AXV17 v Minister for Immigration
[2019] FCCA 3150
•5 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXV17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3150 |
| Catchwords: MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether the IAA committed jurisdictional error by misconstruing s.473DD of the Migration Act 1958 (Cth) – whether the IAA failed to address a claim made by the applicant – whether the IAA failed to take into account the possibility that certain past events had occurred – whether the IAA made findings that were legally unreasonable – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CB, 473DD, 476 |
| Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481; (2018) 353 ALR 600 |
| Applicant: | AXV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 644 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 15 October 2019 |
| Date of Last Submission: | 15 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser (Limited: submissions only) |
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
| Legal Representative for the Respondents: | Ms S. Burnett |
ORDERS
The application made on 6 March 2017, and as amended, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 644 of 2017
| AXV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 6 March 2017, which seeks review of the decision of the Immigration Assessment Authority (“the IAA”) made on 16 February 2017, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a Safe Haven Enterprise Visa (“SHEV”) (Subclass 790) (a “protection visa”).
In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of Sri Lanka of Tamil ethnicity and of Hindu religion (item 10 at CB 3, CB 1, and item 18 at CB 6). He arrived in Australia on 14 November 2012 as an “unauthorised maritime arrival”, or otherwise known as an “illegal maritime arrival” (item 47 at CB 41, [7] at CB 58, and CB 17.5).
The applicant applied for a protection visa on 29 June 2016 (CB 23 – CB 65).
The applicant was invited to attend an interview with a delegate of the Minister on 13 December 2016, by a letter dated 25 November 2016 (CB 72 – CB 74). He was notified by letter that his application for a protection visa had been refused on 23 December 2016 (CB 76 – CB 78). The decision record was attached to this letter (CB 79 – CB 96).
The decision was referred to the IAA on 6 January 2017 (CB 98.5, and CB 97 – CB 99 generally). The applicant sent the IAA various documents and attachments on 25 January 2017 (CB 100 – CB 119). These were a written statement said to be made by the applicant, a statutory declaration declared by the applicant, and a letter dated 23 January 2017 from the Tamil Refugees Association (“the TRA”). The IAA affirmed the decision of the delegate on 16 February 2017 (CB122 – CB 141).
The Claims to Protection
The Minister’s written submissions set out the applicant’s claims to protection as they were ultimately put before the IAA. Given the evidence before the Court this is a fair summary of the claims as relevant to the grounds before the Court (at [6]):
“6. The Applicant is a Tamil from the Eastern Province of Sri Lanka who claimed to fear harm from the Sri Lankan authorities due to this Tamil ethnicity, imputed support or affiliation with the Liberation Tigers of Tamil Eelam (LTTE), his sister’s LTTE membership, his participation in an anti-“greaseman” protest, his illegal departure from Sri Lanka and his status as a failed asylum seeker.8 In particular, the Applicant claimed that:
(a) he grew up in an LTTE controlled area;
(b) he was not involved with the LTTE although he did purchase merchandise on Martyrs’ Day in Australia;
(c) in the period 1994 to 1996, he travelled through an army controlled area to attend high school and passed through security checkpoints. On a number of occasions he was taken for questioning and on one occasion was taken to an army camp for approximately three hours, questioned and beaten;
(d) in 2000 he travelled to Saudi Arabia for work and remained there until 2008. In this period, his sister was conscripted by the LTTE and remained with the LTTE for three months before being rescued;
(e) LTTE agents in Saudi Arabia used the Applicant’s bank account to transfer money to the LTTE in Sri Lanka. The money was sent from the Applicant’s account to his sister’s account and she then gave it to an LTTE member;
(f) after his return from Saudi Arabia, the Applicant was stopped in an army roundup and lost his National Identity Card (NIC) and was detained. He was held for 12 hours and beaten and released on condition that he obtain a new NIC;
(g) in August 2010, the Applicant became the secretary of the Rural Development Society (RDS) in his village. There were many issues in the village due to the war and his role was to “take issues in the village and find solutions”;
(h) from May 2011, greasemen targeted the Applicant’s village and nearby villages. On 16 August 2011, a protest was held which the Applicant attended. Police, army and Sinhalese people who were on the road and watched the protest took photographs and videos including one of the Applicant. Sometime after the protest two men in black clothes came to the Applicant’s family home and showed the Applicant’s mother a photograph of the Applicant at the protest. The men told the Applicant’s mother that he should meet them at the bus stop in Batticaloa the following day. The Applicant believed these men were from a paramilitary group and he feared for his safety. He was working in Trincomalee at the time and thereafter limited his visits to his parents to night time;
(i) paramilitary members visited the family home many times without his mother’s knowledge and took photographs and videos. In 2012, whilst the Applicant was visiting his parents, they came to his home. The Applicant’s mother refused to allow them in and they pushed her causing her to break her leg;
(j) he was fearful for his safety and left Sri Lanka in October 2012. Since his departure his mother has been harassed on a number of occasions by men who came to the family home; and
(k) Tamils have no rights and Sinhalese people and Buddhist monks are able to act with impunity in mistreating Tamils. At his SHEV interview, the Applicant cited accounts of torture and mistreatment of Tamils and showed the Delegate multimedia clips on his telephone.”
[Footnote Omitted.]
The IAA
The IAA considered the documents given to it by the applicant following the referral of his case. The IAA referred to s.473DD of the Act and found (at [5], CB 125):
“5. The submission seeks to advance new claims and new country information. The IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances to justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims.”
The IAA dealt with these documents as follows.
One, it did not have regard to a “new” (not put to the delegate) claim that the applicant feared harm on return to Sri Lanka because of his claimed involvement with the Rural Development Society (“RDS”) (part of the civil administration in his village) which required him to liaise with the LTTE.
The IAA noted that the applicant was given a specific and express opportunity at the interview with the delegate to put forward all of his claims to fear harm. He was advised of the importance of doing so and that he may not have another opportunity to put forward claims ([7] at CB 125).
While the applicant did put forward some new claims, he made no reference to the claimed involvement with the LTTE ([7] at CB 125).
The IAA also considered the applicant’s contention that he was suffering from post-traumatic stress disorder (“PTSD”) during the interview and that he did not raise the LTTE connection claim because he feared the information would be given to the “authorities” in Sri Lanka ([8] at CB 125 – CB 126).
The IAA found, however, that in spite of these assertions, he did put forward other “sensitive” claims. The IAA found it was not satisfied, in this light, that exceptional circumstances existed such that the “new” claim should be considered.
Two, the IAA noted that the applicant’s submissions, reportedly drafted, and signed, by the applicant, were written in the third person. Nonetheless, the IAA did have regard to these parts of the submissions that were comments (“objections”) to the delegate’s decision.
It did not have regard to those parts which: “…bear no relevance to the… delegate’s decision” ([9] at CB 126). For example, a part of the submissions made reference to acts of a: “…sexual nature such as the applicant’s treatments by the CID officers…”. The applicant made no such claim before the delegate or otherwise ([9] at CB 126).
The IAA, however, did have regard generally to the argument in the submissions regarding how to address the matter of credibility.
Three, the IAA did not have regard to the applicant’s statutory declaration. The IAA found this was not new information as it repeated claims and comments made previously by the applicant ([10] at CB 126).
Four, the IAA found that the TRA letter restated the applicant’s claims, and also his “newly advanced claims” concerning the liaison with the LTTE ([11] at CB 126).
It said it had regard to those parts of the letter that restated the applicant’s claims. However it found that: “for the same reasons [given] above…there are no exceptional circumstances that warrant…” having regard to the new information ([11] at CB 126).
Five, the letter referred to the applicant’s suffering from PTSD, and that the TRA was making arrangements to refer the applicant to the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) ([12] at CB 126).
The IAA found that although there was no evidence of a clinical diagnosis before it, it accepted that the applicant had consulted the TRA and that it was concerned about the applicant. Further, that he consulted the TRA after the delegate’s decision. The IAA accepted this was new information and had regard to it ([12] at CB 126). Further, that exceptional circumstances existed given that this concerned the applicant’s mental state.
Six, the submissions, statutory declaration and the TRA letter all made reference to country information. The IAA found this was new information and that it predated the delegate’s decision ([13] at CB 126).
Seven, the IAA had regard to the “criticisms” of the delegate’s decision contained in these documents and that the contention advanced in the criticisms constituted “new information” that warranted the IAA having regard to it.
However, the IAA found that the delegate did not rely primarily on DFAT (Department of Foreign Affairs and Trade) information that overlooked more current information on human rights as was alleged. The IAA found that the delegate had regard to a range of information, from a range of sources, which specifically referred to events relevant to the period 2009 – 2015. The IAA was therefore not satisfied that exceptional circumstances existed.
The Minister’s submissions comprehensively set out the IAA’s reasoning and relevant findings. Again no issue was taken with the factual aspects of this part of the Minister’s submissions (at [7] – [16]):
“7. The IAA noted that it had regard to the material referred by the Secretary under s. 473CB of the Act.
8. On 25 January 2017, the IAA received a submission from the Applicant comprising a written statement from the Applicant (submissions), a statutory declaration of the Applicant, and a letter dated 23 January 2017 from the Tamil Refugees Association (TRA letter).9
9. The IAA noted that the Applicant's submission sought to advance new claims, namely that:
(a)due to his role with the RDS he was involved with the civil administration of his village which required him to liaise with the LTTE (LTTE information); and
(b)although the war between the Sri Lankan army and the LTTE came to an end in the Vanni district, the influence and control of the LTTE remained in the western part of the Batticaloa lagoon until the end of 2011.10
10. The IAA noted that the Delegate had advised the Applicant at his SHEV interview of the importance of putting his claims forward, that he may not have a further opportunity to do so and that the IAA could only accept new information in exceptional circumstances. It further observed that the Applicant took the opportunity to provide updated contact details but did not seek to provide the LTTE information. The Applicant claimed that he did not divulge the LTTE information earlier as he was suffering Post Traumatic Stress Disorder (PTSD) during the SHEV interview and was concerned his application would be refused or the LTTE information given to the Sri Lankan authorities. The Applicant also stated he was concerned about the data breach by the Department. The IAA noted that at the end of the SHEV interview the Applicant was willing to put forward claims he had not made in his protection visa application about his sister's membership with the LTTE, sending money to the LTTE through the Applicant's account and of his fear of harm from paramilitary groups. It was not satisfied that exceptional circumstances existed to justify its consideration of the new information.11
11. To the extent the Applicant's submission related directly to his claims, circumstances and his objection to the Delegate's Decision, the IAA had regard to those parts. It also observed that parts of the submission had no relevance to the Applicant's claims, quoted text purporting to be from the Delegate's Decision but which did not appear in the Delegate's Decision and referred to claims of the Applicant asserted to affect his testimony but which were not made by the Applicant. The IAA therefore had no regard to those parts of the Applicant's submission.12
12. The IAA noted that the Applicant's statutory declaration largely restated his protection claims and repeated claims regarding the situation for Tamils in Sri Lanka which he advanced at the SHEV interview. Finding that this was not new information, the IAA had regard to it.
13. The IAA found that parts of the TRA letter restated the Applicant's claims and it had regard to that information. To the extent the TRA letter referred to the newly advanced claims of the Applicant in relation to his association with the LTTE, for the same reasons outlined above at [10], it found there were no exceptional circumstances that warranted it having regard to that new information.
14. In relation to those parts of the TRA letter stating that the Applicant was suffering from PTSD, the IAA noted that this was new information, that the Applicant had sought the assistance of friends after receiving the Delegate's Decision and therefore that it was not information before the Delegate and could not have been made available to the Delegate. Observing that the information went to the Applicant's mental state, the IAA was satisfied that there were exceptional circumstances to justify having regard to it.
15. Finally, the IAA noted that the Applicant's written submission, statutory declaration and the TRA letter referred to a range of country information which, with the exception of two reports, was new information which pre-dated the Delegate's Decision. The IAA was not satisfied that the Delegate relied "primarily on DFAT information" as contended by the Applicant or that the Delegate "overlooked more current information on human rights". It observed that the Delegate had regard to a range of information about human rights in Sri Lanka from a range of sources, including information from 2016. It noted that the country information referred to by the Applicant was information dated between 2012 to 2014 or otherwise referred to events dating from 2009 to 2015. The IAA was not satisfied that exceptional circumstances existed to justify having regard to the new country information.
16. The IAA found that the Applicant did not meet the requirements of either ss. 36(2)(a) or 36(2)(aa) of the Act.13 It made the following findings and comments in relation to each of the Applicant's claims:
(a) the Applicant's imputed LTTE affiliation or support: the IAA accepted that the Applicant grew up in an LTTE controlled area and had purchased merchandise in Australia on Martyr's Day in support of the LTTE.14 It also accepted that between 1994 and 1996 the Applicant travelled to army controlled areas for school. The IAA accepted that, during this time, the Applicant was twice stopped by army personnel, who assaulted him by grabbing his tie and were otherwise rough and intimidating.15 However, the IAA did not accept that his sister was a member of the LTTE or that LTTE agents in Saudi Arabia transferred funds from his account to his sister's account.16 The IAA found that the Applicant's claims that he and his family were subsequently harassed by the Sri Lankan authorities and associated militias to be "not plausible" and suffered from "internal inconsistencies".17 Nor did it accept that the Applicant was the Secretary of the RDS;18
(b) the Applicant's participation in an anti-greaseman protest: the IAA did not accept that the Applicant had personally witnessed any greasemen attacks, or been involved in planning the anti-greasemen protest.19 The IAA accepted that the Applicant had attended such a rally, and was photographed in attendance.20 However, the IAA found that the Applicant had "embellished" his involvement in the protest to enhance his visa claims. It found that the Applicant's low-level involvement in the protest would be insufficient to attract the attention of the Sri Lankan authorities;21
(c) serious harm inflicted due to the Applicant's Tamil ethnicity: the IAA accepted that the Applicant had a subjective fear of being harmed due to his Tamil ethnicity, including harm from Buddhist groups. However, it found those fears were not well founded.22 The IAA relied upon country information to find that the circumstances faced by Tamils in Sri Lanka had changed significantly in recent years.23 The IAA found that while some risk of harm remained, it did not rise to the level of a real chance of harm;24
(d) the Applicant's status as an illegal departee: the IAA accepted that on return to Sri Lanka the Applicant would be considered by the Sri Lankan authorities to be a failed asylum seeker who departed Sri Lanka illegally. It observed that entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (I&E Act). It accepted that the Applicant would likely be questioned and arrested at the airport, held in an overcrowded and unsanitary prison for a short time, released on bail, and ultimately fined.25 However, it found that this would not constitute the relevant harm under either s. 36(2)(a) or s. 36(2)(aa) of the Act. The IAA further observed that all persons who depart Sri Lanka illegally are subject to the I&E Act on return and that it is not discriminatory on its terms nor, based on the evidence, selectively enforced or applied in a discriminatory matter. Accordingly, the IAA found that the investigation, prosecution and punishment of the Applicant under the I&E would be the result of a law of general application and did not amount to persecution for the purposes of ss. 5H(1) and 5J(1) of the Act; and
(e) the Applicant's status as a failed asylum seeker: the IAA noted that there was no indication on the evidence before it that the Applicant's status as an asylum seeker would bring him to the adverse attention of the Sri Lankan authorities upon his return to Sri Lanka.26 It did not accept that the Applicant had the profile of a Tamil with actual or imputed links with the LTTE and was not satisfied that there was a real chance the Applicant would face harm as a returning Tamil asylum seeker.”
[Footnotes Omitted.]
Before the Court
Orders were made, by consent, on 21 June 2017 by a Registrar of this Court setting out a timetable for the filing of documents. Relevantly, those orders provided that the applicant was to file and serve any affidavit containing additional evidence to be relied upon (including any transcript of a Tribunal hearing), and any amended application, by 3 August 2017. Further, that the first respondent was to file and serve any evidence by way of affidavit by 24 August 2017. Orders made by a Registrar of this Court on 10 May 2018 amended the timetabling dates set out in the 21 June 2017 orders, extending the time for the applicant to file and serve an amended application to 18 May 2018. Despite the extension of time granted, an amended application was not filed until 21 May 2018.
On 22 September 2019 the applicant attempted to file and serve, by way of email, a further amended application, dated 27 August 2019, which varied the grounds of the originating, and amended, application. On 30 September 2019 the Minister consented to the filing and service of this “amended application” (see Minister’s written submissions at [4]).
On 2 October 2019, the applicant filed a yet further amended application. This, however, appeared to be a copy of the 21 May 2018 amended application, as it attached the Court’s 21 May 2018 electronic filing notice. No further affidavit has been filed by the applicant.
The applicant’s application to the Court contained three grounds. He subsequently filed an amended application on 21 May 2018 with written submissions drafted by Mr Ben Zipser of counsel. These grounds are in the following terms:
“1. Following the decision of the Minister’s dated 23 December 2016, the applicant provided further information to the Immigration Assessment Authority (“the IAA”), some of which was “new information” within the meaning of s 473DD of the Migration Act 1958 (Cth). The IAA, in considering s 473DD, found at paragraph 8 of its decision that it was “not satisfied that any exceptional circumstances exist that justify considering the new information” and at paragraph 11 that “there are no exceptional circumstances that warrant the IAA having regard to the new information regarding liaison with the LTTE”. The IAA, in making these findings, misconstrued s 473DD in a manner which involved jurisdictional error.
2. The applicant claimed a fear of persecution by Buddhist monks. The IAA failed to address this claim. This was a jurisdictional error.
3. The IAA was "not convinced" (at [26], [28] and [33]) by aspects of the applicant's claims concerning past events. In the circumstances, the IAA "must take into account the possibility that the alleged past events occurred even though it finds that those events probably did not occur": Minister v Rajalingam (1999) 93 FCR 220 at [60]. The IAA failed to take this possibility into account, which involved an erroneous application of the real-chance test and jurisdictional error.
4. The Minister’s delegate accepted a claim by the applicant that he was the secretary of the local RDS: see page 84 of the Court Book. The IAA, in contrast, did not “accept that the applicant was the Secretary of the RDS in his village”: at paragraph 25. It was legally unreasonable for the IAA to make this finding without giving the applicant an opportunity to comment.”
The applicant also subsequently filed a document headed “additional grounds of application”. These are in the following terms:
“1. The Immigration Assessment Authority (hereinafter referred to as the Authority) made a jurisdictional error of legal unreasonableness.
Particulars:
a. The Authority must not impose arbitrary standards of conduct on or in relation to the Applicant: BWC16 v Minister for Home Affairs [2018] FCA 1375 at [59] per Thawley J;
b. The Authority found at [paragraph 25] of its decision that it did not accept the Applicant had been Secretary to the Rural Development Society in his village;
c. The basis for the Authority’s finding was that when questioned as to the role of the Secretary, the Applicant’s response was basic;
d. The Authority arbitrarily rejected the Applicant’s standard of knowledge in relation to the role of Secretary without identifying what knowledge of the role the Applicant would properly have in the circumstances.
2. The Authority made a jurisdictional error of legal unreasonableness including by identifying inconsistency without appropriate caution or a relevant justification.
Particulars:
a. The Authority could not make a finding of law or fact for which there was no evident and intelligible justification (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [82]) and which was material to the Tribunal’s decision (Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31]);
b. The Authority is required to show caution in identifying inconsistencies in evidence: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [21]-[28].
c. The Authority failed to observe these restrictions at [paragraph 31] of its decision as there was less inconsistency between the various accounts of the Applicant than the Authority identified, especially the statements in the SHEV application and the second statement at the SHEV interview.”
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Tamil language. The applicant confirmed that he wanted to press the grounds of the amended application and as those were explained in submissions drafted by counsel, who apparently assisted him only for that limited purpose. He said he relied on the submissions drafted by counsel.
The applicant also sought to press the grounds set out in the document headed “Additional Grounds of Application”. He explained that he had been assisted in the drafting of those grounds by a “friend”, who was also a law student. Contrary to the applicant’s initial claim that he had prepared these grounds (with assistance) it became clear when asked to make submissions on the grounds, he had little or no understanding of what his friend had drafted for him.
The Court explained to the applicant the nature of these proceedings. In spite of this, he made various submissions along the lines that he would face harm if returned to Sri Lanka. At best, these sought impermissible merits review, and did not indicate jurisdictional error in the IAA’s decision.
Consideration
Ground one of the amended application asserts error in the way the IAA construed and applied section 473DD of the Act.
In particular, the ground takes issue with [8] (at CB 125 – CB 126) and [11] (at CB 126) of the IAA’s decision:
1[8] “The applicant contends that he was suffering Post Traumatic Stress Disorder (PTSD) during the SHEV interview and that he did not divulge this information earlier as he was concerned his application would be refused, or that the information could be given to the authorities in Sri Lanka, and he was concerned about the data breach by the Department of Immigration and Border Protection. However, I note that at the end of his SHEV interview the applicant was willing to put forward claims he had not made in his SHEV application about his sister’s short term association with the LTTE, sending money from Saudi Arabia to the LTTE in Sri Lanka through his bank account, and claims to fear harm from paramilitary groups. I note that the claimed PTSD and fear of having his application refused or information passed to Sri Lanka authorities did not prevent the applicant putting forwarding these sensitive claims at his SHEV interview. I am not satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.”
2[11] “In part the TRA letter restates the applicant’s claims, and the newly advanced claims regarding liaison with the LTTE, and is critical that “the delegates in protection applicants had relied primarily on DFAT country information” without making specific reference to the delegate’s findings in the applicant’s case. I have had regard to the parts of the letter that restates the applicant’s claims. For the same reasons as above I find that there are no exceptional circumstances that warrant the IAA having regard to the new information regarding liaison with the LTTE.”
The applicant’s written submissions (drafted by counsel) identify the impugned findings by the IAA as relating to the applicant’s claimed connection with the LTTE (with reference to [6] – [8] of the IAA’s decision record) and the letter from the TRA (with reference to [11] of the IAA’s decision). This also concerned the LTTE connection claim.
The following may immediately be said about the applicant’s ground, and the submissions in support of it.
One, the ground takes issue with the IAA’s findings (at [8] and [11]) but the submissions do not satisfactorily explain how this amounted to a misconstruction or misapplication of s.473DD.
Two, this may be because the ground and the submissions are selective in the authorities on which they rely, and do not understand the proper construction of s.473DD of the Act.
Contrary to what is at least implicit in the applicant’s argument, s.473DD of the Act is not some statutory mechanism to enable an applicant, in the current circumstances, to give new information, or make new claims before the IAA
To the contrary, the clear statutory intention of s.473DD of the Act, or the “primary rule” to be found there, is that the IAA must consider the review material provided to it pursuant to s.473CB of the Act, but it must not accept or request new information unless the circumstances in s.473DD(a) and (b) are met. (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“M174”) per Gageler, Keane and Nettle JJ at [22]).
The exceptions to the “primary” position are to be applied in the narrow circumstances dictated by s.473DD(a) and (b) (BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 (“BZC17”) per Mortimer J at [52]).
The applicant’s submissions make no reference to this High Court authority or to BZC17.
The submissions rely on BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (“BVZ16”) at [39] – [48], CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 (“CHF16”) at [44] and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (“BBS16”) at [102] – [112]. Although the submissions set out quotes from these cases, the IAA’s claimed error is not satisfactorily explained. At best, the complaint appears to be that the IAA adopted a “too narrow” approach to s.473DD of the Act.
Section 473DD is in the following terms:
SECT 473DD – Considering new information in exceptional circumstances
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.
As is clear, there are three pre-conditions to the IAA being satisfied that exceptional circumstances exist (s.473DD(a) and (b)(i) or (ii)). In this circumstance, given the cumulative nature of (a) and (b), at least two of the three preconditions must exist. That is (a), and (b)(i) or (ii) (M174 at [31], [78], [100], and BBS16 at [102], and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 (“AQU17”) at [13]).
Given the cumulative requirements as between (a) and (b) then, if on the evidence, either (a) or (b) is not met, then this is sufficient to mean the exception to the primary rule is not triggered. (AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 (“AUH17”) at [33], BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 (“BRA16”) at [26]).
Nor is there any requirement that (a) must be considered before (b). If (b) is not met, in either of the alternatives at (i) or (ii), then there is no need for the IAA to consider (a).
At best, the applicant’s complaint in ground one appears to be that the IAA’s approach was too narrow because it considered only the fact that the applicant was able to have provided this information (as referred to at [8] and [11]) prior to the delegate’s decision.
What is missing in the applicant’s argument, as expressed in the submissions, is why, given the statutory requirement set out above, this constituted legal error on the part of the IAA.
As was, with respect, explained by the High Court, what are considered to be “exceptional circumstances” for the purposes of s.473DD(a) involves an evaluative judgement by the IAA (M174 at [75]). Further, in DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 (“DYS16”) the Full Federal Court expressed the view that s.473DD(a) does not require the IAA to be satisfied of any particular fact (at [17]).
As was, with respect, also made clear in AUH17, each case must be considered on its own merits (at [32]). There is no particular form or format that the IAA is required to adopt to properly and lawfully fulfil its obligation in regard to s.473DD of the Act.
In the current case, neither the terms of ground one, nor the submissions in explanation of it, reveal jurisdictional error in the IAA’s impugned findings, or its consideration in making those findings.
As is set out above, the IAA was not satisfied that exceptional circumstances existed to warrant consideration of the new material submitted by the applicant in circumstances where the delegate had put the applicant on notice of the importance of advancing all of his claims at that time, and the possible consequences of not doing so.
As also set out above, the applicant did advance some new claims at the interview with the delegate (concerning his sister’s claimed membership with the LTTE), but did not advance the matter of his own claimed involvement.
On what is before the Court, and on a proper understanding of s.473DD as explained by the High Court and the Federal Court, there is no jurisdictional error in the IAA’s approach as claimed in ground one.
The ground is itself deficient in explaining the legal error in light of the statutory requirements. As the Minister submits, this makes it difficult to engage meaningfully with the ground. This of itself is sufficient to dismiss this part of the application (WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35], SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 (“SZNXA”) at [21] and BQN16 & Anor v Minister for Immigration & Anor [2019] FCCA 481 (“BQN16”) at [4]).
In any event, the ground is not made out because, as set out above, on the evidence, the IAA did not misconstrue or misapply s.473DD of the Act.
Ground two asserts that the IAA failed to address a claim made by the applicant that he feared persecution by Buddhist monks.
The submissions explain that the applicant made “a clearly articulated claim” (to fear harm from Buddhist monks) and the IAA failed to consider this in the sense as explained in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE”).
The applicant’s submissions make reference to various parts of the IAA’s decision record ([37], [38] – [42], [43], [44] – [51] and [53] – [59] to argue that the IAA did not consider the claim in the requisite sense, or did not consider it at all.
The submissions note that the applicant is a Hindu (see item 18 at CB 6) and that at [15] the IAA noted that the applicant made, amongst others, the following claim (last dot point at [15], CB 128):
“● The applicant fears that Tamils have no rights and Sinhalese people and Buddhist monks are able to act with impunity in mistreating Tamils. At his SHEV interview he cited accounts of torture and mistreatment of Tamils and showed the delegate multi-media clips on his telephone. He fears he has been imputed as having links to the LTTE and he will be followed by the authorities after leaving the airport in Sri Lanka and harmed.”
The applicant relies in his written submissions, in explaining the ground, on the IAA’s description. For current purposes, therefore, it must be taken that the applicant agrees with the IAA’s description of his claim relating to Buddhist monks.
The description appears to be consistent with what the applicant stated in his written submissions to the IAA (see [2] and [3] at CB 102) and in his statutory declaration (see [15] a CB 109).
The applicant’s submissions to the Court directed attention to [37] of the IAA’s decision record (at CB 132):
“37. I accept that as a Tamil the applicant has a subjective fear of arrest, detention, disappearance and mistreatment at the hands of the Sri Lanka authorities. I have noted his comments about militant Buddhist monks seeking to spread the influence of Buddhism since the end of the war and I accept that radical Buddhist groups have harassed and violently attacked the minority Hindus and Muslims on occasions, and I accept that law enforcement agencies were not responsive to complaints from the Tamil population about greasemen attacks in 2010/2011. I note his concern that the Sri Lankan authorities view Tamils with suspicion and with being linked to the LTTE and I accept that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils, and the recent reports from Freedom From Torture and the International Truth & Justice Project5 are amongst those that detail claimed abuses. However, I find that country information does not support this fear as being well-founded.”
[Footnote Omitted.]
Given the applicant’s argument now, and what the IAA recorded at the last dot point of [15] (at CB 128), it is important to note what the applicant actually claimed in his submissions to the IAA (see at CB 102 – CB 109):
1 “[2] Bodu Bala Sena (BBM) a militant Buddhists Monks Force (aka Buddhist Power Force) after the war officially ended in 2009 in Sri Lanka, started a campaign of violence erecting Buddhist Stupas (statues) and shrines, demolishing existing Hindu temples and shrines, attacks on Hindus, Christians and Muslims.
[3] It is evident from the Sri Lankan government’s reluctance to take any actions against these militant Buddhist Monks and they carry out their agenda unabated and claim that Sri Lanka belongs to only Sinhala Buddhists and all other minority are illegal arrivals and must get out,. President Maithripala Srisena also in a speech on 27 November 2016 at the Vidyasagara Temple in Kandy said that as a strong Buddhist he will respect all the Articles in the Constitution regarding Buddhism in protecting and enhancing Buddha Sasana and pledged to give all the government support and funds for the Buddhist Temples and Buddhist religious schools (Buddha Dharma Schools) and for the Buddhist monasteries.”
2 “[15] Bodu Bala Sena (BBM) a militant Buddhist Monks Force (aka Buddhist Power Force) after the war officially ended in 2009 in Sri Lanka, started a campaign of violence erecting Buddhist Stupas (statues) and shrines, demolishing existing Hindu temples and shrines, attacks on Hindus, Christians and Muslims and claims that they have the support of the Sri Lankan Armed Forces and the police.”
To properly understand this claim, regard must also be given to the context in which the submissions were made to the IAA, to [4] (at CB 102) of the applicant’s submissions to the IAA, and the parts of the delegate’s decision which are the subject of these submissions.
As set out above, the applicant’s submissions to the IAA sought to criticise the delegate’s decision in various ways. In relation to [2] – [3] (at CB 102) (on which the applicant now relies) the relevant heading in the delegate’s decision is: “Recent development of violence and unrest in the North and East of Sri Lanka”.
At [4] of his submissions to the IAA the applicant stated (at CB 102):
“4. Under the Heading Targeting Tamils in the north and east, the delegate failed to look into the information:
“…local police reportedly conduct surveillance of Hindu individuals and temples suspected of supporting the LTTE or advocating for an international war crimes tribunal.1”
[Footnote Omitted.]
What is immediately apparent is that there is no such heading in the delegate’s decision. Nor is the annual report (“USCIRF [United States Commission on International Religious Freedom] Annual Report 2015”) referred to in the footnote to [4], or referred to in the delegate’s decision. It would appear, therefore, that this is yet another example of what the IAA found that some parts of the written submissions: “…bear no relevance to the applicant or the delegate’s decision; the submission quotes text purporting to be from the delegate’s decision which do not appear in the delegate’s decision…” ([9] at CB 126).
In all, therefore, there is no evidence that the applicant ever claimed before the delegate that he feared harm from Buddhist monks. The delegate’s summary of the applicant’s claims contain no reference to this (CB 80 – CB 81). Nor does the applicant’s written statement of claims to the delegate (see CB 58 – CB 65).
In his written submissions to the IAA, the applicant made reference to the Buddhist monks, as set out above. In the circumstances, the highest that the Buddhist monk matter rose was that the applicant claimed that as a Tamil he had no rights, and that Buddhist monks (and Sinhalese people) were able to act with impunity.
The IAA’s reference at the last dot point of [15] of its decision record to what the applicant relevantly said at the SHEV interview relates to Tamils generally and not as the applicant’s submissions to the Court now assert, that this aspect of the claim related specifically to Hindus.
At [37] (at CB 132), therefore, the IAA properly considered the Buddhist monk matter in the context in which it arose, and consistent with the relevant statutory scheme.
That is, the applicant’s relevant claim to fear harm as it emerged before the delegate, was that he feared harm as a Tamil from the Sri Lankan authorities.
Given that the Buddhist monk matter was subsequently raised by the applicant in his written submissions and statutory declaration to the IAA, after the delegate’s decision, the IAA correctly, and properly, noted that the applicant had made that submission to it, and in the context in which it was made.
That is, it accepted that: “…Buddhist groups have harassed and violently attacked…” minority groups (of which the applicant was a part) ([37] at CB 132).
It is also to be noted that part of the applicant’s claim to fear harm, as put before the delegate, was that the Sri Lankan authorities and law enforcement agencies were not responsive to attacks on Tamils by “grease men”. (See for example [24] at CB 61).
In short, what the IAA was required to consider (in the relevant statutory context as set out above in relation to s.473DD of the Act) was the claim to fear harm from various groups in circumstances where there was an absence of protection by the Sri Lankan authorities, if not their support for these attacks.
While the IAA accepted aspects of this claim, it found that this fear was subjective, but not objectively well-founded. It relied on country information to which it referred in reaching that conclusion.
In his written submissions to the Court, the applicant asserts that the reference in the last sentence of [37] of the IAA’s decision (see [65] above) to “this fear”, is a reference to the “subjective fear”, as set out in the first sentence of [37] (at CB 132).
I agree with this characterisation of the IAA’s reasoning. However, the reference to the “subjective fear” in the first sentence of [37] is, on the evidence, an accurate description of the applicant’s claim to fear harm.
That is, he feared harm from the Sri Lankan authorities, in part, relevantly, because they allowed Sinhalese people, including Buddhist monks, to harass Tamils with impunity.
As set out above, that was the claim as made. That is, the claim the IAA addressed and considered. The applicant’s ground and submissions seek to present the “Buddhist claim” absent the context, as set out above, in which this matter was raised.
The applicant’s submissions also complain that the IAA did not consider the “Buddhist claim” when considering the criterion at s.36(2)(aa) of the Act.
While it is the case that under the complementary protection heading of its decision record the IAA makes no reference to Buddhists or Buddhist monks, the IAA was not required to repeat under that heading the factual findings, or the reasoning which led to them, as set out earlier in its decision record (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (“SZSGA”) and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (“SZRKT”)).
The IAA found (for reasons given) that the applicant’s subjective fear, as set out above, was not well-founded. It explained why it reached this conclusion. There is no legal error apparent in the IAA’s reasoning at [55] (at CB 136) (dealing with complementary protection). It’s reliance on SZQRB v Minister for Immigration and Citizenship [2012] FCA 1053 (“SZQRB”) was appropriate. Ground two is not made out.
Ground three asserts that the IAA failed to take into account the possibility that certain past events had occurred. The submissions directed attention to [26] – [28], [34] (at CB 130 – CB 131) of the IAA’s decision record.
In essence, the applicant’s argument is as follows. The IAA repeatedly used the phrase “not convincing” when assessing certain evidence before it. These involved claimed attacks by “greasemen” whom the applicant claimed to have witnessed committing atrocities, and the applicant’s claimed involvement in a protest after these attacks.
The applicant argues that this phrase connotes “a strong element of uncertainty” and real doubt. The IAA was required in that circumstance to take into account the possibility that these alleged past events had occurred (with reference to Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [60], and see also [62] – [63], [67]).
It is the case that the assessment as to whether a claim to fear of harm is well-founded, involves questions of degree. That is, what is involved is a weighing and analytical process leading to findings of fact (Minister forImmigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) at 575).
There is no obligation on the decision maker to give the applicant, in all cases, what is referred to in the “Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees”, as the “benefit of the doubt” (see “UNHCR handbook” at [203] – [204]).
However, if a finding as to a claimed past event, or a future event, is not made with sufficient confidence, then the alternative must be considered.
As was, with respect, explained in Guo, the real chance of a claimed event, or future event, having occurred, or occurring, involves a degree of probability. If a decision maker finds, therefore, in respect of such matters that such an event has probably not occurred, in the sense that it is more probable than not, then the alternative must be considered (Guo at 576, Abebe v The Commonwealth [1999] HCA 14 at [83]). That is what is commonly referred to as the: “What if I am wrong test” on which the applicant now relies (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 293).
The question therefore raised by the applicant’s ground is were the impugned findings (as set out above) made by the IAA, made without sufficient confidence such as to oblige it to consider the alternative.
As set out above, in essence, the applicant’s ground relies on the repeated use by the IAA of the phrase “not convinced”. The applicant’s submissions do not satisfactorily explain why this phrase, of itself, connotes some degree of probability lesser than that required so as to engage the “what if I am wrong” question.
The specific impugned findings made by the IAA are that the IAA said it was “not convinced” as to the applicant’s claim that the greasemen attacked his village in 2011, by his claimed involvement in a protest against these attacks, and the claimed subsequent interest in the applicant by the authorities as a result of this.
The phrase “not convinced” does not infer some doubt. Rather, it is an acknowledgement that in making its findings of fact, the IAA was required to evaluate and weigh the evidence, and reach a requisite or sufficient state of satisfaction that the past event, or future event, has, or will, or has not, or will not, occur.
Further, and as the Minister submitted, when this phrase is fairly read in the context in which it variously appears (at [26] – [34] at CB 130 – CB 131 and [43] at CB 134) there is no doubt that, for the reasons given, the IAA did not accept that the applicant’s claims of past events had occurred. In all, ground three is not made out.
Ground four was not pressed.
Ground one of the additional grounds, in essence, asserts that the IAA’s rejection of the applicant’s claim to have been the Secretary of the Rural Development Society (“RDS”) in his home area was unreasonable and revealed jurisdictional error.
The particulars to the ground are not helpful in explaining it. In essence the argument appears to be that the basis for the IAA’s rejection of this claim was that when questioned about this by the delegate, the applicant’s response was “basic”.
The ground relies on BWC16 v Minister for Home Affairs [2018] FCA 1375 (“BWC16”) at [59] to advance the argument that the IAA imposed an arbitrary standard of conduct on the applicant, and in that context rejected the applicant’s knowledge of the role of Secretary of the RDS, but did not explain what knowledge of the role of Secretary was required.
I agree with the Minister that the applicant’s reliance on BWC16 does not assist him in the circumstances of this case.
In BWC16 the legal error arose out of a fundamental error in a finding of fact. In short, the decision maker in that case found that the applicant had made a statement that he was not aware of the history of the political party to which he claimed a connection, when in fact no such statement had been made (BWC16 at [57]).
In this case no such factual error is apparent. The IAA assessed the applicant’s own evidence about his role as the Secretary of the RDS, given at the interview with the delegate. It found, based on that evidence, that the applicant was unable to describe his role in detail. That is, his response to the questions asked was “basic” ([25] at CB 130). The IAA’s finding here was reasonably open to it on what was before it.
Contrary to the assertions in the applicant’s additional ground one, the IAA’s finding was supported by probative material. Nor did it impose some arbitrary standard of what conduct was required by a Secretary of the RDS.
The applicant’s additional ground one contains a number of assertions. The particulars to it do not assist in actually relating the assertions to the IAA’s decision. Before the Court, the applicant was unable to satisfactorily explain what his friend, the “law student”, had drafted for him.
What remains, therefore, is that the applicant’s ground really seeks to challenge a factual finding made by the IAA which was reasonably open to it, probative of the evidence, and for which it gave intelligible reasons. Additional ground one is not made out.
Additional ground two also asserts legal unreasonableness on the part of the IAA. The ground appears to take issue with the IAA’s finding that certain parts of the applicant’s evidence were inconsistent
The ground directs attention to [31] of the IAA’s decision (at CB 131):
“31. In his SHEV application he stated that his mother could not “identify them as they were wearing helmets”. When asked about claimed later visits and if they were the same men the applicant initially responded yes they were, but that were wearing different clothes. At a later point the applicant stated that his mother could not say if they were the same men, that they may be or they may not be. I am concerned by the applicant’s responses at his SHEV interview; they are not plausible when considered against his SHEV application statement that his mother could not identify the men who made the initial visit because they were wearing helmets.”
In short, the complaint is that the IAA made a finding of fact for which there was no evident and intelligible justification. In particular, the IAA in making this finding failed to observe the relevant “caution” or “restrictions” set out in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (“AVQ15”).
While the applicant’s ground refers to [21] – [28] of AVQ15, the following is sufficient to dispose of this additional ground (at [28]):
“28. Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.”
The subject of the IAA’s “concern” (as set out at [31] at CB 131) were the inconsistent accounts the applicant gave in his visa application and at the interview with the delegate as to the claimed visits by unknown men to his family home. The applicant raised this matter to support his claim that he was of ongoing interest to the Sri Lankan authorities.
Plainly the IAA is required to make findings of fact explained by an evident and intelligible justification (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) – especially at [10] and [82]). That part of the applicant’s argument is accepted.
However, the applicant’s reliance on AVQ15 appears to not understand what was actually, and relevantly, said in that case. I respectfully understood that part of AVQ15 relied on by the applicant now to not be necessarily directed to the making of findings of inconsistency (such findings of course must be subject to what is set out at [115] above).
Rather the focus was, for example, on the evaluation process once such a finding, or findings, had been made. That is, the significance of the inconsistency, the weight to be assigned to it, and its centrality or otherwise to the case before it.
On the evidence before the Court, and in considering the IAA’s decision record in its totality, the IAA did exercise the “caution” as explained in AVQ15.
The IAA accepted the difficulties faced by the applicant in: “…recalling exact dates after a passage of five years”. (See at [30] which immediately precedes the impugned [31] at CB 131). Further, the IAA adopted an evaluative approach to this issue and took into account the applicant’s explanations (see at [33], CB 131).
Nor were the inconsistencies the only factor which led the IAA to not accept that the authorities came to his family home. As set out at [34] (at CB 131) the IAA’s finding was also informed by implausible aspects of the applicant’s evidence and his “low level” involvement in the 2011 protest, which he said led to the interest by the Sri Lankan authorities in coming to his family home.
I do not, respectfully, understand what was said in AVQ15 to be that the IAA is unable to have regard to inconsistencies in an applicant’s evidence, as the applicant’s ground appears to imply.
Rather, in my respectful view, AVQ15 requires a balanced and reasoned approach to the evaluation of such inconsistencies, and the weight to be accorded to them in the totality of the assessment of the applicant’s claims.
On the evidence, the IAA did not fail to apply this caution. In essence, the applicant’s ground is an attempt now to take issue with the fact that the IAA found such inconsistencies. Additional ground two does not reveal jurisdictional error.
Conclusion
None of the grounds of the amended application, nor the additional grounds, reveal jurisdictional error in the IAA’s decision. It is appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 5 November 2019
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