AMV17 v Minister for Immigration
[2019] FCCA 2012
•26 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMV17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2012 |
| Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (Authority) affirming decision of delegate not to grant Safe Haven Enterprise Visa – whether Authority gave genuine consideration to whether there were exceptional circumstances justifying its considering new information – whether the Authority otherwise erred when considering whether it should consider new information – whether there were any claims that arose tolerably clearly from the material before the Authority which the Authority failed to consider – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 65, 473DC, 473DD, 476, 477BB |
| Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 |
| Applicant: | AMV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 351 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 26 July 2018 |
| Date of Last Submission: | 26 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar, by direct access |
| Counsel for the Respondents: | Mr T Riley |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 351 of 2017
| AMV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Sri Lanka, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
There is no dispute that the delegate’s decision was a “fast track reviewable decision” within the meaning of s.477BB of the Act, and that the delegate’s decision, therefore, was subject to the method of review provided for by Part 7AA of the Act.
Claims for Protection
The applicant stated his claims for protection on a number of occasions. It would be useful if I set out the claims contained in the statement dated 10 November 2015 that formed part of the applicant’s application for a SHEV.[1] The applicant there claimed as follows:
[1] CB165-169
a)The applicant is a citizen of Sri Lanka, a Tamil, and a Hindu. He was born in 1986 in Batticaloa, Eastern Province.
b)The applicant’s father worked as a cleaner maintaining trucks. A Muslim group killed him in 1996 in a revenge attack against the Tamils.
c)During the fighting between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Army (SLA), Batticaloa remained an SLA-controlled area. There were bombings, shootings, and revenge killings. This included people being burnt in car tyres close to the applicant’s house. The applicant was not hurt, but it was frightening and dangerous.
d)In 2005 many young Tamil boys were kidnapped in white vans. The applicant understood the kidnappings were being carried out by both sides. The applicant feared he might be kidnapped too. The applicant’s paternal aunt assisted the applicant to go to Qatar to be safe. The applicant’s aunt’s son was in Qatar and he helped the applicant find a job there.
e)When the applicant returned to Sri Lanka he lived with his aunt and helped her run the chicken farm that was in the garden of the house. The applicant then started working in a grocery shop, and then a mobile phone shop. He used to finish work at 10.00 pm.
f)Because the applicant finished late, he had to pass a number of checkpoints to get home. Soldiers used to stop the applicant because he was a Tamil, and demanded the applicant buy cigarettes and food for them. This occurred “maybe 20 times”. The applicant risked getting beaten if he refused the soldiers’ requests. The applicant was also taken aside and searched roughly.
g)In July 2012, when the applicant was working at the mobile phone shop alone, two people from the Pillaiyaan group entered the shop and demanded the applicant recharge their mobile phones with 1,000 rupees of credit. When the applicant asked for payment before recharging their mobile phones, the people said they are from Pillaiyaan group, and if the applicant would not recharge their phones the applicant’s life would be in danger. The applicant, being afraid, did as the people demanded; and they took the applicant’s contact details.
h)The same two people came to the mobile phone shop at which the applicant worked, and they demanded a new phone for 20 million rupees. They also demanded a new sim card. The applicant said he would not give them the phone. The two people grabbed the applicant’s shirt, slapped and swore at him. They stopped when a customer entered the shop. After the customer left, the people again threated the applicant. They said they will kill him.
i)Less than a week later the same people called the applicant on his mobile phone and started swearing and threatening him. They called a second and third time over the next few days. On the third occasion they said they will kill the applicant if they seem him anywhere. The applicant was terrified. He went to his sister who told the applicant to leave Sri Lanka and seek protection elsewhere.
j)Further, after the applicant started to work in the mobile phone shop, he was among the people whom the SLA rounded up for questioning. This occurred twice. The applicant was questioned about why he was out late at night, and the SLA demanded money or cigarettes.
k)The applicant also fears he will be killed in the manner in which his father was killed.
l)After the applicant came to Australia, the applicant’s sister received visits from two unidentified men. The first time was at 7 pm when the persons made threats about what they would do to the applicant. The second time occurred two months later, and they made the same threats.
On the basis of these claims, the applicant said he fears:
a)he would be killed, tortured, and killed if he returns to Sri Lanka because there are men looking for him;
b)he will be harmed by the Pillayan group and the SLA;
c)he will be kidnapped and be the subject of extortion because Tamils are disproportionately affected by kidnappings and extortion; and
d)he will be arrested and interrogated as a failed asylum seeker.
After the delegate made his decision on 31 August 2016 the applicant, by letter from his representative to the Authority dated 3 October 2016 (Submissions), made additional claims. First, the applicant claimed he participated in the LTTE’s Heroes Day celebration and Tamil genocide Remembrance event in Sydney, and he also attended protests in Canberra (diaspora claim). The applicant’s representative said this information was not given to the delegate, but submitted it is credible personal information “which was not previously known”. The representative further submitted the applicant did not realise his Tamil diaspora activities in Australia were important to his case, and the applicant instructed the representative he was not given proper advice about this matter by his previous representative.
In support of the diaspora claim the representative provided a letter purportedly from the Tamil Coordination Committee (TCC) dated 19 September 2016 (TCC letter). The TCC letter states the applicant is an active participant in the TCC; and that since his arrival in Australia he participated in numerous protests and events that support the Tamils in Sri Lanka. The TCC letter further states that the applicant’s participation is a direct result of the death of his father “from the actions of the Sri Lankan government”. The TCC letter then identifies activities in which the applicant participated, these being attending every annual Australia Day event for Tamils; attending annual Tamil events such as “Martyrs/Remembrance Day . . . and Mullivaaikkaal Day”; and attending protests held at “the parliament of Canberra, Lt. Col Thileepans Memorial and Black July which remembers the fallen Tamil Tiger Soldiers”. The TCC Letter states that Sri Lankan authorities closely monitor, gather intelligence about these events, and also “try their maximum diplomatic powers to stop these events”. The TCC letter finally states that the applicant’s home in Sri Lanka “has also been completely destroyed by the actions of the war”. In addition to the TCC Letter the applicant’s representative provided two photographs of the applicant,[2] a letter of support by a reverend of the Uniting Church of Australia,[3] and country information relating to Sri Lankan authorities monitoring attendees at Tamil diaspora events.[4]
[2] CB257-258
[3] CB253
[4] CB295, [9]
A second claim made in the Submissions is that members of the Pillayan group threatened the applicant’s aunt in 2013, and the aunt made a complaint to the Human Rights Commission of Sri Lanka (HRCSL claim). The Submission attached a document described as “Human Rights Commission of Sri Lanka Complaint No; . . . . /2013” (HRCSL document). The document has a stamp headed “Human Rights Commission of Sri Lanka”. There is recorded by hand in the spaces provided a reference number for the receipt of a complaint, the date the complaint was received, the name of the person who made the complaint, and the “Category” of the complaint received.[5]
[5] CB246
A third claim made in the Submission is that on 9 August 2016 the applicant’s aunty was visited by unknown persons who attacked her severely (aunt’s claim). The persons asked about the applicant. On 10 August 2016 the applicant’s aunty made a police report. A copy of what purports to be a police report is attached to the Submissions.[6]
[6] CB255
Authority’s reasons
The Authority first identified the information that was before it, and whether any of that information was “new information” within the meaning of s.473DC of the Act. The Authority identified five items of “new information”. The first is the diaspora claim. The Authority was not satisfied the applicant could not have provided evidence of the diaspora claim to the delegate; and it was not satisfied the applicant’s attending diaspora events was unknown to the applicant at the time of the delegate’s decision. The Authority was also not satisfied there were exceptional circumstances which justified its considering the new information.[7] The Authority so concluded because: it did not find it plausible that the applicant would be unaware his attending Tamil diaspora activities in Australia may be relevant to his claims for protection; the applicant could have raised these claims before the delegate if it was a genuine reason he feared to return to Sri Lanka; although there are photographs that purport to show the applicant attending a diaspora event, it was not clear from the photographs that that was the case, and there the Authority had no primary evidence from the applicant about his attending a diaspora event; the information in the Submission about the applicant attending Tamil diaspora events is vague in that it is unclear how many diaspora events the applicant claims to have attended, what his role was in those events, or when those events occurred; and the credibility of the TCC letter was undermined by inconsistencies. The inconsistencies the Authority identified were the TCC letter’s stating the applicant participated in diaspora events since 2012, yet the evidence before the Authority showed the applicant was not released into the community until February 2013; the TCC letter’s asserting the applicant’s father died due to the actions of the Sri Lankan government, yet the applicant had claimed his father had been killed by Muslims; and the TCC letter’s stating the applicant’s home was destroyed during the war, yet the applicant had not made such claim.[8]
[7] CB296, [9]
[8] CB295-296, [9]
The second item of new information the Authority identified is the HRCSL claim. The Authority found the events constituting the HRCSL claim occurred before the delegate made his decision. The Authority was not satisfied the applicant was unable to provide to the delegate information in relation to that claim, or that the claim was unknown to the applicant before the delegate’s decision. The Authority was also not satisfied there are exceptional circumstances that justified its considering the HRCSL claim.[9]
[9] CB296, [10]
The third item of new information the Authority identified is the aunt’s claim. The Authority noted there was no primary evidence either by the applicant or by his aunt in relation to the aunt’s claim. Although the Authority noted the assault occurred after the date of his interview by the delegate, it was claimed that it occurred before the delegate made his decision; and the Authority was not satisfied the applicant was unable to provide the information to the delegate, or that the claim was unknown to the applicant at the time of the delegate’s decision. The Authority was also not satisfied there are exceptional circumstances which justify its considering the aunt’s claim.
The fourth item of new information the Authority identified is a statement made in a letter of support given by a reverend of the Uniting Church (reverend’s letter of support) that the applicant suffers post-traumatic stress.[10] After noting there was no primary evidence from the applicant that he has post-traumatic stress, the Authority found it was not satisfied the applicant was unable to raise that claim before the delegate, or that such claim was unknown to the applicant at the time of the delegate’s decision. Nor was the Authority satisfied there are exceptional circumstance that justify its considering the new claim the applicant has post-traumatic stress.
[10] The letter is at CB253
The fifth item of information is contained in the reverend’s letter of support, and it relates to the reverend’s personal experience with Muslims in Sri Lanka. The Authority was willing to give the applicant the benefit of the doubt and found that the reverend’s personal experience with Muslims in Sri Lanka was unknown to the applicant before the date of the reverend’s letter, and was satisfied exceptional circumstances existed that justified the Authority to have regard to that part of the reverend’s support letter.[11]
[11] CB297, [12]
The Authority then considered the applicant’s claims. The Authority accepted the applicant’s father was killed by Muslims in a revenge attack on the Tamils because the LTTE killed some Muslims. Relying on country information, however, the Authority considered there was only a remote or speculative chance, and therefore not a real chance, the applicant will face serious harm from Muslims because of the death of his father, or because he is a Tamil and a Hindu, now or in the reasonably foreseeable future.[12]
[12] CB298-299, [17]-[19]
The Authority was willing to give the applicant the benefit of the doubt that members of the Pillayan group threatened him at work in July and August 2012. The Authority, however, was not satisfied the applicant’s sister was threatened by any unidentified men in 2015 or 2016. The Authority relied on what it found to be the applicant’s vague evidence about how the unidentified persons linked the applicant to his sister, and the implausibility that any members of the Pillayan group would retain a grudge against the applicant “in 2017 [sic] for events that occurred in 2012”; and the Authority said it was mindful of the reduced influence of the Pillayan group since the change of government in 2015. The Authority concluded there was only a remote or speculative chance, and therefore not a real chance, the applicant would face serious harm from members of the Pillayan group now or in the reasonably foreseeable future.[13]
[13] CB300, [23]
The Authority then considered whether the applicant had a well-founded fear of persecution because he is a Tamil from Eastern Province, or because he would be considered a failed asylum seeker; and also considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm. For reasons it is unnecessary to set out, the Authority determined these questions against the applicant.
Grounds of application
The application on which the applicant relies contains nine grounds, but the applicant does not press grounds 4, 5, 7, or 9.
Ground 1
Ground 1 is as follows (errors in original):
The Authority committed jurisdictional error when it failed to give realistic consideration and/or rejected or failed to assess the Applicant’s claims regarding diaspora activities and thereby fell into error.
Particulars
(a)The Authority did not consider the information provided (TCC letter dated 12 September 2016) (AAT at [11].
(b)The Authority confused the issue of the “claims” with the “information” and failed to address whether the claim should be considered.
(c)The Authority committed jurisdictional error when it ignored latest country information.
In his written submissions counsel for the applicant repeated the substance of ground 1 and the particulars to the ground. In addition, counsel submitted the Authority “failed to properly apply the test of “exceptional circumstances””.[14] In his oral address, counsel for the applicant submitted the Authority did not engage with the reasons the applicant’s agent had given why the diaspora claim had not been given to the delegate. Counsel also submitted that the Authority considered “in a superficial way” whether there were exceptional circumstances. Counsel submitted the Authority similarly failed to actively consider the HRCSL document issued in response to the aunt’s claim.
[14] Applicant’s Outline of Submissions, [12]
In his written submissions the Minister submitted that in finding exceptional circumstances did not exist the Authority had regard to the inherent implausibility of the applicant’s not having advanced the diaspora claim to the delegate, and inconsistencies in the applicant’s evidence. The Minister otherwise submits the Authority’s approach represented an orthodox application of the legal principles for determining whether exceptional circumstances existed, as those principles have been explained by the authorities.[15] The Minister further submits the Authority manifested no confusion between “claims” and “information”, because a new claim falls in the category of “new information” within the meaning of s.473DC(1) of the Act.[16]
[15] First Respondent’s Submissions, [23], referring to BVZ16 v Minister for Immigration and Border protection [2017] 958 and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
[16] First Respondent’s Submissions, [25], referring to Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80, at [54]
As formulated, ground 1 assumes there was before the Authority a claim to the effect of the diaspora claim. That, however, is not how the Authority treated the diaspora claim. The question the Authority considered was whether it should consider that claim at all; and it asked that question because it was of the view the diaspora claim was “new information” or, at least, was based on “new information”, within the meaning of s.473DC of the Act; and that the only circumstances in which the Authority considered it could consider the new information is if it were satisfied of the matters provided for by s.473DD of the Act. In effect, ground 1 makes, or should be taken to make, two claims. The first is that the “diaspora claim” was a claim, not information, and, for that reason, it was not “new information”. The second claim is that, assuming the diaspora claim constituted “new information”, the Authority did not genuinely consider whether there were exceptional circumstances to justify its considering that claim.
A new claim can also constitute “new information” within the meaning of s.473DC(1) of the Act, that is information that was “not before the Minister when the Minister made the decision under section 65” and which “the Authority considers may be relevant”. But it does not follow that new claims and new information cover the same field. It is possible that information that was before the delegate is amendable to giving rise to a claim that was not made to the delegate. In other words, it is possible that information that is not “new information” may nevertheless give rise to a new claim. That possibility was identified by the Full Federal Court in Minister for Immigration and Border Protection v CLV16:[17]
The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority – and to have the Authority in fact consider – a submission directed to an established pool of factual information.
[17] [2018] FCAFC 80, at [54]
The applicant did not advance before the delegate a claim to the effect of the diaspora claim. For that reason, the diaspora claim was a new claim before the Authority. The question is whether the diaspora claim relied on no more than a “pool of factual information” that was before the delegate. The answer to that question must be in the negative. The claim was based on factual assertions, namely, activities in which the applicant engaged; and the applicant did not make these assertions before the delegate. Thus, the diaspora claim was based, and based entirely, on new information.
The next question is whether the Authority properly considered whether it should consider the diaspora claim. More particularly, the question is whether the Authority properly considered that which s.473DD of the Act required it to consider.
Section 473DD of the Act provides as follows:
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.
Section 473DD of the Act has been considered by the Full Federal Court on a number of occasions, including in Minister for Immigration and Border Protection v CQW17.[18] The effect of what the Full Federal Court said in CQW17 is 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.[19] 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.
[18] [2018] FCAFC 110
[19] See also the judgment of Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [31]: “Cumulatively upon the precondition set out in s 473DD(a) . . . 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).”
Paragraph (a) of s.473DD requires that 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 was considered by Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[20]
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).
[20] [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”. That paragraph suggests it applies to information that exists at the time the Minister makes a decision under s.65 of the Act, whether or not an applicant was aware of the existence of the information.
Next, there is s.473DD(b)(ii) of the Act which requires that the information 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 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).[21] After considering the meaning of “not previously known”, their Honours concluded as follows:[22]
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.
[21] [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”.
[22] [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[23] in a passage that has been approved by the Full Federal Court on four occasions:[24]
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.
[23] [2017] FCA 958 at [9]
[24] This passage was set out with approval by the Full Federal Court in CQW17 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”.[25]
[25] [2017] FCA 958 at [46]
Also relevant is the judgment of the Full Federal Court’s in AQU17 v Minister for Immigration and Border Protection.[26] In that case it was submitted the Authority had taken too narrow a view of what constitutes exceptional circumstances. The Full Federal Court noted, however, that the review applicant “was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration”.[27] That implies that before it can be found the Authority has taken too narrow a view of what constitutes exceptional circumstances, it is necessary to identify some fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration
[26] [2018] FCAFC 111
[27] [2018] FCAFC 111, at [17]
I do not accept the applicant’s claim that the Authority did not genuinely consider whether there were exceptional circumstances to justify its considering the information on the basis of which the applicant sought to advance the diaspora claim. The Authority considered the plausibility of the explanation the applicant gave for not advancing the claim before the delegate, and found it implausible; and the Authority assessed the quality of the evidence on which the claim was based, which, for the reasons it gave, and which I have summarised above, the Authority found to be deficient in a number of ways.
I do not accept the claim made in paragraph (b) of the particulars to ground 1 that the Authority did not consider the TCC Letter. It did, and it made findings about it. As I have already noted, the Authority found the credibility of the TCC letter was undermined by inconsistencies. Nor do I accept the claim made in paragraph (c) of the particulars to ground 1 that the Authority ignored the latest country information. The Authority did not ignore the latest country information. It referred to it, considered whether there it was new information, concluded that it was, but then found it was not satisfied there were exceptional circumstances which justified its considering the new country information.
Finally, I should address the submission counsel for the applicant made at the hearing before me, namely, that the Authority did not engage with the explanation the applicant’s agent gave for the applicant not having advanced the diaspora claim before the delegate. I disagree. The Authority set out the applicant’s agent’s explanation, namely that the applicant’s previous migration agent did not give the applicant proper advice,[28] but the Authority did not accept that explanation because it found it implausible the applicant would be unaware his attending Tamil diaspora activities in Australia may be relevant to his protection claims.[29]
[28] CB295, [8]
[29] CB295, [9]
For these reasons, ground 1 fails.
Ground 2
Ground 2 is as follows (errors in original):
The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of HRCSL letter submitted to the Authority (IAA at [8]; [10]-[12]) properly pursuant to s 473DD and/or denied the Applicant procedural fairness when the applicant was denied opportunity to present arguments in relation to his application for review in circumstances it was under duty to make enquiries to ensure that the Applicant could participate in the review process regarding critical information and/or giving meaningful consideration of the Applicant’s claims.
Particulars
(a)The Authority accepted that the letter from HRC was new information and but there were no exceptional circumstances to warrant it being considered.
(b)It was reasonably easy for the Authority to obtain further information to assess the details of HRC document).
(c)The Authority’s should itself properly informed itself by making proper inquiries to ensure procedural fairness;
(d)The contact/address was otherwise readily available such as from the institution which issued the letter).
(e)The Authority rejected the HRC document as authentic document (at [17]).
(f)The Authority fell into error in carrying out proper review.
In his written submissions counsel for the applicant asserted the Authority erred in its consideration of “this letter and the other documents submitted by the Applicant’s representative to the Authority”, and that the Authority “did not properly consider the legislation, particularly s 473DD and exceptional circumstances”.[30] Counsel further asserted the Authority erred in its interpretation of “exceptional circumstances”.[31] In oral address, counsel submitted nothing more than that the Authority “did not really engage with the exceptional circumstances as to why it should [not] be considered”.
[30] Applicant’s Outline of Submissions, [19]
[31] Applicant’s Outline of Submissions, [20]
Ground 2, and the written and oral submissions made in support of it, amount to nothing more than unparticularised assertions of error by the Authority in the manner in which it considered the HRCSL document. Further, none of the assertions contained in ground 2 and in the submissions made in support of ground 2 support any arguable case that when considering whether the HRCSL document was “new information” or, assuming it was new information, whether s.473DD of the Act applied to the HRCSL document, the Authority was obliged to consider whether it should seek further information from the applicant or from the Human Rights Commission of Sri Lanka. Additionally, ground 2 appears to be premised on the assumption the Authority considered the HRCSL document not to be genuine. The ground and counsel’s written submissions refer to paragraph 17 of the Authority’s reasons. There is nothing in the Authority’s reasons that suggests the Authority found the HRCSL document was not genuine.
In any event, I am satisfied the Authority undertook its tasks in relation to the HRCSL claim and the HRCSL document consistently with its obligations. It identified the HRCSL claim, and the material in support of that claim, which included the HRCSL document; it considered whether the information in support of that claim was “new information”; having considered it was new information it considered whether there were exceptional circumstances justifying its considering the HRCSL claim and material provided in support of that claim, including the HRCSL document, and also considered whether the applicant was unable to advance that claim before the delegate.
For these reasons, ground 2 must fail.
Ground 3
Ground 3 is as follows:
The Authority fell into error in not assessing the Applicant’s claim regarding the death of his father by Muslims (AAT at [17]).
Particulars
(a)The Authority confused the claims of the random killing of the Applicant’s father (because of LTTE killing Muslims).
(b)The Authority has not considered the impact of this killing on the Applicant’s family.
(c)The Authority fell into error.
(d)The Authority thereby committed jurisdictional error.
In his written submissions, counsel repeats the effect of the ground as stated in the application. To these counsel added the claims that the Authority failed to assess the risk to the applicant on his return to Sri Lanka in the area of his habitual residence;[32] that it failed to consider whether the applicant would be able to subsist in that area,[33] given the applicant “claimed that he only had limited skills”,[34] and the Authority did not address “whether in the circumstances [the applicant would] find employment so that he could survive upon return”.[35] In oral address, counsel submitted the Authority failed to address the claim relating to the death of the applicant’s father’s as articulated by the applicant’s agent in the Submissions.
[32] Applicant’s Outline of Submissions, [40]
[33] Applicant’s Outline of Submissions, [41]
[34] Applicant’s Outline of Submissions, [45]
[35] Applicant’s Outline of Submissions, [45]
When considered together, ground 3 and counsel’s written submissions make two claims. The first is that the Authority failed to deal or properly consider the claim or claims that arose from the applicant’s father’s death. The second is that the Authority failed to consider a claim based on the applicant’s being unable to subsist on his return to Sri Lanka.
As I have already noted, the Authority did consider the applicant’s claim based on the death of the applicant’s father. The Authority accepted the applicant’s father had been killed by Muslims in a revenge attack because the LTTE killed some Muslims; that, although the applicant’s father had been killed in a random attack, he nevertheless was killed because he was a Tamil; and that this even had a deep impact on the applicant, and he held a subjective fear of Muslims. The Authority also referred to the applicant’s evidence before the delegate that Muslims continue to attack Tamils and burn temples. But, relying on country information, the Authority did not accept the Muslims continue to attack Tamils, and found there was therefore only a remote or speculative chance the applicant would face serious harm from Muslims.[36] It is true the Authority did not in terms refer to the submissions the applicant’s agent made in the Submissions, but I infer the Authority did consider those submissions because it was satisfied that the death of his father had a deep impact on the applicant, and that he held a subjective fear of Muslims.
[36] CB298, [18]-[19]
The second of the two claims the applicant makes, namely, that the Authority failed to consider a claim that the applicant would be unable to subsist or obtain employment if he were to return to Sri Lanka, can be dealt with more simply. No such claim arose “tolerably clearly from the material itself”.[37]
[37] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, at [15]
Ground 3, therefore, fails.
Ground 6
Ground 6 is as follows (errors in original):
The Authority fell into error when it failed to consider a clearly articulated claims that the Applicant was risk owing to his aunt’s role with LTTE (AAT at [11]; [27]). The Authority erred in failing to assess the applicant’s claim and/or giving meaningful consideration of the Applicant’s claims.
Particulars
(a)The Applicant had claimed fear owing to his aunt’s involvement.
(b)The Authority fell into error in carrying out proper review and thereby committed jurisdictional error.
This ground is directed to two matters relating to the applicant’s aunt. One is the “aunt’s claim” itself. As I have already noted, the Authority found that the aunt’s claim, together with the information on which it was based, constituted “new information” and considered whether it must not consider the aunt’s claim unless the Authority was satisfied of the matters provided for in s477DD(a) and one of the two sets of matters provided in s.473DD(b) of the Act. The Authority found those matters were not satisfied and, for that reason, did not further consider the aunt’s claim. In those circumstances, the Authority cannot be said to have made any jurisdictional error by not considering the aunt’s claim. At most, the only claim that could be made must be directed to the Authority finding that it was not satisfied the aunt’s claims met the requirements s.473DD of the Act. Ground 6 does not, however, in terms claim the Authority erred in the manner it applied s.473DD of the Act to the aunt’s claim. In any event, I am satisfied the Authority made no jurisdictional error in the manner it considered whether the aunt’s claims met the requirements of s.473DD of the Act.
The second matter is what the Authority referred to as a card issued to the applicant’s aunt by the Human Rights Commission of Sri Lanka in 2007.[38] The Authority said that it appears the card “was included in the 2007 PV application”. That appears to be intended to be a reference to the application for a protection visa the applicant purportedly lodged on 13 August 2013.[39] The Authority noted that the evidence before it “does not indicate the nature or the outcome of the aunt’s 2007 complaint to the HRCSL”.[40] The applicant, however, does not appear to have made any claim based on any complaint his aunt is alleged to have made in 2007.
[38] CB301, [27]. The card is at CB93.
[39] CB12
[40] CB301, [27]
Ground 6, therefore, also fails.
Ground 8
Ground 8 is as follows (errors in original):
The Authority made a jurisdictional error when it failed to give realistic consideration to Dr [J] letter.
Particulars
(a)The Applicant provided letter date Dr [J] (The Uniting Church in Australia) . . . .
(b) The Authority did not realistic consideration to the letter.
(c)The Authority erred in disregarding aspects of the letter (AAT at [12]).
(d)The Authority fell into jurisdictional error.
This ground relates to what I have already defined as the “reverend’s letter of support”. I have already noted the reverend’s letter contained at least two items of information, one relating to an assertion the applicant suffered from post-traumatic stress, and the other relates to the reverend’s experiences with Muslims in Sri Lanka, and that the Authority did not consider there were exceptional circumstances to justify its considering the first item of information, but considered there were exceptional circumstances to justify its considering the second item of information. In addition to these items of information, the Authority noted the reverend’s letter referred to “other personal circumstances of the Reverend and his family”, and found the information was not relevant.[41] Ground 8, therefore, must be taken to be directed to that part of the reverend’s letter that does not contain the reverend’s experiences with Muslims.
[41] CB297, [12]
I do not accept the Authority did not genuinely consider the contents of the reverend’s letter. It identified in that letter three different items of information; it considered and concluded that the reverend’s letter was not new information; it considered whether there were exceptional circumstances to justify its consideration of the new information, and concluded there were exceptional circumstances justifying the consideration of one of the items of information; and it considered whether the information was relevant, concluding that one of the three items of information was not relevant.
Ground 8 also fails.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose to order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the application.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 26 July 2019
Key Legal Topics
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Administrative Law
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Immigration
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Statutory Interpretation
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Judicial Review
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Natural Justice
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Procedural Fairness
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