BPI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1057
•24 July 2020
FEDERAL COURT OF AUSTRALIA
BPI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1057
Appeal from: BPI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3638 File number: NSD 2131 of 2019 Judge: STEWART J Date of judgment: 24 July 2020 Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court dismissing the appellant’s application for judicial review of a decision by the Immigration Assessment Authority – where Authority received new information – appellant claimed new information not properly considered by Authority – exercise of discretion under s 473DD of the Migration Act 1958 (Cth) – whether jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 473CB, 473DB, 473DC 473DD, Cases cited: DYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; 269 FCR 94 Date of hearing: 21 July 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 43 Counsel for the Appellant: Richard Chia (direct access) Counsel for the Respondents: Tim Reilly Solicitor for the Respondents: Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 2131 of 2019 BETWEEN: BPI18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
STEWART J
DATE OF ORDER:
24 JULY 2020
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWART J:
Introduction
The appellant was 21 years of age when he arrived as an “unauthorised maritime arrival” by boat at the Cocos (Keeling) Islands in 2012. From there he was transferred to Christmas Island.
The appellant subsequently applied for a Safe Haven Enterprise visa (SHEV), a form of protection visa, on the basis of a fear of persecution in Sri Lanka, from whence he came. A delegate of the first respondent (Minister) refused that application. A review was then conducted by the Immigration Assessment Authority which, in January 2018, affirmed the delegate’s decision not to grant the appellant a protection visa.
The appellant sought judicial review of the Authority’s decision in the Federal Circuit Court of Australia, which was dismissed on 13 December 2019: BPI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3638.
The appellant now appeals against the decision of the Circuit Court.
Background
The appellant is a male of Hindu faith and Tamil ethnicity from the Western Province of Sri Lanka.
In a statement accompanying his SHEV application, the appellant stated a case that if he was forced to return to Sri Lanka he would be seriously harmed because of his Tamil ethnicity, and because people who abducted, or tried to abduct, his relatives and who killed his younger brother would harm him.
The appellant’s statement included the following factual claims:
(1)In around 2004, a maternal uncle was abducted and he has not been heard from since. The appellant’s family and the appellant suspect that the abduction was because of the maternal uncle’s association with a number of prominent Tamils, from Sri Lanka and around the world, and that the government believed that the uncle may have been involved in political activities against the interests of the government.
(2)In 2006, the appellant’s father was nearly abducted. Following the attempted abduction, which the family suspected was at the hands of the government, the appellant’s father left Sri Lanka and went to Kuwait where he has continued to live.
(3)In 2008, a paternal uncle was abducted and beaten. His abductors asked him about his finances and how he was earning his money and with whom he was connected. He was not sure who had taken him. The appellant and his family suspect that it was the government because the questions asked by the paternal uncle’s abductors seem to suggest that he had gained his money from the Liberation Tigers of Tamil Eelam (LTTE), a militant group fighting for an independent homeland for Tamils in the North and East of Sri Lanka. Further, he showed signs that he had been tortured and abused, and it is common knowledge that the government would treat suspected LTTE members in this way.
(4)In 2012, the appellant was approached by about three people who told him to go away with them to answer some questions. Thanks at least in part to the intervention of some colleagues on his behalf, the appellant managed to avoid going away with these people. The appellant believes that the reason he was approached could relate to his father.
(5)The following year, the appellant’s younger brother was taken away while he was on his way to work. He returned that evening, saying that he was taken and was asked questions about their father and their father’s business. He did not know who took him. He died in his sleep that night. His death certificate says that he had been poisoned.
On the basis of those claims, and the lack of police response to those claims, the appellant stated that he was afraid that if he returned to Sri Lanka he would be subjected to serious harm, including being abducted and beaten, or killed like his younger brother. He stated that he is “afraid of this harm from the people who have abducted, or tried to abduct, my relatives and who killed my younger brother”.
In refusing the appellant’s claim, the delegate made the following findings.
The delegate noted that the appellant does not know the exact reasons for his maternal uncle’s disappearance and the delegate cannot be satisfied that it relates to any adverse profile, LTTE or otherwise, that his maternal uncle had with the Sri Lankan authorities. The delegate found that the appellant did not face any problems from anyone in Sri Lanka because of the maternal uncle, or as a result of his disappearance.
With regard to the attempted abduction of the appellant’s father, the delegate found that there is no evidence to substantiate the appellant’s claims that the people responsible were the same people who had abducted the appellant’s maternal uncle. Further, the delegate found that the reason that the appellant gave for his maternal uncle’s abduction was not related to the appellant’s father; no one knew who abducted the uncle, although it is plausible that the people who attempted to abduct the appellant’s father could have been the groups known at that time for making abductions from white vans.
With regard to the abduction of the appellant’s paternal uncle, the delegate accepted the appellant’s claims as plausible that the uncle was abducted. However, the delegate found that there is not enough information to substantiate whether the uncle was abducted by people linked to the government and on suspicion of LTTE connection or membership or whether he was abducted by some unknown people for extortion purposes due to him being a wealthy businessman. The delegate further found that the appellant did not face any problems from anyone in Sri Lanka due to his paternal uncle’s abduction.
With regard to the attempted abduction of the appellant, the delegate found that the appellant did not face any harm from anyone while he assisted in his father’s business. The delegate found that even if unknown men had decided to abduct the appellant, they would have made further attempts to abduct him after the initial incident.
New information to the Authority
The appellant made written submissions to the Authority, which included certain new information which had not been provided to the delegate. The new information includes the following elements:
(1)The appellant’s father recently told him that the reason for his father’s abduction was that his father and uncle had financially assisted the LTTE.
(2)The appellant’s uncle had been involved in drug trafficking on behalf of the LTTE between India and Sri Lanka in the past. The appellant’s father had been aware of the uncle’s involvement but had not himself wanted to be involved.
(3)The Sri Lankan authorities suspected that the appellant’s father was rich not because he was a goldsmith but because he and his brother (i.e. the uncle) were involved in the drug trade for the LTTE and earned a lot of money therefrom.
(4)The authorities found evidence against the appellant’s uncle which led to his abduction.
(5)Even though the appellant’s father was not involved in drug trafficking for the LTTE, the authorities were not willing to believe that and attempted to abduct his father in the same manner as they did his uncle.
(6)The Sri Lankan authorities have details of the appellant’s father’s involvement in the LTTE in the past which gives rise to a concern that the authorities were trying to arrest, abduct and interrogate members of the family to find out whether they knew any details about the father and uncle’s involvement in the LTTE drug ring.
There was also other new information with regard to the appellant being abducted by the CID, the Sri Lankan authorities using poisonous injections during torture, Tamils having no right or authority to file a case against the authorities for mistreatment, and United Nation’s concerns over abuses and torture in Sri Lanka.
The submissions included an explanation as to why the above elements of new information were not known by the appellant prior to the decision of the delegate and why the appellant was therefore not able to provide the information to the delegate.
The Authority’s review of the delegate’s decision is governed by Part 7AA of the Migration Act 1958 (Cth). Section 473DB of the Act provides that the Authority must review the decision of the delegate by considering the review material provided to the Authority under s 473CB (being essentially the material that was before the delegate) “without accepting or requesting new information”. That is in effect an exclusionary rule with regard to any new information.
However, s 473DD of the Act provides an exception to the exclusionary rule as follows:
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.
In terms of s 473DC(2) of the Act, the Authority has no duty to accept any new information.
The Authority summarised the new information that was furnished by the appellant (at [5]) in five dot-points of which the first is presently relevant:
· 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.
The Authority rejected the new information. Although the Authority did not refer to s 473DD, it is apparent from the Authority’s reasoning that it had the requirements of that section in mind. After summarising the new information in the five dot-points already mentioned, the Authority (at [6] and [7]) summarised the appellant’s explanation for the new information not having been presented to the delegate. Thereafter (at [8]-[12]) the Authority dealt in a separate paragraph with each aspect of the new information corresponding to the five dot-points. Finally (at [13]), the Authority summarised its conclusions in rejecting the new information.
The pertinent paragraphs for present purposes are the following, with the sentences in the first paragraph being numbered by me for ease of reference:
8.[1] 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. [2] I do not accept it. [3] 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. [4] 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. [5] 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. [6] 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. [7] I am also not satisfied that there are any exceptional circumstances to justify considering this information.
…
13.Overall, the applicant has not satisfied me that the new information could not have been provided to the delegate, or that it is credible personal information which, had it been known, may have affected the consideration of his claims and I am therefore unable to consider it. Nor am I satisfied that there are exceptional circumstances to justify considering the information.
Judicial review by the Circuit Court
The appellant relied on two grounds of review before the Circuit Court.
Ground 1 asserted that the Authority failed to apply s 473DD of the Act to the new information that the reason behind his uncle’s abduction was that the authorities found evidence of the uncle’s involvement in drug trafficking.
The primary judge found that in his submission to the Authority the appellant was claiming a risk of harm because his father would be suspected of being involved in drug trafficking with the LTTE. The primary judge said that the Authority’s summary of the new information correctly identified that point as the substance of the new claim being made by the appellant. The primary judge held that the uncle’s involvement and abduction was no more than a minor part falling within that broader claim. On this basis, ground 1 was rejected.
Ground 2 asserted that the Authority misapplied s 473DD of the Act and misdirected itself in relation to the new information regarding the reasons why the appellant’s father was threatened with abduction. The appellant submitted that the Authority conflated the two alternative criteria in s 473DD(b)(i) and (ii), each of which required a different enquiry.
The primary judge referred to paragraph [8] of the reasons of the Authority, which is quoted above (at [22]), and concluded that the Authority had not conflated the two alternative criteria. Rather, the Authority had found that neither criterion was satisfied. On this basis, ground 2 was rejected.
The grounds of appeal
In this Court, the appellant advances two grounds of appeal which mirror the grounds of review in the Circuit Court. They are expressed as follows:
1.Her Honour erred in not finding, and ought to have found, that the second respondent committed jurisdictional error by failing to apply section 473DD of the Migration Act 1958 (Act) to a new claim regarding the abduction of his paternal uncle.
2.Further or in the alternative, her Honour erred in not finding, and ought to have found, that the second respondent committed jurisdictional error by misapplying section 473DD of the Act to the new claim regarding the reasons why his father was threatened with abduction.
Ground 1: new information regarding the abduction of the paternal uncle
It was submitted on behalf of the appellant that the primary judge erred in characterising the paternal uncle’s involvement and abduction as being no more than a minor part within the appellant’s broader claim of a risk of harm because his father would be suspected of being involved in drug trafficking with the LTTE. It was submitted that the appellant’s statement of claims originally presented the abduction of his paternal uncle in 2008 as an adverse episode which independently gave rise to fear of harm. The Authority considered this to be a “central claim” and accepted the abduction had occurred but found it implausible that the uncle had been abducted “on suspicion of LTTE links” and therefore did not accept that he or the appellant continued to be of interest to the authorities. It was submitted that the appellant’s new claim that the paternal uncle was abducted because evidence had been obtained of his involvement in drug trafficking to support the LTTE was therefore relevant to the appellant’s central claims and the Authority’s actual course of reasoning.
It was submitted on behalf of the Minister that the new information with regard to there being evidence against the uncle was not overlooked by the Authority. Specifically, the Authority’s summary (in the first dot-point at [5] quoted at [20] above) stated that the appellant’s “mother told him that there was evidence against his uncle”. Also, (at [6]) the Authority referred to “the new claim regarding his family’s claimed past involvement with the LTTE” which is to be understood as including a reference to the uncle’s involvement.
Those submissions are clearly correct. Although the new information with regard to the Sri Lankan authorities having evidence of the uncle’s involvement in the LTTE was not set out or recorded completely by the Authority, it was referred to both in the summary of new information (at [5]) and in the summary of the appellant’s explanation of why the new information was not provided to the delegate (at [6]). There can be no doubt that the Authority was aware of this element of the new information.
The question then becomes whether the Authority gave consideration to this element of the new information when assessing its level of satisfaction with regard to the requirements in s 473DD. In that regard, it was submitted on behalf of the Minister that no inference can be drawn that the Authority overlooked that the claim was that the real reason for the uncle’s abduction was this evidence. For the appellant, it was submitted that the absence of any mention of the Sri Lankan authorities having evidence against the uncle in paragraph [8] of the Authority’s reasons leads to the inference that this element of new information was not considered by the Authority.
For the structural reasons I have already referred to (at [21] above), it is apparent that paragraph [8] of the Authority’s reasons corresponds to, and therefore purports or was intended to deal with, the new information summarised in the first dot-point in paragraph [5]. Moreover, the opening sentence of paragraph [8] identifies that what is being considered in that paragraph is “the applicant’s explanation that he was not told the real reason for his father’s abduction until after the delegate’s decision”. Part of the real reason, as asserted by the appellant, for his father’s abduction was the Sri Lankan authorities’ knowledge of his uncle’s involvement in the LTTE. Thus, although there is no express reference in paragraph [8] to the specific new information with regard to the Sri Lankan authorities having evidence of the uncle’s involvement in the LTTE, it is encapsulated by the reference to “the real reason for his father’s abduction”.
This is therefore not a case such as DYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; 269 FCR 94, relied on by the appellant, where the inference can be drawn that particular new information was not considered by the Authority based on its failure to mention that information and its detailed consideration of other new information (see that decision at [55]). The particular element of new information was mentioned, and then it was encapsulated in what was considered in paragraph [8].
Moreover, the reason given by the Authority for rejecting the explanation that the new information could not have been given to the delegate, as set out in the third sentence of paragraph [8], applies equally to the new information with regard to both the uncle and the father’s involvement in the LTTE and any evidence that the Sri Lankan authorities had of the former.
In those circumstances, appeal ground 1 must fail.
Ground 2: misapplication of s 473DD(b)
On behalf of the appellant, particular reliance was placed on the third sentence of paragraph [8] of the Authority’s reasons which is quoted above (at [22]). It was submitted that the Authority was reasoning that if the new claim was “credible” the information would have been told to the appellant earlier and therefore could have been provided to the delegate, that is, that it was not plausible that the new claim could be both credible and not made available to the delegate. It was submitted that in order to satisfy the requirement in paragraph (b) of s 473DD, the appellant did not need to satisfy the Authority that the new information was credible and could not have been provided to the delegate. It was submitted that the Authority misinterpreted and misapplied paragraph (b) and thus committed jurisdictional error.
The appellant’s submission is not correct. What the Authority is doing in the third sentence of paragraph [8] is to consider the question whether the requirement in subparagraph (b)(i) of s 473DD was satisfied on the assumption that the new information with regard to the real reason for the appellant’s father’s abduction is credible. That is an entirely legitimate and appropriate line of enquiry. It does not conflate the requirements of subparagraphs (i) and (ii), and it does not require both of the subparagraphs to be satisfied.
It can be seen that the third and fourth sentences of paragraph [8] of the Authority’s reasons deal with the requirement of subparagraph (i), concluding that the appellant’s explanation for why the information was not available to him to give to the delegate could not be accepted and that the requirement of subparagraph (i) was therefore not satisfied.
The fifth sentence, which begins with “I also find the new information internally inconsistent…”, then deals with the requirement of subparagraph (ii). The Authority’s conclusion was that the requirements of that subparagraph were not satisfied because the new information with regard to the real reason for the appellant’s father’s abduction was not credible.
The sixth sentence then states the conclusion with regard to subparagraphs (i) and (ii), i.e. that the Authority was not satisfied “that this new information either could not have been provided to the delegate or that it is credible personal information”. The last paragraph then states a conclusion with regard to the requirements of paragraph (a) of s 473DD.
In the circumstances, the Authority made no error in its interpretation or application of s 473DD with respect to the new information regarding the reasons for the appellant’s father being threatened with abduction. The primary judge was correct in rejecting that ground of review, and ground 2 of the appeal must fail.
Conclusion
In the result, the appeal falls to be dismissed. The parties were in agreement that the costs should follow the event. The appellant should therefore pay the Minister’s costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart. Associate:
Dated: 24 July 2020
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