BOS17 v Minister for Immigration
[2019] FCCA 285
•12 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOS17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 285 |
| Catchwords: MIGRATION – Safe haven enterprise visa (class XE) (subclass 790) – Immigration Assessment Authority – whether new information – credible personal information – letter predating delegate’s decision not taking the form of new information – applicant’s new claims not clearly articulated – allegedly obvious enquiry about a critical fact, the existence of which was easily ascertained – SZIAI distinguished – no merit – application dismissed. |
| Legislation: Migration Act 1958, pt.7AA, ss.473DD, 473DE |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 Duff v Freijah (1982) 62 FLR 280 EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180 Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 |
| Applicant: | BOS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 736 of 2017 |
| Judgment of: | His Honour Judge J D Wilson QC |
| Hearing date: | 27 November 2018 |
| Date of Last Submission: | 11 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Krohn |
| Solicitors for the Applicant: | Mano Associates |
| Counsel for the First Respondent: | Mr T Goodwin |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No Appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 12 April 2017 as amended on 7 November 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 736 of 2017
| BOS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this court on 12 April 27, as amended on 8 November 2018, the applicant sought judicial review of a decision of the Immigration Assessment Authority made on 22 March 2017 pursuant to which the IAA decided to affirm a decision of the minister’s delegate not to grant the applicant the protection visa he sought.
In his amended application for judicial review, the applicant relied on four grounds. First, he said the IAA failed to consider certain relevant matters, namely a letter, country information, and a new claim. Second, he said the IAA failed to get information to verify the validity of a document purporting to be a medical certificate. Third, the applicant said the IAA failed to properly apply s 473DD(b)(ii) of the Migration Act (“Act”) in three respects. Fourth, the applicant said that in making the other errors on which he relied the IAA acted unreasonably.
In the passages that follow, the details of each ground are developed.
Synopsis
For the reasons that follow, in my view none of the grounds on which the applicant relied were meritorious. In my view, this application for judicial review must be dismissed. The applicant must pay the minister’s costs.
Relevant procedural history
By order of a registrar of this court made on 25 October 2017, this case was allocated to her Honour Judge Jones for hearing on a date to be fixed. Upon the retirement of her Honour Judge Jones this proceeding was transferred to her Honour Judge Mercuri and fixed for hearing on 27 November 2018. On that day her Honour Judge Mercuri was despatched to deal with other business of the court so the case was assigned to and heard heard by me. During debate on that day, I raised with counsel the then recent decision of the Full Court in EEM17 v Minister for Immigration and Border Protection,[1] an authority to which neither counsel adverted in their written or verbal submissions. I asked whether either or both counsel wished to examine that decision and, if thought appropriate, file further written submissions. Both counsel accepted the invitation. Each filed supplementary written submissions limited to the operation of pt 7AA of the Act and in particular, to the Full Court decision in EEM17.
[1] [2018] FCAFC 180
Relevant factual history
The applicant was a male from Jaffna, Sri Lanka, who entered Australia on 20 October 2012 as an unlawful maritime arrival. He sought a safe haven enterprise visa (class XE) (subclass 790) on 4 March 2016. On 18 January 2017 a delegate of the minister refused to grant the applicant the visa he sought. The material before the delegate was then placed before the IAA in accordance with pt 7AA of the Act. That was on 23 January 2017.
The IAA condensed the applicant’s claims in paragraph 11 of its reasons. It recorded his claims as follows (with errors in the original) –
·The applicant is a Tamil male from Jaffna District, Northern Province;
·The applicant and his family were displaced within Jaffna from 1990;
·In 2004, due to the tsunami, the applicant lost his belongings including his books, workbooks, notes and all other learning materials;
·In mid-2006, the applicant was taken into custody by the Sri Lankan Army (SLA) and tortured on suspicion of being involved in a bomb blast. His National Identity Card (NIC) was confiscated by the authorities;
·Following this, the applicant was required to sign at an SLA camp regularly and he was harassed and tortured;
·In 2006, the applicant’s uncle was arrested by the SLA and has not been seen since. His uncle’s wife and four children continue to be dependants of the applicant;
·In 2007, the applicant married for his safety. His wife is sick with a heart condition;
·In September 2008, the applicant’s daughter died of an undisclosed medical condition;
·As the civil war intensified, the applicant was required to report to the SLA and
·intelligence officers. He was subjected to torture and harassment in military camps;
·After the war ended, the applicant was required to report regularly to an SLA camp for investigation and signature;
·In March 2012, another of the applicant’s uncles was taken by military intelligence personnel and has been detained at Galle Pusa Army Camp;
·From this time, the applicant continued to be tortured and harassed by military intelligence personnel;
·After his arrival in Australia, military intelligence personnel visited his wife and parents, intimidated and threatened them;
·If returned to Sri Lanka the applicant fears harm from the Sri Lankan authorities on account of:
·his Tamil ethnicity
·his imputed involvement in the 2006 bomb blast
·his imputed support for the Liberation Tigers of Tamil Eelam (LITE) or other armed
·groups, including familial links
·his illegal departure from Sri Lanka
·his asylum application abroad.
Between paragraphs 3 and 10 of its reasons the IAA recorded the information that was before it. Specifically, the IAA took the view that the submission from the applicant’s representative received by the IAA on 17 February 2017 was not new information. However, the IAA took the view that a letter dated 20 December 2016 from the applicant’s wife was new information as was new country information that had not been provided to the delegate. The submission incorporated a statement to the effect that the applicant “will continue to live in extreme debt” if he returned to Sri Lanka. So far as the 20 December 2016 letter was concerned, the IAA took the view that the letter could have been provided prior to the making of the delegate’s decision and it was not credible personal information. The IAA took the view that the country information provided by the applicant’s representative pre‑dated the delegate’s decision and no reason was given why that information could not have been given to the delegate, nor was it credible personal information.
So far as the submission concerning the applicant’s extreme debt was concerned, the IAA stated in paragraph 9 of its reasons that the claim was a new claim and no reason was given about why the claim was not previously raised. The IAA said it was not satisfied the claim could not have been provided prior to the delegate’s decision being made. The IAA also said it was not satisfied the new claim was credible personal information.
The grounds on which the applicant relied involved a degree of repetition. However, in deference to Mr Krohn’s customarily helpful submissions, in the passages that follow I have addressed each ground, which may explain why these reasons are a little longer than they could otherwise have been.
Ground one – particular (a)
Under this ground, the applicant focused on the letter from the applicant’s wife, on country information and on the new claim advanced by the applicant. The applicant relied on the IAA’s reasons at paragraphs 5, 7, 8 and 9. The applicant contended that the IAA failed to consider a relevant consideration.
Taking first the letter from the applicant’s wife, the certified translated version of it appeared at pages 180 and 181 of the court book. It provided as follows (with errors in the original) –
My dear,
This is your loving wife writing to you and prays God Almighty for your wellbeing and safety.
With eyes full of tear and with unbearable sorrow of loneliness in heart, my little daughter and I have been eagerly waiting for your love, care and embrace. We are waiting with full of hope for that joyful moments in which unforgettable changes going to happen in our lives. We have been living in a dream full of hopes.
My dear, I have been restlessly waiting for the day that would bring an end to our unfortunate and miserable life. The incidents such as Kidnaps, disappearance and arrests became regular events in the country.
The questioning and torturing that began with you are continuing without an end. Myself, my parents and my brothers have been subjected to direct and indirect persecution on the pretext of Military and intelligent investigations.
My dear, I know you won’t be able to tolerate the harassments, torturing and difficulties that we have been experiencing here. I am also aware that you are living a solitary life and longing for our love; yet, I kindly ask you not to make any effort to return to the country at any circumstances. I beg you with full of tears in my eyes and pain in heart that please do not come back to the country.
Though we live in two different places, we are bit relieved to hear your voice through the phone and to see your face in video (via Skype). My dear, I can't and won't stay without talking to you or without seeing you.
To whom and to where do I make an appeal to return my husband? I can’t see those who ask ‘where is my hubby? Where is my son? Where is my brother?’ I have been living in a country where there are people who have neither heart nor humanity. How can they understand the pain of my tears? From whom do I ask for justice in a country where there is no justice?
As I said earlier, because of the constant investigation by Military and Intelligent personnel in civil uniform, if you come to this country or if you stay here, there will be no assurance for your safety. Hence, please do not make any decision to return to the country in any circumstance. 1 am kindly asking you this, even though my heart is longing for you.
Everyone in the community including, friends, relatives and villagers say that if you come back here, you could be taken into custody by Military or Intelligent personnel and would be taken to the 4th Floor and subjected to torturing.
You know, I have already been suffering from weakness of heart; and getting treatment for it. Doctors say, my body is getting weaker and weaker because I have been subjected to constant Military and Intelligent investigation.
I have been regularly visiting the doctor. I am going to see the doctor again on the 5th of January 2017. They said they are going to give me a referral letter about my health condition. I will send it to you when I get it.
My dear, you may share this letter with Australian Immigration Officers if you get a chance to do so. I hope this will be helpful for ours and our children’s future life.
I am waiting with full of confidence that our dreams and hopes will come true one day and I am waiting for that great day that we are going to be reunited.
Your beloved wife.
[Redacted]
The IAA mentioned in paragraph 5 of its reasons how the applicant’s representative provided the letter to the IAA as it was not before the delegate. In paragraph 7 of its reasons the IAA stated that the 20 December 2016 letter pre‑dated the delegate’s decision and no reasons were given about why the information in the letter could not have been provided to the delegate nor was a reason given why the information in the letter could have been considered credible personal information. The IAA therefore found that it was not satisfied that the letter could not have been provided to the delegate before the delegate’s decision was made nor was the IAA satisfied the letter was credible personal information.
The minister correctly contended that the IAA’s ability to receive new information was limited by the terms of pt 7AA of the Act. Citing the decision of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection,[2] the minister submitted that in order for the IAA to take into consideration information that was not before the delegate the IAA needed to apply s 473DD of the Act and where applicable s 473DE of the Act.
[2] (2018) 92 ALJR 481
The issue in relation to the letter dated 20 December 2016 was whether s 473DD of the Act applied. The IAA took the view s 473DD did not lead to the conclusion that the 20 December 2016 letter should be considered. I agree. The IAA was not satisfied that exceptional circumstances existed warranting receipt of the letter. To that end, the IAA needed to be satisfied that the circumstances pertaining to the letter were not “regularly or routinely or normally encountered” in the context in which the phrase “exceptional circumstances” is commonly understood at law, as revealed in such cases as R v Kelly (Edward),[3] BVZ16 v Minister for Immigration and Border Protection[4] and Plaintiff M174/2016 v Minister for Immigration and Border Protection.[5]
[3] [2000] 1 QB 198
[4] (2017) 254 FCR 22
[5] (2018) 92 ALJR 481 (at [30])
Further, the IAA took the view in relation to the 20 December 2016 letter that the element of s 473DD(b)(i) or (ii) did not apply. I also agree. The applicant did not satisfy the IAA that the letter was not and could not have been provided to the delegate. The applicant did not satisfy the IAA that the letter was credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims.
The applicant submitted that s 473DD(b)(ii) of the Act contained four distinct elements which did not in every case require an explicit submission from an applicant as the “nature of the information itself may be such that it manifestly has the qualities required by s 473DD(b)(ii)”. That was the substance of the applicant’s submission. No authority was cited to support that contention. While logically that may well be the case (and on that point I express no concluded view) nevertheless s 473DD(b) required the applicant to satisfy the IAA of the matters mentioned in the two subparagraphs of s 473DD(b). Unless the IAA was so satisfied of those matters, that part of s 473DD was not met. In this case, the IAA said it was no satisfied. It seemed to me that the IAA made no error in that regard. The IAA was not persuaded that the letter could not have been provided to the delegate. The date of the letter seemed to make good that point, it being 20 December 2016 and 18 January 2017 being the date of the delegate’s decision, the letter preceding the delegate’s decision by almost one month.
The applicant contended that the letter was “personal information”, as defined. In support, the applicant sought to distinguish a decision of another judge of this court on point. I am not bound by a decision of another judge of this court. In any event, the applicant’s contentions about the letter containing personal information was not wholly on point because s 473DD(b)(ii) spoke of “credible personal information”, as well as that credible personal information being “not previously known”. The IAA said in paragraph 7 of its decision that the IAA was not satisfied the content of the letter was credible personal information. The High Court in Plaintiff M174/2016[6] put the point to rest in the following terms –
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
[6] Op cit (at [34])
In this case, the IAA was not persuaded that the content of the letter represented credible personal information. In other words, the applicant failed at the first of the three phrases mentioned by the High Court in paragraph 34 of its reasons in Plaintiff M174/2016. The IAA was not therefore required to address the second and third phases of the three phases mentioned in paragraph 34 of the reasons given by the High Court in Plaintiff M174/2016.
It seemed to me that the IAA’s conclusion in relation to the 20 December 2016 letter was unimpeachable. The IAA was not required to consider the contents of the letter. The decision of Mortimer J in AUH17 v Minister for Immigration and Border Protection[7] fortifies my conclusion in that regard.
[7] [2018] FCA 388
No error was shown in relation to this particular.
Ground one – particular (b)
Under this ground the applicant focused on paragraphs 5 and 8 of the IAA’s reasons. The impugned sentence of paragraph 5 was as follows –
The representative has also provided new country information and referred to country information in the submission that was not before the delegate.
In paragraph 8 of its reasons the IAA stated that the country information to which the applicant referred in his representative’s submissions or which was provided to the IAA all pre‑dated the delegate’s decision. The IAA said no reason was given why that information could not have been given to the delegate. The IAA said no reason was given why that country information was said to have been credible personal information. The IAA said it was not satisfied that the country information could not have been provided to the delegate prior to the delegate’s decision being made. The IAA also said it was not satisfied the new information was credible personal information.
The minister’s counsel helpfully identified the relevant country information. None of the applicant’s amended grounds identified the country information on which the applicant relied. For that matter, the applicant’s written submissions did not identify the particular items of country information that the applicant put in issue. The minister said the relevant country information took the form of three news articles and one report from an organisation known as Human Rights Watch reproduced between pages 129 and 165 of the court book, although several of those pages were duplicates.
The minister contended that the four pieces of country information failed to meet the criteria of s 473DD(b) and therefore the IAA was entitled to characterise it as new information that the IAA was required to not consider. Specifically, the minister said the country information was not personal information according to the High Court’s three phase formulation at paragraph 34 of its reasons in Plaintiff M174/2016. The minister said that information was not about an individual but rather it was about country conditions for Tamils in Sri Lanka. The minister also pointed out there was no information about why those three news items and Human Rights Watch report were credible as opposed to being bare assertions and therefore the IAA had no basis for considering whether the information was accurate or genuine, citing the decision of Mortimer J in AUH17.
It seemed to me that the minister’s submissions were correct. I do not accept that the three news articles and Human Rights Watch report were items of information that the IAA was required to consider. They did not satisfy the elements of s 473DD. In my view, the analysis given to those items by the IAA was correct. It seemed to me the IAA made no error in not considering them.
This particular was without merit.
Ground one – particular (c)
Under this ground the applicant asserted that the IAA failed to consider a new claim that the applicant advanced. The applicant focused on paragraph 5 of the IAA’s reasons in relation to the new claim, especially the following sentence –
The representative’s submission also states that if the applicant returns to Sri Lanka he ‘will continue to live in extreme debt …’.
The IAA addressed that claim in paragraph 9 of its reasons. Its treatment of the report was short, so it is useful to set it out in full as follows –
In his submission, the representative indicates that if the applicant returns to Sri Lanka he will continue to live in ‘extreme debt...’. In reviewing the referred materials, I note the applicant made no such claim in his SHEV application or during his SHEV interview and as such I consider this to be a new claim. There is no further information provided by the representative explaining this assertion and no reasons as to why this this information was not previously raised. In the circumstances, I am not satisfied that this information could not have been provided before the delegate’s decision was made. Nor am I satisfied the new information is credible personal information.
In advancing propositions of largely broader application, the applicant argued that an administrative decision‑maker as was the IAA had to consider each necessary and relevant consideration, citing Minister forAboriginal Affairs v Peko-Wallsend Ltd,[8] and that a decision‑maker must consider a material question of fact, citing Dranichnikov v Minister for Immigration and Multicultural Affairs.[9] I prefer the distillation of principle that my research uncovered in BCF15 v Minister for Immigration & Anor[10] about the matters the decision‑maker was required to consider, those being as follows –
[8] (1986) 162 CLR 24
[9] (2003) 77 ALJR 1088
[10] (2016) 314 FLR 291
27.… The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether, by the failure to consider a particular issue the tribunal had in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs,[[11]] proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
[11] (2003) 216 CLR 473 [1]
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).[[12]]
[12] (2003) 216 CLR 473 [1]
28.In the context of a protection visa, Gleeson CJ said the arguments and evidence of the applicant and the minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of the claim.[[13]]
[13] (2003) 216 CLR 473 [39]
29.The “claim” that fell to the Tribunal to address was “a substantial, clearly articulated argument relying upon established facts”, as the expression was used in Dranichnikov,[14] and as was considered by the Full Court of the Federal Court of Australia (Black CJ, French and Selway JJ) in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (“NABE”).[[15]] Other authorities at single judge and Full Court level in the Federal Court of Australia have wrestled with the parameters of the constituent elements of an applicant’s ‘claim’. By way of illustration in Htun v Minister for Immigration and Border Protection[[16]] Allsop J (as the Chief Justice then was) with whom Spender J agreed, addressed the requirements in s.414 of the Act that the tribunal considers ‘the claims’ of the applicant stating “[t]he claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration”.[[17]]
[14] (2003) 77 ALJR 1088 [24]
[15] (2004) 144 FCR 1, 22 [61], [68]
[16] (2001) 194 ALR 244
[17] (2001) 194 ALR 244 [42]
30.The tribunal is not to limit its determination to the ‘case’ articulated by the applicant if evidence and material which the Tribunal accepts raises a case not articulated. So much was the holding of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs[[18]] as well as by the Full Court of the Federal Court of Australia (Wilcox and Magwick JJ) in Sellamuthu v Minister for Immigration and Multicultural Affairs.[[19]]
[18] (1998) 94 FCR 28, 63
[19] (1999) 90 FCR 287, 293-294
31.But if an unarticulated claim is relied upon by an applicant seeking review, the unarticulated claim must be raised squarely on the material available to the tribunal, according to Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs.[[20]] As the Full Court in NABE observed, the use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when the claim is apparent on the face of the material before the tribunal.[[21]] Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[20] (2003) 129 FCR 137 at [19].
[21] (2004) 144 FCR 1 at [58].
32.It is true that the tribunal is not to construe an applicant’s claim or claims as a common law court of law or equity might analyse a claim or claims raised in a pleading. In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs,[[22]] Selway J referred to the way the Tribunal is not obliged to consider claims not made then famously remarked “[b]ut this does not mean that the application is to be treated as an exercise in nineteenth century pleading”.[[23]]
[22] (2003) 199 ALR 364.
[23] (2003) 199 ALR 364 at [17].
33.The settled position nowadays is that stated in NABE.[[24]] The tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it. Whatever the scope of the obligation, the tribunal is not required to consider an application never made.
[24] (2004) 144 FCR 1 at [61].
34.To my way of thinking, it would place an impossible burden on the tribunal to require it to refer to every piece of evidence and every contention made by an applicant, however wrong-headed, peripheral or tangential. For that matter, the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[[25]] (“Applicant WAEE”) (French, Sackville and Hely JJ) held that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. To that I add that the Tribunal is not a court of law and its reasons are not to be scrutinised with an eye keenly attuned to error nor is the Tribunal necessarily required to provide reasons of the kind that might be expected of a court of law. But even a court of law is not required to address every submission advanced in the hearing, as was observed by the Honourable Justice Mark Weinberg in his speech ‘Adequate, Sufficient and Excessive Reasons’.[[26]] Still less would the Tribunal be expected to provide reasons equivalent to those provided by a court of law, especially when dealing with high volume applications as does the tribunal.
[25] [2003] FCAFC 184 at [46]
[26] Speech delivered at Judicial College of Victoria, 4 March 2014
35.Accordingly, it seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the Tribunal was required by law to consider. Dissected, the tribunal was required to deal with –
a)a substantial clearly articulated argument relying upon established facts;[[27]]
[27] See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
b)a claim or claims and its or their component integers;[[28]]
c)evidence and material that the Tribunal accepts to raise a case not articulated;[[29]]
d)an unarticulated claim that is raised squarely on the material available to the Tribunal;[[30]] and
e)not an application or claim never made.[[31]]
36.As Robertson J held in Minister for Immigration and Citizenship v SZRKT,[[32]] “[a]lthough ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim”.[[33]]
37.Once the ‘claim’ that the Tribunal had to consider was identified, it fell to the Tribunal to give that claim or those claims “proper, genuine and realistic consideration”, as was canvassed by the High Court in Minister for Immigration and Citizenship v SZJSS[[34]] (“SZJSS”).
38.In a protection visa case, it remains good law that it is for the applicant to advance whatever argument or evidence he or she wishes to advance in support of his or her contention that the applicant has a well‑founded fear of persecution for a Convention reason, and that the Tribunal must then decide whether that claim is made out. That proposition emanated from the decision of the High Court in Abebe v Commonwealth of Australia[[35]] (“Abebe”) and was recently restated by the Full Court of the Federal Court of Australia (Kenny, Griffiths and Mortimer JJ) in Minister for Immigration and Border Protection v MZYTS.[[36]]
39.More recently, a differently constituted Full Court (Gordon, Robertson and Griffiths JJ) in Minister for Immigration and Border Protection v SZSWB held that “[m]oreover, the claim must emerge clearly from the materials”.[[37]]
[28] See Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244
[29] See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287
[30] See SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 and NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
[31] See NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
[32] (2013) 212 FCR 99
[33] (2013) 212 FCR 99 [98]
[34] (2010) 243 CLR 164 [7]
[35] (1999) 197 CLR 510 [187]
[36] (2013) 230 FCR 431, 444 [38]
[37] [2014] FCAFC 106 [33]
Very recently, the Full Court addressed the elements of a “claim” in BIL17 v Minister for Immigration and Border Protection,[38] no holding of which is inconsistent with my distillation of the principle in BCF15 v Minister for Immigration and Anor.
[38] [2019] FCAFC 6
The applicant argued that his claim about living in extreme debt if he were to return to Sri Lanka arose from the terms of his representative’s submissions, copied at pages 168 and 169 of the court book. Relevantly, the submission on point was as follows –
My client and his family continue to live with extreme fear. My client will be at a high risk of continuous torture and victimisation by the government. His family and himself will suffer obvious physical, emotional and psychological damage and will continue to live in extreme debt and poverty. …
The date of the submission was 17 February 2017. It was common ground that the submission that incorporated that claim was not before the delegate. The applicant needed to persuade the IAA that the elements of s 473DD of the Act were made out. He failed to do so. Did the IAA err in that conclusion about that specific claim?
In my view the IAA did not so err.
No explanation was given, as s 473DD required, about why that new claim was not put before the delegate nor was any explanation given about why it was contended that the new claim about extreme poverty was credible personal information. The minister correctly submitted that the reference to the applicant living in extreme debt was a bare assertion. I agree. Further, the minister submitted that the contention that the applicant would live in extreme debt was not a clearly articulated argument nor was it a claim that fairly arose on the material. Instead, so the minister said, it was a bare assertion without evidence in support, and in that regard the minister relied upon the decision of the Full Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89.[39]
[39] [2018] FCAFC 89
In my judgment, the minister’s contentions were correct. The assertion about the applicant living in extreme debt was not advanced before its inclusion in the submissions dated 17 February 2017. The contention had the hallmarks of florid yet unsubstantiated hyperbole made by a representative of a party. No evidentiary support was offered for the contention. It had the appearance of a bare assertion. It was not credible personal information. It did not meet the three phases adumbrated by the High Court in Plaintiff M174/2016. In my view, the IAA made no error in its conclusion set out in paragraph 9 of the IAA’s reasons. In my view this particular had no merit.
Ground two
Under this ground, the applicant asserted that the IAA fell into jurisdictional error by failing to exercise its powers to get information to verify whether the letter submitted by the applicant as a medical certificate was genuinely from a medical practitioner in Sri Lanka. Specifically, the applicant focused on paragraphs 18 and 19 of the IAA’s reasons. The relevant passage from paragraph 18 was as follows –
… He further stated that during an interrogation the CID officers broke his arm and leg and that following this he spent a week in hospital and his arm and leg were put in plaster. The delegate asked the applicant why he had not mentioned his broken limbs in his SHEV statement, to which the applicant said that he did mention that he was tortured. The applicant said he previously had a medical certificate which evidenced his injuries but that it had been misplaced. He advised the delegate that he would obtain further evidence from the doctor in Sri Lanka.
The IAA’s treatment of a letter purportedly from a Sri Lankan doctor was recorded in paragraph 19 of its reasons. While lengthy, it is useful to reproduce that passage in full as follows (with errors in the original) –
Following the SHEV interview the applicant provided a letter, dated 6 September 2016, from Dr R Kanagalingham. In the letter, the doctor stated that the applicant came to him for treatment following an assault by army soldiers (date unspecified). He further stated that he provided treatment ‘for some months till [sic] 30.08.2012’. I have a number of concerns with the letter purportedly from a doctor in Sri Lanka. Firstly, the letterhead sits at a different angle and alignment from the main text in the body of the letter, which suggests the letterhead has been stuck on to an existing letter. Secondly, although the letter does not specify the date of injury it does indicate that the applicant was treated for some months up until August 2012; however, the applicant claimed that he sustained his injuries due to an incident in 2006. Certainly the applicant has advanced no claim that his limb injuries have required six years of treatment following an initial stay in hospital for one week. I am not satisfied the letter from Dr R Kanagalingham can be relied upon as evidence of injuries the applicant claimed to have sustained in 2006 and I give it little weight.
The relevant document was dated 6 September 2016. It was on the letterhead of Sirone Dispensary and Pharmacy. Immediately under the letterhead banner of the Dispensary and Pharmacy appeared the word “consultances” of two persons purportedly medical practitioners, although they did not incorporate after their names letters or initials indicating that they were legally qualified medical practitioners, yet the names of both incorporated the title “Dr”. The name of the first was Dr R. Kanagalingham. After his names the letters “JP” appeared. That suffix corresponded to a stamp that appeared at the foot of the document, below his name and signature, that read “Dr R. Kanagalingham, Justice of the Peace, Jaffna District”. The second name at the top of the document was recorded as “Dr (Mrs) V. Kanagalingham (JP) Specialist in Snakebites”. The body of the document was divided into three numbered paragraphs. The document read as follows (with errors in the original) –
I SUBMIT THE FOLLOWING FACTS FOR YOUR KIND CONSIDERATION AND NECESSARY ACTION PLEASE.
1.[NAME] WAS TREATED BY ME FOR PAINALL OVER THEBODY INJURIES AND FRACTERS. FOR SOME MONTHS TILL30.08.2012.
2.ONEDAYWHENHERETURNED FROM A EDUCATION CENTER, HE WAS ARRESTED BY ARMY SOLDGIRES ON SUSPISION TOOK HIM TO A ARMY CAMP HANGED HIM.. BEAT WITH STEEL PIPES DUE TO THIS HIS HAND, AND LEGS WAS BROKEN, HE CAME TO ME FOR TREATMENT.
3.I FELT, HE WAS AFRAID AND UNABLE TO WALK. WHEN HE GOT TREATMENT FROM ME.
Several things must be said about that document. First, the maker of the document did not set out his or her qualifications or field of expertise so it was only possible to deduce from the title of the author of the document that the maker of the document was endeavouring to convey information of a medical nature. However, so much could not be said with certainty became the document emanated from a dispensary and pharmacy as opposed to a medical clinic or surgery. Second, on a fair reading of the document, it did not at any point descend to the detail of characterising any affliction allegedly suffered by the applicant as having a medically‑based or anatomically‑supported premise. For example, in paragraph one the “body injuries” there recorded were not identified as to location on the body or nature of the injuries. The fractures (erroneously called “fracters”) in paragraph one were not specified. It was not possible to tell whether those fractures were to limbs, ribs, upper torso, back, hip or anywhere else. The maker of the report did not offer an opinion on whether the fractures were consistent with the activities described in paragraph two of the report. Further, in paragraph one of the report the author did not record when the applicant first consulted the author, why and in what circumstances yet the author stated in paragraph one that the applicant had been treated by the author “for some months till 30.08.2012”. The report was dated 6 September 2016, over four years after the author ceased to treat the applicant. Precisely why and in what circumstances the author provided that report four years after ceasing treatment of the applicant went unexplained.
Next, in the second paragraph of the report the author purported to record as fact events that had apparently happened to the applicant on an unspecified day when the applicant returned from an education centre. According to the author of the report, the applicant was arrested, taken to a camp, hanged, beaten on his hands and then his leg was broken, after which the applicant attended upon the author of the report for treatment. One might legitimately infer that the information recorded in the second paragraph of the report was akin to a patient’s history and that it became a narrative such that it could only have emerged from the applicant’s own recital of relevant events. Whether the account as given was accurate was something else.
Then, in the third paragraph the author of the report stated two opinions. The first was that the applicant felt afraid. No factual basis for that opinion was given. Next, the author of the report said the applicant was unable to walk. Bearing in mind that in the second paragraph of the report the author said the applicant’s legs were broken the author did not say whether the applicant was unable to walk because he was on crutches, whether he was in one or two plaster casts on his legs, nor did the author give any reason for his statement why the applicant was unable to walk.
The 6 September 2016 document on the letterhead of Sirone Dispensary and Pharmacy was of very little probative value, it seemed to me. In my view the concerns expressed by the IAA in paragraph 19 of its reasons, from the fourth sentence, were perfectly valid concerns. I detected no error in the IAA attaching little weight to the letter, as recorded in paragraph 19 of the IAA’s reasons.
Yet under ground two the applicant said the IAA should have obtained information to verify the genuineness of the 6 September 2016 letter. The applicant’s written submissions were as follows (with the citation omitted) –
It would have been a simple matter for the Authority to have inquired of the doctor, personally by telephone or through the Australian diplomatic post, whether this was a genuine certificate, and to have asked for any details of times of injuries or treatment. It was necessary for the Authority to make such a simple, obvious and potentially critical inquiry.
Imbedded in that sentence was the correctness of the letter’s author’s status as a legally qualified medical practitioner. He may not have been. He seemed to have been a Justice of the Peace with some connection to a pharmacy. It will be apparent that no telephone number appeared on the letterhead of the pharmacy. The applicant’s contentions in his written submissions about the simplicity of telephoning the author of the letter may not have been correct in the absence of a telephone number. The applicant argued that it was simple enough for the IAA to have inquired of the author of the letter for details of times and injuries or treatment, calling in aid the observations of the High Court in Minister for Immigration and Citizenship v SZIAI.[40]
[40] (2009) 83 ALJR 1123
It seemed to me the applicant overstated the position quite significantly. The proposition for which SZIAI stands was not as the applicant put it. Rather, in that case the High Court held that a failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained, may in some circumstances give rise to jurisdictional error by the constructive failure to exercise jurisdiction. Some key aspects of those observations emerge from the failure to make an obvious inquiry about a critical fact, the existence of which can be easily ascertained. Even in the face of a failure to make such an inquiry the failure will not necessarily found jurisdictional error.
Here, the applicant suggested the relevant person, Dr Kanagalingham, could have been contacted. No postal address, telephone number, facsimile, email or street address was given. The ease of the making of any such inquiry could not be gainsaid. The inquiry to be investigated was scarcely obvious. It may have related to the applicant’s physical injuries. Yet Dr Kanagalingham’s report spoke of the applicant being treated for pain over his body. No causal connection was given in Dr Kanagalingham’s report to injuries sustained from one or more assaults by army personnel. The nature of any inquiry to be put to Dr Kanagalingham was far from obvious to me. The critical fact to be investigated was not stated by the applicant. Nor was it said the existence of that critical fact was easily ascertained. I disagree with the construction placed on events by the applicant in paragraph 52 of his written submissions. This was not a case to which the observations in SZIAI apply. I agree with the minister’s submissions that it did not fall to the IAA to make out the applicant’s case for him and that, relying on Minister for Immigration and Border Protection v SZRTF,[41] the applicant had ample opportunity to put before the delegate corroborative evidence about his injuries.
[41] [2013] FCA 1377
Ground two was devoid of merit.
Ground three
In many respects the substance of this ground had been addressed in the consideration given of ground one, especially in relation to the operation of s 473DD(b)(ii) or the letter from the applicant’s wife, the four items of country information and the new claim concerning the applicant returning to extreme poverty if sent back to Sri Lanka. For reasons already addressed, in my view the IAA made no reason in its construction of s 473DD in respect of each of those items of new information.
It follows that ground three should follow from ground one. As ground one was dismissed so too must ground three be likewise dismissed.
Ground four
This ground was an ambitious catch‑all ground intended to sweep up under a general contention of unreasonableness the applicant’s three prior bases of criticism of the IAA’s reasons. In my view there was nothing in the IAA’s conduct of this review under pt 7AA that rendered its process unreasonable. Nor was the outcome of the IAA’s decision in the category of extreme unreasonableness as mentioned in an array of recent Full Court and High Court decisions, including SZRKT, Minister for Immigration and Border Protection v SZVFW,[42] Minister for Immigration and Citizenship v Li and Anor,[43] Minister for Immigration and Border Protection v Stretton,[44] Minister for Immigration and Border Protection v Eden[45] and Minister for Immigration and Border Protection v Singh.[46]
[42] (2018) 92 ALJR 713
[43] (2013) 249 CLR 332
[44] (2016) 237 FCR 1
[45] (2016) 240 FCR 158
[46] (2014) 231 FCR 437
Conclusion
In my view, no basis was shown for impugning the decision of the IAA on any of the grounds alleged. This application for judicial review failed. I dismiss the application as amended and order the applicant to pay the minister’s costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Associate:
Date: 12 February 2019
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