AGT18 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 728

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AGT18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 728  

File number(s):

MLG 143 of 2018

Judgment of:

JUDGE EGAN

Date of Judgment:

19 August 2024

Catchwords:

MIGRATION – Whether the authority had failed to carry out a proper review of the applicants’ claims – whether the Authority misunderstood or misapplied s. 473DD of the Migration Act – whether the Authority improperly received new information under s. 473DD of the Act – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) s.5H(1), s.5J, s.473DC, s.473DD

Cases cited:

AUS17 v Minister for Immigration and Border Protection and Anor (2020) 269 CLR 494

Minister for Home Affairs v Buadromo (2018) 267 FCR 320

Minister for Immigration, Citizenship and Multicultural Affairs v AWT19 [2021] FCAFC 58

Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 217

Division:

Division 2 General Federal Law

Number of paragraphs:

36

Date of last submission/s:

19 June 2024

Date of hearing:

25 June 2024

Place:

Brisbane

Counsel for the Applicant:

Mr M. Crowley

Solicitor for the Applicant:

AUM Legal

Solicitor for the Respondent

Sparke Helmore Lawyers

ORDERS

MLG 143 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AGT18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	19 AUGUST 2024

THE COURT ORDERS THAT:

1.The name of the respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The Further Amended Application for Review filed on 19 June 2024 be dismissed.

3.The applicant shall pay the respondent’s costs of and incidental to the Application for Review fixed in the amount of $8,371.

THE COURT NOTES THAT:

A. These Orders have been amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

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 EGAN

INTRODUCTION

1. The first applicant is a male person married to the second applicant. The third, fourth and fifth applicants are the children of the first and second applicants.

2. The applicants are citizens of Sri Lanka of Tamil ethnicity who arrived at Christmas Island in 2013 as unauthorized maritime arrivals.

3. On 7 October 2016, the applicants applied for Safe Haven Enterprise Visas (SHEVs) (Sub-Class 790).

4. On 5 May 2017, a delegate of the Minister refused to grant the visa applications.

5. The decision of the delegate was referred to the Immigration Assessment Authority (“the Authority”) for review.

6. At [3] of its reasons handed down on 14 December 2017, the Authority recorded that it had had regard to the material provided to it by the Secretary of the Department under s. 473CB of the Migration Act 1958 (Cth) (“the Act”).

7. At [9] of its reasons, the Authority recorded the claims of the first applicant, the second applicant and the third, fourth and fifth applicants as follows:

   9.        The applicants’ claims can be summarised as follows:

   Applicant 1

   •Applicant 1 is a Tamil from the Eastern Province, Sri Lanka.

   •His family supported the LTTE throughout the civil war. His father and two brothers were killed in the war when he was only five years of age; they were killed with burning tyres.

   •In 1997 Applicant 1 was detained by the army on suspicion of being involved with the LTTE. He was taken to a camp where he was beaten, tortured and a pen was inserted in his ear and as a result he has a permanent hearing impairment and some problems with his memory. He was released following representations on his behalf by his mother and organisations.

   •After this he began to work for the LTTE on a fulltime basis. He was not involved in a combat role, but transported weapons and other items for the LTTE and spied for them. As a spy he gathered information about the army and passed this to an LTTE Commander. He gained access to army camps by talking to the soldiers in Sinhala, becoming friendly with them and gaining their confidence and trust, this process could take a long period of time, up to six months. Once he had gained the trust of the soldiers he entered the camp and gathered information on the number of people on the camp, their movements and the amount of armoury in the camp. He carried out this
   work for four years in Sampur, Batticaloa and Jaffna and during this time he travelled to Jaffna to deliver items to the LTTE and stayed there three months. At his SHEV interview Applicant 1 stated that he had not advanced these claims when he first arrived in Australia as he was scared of disclosing his involvement.

   •In 2002 he married the sister of the LTTE Commander he had been working with. This brother-in-law was a Lieutenant Colonel in the Sea Tigers.

   •After his marriage he ceased the spying work, but continued to assist the LTTE by transporting weapons and other items, and transported weapons into combat zones.

   •In 2005 the applicant’s brother-in-law was killed in fighting and copies of media reports and an untranslated document relating to his brother-in-law’s death have been provided. Another of the applicant’s brothers-in-law also joined the LTTE.

   •Applicant 1 was concerned that he could be targeted for harm by the authorities as ex- LTTE informers were assisting the authorities by identifying LTTE members.

   •In 2007 a neighbour was shot. The security authorities came to his home and his mother and wife told him and another brother-in-law to hide under the bed. The authorities threatened his wife and told her that her husband should leave the area or she would be widowed.

   •After this Applicant 1, together with his wife and child travelled to India where they registered as refugees.

   •In India he continued to support the LTTE by sending medications from India. At his SHEV interview he described his role as taking the box and loading it onto the boat. He advised that in 2010 when he was doing this he was arrested by the Indian Q Branch along with 23 other people in the boat and detained. He was detained for one month and when he was released he was required to attend the police every day and sign. He was asked to leave India. Applicant 1 has provided a copy of an untranslated document from the Tamil Nadu Police in India titled (in English) First Information Report. At Question 86 of the SHEV application form Part C Applicant 1 stated that “there is a case
   in Kerala for leaving illegally for Australia. However charges are I was suspected of LTTE involvement”. At Question 3 of Part B of the same application Applicant 1 repeated the LTTE suspicion and also stated “were trying to come to Australia, 23 persons were in the boat in an attempt to come to Australia”.

   •In 2013 Applicant 1, together with his wife and two children left India and travelled to Australia.

   •Recently the army has visited the family on two occasions to ask about Applicant 1; he believes that someone must have told them he transported weapons for the LTTE and they must think he hid weapons.

   •The applicant fears that because of his LTTE involvement and because his family is viewed as an LTTE family that he will be harmed if he returns to Sri Lanka. He is aware of accounts of ongoing mistreatment of failed asylum seekers who left Sri Lanka illegally and of Tamils in general in Sri Lanka and fears that he will be targeted for harm.

   Applicant 2:

   •Applicant 2 is a Tamil from the Eastern Province, Sri Lanka.

   •In 1989 her father and one of her brothers were killed in separate incidents.

   •She was displaced along with her family and lived in a refugee camp from 1990 until 1995.

   •Two of her other brothers joined the LTTE. One was a senior official and was killed in 2005. The whereabouts of her other brother are not known and the authorities are continuing to look for him.

   •Applicant 2 attempted to join the LTTE while still a student, but her brother became aware and told her to return home. Her family was known as an LTTE family.

   •She married Applicant 1 in 2002. She is aware that he conducted some work for the LTTE but he did not talk to her about this and she does not know the details of his role.

   •In 2007 a neighbour was shot. The security authorities came to the family home and she told Applicant 1 and one of her brothers to hide under the bed. The authorities asked her about her husband and she told them he had gone to India. They came part of the way into the house but did not search the premises. After this Applicant 2 accompanied her husband and their child to India where they lived as refugees in a refugee camp.

   •Applicant 1 was imprisoned in India and in the court case he was accused of smuggling things. Applicant 2 was harassed by the Indian authorities and decided to return to Sri Lanka. She was initially refused permission but when she stated she wanted to visit because her mother was sick, she and her then two children, were granted permission and provided travel documents to return to Sri Lanka.

   •Applicant 2 remained in Sri Lanka for approximately 18 months, during this time people came and asked her questions and showed her photographs of people in India and asked if she could identify them. She was asked if her husband was returning to Sri Lanka and was shown photographs of his arrest.

   •Applicant 2 was concerned about her safety living without her husband in Sri Lanka and Applicants 2, 3 and 4 returned to India using passports issued in their own names. In February 2013 they travelled with Applicant 1 by boat to Australia.

   •Applicant 2 fears that her family is viewed as an LTTE family and because of her familial links to the LTTE and her husband’s LTTE involvement she will be harmed in Sri Lanka.

   Applicants 3, 4, and 5

   •Applicant 3 is a Tamil born in Sri Lanka.

   •Applicant 4 is a Tamil born in India. A copy of the registration of his Sri Lankan citizenship has been provided.

   •Applicant 5 is a Tamil born to Sri Lankan citizen parents in Australia. A copy of his Australian birth certificate has been provided.

   •Applicants 3, 4, and 5 did not submit separate claims for protection in their SHEV applications and each claimed to be a member of the same family unit as their parents. However, noting that their parents’ protection claims are partly based on being Tamil and being from families viewed as LTTE families I will assess if there is a real chance that Applicants 3, 4, and 5 would experience any harm on that basis.

8. At [10] – [12] inclusive of its reasons concerning the first applicant, the Authority found as follows:

   10.Applicant 1 has consistently claimed to be Tamil from the Eastern Province, Sri Lanka and has provided identity documents in support of his claimed identity. I accept the applicant’s identity as stated and that Sri Lanka is the receiving country for the purpose of this review.

   11.I accept that his family supported the LTTE throughout the civil war and that his father and two brothers were brutally killed in the war. Country information advised that thousands of people, including civilians, were killed during the war. I accept that two of his brothers-in-law were LTTE members and one was a senior official who was killed in 2005.

   12. I accept that as a young Tamil male, Applicant 1 was detained in 1997 on suspicion of being involved with the LTTE. I accept that he was beaten and tortured and that he has ongoing hearing impairment and memory issues as a result. I note that Applicant 1 was released from custody in 1997 and not charged with any offences or required to report to the authorities and there is no indication that he was monitored and I find that the authorities did not have an ongoing adverse interest in Applicant 1.

9. At [13] of its reasons, the Authority found that it had significant doubts about the first applicant’s claims that he had supported the LTTE in both Sri Lanka and India. The Authority recorded that though it had considered the first applicant’s memory difficulties concerning times and dates, it had expected that the first applicant’s account of significant events would have been consistent with independent country information. The Authority found that there were significant inconsistencies in the various accounts of events which had been given by the first applicant.

10. Though the Authority accepted that the second applicant was a female Tamil who had attempted to join the LTTE while a student; whose family had supported the LTTE during the war; and who had had one brother killed and another go missing during the war; [1] the Authority did not accept that the Sri Lankan authorities were still looking for the missing brother, or that the second applicant had come to the adverse attention of such authorities.

    [1]           See [22] – [24] of the reasons of the Authority.

11. At [28] of its reasons, the Authority found that the family unit was not viewed as an LTTE family, or that the second applicant had been imputed with any LTTE profile. It was noted by the Authority that the second applicant had declared that her mother and several siblings had continued to live in Sri Lanka, and further, that there was no indication that any of them had come to harm on the basis of their familial links. It was further of significance to the Authority that the second applicant had been issued with travel documentation by the Sri Lankan authorities enabling her to travel to and from Sri Lanka in 2010 – 2011 in circumstances where she was neither detained, nor charged, with any offence during her stay in Sri Lanka.

12. At [36] of its reasons, the Authority recorded what constituted a refugee under the provisions of s. 5H(1) of the Act.

13. At [37] of its reasons, the Authority recorded what constituted a well-founded fear of persecution under the provisions of s. 5J of the Act.

14. By written reasons dated 14 December 2017, the Authority affirmed the decision of the delegate. The Authority found that the applicants did not fall within the definition of refugee, nor that the applicants faced a real risk of significant harm should they return to Sri Lanka, so as to warrant a finding that they were owed complimentary protection.

15. On 17 January 2018, the applicants filed an Originating Application for Review of the decision of the delegate. On 19 June 2024, the applicants filed a Further Amended Application for Review, the grounds of which were as follows:

    Grounds of Application (see Instructions for completion)

    1A.  The second respondent’s decision to affirm the refusal of the applicant’s protection visas was vitiated by a constructive failure to exercise jurisdiction, or a failure to consider a mandatory consideration.

    Particulars

    1A.1    The second respondent rejected the first applicant’s central claim that Sri Lankan security forces had visited the family home in 2007 looking for him on the basis of discrepancies between the first and second applicants’ initial claims that the first applicant was not home and the first applicant’s evidence at interview that he was present but ‘hiding under the bed’.

    1.A.2   The second respondent then rejected the second applicant’s cognate claim by reference to its rejection of the first applicant’s claim on that matter.

    1.A.3   But the second respondent did not confront the second applicant’s corroborative evidence at interview before the delegate that the first applicant was in fact present (but hiding).

    1. The second respondent’s decision to affirm the refusal of the applicants’ protections visas was vitiated by a misunderstanding or misapplication of s 437DD of the Migration Act.

    Particulars

    1.1      The second respondent failed to consider at all the ‘new information’ advanced by the second applicant that:

    1.1.1    She had been sexually assaulted by Sri Lankan security   forces (and her fear that ‘this would have led to more problems’ were she to remain, and;

    1.1.2 …

    1.2 …

    2.        The second respondent’s decision to affirm the refusal of the applicants’        protection visas was vitiated by an unreasonable exercise of the duty to consider whether to receive ‘new information’ under s 473DD, or a misconstruction or misapplication thereof…

    Particulars

    2.1 The second respondent received under s 473DD as ‘credible personal; information’ a statement from each of the first and second applicant that the first applicant had ‘exaggerated’ an aspect of his claims before the minister, but otherwise refused to receive the ‘new information’ which that statement embraced.

16. By Ground 1A of the Further Amended Application for Review, it was submitted that the Authority had failed to consider what was referred to as the second applicant’s “corroborative evidence” at interview in relation to the first applicant’s account that security forces had visited the family home in 2007. Counsel for the applicants referred to the undated statement of the second applicant at Court Book p. 175, which in part was as follows:

    “Later my brother… rose in rank and became a leading official in the LTTE. In 2005 he was killed. I have attached the death notice and newspaper articles and his birth certificate.
    Afterwards I was very scared of my husband. In 2007 April when my husband was not at home army came and warned me by saying: tell your husband to be careful. Otherwise you will also wear a white saree as your mother. In Sri Lanka women who had lost their husbands wear white sarees. What they meant was that they will kill my husband on the spot.”

17. At [27] of the applicants’ written submissions filed on 19 June 2024, reference was made to [16] of the reasons of the Authority, which relevantly provided as follows:

    [16]I have significant concerns about the claim that the authorities came to the family home in 2007 after a neighbour was shot and made threats about the safety of Applicant 1. I place significant weight on the variations in the account of this incident in his written statement to that given at his SHEV interview. At the SHEV interview Applicant 1 described hiding under the bed when the authorities visited the house, whereas in his written statement he stated that he was absent when the security forces came. The inconsistency in the accounts is significant and I am not satisfied that the applicant’s memory concerns would explain the discrepancy. Furthermore, I am not convinced that if the security forces were seeking the applicant that they would come only partially into the house and not conduct a search for him. I do not accept that the security forces came to the family home in 2007 and enquired about Applicant 1 or made threats about his safety to his wife.

18. The Court accepts the submissions made on behalf of the first respondent that the Authority had, at [9] of its reasons (7^th dot point under the heading “Applicant 2”), expressly referred to the second applicant’s evidence of the first applicant having hidden under a bed at the time that the security authorities had allegedly come to the home in 2007. The second applicant’s relevant account was recorded by the Authority as follows:

    “ – In 2007 a neighbour was shot. The security authorities came to the family home and she told Applicant 1 and one of her brothers to hide under the bed. The authorities asked her about her husband and she told them he had gone to India. They came part of the way into the house but did not search the premises. After this Applicant 2 accompanied her husband and their child to India where they lived as refugees in a refugee camp.”   

1. The Authority was not required to refer in detail to each and every claim made on behalf of an applicant. As was held in Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [46] – [49] per Besanko, Barker and Bromwich JJ:

   46. Insofar as the primary judge is suggesting in [42] of his reasons (set out above at [29]) that a decision-maker is required to make a finding of fact with respect to every claim made or issue raised by an applicant, we do not agree.  A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows.  These are only examples and it is not possible to be comprehensive.

   47. We also agree with the other criticism of the primary judge’s reasoning in [42] of his reasons advanced by the appellant.  The obligation to give reasons does not enlarge or diminish the scope of the obligation to consider a mandatory relevant consideration, although clearly it may bear upon a decision as to whether the latter obligation has been carried out (Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [46] per Gleeson CJ, Gummow and Heydon JJ; at [55] per McHugh J). As the High Court made clear in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], [10] per Gleeson CJ; at [69] per McHugh, Gummow and Hayne JJ, a failure to set out a finding on some question of fact may indicate that no finding was made on the matter and that it was not considered material.

   48. Generally, an obligation to give reasons does not require a “line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal”.  The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [65]‑[67] per McHugh J).

2. The Authority at sixteen [16] of its reasons was clearly unimpressed by the evidence of the first and second applicants. The Authority appropriately dealt with the applicants’ claims about the alleged visit by the authorities to their home but considered the claims lacking in credit. The Authority appropriately considered and dealt with the applicants’ claims. There is no merit to Ground 1A.

3. Ground 1 was a claim that the Authority had failed to consider what was claimed to be new information advanced by the second applicant that she had been sexually assaulted by security forces, and that the Authority had misunderstood, or misapplied, the provisions of s. 473 DD of the Act.

4. First, the time and date of the alleged harassment was not particularised in the statement of the second applicant dated 6 June 2017. [2]

   [2]           See Court Book (CB) p. 281.

5. Second, though there was the suggestion of the applicant having been sexually harassed by her having said that she had been touched on her body, there were no particulars of the type or location of touching which was alleged to have occurred.

6. Third, there were no particulars provided as to where the alleged harassment took place, the alleged circumstances of the harassment, or if anyone was in the vicinity at the time of the alleged harassment.

7. As to the new information, the Authority made findings at [7] of its reasons as follows:

   7. Applicant 2 explained at her SHEV interview that she had further information to add to that provided in her written statement of claims and she disclosed her visit to Sri Lanka in 2010 and spoke of being asked to answer enquiries while in Sri Lanka and being concerned for her safety. Noting that she did not advance these claims to the Minister in her application or at her SHEV interview, and that she declared to the interviewing officer that she had told the whole truth in her interview, I am not satisfied that this new information is credible personal information. Nor am I satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.

8. It is clear that the Authority was not satisfied that the new information constituted credible personal information which was not previously known under the provisions of s. 473DD(b)(ii) of the Act. The information was peculiarly something which, if true, must have been known to the second applicant before the delegate of the Minister made the decision to refuse to grant the visa under s. 65 of the Act. Clearly, the provisions of s. 473DD(b)(i) had not been met.

9. The scheme of the fast-track regime was such that applicants were required to make all of their claims known to the Department at the earliest possible time. That requirement was recognised by the majority in AUS17 v Minister for Immigration and Border Protection and Anor (2020) 269 CLR 494 at [9] where it was said:

   9. Section 473DD(b)(ii) was inserted during the parliamentary process which resulted in the enactment of Pt 7AA for the express purpose of expanding the circumstances in which new information obtained from a referred applicant might be considered by the Authority beyond those which would have prevailed had s 473DD(a) been left to operate only in combination with s 473DD(b)(i). Section 473DD(b)(ii) to that extent modifies the policy manifest in s 5AAA, s 473DB and s 473DD(b)(i) of casting responsibility on the applicant for a protection visa to provide evidence to establish his or her claims to be a person in respect of whom Australia has protection obligations at the time of making the application. Section 473DD(b)(ii) allows for a very limited second opportunity to provide evidence that might previously have been provided.

10. In the present case, not only did the Authority find that the new information was not credible, it also found that such information, though not known to the delegate of the Minister, could have been provided to the delegate before the making of the visa decision. In any event, the fact that the new information was incredible was telling. The relevant criteria under s. 473 DD(b)(ii) had not been met. In those circumstances, the Authority did not err in finding that the new information provided to it did not warrant consideration.

11. Ground 2 was a claim that the Authority had erred by receiving as credible personal information [3] under s. 473 DD(b)(ii) statements from each the first and second applicants which recorded that the first applicant had exaggerated claims made by him to the delegate. It was claimed that the Authority had arbitrarily received and considered new information relating to exaggeration on the part of the first applicant without considering such new information in context.

    [3]           See [5] of the reasons of the Authority.

12. Contextually, the relevant statements of the first applicant and the second applicant were as follows:

    First Applicant at Court Book p. 277
    “I confess that my knowledge of the weapons was similar to anyone like me at that time. Therefore I do confess and apologise that I might have exaggerated during the interview”
    
    
    Second Applicant at Court Book p. 281
    “I wish to provide the following submissions and information for your kind considerations.
    My children and I are very worried about the decision I am worried that my husband has on certain occasions attempted to exaggerate, such as accessing the army camp.
    Please forgive him and consider my situation.”

13. The reliance by the applicants upon the decision of the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v AWT19 [2021] FCAFC 58 was misconceived. That case involved an audio recording of an interview before the delegate going missing. That fact constituted an informational gap. In the present matter, there was no such evidentiary deficiency.

14. Further, the Court does not accept the proposition that all submissions made on behalf of the applicants constituted new information. Section 473DC(1) distinguishes between the getting of documents as opposed to the getting of information. Information may or may not be contained within a document. As contemplated by s. 473DC(3), new information may be given at an interview conducted in person, by telephone, or in any other way. As was held in Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 217 at [24]:

    24.The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

15. The Grounds of review are without merit.

16. The applicants have failed to establish jurisdictional error on the part of the Authority.

17. The Further Amended Application for Review is dismissed.

18. The Court will hear the parties as to costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate: RC

Dated:       19 August 2024