Bpi18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3638

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPI18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3638

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority misapplied s.473DD of the Migration Act 1958 (Cth) in relation to new information – whether Immigration Assessment Authority misdirected itself in relation to new information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 31, 36, 473BC, 473CA, 473CB, 473DA,

473DB, 473DC, 473DD, 474

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:

Convention relating to the Status of Refugees, opened for signature 28 July

1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January

1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Applicant: BPI18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number:   SYG 867 of 2018

Judgment of: Judge Emmett

Hearing date: 10 December 2019

Date of Last Submission: 10 December 2019

Delivered at: Sydney

Delivered on: 13 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Richard Chia

Counsel for the Respondents: Mr Martin J Smith

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 867 of 2018

BPI18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority dated 12 January 2018 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 2 June 2017 refusing the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHEV”).

2. By consent, time was extended to the applicant to seek judicial review of the Authority’s decision dated 12 January 2018.

3. The applicant is a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from unknown people who may be from the government in Sri Lanka.

Background

1. The applicant arrived in Australia as an unauthorised maritime arrival on 3 October 2012.

2. On 15 September 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection (“the Department”).

3. On 2 June 2017, the Delegate refused the applicant’s application for a SHEV.

4. On 7 June 2017, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.

5. On 12 January 2018, the Authority handed down its decision affirming the decision of the Delegate not to grant a SHEV.

6. On 29 March 2018, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a SHEV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:

   “Simplified outline of this Part

   This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

   Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

   Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”

8. Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.

9. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

12. Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review.

13. The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:

    “Exhaustive statement of natural justice hearing rule

    (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

14. Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.

15. Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. 

16. Section 473DC of the Act provides:

    “Getting new information

    (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

    (a) were not before the Minister when the Minister made the decision under section 65; and

    (b) the Authority considers may be relevant.

    (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a) in writing; or

    (b) at an interview, whether conducted in person, by telephone or in any other way.”

17. Section 473DD of the Act provides as follows:

    “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.”

The applicant’s claims for a SHEV

1. The applicant provided a statement in support of his SHEV application, which may be relevantly summarised as follows:

   i)The applicant is a Tamil from Negombo Town in the North Western Province of Sri Lanka and is of Hindu faith.

   ii)The applicant would be seriously harmed because of his Tamil ethnicity.

   iii)The applicant fears harm from people who abducted, or tried to abduct, his relatives and who killed his younger brother. The applicant believes those people to be from the government in Sri Lanka.

   iv)In around 2004, the applicant’s maternal uncle (mother's younger brother) was abducted. The applicant’s family has not heard from his maternal uncle since then and they do not know who abducted him and why he was abducted.

   v)On or around 20 May 2006, some people attempted to abduct the applicant’s father. The applicant’s father does not know who they were but suspects it was the government. The applicant believes his father was targeted due to his Tamil ethnicity.

   vi)On or around 23 June 2008, the applicant’s paternal uncle (father's younger brother) was abducted and beaten. The applicant’s paternal uncle was not sure who took him, however, the applicant’s family suspects it was the government. The applicant’s paternal uncle was allowed to return home after being detained for around 2 weeks as the government was not able to establish that he had any connections with the LTTE.

   vii)On or around 20 August 2012, the applicant was working as a sales assistant in a duty free shop at Colombo airport when he was approached by around three people in a van outside the airport who asked the applicant to go with them for questioning. The applicant refused and was able to get into a bus and leave. The applicant believes that he could have been approached by these people in relation to his father. The applicant took over his father’s business after his father went to Kuwait and the applicant closed the business in 2009.

   viii)The applicant was not given time to talk about being approached at the airport during his entry interview but believes that he has mentioned this incident to the Department since then.

   ix)On or around 20 May 2013, the applicant’s younger brother was taken by some unknown people while he was on his way to work. The applicant’s younger brother was asked questions about their father and father's business; and he died in his sleep that night. The applicant’s younger brother’s death certificate stated that he had been poisoned. The police were notified but nothing happened after that.

   x)After the applicant arrived in Australia, his cousin bought a three wheeler taxi using money given to him by the applicant’s father. Shortly after buying that taxi, his cousin was stopped by the police and taken to the police station for questioning about his motives for purchasing the taxi. The applicant’s cousin stopped running his business because he fears for his safety.

   xi)If returned to Sri Lanka, the applicant fears he will be subjected to serious harm including being abducted and beaten, or killed like his younger brother. The applicant is afraid of this harm from the people who have abducted or tried to abduct his relatives and who have killed his younger brother. The applicant believes these people are from the government and he fears harm also because of his Tamil ethnicity.

   xii)The applicant believes he would not be protected by the authorities in Sri Lanka.

The Delegate’s decision

1. On 10 March 2017, the applicant attended an interview with the Delegate. At that interview the applicant raised a new claim that an unknown person went to the applicant’s workplace, a KFC fast-food restaurant, in search of him but the applicant was not at work that day. Following this event, the applicant requested and was moved to another KFC store.

2. On 2 June 2017, the Delegate refused the applicant’s application for a SHEV on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Authority’s review and decision

1. On 7 June 2017, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.

2. The applicant provided a news article published by Al Jazeera and dated 4 March 2017 as well as written submissions dated 27 June 2017 in support of his review.

3. That submission included a number of new claims which had not previously been raised including the following:

   “My mother convinced my father to tell me the truth why he was threatened with abduction and my father told me recently by phone that my father and my uncle had financially assisted the LTTE to feed the LTTE cadres. My uncle had been involved in drug trafficking on behalf the LTTE between India and Sri Lanka in the past. My father was aware that my uncle was involved but he was not personally interested in joining him. The Sri Lankan authorities suspected that my father as very rich not because he was a goldsmith but because my father and his brother were involved in the drug trade for the LTTE and earned a lot of money therefrom.

   My father told me that he never wanted to tell about this matter to any of his children, as we would not approve but my mother was aware of this. My mother told me that when the authorities found evidence against my uncle, they abducted him. My mother told me that when the authorities found evidence against my uncle, they abducted him. Whereas in my father’s case even though my father was never involved in drug trafficking between India and Sri Lanka under the orders of the LTTE, the authorities were not willing to believe and attempted to abduct my father in the same manner that they did my uncle. My father told me that as my case had been rejected by the department, I should tell the truth to you before it is too late.”

   (Emphasis added)

4. The emphasised statement above is the new claim contended for by the applicant as being dealt with by the Authority in a manner disclosing jurisdictional error.

5. The Authority relevantly summarised the new claims as follows:

   “His uncle and father financially assisted the LTTE to feed the LTTE cadres. His uncle had been involved in drug trafficking in the past on behalf of the LTTE between India and Sri Lanka and while his father was aware of this he was not, and did not, want to be involved. The authorities suspected his father was rich because he was involved in dealing drugs for the LTTE (and not because he was a successful jeweller). His mother told him that there was evidence against his uncle but that despite the lack of evidence against his father, the authorities were not willing to accept his father was not involved which was why they attempted to abduct him. His father now fears he is at risk of disappearing like his brother if he returns given he has now told the applicant the real reason behind the attempted abduction which might be leaked to the authorities. He claims the authorities will seek to take revenge on him given his father was able to escape Sri Lanka. In light of the above, there is a high chance he could be tortured by the authorities on his return and could be forced to tell the authorities his father was involved in drug trafficking for the LTTE. Having departed illegally, if returned, the applicant would not be released like other returning Tamils but would be taken away, tortured, inhumanely treated and killed for his involvement with the LTTE in the past along with his father.”

6. The Authority noted that the new claim regarding the applicant’s family’s past involvement with the LTTE was recently obtained when the applicant called his father after his visa was refused, following which his mother persuaded his father to tell the applicant the truth. The Authority noted that the applicant claimed that his father did not tell the applicant and his siblings earlier because they were young; he was afraid they would not leave the house if they knew the truth; they would not approve; and, that his father had not told the applicant in order to protect his children from being abducted and tortured into giving information to the authorities.

7. The Authority noted that the applicant had a number of opportunities to provide his claims. The Authority noted that the Delegate told the applicant that if his application was refused, he may not have another opportunity to provide any further information; and, at the end of the interview the applicant was asked if there was anything else he would like to add and was given a short break to collect his thoughts. The Authority noted that the applicant had nothing to add on his return. The Authority also noted that the applicant had been told by the Delegate that the Delegate would take into account anything else provided by the applicant prior to the Delegate’s decision; that the applicant had roughly 3 months to provide anything further; and, that the Delegate had expressed concerns to the applicant regarding some of his claims.

8. The Authority then found as follows:

   “8. I have considered the applicant’s explanation that he was not told the real reason for his father’s abduction until after the delegate’s decision. I do not accept it. I consider if this new claim were credible, the applicant’s father would have told him about his past involvement with the LTTE earlier, particularly given the central significance of this information to his claim for protection, the fact the father has had five years to tell him, all the effort and expense the family went to in arranging the applicant’s passage to Australia, including borrowing 10 lakhs against the family home in Sri Lanka to pay for his journey to Australia. In light of this I also consider it implausible that the applicant’s father would fear for the applicant’s safety if he were told the information; as at 2012, the applicant’s father had been in Kuwait for six years and during this time there is no evidence to suggest the authorities went to the applicant’s home or his uncle’s home looking for his father and the applicant had never been detained or mistreated by authorities and this was despite him having taken over his father’s jewellery business when he departed. I also find the new information internally inconsistent, the applicant states his father wanted no part of his uncle’s drug trafficking and that there was no evidence against his father, yet he also states there is a high chance he will be tortured on his return and forced to tell the authorities about his father’s involvement in drug trafficking for the LTTE. The applicant has not satisfied me that this new information either could not have been provided to the delegate or that it is credible personal information. I am also not satisfied that there are any exceptional circumstances to justify considering this information.”

The proceeding before this Court

1. The applicant was represented before this Court by Mr Richard Chia, of counsel.

2. Leave was granted to the applicant to rely on the grounds of an Amended Application, signed by counsel for the applicant and dated 13 June 2019.

3. Those grounds are as follows:

   “1. The Second respondent (IAA) failed to apply section 473DD of the Act to new information the applicant provided in his submissions.

   Particulars

   The applicant’s new claim at Court Book page 146 that “the reason behind [his] uncle’s abduction” was that the authorities found evidence of his involvement in drug trafficking.

   2. Further or in the alternative, the IAA misapplied section 473DD of the Act and misdirected itself in relation to the new information regarding the reasons why his father was threatened with abduction.

4. Both grounds centre on the Authority’s application of s.473DD of the Act to the “new information”.

5. Ground 1 contends that the Authority fell into jurisdictional error because it failed to apply s.473DD of the Act to the new information in the submission dated 27 June 2017 that the applicant’s mother told the applicant that when the authorities found evidence against his paternal uncle, they abducted the uncle.

6. Ground 2 asserts that further or in the alternative, the Authority misapplied s.473DD of the Act and misdirected itself in relation to the new information regarding the reasons why the applicant’s father was threatened with abduction.

7. The applicant contended that the Authority overlooked the new claim above. The applicant submitted that the Authority stated only that a new claim had been made as to the reason for the applicant’s father’s abduction.

8. The applicant submitted that his paternal uncle was abducted in 2008 because the authorities had found evidence of his paternal uncle’s involvement in drug trafficking and this claim had not been raised prior to the Delegate’s decision and was therefore “new information”. The applicant submitted that the Authority had failed to refer to this claim and to form a state of satisfaction as required under s.473DD(a), (b)(i) and (b)(ii) of the Act. The applicant submitted that the failure of the Authority to form the relevant state of satisfaction can be inferred based on the fact that the Authority’s statement of reasons specifically referred to and purported to deal with each item of new information before it.

9. Moreover, the applicant submitted that there was no reference to the claim in the Authority’s statement of reasons and that it was a claim central to the issue of the applicant’s claims for protection.

10. The first respondent submitted that the claim concerning the paternal uncle’s involvement in drug dealing formed only “a very minor part” of the applicant’s submission dated 27 June 2017. The first respondent submitted that the purpose of the submission was to indicate to the Authority why the applicant disagreed with findings made by the Delegate concerning whether the applicant’s father had been abducted in 2006. Relevantly, the submission dated 27 June 2017 stated as follows:

    “Under part 5 of the decision record, the officer discussed about “applicant’s father [R’s] attempt to abduction in 2006”. Please note that when I was questioned about the reasons for my father abduction, which was to extort money from him, I answered that I was not sure whether it was for this reason or for the same reason as to why they had kidnapped my uncle…[The Delegate] completely rejected that he same unknown people who attempted to abduct my uncle were the same people who tried to abduct my father.”

11. The first respondent referred to the submission quoted at paragraph 32 above. In addition, the first respondent referred to the applicant’s assertion in the submission that his father was worried that if the applicant was sent back to Sri Lanka as a failed asylum seeker, the applicant could be forced to admit under torture that his father was a drug trafficker like his uncle.

12. The first respondent also referred to the following in the submission:

    “If I could have given details of my father’s fear of abduction before or during [the Delegate’s] interview, the outcome of [the Delegate’s] decision would have been in favour of me… I wish to state that this is very major and relevant fact in my case which my father should have told me when I fled from Sri Lanka so that I could make these claims to obtain my protection in this country. Presently, my father fears that by telling the above truth to me, he would face drastic consequences on his return back to Sri Lanka if or when this information is leaked to the Sri Lankan authorities in the future. I concern about my father’s and my safety back in Sri Lanka in the future.”

13. The above extracted paragraphs referred to by the first respondent make clear that what the applicant was claiming in his submission, dated 27 June 2017, was a risk of harm to the applicant because his father would be suspected of being involved in drug dealing with the LTTE. The Authority’s summary of the new information in the applicant’s statement, dated 27 June 2017, correctly identified that as the substance of the new claim being made by the applicant. The uncle’s involvement and abduction was no more than a minor part falling within that broader claim.

14. The new claim that the applicant faced a risk of harm by reason of his father’s activities was considered in detail by the Authority in the manner required by s.473DD of the Act.

15. Ultimately, the Authority was not satisfied that the new information either could not have been provided to the Delegate or was credible personal information. The Authority was not satisfied that there were any exceptional circumstances to justify considering the new information.

16. In reaching that finding the Authority had regard to the exercise required of it by s.473DD of the Act in relation to any new information as to whether there were exceptional circumstances to justify considering the new information and whether the new information was or could have been provided to the Delegate or was credible personal information. The Authorities findings at paragraph 37 above make this clear.

17. Ground 2 asserts that the Authority’s findings at paragraph 37 above displayed reasoning by the Authority that, if the new information was credible, the applicant would have been aware of it before the Delegate’s decision, and that the explanation of why the father had not previously told the applicant the reason he was abducted, was because it was not credible.

18. The applicant submitted that by this reasoning, the Authority conflated the two alternative criteria in s.473DD(b)(i) and (ii) of the Act, each of which required a different enquiry. The applicant submitted that the applicant did not need to satisfy the Authority that both the new information could not have been provided to the Delegate and that the information was credible, thereby misinterpreting and misapplying s.473DD(b) of the Act.

19. However, as is made clear by the Authority’s reasons quoted in paragraph 37 above, the Authority made a specific finding that the new information did not meet either s.473DD(b)(i) or 473DD(b)(ii) of the Act. The Authority concluded that:

    “The applicant has not satisfied me that this new information either could not have been provided to [the Delegate] or that it is credible personal information.”

    (Emphasis added)

20. The use by the Authority of the disjunctive “or” makes clear that the Authority did not conflate the two enquiries and the Authority’s view that the new information was not credible because it was only provided after the Delegate’s decision does not mean there was any conflation of the two enquiries. I also accept the first respondent’s submission that the Authority was entitled to have regard to whatever matters it considered appropriate in determining the credibility of the new information.

21. Otherwise, the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse creditability findings. It is well established that credibility findings are matters for the primary decision-maker, provided they are open on the material, based on rational grounds and arrived at after consideration of matters that were logically probative of the issue, and made in a procedurally fair manner (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ). The findings made by the Authority were probative of the issues before it and were not without an intelligible justification.

22. Accordingly, neither Ground 1 nor Ground 2 is made out.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.

2. The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 13 December 2019