BCQ17 v Minister for Immigration

[2018] FCCA 3196

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3196

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority erred in its consideration of new information – whether the Immigration Assessment Authority’s findings were open to it – whether the Immigration Assessment Authority exercised its discretion to consider new information according to law – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.430, 473BC, 473DD, 473DE, 473EA, 473GB, 476

Cases cited:

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006]

FCAFC 29

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Stretton [2016] FCAFC 11

Kaur v Minister for Immigration and Border Protection [2016] FCA 132

Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33

Applicant: BCQ17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSSESSMENT AUTHORITY

File Number:   SYG 785 of 2017

Judgment of: Judge Emmett

Hearing date: 6 November 2018

Date of Last Submission: 6 November 2018

Delivered at: Sydney

Delivered on: 5 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Geoffrey Foster

Solicitors for the Applicant: (Sentil Solicitor & Barrister)

Counsel for the Respondents: Mr Hamish Bevan

Solicitors for the Respondents: (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 785 of 2017

BCQ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application, filed on 16 March 2017, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 20 February 2017 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”), made on 7 September 2016, refusing the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

2. The applicant’s background and a summary of the Delegate and Authority’s decision are accurately summarised in the submissions of the first respondent, as follows:

   “Background

   4. The applicant is a citizen of Sri Lanka from a province in the east of that country, and is of Hindu faith and Tamil ethnicity.

   5. In a written statement that formed part of his application for a protection visa (CB 74-75), the applicant claimed that two of his uncles were killed because they were suspected of having links with the LTTE. He claimed he was forcibly taken by the LTTE for one week in 1997 and forced to work for the LTTE. After he returned, he claimed he was arrested by the Special Task Force (or STF) and taken to a camp where he was detained, interrogated and mistreated for three days. After this, he claimed he was further detained for three months in a camp, before being transferred to several prisons until he was released in December 1999.

   6. The applicant claimed that, after he returned to his home district for several months in 2000, the STF came looking for him and caused damage when he was not found. He then moved to Colombo, staying with his sister in a suburb of that city.

   7. He then claimed that, in 2006 when there were signs of war, he registered with the police. He said the police then came looking for him.  He became fearful and so departed for Malaysia in May or June 2006, where he remained before travelling to Australia in 2012. He fears he will be harmed on account of his suspected links to the LTTE.

   8. The applicant participated in an interview on 6 September 2016 (CB 85-87; CB 94.1).

   9. The delegate refused the applicant’s visa on 7 September 2016 (CB 88-103).

   10. The delegate accepted the applicant’s factual claims (see, e.g., CB 94.1, and the summary at 95.9–96.4). Nevertheless, in the light of country information about Sri Lanka, the delegate did not accept that the applicant faced a real chance of persecution in Sri Lanka because the applicant did not have a profile of ongoing interest to the Sri Lankan authorities. The delegate concluded as follows (CB 99.7):

   “The security situation in Sri Lanka in general and Colombo in particular has greatly improved since the end of the war.  As noted while he was detained between 1997 and 1999 he was subsequently cleared of any LTTE involvement.  Neither the applicant, nor any member of this family has had any LTTE involvement.  Considering all of the above, I find that any chance that the applicant would face serious harm on account of having been detained under the PTE [sic; scil. PTA, for Prevention of Terrorism Act] is remote, rather than real.”

   11. The delegate also found that there is no real chance that he faced harm for being a failed (Tamil) asylum seeker or returnee (CB 101.3), and similarly rejected his claims under the complementary protection criterion (CB 101-102).

   12. The applicant was referred to the Authority (CB 105-110). A submission, prepared by a migration agent, was provided to the Authority on 7 October 2016 (CB 117-122), followed on 11 October 2016 by a brief further submission and short statutory declaration from the applicant (CB 123-126).

   13. On 20 February 2017, the Authority affirmed the delegate’s decision (CB 131).

   14. The Authority turned first to the information before it (CB 132 [3]-[8]).

   15. The Authority noted that the submission in part responded to the issues arising from the delegate’s assessment. As to the applicant’s statutory declaration, the Authority noted that the applicant asserted that his statement “did not sufficiently expand on the problems he experienced while living in Colombo” but that neither the submission nor the statutory declaration “outlines any inaccuracies or new information, including in connection with the period between 2000 and 2006” (CB 132 [4]).

   16. The Authority then turned to country information. The Authority accepted that there were exceptional circumstances for it to consider a news article that post-dated the delegate’s decision (CB 132 [6]), but it rejected a report that was available before the delegate’s decision (CB 132 [7]).

   17. The Authority identified that it had regard to new information, which it obtained, “specifically information on the requirement of Sri Lankans of Tamil ethnicity to register with the police” (CB 133 [8]). The Authority explained that it considered it necessary to get that information because there was “insufficient information before [it] regarding the registration requirement for [it] to be able to properly assess the claim”. It was satisfied that there were exceptional circumstances to consider the new information. The Authority also identified that the country information it obtained fell within the exception in s 473DE(3)(a) so that the obligation to give particulars to the applicant did not arise.

   18. The Authority similarly accepted the applicant’s claims in relation to his experiences in Sri Lanka up to the time in 2006 in which he claimed to have registered with the police and then experienced difficulties (see CB 134 [12]-[20]).

   19. The Authority then considered the claim relating to the registration with police (CB 136 [21]-[25]). It first set out the applicant’s evidence, including as to when he was visited by the police after he registered and the date of his departure for Malaysia in May or June 2006 (CB 136 [21]).  The Authority noted that the country information revealed that the “Sri Lankan authorities first detailed the registration procedures for Tamils in a press conference on 30 June 2006” (CB 136 [23]). The Authority considered that the discrepancies in the applicant’s evidence were “not insignificant” but, more importantly, that his claim to have come to the adverse attention of the police following his registration, was “not supported by the applicant’s own evidence and country information” (CB 136 [24]).

   20. The Authority was not satisfied that the applicant registered with the police in Colombo, as he claimed (CB 137 [25]).  The Authority:

   a) did not accept that it was plausible that he registered with police in response to the government’s announcement as, on his own evidence, he was living in Malaysia at the time;

   b) did not accept that it was plausible that he registered with police prior to the government’s announcement;

   c) noted that he obtained his passport in 2005 which “indicates he was planning on leaving Sri Lanka prior to the claimed events of 2006”;

   d) found that his ability to obtain a “government issued passport” in 2005 was “indicative that he was not a person who was of adverse interest to the Sri Lankan authorities as claimed”;

   e) did not accept either that he registered with the police in Colombo prior to his departure to Malaysia in May or June 2006, or that he police attempted to visit him, or that he was living in hiding for one month before departing Sri Lanka;

   f) accepted that he was able to depart Sri Lanka legally without difficulty but did not accept his claim that he required the assistance of an agent to do so;

   g) accepted that the applicant may have been of interest to the STF following his release from prison (in 1999) but it was not satisfied that, at the time of his departure 2006, he had an adverse profile for reason of an imputed association with the LTTE or for any reason;

   h) rejected his associated claims that the authorities continued to visit his home in Colombo while he was in Malaysia.

   21. The Authority then rejected a claim that the applicant had been granted refugee status by the UNHCR in Malaysia (CB 137 [27].

   22. After referring to country information about Sri Lanka (CB 138 [28]-[30]), the Authority referred to its earlier findings about the applicant’s profile and concluded that “he is not a person that country information suggests faces a real chance of serious harm by virtue of his Tamil ethnicity or on account of any actual or imputed LTTE connections” (CB 138 [30]).  The Authority rejected the applicant’s claims to be a refugee for these reasons (CB 138 [31]).

   23. The Authority was not satisfied that the applicant faced a real chance of serious harm for being a failed asylum seek returned from Australia, who has spent a significant period abroad (CB 138 [32]-[36).

   24. For similar reasons, the Authority also rejected the applicant’s claims under the complementary protection criterion (CB 140 [39]-[43]).”

3. The applicant was represented this morning by Mr Geoffrey Foster, of counsel.

4. By consent, leave was granted to the applicant to rely on a Further Amended Application filed in Court. The applicant withdrew reliance on Grounds 2, 3 and 4, and the matter proceeded on the issues raised in Ground 1. 

5. Ground 1 of the Further Amended Application is as follows:

   “GROUND 1

   1. The IAA erred in making adverse findings of credit against the applicant when it purportedly relied upon country information, said country information not being disclosed in the decision except by way of footnote, and which were accordingly unable to be verified; and/or by taking into account irrelevant considerations or failing to take into account relevant considerations; and/or by failing to give adequate and/or proper reasons for the adverse findings pursuant to S 25D of the Act Interpretation Act and or S 473EA (1); and/or by making irrational or illogical findings and/or by making adverse findings amounting to unreasonableness; such errors together or separately amounting to jurisdictional error.

   Particulars

   i. See paras 24 and 25.”

6. The heart of the applicant's contention is that the Authority gave imprecise reasoning in dealing with new information that the Authority found to be exceptional, and to which it had regard.

7. The Authority noted early in its decision that it had regard to new information, specifically information relating to a requirement that Sri Lankans of Tamil ethnicity living in Colombo register with the police. 

8. The Authority found it necessary to obtain that new information in order to determine the issue, and found that there was insufficient information before it regarding the applicant’s registration requirement claim for the Authority to properly assess that claim. For those reasons, the Authority found that there were exceptional circumstances to justify considering that new information under s.473DD of the Act, which is as follows:

   “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.”

9. The applicant did not challenge the Authority's decision to identify that new information; rather, it is the re-identification of that new information and the way in which it was used by the Authority which is challenged by the applicant.

10. Pursuant to s.473DE(3)(a) of the Act, the Authority was not required to give information to the applicant for comment as the new information was not specifically about the applicant. Rather, it was about a class of persons of which the applicant was a member, namely, Tamils living in Colombo who were required to register with the police. The applicant did not contend otherwise. Section 473DE of the Act, is as follows:

    “(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

    (a) give to the referred applicant particulars of any new information, but only if the new information:

    (i)  has been, or is to be, considered by the Authority under section 473DD; and

    (ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

    (b) explain to the referred applicant why the new information is relevant to the review; and

    (c) invite the referred applicant, orally or in writing, to give comments on the new information:

    (i) in writing; or

    (ii) at an interview, whether conducted in person, by telephone or in any other way.

    (2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

    (3) Subsection (1) does not apply to new information that:

    (a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

    (b) is non-disclosable information; or

    (c) is prescribed by regulation for the purposes of this paragraph.”

11. Later in the Authority's decision record, it refers again to that information, as follows:

    “22. According to the enhanced screening interview transcript, the applicant provided a different account to the events that followed his registration with the police in 2006. He indicated to the interviewing officer that the police came looking for him only two days after he had registered and that he was not at home when the police came because had gone out for a walk.”

12. The source of that information is footnoted in the Authority's decision record, as follows:

    “4 Guardian (Unlimited) (UK), "Tamils must register with Police", 12 July 2006, CX160440”

13. The Delegate noted that in 2006, the Sri Lankan authorities required all Tamils in Colombo to register with the police, and it footnoted the exact reference above. 

14. The Authority refers to the applicant's claim that he had no difficulties living in Colombo until he registered with the police in 2006. The Authority noted that the applicant could not remember exactly when in 2006 he registered but that he thought it was maybe three months prior to him leaving Sri Lanka for Malaysia. 

15. Ultimately, the Authority found the applicant's claim that he came to the adverse attention of the police following his registration was not supported by the applicant's own evidence or country information. The country information indicated that the requirement for registration in Colombo for Tamils was first announced in June 2006, and that those procedures were publicly detailed on 30 June 2006. 

16. However, the Authority noted that on the applicant's evidence, he departed Sri Lanka in May or June 2006, and that prior to his departure, he was living in Colombo for a month. The Authority noted that the applicant also indicated to the Delegate that he may have registered with the police up to three months prior to his departure from Sri Lanka, making it approximately February to March 2006. That is some three to four months after the announcement.  

17. The Authority went on to make various adverse findings in respect of the applicant's claim to have been registered with the police in Colombo. It found it not plausible that the applicant had registered with the police in response to emails that all Tamils living in Colombo were to register, based on the applicant's evidence that he was living in Malaysia at the time. 

18. Further, the Authority did not accept it plausible that the applicant, having lived in Colombo since 2000, decided to register prior to the June 2006 announcement. Ultimately, the Authority did not accept that the applicant had registered with the police in Colombo prior to his departure for Malaysia in May or June 2006. 

19. A further reading of those claims by the applicant and the Authority's reasoning makes clear that the information that the Authority regarded as critical was the new information in relation to the requirement for Tamils living in Colombo to register with the police from June 2006. 

20. I do not understand the submission of the applicant that somehow there was any lack of clarity or relevance to the information identified by the Authority. It is no part of the applicant's case that the country information upon which the Authority relied, did not state that in June 2006 the Sri Lankan government announced there was a new requirement for Tamils living in Colombo to register with the police. 

21. It is well established that the Authority is required to set out findings of any material questions of fact. To my mind, the material question of fact was whether or not the applicant had registered with the police in 2006 while living in Colombo as claimed. The information to which the Authority had regard was relevant to that claim, and was information to which the Authority was entitled to have regard in identifying with specificity the source of the information, and the critical material fact to which it was having regard. 

22. It is well accepted that in relation to the obtaining of accurate information by the Authority, it is not required to give reasons with respect to the exercise of its discretion under s.473BC of the Act (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, at [31]-[32] (referring to s.430 of the Act which is the equivalent of s.473EA of the Act); and BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [45] per Thawley J (with respect to the discretion under s 473GB(3)(b) of the Act)).

1. The Authority clearly stated in its reasons that it found it necessary to obtain that new information because there was insufficient information before it regarding the registration requirement for it to properly assess the applicant's claim in that regard.

2. As stated above, the Authority, having identified why it was of the view that it should have regard to that new information, further found that the new information was not specifically about the applicant. Rather, it was about a class of persons of which applicant was a member, namely, Tamils living in Colombo who were required to register with the police. Therefore, it was not information that the Authority was required to give to the applicant by reason of s.473DE(3)(a) of the Act.

3. Further, counsel for the first respondent referred the Court to DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 which, at [72], Reeves, Robertson and Rangiah JJ stated as follows:

   “72. In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.”

4. Ultimately, the Authority’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Authority’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Authority’s findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis, or unreasonableness and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). They were made after careful and detailed consideration of concerns the Authority identified about the applicant’s claims, including the extent to which the applicant’s evidence was inconsistent with country information. It is well established that the country information to which a decision maker, such as the Authority, has regard and the weight it gives it is a matter for the decision maker (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29). Further, the Authority had regard to new information in trying to clarify the applicant’s claims and fill in some of the applicant’s evidentiary gaps.

5. In relation to the allegation in Ground 1 that the Authority’s findings were irrational or illogical or unreasonable in relation to the exercise of its discretion to have regard to new information, there is nothing in the Authority’s reasons in exercising its discretion to suggest that its decision was made other than in accordance with law. The Authority’s reasons for exercising its discretion to have regard to new information were identified by it and were not arbitrary, capricious or unreasonable (see Minister for Immigration v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38] per Griffiths, Kerr and Farrell JJ).

6. Accordingly, Ground 1 is not made out.

7. A fair reading of the Authority's decision makes clear that the Authority understood the claims being made by the applicant and had regard to all material provided in support. 

8. The Authority identified the country information to which it had regard, and made findings based on the evidence and material before it which were open to it for the reasons it gave. The Authority reached conclusions based on those findings and to which it applied the correct law. 

9. In those circumstances, the Authority complied with its obligation under the statutory regime in the making of its decision, including the conduct of its review. 

10. The Authority's decision is not affected by jurisdictional error and is, therefore a privative clause decision. 

11. Accordingly, the proceeding before this Court should be dismissed with costs. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 5 December 2018