BEX18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1161
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BEX18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1161
File number: MLG 620 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 7 November 2024 Catchwords: MIGRATION – protection visa – judicial review of a decision of the Immigration Assessment Authority - whether the Authority exercised the power in s 473DD of the Migration Act1958 (Cth) unreasonably when it focused on a particular aspect of a medical report – whether it was unreasonable for the Authority not to exercise its power under s 473DC(3) of the Act by not obtaining new information concerning the applicant’s ongoing psychological vulnerability – whether the Authority unreasonably failed to consider a claim – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 65, 473CB, 473DC, 473DD Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
SZULW v Minister for Immigration and Border Protection [2018] FCA 1335
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submissions: 28 October 2024 Date of hearing: 28 October 2024 Place: Melbourne Counsel for the Applicant Ms N Goonetillake Solicitor for the Applicant D & M Lawyers Counsel for the First Respondent Ms O Cameron Solicitor for the First Respondent Clayton Utz Solicitor for the Second Respondent Submitting appearance, save as to costs ORDERS
MLG 620 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEX18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for judicial review filed on 13 March 2018 and amended on 7 October 2024 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
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 SYMONS:
INTRODUCTION
By way of an amended application filed on 7 October 2024, the applicant seeks judicial review of a decision of the second respondent (Authority) made on 2 March 2018. The Authority affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act). The Minister opposes the application.
BACKGROUND
The applicant is a citizen of Sri Lanka who arrived from Sri Lanka as an unauthorised maritime arrival on 25 October 2012.
On 9 December 2015, the applicant was invited by the (then) Department of Immigration and Border Protection (Department) to apply for the visa, which he did on 26 August 2016 (CB 32-73).
The applicant provided a statutory declaration accompanying his application which set out his claims for protection as follows (CB 74-77):
·The applicant’s father was an active member of the United National Party (UNP) since the applicant was a child. The applicant became involved in politics in 1989 and became a full member of the UNP in 2002. He would organise meetings for the UNP and canvass for votes in support.
·In November 2001, there was a UNP meeting held outside the applicant’s family house. The member for the Government party, SG, alongside his supporters and members of the police force, dispersed the meeting using force. During the incident, a van was driven into the crowd, killing one person and seriously injuring the applicant.
·In 2002, the UNP came into Government. However, in 2004, SG’s People Alliance Party returned to Government. Due to this change, the applicant’s family were persecuted and harassed by Government officials.
·In 2004, the applicant gave evidence to a police prosecutor against SG regarding the van incident that occurred in 2001. Following this the applicant received threats, resulting in his family leaving the house.
·From 2004 to 2008, the applicant relocated to an island close to Puttalam District due to it being unsafe for him to live in Negombo.
·In 2008, the applicant attended his mother in law’s funeral in Negombo. After the funeral, a supporter of SG hit the applicant with a vehicle. The applicant spent four days in hospital following the incident.
·The applicant returned to Kalpitiya and remained hidden until 2012. The applicant was in constant fear of his life.
·The applicant left Sri Lanka illegally in 2012 and left his passport in Negombo. When the applicant left, his cousins in Negombo were subject to continual harassment, and two of them were taken into custody.
·The applicant cannot return to Sri Lanka because he will be subject to the same hostility. The applicant cannot relocate to a different part of Sri Lanka because it is a small country.
·The applicant is fearful of returning to Sri Lanka because he departed illegally. The applicant is concerned that due to his UNP profile, he would receive harsh treatment in detention.
On 7 February 2017, the applicant was invited to attend an interview on 23 February 2017 (CB 102-104).
On 26 July 2017, a delegate of the Minister made a decision not to grant the applicant the visa (CB 129-145).
REFERRAL TO THE AUTHORITY
On 2 August 2017, the decision of the delegate was referred to the Authority for a review under Part 7AA of the Act (CB 150-151).
On 17 August 2017, the applicant’s representative sent the Authority a submission prepared on behalf of the applicant, along with a medical record from Monash Health, a psychological assessment report for the applicant, country information and untranslated newspaper articles concerning the incident in 2001 (CB 164-184).
Also on 17 August 2017, the applicant’s representative sent the Authority several newspaper articles, mostly in the English language (CB 185-209).
On 26 September 2017, the applicant’s representative sent the Authority a newspaper article that concerned an incident referred to by the applicant, and its English translation (CB 210-219).
On 27 November 2017, the applicant’s representative sent the Authority a translated (into English) transcript of extracts from a proceeding of the Magistrates’ Court of Negombo that concerned the applicant and the entire transcript in the Sinhalese language (CB 220-291).
On 2 March 2018, the Authority affirmed the decision of the delegate to refuse the applicant the visa and provided a written statement of decision and reasons (Reasons) (CB 294-314).
JUDICIAL REVIEW
Ground one
The amended application identifies four grounds of judicial review.
The first ground directs attention to the exercise by the Authority of the power under s 473DD of the Act to consider new information in the review. The applicant submits that the Authority erred in its application of this provision when it found that there were not exceptional circumstances to justify its consideration of the medical report submitted to the Authority on 17 August 2017.
In written submissions filed on 9 October 2024 and through oral submissions made by his counsel, Ms Goonetillake, at hearing, the applicant contended as follows.
First, the applicant noted that the medical report (which appeared at CB 170-171) indicated that the applicant had presented to the emergency department with a broken hand in 2014, disclosed that the applicant suffered from type 2 diabetes and reported that the applicant had been in a car accident in 2008. The report also noted that the applicant had presented with pain in his right shoulder in September 2014, for which he had received treatment.
The applicant submitted that given the breadth of the information contained in the medical report, it was unreasonable for the Authority to consider its significance as being limited to the car accident in 2008. Instead, according to the applicant, the Authority should have also considered that the medical report disclosed physical vulnerabilities of the applicant which were relevant to his claims for protection and capable of being believed. Furthermore, if the medical report (in its entirety) had been put before the delegate, it may have affected the consideration of the applicant’s claims given that the possession of physical and psychological vulnerabilities could have exacerbated his risk profile and susceptibility to harm on return. It was capable of satisfying the criterion in s 473DD.
The Minister submitted that there was nothing erroneous or unreasonable about the manner in which the Authority applied s 473DD to the medical report.
The Minister submitted that it was open for the Authority to find that to the extent that the medical report contained the applicant’s self-report of a car accident in 2008, it was not probative of this claim and was not therefore credible information for the purposes of s 473DD(b)(ii) of the Act.
As far as the medical report contained other information about the applicant’s medical conditions, the Minister submitted that it was not unreasonable for the Authority not to consider it through the lens of s 473DD for two reasons. First, because, by reference to the decision of the delegate, which was part of the review material given to the Authority under s 473CB of the Act, the Authority already had information before it about the applicant’s health. In particular, the following paragraph of the delegate decision (CB 137):
I asked the applicant about his health. He claimed he had blood pressure problems and diabetes for which he was taking medication. He was in good psychological health. I asked the applicant about counselling he received after arriving in Australia. He claimed that he was upset about being in detention for 18 months and the fact other people were being released. He had counselling because of this. He had no mental problems now and was not getting counselling currently. I am satisfied the applicant is not suffering from psychological health issues currently.
The second reason given by the Minister was that even if the residual medical information about the applicant’s shoulder tendinopathy and/or minor changes of osteoarthritis in 2014 had been accepted and then considered by the Authority, it was not capable of supporting an argument that the applicant would suffer significant harm on return to Sri Lanka.
Consideration of ground one
Despite being framed as an unreasonableness ground of review, ground one instead is an attack on the merits of the Authority’s decision. To understand why this is so, it is necessary to reproduce the findings made by the Authority in relation to the medical report in full. They appear at dot point 3 of Reasons, [4] as follows:
The first email of 17 August contained the following attachments:
…
A Doctor’s report which relates to an appointment the applicant attended in 2014 when he had an ultrasound of his Upper right arm and shoulder. Attached to the report is a second Doctor’s report indicating that the applicant had previously attended the Dandenong Hospital in June of 2014. This is new information. In the earlier appointment the applicant had presented with a fractured hand, which he had injured hitting a medicine ball, whilst in Australian Immigration detention. In that document, the applicant is reported to have claimed to have been in a car accident in 2008 and suffered damage to his left side. The applicant has not explained the purpose of submitting this document but I infer that it is submitted because of its reference to the 2008 car accident which is integral component of the applicant’s claims for protection. Given that the Doctor’s report was prepared in 2014 I am not satisfied that it could not have been given to the Minister before the date of the delegate’s decision. The report itself is from a registered Australian medical practitioner and provides information about the applicant’s health, however, I note that the information in the report does not relate directly to the applicant’s claims for protection and it contains no probative information about his presumed reason for submitting it (mention of the 2008 car accident). The report merely indicates that the applicant claimed to an Australian Physician in 2014 that he had been in an accident in 2008. The report makes no finding of the reliability of this claim by the applicant. Given these circumstances I am not satisfied that the Doctor’s Report contains credible information about the applicant which may have affected consideration of the applicant’s claims. Since neither limb of s 473DD(b) is met I am prevented from considering this material. For the sake of completeness I note that the applicant’s representative has argued that there are exceptional circumstances for the consideration of new information, because the information was unknown at the time. Am not satisfied by this claim. As the document relates to medical procedures which the applicant himself underwent in 2014, he has not satisfied me that this information was unknown prior to the delegate’s decision and I have previously found that it could have been given to the Minister prior to the decision given that it was prepared in 2014. Furthermore, I note that the document is not probative on the applicant’s claim of involvement in a car accident in 2008. I am not satisfied that there are exceptional circumstances for consideration of this document.
The first point to note is that the reasons given by the Authority were comprehensive and engaged with both limbs of s 473DD(b) before considering, including by reference to findings made in relation to sub-paragraph (b), whether there were exceptional circumstances to justify considering the new information in the medical report.
Although the Authority confined its consideration to the self-report of the applicant’s car accident in 2008, I do not consider that this approach involved error in the application of s 473DD or legal unreasonableness.
The significance of the new information that included the medical report was identified by the applicant’s representative as part of a submission that also addressed the applicant’s claims for protection. As far as the criterion in s 473DD were concerned, the submission read (CB 165):
We submit that there are exceptional circumstances which justify having regard to new information because it was unknown at the time of the delegate’s decision and demonstrates a significant deterioration in the security situation for [the applicant] in Sri Lanka. Were that information known, the delegate may have made a different finding about risk of harm to the applicant if he is returned to Sri Lanka.
The submission also contained what was described as a summary of the applicant’s claims for protection. The submission repeated the applicant’s claim to have been hit by a van driven by SG in 2001 and run down by a car driven by a supporter of SG in 2008. The submission did not refer to any claim that otherwise involved the applicant having sustained a physical injury.
The submission contained a conclusion that included the following (CB 167):
The Applicant fears for his safety with his own experience of politically motivated revenge/anger of opposite party, the health issues he now suffers due to the injury sustained in 2001, including mental health that was never assessed at the time of DIBP decision but known now and knowledge of experiences from other returns of ‘failed asylum seekers’.
Having regard to the limited manner in which the medical report was presented to the Authority as “new information”, it was open and reasonable for the Authority to take the approach that its significance was directed at the applicant’s claim to have been the target of a motor vehicle attack in 2008. This claim was, as the Authority observed, an integral component of the applicant’s claims for protection and it had been rejected, in emphatic terms, by the delegate (CB 141). The claim was repeated by the applicant’s representative in the submission accompanying the medical report. Nothing at all was said to shed light on how, beyond reference to the alleged incident in 2008, the medical report had relevance to the protection claims advanced by the applicant.
In circumstances where the applicant does not otherwise challenge the findings recorded by the Authority as to the application of s 473DD of the Act, and where I am unable to ascertain error, I consider that ground one is not made out.
Ground two
By ground two, the applicant contends that the failure of the Authority to exercise its power under s 473DC(3) to get “new information” from the applicant concerning the “ongoing significance of his psychological vulnerabilities” was unreasonable.
The applicant submits that this was especially the case because at Reasons, [9], the Authority had accepted that the applicant may have psychological vulnerabilities. According to the applicant, it was incumbent on the Authority to obtain new information from him to ascertain the extent of these vulnerabilities and to understand their ongoing impact.
Had the Authority exercised this power it may have received information from the applicant that had the effect of increasing his risk profile, especially in relation to conditions for returnees to Sri Lanka.
The Minister submitted that it was not unreasonable for the Authority not to exercise the power in s 473DC of the Act to get “new information” from the applicant about his psychological vulnerabilities in circumstances where it had (at Reasons, [4]) found that a 2014 psychologist report of the applicant provided by his representative was admissible under s 473DD and had therefore considered it.
The Minister noted that the report indicated that the applicant suffered from Post-Traumatic Stress Disorder like symptoms and depression and the Authority accepted that this indicated that the applicant may have been psychologically vulnerable.
Consideration of ground two
I am not satisfied that there is anything in the circumstances of this case that compels a finding that the failure of the Authority to get information from the applicant about his psychological vulnerabilities was unreasonable.
The fact of the matter is that the Authority already had information before it directed at this issue which, as far as it went, was considered by the Authority. In the context of the limited “on the papers” review required under the former Part 7AA of the Act I consider that the Authority was entitled to proceed on the basis that the applicant had presented what information he wished to on the topic of his psychological health, including because he was at relevant times represented and had presented this information in the context of the Authority’s review.
As far as analogies are helpful, this is not a case where there was an “informational gap” before the Authority (compare ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439). For example, there was nothing in the material presented by the applicant that suggested that the applicant’s psychological health had altered beyond that referred to in the psychological assessment report or that should otherwise have necessitated further inquiries by the Authority. As I have noted earlier, the submission to the Authority that accompanied the psychological report stated that while the applicant’s mental health had not been assessed at the time of the delegate’s decision it was “known now”. In other words, the 2014 psychological report was presented to the Authority as probative of the applicant’s current psychological state.
I am not satisfied that ground two is made out.
Ground three
By ground three the applicant contends that the Authority unreasonably failed to consider a claim that he belonged to a class of persons associated with politically sensitive issues who would be at risk of harm from non-state actors, namely SG’s family and supporters, as a result of being identified as a witness and being compelled to give evidence.
The applicant acknowledged that the claim had not been raised expressly but submitted that it arose clearly and squarely on the material before the Authority, including on the facts found by the Authority, which included that the applicant had been identified as a witness against SG in 2004 and had been called to give evidence against him in 2016. The applicant submitted that this claim comprehended harm that went beyond that associated with being required to give evidence in court in Sri Lanka because it included harm in the form of reprisal action taken because of the politically sensitive nature of the trial.
The Minister submitted that there was no obligation on the part of the Authority to consider a claim of the kind articulated by the applicant in this review. Beyond the fact that such a claim had not been expressly raised, the Minister submitted that the Authority’s findings foreclosed debate as to whether such a claim arose squarely before it.
In particular, the Minister noted that at Reasons [31] the Authority had found that the applicant was not a credible witness and had exaggerated many of his claims about the actions of SG and his supporters. The Authority also noted that the evidence suggested that SG had been arrested in October 2016 in relation to the November 2001 incident. For this reason, the Authority found that SG was not in a position where he could wield undue or improper influence in Sri Lanka, instead he was being held to account for the crimes he committed in 2001.
The Authority noted there was no evidence as to whether the matter had now been finalised but accepted there was some chance the applicant may be called to give evidence against SG. The Authority also noted that the applicant had not claimed any harm would arise from his failure to appear in 2016 nor was there any evidence before the Authority that harm would result from this.
Consideration of ground three
I am not persuaded that the Authority erred by failing to consider a claim that the applicant was at risk of relevant harm because he was a member of a class of persons who was associated with politically sensitive issues.
To begin with, such a claim was not raised by the applicant, including when the matter was before the Authority and the applicant had the benefit of legal representation. It has been recognised repeatedly that an administrative decision-maker is entitled to assume that the claims which a represented applicant wishes to make are the ones expressly articulated by him and his advisers (see for example, SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80] per Thawley J).
More fundamentally however, it is difficult to discern any difference of significance in the claim in fact considered by the Authority and the claim now identified by the applicant in the context of this judicial review application.
This is evident from the decision of the Authority where at Reasons [31] to [33] it said:
The applicant’s principal claims relate to a fear of persecution arising from his feud with SG. He suggests that if returned to Sri Lanka SG would be in a position to exact further reprisals on the applicant stemming from his involvement in the incident in 2001. General country information indicates that SG was a deputy minister in the former Government. His exact position now is unclear. Above, I have also found that the applicant has exaggerated many of his claims about the actions of SG and his supporters. I have not found him to be a credible witness. The evidence before me indicates that in October 2016 SG was arrested and charged with one count of murder, and three counts of attempted murder (including the attempted murder of the applicant) for events which occurred in November 2001.
Much of the evidence provided by the applicant relating to this trial is untranslated and so conclusions cannot be drawn from this material. Nevertheless, evidence provided by the applicant, including that relating to the 2016 arrest suggests to me that SG is not in a position where he can wield undue or improper influence in Sri Lanka; rather the evidence indicates that SG is being held to account for crimes he committed in 2001.
I note that DFAT reports that the Sri Lankan judicial system is overburdened and there can be long delays before a case is heard due to lengthy legal procedures. The applicant has not provided any evidence which might indicate whether the matter has been finalised. I accept that if returned to Sri Lanka there is some chance that the applicant may be called to give evidence in the case against SG, though this is uncertain. In any case, I am not satisfied that providing evidence in a Sri Lankan court amounts to harm. The applicant has not claimed any harm would arise from his failure to appear in 2016, noting that he was out of the country at the time; there is no evidence before me which would suggest that his failure to appear in 2016 would result in harm.
It is plain that in recording the findings set out above, as well as several of the anterior findings and recitations of the applicant’s claims appearing in the Reasons, the Authority was cognisant of the political dimensions of the applicant’s protection claims. This was, in essence, a claim based on political enmity and reprisal. I consider in these circumstances that any residual claim based on the applicant being a participant in a trial that involved politically sensitive issues, was comprehended and rejected by the Authority in the findings set out above.
Ground four
Ground four is related to ground three. It involves the contention that the Authority failed to consider relevant country information when assessing the applicant’s claim for protection.
The applicant submits that the Authority was required to consider whether the applicant’s claims to have suffered harassment by SG and from his supporters, was consistent with the available country information, which the applicant submits was both cogent and relevant.
However, in his written submissions and in oral submissions made by his counsel at hearing, the country information that was said to have been overlooked by the Authority was identified as the DFAT Country Information Report for Sri Lanka that was issued on 23 May 2018 (2018 DFAT Report). There is an immediate problem of course with reliance on this country information as it was published by DFAT after the decision of the Authority. In this respect, I accept the submission of the Minister that it can have no relevance to an assessment of the propriety of the approach taken by the Authority even, as the applicant suggested, on the assumption that it might demonstrate a systematic or sustained approach to the treatment of persons connected to politically sensitive issues.
Consideration of ground four
It is clear from the Reasons that the Authority considered the applicant’s claims to have suffered harassment from SG and from his supporters in a manner that engaged with the particulars of the applicant’s claim. This included the applicant’s evidence, much of which the Authority found to be exaggerated or false. For example, the Authority considered the applicant had given vague evidence about harassment from supporters of SG (Reasons, [16]) and described the applicant’s evidence about the alleged vehicle attack in 2008 as of “doubtful quality” (Reasons, [19]).
The most cogent evidence before the Authority about the applicant’s claims to fear reprisals from SG and/or his supporters was evidence, including newspaper articles and court transcripts supplied by the applicant and which the Authority considered at Reasons, [31]-[33] (reproduced at [47] above). The Authority considered this evidence in combination with country information taken from the 2017 DFAT Country Information Report (published on 24 January 2017) about the Sri Lankan judicial system. The Authority recorded findings based on this evidence and country information, including that the applicant would not suffer harm as a result of giving evidence in a Sri Lankan court.
I am not persuaded in these circumstances that the Authority erred in its consideration of the applicant’s claims to have suffered harassment from SG or his supporters, including because it failed to take account of country information that was not and could not have been before it.
ORDERS
In circumstances where the applicant has not succeeded in demonstrating jurisdictional error in any of his four grounds of review, I will order that his application for review filed on 13 March 2018 and amended on 7 October 2024 be dismissed.
I will also order that the applicant pay the first respondent’s costs fixed in the amount of $8,371.30, which the parties agreed at hearing would be the appropriate amount in the event of either party prevailing.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 7 November 2024
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