ANF18 v Minister for Home Affairs
[2019] FCCA 1022
•15 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANF18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1022 |
| Catchwords: MIGRATION – application for a Temporary Protection Visa – whether the Authority erred by misconstruing or misapplying the meaning of “exceptional circumstances” in s 473DD of the Migration Act 1958 (Cth) – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 473DD, 473GB |
| Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600. ARP18 v Minister for Home Affairs [2019] FCA 472. |
| Applicant: | ANF18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG280/2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 15 April 2019 |
| Date of Last Submission: | 15 April 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 15 April 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Applicant: | Ms Given of HWL Ebsworth |
ORDERS
The application is dismissed
The Applicant is to pay the costs of the First Respondent fixed in the amount of $7467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG280/2018
| ANF18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is judgment in the matter of SYG280/2018. The applicant is ANF18. The respondents are the Minister for Home Affairs and the Immigration Assessment Authority (‘IAA’).
The applicant is a Sri Lankan national who arrived in Australia as an unauthorised maritime arrival on 6 September 2012. On 27 September 2016, the applicant applied for a Temporary Protection (subclass 785) visa (‘Protection Visa’). This was based on his Tamil ethnicity, his claimed connection with the Liberation Tigers of Tamil Eelam (‘LTTE’) and because he left Sri Lanka illegally.
On 24 May 2017, a delegate of the Minister refused the Protection Visa application. The matter was then referred to the Immigration Assessment authority for review.
On 17 June 2017, the applicant provided submissions and country information to the authority. On 24 January 2018, the authority affirmed the decision of the delegate to not grant a Protection Visa. In so doing, the authority was not satisfied there were exceptional circumstances to justify consideration of the new claim included in the submission relating to fear due to the disappearance of the applicant’s brother in 1990.
The reviewer found the information could have been provided to the delegate and that the country information was before the delegate and was not new information. The applicant now seeks judicial review of the Immigration Assessment Authority decision.
Grounds of the application
The grounds of the application are set out in the document filed on 5 February 2018. They allege a misconstruction or misapplication of s 473DD of the Migration Act 1958 (Cth) (‘the Act’) in not considering the new material submitted and by not finding exceptional circumstances.
The grounds allege the Immigration Assessment Authority did not read or consider the new claims and did not adequately explain why there were not exceptional circumstances.
The document then lists allegations of errors within the decision and the effect of them. These are numbered 1 to 8 in the application for review.
Documents before the Court
The Court Book was tendered and marked as ‘Exhibit 1’. The most relevant documents within the Court Book are:
a)The Immigration Assessment Authority’s decision;
b)The grounds of the application for review;
c)The first respondent’s initial submissions;
d)Supplemental decisions; and
e)An affidavit which annexed certain information
The Immigration Assessment Authority decision
This decision accepts the applicant’s identity in paragraphs 12 and 13. While it does not make a direct finding that the applicant is the person who he claims to be, there appears to be acceptance of the delegate’s decision in that regard.
The decision runs for some 17 pages of typed reasons, plus extracts of the relevant legislation.
At paragraphs 3 to 8 of the decision, the reviewer acknowledges receipt of the new material. The reviewer notes the information was not provided by the applicant to government officials at his arrival interview, transfer interview, his statement of claims or the Temporary Protection Visa interview.
At paragraph 6, the reviewer states that they are not satisfied the information could not have been provided prior to the delegate’s decision and there were no exceptional circumstances to justify the consideration of the new claims applying the provisions of s 473DD.
At paragraph 7, the reviewer determines that the “new” country information dated from January 2017 and August 2016 was before the delegate, noting that the delegate’s decision was made on 24 May 2017. This was, thus, not new information.
The applicant also asked to be called for interview with the IAA if required, or to be interviewed, as I understand it, by the International Red Cross. The reviewer determined that the applicant had raised no issue to warrant these courses of action.
Paragraphs 12 to 53 of the decision consider the applicant’s claim for refugee status.
Paragraphs 54 to 58 of the decision consider the issue of complementary protection. The reviewer notes the claims that the applicant’s oldest brother, who is given the initials S.M., was an LTTE leader in the Batticaloa District. The reviewer notes that that brother now resides in India and is classified as a “wanted person” by Sri Lankan authorities. The reviewer notes that the applicant claims that his other brother, who is given the initials S.R., was allegedly killed by Sri Lankan authorities due to his association with and the role of their older brother, S.M.
At paragraph 19, the reviewer notes that the applicant’s claim of fears due to the appearance of S.R. was some 29 years ago. I note that this was during the period of the Civil War.
At paragraph 20, the reviewer accepted the applicant worked for the LTTE in a medical unit from 1990 to 1992. During this period he sustained gunshot wounds to his leg and head. The reviewer also accepted the applicant worked in a clerical capacity for the LTTE until 2002.
The reviewer found the applicant was not an LTTE cadre, or that he was in a leadership position.
The reviewer notes that the applicant travelled to Thailand in 2002 on a passport he obtained from Sri Lankan authorities. This was during the period of the conflict. The reviewer concluded if the applicant was a person of interest to Sri Lankan authorities, he would not have been issued with a passport.
At paragraph 23, the reviewer deals with claims that following surrender, that the applicant was held in camps for two years.
At paragraph 28, the reviewer does not accept the applicant was detained in camps as claimed and only released in May 2011 as an LTTE member. The reviewer, however, accepted that the applicant may have been detained in an internally displaced persons’ camp at paragraph 30 but that he was not a person of interest to the Sri Lankan Army due to his LTTE status or profile.
At paragraph 33, the reviewer does not accept that the applicant is of continuing interest to Sri Lankan authorities following his illegal departure from Sri Lanka.
At paragraph 34, reviewer did not accept that the applicant is at risk of harm on his return.
In paragraph 52 of the decision, the reviewer looked at all of the material that was before them and found against the applicant in terms of the requirements under s 36(2)(a).
The issue of complementary protection was considered at paragraphs 54 and 58. The reviewer arrived at the same conclusion, being that the applicant would not suffer a real risk of harm if he was returned.
During the course of argument, an issue arose as to whether or not the issue of his identity might impact on the outcome of the matter. It was noted that there is a current High Court case. However, in my view, that matter does not need to be resolved here, or does it call for an adjournment pending the outcome of that case. There is certain information that has been disclosed under s 473GB of the Act, which has now been provided.
I am satisfied that the issue of the applicant’s identity has been considered and it has been found that he is the person who he says he is, although the original delegate had some doubts.
The case has proceeded upon the basis that he is the person who he says he is and no injustice will arise for him on the way this case has been dealt with by awaiting the outcome of the High Court’s consideration of this new matter.
Consideration of the grounds of the application
Ground 1 asserts that the Immigration Assessment Authority misconstrued or misapplied s 473DD.
ARP18 v Minister for Home Affairs[1] very helpfully sets out the current state of the law as regards s 473DD. At paragraphs 21 to 23, which I adopt, his Honour Burley J said as follows:
[1] ARP18 v Minister for Home Affairs [2019] FCA 472.
In AQU17 v Minister for Immigration and Border Protection, the Full Court (consisting of McKerracher, Murphy and Davies JJ), considered several recent decisions bearing upon section 473DD, including BVZ16. It summarised the effect of White J’s reasoning in that case as being that, whilst the requirements of subsections 473DD(a) and (b) are cumulative, they may nevertheless overlap because subsections 473DD(i) and (ii) involve different considerations. As they involve different considerations, both considerations are potentially relevant in considering the circumstances are “exceptional” and meet the requirements of section 473DD(a). The Full Court said at [13]:
“As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes a requirement that the Authority must not consider new information unless it is satisfied there are exceptional circumstances to justify the new information.
Section 473DD(b) imposes a further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made a decision to refuse to grant the protection visa (section 473DD(b)(i)) or is new information that 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(b)(ii)).
‘Exceptional circumstances’ is not a defined term for the purposes of section 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are ‘exceptional’ if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.[2]
In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, the plurality of Gageler, Keane and Nettle, with whom Gordon and Edelmen JJ each agreed in separate reasons, observed at paragraph 30 in relation to the requirement in s 473DD(a):
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 objective. To be exceptional, a circumstance need not to be unique or unprecedented or very rare, but it cannot be one that is regularly or routinely or normally encountered.
The quotation from R v Kelly at para 51, which was also cited in BVZ16 for the meaning, exceptional circumstances in the context of section 473DD(a). There may be a combination of factors, which, when viewed together, constitute exceptional circumstances, or one fact of its own that may be sufficient for exceptional circumstances to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.
[2] See Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600.
In paragraph 23 of the decision of ARP18 v Minister for Home Affairs,[3] Burley J went on to say:
As for the plurality, Plaintiff M174/2016 v Minister for Immigration and Border Protection[4] made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits, and the matters for the authority to take into consideration must necessarily vary from case to case.
It is a misconception that the factors in subsections 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether or not exceptional circumstances exist as section 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, subsection 473DD(b) sets out the further preconditions that must also be met before the authority can consider new information cumulatively upon a precondition set out in section 473DD(a).
In many cases, consideration of the factors in subsections 473DD(b)(i) and/or (ii) may assist the authority in deciding whether or not it is satisfied that exceptional circumstances exist, but whether those factors will have a bearing upon the decision will depend on the particular case.
[3] ARP18 v Minister for Home Affairs [2019] FCA 472.
[4] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600.
The above is a fairly long exposition of the law, but it usefully sets out the difficulty in finding that there are, indeed, exceptional circumstances.
As regards this particular case, I am satisfied the reviewer correctly applied the legislative requirements in s 473DD. The reviewer turned their mind as to whether the information was “new” and concluded it was not. If anything, the reviewer concluded the information raised an issue as to the veracity of the claim.
The reviewer was not satisfied the information could not have been provided before the delegate’s decision or that it was credible information that may have affected the delegate’s decision.
The reviewer considered whether or not there were exceptional circumstances and found that none existed.
I consider that no jurisdictional error has been made out with regard to the way the reviewer dealt with the new information, and this ground of the application must fail.
As regards the balance of the matters set out in the application for review, the applicant simply disputes the factual findings of the reviewer. It is not for this Court to engage in merits review as it is restricted to only findings on jurisdictional error in order for it to find in favour of the applicant.
As the Court cannot engage in merits review, these grounds of appeal must fail as they raise no jurisdictional error.
Accordingly, the application is dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Date: 16 April 2019
1
2
2