AUF18 v Minister for Home Affairs

[2019] FCCA 1342

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUF18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1342

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Safe Haven Enterprise (subclass 790) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

BLA16 v Minister for Immigration [2018] FCCA 2808
DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170
Plaintiff M148/2017 v Minister for Immigration and Border Protection [2018]
HCATrans 105
WAGP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FCAFC 103; 151 FCR 413; 232 ALR 78

Applicant: AUF18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 441 of 2018

Judgment of: Judge Mercuri

Hearing date: 17 October 2018

Date of Last Submission: 17 October 2018

Delivered at: Melbourne

Delivered on: 24 May 2019

REPRESENTATION

Counsel for the applicant: Mr J. F Gormly

Solicitors for the applicant: Labour Pains Legal

Counsel for the respondents: Mr C. Tran

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application filed on 21 February 2018 and amended on 7 September 2018 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 441 of 2018

AUF18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (“the IAA”) affirming the decision of a delegate of the Minister of Home Affairs (“the Minister”) to refuse the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV visa”).

2. At the hearing, the applicant initially sought to join the Secretary of the Department of Home Affairs. This was opposed by the first respondent on the basis that it was not necessary as no relief was claimed against the Secretary. Ultimately, this application was not pressed.[1]

   [1] Transcript page 3 at line 38.

3. The applicant’s amended application raises two grounds of review. The first respondent submits that both grounds fail and seeks orders that the proceeding be dismissed with costs.

Evidence

1. One of the issues raised in this application was what information was before the IAA at the time the IAA made its decision. In relation to this question, the first respondent filed an affidavit of Alexander Lochland affirmed on 11 October 2011. Mr Lochland was cross examined by the applicant’s representative.

2. Mr Lochland’s evidence, which I accept, is that in fast track matters such as this, the department does not maintain hard copy files and that the applicant’s electronic file associated which his application for a SHEV visa filed on 18 November 2016 was CLF2015/82452. [2]

   [2] Affidavit of Alexander Lochland filed 11 October 2018 at paragraph [7].

3. The fast track reviewable decisions are referred to the IAA by the Minister electronically and it is the responsibility of the review officers to compile the material referred to the IAA. Review officers are instructed to refer all information that was before the IAA at the time the IAA made the decision.[3]

   [3] Affidavit of Alexander Lochland filed 11 October 2018 at paragraph [8].

4. On 12 May 2017 at 11:31am, a copy of the applicant’s file (being file CLF2015/82452) was transferred to the IAA electronically and no other files or documents were transferred by the Minister to the IAA in respect of the applicant’s SHEV visa application between 12 May 2017 and the date of the IAA’s decision on 5 January 2018.[4]

   [4] Affidavit of Alexander Lochland filed 11 October 2018 at paragraphs [9] to [11].

5. Mr Lochland also gave evidence that on or about October 2018, he conducted a review of various other documents associated with the applicant and relevantly concluded that there was another file held by the Minister in respect of the applicant (being file CLD2013/524926) which contained, among other things, the documents which are annexed at AL-3 to Mr Lochland’s affidavit. These documents which purport to record that the applicant’s mother reported certain conduct to the Human Rights Commission (“the HRC”) in Sri Lanka, are relevant to ground one of the applicant’s grounds of review (“the human rights documents”).

6. Mr Lochland’s evidence is that the human rights documents[5] did not form part of the documents referred to the IAA on 12 May 2017. I accept this evidence. 

   [5] Or indeed those contained in the affidavit of Alexander Lochland filed 11 October 2018 at annexure AL-2.

7. It is common ground that the applicant arrived in Australia as an irregular maritime arrival on 1 November 2012.[6] An entry interview was conducted on Christmas Island on 16 January 2013 and, at that time, the applicant was assisted by an interpreter in the English and Tamil languages.[7]

   [6] Court book page 75.

   [7] Court book page 10.

8. Mr Lochland’s evidence is that he reviewed the Minister’s Total Records Information Management (“the TRIM”) database and in particular, the document entitled ‘QVA056 – Various identity document’ with record number CLD2013/524926.[8] This contained an email dated

   
   

   19 January 2013 with 24 attachments.[9] The human rights documents were included in amongst those 24 attachments, but as stated above, they did not form part of the documents before the delegate to the Minister.

   [8] Affidavit of Alexander Lochland filed 11 October 2018 at paragraph [13].

   [9] Affidavit of Alexander Lochland filed 11 October 2018 at paragraph [12].

9. By letter dated 23 December 2015, the applicant was advised of changes to laws about the protection application process for illegal maritime arrivals and was invited to make an application under the ‘new fast track assessment process’. The applicant was invited to apply either for a Temporary Protection (subclass 785) visa or a SHEV visa.[10]

   [10] Court book pages 48 to 53.

10. On or about 15 November 2016, the applicant filed an application for a SHEV visa.[11] He was assisted in the preparation of this visa by the Refugee and Immigration Legal Centre Inc.[12] Attached to his application was a statutory declaration signed by the applicant on

    
    

    15 November 2016 (“the 2016 statutory declaration”).  

    [11] Court book pages 55 to 97.

    [12] Court book page 54.

11. At paragraph 36 of the 2016 statutory declaration, the applicant[13] referred to the fact that on 10 January 2012, his mother reported a series of incidents described earlier in his statutory declaration, to the HRC of Sri Lanka. A copy of that notification did not accompany the statutory declaration.[14] 

    [13] Court book pages 98 to 103.

    [14] Affidavit of Alexander Lochland filed 11 October 2018 at annexure AL-3.

12. On 16 March 2017, the applicant was invited to attend an interview to discuss his application and his claims. The interview was scheduled for 6 April 2017.[15] Attached to the notification of the interview was an information sheet which explained the nature of the interview and what the applicant needed to bring with him. Relevantly, it stated that the applicant should bring with him, among other things, “any evidence you have to support your protection claims”.[16] The information sheet also contained the following:

    It is your responsibility to provide the particulars of your claims for protection and to provide sufficient evidence to establish those claims at the interview and before a decision is made.  It is important that you explain clearly at the interview why you are seeking protection in Australia and give details of your protection claims.[17]

    [15] Court book page 108.

    [16] Court book page 114.

    [17] Court book page 117.

13. At the delegate’s interview with the applicant on 6 April 2017, the following exchange occurred:

    Delegate:What evidence do you have that your mother reported a number of these incidents to the Sri Lankan Human Rights Commission?

    Applicant:Yes. Our Reverend father told us we should go and tell these things definitely.[18]

    [18] Court book page 145.

14. On 9 May 2017, the applicant was advised that his application for a SHEV visa had been refused.[19]

    [19] Court book page 147 to 160.

15. On 12 May 2017, the applicant was advised that the decision to refuse his application for a SHEV visa had been referred to the IAA for review.[20] By email dated 8 August 2017, the applicant provided various documents to the IAA in support of his application for the SHEV visa.[21] This included the human rights documents.[22]

    [20] Court book page 162.

    [21] Affidavit of Alexander Lochland filed 11 October 2018 at annexure AL-3, court book page 176.

    [22] Court book page 178.

16. On 5 January 2018, the IAA affirmed the decision not to grant the applicant a SHEV visa.[23] In doing so, the IAA discussed whether the human rights documents could be considered under section 473DD(b) of the Migration Act 1958 (Cth) (“the Act”).

    [23] Court book pages 189 to 204.

The applicant’s claims

1. The IAA appropriately summarised the applicant’s claims at
   paragraph 13 of its reasons for decision. Relevantly, it stated:

   The applicant’s claims can be summarised as follows:

   ·He is a Sri Lankan national who was born in Trincomalee District, Eastern Province, Sri Lanka in 1985. He is a Tamil and his religion is Catholic.

   ·The Army took the applicant’s father one day in 1986 and beat him up. The next day his father had a heart attack and died.

   ·His cousin (AR) was a member of the LTTE from 1988 until 2001 when he died in the war.  His cousin’s mother, the applicant’s aunt, was taken away by the authorities and disappeared. One of his uncles in Sri Lanka went missing in 1990.

   ·In 2000 when the applicant was 15 years old, he was asked twice by the Sri Lankan Army (SLA) to come in for questioning. He was beaten and threatened. 

   ·In 2004 he went to Qatar to work and to get better training as a welder.

   ·When he returned to Sri Lanka from Qatar in 2004, he started attending meetings at the Catholic Church two or three times a week. He stopped attending these meetings in 2006.

   ·During 2006, men in a white van attempted to abduct him and asked if he knew two men who were LTTE members.  He said he did not know them and they accused him of lying.  They assaulted him, he fell and hurt his wrist.  He believed they were from the Karuna Group.  People from nearby shops appeared and the group left straight away.

   ·After this incident, he was fearful and went to Malaysia and when he worked in manufacturing toilets.  He attempted to register with the UNHCR but was taken by the police and put in gaol for five to six months. He was then moved to an immigration camp for 25 – 30 days. He was given the option of waiting to register with the UNHCR or being deported.  The UNHCR did not come to see him and he was deported to Sri Lanka where he was questioned at the airport. However, he had a visa in his passport and was allowed to go.

   ·In 2008 the applicant was arrested by the Sri Lankan Navy and questioned about whether he had helped the LTTE and where he had been.  He told them he was working in Malaysia and the priest from the church came and got him out of detention.

   ·In 2007/08 they SLA came to the applicant’s house and took him for check-ups.

   ·In 2008 there were round ups, where police and the navy would go from house to house. One time they arrived at his aunt’s place and he hid on the roof.

   ·On one occasion, Bandara, the head of the Criminal Investigation Division (CID), slapped the applicant who said he wanted to keep his hair long, and threatened him that next time he would be shot or beaten. Fifteen days later, Bandara came to check the permits for shifting sand, and saw that the applicant still had long hair, so he grabbed the applicant by the throat and threw him from the tractor on which he was working.

   ·After being elected secretary of the Rural Development Service (RDS), the applicant noticed that former officeholders took money which was for community development and roads. The previous administrator threatened him and indicated he should move to another country. He was threatened three times. On one occasion, the previous administrator threatened him and indicated he should move to another country.  He was threatened three times. On one occasion, the previous administrator grabbed the applicant’s shirt and nearly beat him.

   ·In July 2011 some people put pro-government posters on the bus he was driving. To comply with the law, he tore them down from the glass. He was threatened by three people and later threatened again whilst driving the bus by people in a blue van. They stopped the bus. The applicant left his job as a bus driver. People came searching for him at his mother’s house but he was not at home.

   ·The applicant started working as a photographer and people exposed his film to cause him problems. A Sinhalese man, who was previously an SLA officer, lent him a video of the SLA forcing people to run down streets naked and shooting at them. When the video appeared on YouTube the SLA officer became suspicious of the applicant.

   ·In 2011 a three wheeler vehicle followed the bus on which the applicant was travelling.  The applicant believed people were trying to abduct him. On 27 July 2011 they came again and asked him for his licence but the applicant told them he could not give it to them.  When the passengers got off the bus, the people left.

   ·On 10 January 2012 his mother reported a number of incidents to the Human Rights Commission of Sri Lanka.  He was not able to find employment from 2012 because the authorities were watching him.[24]

   [24] Court book pages 192 to 194.

2. The last three dot points are of particular relevance in the current application.

The legislative context

1. As is evident from this summary, this application arises under Part 7AA of the Act. As such, the IAA’s powers of review are limited by the terms of Part 7AA. Part 7AA of the Act provides for the automatic referral of a decision to refuse a protection visa to the IAA[25] and specifies what material is to be provided to the IAA to facilitate that review,[26] which includes material provided by the applicant in support of their application and “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”.[27]

   [25] Migration Act 1958 (Cth) s. 473CA.

   [26] Migration Act 1958 (Cth) s. 473CB.

   [27] Migration Act 1958 (Cth), s. 473CB(1)(c).

2. Relevantly, the IAA is required, subject to Part 7AA of the Act, to conduct its review ‘on the papers’ and without accepting or requesting ‘new information’.

3. Whilst the IAA ‘may’ accept or request new information under
   section 473DC of the Act, it must not consider such new information unless the requirements of section 473DD of the Act are met. Therefore, the IAA must be satisfied that:

   a)there are exceptional circumstances; and

   b)where the applicant seeks to rely on new information, that:

   i)it was not, and could not have been provided to the Minister before the decision was made; or

   ii)it 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 IAA’s reasons

1. In its reasons, the IAA noted that it had had regard to the material given by the Secretary under section 473CB of the Act.[28] The IAA noted that the applicant had provided two submissions from the applicant, one on 8 August 2017 which had four attachments and one on 17 August 2017 which had two attachments.[29] 

   [28] Court book page 190 at paragraph [3].

   [29] Court book page 190 at paragraph [4].

2. The IAA noted that the applicant had not provided any explanation as to why these documents could not have been provided to the Minister prior to the delegate’s decision, notwithstanding that the delegate had informed the applicant that he would consider any further information which the applicant submitted to him prior to his decision. 

3. The IAA went on to say:

   Two of the documents relate to a complaint by the applicant’s mother to the Human Rights Commission of Sri Lanka in 2012 about the applicant.  The applicant did not explain why these documents were not provided to the Department before a decision was made given that the complaint was made in 2012, or any other basis on which the document should be considered.  Despite making claims about his mother having approached this organisation, the applicant did not provide these documents to the Department.  Their late appearance calls into question their veracity.  While the two documents purport to corroborate the applicant’s claim that he was threatened, the fact that they were not provided earlier despite their apparent existence for some years gives rise to doubts as to their reliability.  There is no indication that they have only recently come into the possession of the applicant.  The applicant has not satisfied me that, in relation to this new information could not have been provided to the Minister before the Minister made the decision under s.65(s.473DD(b)(i)).

   I have considered whether the documents contain credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims.  The two documents relate to a complaint by the applicant’s mother to the Human Rights Commission of Sri Lanka on 10 January 2012 about the applicant.  The applicant gave evidence at the protection visa interview that his mother, on 10 January 2012, reported a number of incidents that happened to him to the Human Rights Commission of Sri Lanka.  However, there is an anomaly in the letter from the Human Right Commission of Sri Lanka dated 10 January 2012 that raises concerns about its genuineness.  The letter refers to a complaint in respect of ‘her son’ and the word ‘Thretning’ (sic) is written immediately after the applicant’s name.  It is not clear if this is the full name of the applicant or the word ‘Thretning’ (sic) actually means ‘threatening’.  If the latter is correct, then it is of concern that the complaint only appears to refer to threats instead of also referring to assaults and threats which the applicant claimed he had suffered.  The second document which is a receipt of a complaint received by the Human Rights commission of Sri Lanka on 10 January 2012 also refers to ‘Thretning’ (sic) only. Again there is no reference to assaults or beatings and I consider that if the applicant’s mother had indeed complained to the Human Rights Commission of Sri Lanka on behalf of her son, she would have mentioned the serious assaults and not only the threats.

   The applicant has not satisfied me that, in relation to this new information, the new information is credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims.  … Having regard to the totality of the circumstances, I am also not satisfied that there are exceptional circumstances to justify considering the new information…[30]

   [30] Court book page 191 at paragraphs [8] to [10].

4. Ultimately, the IAA affirmed the delegate’s decision to refuse the applicant a SHEV visa. The IAA expressed concern about the change in the applicant’s claims over time as well as inconsistencies in his evidence.[31]

   [31] Court book pages 194 to 199 at paragraphs [18] to [39].

Ground one

1. The first ground of review is:

   The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:

   The Authority constructively failed to exercise its statutory task under s 473CC Migration Act 1958 (the Act) to review the delegate’s decision by declining to consider on the basis it was ‘new information’ important evidence which was corroborative of the applicant’s claims for protection and which undermined the Authority’s reasoning against the plausibility and credibility of the applicant’s claims.

   Particulars

   (a)The important corroborative evidence was:

   (i)An undated letter from the Human Rights Commission of Sri Lanka signed by the Regional Coordinator of the commission for Trincomalee, and referring to a complaint made numbered HRC/TCO/05/12/0 in respect of the applicant.

   (ii)A receipt from the Human Rights Commission of Sri Lanka dated 10 January 2012 for a complaint made numbered HRC/TCO/05/12/0 in respect of the applicant.

   (b)The evidence corroborated the applicant’s claims of threats received in relation to his position with the Rural Development Service and from persons in a blue van in relation to his activities as a bus driver in July 2011; as well as his claims of harassment in his work as a photographer, that a SLA officer suspected him of uploading onto Youtube a video of Sri Lankan Army atrocities against Tamils, that he was under surveillance and the subject of an attempted abduction whilst he was a passenger on a bus, and that his mother had reported a number of these incidents to the Human Rights Commission of Sri Lanka on 10 January 2012.  Because the evidence was corroborative of these claims it also undermined the Authority’s general findings that the applicant was not a witness of truth.

   (c)The corroborative evidence at 1 a. ii and ii (sic) was not ‘new information’ as it was before the delegate when the delegate made his decision.[32]

   [32] Applicant’s amended application filed 7 September 2018.

1. At the heart of this ground is the premise that the information relied upon, namely the human rights documents, were not new information because they was before the delegate when the delegate made his decision. 

2. It was submitted on behalf of the applicant that as the human rights documents formed part of the applicant’s original client file, being

   
   

   CLF2012/232399, they were “‘literally’ or ‘physically’ (and not just ‘constructively’) before the Minister”. [33]

   [33] Applicant’s written submissions filed 15 October 2018 at paragraph [2].

3. In support of this submission, the applicant referred to DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 (“DTK17”).[34] 

   [34] DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 at [37].

4. In my view, DTK17 does not support the proposition advanced by the applicant. In DTK17, the question was whether an ‘issues paper’ prepared by the IAA could properly have been said to have been ‘before the delegate’ because it had been authored by the Department. The Full Court answered this question in the negative. 

5. In DTK17, the Full Court held:

   We accept the Minister’s contention that the authorities relied upon by the appellant deal with deal with different statutory schemes from the unique framework established under Pt 7AA of the Act…s54 and s55 of the Act establish … that the Act only requires the Minister, in deciding whether or not to grant or refuse to grant a visa, to have regard to ‘all information in the application’. Information is ‘in an application’ if it is set out in the application or in a document attached to the application when it is made or that is given under s 55 of the Act….

   For the purpose of s 473DC(1)(a) the Secretary is required to make available all documents or information ‘before’ the Minister. The primary judge was correct to conclude that this was a narrower concept than all materials in the ‘control’ of the Minister and to distinguish the concept from ‘possession’ as referred to by Gibbs CJ in Peko-Wallsend…

   The expression ‘before the Minister’ also appears at s 473DA(2) of the Act… The fact that the words ‘before the Minister’ in s 473DA(2) refer only to material literally before the Minister would suggest that the same words appearing in s 473DC(1)(a) ought be read in the same way… as meaning ‘physically before the Minister, not one in respect of which the Minister may have constructive knowledge because of the breadth of material held by the Department’. His Honour concluded, rightly in our opinion, that ‘before the Minister’ does not meant ‘in the Minister’s control’. [35]

   [35] DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 at [36]-[38].

6. Similarly, it is clear from the evidence that the human rights documents, although provided to the department at some point in or about 2012, were not attached by the applicant to his SHEV visa application, nor did the applicant make reference during his interview with the delegate to the fact that he had previously provided those documents in his application. Indeed, when he was asked about any evidence which supported the submission that his mother had made a complaint to the HRC in Sri Lanka by the delegate, his response was, at best, non-responsive. He certainly did not make any reference to the fact that he had any such documents or, perhaps more importantly that he had already provided them to the department.  I do not accept the submission made by the applicant that his use of the word ‘yes’ in response to a question about what evidence he had was somehow an answer indicating that he had such evidence.

7. On the basis of the evidence before me, I find that the human rights documents were not before the delegate at the time that he made his decision and therefore, to the extent that this ground relies upon this premise, it must fail and I so find.

Ground two

1. The second ground of review is:

   The Authority’s statutory task under s 473CC of the Act to review the delegate’s decision miscarried because of the failure of the third respondent Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act to consider providing material in its possession or control to the Authority in order for it to carry out its review obligation.

   Particulars

   (a)The Secretary failed to carry out its duty under s 473CB(1)(c) to consider the relevance of the documents set out in 1 a ii and ii (sic) which were within the Secretary’s possession or control.[36]

   [36] Applicant’s amended application filed 7 September 2018.

2. It is clear from the evidence in this matter that the applicant had provided the human rights documents to the department when he first arrived in Australia and that these documents made their way onto the department’s records. For the reasons set out above, I also find that the delegate did not have regard to these documents at the time that he considered the applicant’s SHEV visa application.

3. It is submitted on behalf of the applicant that this of itself is evidence of a breach by the Secretary of the Department of their obligation under section 473CB(1)(c) of the Act. Moreover, the applicant referred to the evidence given by Mr Lochland in which he states that the delegate did not view or access the relevant department file which contained the human rights documents.[37]

   [37] Affidavit of Alexander Lochland filed 11 October 2018 at paragraph [17].

4. The applicant relied upon the decision in WAGP v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCAFC 103; 151 FCR 413; 232 ALR 78 (“WAGP”) in which the court had to consider section 418 of the Act, which is in similar terms to section 473CB(1)(c) of the Act. In WAGP, the Full Court said that

   
   

   section 418 of the Act imposed an obligation on the Secretary, “to form a view as the relevance of each document in the Secretary’s possession or control to the review of the decision by the Tribunal.”[38]

   [38] WAGP v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCAFC 103; 151 FCR 413; 232 ALR 78 at [64].

5. Whilst not conceding that conducting a reasonable search is all that is required to comply with the obligation identified in WAGP, it was submitted on behalf of the applicant that the evidence before the court demonstrates that the Secretary in this instance did not even carry out such a search.[39]

   [39] Applicant’s outline of submissions filed 15 October 2018 at paragraph [8].

6. To the extent that the evidence shows that the delegate completed a checklist of the ‘review material’, the last dot point of which provided as a category of documents “any other relevant documents that should be included in the PDF portfolio.”[40] It was submitted on behalf of the applicant that it was unreasonable for the Secretary not to search for any material that came into existence prior to the applicant lodging his visa application.

   [40] Applicant’s outline of submissions filed 15 October 2018 at paragraph [10].

7. To this extent, the applicant argued that there is a distinction to be drawn between the duty on the Secretary under section 473CB(1)(c) of the Act and section 54 of the Act.

8. There is some merit to this submission. Section 473CB(1)(c) of the Act imposes an obligation on the Secretary to have regard to “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the relevant time) to be relevant to the review.” This contemplates that there may be information which is in the Secretary’s possession or control and therefore which falls outside the scope of section 54 of the Act to which the delegate is to have regard.

9. However, the real question is, what does the Secretary need to do in order to comply with the obligation imposed by section 473CB(1)(c) of the Act?

10. In completing the checklist, it was submitted on behalf of the applicant that the delegate ought to have conducted a search of any documents held by the department which related to the applicant to determine whether or not there was any other relevant information in those documents which ought to be referred to the IAA. 

11. The arguments advanced in these proceeding were considered in recent proceedings before Judge Manousaridis in BLA16 v Minister for Immigration [2018] FCCA 2808 (“BLA16”). His Honour rejected arguments similar to those now advanced by the applicant and it was submitted for the Minister that they ought to be rejected in this case too. Although it was conceded that I am not bound to follow the decision in BLA16, unless there is some error identified, it was submitted that I ought to come to the same view as a matter of comity.[41]

    [41] Transcript page 25 at line 45.

12. The applicant argues that BLA16 made it clear that unlike a breach of section 418(3) of the Act, the Secretary’s failure to comply with

    
    

    section 473CB(1)(c) of the Act “may affect the validity of the IAA’s exercise of its jurisdiction to review a fast track reviewable decision” under Part 7AA of the Act. In particular, the applicant relied upon the following comments by Manousaridis J:

    To the extent, therefore, that the IAA’s jurisdiction can be said to be conditioned by the Secretary’s complying with s473CB(1)(c) of the Act, it is conditioned by the Secretary’s providing to the IAA materials the Secretary considers or ought reasonably to have considered to be relevant and which, in the circumstances of a particular case, could have made a difference to the outcome of the review by the IAA had the materials been given to the IAA (emphasis in original).[42]

    [42] BLA16 v Minister for Immigration [2018] FCCA 2808 at [38].

13. The applicant further submitted that the breach in this instance was material because:

    a)he had made reference to his mother’s reports of threatening behaviour to the HRC in Sri Lanka in his original statement of claim[43];

    b)in his interview, he responded in the affirmative when asked about any evidence to support this claim[44]; and

    c)in his decision, “the delegate made a positive finding rejecting the claim without being aware of the evidence of the HRC documents.”[45]

    [43] Court book page 102 at paragraph [36].

    [44] Court book page 145.

    [45] Applicant’s written submissions filed 15 October 2018 at paragraph [15].

14. It was further submitted that the IAA was not, as a result of the breach of section 473CB(1)(c) of the Act, given the opportunity to consider such corroborating evidence and the misapprehension that these documents were submitted late by the applicant, incorrectly lead the IAA to made adverse credibility findings. Therefore, it was submitted that it could not properly be said that the failure to comply with section 473CB(1)(c) of the Act “would have made no difference to the Authority’s decision.”[46]

    [46] Applicant’s outline of submissions filed 15 October 2018 at paragraph [17].

15. In response, counsel for the Minister argued:

    a)there was no breach of section 473CB(1)(c) of the Act; and

    b)in any event, even if there was a breach of that section, this did not result in a jurisdictional error.

16. In relation to the scope of the obligation imposed by section 473CB(1)(c) of the Act, counsel for the Minister relied upon the decision in BLA16 in which his Honour noted that whilst WAGP supports the proposition that section 473CB(1)(c) of the Act requires the Secretary to consider whether every document in the IAA’s possession or control that is or may be relevant to a review by the IAA irrespective of whether the Secretary was aware of the existence of the document, it does not go so far as now argued and determine the ‘nature and extent’ of that obligation.[47]

    [47] BLA16 v Minister for Immigration [2018] FCCA 2808 at [27].

17. Moreover, Manousaridis J stated that given the statutory context in which it sits, section 473CB(1)(c) of the Act:

    …at the very least obliges the Secretary to undertake reasonable searches for the purpose of identifying whether there are materials in the possession or control of the Department of Immigration that are (or may be) relevant … to a review by the IAA of any fast track reviewable decision’. On this construction, the Secretary will fail to comply with s.473(1)(c) in any given case if the Secretary undertakes no search or no reasonable search for materials that are, or which are reasonably capable of being considered to be relevant to the IAA’s review of the fast track reviewable decision in question and in determining in any given case whether the Secretary has failed to undertake reasonable inquiries, it will be relevant to inquire whether the Secretary:

    (a)has put in place a system designed to hold, and enable an officer of the Department of Immigration to readily identify and access, documents that are, or which may reasonably be considered capable of being, relevant to a review by the IAA of fast track reviewable decisions; and

    (b)whether in any given case that system has been resorted to for the purpose of identifying documents that are or might be relevant to the review by the IAA of a delegate’s decision not to grant a protection visa; and

    (c)if resorted to, whether the system has been used in the manner it was intended to be used.[48]

    [48] BLA16 v Minister for Immigration [2018] FCCA 2808 at [31].

18. I agree with his Honour in terms of the nature of the obligation imposed upon the Secretary by section 473CB(1)(c) of the Act and also the factors which might be relevant in determining whether that obligation has been met.

19. In this case, the question therefore is whether the Secretary ought to have reasonably looked for documents stored on its system in respect of the applicant prior to his application for a protection visa and which might evidence or corroborate the claims made by him. 

20. In this case, as in BLA16, I am satisfied on the basis of the evidence that the Secretary did not consider whether the human rights documents were relevant to the IAA review. As in BLA16, in this case, there is evidence that a checklist was developed and indeed used in this instance, to determine what documents might exist which might be relevant to a fast track review application.[49] 

    [49] Affidavit of Alexander Lochland affirmed 11 October 2018 at paragraph [20] and annexure AL-8.

21. It was argued that because the checklist contained a section headed “any other relevant documents that should be included” that this invited the Secretary to conduct a search of its records to consider whether there were any other documents at all in the Department’s possession or control which might relate to any of the applicant’s claims. I do not agree with this submission for the following reasons.

22. It was reasonable for the Secretary to assume that to the extent that the applicant had documents relevant to his claims and upon which he would seek to rely, that he would have included them in his SHEV visa application. Indeed he was invited to do so via the letter sent to him inviting him to apply for a visa[50] and also the visa application itself.[51]

    [50] Court book page 50.

    [51] Court book pages 67 and 89.

23. In addition section 5AAA of the Act required:

    …it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person [to whom protection obligations are owed] and to provide sufficient evidence to establish the claim.[52]

    [52] Plaintiff M148/2017 v Minister for Immigration and Border Protection [2018] HCATrans 105.

24. Moreover, whilst the applicant makes reference to the fact that his mother lodged a claim with the Sri Lankan HRC in his SHEV visa application, not only did he not attach any documents which relate to this matter but he did not make reference to the fact that he had provided any such documents to the Department previously.[53]

    [53] Court book page 176.

25. For these reasons, I am not satisfied that the applicant has made out a claim that the Secretary has in fact breached section 473CB(1)(c) of the Act.

26. If I am wrong in that analysis however, I also make the following observations. As noted above, the applicant relies upon a portion of Manousaridis J’s reasoning in BLA16.[54] The opening words of that paragraph are however, necessary to contextualise the comments which come at the end of that paragraph and which the applicant seeks to rely upon. Manousaridis J said:

    In my opinion even if the IAA’s jurisdiction is conditioned by the Secretary’s complying with s 473CB(1)(c) of the Act, the IAA’s jurisdiction is not conditioned by strict compliance with s473CB(1)(c)… To the extent, therefore, that the IAA’s jurisdiction can be said to be conditioned by the Secretary’s complying with s. 473CB(1)(c) of the Act, it is conditioned by the Secretary’s providing to the IAA materials the Secretary considers or ought reasonably to have considered to be relevant and which, in the circumstances of a particular case, could have made a difference to the outcome of the review by the IAA had the materials been given to the IAA (emphasis in original). [55]

    [54] Specifically, BLA16 v Minister for Immigration [2018] FCCA 2808 at [38].

    [55] BLA16 v Minister for Immigration [2018] FCCA 2808 at [38].

27. The applicant argued that the human rights documents were material on the basis that the applicant made reference to the fact that his mother had reported ‘threatening claims’ to the HRC in his original statement of claim. Moreover, it was submitted that the delegate made a positive finding rejecting this claim without being aware of the evidence of the HRC documents.[56]

    [56] Court book page 155.

28. I do not accept this submission. The delegate’s findings[57] must be read in the context of the analysis found in the court book.[58] Relevantly in relation to the claims associated with the human rights documents, the delegate identified this claim:

    ·On 10 January 2012 the Applicant’s mother reported a number of these incidents to the Human Rights commission in Sri Lanka.  From 2012 the Applicant was not able to find employment because the authorities were watching him.[59]

    [57] Court book page 155.

    [58] Court book page 153 to 155.

    [59] Court book page 153.

29. The delegate then sets out his findings of fact in relation to the following three matters:

    The applicant’s father was beaten in 1986 by the Sri Lankan Army and died the following day

    The Applicant uploaded videos showing Sri Lankan Army shooting at people on You Tube

    The Applicant did not get work in Sri Lanka in 2012 because his mother complained to the HRC

30. Ultimately, the delegate did not accept any of these matters as plausible. 

31. The delegate made the following comments under the heading:

    The Applicant could not get work in Sri Lanka because his mother complained to the HRC:

    …The Applicant claims he was not able to find work in Sri Lanka during 2012 on the basis the authorities were observing him and his mother and had made a complaint to the HRC about the mistreatment the Applicant had experienced. The Applicant has provided no evidence that he sought employment or was unable to find employment during 2012. The Applicant has not provided an explanation about why he was able to depart Sri Lanka without being apprehended if he was being observed by the authorities.  For these reasons, I do not accept this claim is plausible.[60]

    [60] Court book page 154.

32. The fact that the human rights documents were only produced after the delegate’s decision and without any reasonable explanation as to why they were not produced earlier, impacted on the IAA’s assessment of the applicant’s credibility. However, it is also clear from a fair reading of the IAA’s reasons for decision in their entirety that the credibility concerns arose from significant inconsistencies and omissions in the applicant’s evidence extending well beyond the failure to include the human rights documents in the SHEV visa application. [61]

    [61] Court book pages 194 to 198 at paragraphs [18] to [38].

33. At paragraph 39 of its decision, the IAA stated:

    There are a number of significant inconsistencies and omissions in the applicant’s evidence as set out above.  They lead me to find that the applicant’s evidence cannot be relied upon and the applicant is not telling the truth.  The applicant claimed in his Statutory Declaration that he did not mention all the claims and evidence to the Department because he was scared that the Australian Government would tell the information to the Sri Lankan Government.  I do not accept this explanation as reasonable for the large number of inconsistencies in the applicant’s evidence.  I find that the applicant is not a witness of truth and I do not believe his claims that he fears returning to Sri Lanka because of threats against him and his life or because the army officers know what he did…[62]

    [62] Court book pages 198 to 199 at paragraph [39].

1. The IAA reiterated its view that “the applicant is not a witness of truth. Other than his identity, I do not believe his evidence and claims.”[63]

   [63] Court book page 200 at paragraph [48].

2. It is against this background and the comprehensive rejection by the IAA of the applicant’s evidence that it then found:

   I have found that the applicant is not a witness of truth and I do not believe his claims that he was attacked or threatened or that, since he has been in Australia, the CID visited his mother asking for him. I do not accept that the applicant went to Qatar or Malaysia for safety reasons and I find that the applicant went to Qatar and Malaysia to work.  I also do not accept that he was elected to be the secretary of the Rural Development Service in 2010 or that he discovered that there had been corruption and he was threatened after revealing it.  I also do not accept that the applicant could not find employment because the authorities were watching him.  I am also not satisfied that complaints were made to the Human Rights Commission of Sri Lanka.[64]

   [64] Court book page 200 at paragraph [47].

3. I do not accept the submission made by the applicant that:

   …the HRC documents were so obviously critical to the review that it could only be inferred from the Secretary’s failure to given them to the Authority that the Secretary had failed in its obligations to search for an to form a view on them and was therefore in breach of s 473CB.[65]

   [65] Applicant’s outline of submissions filed 3 October 2018 at paragraph 42(iii).

4. Nor do I accept the submission that even if there was a breach that it:

   …infected the Authority’s decision with jurisdictional error as compliance with s 473CB…conditioned the exercise of the Authority’s limited review powers and the forensic importance of the HRC documents meant their inclusion in the review material could have made a difference to the outcome of the review.[66]

   [66] Applicant’s outline of submissions filed 3 October 2018 at paragraph 42(iv).

5. I agree with the submissions on behalf of the Minister that there was nothing inherently critical about the human rights documents which could be said to have imposed an obligation on the Secretary to have done anything more than what was done to identify them at the time that the review documents were provided to the IAA. This is particularly so given the comprehensive rejection of the veracity of anything which the applicant said.

6. For these reasons, ground two is not made out.

Conclusion

1. As neither of the applicant’s grounds have been made out, therefore the application should be dismissed with costs.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:  

Date:  24 May 2019