BHM17 v Minister for Immigration
[2018] FCCA 3452
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3452 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to file a further amended application to include a ground concerning the way in which the Authority dealt with information that was not before the delegate – leave granted. |
| Legislation: Migration Act 1958 (Cth), ss.473CA, 473DC, 473DD |
| Cases cited: ABC17 v Minister for Immigration & Border Protection [2018] FCA 254 BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221 CQG15 v Minister for Immigration & Border Protection (2016) 253 FCR 496 Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 |
| Applicant: | BHM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 927 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 4 September 2018 |
| Date of Last Submission: | 2 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Foster |
| Solicitor for the Applicant: | Mr S R Sinnarajah, Solicitor |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 927 of 2017
| BHM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 2 March 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 3 November 2012. On 21 March 2016 the applicant lodged an application for a protection visa. The applicant claimed that he had originally lived in the north of Sri Lanka and that many of his relatives had joined the LTTE[1]. He claimed that his father was forced to join that organisation but, as he was not willing to take up military training, he was forced to work for them. His mother was also forced to work for the LTTE. When the applicant was aged around seven years old, he and his family left Sri Lanka illegally by boat and travelled to India where they lived in refugee camps in Tamil Nadu.
[1] Liberation Tigers of Tamil Eelam.
In 2007 the applicant’s uncle was abducted in Sri Lanka in a white van and has not been seen since. The applicant also claimed that his brother-in-law, who was also in India, was accused by the Q Branch of the Indian Police of being a member of the LTTE. He was arrested but acquitted by the Madras High Court in 2010. The authorities in Sri Lanka could be aware of the applicant’s connection to his brother-in-law because there was an exchange of information between the Q Branch in India and the Sri Lankan authorities.
On 12 January 2017 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority for review under s.473CA of the Migration Act 1958 (Cth).
On 16 February 2017 the applicant sent to the Authority an outline of written submissions together with a number of documents. The first of these was a document in French which the applicant described as a decision record in which the applicant’s brother was granted refugee status in France. In addition, there was a document appearing to be in Tamil and references to other country information concerning the LTTE in Sri Lanka.
On 2 March 2017 the Authority made a decision to affirm the decision of the delegate. In its statement of reasons the Authority first dealt with the question of which information was before it, including the issue under s.473DD of whether it could have regard to the new information provided to it by the applicant. It will be necessary to return to that consideration later in these reasons.
The balance of the Authority’s reasons for decision were summarised accurately by the Minister in his written submissions, which I gratefully adopt:
5. The Authority recognised Sri Lanka as the receiving country for the applicant, and did not consider that the applicant’s hardships experienced whilst living in refugee camps in India were relevant to his fear of harm in returning to Sri Lanka. The Authority found that the applicant’s statement regarding his uncle’s disappearance in a white van abduction in 2007 was based upon information provided to him by his parents, and that the applicant was unable to give further details as to why his uncle was abducted. The Authority accepted the uncle may have disappeared and is presumed dead, but this does not result in the applicant facing a real risk of harm 10 years later. The Authority accepted the applicant had lived in an LTTE-controlled area and his parents were pressured to work for the LTTE, but that they never did. Accordingly the Authority was not satisfied that the parents were associated with the LTTE or imputed to have worked with the LTTE. Neither was the Authority satisfied that the uncle was a supporter of the LTTE or associated with the LTTE.
6. In relation to the applicant’s claims to have been detained by Q branch in India, the Authority found the applicant to have given conflicting and inconsistent information. The Authority did not accept the applicant had been detained as claimed. In relation to the applicant’s claims to fear harm in connection with his brother’s imprisonment in India, the Authority found that even if the brother’s imprisonment had become known to Sri Lankan authorities (of which it was not convinced) the applicant would not be imputed of an LTTE association on this basis as his brother-in-law was ultimately acquitted of the charges. The Authority was not satisfied that the applicant had any family members who were supporters of the LTTE or were associated with the LTTE, and that the applicant had not engaged in any separatist activity whilst in Australia that might lead to him being imputed with LTTE links. The Authority was further not satisfied that the applicant would face harm either as a consequence of his race, or for having departed Sri Lanka illegally, or for being a failed asylum seeker.
7. The Authority was not satisfied that the applicant had protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Act.
(References omitted)
Consideration
In the applicant’s original application for review there were four grounds. While the applicant filed an amended application, that application simply referred to the grounds in the original application. However, at the hearing the applicant was given leave to file a further amended application which raised a fifth ground.
Ground 1: “The Immigration Assessment Authority has ignored relevant material that as the Applicant’s uncle was abducted and many of the Applicant’s relatives were associated with the LTTE, the Applicant has a real and genuine fear of being harmed by the Sri Lankan authorities if he returns back to Sri Lanka. The decision maker has therefore made a jurisdictional error.”
In his written and oral submissions, this ground shifted somewhat so that the applicant’s argument was ultimately that the Authority ought to have asked itself, but did not, whether there was a real chance of persecution if it were wrong in relation to its finding about the applicant’s uncle.
The applicant argued that the Authority ought to have considered whether the uncle was abducted in a white van and whether he was an LTTE supporter and, if so, whether that fact might have led it to find that there was a real chance of persecution on the basis of imputed support of the LTTE. The relevant findings made by the Authority were:
13. The applicant’s statement regarding his uncle’s disappearance in a white van abduction in 2007 is based on information provided to him by his parents. ... At the PV interview, apart from a reference to his membership of the fisherman’s society, the applicant could provide no further details or information and could not explain why his uncle would have been abducted. During Sri Lanka’s long civil conflict, hundreds of thousands of people were displaced and tens of thousands of people were killed on both sides of the conflict. I accept that the applicant’s uncle may have disappeared in 2007 and is presumed dead, however I do not accept that the applicant now, some ten years later, faces a real chance of harm as a result.
...
17. When asked at the PV interview whether he had any relatives in Sri Lanka who had ever been associated with the LTTE, the applicant stated that his uncle was an important member of the fisherman’s society there, was said to have been an LTTE supporter and was abducted in a white van. ... The applicant’s statement regarding his uncle being an LTTE supporter is based on information provided to the applicant by his parents, however at the PV interview the applicant could not provide any further details or information. The information provided regarding the applicant’s uncle and his support of the LTTE is limited and vague. On the evidence before me I am not satisfied that the applicant’s uncle was a supporter of the LTTE or was associated with the LTTE.
...
21. I do not accept that the applicant had any family members who were supporters of the LTTE or were associated with the LTTE. ...
Essentially, the applicant’s argument was that the Authority could not have formed a strong view about the uncle’s disappearance in light of the fact that the applicant was plainly too young at the time to have had his own recollection. That submission misunderstands what is commonly referred to as the “what if I am wrong question” test. The most authoritative exposition of this so-called test is found in the reasons of Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, where his Honour, after examining the relevant authorities said:
[66] None of this is to deny that there may be cases in which a failure by the RRT to consider whether an alleged event may have occurred constitutes a ground of review, even though the RRT considers it likely that the event did not occur. To take an example from Guo, the applicant may rely on the experiences of previous groups of boat people who had been returned to their country of origin. The RRT may find that it is unlikely (in the sense of less rather than more likely on the balance of probabilities) that the previous group had been persecuted for a Convention reason. But the RRT’s reasons may show that no consideration was given to the possibility (albeit not a likelihood) that such persecution had occurred, a possibility left open by the RRT’s findings. If the RRT’s reasons demonstrate that the experiences of the earlier groups materially bear on the chances that the applicant will be persecuted, a finding that there is a substantial chance (although not a likelihood) that previous groups were in fact persecuted might have to be taken into account if the RRT is to undertake the reasonable speculation required of it. Again, if an applicant relies on the possibility that a particular event occurred as supporting his or her claim to a well-founded fear of persecution, a failure by the RRT to make a finding as to that possibility might constitute non-compliance with s 430(1)(c) of the Migration Act.
[67] In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 271–272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
(Emphasis in original)
The question for the Court is not whether the Authority could or should have formed a strong view about its factual findings but rather whether the Authority itself had any real doubt about those findings and if so, whether it wrongly failed to engage in reasonable speculation about the possibility of future harm.
The Authority’s reasons in this case do not reveal that it entertained any real doubt about its conclusions of fact. The mere fact that there might have been explanations as to why the applicant, for example, did not know more details about his uncle’s alleged disappearance in 2007 does not in any way support the conclusion that the Authority in fact doubted its conclusion that it did not accept that the uncle was not a supporter of the LTTE or was associated with that group. The first ground is rejected.
Ground 2: “The Immigration Assessment Authority has used excessive power in disregarding that the Applicant’s relatives and parents were forced to work for the LTTE and left Sri Lanka in fear of their safety and thus the Applicant fears persecution by the Sri Lankan authorities if he returns back to Sri Lanka due to his family association with the LTTE. Therefore, the decision maker has made a jurisdictional error.”
The applicant’s argument in this respect was focused upon the way in which the Authority dealt with the applicant’s claims about his parents. The applicant noted that, at the first dot point in [8] of the Authority’s reasons, the Authority recorded the claim that the applicant’s father was forced to join the LTTE and when he was not willing to take up military training, he was forced to work for them, as was his mother. He argued that the Authority did not deal with that claim.
The difficulty with this argument is that the Authority noted, at [16] of its reasons, that at the PV interview the applicant “clarified that while his parents were under pressure from the LTTE to work for them, they did not actually do so”. It was on the basis of that evidence that the Authority concluded that the applicant’s parents did not work for the LTTE, were not associated with them and also that there was no evidence that they were imputed to have worked for, or have been associated with them. In short, while the applicant may have initially claimed that his parents had worked for the LTTE, he changed that claim and it was the change in claim that was dealt with by the Authority. There is no error in that approach and this ground is rejected.
Ground 3: “The Immigration Assessment Authority has refused to accept that information regarding the Applicant’s association with his brother in law...in India who was accused of LTTE involvement would cause the Sri Lankan authorities to target the Applicant on return to Sri Lanka. The decision maker has thus made a jurisdictional error by stating the Applicant will not face harm on return to Sri Lanka even if his relative had LTTE links.”
The Authority made the following findings in connection with the applicant’s claim concerning his brother-in-law:
19. The applicant claims that his brother-in-law Y was imprisoned by Indian authorities for LTTE involvement and arms smuggling and later acquitted by the Madras High Court in 2010. From information provided at the PV interview, the applicant did not know Y before he married the applicant’s sister and Y’s run-ins with Indian authorities occurred prior to his marriage to the applicant’s sister. The applicant claims that Sri Lankan authorities may be aware of his connection to Y because Y’s case was reported in the media and Q Branch and Sri Lanka authorities share information. There is no evidence before me supporting the applicant’s claim regarding Y’s case appearing in the media and information sharing between Q Branch and Sri Lankan authorities, but in any event, even if that was the case, he has since been acquitted and I am not satisfied that in those circumstances, the Sri Lankan authorities will impute the applicant with an LTTE profile or links.
20. I do not accept that applicant’s claim that Y was taken to special refugee camps and tortured and that the applicant was detained by Q Branch for two weeks because he assisted in seeking his release. I find that as Y was acquitted by the Madras High Court in 2010 and was not rearrested or charged with further offences, Indian authorities, including Q Branch, have no further interest in him. I do not accept that Indian authorities, including Q Branch, or Sri Lanka authorities have any interest in the applicant due to Y’s encounters with Indian authorities. I do not accept that since his departure from India, that Q Branch personnel have questioned the applicant’s family regarding his whereabouts.
The applicant argued in support of this ground that as the Authority had no information before it about information sharing between Q Branch and the Sri Lankan authorities and about the interest of either of those groups in the applicant’s brother-in-law, it was unreasonable for the Authority not to accept the applicant’s claims.
The Minister submitted that the Authority is not required to have rebutting evidence before it can reject a claim made by the applicant: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348.
The Minister’s submission must be accepted, not only in light of the authorities cited by him (see also CQG15 v Minister for Immigration & Border Protection (2016) 253 FCR 496 at [65]) but also because the obligation of the Authority to “review” the decision of the delegate is to assess, on a basis of a consideration of the material before it, whether it is satisfied that the criteria for the grant of a protection visa have been met. There is not a priori position required to be taken by the Authority in this respect. In other words, it is not required, without more, to accept anything that the applicant says and to not be satisfied of its truth if there is some counter veiling evidence. The third ground is rejected.
Ground 4: The Authority disregarded several factual claims made by the applicant
In his oral submissions, Counsel for the applicant clarified that the ground referenced to “disregarding” in ground 4 was a reference to the Authority not accepting certain claims. In light of that clarification, and given that the Authority clearly had regard to the claims referred to in the ground, the ground is no more than an attack on the merits of the Authority’s decision and does not raise jurisdictional error. The ground is rejected.
Ground 5: The Authority misunderstood the meaning and nature of sub-s.473DD(b) of the Act
This ground concerns the way in which the Authority dealt with information given to it by the applicant. That information was not before the delegate. Such information is “new information” under s.473DC(1) if the Authority considers that it may be relevant. If it is “new information”, the Authority must not consider it except in the circumstances prescribed by s.473DD which provides:
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.
(Emphasis in original)
The Authority considered the application of s.473DD to the information. I infer from that, that the Authority thought the information may be relevant and so was “new information”. It said:
[6] The new information pre-dates, or relates to events that pre-date, the delegate’s decision. The applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant’s claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.
The applicant contends that the Authority made a number of errors in this paragraph. I will deal with each of those matters in turn. First it is necessary to outline the relevant principles concerning s.473DD:
i)the requirements in ss.473DD(a) and (b) are cumulative so that both must be satisfied before the Authority can consider the new information: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [31];
ii)there is no requirement to give reasons for any consideration of the application of s.473DD: BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 at [50]; BVD17 v Minister for Immigration & Border Protection [2018] FCAFC 114 at [42];
iii)given that s.473DD(b) casts an onus on the applicant to satisfy the Authority of the matters before it, the failure by an applicant to explain why he was relying on information for the first time can be sufficient to justify the Authority’s conclusion that s.473DD(b) is not met: AUH17 v Minister for Immigration & Border Protection [2018] FCA 388 at [33]; ABC17 v Minister for Immigration & Border Protection [2018] FCA 254 at [9] – [10].
The errors posited by the applicant, and the answers to them, are as follows:
a)“not taking into account why the new information was not brought forward before the delegate, or any other circumstances”
The applicant did not put forward any explanation as to why the information was not put forward before the delegate. That means that there was no explanation for the Authority to consider.
b)“not addressing itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the Applicant’s claims”
The Authority addressed this question by noting that the applicant had not made any explanation that addressed it. That fact was sufficient for it to conclude that it was not met because of the onus imposed by s.473DD(b).
c)“considering only the fact that the new information which related to events which occurred prior to the Primary decision was being made, was not brought forward before the delegate”
This sentence is taken directly from the decision of CHF16 v Minister for Immigration & Border Protection (2017) 257 FCR 148 at [44]. The sentences in the judgment following that sentence reveal what the Authority failed to do:
… It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims. ...
The Authority did address the questions not addressed in CFH16. In any event, the issue in that case concerned s.473DD(a), not s.473DD(b).
d)“not providing reasons as to what the Applicant may have been asked, may have said, and why it was that the IAA then in a reasoned way considered ‘The applicant did not provide any explanation’ in respect of bi and bii matters [S 473EA].”
There is no obligation on the Authority to give any reasons in respect of its consideration of s.473DD. Thus, the failure to set out any consideration of what the applicant may or may have given by way of explanation does not reveal any error. In any event, it was not a matter for the Authority to speculate about what the applicant might have said to satisfy it of the matters in s.473DD(b).
e)“making findings only as to the requirements of 473DD as if merely repeating the sections was enough to satisfy its ‘statutory task’ to consider the subparagraphs bi and bii...”
The Authority did not simply repeat the relevant provisions. It stated that the applicant had not provided any relevant explanation and, for that reason, it was not satisfied of the matters in s.473DD(b).
f)“applying an inappropriately narrow construction of bi and bii matters by limiting its consideration solely to the question of whether an explanation had been provided for why the Applicant did not obtain the information and submit it to the delegate prior to the Primary Decision being made”
The applicant seeks, in effect, to apply the reasoning of White J in BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221. Again, however, the relevant passages of that judgment concerned the meaning and proper application of the phrase “exceptional circumstances” in s.473DD(a) and not s.473DD(b).
g)“not considering the elements of 473DDbi and bii separately and in the context of 473...”
Again, the applicant’s argument relies on the decision in BVZ16 which does not have any direct application to the facts of this case. In any event, the Authority did consider the two elements in s.473DD(b) separately. That is established by its use of the disjunctive “or” in [6].
None of the errors asserted by the applicant have been established. Ground 5 must be rejected.
Conclusion
The applicant has not established that the Authority’s decision is affected by jurisdictional error. The application must be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 30 November 2018
8
2