APK18 v Minister for Immigration

[2019] FCCA 1917

FEDERAL CIRCUIT COURT OF AUSTRALIA

APK18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1917

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visa – whether the Authority denied the applicant procedural fairness or breached s 425 of the Migration Act 1958 (Cth) – whether the Authority failed to consider new information – whether the Authority made adverse findings about the applicant’s credibility – whether the Authority made a jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss 5H, 36, 425, 473DD, 473GB, 477.

Cases cited:

AFY16 v Minister for Immigration and Border Protection [2018] FCAFC 129

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: APK18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 326 of 2018

Judgment of: Judge Humphreys

Hearing date: 11 July 2019

Date of Last Submission: 11 July 2019

Delivered at: Parramatta

Delivered on: 11 July 2019

REPRESENTATION

Applicant appeared in person.

Solicitors for the Respondents: Mr Gardner, Minter Ellison

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 326 of 2018

APK18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a citizen of Sudan. The applicant arrived in Australia as an undocumented maritime arrival on 6 April 2013. On 9 March 2017, the applicant lodged an application for a Safe Haven Enterprise visa.

2. On 28 August 2017, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused the Safe Haven Enterprise visa application. The matter was the subject of merits review by the Immigration Assessment Authority (“the Authority”). On 6 December 2017, the Authority affirmed the Minister’s decision to refuse the Safe Haven Enterprise visa. The applicant now seeks judicial review of that decision.

3. The application for judicial review was filed on 9 February 2018. This was out of the required timeframe stipulated by s 477 of the MigrationAct 1958 (Cth) (“the Act”). At a preliminary hearing on 11 May 2018, Smith J, of this Court, made an order pursuant to s 477(2) of the Act, extending the time in which the applicant could bring a proceeding for a review by this Court.

4. At the same time, an affidavit dated 5 April 2018, was filed to the Court. That affidavit purports to attach, in a foreign language with an uncertified translation, a judgment of the Khartoum Labour Court dated 12 March 2012, ordering the applicant to pay seven persons an amount totalling 46,522 pounds in local currency. A further document was filed as an attachment to that affidavit purporting to be a judgment of a superior court, dismissing an appeal against the verdict of the Khartoum Labour Court that I have outlined above.

5. As this was new information, which post-dated the Authority’s decision, the tender of that document was also rejected by Smith J at the same time that the leave was granted for an extension of time to lodge the application for review.

The Applicant’s Original Claims

1. These are set out in paragraph 2 of the Authority’s decision. They may be summarised as follows.

   ·He is a member of the Messiria tribe from South Kordofan.

   ·He has had a number of jobs, including working for a television station from 1994 to 2012.

   ·He originally claimed that in February 2012, he and three other people were detained by the National Intelligence and Security Service (NISS) and accused of selling film footage depicting government atrocities to the Sudan People’s Liberation Movement of South Kordofan.

   ·He claimed he was released after being detained for seven days, but conditional upon reporting to the NISS each day.

   ·He originally claimed he then ran away to his uncle’s farm, where he stayed for 12 months.

   ·He stated he was fearful of arrest, imprisonment for life or execution because of the activities outlined above, and was also fearful as a returned failed asylum seeker.

   ·He said he paid a people smuggler $7000 to arrange for a passport and an exit visa.

Immigration Assessment Authority’s Decision

1. During the consideration of the matter by the Authority, the matter took a somewhat surprising turn of events. On 28 September 2017, the applicant’s newly appointed representative provided the Authority with a submission and statutory declaration made on 22 September 2017, containing new information. In that statutory declaration, the applicant stated that some of his previous claims were untrue. The applicant stated that after receiving legal advice, he realised he had done the wrong thing by not telling the truth (see paragraph 7 of the Authority’s decision).

2. The applicant said he was never detained by the National Intelligence and Security Service (“NISS”) for selling film footage of atrocities. Whilst the applicant had worked at the TV station, he left them in 2005, not 2012, as he felt there was no future there. At paragraph 9 of the decision, the Authority reports that the applicant now claimed that the real reason he left Sudan is that in 2005 he bought into a private school. It was registered in the applicant’s name. In 2009, the school collapsed due to financial difficulties and the applicant was left with debts approximating $9000 (AUD).

3. The applicant was unable to pay his creditors. The applicant was taken to Court in 2012 and ordered to repay the money. The applicant stated he faced imprisonment for being unable to pay the debt and could remain there until the debt was repaid. The applicant states he fled Sudan due to the debt and threat of imprisonment, and if he returns he will be imprisoned. Clearly this material was not before the original decision-maker, being the delegate of the Minister.

4. At paragraphs 10 and 11 of the decision, the applicant’s representative argued that there are exceptional circumstances to justify the admission of this new information pursuant to s 473DD of the Act. It was submitted that if these claims were accepted, the applicant would be eligible for protection under the complementary protection regime, as the prison conditions in Sudan were such that he faced a real risk of being subjected to cruel, inhuman or degrading treatment and/or punishment.

5. At paragraph 12 of the decision, the Authority determined that it was not apparent from the new information before it, why the applicant could not have made these new claims in his Safe Haven Enterprise visa interview. The Authority concluded that the fact that the applicant was not legally represented at the time, did not properly explain why the claims were not made. No reason was apparent as to why the applicant was unable to give a truthful account in the four years since his entry interview for a Safe Haven Enterprise visa and the Minister’s decision. The Authority was not satisfied that the provisions of s 473DD(b)(i) of the Act were met, being that the information was not and could not have been provided to the Minister, before the Minister made the decision under s 65 of the Act.

6. At paragraph 13 of the decision, the Authority considered the applicability of s 473DD(b)(ii) of the Act with regards to the new information that the applicant’s previous claims were untrue. The Authority concluded that had the Minister known the applicant’s claims were untrue, this would have affected the consideration of the applicant’s claims. The Authority determined that the provisions of s 473DD(b)(ii) of the Act were met and there were exceptional circumstances that justified the admission of this information that having made false claims, was an exceptional circumstance.

7. At paragraph 14 of the decision, the Authority dealt with the consideration of the applicant’s new claims, being the reasons why he left Sudan that being his debts. The Authority concluded this was not credible personal information which would have affected the Minister’s decision and found that the provisions of s 473DD(b)(ii) of the Act were not met.

8. This decision is further elaborated in paragraphs 15 to 19 of the Authority’s decision. At paragraph 15 of the decision, the Authority concludes that the applicant’s credibility was called into question. The Authority noted there was little detail as to the claim and no documentary evidence to support the claim.

9. At paragraph 18 of the decision, the Authority notes the applicant claims he owed the equivalent of $9000 (AUD) as a debt. The Authority questioned why the applicant would spend $7000 (AUD) to travel to Australia rather than pay off his debts.

10. At paragraphs 20 to 21 of the decision, the Authority deals with some new country information that was not before the Minister. That new country information deals with a report on prison conditions in Sudan. As the Authority had previously found, s 473DD of the Act did not allow the Authority to deal with the new claim regarding debts. There were no exceptional circumstances to justify considering that report.

11. At paragraph 22 of the decision, the Authority noted that the submission provided by the applicant contained an extract from a report about treatment of returnees to Sudan. That information predated the Minister’s decision. The Authority was not satisfied that the conditions under s 473DD of the Act were met in that it was not new information which could not have been provided to the Minister before the Minister made their decision. In rejecting the information, the Authority noted the Minister dealt with a range of information from sources that had dealt with this issue.

12. At paragraphs 25 to 28 of the decision, the Authority was satisfied as to the applicant’s identity, nationality and tribal affiliation within Sudan. The Authority concluded, based on a number of reports, including the Department of Foreign Affairs and Trade (“DFAT”) country information, that the applicant would not face harm of any kind on return to Sudan based on his area of origin or tribal affiliation.

13. At paragraphs 29 to 30 of the decision, the Authority considered the risk of harm to the applicant as a person returning to Sudan on temporary travel documents and as a failed asylum-seeker. The Authority concluded that the applicant most likely left Sudan on a legally-issued passport under his real name.

14. Country information indicated that the NISS have a significant presence at airports and review the documentation of people entering the country. At paragraphs 31 and 32 of the decision, the Authority concluded that even if the applicant was identified as a failed asylum-seeker, he would not be handed over to intelligence authorities. Even if the applicant was detained for up to 24 hours due to travelling on temporary travel documents, the Authority considered that this would not amount to serious harm, nor would he be exposed to any other forms of serious harm during this process.

15. At paragraph 34 of the decision, the Authority concluded the applicant did not meet the requirements of s 5H(1) of the Act or s 36(2)(a) of the Act. In paragraphs 35 to 39 of the decision, the Authority deals with the issue of complementary protection. The Authority concluded for the same reasons as outlined above, the applicant did not meet the requirements of s 36(2)(aa) of the Act for complementary protection.

Grounds of Appeal

1. One ground of appeal was contained within the application to the Court, which is set out as follows as it appeared in the application:

   1. The Tribunal denied the applicant procedural fairness and/or breached s 425 of the Migration Act.

   Particulars

   (a) The Tribunal did not consider the whole of the information applicant provided to the Tribunal regarding the torture at the hands of Sudanese Authorities of returnees

   (b) The Tribunal, having made adverse findings about the applicant’s credibility in relation to his admission of incorrect information provided earlier but gave no evidentiary weight to the new information and evidence applicant provided;

   (c) The Tribunal thereby committed jurisdictional error.

Submissions

1. The applicant appeared unrepresented before the Court, assisted by an interpreter. No written submissions were provided by the applicant. Mr Gardner appeared on behalf of the first respondent and provided written submissions.

2. In the applicant’s submissions to the Court, the applicant said he came from a country with principles different from Australia. The applicant admitted telling untruths initially in his application but realised after four or five years, principles in Australia were different from his country. As a result, the applicant told the truth in the second application because he felt the good principles and ethics in Australia made him say the truth regardless of the consequences.

3. The applicant also stated there had been a change of government in Sudan, post the Bashir government, and that the two persons in charge were from the military and were wanted for persecution or crimes against humanity, whilst they were members of the Bashir government. The applicant was reminded that these were not matters that the Court could take into account, as the Court cannot engage in merits review.

4. The applicant was asked what matters, as a matter of law, he would say were errors in the Authority’s decision. The applicant said there were three points he wanted to be taken into account. The applicant said that the Authority did not take into account conditions in Sudan in general and what he would face if he was returned. The applicant said he had provided help to the opposition. The applicant said that the Authority did not take into account the period of time he had spent in Australia and that during that period, he had not been involved in any wrongdoings.

5. Mr Gardner, for the first respondent, relied upon their written submissions.

6. In response, the applicant stated that:

   When I said I did not understand the justice over there, I had no legal representation.

7. The applicant reiterated that the situation in Sudan was now worse with the new military government. Even with the previous government, if the applicant had been returned, he would be regarded as being a person who supported the opposition and would be regarded as a person who had exposed the secrets of government and would either be killed or forcibly disappear.

Considerations

1. The ground of appeal in its current form is misconstrued. The review was carried out by the Immigration Assessment Authority, not the Administrative Appeals Tribunal. Thus the claim that s 425 of the Act was breached has no substance. This is because that section applies to the Administrative Appeals Tribunal, rather than the Immigration Assessment Authority.

2. The relevant procedure to be followed by the Authority is set out in Part 7AA, Division 3 of the Act. I am prepared to consider the claim, given that the applicant is unrepresented, that the Authority breached the requirements of part 7AA. In my view, however, this claim also has no substance.

3. Section 473DD of the Act sets out a clear basis upon which new information can be considered. There must be both exceptional circumstances to justify the consideration of new information (see

   
   

   s 473DD(a) of the Act). One of the requirements under s 473DD(b) of the Act must be met. That is either 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.

4. I am satisfied that, as set out above, that the Authority considered each aspect of the new information provided. It accepted some and rejected some. In so doing, I am satisfied the Authority did not use an inappropriately narrow understanding of the phrase “exceptional circumstances”. Nor am I satisfied that the decision to admit some information and reject other material was unreasonable, irrational or illogical (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at paragraph [28] per French CJ; and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at paragraph [124] per Crennan and Bell JJ).

5. Given the stringent nature of this test, I am not satisfied that the actions of the Authority to not admit the new information relating to the “real” reasons why the applicant fled Sudan amounts to jurisdictional error. This was material the applicant could have raised before. The applicant did not. The Authority considered the applicant’s credibility and made an adverse conclusion to him. This affected the consideration by the Authority of the requirements of personal credible information pursuant to s 473DD(b)(ii) of the Act not to allow some information in.

6. I am also satisfied that the Authority did consider relevant country information as to the applicant’s risk of torture or other serious harm upon return. At paragraphs 28 to 30 of the decision, the Authority concluded that the applicant’s profile, tribal affiliation, background and other personal identifiers did not place him at risk upon return even as a failed asylum seeker.

7. Mr Gardner, for the first respondent, submitted that this case was distinguishable from CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 per Bromberg J. I am satisfied that the Authority undertook a preliminary analysis of the new information at paragraphs 14 to 19 of the decision. The Authority found that the new protection claims were not capable of being believed, as the applicant was manifestly unreliable. I am satisfied the Authority concluded the claims were “evidentiary, not credible” based on the information before this Court and this was a reasonable finding that was open to the Authority on the evidence.

8. Mr Gardner, for the first respondent, also raised an issue in relation to the compliance with s 473GB of the Act. I am satisfied that the Authority complied with the relevant law (see AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129 paragraph [37]).

Conclusion

1. I am not satisfied that any jurisdictional error is apparent in the Authority’s decision.

2. Accordingly, the application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 10 October 219