Bok17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 846
•29 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BOK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 846
File number: SYG 1102 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 29 April 2021 Catchwords: MIGRATION – Protection – temporary protection visa – refusal – review of Immigration Assessment Authority (“IAA”) decision.
ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdiction error by reason that the IAA unreasonably failed to make inquiries under s.473DC of the Migration Act 1958 in circumstances where its conclusion on the credibility of a document differed from that of the ministerial delegate.
Legislation: Migration Act 1958, ss.5, 5H, 5J, 36, 473BB, 473CA, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 474
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4
Federal Circuit Court Rules 2001, r.13.03C
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
ABT17 v Minister for Immigration (2020) 94 ALJR 928
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Plaintiff M174/2016 v Minister for Immigration and Citizenship (2018) 264 CLR 217
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456
Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S154/2002 (2003) 77 ALJR 1909
Number of paragraphs: 30 Date of hearing: 18 March 2021 Place: Sydney Counsel for the Applicant: Mr O. Jones by videolink Solicitor for the Respondents: Ms D. Watson (Australian Government Solicitor) by videolink ORDERS
SYG 1102 of 2017 BETWEEN: BOK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE CAMERON:
The applicant is a citizen of Sri Lanka who arrived by boat at the Cocos Islands on 19 October 2012 without a visa permitting him to enter and stay in Australia. On 8 February 2020 he lodged an application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his imputed political opinion and imputed relationship to the Liberation Tigers of Tamil Eelam (“LTTE”). On 9 September 2016 a delegate (“Delegate”) of the first respondent (“Minister”) refused the applicant’s application and referred his case to the second respondent (“IAA”) for review. The applicant was unsuccessful before the IAA and he has applied to this Court for judicial review of the IAA’s decision.
On 9 November 2020, the matter was listed for hearing. There was no appearance by the applicant and on the application of the Minister the proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”). That order was set aside on 28 January 2021.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
FAST TRACK REVIEW LEGISLATIVE FRAMEWORK
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Definitions
Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
The applicant is a fast track applicant.
Section 5(1) also defines a "fast track decision" as a decision to refuse to grant a protection visa to a fast track applicant. A "fast track reviewable decision" is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Fast Track Process and Procedures
Part 7AA of the Act sets out the IAA fast track process and procedures.
Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. Division 3 relevantly provides:
473BB Definitions
In this Part
…
new information has the meaning given by subsection 473DC(1).
…
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a)without accepting or requesting new information; and
(b)without interviewing the referred applicant.
…
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.
…
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.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the criteria for the grant of a protection visa have been found in s.36 of the Act, supported by the definitions of “refugee” and “well-founded fear of persecution” set out in ss.5H and 5J of the Act respectively.
BACKGROUND FACTS
Protection visa claims
In its decision the IAA summarised the facts alleged in support of the applicant’s SHEV application. As summarised by the IAA, the applicant relevantly made the following claims in that visa application:
(a)he is a Tamil from the Northern Province of Sri Lanka;
(b)in January 2007, he was at an army camp when a bomb exploded and killed a bystander next to him. He was then arrested and questioned by Sri Lankan police for five days, although was released home each night;
(c)he was then detained by army intelligence and questioned about his knowledge of the bomb explosion and any connection to the LTTE. He was also told to say that the bystander was killed by the LTTE, which was contrary to news reports that attributed the bystander's death to the army;
(d)he admitted to a limited connection with the LTTE, having being forced to attend events because he had no father to shield him from attending. The army accused him of attending voluntarily and he assumed that there had been an army spy at the events. Both the police and army assaulted him;
(e)after the bomb incident he had to report regularly to a Criminal Investigation Division ("CID") camp where occasionally he was assaulted and verbally abused;
(f)he worked as a mine clearer from February 2007 to June 2012;
(g)after he began living at a work camp, he reported to the CID less frequently and eventually stopped reporting. In late 2007 the CID came to his family home while he was visiting and confiscated the army-issued ID that he needed in order to travel within the Northern Province. The CID accused him of hoarding mines for the LTTE;
(h)in 2008, the army twice denied him permission to travel to Colombo where he had wanted to arrange to travel overseas for work. He spoke to a lawyer who suggested he could complain to the Human Rights Commission of Sri Lanka ("HRCSL") but he did not because he was required to complain to the police as the first step;
(i)at the end of 2011 he stopped reporting to the CID because the persecution against him was getting worse and he was unable to provide them with the information they wanted;
(j)in July 2012 he stopped working as a mine clearer and the CID went to his home to question why he was not reporting. The CID confiscated his national ID card but he retrieved it 2-3 days later at the army camp;
(k)in mid-2016, a suicide bomb vest was located in his home-town. One of his relatives, Mr M, and another person were arrested. The police learnt that Mr M had visited his family home regularly. Mr M was detained by the police in Colombo and a search of his telephone records showed contact with the applicant. The police asked the applicant's brother whether the applicant had returned to Sri Lanka from Australia; and
(l)the Sri Lankan authorities were aware he was not in Sri Lanka because he has not collected his rations.
The applicant supplied a copy of a letter dated 10 January 2016 from the lawyer he had consulted after he had been denied permission to travel to Colombo. The letter relevantly said:
TO WHOM IT MAY CONCERN.
This is to certify that [the applicant] … is known to me. … He was threatened by Srilankan government forces on the allegation of helping to the LTTE in 2008. The [applicant] was lived in fear at that time because several youths were shot and killed by unidentified arms person. He also warned by the Srilankan Military intelligent unit for had contact with the LTTE. Thereafter he was hiding for some to avoid security problem. Then he decided to seek the protection from Human Right Commission, Jaffna Branch.
The Human Right Commission had advice the people who seek this kind of Protection to surrender them to police and to be kept on remand for their security. The [applicant] also soughed this security. Later had been release from the prison and he decided to leave the country for his personal security. Then He left the country in year 2012.
…
The applicant advised that this letter was incorrect to the extent that it stated that he had made a complaint to the Human Rights Commission of Sri Lanka.
The Delegate concluded as follows in relation to the lawyer’s letter:
While there is nothing before me to consider this letter to be bogus, it appears to restate the applicant's testimony and I acknowledge that the lawyer is representing the applicant's interests. When asked at interview what the purpose of the letter is, the applicant said to support his application. Although I have accepted elements of the applicant's claims (above) which the letter primarily refers to, given that the letter does not contain any persuasive evidence and given the nature in which it has been obtained, I do not afford it any weight in my assessment.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA's presently relevant findings were summarised by the Minister in his written submissions in the following terms:
8.The IAA accepted that the applicant was a Tamil from the north who had attended some LTTE activities while in Sri Lanka.
9.The IAA summarised aspects of the applicant’s claims as assessed by the delegate at [2] of the decision. … It is noted that the delegate had made findings that the applicant was evasive and vague at interview.
10.The IAA accepted the applicant’s claim that he had been a witness to a bombing incident at an army camp in January 2007. The IAA further accepted that he had been detained for questioning by the police and the army after that incident and that he had been assaulted during the questioning. It was also accepted that he was pressured into placing the blame for the bombing on the LTTE.
11.However, the IAA noted that the applicant had been released and was not charged with any offence. While he made claims that he was required to report to authorities after his release, his claims about this were not accepted by the IAA as he gave inconsistent accounts. Rather, the IAA considered that, while he may have had to report daily, the subsequent behaviour of the authorities indicated that he became of less interest to them and ultimately was not required to report.
12.The IAA also noted that the applicant worked for a number of years as a mine clearer. It was accepted that he was accused of hoarding mines for the LTTE, however he was never arrested or charged with any offence and continued to work in this capacity for about 3 years.
13.At the interview with the delegate a further claim was made regarding some recent events in Sri Lanka where it was claimed that the authorities found a suicide vest in the applicant’s village and mistakenly thought that a cousin who was visiting from overseas was the applicant. The recounting of this story was considered to be very confused and the IAA ultimately concluded that the claim lacked credibility. Another claim that the authorities had prevented the applicant from leaving Sri Lanka was considered to be vague. While he claimed to have consulted a lawyer to assist him with these issues, and presented a letter from a lawyer, the IAA noted that certain parts of the lawyer’s letter were inconsistent with the claims made by the applicant in that additional claims of fear of harm from the authorities were made in that letter which had not been made by the applicant and it was considered not to be a genuine document. This led the IAA to consider that, in providing a non-genuine document to support his claims, his credibility was undermined generally and rejected his claim that the authorities had prevented him leaving Sri Lanka and that he had consulted a lawyer.
14.The IAA was not satisfied that the applicant had a profile which would bring him to the attention of the authorities as someone connected with the LTTE. The IAA noted that not every Tamil was imputed with a pro-LTTE political opinion.
…
(emphasis added) (references omitted)
I adopt that summary.
The proceeding in this Court
In his amended application the applicant alleged:
1.The Second Respondent (Authority) made a jurisdictional error in relation to the genuineness of a document.
a.The Authority found at paragraph 21 of its decision that the letter from the lawyer was not genuine;
b.The Authority found, therefore, at paragraph 21 of its decision that it was not satisfied that the authorities prevented the Applicant from travelling overseas and that the Applicant’s credibility suffered generally;
c.The Delegate had not found the letter not to be genuine and had not perceived in the letter the inconsistency with the Applicant’s case found by the Authority;
d.The Applicant had provided the letter while at all stages noting its inaccuracy in a particular respect, being that he had not made a complaint as advised to the Human Rights Commission;
e.The Authority was required to show caution in relying upon inconsistency as a basis for untruth in relation to the Applicant’s claims: MZZJO v Minister for Immigration [2014] FCAFC 80; 239 FCR 436 at [56]-[57]; AVQ15 v Minister for Immigration [2018] FCAFC 133; 266 FCR 83 at [28]. It followed that the mere fact that the letter referred to a claim not otherwise made by the Applicant did not necessarily mean that it was not genuine;
f.The Authority’s failure to exercise its power to get new information under s 473DC of the Migration Act 1958 (Cth) was judicially reviewable for legal unreasonableness where there was no evident and intelligible justification for refraining from exercising the power: ABT17 v Minister for Immigration [2020] HCA 34.
g.There was no relevant justification in the present case for the Authority failing to inquire with: (i) the author of the letter as to its genuineness; (ii) the proper authorities as to the status of the author; and / or (iii) the Applicant as to the truth of the new claim referred to in the letter.
h.This lack of justification arose in circumstances where: (i) the Delegate had not found the letter not to be genuine; (ii) a finding of lack of genuineness was a serious matter; (iii) the lack of genuineness was not obvious from the face of the letter; (iv) the genuineness of the letter was material to the Authority’s conclusions and (v) it would have been a straightforward matter for the Authority to endeavour to make inquiries of the author, the proper authorities or the Applicant;
i.Further to (iv) above, the Authority’s conclusion that the letter undermined the Applicant’s credibility generally meant that its finding “contaminated the foundation” of its decision, in light of the “complexity of the anatomy of decision-making”: SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [45] per Lee J; DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 at [50] per Beach J.
CONSIDERATION
The issue is whether, on the basis that the credibility of his lawyer’s letter of 10 January 2016 was material to the applicant’s own credibility with the IAA and thus also to its ultimate finding on the review, it had been legally unreasonable of the IAA to “refrain from making inquiries under s 473DC of the Act” before concluding that that letter was not genuine. The applicant submitted:
23.… The Authority could variously have made inquiries with the author of the letter or the Applicant before concluding that the lettter [sic] was not genuine. At the very least, the Authority could have clarified with the Applicant that a particular claim in the letter on behalf of the Applicant was inaccurate before relying on the same as necessarily indicating a lack of genuineness.
The relevant finding of the IAA was expressed as follows:
21.In relation to his consulting a lawyer, the applicant provided a letter from a lawyer. In his SHEV statement and interview, he noted the letter was incorrect to the extent it states the applicant made a complaint to the HRCSL. He did not take the lawyer's advice to make such a complaint. However, that is not the only aspect of the letter which is otherwise inconsistent with the applicant's claims. The letter further states the applicant was threatened by the Sri Lankan authorities in 2008 on an allegation he assisted the LTTE. He then went into hiding. He then went into protective custody of the police, but was released from prison. The applicant has not made any such a claims elsewhere. These inconsistencies between the content of the lawyer's letter and the applicant's claims cause me to conclude the letter is not a genuine document. …
The applicant relied on ABT17 v Minister for Immigration (2020) 94 ALJR 928 to argue that a decision of the IAA may be judicially reviewed where the authority has failed to exercise its discretion to get new information under s.473DC of the Act in circumstances where there was no intelligible justification for not doing so.
The High Court has made it clear, the judgment in ABT17 being a recent occasion, that the IAA’s power to get and consider new information is conferred on the implicit condition that that power must be considered and, where appropriate, exercised within the bounds of reasonableness. In circumstances such as in this case, where the power to get and consider new information has not been exercised and there is no discussion in the IAA’s reasons of whether to seek new information under s.473DC, a failure to consider the use of that power may be inferred if there is no intelligible justification for the IAA not having exercised it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445 [44]. Therefore, in this case, the threshold issue is whether there is no intelligible justification for the IAA not having sought new information before going on to conclude that the lawyer’s letter was not genuine.
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 provides some guidance as to what might or might not be an intelligible justification for not having sought new information:
… The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. … (at 1129 [25])
The High Court did not consider it necessary to explore those questions because, in that case, there was nothing on the record to indicate that any further inquiry could have shed useful light on whether certain documents were authentic:
… the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to [the telephone numbers on the documents]. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. … (at 1129 [26])
Similarly in this case, it was not suggested that there was anything on the record to indicate that a further inquiry of the letter’s author could have helped to determine the letter’s genuineness. If the IAA were to have telephoned the applicant’s lawyer in Sri Lanka and be told that the letter was not a genuine document, then the ground for affirming the decision not to grant the applicant a visa would be strengthened, but if it was told that the letter was genuine, that would say nothing more than the letter said already. It was not unreasonable, in the sense of lacking an intelligible justification, of the IAA to not make an enquiry of a sort that would not have contributed new information of practical value.
A potential enquiry of the applicant raises different issues.
The applicant cited the following passage from ABT17 in support of his argument that the IAA should have inquired into the discrepancies which caused it concern:
… there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant. (at 936 [20])
However, the authority cited by the High Court in connection with that proposition, Plaintiff M174/2016 v Minister for Immigration and Citizenship (2018) 264 CLR 217 at 236 and 249 [49] and [97], relevantly concerned a failure by the IAA to invite an applicant to respond to information that the delegate had failed to put to him or her but which the IAA would go on to treat as the reason or part of the reason for affirming the delegate’s decision to refuse the visa application. That is not this case.
This is a case where the information provided by the applicant at one point is different in a material way from information he provided at a different time. The applicant did not contend that the difference in the Delegate and the IAA’s reasoning and conclusions regarding the letter were matters which, of themselves, gave rise to a legally unreasonable failure to exercise the discretion to get information under s.473DC: see FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 at 472 [59(b)]. Instead, he contended that he should have been asked to provide new information to explain the difference between the information contained in the lawyer’s letter and the other information he had provided in support of his visa application.
In conducting its inquisitorial review, the IAA is not obliged to prompt and stimulate an elaboration of an applicant’s own evidence which he or she chooses not to embark on: Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S154/2002 (2003) 77 ALJR 1909 at 1919 [58]. It is for the applicant to advance whatever evidence or argument he or she wishes to advance: Re Minister for Immigration; Ex parte applicant S154/2002 at 1919 [57]. That being so, it was not unreasonable, in the sense of lacking an intelligible justification, of the IAA to have not pressed the present applicant on his claims more than it did.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 29 April 2021
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