BEF18 v Minister for Home Affairs

Case •

[2024] FedCFamC2G 807

•

30 August 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BEF18 v Minister for Home Affairs [2024] FedCFamC2G 807

File number(s): SYG 644 of 2018
Judgment of: JUDGE CAMERON
Date of judgment: 30 August 2024
Catchwords: MIGRATION – Protection Visa – Refusal – Review of Immigration Assessment Authority (“IAA”) decision – Criteria for considering “new information” under s 473DD of the Migration Act 1958 (Cth).
Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 474, 473DD
Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494

Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Division: General
Number of paragraphs: 22
Date of hearing: 7 August 2024 
Place: Sydney
Solicitor for the Applicants: Mr S. Hodges (Hodges Legal)
Solicitor for the First Respondent: Mr L. Dennis (Mills Oakley)
Counsel for the Second Respondent: Submitting appearance save as to costs

ORDERS

SYG 644 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BEF18

First Applicant

BEG18

Second Applicant

BEH18

Third Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

30 AUGUST 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Cameron

INTRODUCTION

  1. The first applicant (Applicant) is a citizen of Sri Lanka who arrived in Australia by boat on 1 May 2013. On 4 April 2017 he lodged an application for a subclass 790 Safe Haven Enterprise Visa (SHEV) protection visa with what is now the Department of Home Affairs (Department), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity and imputed political opinion supportive of the Liberation Tigers of Tamil Eelam (LTTE). The second and third applicants, his wife and daughter, were included in that application as the Applicant’s family members and did not make their own claims for protection. On 9 January 2018 a delegate (Delegate) of the first respondent (Minister) refused the applicants’ application following which the matter was referred to the second respondent (IAA) for review. The applicants were unsuccessful before the IAA and have applied to this Court for judicial review of the IAA’s decision.

  2. In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

  3. For the reasons which follow, the application will be dismissed.

    LEGISLATION

  4. The Act relevantly states:

    36       Protection visas—criteria provided for by this Act

    …

    (2)       A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    …

    (2A)     A non-citizen will suffer significant harm if:

    (a)the non-citizen will be arbitrarily deprived of his or her life; or

    (b)the death penalty will be carried out on the non-citizen; or

    (c)the non-citizen will be subjected to torture; or

    (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)the non-citizen will be subjected to degrading treatment or punishment.

    and

    5H Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

    (a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)the real chance of persecution relates to all areas of a receiving country.

    …

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    …

    (b)the persecution must involve serious harm to the person; and

    …

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    …

    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.

    BACKGROUND FACTS

  5. The Applicant’s claims for protection were made in an arrival interview conducted on 2 July 2013 and in a statutory declaration dated 27 March 2017 attached to his visa application.  He also attended a protection visa interview conducted by the Department on 9 November 2017, at which time he submitted further identity documents and evidence in support of his application. As summarised by the Minister in his written submissions, the Applicant relevantly made the following claims:

    5.The applicant claimed to fear harm at the hands of the Sri Lankan authorities because he is a Tamil male from the north; he worked in the Vanni region (which was controlled by the Liberation Tigers of Tamil Eelam (LTTE); he closely resembles his brother (Brother JK); he is perceived as a wealthy business owner; and he breached CID orders not to leave his home area.  The applicant also claimed that his wife and daughter would be at risk of physical and sexual abuse.

    6.The applicant claimed that he was displaced due to ongoing conflict in 1996 and relocated to the Vanni region where he set up a tyre stall.  In 2007, the LTTE put up a poster near the food shop belonging to Brother JK which warned people not to associate with the Sri Lankan military.  Brother JK was interrogated and assaulted which led to him moving to India.  The Criminal Investigation Department (CID), interrogated the applicant as they mistook him for Brother JK.

    7.In July 2012, four members of the Eelam’s Peoples Democratic Party (EPDP) paramilitary came to the applicant’s house and threatened his young daughter with a gun.  They interrogated the applicant and attempted to extort money.  The applicant was abducted, seriously mistreated and threatened.  After five days, the applicant was released and warned that he would be monitored.

    8.In September 2012, four Sinhalese CID officers came to the applicant’s house and threatened the applicant’s daughter with a gun.  They also abducted, interrogated and beat the applicant.  After three days, the applicant was released after his uncle gave the CID money. 

  6. I adopt that summary. 

  7. Following the referral of the matter, the applicant’s representative provided the IAA with further written submissions dated 27 January 2018, which attached copies of:

    (a)an Australian visa document bearing the photo of Brother JK and an undated photo of the Applicant with Brother JK, which, it was submitted, supported the Applicant’s claim that their appearances were similar;

    (b)a letter issued by the Royal Perth Hospital dated 9 May 2012 outlining the psychiatric disorders suffered by one of the Applicant’s other brothers (Brother S) which was said to have been caused by his repeated torture by the Sri Lankan authorities.

    The IAA’s decision and reasons

  8. After discussing the claims made by the Applicant and the evidence before it, the IAA was not satisfied that the applicants are persons to whom Australia has protection obligations under s.36(2) of the Act and affirmed the decision under review. The IAA’s decision was based on the following findings and reasons which were summarised by the Minister in his written submissions:

    9.… The Authority had regard to the review material and noted that the applicant had provided new information. The Authority found that the requirements of s 473DD of the Act were not satisfied in relation to information relating to the applicant’s brother (Brother S); and that the requirements of s 473DD of the Act were satisfied in relation to information provided relating to Brother JK.

    10.The Authority was satisfied of the applicant’s identity and that Sri Lanka was the receiving country. The Authority accepted that the applicant was displaced in 1996 and relocated to the LTTE-controlled Vanni area where he set up a tyre stall.  The Authority accepted that, in 2007, an LTTE poster appeared near Brother JK’s food shop and that Brother JK was interrogated and assaulted which led to him moving to India.

    11.The Authority was prepared to accept that the applicant bears a resemblance to Brother JK and that the CID may have approached the applicant in a case of mistaken identity.  However, the Authority did not consider it credible that the applicant was unable to prove his identity to the authorities.  The Authority accepted that the CID questioned the applicant about Brother JK’s whereabouts.

    12.The Authority found … the applicant’s claim to have been targeted by the EPDP to be implausible. However, by reference to country information, the Authority found that the applicant was the victim of an unsuccessful extortion attempt.

    13.The Authority did not accept the applicant’s claim about his encounter with CID officers in September 2012. The Authority found that the applicant’s claim had “implausible similarity” to his claim about the EPDP, that the civil war had ended three years earlier, that it was implausible that he would not know how much was paid for his release, and that he was able to travel without incident.

    14.The Authority found that any assistance the applicant provided to the LTTE was indirect and low level. The Authority found that there was a lack of credible evidence that the applicant was of adverse interest to the Authorities. The Authority was not satisfied that the applicant faces a real chance of being targeted for extortion.  Having regard to country information and its own findings, the Authority did not accept that the applicant’s wife and daughter would be exposed to harm. The Authority accepted that the applicant would be returning to Sri Lanka as a failed asylum seeker but did not accept that the applicant was a person of interest or that the processes he would face on return amount to serious harm.

    (references omitted)

  9. I also adopt that summary. 

    THE PROCEEDING IN THIS COURT

  10. In the application commencing this proceeding the applicants alleged:

    1.The Authority committed jurisdictional error by failing its obligation under s 473DD of the Migration Act 1958 (Cth) to consider whether there were ‘exceptional circumstances’ that could justify the consideration of the new information.

    PARTICULARS

    a.At [9], the applicant claimed that, in September 2012, he was threatened, arrested and detained by for [sic] CID officers.  During this period of detainment [sic], the applicant claimed that he was interrogated by the CID about the whereabouts of his brothers, JK and S.

    b.At [4], the Authority noted that the applicant had provided several documents in his submissions that constituted new information, including a letter from the Western Australian Department of Health dated 9 May 2012.  The letter stated that the applicant's Brother, S, had been suffering post-traumatic stress disorder as a result of repeated interrogations and instances of torture at the hand of Sri Lankan authorities.

    c.At [7], the Authority concluded that it was not satisfied that exceptional circumstances existed to justify the consideration of the letter on the basis that the applicant had only referred to his brother, S, briefly and had not specifically disclosed this claim.

    d.The Authority adopted a narrow interpretation of ‘exceptional circumstances’ and prematurely dismissed the applicant's submission that the outcome of his brother's application could give rise to protection claims.

    e.The applicant has already claimed that he was interrogated about the whereabouts of his brothers, who at that time were both in Australia. 

    f.The information that Brother S was in Australia corroborates the applicant's claim that he was interrogated about his brother's whereabouts in September 2012. 

    2.The Authority committed jurisdictional error by failing to consider an integer or component of the applicant's claim. 

    PARTICULARS

    a.The Authority failed to consider the applicant's membership to [sic] a particular social group.  That is, returnees who have relatives that have sought or are seeking asylum in Australia.

    b.At [9], the applicant claimed that his Brother JK travelled to Australia in 2007 after he was assaulted by the CID.

    c.At [16], the Authority accepted that the applicant's brother had travelled to Australia.

    d.The Authority did not consider whether the applicant faced a real chance of harm on the basis of his familial association with someone who had sought asylum in Australia. 

    Ground 1       

  11. The first ground of the application alleged that the IAA had failed to consider whether exceptional circumstances existed which justified the consideration of the (new) information contained in the letter from the Royal Perth Hospital. 

  12. Relevantly, the IAA had said:

    4. Attached to the IAA submission are several documents, namely:

    •A letter from the Western Australia Department of Health (‘the letter’), dated 9 May 2012, regarding one of the applicant’s brothers, Brother S, who is in Australia.  The letter states Brother S was a psychiatric patient at Royal Perth Hospital from 30 April until 9 May 2012.  The letter states Brother S has features of post-traumatic stress disorder, and major depressive disorder, and that this supports the veracity of his claims to have been repeatedly interrogated and tortured by the Sri Lankan authorities over several years.  The letter concludes that while he has been prescribed treatment it will not be effective without resolution of his immigration status.

    …

    5. In relation to the letter, I am satisfied this was not before the delegate and is new information that predates the delegate’s decision.  In the IAA submission the applicant’s representative notes that, as far as he is understands, Brother S’s application for protection is yet to be determined.  However, if Brother S receives a positive outcome, then the applicant will attract adverse attention from the Sri Lankan authorities upon return, by virtue of having two siblings who have been found to engage Australia’s protection obligations.

    6.During the SHEV interview the applicant only made a brief reference to Brother S, and did not mention his mental health concerns, or the status of his protection application.  Nor did the applicant claim to fear harm on account of Brother S’s immigration status in Australia.  While the applicant was unrepresented during his SHEV interview, the delegate spent some time explaining how his protection obligations would be assessed, and the importance of providing all relevant information in the first instance, which the applicant indicated he understood.  During the SHEV interview the applicant took the opportunity to provide country information to the delegate for her consideration; however no further information was received by the delegate before she made her decision.

    7.Beyond broadly stating that the outcome of Brother S’s application could give rise to protection claims for the applicant, the IAA submission does not explain why the applicant did not provide the letter earlier, or why it should now be considered. Nor does the IAA submission explain how the letter would have affected the consideration of the applicant’s claims by the delegate. Overall I am not satisfied exceptional circumstances exist to justify consideration of the letter, nor has the applicant satisfied me as to either of the matters in s.473DD(b).

  13. The applicants submitted that the IAA had adopted an impermissibly narrow view of s.473DD when declining to consider the contents of the letter from the hospital. They argued that, if considered cumulatively, the grant of a protection visa to JK and S’s evidence of psychiatric injury following torture might be relevant to his claims to fear persecution in Sri Lanka. It was argued in addresses that in circumstances where the brothers had lived in close proximity to each other and had alleged the same risks on return to Sri Lanka, the medical report was relevant to the veracity of the Applicant’s claim to fear persecution in Sri Lanka.

  14. The operation of s.473DD was explained in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at 502 [12] as follows:

    … the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

    (reference omitted)

  1. That statement of the law makes it clear that the existence of exceptional circumstances does not arise for consideration under s.473DD(a) unless the criteria in s.437DD(b) are first satisfied. In this case those criteria were not satisfied because, as the IAA observed, the applicants had not explained why the hospital letter had not been provided to the Delegate, or how the Delegate’s consideration of the applicants’ claims would have affected had she been made aware of the letter’s contents. As a result, the IAA’s finding that it was not satisfied that the exceptional circumstances test in s.473DD(a) had been met was only surplusage and of no importance to its decision to decline to consider the information in the hospital letter. As such its finding concerning the absence of exceptional circumstances is incapable of supporting a finding of jurisdictional error.

    Ground 2

  2. The second ground of the application alleged that the IAA had wrongly failed to consider whether the Applicant had a well-founded fear of persecution in Sri Lanka because of his membership of the particular social group comprised of returnees with relatives who have sought or are seeking asylum in Australia.  The applicants submitted that they had “plainly raised” a claim to fear harm because JK had been granted asylum in Australia and because S might also obtain a protection visa. However, the applicants did not indicate where that purported claim had been articulated, whether to the IAA, to the Delegate or to the Department, and it does not appear that it was. 

  3. What the applicants had submitted to the IAA was that country information reported that one group most at risk of serious harm in Sri Lanka was

    … Tamils who have real or perceived LTTE links either due to their own involvement or their family members’ involvement with the LTTE.

    The IAA appears to have accepted that Applicant’s brother JK had been granted a protection visa. The applicants submitted in that connection that:

    If the reason for accepting the applicant’s brother’s claims for protection was due to perceived association with the LTTE, then the delegate’s finding in the instant review matter would be inconsistent with the applicant’s brother’s assessment.  Therefore if the IAA is to make findings on this point as the delegate without in fact considering the applicant’s brother’s claims for protection especially this brother had been found to engage Australia’s protection obligations and has not returned home since he fled Sri Lanka.

    However, the reasons for the grant of JK’s visa are unknown.  The IAA made no findings in that connection and it has not been demonstrated that any error attaches to that circumstance. 

  4. Significantly, the applicants argued to the IAA that what was relevantly significant was links with the LTTE, rather than having a family member who had sought protection in Australia.  I am not persuaded that a claim based on links with the latter sort of connection was ever clearly articulated.  It should be noted in that connection that as there was no error in the IAA declining to consider the hospital letter in relation to S, it was only JK’s situation that might potentially have been relevant to the present allegation. 

  5. As was said in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at 509 [25]:

    The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

    Not only was the particular social group claim not clearly articulated, the applicants also did not explain why it should be considered to have nevertheless arisen clearly from the materials before the IAA:  NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 20 [61]. I am not persuaded that it did. As noted already, the actual submission concerned LTTE connections, not Australian visa status.

  6. As a result, the second ground of the application is not made out.

    CONCLUSION

  7. Jurisdictional error on the part of the IAA has not been demonstrated.

  8. Consequently, the application will be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       30 August 2024

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