BGM18 v Minister for Home Affairs

[2019] FCCA 1547

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGM18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1547

Catchwords:
MIGRATION – Immigration Assessment Authority – Application for a Safe Haven Enterprise visa – whether the Authority failed to properly apply s 473DD of the Migration Act 1958 (Cth) – whether the Authority misconstrued the applicant’s claim – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473DB, 473DD

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111
DZU17 v Minister for Immigration and Anor [2019] FCCA 491
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Applicant: BGM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 690 of 2018

Judgment of: Judge Humphreys

Hearing date: 6 June 2019

Date of Last Submission: 6 June 2019

Delivered at: Parramatta

Delivered on: 6 June 2019

REPRESENTATION

Solicitors for the Applicant: Mr Hodge, Hodges Legal

Counsel for the Respondents: Ms Douglas-Baker

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7328.00.

DATE OF ORDERS: 6 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 690 of 2018

BGM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a Tamil Evangelical Christian from the Batticaloa District, Eastern Province of Sri Lanka. The applicant departed Sri Lanka in 2012 and arrived in Australia. On 21 August 2015, the applicant lodged an application for a Safe Haven Enterprise visa (“visa”). On 14 August 2017, a delegate of the Minister refused to grant the visa. The applicant was accordingly referred to the Immigration Assessment Authority (“the Authority”) for a review under the Fast Track Review regime. On 7 March 2018, the Authority affirmed the delegate’s decision not to grant the visa. The applicant now seeks judicial review of that decision.

The Authority Decision

1. The Authority considered the applicant’s claims and came to the view that he did not meet the relevant criteria for protection under the Migration Act 1958 (Cth) (“the Act”), specifically s 36(2)(a) of the Act or the complementary protection requirements under s 36(2)(aa) of the Act.

2. The decision is challenged, not on the basis of the substantive decision, but on the basis of some preliminary issues where the Authority rejected the purported new information from its consideration. The consideration of these matters is set out in paragraphs 4 to 16 of the Authority’s decision.

3. In a statement dated 1 September 2017, the applicant claims that he was a member of the Eelam People’s Revolutionary Liberation Front (“EPRLF”) for many years and was an expert weapons maker for the movement. The applicant claims that the Sri Lankan army are aware of his involvement with the EPRLF and that this was disclosed to them. The applicant admits to not disclosing the information referred to above, that he was a member of the EPRLF or that he was an expert weapons maker, previously to Australian authorities. In terms of what the applicant provided to the Authority, in addition to making the claims, there was a letter from a member of the Eastern Provincial Council dated 13 September 2017, to support the applicant’s claim.

4. At paragraph 11 of its decision, the Authority noted that it performs a limited form of review and that it can only consider new information in exceptional circumstances. The Authority does not generally conduct interviews or hearings. This reflects the relevant statutory provisions that are set out in s 473DB of the Act. The Authority noted the explanation put forward by the applicant for not advancing the claims earlier. The Authority noted that the applicant had previously made detailed statements on 13 September 2013 and 13 August 2015, at a time when he was legally represented, but did not include any details of these new claims.

5. The Authority determined at paragraph 14, that the above information was not credible new information, nor was the Authority satisfied that it could not have been provided to the delegate before the delegate’s decision was made. The Authority came to the conclusion that there were no exceptional circumstances for the admission of the new information, as the requirements of s 473DD(b) of the Act were not met.

The Grounds of Appeal

1. Ground 1 essentially asserts that the Authority committed jurisdictional error by failing to properly apply s 473DD of the Act and, in particular, as to whether there were exceptional circumstances that could justify the consideration of the new information.

2. Ground 2 asserts that the Authority committed jurisdictional error by misconstruing the applicant’s claim and thereby making a finding that failed to adequately address the applicant’s claims that he was an expert weapon’s maker.

3. s 473DD of the Act states as follows:

   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.

4. The requirements under s 473DD(a) and (b) of the Act are cumulative. That is made plain in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174/2016”) at paragraph 31. The considerations in s 473DD(b)(i) and (ii) of the Act form part of the considerations of what are exceptional circumstances, as per Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at paragraph 51. Both subsections (i) and (ii) of the Act should be considered in the mix as to whether or not there are exceptional circumstances, however, are not exhaustive considering the factors depend on the particularities of each case, as per AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at paragraph 14.

5. What is exceptional, is to be considered broadly, see Plaintiff M174/2016, and the circumstances cannot be regular, routinely or normally encountered. In my view, the Authority correctly applied s 473DD of the Act in this case. The Authority first of all, considered whether or not the new information could have been provided at an earlier point of time. The Authority found that it could have been. The Authority noted at paragraph 12 of its decision:

   While I accept that when he arrived in Australia he may have initially been reluctant to disclose the details of any sensitive involvement in a political organisation I am surprised that the applicant did not disclose his association with the EPRLF, if true, at this interview. The applicant provided two detailed statements of claims on 13 September 2013 and 13 August 2015 and did not advance this claim, and I note that he had the benefit of legal assistance when he completed both these statements.

6. The Authority goes on to note at this visa interview that the applicant was advised that he needed to put forward all information and may not have a further opportunity to do so. The applicant was asked at the conclusion whether or not he had any further information to add or change and he did not advance his claim to EPRLF membership at that time. I note that at the time the applicant made the two later statements, he was legally represented. At paragraph 13, the Authority notes that the further information was apparently available but that the applicant chose not to provide that information.

7. At paragraph 14, the Authority made a number of conclusions. These are maybe summarised as, because the applicant had not put forward his claim earlier that led to doubts as to his credibility. The applicant’s claims to be an expert weapon maker were also not credible bearing in mind that the applicant had only been in Sri Lanka for a few months since 2008. The applicant was in a situation whereby he could have put in detailed reasons as to why those claims have been put forward. The applicant chose to simply make bold claims and not provide any other information to try and support them.

8. The Authority was faced with these bare claims and a paucity of information. There was no explanation as to how the applicant had worked for the EPRLF when he had been overseas since 1988 and only in Sri Lanka for a number of months. I am satisfied that it was open to the Authority to come to the conclusion that it did. The applicant had failed to satisfy the Authority that this was credible personal information. It was a holistic assessment. It was based on the information that was before the Authority at the time and I am satisfied that there was no jurisdictional error in coming to the conclusions that it did.

9. Ground 2 asserts that the Authority misconstrued the claim that the applicant was an expert weapons maker. The Authority was not satisfied that this was the case. The Authority rejected this information again, based on a holistic assessment of the applicant’s credibility. The Authority looked at the failure by the applicant to advance the claim earlier. It looked at the fact that it was a bare assertion not strongly supported by other information. In that regard, I note that in paragraph 13 of the Authority’s decision, there is the conclusion that information was available but was not put forward. It looked at the basis of the claim that the applicant had worked for the EPRLF for many years, yet had been overseas except for a brief period. The Authority rejected the claim as not credible. In my view, that finding was open to the Authority based on the totality of the information before it.

10. This case is also distinguishable from the decision that I was referred to of Driver J in DZU17 v Minister for Immigration and Anor [2019] FCCA 491. In DZU17, there was a complete failure by the Authority to look at the issue of credibility of the claims for the purpose of considering exceptional circumstances. In this case, there was in fact, although it is brief, a consideration of the credibility of the applicant by the Authority. In my view, there has been no jurisdictional error made out in relation to ground 2.

Conclusion

1. The application is accordingly dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 20 June 2019