BLP18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 256
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BLP18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 256
File number(s): SYG 790 of 2018 Judgment of: JUDGE LAING Date of judgment: 27 February 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA relevantly erred in finding that information was unable to be considered according to s 473DD of the Migration Act 1958 (Cth) – whether the IAA failed to consider material or made a decision affected by illogicality, irrationality or legal unreasonableness – application dismissed Legislation: Migration Act 1958 (Cth) s 473DD Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
Division: General Number of paragraphs: 39 Date of hearing: 12 February 2025 Place: Sydney Counsel for the Applicants: Mr G Foster Solicitor for the Applicants: Sentil Solicitors Counsel for the First Respondent: Mr C Tran Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 790 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLP18
First Applicant
BMC18
Second Applicant
BMF18 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicants seek judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Safe Haven Enterprise (Class XE) (Subclass 790) visas (protection visas).
For the following reasons, the application before the Court must be dismissed.
BACKGROUND
The first applicant (Applicant) is a citizen of Sri Lanka, who arrived in Australia in 2013 as an unauthorised maritime arrival. On 27 January 2017, the Applicant applied for the protection visas. The second applicant, his wife, and the third, fourth and fifth applicants, his children, applied as members of the family unit.
On 23 January 2018, the Delegate refused the application. The matter was subsequently referred to the IAA for review.
On 28 February 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA assessed material that had been provided to it after the Delegate’s decision against the criteria for consideration at [6]-[10] of its decision. The IAA found that the criteria under s 473DD of the Migration Act 1958 (Cth) (Act) were met in relation to an explanation for a date correction regarding when the Tamil Makkal Viduthalai Pulikal (TMVP) were claimed to have visited the Applicant’s mother. The IAA found that the requirements of s 473DD of the Act were not met in relation to a letter from the Applicant’s mother. The IAA did not otherwise find that the additional material contained new information.
The IAA accepted that:
(a)the Applicant was a Tamil from the Eastern Province (at [12]);
(b)the Applicant was a member, and later President of, [an association [Association]) (at [14]);
(c)Association members were harassed by the TMVP, which harassed members to stop their activities and to give money (at [14]);
(d)a number of members of the Association were taken by the TMVP and beaten (at [15]);
(e)as President of the Association, the Applicant wrote a complaint to the Human Rights Commission (HRC) (at [15]);
(f)as a result of the complaint, the Applicant and his wife were attacked at home by members of the TMVP (at [15]);
(g)the Applicant supported the Tamil National Alliance (TNA) at the 2012 election, was asked by the TMVP to support their candidate instead and was harassed by the TMVP at the time (at [16] and [25]);
(h)the Applicant was removed from the voting registration list (at [26]);
(i)the Applicant and his wife departed Sri Lanka illegally and have claimed asylum (at [27] and [30]).
The IAA did not accept that:
(a)TNA supporters and campaigners continued to be harassed post-election (at [21]);
(b)the Applicant's role was of such significance that it attracted the level of adverse attention claimed (at [21]);
(c)the TMVP continued to have an adverse interest in the Applicant after the election or believed that he was the cause of their loss (at [21]);
(d)the TMVP continued to pursue him some months after the election, or again in 2016 at the time of the claimed visit to his mother (at [22]);
(e)that TMVP burned the Applicant’s shop, attacked him or his wife at his home or his mother's home, sent him demands to attend their offices, followed him and telephoned and threatened him, seized his passport from the travel agent, or visited his mother in 2016 (at [25]);
(f)the authorities have a file on the Applicant as the TMVP have passed information to them (at [25]);
(g)the Applicant’s removal from the voting registration list was as a result of any action by the TMVP (at [26]);
(h)the Applicant was imputed with a Liberation Tigers of Tamil Eelam (LTTE) and anti-government profile when he departed Sri Lanka or that he would be so imputed on return (at [36] and [40]);
(i)the Applicant would face harm related to the 2012 election on return to Sri Lanka (at [37]);
(j)the Applicant would face harm on the basis of markings on his hand (at [39]);
(k)the Applicant's fear of harm from the TMVP/Karuna group or the Sri Lankan authorities was well-founded (at [41]);
(l)the Applicant faced a real chance of harm on the basis of his religion or caste (at [42]);
(m)the Applicant’s wife (the second applicant) faced a real chance of harm on return to Sri Lanka (at [43]).
The IAA accepted that the Applicant and his wife may be questioned and charged for illegal departure from Sri Lanka and may face a limited period of detention, in uncomfortable conditions, as well as a fine. Based upon its findings regarding the applicants’ circumstances and country information, the IAA was not satisfied that this would result in serious or significant harm. Further, such consequences were found to result from a law of general application and not to constitute persecution on this basis. The IAA was not satisfied that the applicants would be relevantly harmed due to their profile or as asylum seekers returning from a western country who departed Sri Lanka illegally (at [44]-[55]).
Having regard to the above, the IAA found that the applicants were unable to meet the criteria for the protection visas. Accordingly, the IAA affirmed the Delegate’s decision (at [56]-[65]).
APPLICATION FOR REVIEW
The applicants commenced the current proceeding through an application filed on 23 March 2018. The matter remained in the central migration docket for some time and was previously docketed to another judge before being docketed to me and listed for hearing. The applicants ultimately relied upon a further amended application filed on 14 January 2025 containing the following grounds:
GROUND 1
The IAA erred when it did not consider the information contained in a letter dated 5 February 2018.
Particulars
i. IAA decision para 9 [CB418]:
ii. The IAA considered the letter was new information;
iii.The IAA erroneously considered the Applicant would have provided the information if true to the delegate before the delegate’s decision and the failure to do so led the IAA to doubt the information in the letter is credible
iv.The IAA erroneously was not satisfied the letter contained credible personal information or that the letter could not have been provided to the delegate before the delegate’s decision, nor that there were exceptional circumstances that warrant the IAA considering the letter
v.The IAA erroneously failed to appreciate the Applicant had referred to the incident at 20 [CB134], being part of the Applicant’s Statement dated 4/1/2017. This was before both the delegate’s decision 23/1/2018 and the dated of the letter 5/2/2018, making the letter corroborative of the Applicant’s claim at 20 [CB134].
vi.Even if the letter could have been obtained earlier than the delegate’s decision, the IAA’s rejection of the letter could not have led to the IAA not being satisfied the letter contained credible personal information and so the failure to not consider the information contained in the letter dated 5 February 2018 was unreasonable, illogical and irrational such that the IAA thereby committed jurisdictional error.
GROUND 2
The IAA erred when it found a number of matters were of concern amounting to inconsistencies which, together with other findings, resulted in the IAA finding the Applicant fabricated his account in an attempt to enhance his protection claims.
Particulars
i. Paras 18 [CB422] and 25 [CB424]
ii. The matters referred to at para 18 were:
a.The IAA commenced upon differing dates and specifically referred to the time the Applicant began hiding as being from the time the election results were released which ‘varies considerably from his statement which stated that he began only after his shop was burned on 15 September 2012’, yet there is no information specifying when the election results were released;
b.The IAA referred to the Applicant’s SHEV interview when he claimed he was beaten after his shop was burned in contrast to the Applicant’s Statement which did not mention he was beaten. The IAA failed to acknowledge that applicant mentioned being beaten in his Entry Interview at Q 32 [CB10]
c.Accordingly, the IAA made unreasonable, illogical and irrational findings thereby committing jurisdictional error.
Ground 1
By ground 1, the applicants contended that the IAA erred at [9] of its decision. That paragraph read as follows:
9.A letter addressed to the IAA and English language translation from the mother of Applicant 1 dated 5 February 2018 was not provided to the Minister and is new information. The letter provided details of the claimed visit to her home in November 2016 by members of the Karuna group who threatened to harm Applicant 1. The letter invited the IAA to telephone her to confirm her account. The submission stated that Applicant 1 did not obtain this letter before the delegate's decision as he expected that the delegate would believe his claim. I am not satisfied that there are exceptional circumstances that warrant the IAA considering this information; I note that the applicant provided evidence with his SHEV application in an attempt to corroborate other protection claims, including photographs and letters from third parties. I am also not convinced by the explanation he did not obtain such a letter from his mother previously as he expected the delegate would believe his claim; I note that at the SHEV interview the delegate put the applicant on notice that he had difficulty accepting that the applicant would have been of interest to the Karuna group in 2016/2017 because of his minor role in the 2012 election and the delegate referred to country information that indicated that the Karuna group and Karuna himself was no longer an influential power in Sri Lanka by that time. I consider that the applicant would have provided this information, if true, to the Minister before the delegate's decision and his failure to do so leads me to doubt that the information in this letter is credible. The applicant has failed to satisfy me that this letter contains credible personal information, nor am I satisfied it could not have been provided to the delegate before the delegate's decision was made. I have considered the invitation to contact the author of the letter, however I do not consider the circumstances warrant the IAA getting further information from the mother of Applicant 1.
The applicants submitted that the IAA erroneously failed to appreciate that the Applicant had referred to the incident in his statement dated 4 January 2017. The applicants submitted the information contained in the letter was not new information. The IAA’s finding that the letter did not contain credible personal information was contended to have been illogical, irrational or unreasonable because the same information had been given earlier. In this regard, the applicants submitted that the IAA failed to consider whether the letter was corroborative of a real event.
I accept that the Applicant had earlier claimed that the incident involving his mother had occurred. I do not accept that this was not appreciated by the IAA, nor that the IAA did not appreciate that the letter had been provided to corroborate that account.
I am not persuaded that the letter did not contain “new information”, simply because it referred to an event that had otherwise been claimed by the Applicant. The information contained in the letter was capable of falling within the meaning of “new information”, being “communication of knowledge about some particular fact, subject or event”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [24] per Gageler J (as his Honour then was), Keane and Nettle JJ. Although the letter referenced an incident that the Applicant previously claimed had occurred, it communicated what was represented to have been first-hand knowledge from another person (the Applicant’s mother), including details regarding her depiction of the incident. Such information was not identical to information that had previously been given by the Applicant.
The applicants submitted that the IAA failed to consider the contents of the letter and whether it could have been corroborative in assessing whether the letter contained credible personal information in the requisite sense.
I am unable to accept this. It is apparent that the IAA was conscious of the information that had earlier been given regarding the incident, which was not new information. This was both in assessing the mother’s letter under s 473DD and later in its decision when considering the claims and evidence that were before it. At [9], the IAA observed that the letter contained details regarding “the claimed visit” to the mother’s home in 2016. It expressed concern that the letter had not been provided previously, despite the Applicant’s provision of other evidence “in an attempt to corroborate other protection claims”. The IAA was therefore aware of the previous material before it regarding the claim (which it did not regard as new information) and was conscious that the letter was being provided in order to corroborate what the Applicant had previously said.
However, the IAA had concerns regarding the reasons why the corroboration had not been provided earlier. The IAA was not persuaded by the explanation that the letter had not been obtained before the Delegate's decision as the Applicant had expected that the Delegate would believe his claim. This was in circumstances where the Applicant had provided other corroborative evidence earlier. It was in circumstances where the Delegate had put the Applicant on notice at interview of difficulties in accepting that the Applicant would have been of interest to the Karuna group in 2016 or 2017 for the reasons claimed. The IAA therefore considered that the letter would likely have been provided earlier if it had been true and found that the fact that it hadn’t caused doubts regarding whether it was credible. The IAA was ultimately not persuaded that the information was credible personal information in the requisite sense.
The applicants have not demonstrated that this process of reasoning was relevantly closed to the IAA. It is apparent from the above that the IAA was aware that the letter had been provided for the purpose of corroboration but was nonetheless not persuaded that it was credible personal information. The applicants have not demonstrated that the IAA was unable to take into account the late provision of the document, or its concerns regarding the explanation given, in assessing whether the letter was credible personal information. Although another decision maker may have reasoned differently, this is not sufficient to meet the high thresholds associated with grounds such as illogicality, irrationality and legal unreasonableness: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131]-[135] per Crennan and Bell JJ and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] per Kiefel CJ.
Later in its decision, the IAA acknowledged the claim of what had happened at the mother’s house at [11], doubted the claim at [22] and rejected the claim at [25]. It has not been demonstrated that the IAA’s rejection of the claim in the substantive part of its reasoning was relevantly closed to the IAA. Therefore, to the extent that the claim was not new information, it was (in any event) considered and determined by the IAA.
Ground 1 is therefore unable to succeed.
Ground 2
Ground 2 contended that the IAA’s reasoning at [18] was unreasonable, illogical or irrational.
The IAA’s reasoning at [18] was as follows (footnote omitted):
18.Country information advises that the Provincial Council election in the Eastern Province on 8 September 20125, which is largely consistent with the applicant's claims. In his statement of claims the applicant stated that a few days after the election result he was closing his store on 15 September 2012 when 10 men came in a van, at which point he ran away. The men then went to his home, broke in and assaulted his wife, after which they returned to his shop and burnt it. The applicant then moved to a nearby village. At the SHEV interview he provided differing dates from the time he went into hiding and in part this could be attributed to a minor inaccuracy in the recall of dates. Although I accept that a variation in dates may not be significant I would expect the applicant's account to be consistent in regard to significant particulars. But at his SHEV interview the applicant stated that he began hiding with relatives from the time the election results were released, which varies considerably from his statement which stated that he began hiding only after his shop was burned on 15 September 2012. The variations in the applicant's account of the events that occurred on 15 September 2012 is also of concern; at his SHEV interview he stated that after the shop was burned he went to his mother's and was pursued there by the TMVP where he was beaten. In his statement of claims the applicant does not mention that he was beaten by the TMVP, and, if true, I am surprised that he failed to mention such a significant incident in his statement of claims. At the SHEV interview the applicant stated that he lodged the police report on the night the shop was burned; however the police report provided by the applicant is dated and signed 25 September 2012, some ten days after the claimed incident.
The above concerns, together with other issues identified in the evidence, resulted in the IAA’s rejection of a number of the Applicant’s claims at [25].
The applicants submitted that it was not open for the IAA to have considered that the Applicant’s claim about when he went into hiding was inconsistent. The applicants submitted that when the Applicant began hiding involved a comparison between the first explanation (from the time the election results were released) and the alternate explanation (only after his shop was burned on 15 September 2012). It was submitted that the date for the latter was 15 September 2012, however there was no date for the former. The applicants submitted that it was therefore not possible to find an inconsistency. At most, the difference in time was submitted to have been a matter of days. The applicants contended that it was not open to the IAA to have found that the Applicant’s account in this regard “varie[d] considerably”.
However, the concern of the IAA appears to have not been the number of days of potential variation, but the significance of the events said to have preceded the Applicant going into hiding. In the Applicant’s statement, it was suggested that it was the burning down of the Applicant’s store “a few days after the results were released” that prompted him going into hiding. In contrast, at interview the Applicant suggested that it was the election results that had prompted him to go into hiding. This was in circumstances where the Applicant had claimed that, in the intervening period, significant events had occurred such as people coming to the Applicant’s home and assaulting his wife.
I am not persuaded that it was logically closed to the IAA to have been concerned by this variation in the evidence. Although, as the IAA considered, variation in dates alone may not have been significant, it was open to the IAA to have been concerned at variation in the nature and order of significant events that were claimed to have taken place.
Ground 2 also took issue with the IAA’s concern that the Applicant had not mentioned in his statement of claims his claim at the SHEV interview that he was beaten. The applicants observed that the Applicant had referred to being beaten in his Entry Interview (at CB 10). The applicants contended that this evidence was overlooked or not meaningfully engaged with and that this resulted in unreasonable, illogical and irrational findings. The applicants observed that the statement of claims at CB 131 had expressed that it was not an exhaustive statement of the Applicant’s claims.
The Applicant’s evidence in his Entry Interview was relevantly as follows:
…I was working for this Youth committee, as I previously said… the people came and said you shouldn’t work for the committee or… (missed section, was unable to capture) They warned me two or three times, after the 8th month they burned my shop and they came to my home and they beat me up…
I accept the Minister’s submissions as to why there is insufficient basis for finding that this evidence was overlooked or that the IAA’s findings in this regard were relevantly closed to it.
The IAA was not obliged to refer in its reasons to every piece of evidence and every contention that was before it: see for example Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [36] (Reeves, O’Callaghan and Thawley JJ). Non-reference to particular material does not, in and of itself, demonstrate that the material was not considered.
The IAA’s concern, expressed at [18], was not that the Applicant had never previously claimed to have been beaten by the TMVP. Rather, the concern expressed at [18] was that the Applicant had omitted such a significant incident from the written statement of claims that he had provided in support of his protection visa application.
The Entry Interview, conducted some years prior to the Applicant’s protection visa application, (at least potentially) did not have the same significance as the Applicant’s statement of claims in support of the application. Although the statement had indicated it was not an “exhaustive” statement of the Applicant’s claims, it was still an important expression of them. I am not persuaded that it was closed to the IAA to have been concerned that a claim of such significance as the claimed beating was not mentioned in this document.
Further, the claim in the Entry Interview regarding the beating was inconsistent with the Applicant’s claim in the SHEV interview regarding the beating. In the Entry Interview, the Applicant claimed that he was beaten at his home. In contrast, in the SHEV interview, the Applicant claimed that he had been beaten at his mother’s house. The evidence in question, therefore, did not unambiguously support a finding of consistency in relation to the Applicant’s claims.
Taking these matters together, I am not persuaded that the evidence in question was so central, cogent or substantial that an inference ought to be drawn that the IAA failed to consider it, in the requisite sense. A more likely inference is that the IAA did not consider that the reference in the interview answered the concern raised at [18], or otherwise necessarily counted for or against its acceptance of the Applicant’s account in any material sense.
The applicants have not demonstrated that such an approach was closed to the IAA on the material before it. In the context of the matters considered above, I find that it was open to the IAA. The applicants have not demonstrated, with sufficient clarity or detail, why this reasoning was illogical. This is in circumstances where I have not accepted the applicants’ contention that the IAA failed to consider the evidence in question.
Having regard to the above, ground 2 is unable to succeed.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 27 February 2025
SCHEDULE OF PARTIES
SYG 790 of 2018 Applicants
Fourth Applicant:
BMG18
Fifth Applicant:
BMH18
0
7
1