BKO17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1234
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BKO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1234
File number(s): SYG 3475 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 18 November 2024 Catchwords: MIGRATION – protection visa – application for review of decision of the then Immigration Assessment Authority – whether Authority was unreasonable in deciding not to consider some new information that was not before the delegate – whether Authority was unreasonable in failing to consider getting new information – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 36, 35, 473BA, 473DA, 473DB, 473DC, 473DD, 473EA, 476) Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272
BVD17 v Minister for Immigration & Border Protection [2019] HCA 34; (2019) 373 ALR 196
Craig v South Australia (1995) 184 CLR 163
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 530
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 22 October 2024 Place: Sydney Counsel for the Applicant: Mr Foster Solicitor for the Applicant Sentil Solicitors Solicitor for the Respondents: Mr Knuckey of Mills Oakley Lawyers ORDERS
SYG 3475 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKO17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration and Multicultural Affairs.
2.The name of the Second Respondent be amended in the title of the proceeding to Administrative Review Tribunal.
3.The application as further amended on 10 October 2024 is dismissed.
4.The Applicant pay the First Respondent’s costs 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 Mansini
IN SUMMARY
The Applicant is a citizen of Sri Lanka of Tamil ethnicity who sought protection of Australia on the basis of claims to fear harm from Sri Lankan authorities on his return because of his ethnicity, as a failed asylum seeker and imputation of political support for the LTTE and opposition to the government.
The Applicant now seeks judicial review of an administrative decision to affirm an earlier decision to refuse him a protection visa.
For the reasons that follow, the application is dismissed.
CONTEXT
On 23 October 2013, the Applicant arrived in Australia as an unauthorised maritime arrival.
On 1 September 2016, the Applicant made application for a safe haven enterprise visa (the protection visa).
On 20 January 2017, a delegate of the First Respondent refused to grant the protection visa application.
The Applicant subsequently sought review of the delegate’s decision and, on 28 February 2017, provided a submission to the then Immigration Assessment Authority (Authority).
On 8 March 2017, the Authority affirmed the delegate’s refusal decision.
On 1 September 2017, the Court made orders by consent remitting the decision to the Authority and, on 19 October 2017, the Authority affirmed the decision under review.
The Authority’s decision
The Authority’s decision commenced with a short summary of the Applicant’s claims to fear harm as before it: at [2]. There, the claims were expressed in terms that the Applicant feared harm because of his Tamil ethnicity, because he was imputed to hold a political opinion of support for the LTTE and opposition to the government, and because he would return to Sri Lanka as a failed asylum seeker. He claimed that he would be imputed with an adverse political opinion because of his Tamil ethnicity, because he originated from an area formerly under LTTE control, because his brother was a member of the LTTE and because he had sought asylum. Further, the Authority noted that the Applicant had also claimed to fear harm from groups who were opposed to the Tamil National Alliance (TNA) and the Tamil Arasu Kadchi (TAK), political parties to which he had provided assistance in 2010 and 2012.
At [5] to [10] of the reasons, the Authority explained the information that it had considered, obtained and not considered in the conduct of its review. It is those paragraphs with which this application is concerned.
In particular, at [8] and [9] where the Authority found:
[8] The submission contained a new claim which is new information, that after the SHEV interview the applicant spoke to his father who told him that the CID had visited him recently in Jaffna during a cordon and search operation. They had mentioned that the applicant’s name was among those known to them as a person who had fled illegally to Australia by boat, and this had been disclosed in the databases mistakenly released by the Department of Immigration. The applicant’s father was beaten by the CID because he had permitted the applicant to leave illegally and they threatened to prosecute him on return. Because the applicant is suspected of membership of the LTTE he would be imprisoned under the Prevention of Terrorism Act (PTA) on return, and he could be detained for a long time without being brought before a court.
[9] The applicant has not specified exactly when this conversation with his father took place. There was a period of four weeks between the SHEV interview and the delegate’s decision, and the applicant was informed at the interview that any additional information he provided before a decision was made would be considered. The information refers to the applicant’s father having been questioned in Jaffna, when all the other information indicates that the family resides in Batticaloa and there is no explanation as to why the applicant’s father would have been questioned in Jaffna. The applicant did not raise concerns about the data breach at the SHEV interview, although he referred to it briefly in the SHEV application. There is no other information before me to indicate that he was affected. In all the circumstances, the applicant has not satisfied me that this information could not have been provided to the delegate before the decision was made, or that it is credible personal information which may, if known, have affected the delegate’s consideration of his claims. I am also not satisfied that there are exceptional circumstances which justify consideration of the information.
APPLICATION BEFORE THE COURT
On 13 November 2017, the Applicant commenced these proceedings by originating application for judicial review of the Authority’s decision accompanied by a short affidavit dated 11 November 2017
On 14 December 2017, a response was filed on behalf of the First Respondent by which it was contended that the application ought be dismissed with costs.
On 16 January and 27 February 2018, a court book and supplementary court book were filed.
On 27 February 2018, an amended application was filed which was ultimately replaced by a further amended application lodged on 5 October 2024 and accepted for filing on 10 October 2024. Leave to file that further amended application was not opposed and was granted at hearing. The Applicant also sought to rely on an outline of submissions filed on 10 October 2024 which was received and an affidavit dated 9 October 2024 which was opposed but received subject to a ruling on relevance (being the ground of opposition, addressed below).
The First Respondent also sought to rely on written submissions of 21 October 2024. Leave not opposed.
On 22 October 2024, the matter proceeded to hearing before the Court as presently constituted. The Applicant was represented by Counsel and the First Respondent was represented by a solicitor advocate.
Grounds of application
By the further amended application, the Applicant pressed 2 grounds of review in the following terms:
GROUND 1
The IAA erred when it did not consider new information provided by the Applicant concerning his father having been visited by the CID as a result of information made public by a data breach ‘the CID information’, and thereby made unreasonable findings and so committed jurisdictional error.
GROUND 2
The IAA erred when it failed to consider getting new information in respect of when the Applicant spoke to his father from Jaffna who provided new information to the Applicant concerning a visit to the father by the CID ‘the CID information’, when the new information was relevant to the Applicant’s claims, as a result of which the IAA thereby made unreasonable findings and so committed jurisdictional error.
Statutory context
A “privative clause decision” as defined at s.474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria 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.
An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act (as in force at the relevant times) governed the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, included a decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act was arranged in eight divisions comprising ss.473BA - 473JF.
Division 1 of Part 7AA commenced with a self-described “simplified outline” at s.473BA including that Part 7AA provided a limited form of review in relation to the decisions known as fast track reviewable decisions. A fast track applicant could not apply for review directly to the Authority and decisions of this kind were otherwise generally not reviewable under the Act. In conducting its review, the Authority was required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3. The Authority did not hold hearings and was required to conduct its review on the papers save that, in exceptional circumstances, it could consider new material and could invite a referred applicant to provide, or comment on, “new information”.
Section 473DA provided that Division 3 (among two other provisions which are presently immaterial) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provided that, subject to Part 7AA, the Authority was required to review a fast track reviewable decision that had been referred to it by considering the review material provided to it and to do so “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subdivision C of Part 7AA, most relevantly at ss.473DC and 473DD, concerned how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
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.
By s.473EA of the Act, a decision of the Authority on Part 7AA review was required to be accompanied by a written statement which set out both “the decision” on review and “the reasons for the decision”.
GROUND 1
By the first ground of review, the Applicant took issue with the Authority’s decision not to consider “new information” provided by the Applicant on 28 February 2017 which was after the delegate had refused the protection visa application.
The new information subject of this ground was the following paragraph of the Applicant’s submission dated 28 February 2017:
After the interview I spoke to my father and I found that the CID had visited my father recently in Jaffna during cordon operation in search of people having LTTE links. They had mentioned that my name was among those who fled by illegal boat to Australia which they found in the Australian database that was mistakenly released by the Immigration Department. I received a letter from the Department apologizing for the mistake done but the department officer who rejected my claims failed to consider the danger that I would face on my return. Further people who fled from Sri Lanka in fear of the war would be fined and released by the Magistrates on their return back to Sri Lanka. In my case I am a suspected LTTE member who would be considered as a threat to the country’s security and would be sentenced to prison under the PTA. The department officer simplified my claims as not noteworthy. My father was beaten by the CID officers for permitting me to leave the country by illegal means and had threatened to prosecute me on my return. I have a LTTE profile and even if I had not involved in the war against the SLA.
(sic.).
The argument was confined to the nature of the assessment undertaken for purposes of s.473DD(b)(ii) which the Applicant contended was unreasonable.
Applicable principles
The established principles have developed since the Authority’s decision in this matter, but nonetheless apply to the present case and were not contentious.
The High Court of Australia in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (AUS17) outlined the proper approach to the assessment at s.473DD. The Authority is first to determine whether either of the limbs to s.473DD(b) are engaged and, only in the event of an affirmative engagement, may it turn to consider whether it is satisfied that there are “exceptional circumstances” for purposes of s.473DD(a) and as to justify its consideration of the “new information”.
In undertaking an assessment of whether new information is “credible personal information” for purposes of s.473DD(b)(ii), the authorities make it clear that the threshold for what is “credible” is a relatively low bar - all that is required is that the Authority reach the state of satisfaction that the new information is information which is capable of being accepted as truthful or accurate or genuine, as distinct from an assessment of whether the new information is true: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [40]; subsequently endorsed by a majority of the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 (BTW17) at [75]-[77] and since applied in DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 530 at [57]. In BTW17, at [76]-[77], the Full Court included the following explanation of the task which is apt to the present case:
[76] Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa application (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority; they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
[77] Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority that new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
In assessing what is “credible” in the context of s.473DD(b)(ii), some consideration is required to be given to the substance of the new information as to decide whether it is capable of being believed and it will be an error to treat a failure to disclose new claims to the delegate as “decisive” of the consideration at s.473DD(b)(ii): BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272 at [144] (BTA18).
Was the Authority unreasonable in its application of s.473DD?
The Authority considered the substance of the “new information” subject of this first ground at [8] of its reasons (extracted above). At [9], the Authority when on to assess this class of new information against the s.473DD filters (also extracted above).
The reasons disclose that the Authority had regard to each of the following factors before making a finding in relation to each of ss.473DD(b)(i), (b)(ii) and (a) (in that order and albeit without expressly citing the statutory provisions):
(a)the absence of specificity as to exactly when the subject conversation with the Applicant’s father was claimed to have taken place;
(b)that there was a period of 4 weeks between the SHEV interview with the delegate and the delegate’s decision and that the Applicant had been informed at interview that any additional information he provided before a decision was made by the delegate would be considered;
(c)that all the other information before the Authority indicated that the family resided in Batticaloa and there was no explanation for why the father would have been questioned in Jaffna as claimed;
(d)that the Applicant had raised concerns about the data breach briefly in his protection visa application but not at the SHEV interview before the delegate; and
(e)that there was no other information before the decision maker to indicate that the Applicant was affected (understood to mean affected by the data breach).
No issue taken and for present purposes it is accepted that the Authority’s reasons disclose that it considered each of the elements of s.473DD and in the correct order in accordance with the guidance set out in AUS17.
In relation to its assessment of s.473DD(b)(ii), which was the focus of this first ground, the Authority gave clear and cogent reasons for the factors taken into account (as outlined above) which were a basis for its finding that the new information was not capable of being believed. It undertook this assessment at a threshold level, as distinct from assessing the accuracy or truth of the information, as it was required to do. Although it was a factor considered, timing of the provision of the new information was not the sole or decisive consideration.
It is correct that the Authority did not know (because the Applicant, in providing his new information, did not say) when the new information came to his knowledge other than that it was after the interview. It was reasonable for the Authority to conclude that it was not able to be satisfied that this new information could not have been before the delegate as to meet the criterion at s.473DD(b)(i).
In any event, if the Applicant’s case were taken at its highest and it were accepted that the distance between Batticaloa and Jaffna is approximately 370 kilometres, that evidence was not before the Authority at the relevant time. Such evidence would not change the fact that the information that was before the Authority, however aged (dating back to 2005, 2012 and 2017), in each respect indicated that the Applicant’s father and family were resident of or near to Batticaloa and there was no explanation of why the discussion with the Applicant’s father took place in Jaffna. Accordingly, I discern no fundamental error of fact on the materials as might underscore a finding of unreasonableness in respect of the Authority’s decision regarding the filter at s.473DD(b)(ii).
For the above reasons, it was open to the Authority to find as it did that the new information was not “credible” personal information for purposes of ground s.473DD(b)(ii) and it is not for this Court to substitute that finding with one that it would have preferred.
GROUND 2
By the second ground of review the Applicant took issue with the Authority’s failure to “get” new information. This ground was focussed on the issue of when it was that the new information was given to the Applicant by his father. The Applicant contended that this information was of critical relevance to the decision to reject the new information in applying s.473DD and was a fact it may have been possible for the Authority to ascertain had it elected to utilise its power under s.473DC.
Applicable principles
The authorities make it clear that there was no obligation on the Authority to “get” new information. The provision for getting new information under s 473DC is expressed in discretionary terms as distinct from mandatory (“may” not “must”). It does not constitute a duty on the Authority to get, search for, request or accept any new information that was not before the Minister in any circumstances.
Further, the Authority is under no obligation to express its reasons for deciding whether to exercise its discretion to get new information under s 473DC (if it were considered at all): APH17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 23 at [58] citing BVD17 v Minister for Immigration & Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [40].
It was not controversial that the discretion conferred on the Authority by s.473DC(3) is subject to the implied condition that it be exercised within the bounds of reasonableness: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21].
Was the Authority unreasonable in not getting new information?
In arguing this ground, the Applicant inherently accepted the Authority’s finding that he had not detailed when the new information was provided to him by his father other than that it was after the SHEV interview. As a matter of fact, it was not known whether that was during the period (of some 39 days) between the SHEV interview and before the delegate’s decision was delivered or after the delegate’s decision because the Applicant did not so inform the Authority.
The Authority did not give reasons about the matter but nonetheless it remains that there was no obligation on the Authority to utilise the discretionary power at s.473DC(3) in order to reach the state of satisfaction required at s.473DD and, in turn, to receive the new information.
For completeness, nor was there any obligation on the Authority to invite the Applicant to attend an interview for this purpose pursuant to the power at s.473DB.
Against the context of the then fast track framework and the overarching objectives of the legislation, there was nothing unreasonable about the Authority’s decision not to get new information in order to probe the Applicant’s request to have new information considered.
This second ground is not made out.
DISPOSITION
For the above reasons, the application must be dismissed. I will order costs fixed in the scale amount.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 18 November 2024
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