiries, and experience atrocities.[18]
(c)A report published by the ABC on 10 May 2016 which states that the Sri Lankan government had confirmed that 12 migrants sent back to Sri Lanka by Australia were being held by the CID.[19] The report noted that all 12 migrants were of Sinhalese ethnicity.
(d)An English translation of a report dated 2 May 2016 about the arrest of a former intelligence unit leader of the LTTE.[20]
(e)An English translation of an undated report stating that the United Nations Human Rights Commission “has passed judgement [sic] that compensation be paid to a Sri Lankan residing in Toronto Canada” who claimed that on his return to Sri Lanka in 2007 police branded him a “Canadian Tiger” and tortured him after he refused to pay a bribe.[21]
(f)An English translation of a report dated 25 April 2016 that a former LTTE commander who had been rehabilitated had been abducted.[22]
[16] CB230
[17] CB232, CB235
[18] CB236
[19] CB237
[20] CB240
[21] CB241
[22] CB242
authority’s reasons
The Authority first identified the information that was before it, and in particular whether any part of that information was “new information” within the meaning of s 473DC(1) of the Act and, if so, whether s 473DD of the Act applied to prohibit the Authority from considering the new information.
The Authority was satisfied that the submissions provided by the applicant’s migration agent on 2 December 2016, to the extent they related to the applicant’s “existing claims and respond[ed] to concerns with the delegate’s findings”, is not “new information” within the meaning of s 473DC of the Act. In relation to the six media articles the applicant’s migration agent attached to his submissions, the Authority found as follows:
(a)In relation to the first document, the Authority said it was prepared to accept that it was not and could not have been provided to the Minister before the delegate had made his decision; but the Authority noted the document was an article that refers to the arrest of a former member of the LTTE on his return from overseas.[23]
(b)As to the second document, the Authority accepted it could not have been provided to the Minister before the delegate had made his decision, and noted that the document is an article that refers to the continuing detention and torture of Tamils.[24]
(c)As for the third document, the Authority was not satisfied it is credible personal information, or that it is information that was not and could not have been provided to the Minister before the delegate made his decision.[25]
(d)In relation to the (dated) fourth and sixth documents, the Authority was not satisfied it is credible personal information, or that it is information that was not and could not have been provided to the Minister before the delegate made his decision; and the Authority was also not satisfied that these documents constituted credible personal information. As for the fifth (undated) document, the Authority was prepared to accept that it could not have been provided to the Minister before the delegate made his decision.[26]
[23] CB252, [6], first dot point
[24] CB252, [6], second dot point
[25] CB252-253, [6], second dot point
[26] CB253, [6], third dot point
After setting out the effect of s 473DD(a) of the Act, the Authority noted that the information contained in the articles “is general media reporting”; and that, although the information “mostly postdates the delegate’s decision”, the information does not contain any information that “is contra to” country information that was before the Authority, and the media articles do not advance any new argument relevant to the country information that was before it. The Authority therefore was not satisfied “there are exceptional circumstances” to “justify considering” the media articles under s 473DD(a) of the Act.
Imprisonment 1991-1994
The Authority:[27]
(a)accepted that the applicant was arrested and detained for a period between 1991 and 1994;
(b)accepted that, because the applicant was not released, the applicant may have been suspected of supporting the LTTE;
(c)was not satisfied that the applicant was tortured to provide information in relation to his friend;
(d)accepted that, while in detention, the applicant suffered mistreatment and an eye injury;
(e)accepted that the applicant, in 1993, was taken to court, convicted, fined, and released in 1993 or 1994; but
(f)found that, if the applicant’s conviction related to his being involved with the LTTE, it was only for “small-scale involvement” rather than “membership, direct support or combatant activities”.
[27] CB255, [19] in relation to the findings in (a)-(e); and CB255, [20] in relation to the finding in (f).
Post imprisonment 1994 - 1999
The Authority:
(a)did not accept the applicant’s claims that on his release the STF had any ongoing interest in the applicant; and it did not accept that the applicant travelled to Qatar in 1994 because he feared the STF;[28]
(b)was prepared to accept that the LTTE may have attempted some contact with the applicant but, if true, any contact with the LTTE was of a minor nature that of itself would not be a reason to fear adverse attention from the STF;[29]
(c)was prepared to accept the applicant may have had some nervousness about the general situation in Sri Lanka when he decided to return there in 1999, but the Authority did not accept the applicant was of any interest to the Sri Lankan authorities at that time;[30] and
(d)did not accept the applicant left Sri Lanka in 1994 because of fear for his safety.[31]
[28] CB256, [22]
[29] CB256, [23]
[30] CB256, [24]
[31] CB256, [25]
Gun battle 2006
The Authority accepted the applicant was working at a café in a village, and the applicant and Mr K shared ownership of the café.[32] The Authority, however, found that the applicant and Mr K were not involved in the gun battle in 2006, and the Authority was unable to accept that the applicant and Mr K were any more than bystanders at the gun battle.[33] The Authority also found that the applicant would not be imputed with any involvement with or support for the LTTE on the basis of the gun battle, or that the applicant was pursued by the CID or the Karuna Group because of the battle.[34] The Authority relied on the following:
(a)In relation to the applicant claiming that Mr K was arrested and tortured following the gun battle, the Authority referred to country information which indicated that, if the STF had suspected the applicant and Mr K of being involved with the LTTE or the gun battle, Mr K would most likely have been held in detention pending trial. There was, however, no such evidence before the Authority. The Authority therefore found that, even if Mr K were arrested, his subsequent release, and the lack of any continued investigation, suggest Mr K was no longer suspected of involvement with the LTTE, and the gun battle; and the Authority was not satisfied that the applicant remained or remains a suspect.[35]
(b)Although the Authority accepted the applicant may have been detained and his identity card taken, the Authority did not accept this suggested the STF had any suspicion or interest in the applicant personally. The Authority therefore rejected the claim the applicant made in the 2013 statement that the STF was searching for the applicant because Mr K had identified the applicant to the STF. The Authority found that the applicant’s detention was part of a general detention or roundup following “the incident”.[36]
(c)The Authority found that the applicant “embellished the role played by the café, [Mr] K and himself during the gun battle”; and that “the more likely explanation is that the café was merely near the scene of the battle and that [the applicant] and [Mr] K were bystanders”.[37] The Authority relied on findings that the applicant’s account of the gun battle changed between his “initial interview”, the 2013 statement, the 2015 statement, and his interview with the delegate. The Authority particularly noted that it was only before the delegate that the applicant had claimed that the café was used in the ambush. The Authority acknowledged the applicant’s agent’s submission that the reasons for the applicant’s contradiction stemmed from his fear that he may be seen to openly sympathise with the LTTE, and implicate Mr K. The Authority noted, however, that in the 2013 statement the applicant said he was “no longer concerned” that the Australian authorities might try and find Mr K, and the applicant was assisted by a migration agent when preparing the 2013 and 2015 statements. On that basis, the Authority found that the applicant had “at least some reassurance as to confidentiality and processes in Australia”, and the Authority, therefore, did not accept that the applicant “would have still harboured concerns about disclosing information that could be central to his claims”.[38]
(d)Given the Authority found the applicant embellished his involvement in the gun battle, the Authority also found he embellished his claims in relation to his wife’s questioning. The Authority accepted that, given the battle occurred near the café, the applicant’s wife may have been questioned; but the more plausible explanation is that the applicant’s wife’s questioning was part of the general investigation of the incident and not evidence of a particular suspicion of the applicant. The Authority, therefore, did not accept that the applicant’s wife was taken to see Mr K being tortured.[39]
(e)The Authority noted that the applicant remained in Sri Lanka for 10 days while preparing to depart. The Authority further noted that, when the applicant did depart, he did so legally, with his own passport, and a valid work visa. The Authority did not accept that someone who believed they were being sought by the STF would risk coming to the attention of authorities at the airport by using their own passport. The Authority also did not accept that someone with the profile claimed by the applicant would have been able to leave Sri Lanka in the manner in which the applicant did.[40]
[32] CB256, [27]
[33] CB257, [30]
[34] CB258-259, [37]
[35] CB257, [31]
[36] CB257-258, [32]
[37] CB258, [33]
[38] CB258, [33]
[39] CB258, [35]
[40] CB258, [36]
Qatar 2006 - 2009
Given the Authority found that the applicant was not imputed with any involvement in the gun battle, the Authority did not accept the claim the applicant made in the 2015 statement that when he returned to Sri Lanka in 2008 the Karuna Group and the CID were looking for him, he had to stay in various places, the Karuna Group visited the applicant’s mother-in-law’s house numerous times, and that the Karuna Group also visited Mr K and asked about the applicant. The Authority also relied on the applicant’s having returned and departed Sri Lanka on his own passport. The Authority did not accept that someone who was being actively sought by the CID would be able to re-enter and subsequently depart without at least being questioned at the airport.[41]
[41] CB259, [38]-[39]
Sri Lanka 2010 - 2012
The Authority was prepared to accept that on the applicant’s return to Sri Lanka he started to rebuild the café; and that the STF and any other authority may have asked the applicant who was undertaking that work. The Authority, however, did not accept that the applicant was under suspicion or that he was being actively searched for by the CID, Karuna Group, or STF.[42] The Authority also did not accept that the applicant had to wait until 2012 to raise money so that he could depart illegally. The applicant had been able to depart and return legally using his passport; and the Authority had in any event found that the applicant was not a person of interest to the STF, CID, or Karuna Group.[43]
[42] CB259, [42]
[43] CB259, [43]
Post departure interest
Given the Authority did not accept the applicant was a person of interest to the STF, CID, or Karuna Group, the Authority found that the applicant fabricated his claims in relation to the authorities’ post departure interest in him.[44]
[44] CB260, [46]
Authority’s conclusion
The Authority made a number of other findings it is unnecessary to set out in these reasons, including findings in relation to a claim based on the applicant’s having illegally departed Sri Lanka, and his returning to Sri Lanka as a failed asylum seeker. On the basis of the findings the Authority made, it concluded it was not satisfied the applicant was a refugee within the meaning of s 5H(1) of the Act; and also found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm. The Authority, therefore, concluded the applicant did not meet the criteria specified in s 36(2)(a) and s 36(2)(aa) of the Act, and affirmed the delegate’s decision.
ground one
The applicant relies on two grounds of application stated in the applicant’s written submissions filed on 23 November 2021.[45] Ground 1 is as follows:
The IAA has made a decision so unreasonable and/or illogical that no reasonable person would have made it.
Particulars
1.By rejecting (at paragraph [33] of the decision) the Applicant’s explanation for why he was not entirely candid regarding the circumstances of his brother’s involvement in the 2006 “gun battle” for fear of implicating and/or making disclosures that could see his brother prosecuted for involvement with the LTTE by the Sri Lankan authorities, the IAA damned the Applicant’s credibility by reference to a false factual premise, namely that he was or would have been provided assurances as to his confidentiality by his agent.
2.The assumption that a legal practitioner would make such an assurance in the face of express intention of the Department of Immigration during the Entry Interview to share personal information if the Applicant’s claims were to be rejected (in certain circumstances – see CB 1) is illogical;
3.To damn a man’s credit by reference to a false factual premise may enliven a determination of jurisdictional error: SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 at [34].
[45] At the hearing I granted the applicant leave to file and serve an amended application containing the grounds of application addressed in the applicant’s written submissions filed on 23 November 2021. I also directed that the amended application be filed and served by 8 December 2021. This has not occurred.
Parties’ submissions
In his counsel’s written submissions the applicant sets out in detail material from the Entry Interview Form, the 2013 statement, the 2015 statement, and the Authority’s reasons for decision. The applicant, however, does not further develop ground 1. In his counsel’s oral address, it was submitted the Authority assessed the applicant’s account of the 2006 gun battle on the basis of an assumption, namely, that the applicant’s migration agent could have advised the applicant that the applicant could be assured that what he would state in support of his claims would be kept confidential. It was submitted that that assumption is illogical and unreasonable, given that the Entry Interview Form itself provided that “personal information may be provided to authorities of a foreign government where disclosure is necessary for your removal from Australia”.[46]
[46] CB1
The Minister, in his counsel’s written submissions, makes two submissions. First, to establish illogicality or irrationality “one must demonstrate that there is only one conclusion open on the evidence or that there is no logical connection between the evidence and the inferences drawn”.[47] Ground 1, however, challenges the sufficiency of a premise on which the Authority relied, not the connection between the evidence and the inferences drawn. Second, ground 1 ignores that in the 2013 statement the applicant stated that he was no longer concerned that the Australian authorities might try and find Mr K; and from there it was open to the Authority to reason that it did not accept the applicant would have still harboured concerns about disclosing information that could be central to his claims.
[47] First Respondent’s Outline of Submissions, at [12]. The quote is from Fattah v Minister for Home Affairs [2019] FCAFC 31, at [45]
Determination
It is the case that the Authority found there were inconsistencies in the accounts the applicant gave of the 2006 gun battle; and that the Authority relied (among other things) on these inconsistences for not accepting the applicant’s claims in relation to the 2006 gun battle. In so relying on the inconsistencies, the Authority did not accept the explanation for the inconsistencies the applicant gave to the delegate. The Authority, however, did not not accept the applicant’s explanation because it assumed the applicant ought to have felt assured that his claims would be kept confidential. The Authority found the applicant “had at least some reassurance as to confidentiality and processes in Australia”, and therefore the Authority did not accept the applicant “would have still harboured concerns about disclosing information that could be central to his claims”.[48]
[48] CB258, [33]
The Authority relied on two things. The first is that, in the 2013 statement, the applicant said he did not state at the Entry Interview that Mr K owned the shop because the applicant was afraid that the Australian authorities would try and find Mr K; but by the time the applicant prepared the 2013 statement the applicant said: “Now I know that will not happen”. The second thing on which the Authority relied is that the applicant completed his 2013 and 2015 statements with the assistance of a migration agent. That does not imply, as the applicant submits, an assumption that the migration agent would have “provided assurances as to his confidentiality by his agent”. It implies a finding, which it would have been reasonably open to the Authority to make, that the applicant was in a position to obtain advice from the migration agent about the extent to which his claims would be kept confidential. In those circumstances, it was reasonably open to the Authority to conclude, as it did, that the applicant “had at least some reassurance as to confidentiality and processes in Australia”, and, on that basis, not accept the explanation the applicant gave for the inconsistent accounts he gave about the 2006 gun battle.
For these reasons, ground 1 fails.
There is one other matter to note. The explanation the applicant gave to the delegate for the inconsistencies cannot rationally account for the inconsistencies. If it was fear of disclosure of his claims that led the applicant not to claim in the 2013 and 2015 statements claims he first made to the delegate, there is nothing in the material to suggest that the applicant’s fear was any less at the time he first made the new claims before the delegate than the fear the applicant claims to have held at the time he made the 2013 and 2015 statements. That would eliminate fear of disclosure as the reason for the applicant’s not making in the 2013 and 2015 statements the claims the applicant made for the first time before the delegate.
ground 2
Ground 2 is as follows:
The IAA has applied the wrong test at law, namely misdirecting itself of a narrow and legally impermissible interpretation of “exceptional circumstances” pursuant to section 473DD(a) of the Migration Act 1958 (Cth).
Particulars
1.The IAA misdirected itself as to the proper test pursuant to section 473DD of the Act by adopting a narrow interpretation of “exceptional circumstances” at paragraph [7] of the decision;
2.Contrary to this narrow interpretation, the test pursuant to section 473DD(a) and (b) “overlaps” – and hence findings made pursuant to section 473DD(b) may also be relevant to section 473DD(a): BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [6].
Ground 2 claims the Authority made an error of the sort White J found the Authority made in BVZ16 v Minister for Immigration and Border Protection.[49] Before I consider whether the Authority did make such error, it will be necessary to set out s 473DD of the Act, and what the cases have said about the proper construction of that section.
[49] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
Section 473DD of the Act
It is necessary to begin with the notion of “new information”.[50] It is defined in s 473DC(1) as information that was “not before the Minister when the Minister made the decision under section 65” and which “the Authority considers may be relevant”. The significance of information being “new information” is that s 473DD of the Act prohibits the Authority “[f]or the purposes of making a decision in relation to a fast track reviewable decision” from considering such 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.
[50] This and the following 7 paragraphs substantially reproduced what I said in ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [43]-[52]
The Full Federal Court has considered s 473DD of the Act on a number of occasions, including in Minister for Immigration and Border Protection v CQW17.[51] The Full Federal Court held that before the Authority can consider “new information” it must be satisfied of the matters stated in both s 473DD(a) and of either one of s 473DD(b)(i) or s 473DD(b)(ii) of the Act. In other words, the requirements of s 473DD(a) and either one of s 473DD(b)(i) or s 473DD(b)(ii) of the Act are cumulative.
[51] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
Paragraph (a) of s 473DD of the Act requires the Authority be satisfied there are “exceptional circumstances to justify considering the new information”. The meaning of “exceptional circumstances” in the context of s 473DD of the Act was considered by Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[52]
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
[52] [2018] HCA 16, at [30] and [31] (footnote omitted)
Then there is s 473DD(b)(i) of the Act, which requires that the information “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65”. The text of that paragraph suggests it covers both information that did not exist before the Minister made his decision under s 65 of the Act, and existing information an applicant did not know existed but which, for whatever reason, could not have been provided to the Minister by the time the Minister made his or her decision.
Next there is s 473DD(b)(ii) of the Act, which requires that the information be “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 expression “credible personal information” is not defined in the Act. Subsection 5(1) of the Act, however, provides that “personal information” has the same meaning as in the Privacy Act 1988 (Cth). Section 6 of that Act defines “personal information” as “information or an opinion about an identified individual, or an individual who is reasonably identifiable . . . whether the information or opinion is true or not”, and “whether the information or opinion is recorded in a material form or not”.
In Plaintiff M174/2016 Gageler, Keane, and Nettle JJ proceeded on the footing that “personal information” as defined in s 5(1) of the Act was the meaning to be assigned to “personal information” contained in s 473DD(b)(ii).[53] After considering the meaning of “not previously known”, their Honours concluded as follows:[54]
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.
[53] Plaintiff M174/2016 [2018] HCA 16, at [33]: “In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable””.
[54] Plaintiff M174/2016 [2018] HCA 16, at [34]
The next matter to note is that although paragraphs (a) and (b) of s 473DD are cumulative that does not imply the Authority must consider them sequentially - first paragraph (a) then either one of paragraphs (b)(i) or (b)(ii). That is because matters that are relevant to assessing whether paragraph (a) is satisfied may also be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) is satisfied, and matters that may be relevant to assessing whether either of paragraph (b)(i) or (b)(ii) is satisfied may be relevant to assessing whether (a) is satisfied. This point was made by White J in BVZ16[55] in a passage that has been approved by the Full Federal Court on a number of occasions:[56]
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
[55] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958, at [9]
[56] This passage was set out with approval by the Full Federal Court in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, at [48] after which the Court noted: “His Honour’s view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).”
In BVZ16 White J held that the Authority had confined “its consideration of whether there were exceptional circumstances to the evaluation of the” review applicant’s “explanation for not having provided the information earlier”; and by doing so the Authority “had applied an unduly narrow interpretation of the term “exceptional circumstances””.[57]
[57] [2017] FCA 958, at [46]
In DLB17 v Minister for Home Affairs the Full Federal Court identified the principles that must be applied when determining whether the Authority, in the circumstances of a particular case, has undertaken the tasks s 473DD of the Act requires it to undertake, as explained by White J in BVZ16:[58]
In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.
[58] DLB17 v Minister for Home Affairs [2018] FCAFC 230, at [22]
These authorities must now be viewed in the light of what the High Court said in AUS17 v Minister for Immigration and Border Protection:[59]
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.
The result, as has been recognised by the Federal Court in numerous other cases, 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).
[59] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, at [11], [12] (footnotes omitted)
Determination
On a fair reading of its reasons, the Authority performed the procedural duty imposed on it by s 473DD of the Act in the manner the High Court in AUS17 held the Authority ought to approach that duty. The Authority identified each of the documents the applicant had provided to it, and the information each document contained.
(a)In relation to the information contained in the documents the Authority identified as attachment 3 and attachment 4, the Authority considered both whether the information “was not, and could not have been, provided to the Minister before the Minister made the decision”; and whether the information was credible personal information. The Authority decided those two questions adversely to the applicant, which meant that “further assessment of the new information against the criterion specified in s 473DD(a) is redundant”.[60]
(b)In relation to the information contained in the documents it identified as attachment 1 and attachment 2, the Authority was prepared to accept or did accept that the information was not and could not have been provided to the Minister before the decision was made. The Authority did not in terms state whether the information was or was not credible personal information. On a reasonable reading of the Authority’s reasons, however, I find the Authority did consider whether the information was credible personal information. The Authority described the information in each of attachment 1 and attachment 2; and, in paragraph 7 of its reasons, the Authority referred to all of the information as constituting “general media reporting” which, plainly, is incapable of being “personal credible information”.
(c)The Authority then considered whether there were exceptional circumstances to justify its considering the information contained in the documents. The Authority was not satisfied there were any exceptional circumstances; and it did so because it concluded the information was “general media reporting”, and it constituted country information that was not “contra”, by which I find the Authority intended to mean “contrary”, to the country information that was before the Authority. It is true that, given its findings in relation to the information contained in attachment 3 and attachment 4, it was redundant for the Authority to consider whether there were exceptional circumstances to justify its considering that information. That, however, did not mean the Authority failed to comply with s 473DD of the Act.
[60] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, at [11]
The Authority did not, in concluding there were no exceptional circumstances, manifest any narrow construction of “exceptional circumstances”; and the Authority did not, in applying s 473DD, make an error of the sort White J held the Authority made in BVZ16, or any other error. The Authority, in its consideration of the documents it identified as “new information”, complied with s 473DD of the Act.
Ground 2, therefore, fails.
disposition and costs
I propose to order that the application be dismissed. I will also order that the Minister’s name be changed to its current description.
The parties agree that costs should follow the event. The Minister submitted he seeks costs in the amount of $7,500. I will also order that the applicant pay the Minister’s costs set in the amount of $7,500.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 January 2023
0
11
0