BQQ19 v Minister for Immigration
[2020] FCCA 1653
•23 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQQ19 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1653 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – applicants claiming a fear of harm in Sri Lanka – first applicant making more serious claims before the delegate – new claims rejected by the Authority – whether the Authority overlooked a claim by the second applicant or failed to consider getting new information or by failing to get a copy of a document shown to the delegate considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA, 473CB, 473DC Migration Regulations 1994 (Cth) |
| Cases cited: Applicant S395/2002 v Minister for Immigration (2003) 216 CLR 473 AUF18 v Minister for Immigration [2019] FCAFC 222 AWT15 v Minister for Immigration [2017] FCA 512 AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 BVC20 v Minister for Immigration [2020] FCA 565 CVV16 v Minister for Home Affairs [2019] FCA 1890 Hossain v Minister for Immigration (2018) 92 ALJR 780 Htun v Minister for Immigration (2001) 233 FCR 136 DTK17 v Minister for Immigration [2018] FCAFC 170 EVS17 v Minister for Immigration (2019) 163 ALD 422; (2019) 268 FCR 299 Kasupene v Minister for Immigration (2008) 49 AAR 77 Minister for Immigration v BBS16 [2017] FCAFC 176 Minister for Immigration v Eden (2016) 240 FCR 158 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v Stretton (2016) 237 FCR 1 Minister for Immigration v SZVFW (2018) 357 ALR 408; (2018) 163 ALD 1 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 NAVK v Minister for Immigration [2004] FCA 1695 Plaintiff M174 v Minister for Immigration (2018) 92 ALJR 481 |
| First Applicant: | BQQ19 |
| Second Applicant: | BQR19 |
| Third Applicant: | BQS19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 140 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr A McBeth |
| Solicitors for the Applicants: | Estrin Saul Lawyers & Migration Specialists |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 9 June 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 140 of 2019
| BQQ19 |
First Applicant
| BQR19 |
Second Applicant
| BQS19 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 14 March 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protections visas. The following statement of background facts is derived from the submissions of the parties.
The applicants are citizens of Sri Lanka who came to Australia on 1 May 2013. The first applicant is the husband of the second applicant, and the third applicant is their son. On 5 July 2013 and 8 July 2013 respectively the first and second applicants participated in an irregular maritime arrival and induction interview.[1] On 29 August 2016 an officer of the Minister’s Department sent the first and second applicants a letter inviting each of them to apply for a temporary protection visa or a Safe Haven Enterprise Visa (SHEV), and advised them that the Minister had exercised power under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow them to make a valid visa application.[2] By letter dated 24 September 2017 the applicants lodged applications for a SHEV.[3]
[1] Court Book (CB) 1, 22
[2] CB 44
[3] CB 68
In their visa applications, only the first and third applicants indicated they wished to advance protection claims.[4] The first applicant’s claims were set out in part in a statement accompanying his visa application.[5] The third applicant’s claims were set out in part in a statement accompanying his visa application.[6] The first applicant claimed that he had assisted the Liberation Tigers of Tamil Eelam (LTTE) in Colombo by giving sanctuary to prominent LTTE members trying to flee Sri Lanka in 2006. He claimed he was viewed suspiciously by authorities as a Tamil-speaking taxi driver. The first applicant described an incident in 2009 when Sinhalese speaking men detained the first applicant in a white van and interrogated him and assaulted him concerning his association with some Tamil men the first applicant had transported in his taxi. The first applicant claimed that a white van arrived at his house at 1:00am the next morning causing him to leave Colombo.
[4] CB 71
[5] CB 123
[6] CB 207
The first applicant claimed he flew to Malaysia, via Singapore, and claimed to have been arrested in Malaysia and detained for four months for trying to leave unlawfully. He claimed to have been interviewed against his will by officials from the Sri Lankan High Commission. The first applicant claimed he was released following successful petitioning by the leader of the Malaysian Indian Congress. He claimed the release of Tamils in detention was widely publicised and was in the newspapers and on television. He also claimed that his family continued to be visited by the Criminal Investigation Department (CID), forcing the second and third applicants to travel to Malaysia. The applicants travelled to Australia, via Indonesia in 2013. The first applicant claimed to fear harm due to his pro-LTTE political opinion, his Tamil ethnicity, his LTTE involvement and returning as a failed asylum seeker.
The third applicant claimed to be at risk of harm in connection with the adverse attention his father had received, as claimed in his SHEV application. He claimed that the Sri Lankan authorities would associate him with his father’s activities in Sri Lanka and suspect that he continued to help LTTE members passing through Colombo. The third applicant claimed to fear harm due to his association with his father, his Tamil ethnicity, as a sympathiser of the LTTE and returning as a failed asylum seeker.
On 26 July 2018 the delegate interviewed both the first and third applicants concerning their protection claims. The applicants’ migration agent was present during the interviews.
On 24 January 2019 the delegate refused to grant the first and second applicants a visa.[7] The delegate made a separate decision refusing to grant the third applicant a visa.[8] On 29 January 2019 the applicants’ matters were referred to the Authority for review pursuant to s.473CA of the Migration Act.[9]
[7] CB 297
[8] CB 317
[9] CB 335
Authority’s decision
On 14 March 2019 the Authority affirmed the delegate’s decisions.[10]
[10] CB 358
The Authority was not satisfied at [29] that the first applicant had provided a truthful and reliable account of his past experiences in Sri Lanka. It accepted at [29]-[31] that the first applicant may have felt sympathetic to the LTTE as a Tamil who had himself experienced undue harassment in the past, but was not satisfied he was a member of the LTTE or had been engaged to provide assistance to the LTTE as he had claimed. In reaching its conclusions concerning the first applicant’s truthfulness the Authority expressed particular concern at [18] that the first applicant made significant changes to his evidence to the delegate at interview following a break during the interview. In his written claims, and evidence to the delegate prior to the break, the first applicant had claimed in relation to the incident in August 2009 when he had picked up two Tamil men in his taxi that he had not known the men were LTTE, but suspected they were.[11] Further, that he had not arranged to pick the men up, but that he “took hire from everybody”. In his entry interview, the first applicant had expressly answered “no” to the question whether he had been associated with or involved with any political group or organisation.[12]
[11] CB 363 at [15]
[12] CB 362 at [12]
After the break in the interview, the first applicant said to the delegate he had only told “40% of the information” and that he had been too afraid to tell the truth to his migration agent and to his family.[13] He then claimed that he in fact had been involved in the deliberate organisation, transport and accommodation of LTTE members attempting to flee Sri Lanka from 2006, and that LTTE members were specifically sent to him for assistance. The first applicant developed these claims in a post-interview written submission.[14] The first applicant now claimed in relation to the 2009 incident that he had been instructed to pick up the two Tamil males.
[13] CB 363 at [18]
[14] CB 281
The Authority was not satisfied at [20] with the first applicant’s reasons for changing his evidence. It did not accept that he was too afraid at the delegate’s interview to disclose his active LTTE involvement. It considered his inability to provide spontaneous evidence about his LTTE involvement at the interview, prior to the break, strongly suggested that his later evidence about active involvement in the LTTE was not his personal experience.
The Authority was otherwise unconvinced at [22] with the first applicant’s evidence about his escape from authorities in the middle of the night. The Authority was also not satisfied of the first applicant’s claims concerning what he claimed occurred to him in Malaysia.[15]
[15] CB 366-367 at [32]-[34]
In respect of the third applicant the Authority gave separate reasons for its finding that the third applicant was not owed protection obligations at [35]-[41]. The Authority found at [37] that the third applicant’s evidence about his father’s LTTE involvement was “overall vague and lacked convincing detail”.
The Authority concluded that the first applicant did not satisfy either s.36(2)(a) or s.36(2)(aa) of the Migration Act.
The current proceedings
These proceedings began with a show cause application filed on 18 April 2019. The applicants now rely upon an amended application filed on 9 June 2020. There are three particularised grounds in that application as amended:
1. The IAA failed to consider the elements of the claims of protection in fact made by the second applicant.
Particulars
a) The IAA asserted, wrongly, that the second applicant did not make her own claims for protection and relied only on being a member of the same family unit as the first applicant.
b) The material before the IAA contained substantive claims that the second applicant had a well-founded fear of persecution in her own right.
c) The IAA failed to consider the second applicant’s claims to fear persecution.
d) As a consequence, the IAA failed to consider whether the first and third applicants may be entitled to a protection visa as members of the second applicant if her claims to have a well-founded fear of persecution were accepted.
2. The failure of the IAA to exercise or consider exercising its discretion to invite any of the applicants to an interview under s 473DC(3) was unreasonable.
Particulars
a) The second applicant was not interviewed by the delegate.
b) The audio recording of the interview with the first delegate omitted between 10 and 17 minutes of the interview.
c) It was unreasonable of the IAA not to hold a further interview with either or both of the first and second applicants to ensure that it had a complete record of the applicants’ evidence from which to conduct the review.
3.The conduct of the IAA review miscarried because the IAA did not have before it an item of evidence presented to the delegate in support of the applicants’ claims and could therefore not consider that evidence.
Particulars
a) The third applicant showed the delegate a newspaper article in support of the applicants’ claims.
b) The article was not included in the review material provided to the IAA by the Secretary.
c) The IAA acted unreasonably in the conduct of the review by failing to seek or obtain the newspaper article that had been before the delegate.
In addition to the court book filed on 6 June 2019, I received into evidence two affidavits. The first is the affidavit of Reuben Saul Jahnke made on 9 June 2020, to which is annexed a transcript in two parts of the interview conducted with the delegate on 26 July 2018. The first interview was with the first applicant the second interview was with the third applicant. The second applicant was not interviewed.
The second affidavit was made by the third applicant on 9 June 2020. Annexed to that affidavit is a copy of a newspaper article in the Tamil language and a certified English translation of that article.
Both the applicants and the Minister filed pre-hearing written submissions and made helpful oral submissions through their counsel at the trial on 22 June 2020. I have been assisted by those submissions.
Consideration
Ground 1 – did the Authority fail to consider a claim for protection by the second applicant?
Applicants’ contentions
On the application form dated 28 September 2017, to the question “applicant raising their own claims of protection”, the box for the first applicant and third applicant were ticked “yes”, but the box for the second applicant was ticked “no”.[16] The first and third applicants attached statements to the application form, but the second applicant did not. [17]
[16] CB 71
[17] CB 123; 207
Presumably on that basis, the Authority found that the second applicant “raised no claims for protection of her own; rather she seeks the visa on the basis of being a member of the same family unit as Applicant 1.”[18]
[18] CB 359 at [3]
However, that statement is said not to reflect the review material before the Authority. Claims of substance were “clearly made” by the second applicant that she personally had a well-founded fear of persecution on the basis of her own experiences, within the meaning of ss.36(2), 5H and 5J of the Migration Act, independent from being the member of a family unit of someone else who had such a fear.
At the entry interview, the summary notes record the second applicant claiming that Sri Lankan authorities had come to her house, put a gun to her head, abused her, kicked her and tried to take her son.[19] Although those events occurred because of her connection with her husband, the harm experienced and the consequent fear of future harm was her own.
[19] CB 32
When the applicants’ representative made written submissions to the delegate, the submissions were framed collectively on behalf of the family, that is, all three applicants.
The submissions included claims of threats of harm directly to the second applicant if her husband, and later her son, did not report to the CID, including on some occasions after her husband had left Sri Lanka for Malaysia.[20]
[20] CB 235-236
Accordingly, there are said to have been clear claims made before the delegate and at the entry interview, and by extension before the Authority in the referred material, that the second applicant had a well-founded fear of persecution in her own right.
The applicants submit that the failure of the Authority to consider the second applicant’s claims, wrongly understanding her not to have made any claims in her own right, constitutes jurisdictional error.[21]
[21] Htun v Minister for Immigration (2001) 233 FCR 136 at [7], requiring the Tribunal (and by analogy the Authority) to deal with all the essential elements of the claim actually raised by the material or the evidence
There is nothing to preclude an applicant from initially applying for a visa on the basis of a criterion of being a member of a family unit of another applicant, but by the time the visa application comes to be decided, satisfying the different criterion of being a person with a well-founded fear of persecution in her own right (or indeed both criteria).
In the context of a SHEV, the second applicant satisfied clause 790.211 of schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) at the time the application was made. That clause requires either subclause (2) or (3) to be satisfied at the time of application.
Clause 790.211(2) provides:
(2) The applicant:
(a) claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and
(b) makes specific claims as to why that criterion is satisfied.
The alternative criterion in clause 790.211(3), which the second applicant satisfied, provides that at the time of the application:
(3) The applicant claims to be a member of the same family unit as a person:
(a) to whom subclause (2) applies; and
(b) who is an applicant for a Subclass 790 (Safe Haven Enterprise) visa.
Clause 790.221 sets out the criteria to be satisfied at the time of decision. Again, either alternative (2) or (3) must be satisfied.
Clause 790.221(2) provides:
The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.
Subclause (3) is that the applicant is the member of the same family unit as a person who satisfies s.36(2)(a) and has been granted a SHEV.
There is nothing in the Migration Act or Regulations to preclude a person from applying under s.36(2)(b), making no express claims of his or her own, and subsequently adding claims before a decision is made. The claims so added would then fall to be considered consistent with clause 790.221(2) and authorities such as Htun.
The applicants submit that, in the present case, by the time of the decision by the Authority, the second applicant had raised clearly articulated claims in the material before the Authority, which the Authority was required to consider and determine. The failure of the Authority to consider the second applicant’s claims constituted jurisdictional error in the decision relating to the second applicant.
The applicants submit that, in relation to the first and third applicants, the failure of the Authority to consider the claims of the second applicant meant that they were deprived of the opportunity to satisfy the alternative visa criterion as a member of the same family unit of their wife and mother if her claims had been accepted. The Authority is thereby also said to have committed jurisdictional error in relation to the first and third applicants.
Minister’s contentions
As observed by Barker J in AWT15 v Minister for Immigration,[22] a finding that a claim (although unarticulated) “clearly emerges”, is “squarely raised” or is “plain” on the materials before the decision maker is not one that will be made lightly[23] and the fact that a claim “might” be seen to arise on the materials is not enough.[24] Further, the Authority is not required to engage in constructive or creative activity in order to expose an unarticulated claim.[25] An unarticulated claim must arise sufficiently from the material as to require a reasonably competent decision maker in the circumstances to appreciate its existence.[26] It is useful to recall the remarks of Gleeson CJ in Applicant S395/2002 v Minister for Immigration[27] at [1] where the Chief Justice (albeit in dissent on the result) stated that:
a decision of the Tribunal must be considered in 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.
[22] [2017] FCA 512
[23] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68]
[24] NABE at [68]
[25] NABE at [58]
[26] NAVK v Minister for Immigration [2004] FCA 1695 at [15] (Allsop J, as his Honour then was)
[27] (2003) 216 CLR 473
While the Minister accepts that the principles from NABE apply to a review conducted by the Authority[28] it was “plainly the intention of the second applicant not to advance her own claims for protection”. The second applicant was represented by a migration agent,[29] and at no point, either to the Minister’s Department or to the Authority, was it expressed by or on behalf of the second applicant that she wished to have her own claims for protection assessed. That the second applicant and her experiences feature in the materials as relevant to, and supportive of, the claims advanced by the first and third applicants does not, of itself, create an obligation on the Authority to determine the second applicant’s visa application against criteria she did not ask to be considered in respect of her own visa application.
[28] Minister for Immigration v BBS16 [2017] FCAFC 176 at [79]
[29] cf Kasupene v Minister for Immigration (2008) 49 AAR 77 at [21]
The Minister submits that it should be noted in particular that not only did the second applicant not advance her own statement of claims to the Minister’s Department in support of her visa application, and that she expressly indicated on the visa application form that she did not advance her own claims, but the “supporting submission” given to the Minister’s Department by the applicants’ representative addressed the claims of the first applicant[30] and of the third applicant[31] but made no such claims on behalf of the second applicant.
[30] CB 232
[31] CB 235
It is not the role of the Authority, despite clear indications given by an applicant who is assisted by a migration agent, to look behind the intention of the applicant and to piece together protection claims from the available material. The Full Federal Court in NABE spoke against this approach, which is why the claims must be said to “squarely” arise on the materials.
Resolution
In the first ground the applicants assert that the Authority failed to consider the second applicant’s protection claims. Despite having expressly nominated on her SHEV application that she did not advance her own claims for protection, and despite not having supplied a statement of claims to the Minister’s Department in support of her visa application, the applicants contend that “claims of substance were clearly made” by the second applicant. The argument cannot be accepted.
In my view, the second applicant did not make a clearly articulated claim for protection. What she did was, through her agent, make an evidentiary assertion concerning contact with the Sri Lankan authorities while her husband was in Malaysia, which was intended to support and corroborate his claims. The claim as put was expressly considered and rejected by the Authority at [34] of its decision where it stated:[32]
Applicant 1 claimed in the visa application that detainees were fingerprinted, photographed and interrogated by officials against their will. His evidence at the SHEV interview does not suggest that he was fingerprinted or interrogated. I am willing to accept that Applicant 1 was interviewed as a group by Sri Lankan Consular officials while he was detained in Malaysia and was encouraged to return to Sri Lanka in 2010. I am also willing to accept that authorities in Sri Lanka might also be aware of his detention in Malaysia. However, I do not accept that Applicant 1 was forcibly fingerprinted, photographed and interrogated by the Sri Lanka Consular officials, noting his evidence at the SHEV interview was that it was a group interview and they could avoid being seen their faces . I am willing to accept that the release of the detainees because of the work of the Malaysian refugee advocate was publicised in Malaysian media, however I am not satisfied this was widely publicised in Sri Lanka. Given my above findings that Applicant 1 was not of ongoing adverse interest from the Sri Lanka authorities and was not sought out before or after Applicant 1 departed Sri Lanka, I am not satisfied that authorities in Sri Lanka took interest in Applicant l's wife and Applicant 3 in Sri Lanka following the group interview or the media reports of detainees in Malaysia.
[32] CB 367
Subject to my consideration of Ground 3 in the application, Ground 1 fails.
Ground 2 – did the Authority unreasonably fail to invite any of the applicants to an interview under s.473DC(3) of the Migration Act?
Applicants’ contentions
The fast-track review conducted by the Authority under Part 7AA is ordinarily to be conducted as a review on the papers without a hearing. That process is underpinned by an assumption that the applicant will have been afforded procedural fairness at the prior stage, including an opportunity to be heard in the interview with the delegate.[33] It is on that basis that the applicant is not ordinarily given a hearing in a fast-track review.
[33] Plaintiff M174 v Minister for Immigration (2018) 92 ALJR 481 at [45] (Gageler, Keane and Nettle JJ)
However, the Authority has discretionary power under s.473DC(3) to get new documents or information from any person, including a power to invite the applicant to an interview. That power must be exercised reasonably.[34]
[34] Plaintiff M174 at [21] (Gageler, Keane and Nettle JJ)
The applicants submit that, in circumstances where the process before the delegate has been flawed in some respect, such that the applicant did not have a full opportunity to present his or her case, the Authority acting reasonably would be expected to exercise its discretion to invite the applicant to an interview to remedy that flaw.[35]
[35] Plaintiff M174 at [49] (Gageler, Keane and Nettle JJ)
Similarly, the applicants submit that where the Authority was itself dissatisfied with the quality of the evidence that it had before it, it will be unreasonable for the Authority to proceed to determine the review on the basis of that flawed evidence without exercising the powers at its disposal to remedy the problem.
The Authority in this case had access to and relied on the audio recordings of the interviews conducted by the delegate with each of the first and third applicants. The Authority did not invite any of the applicants to an interview pursuant to s.473DC(3), nor does the decision record demonstrate any consideration of exercising that power.
Failure to interview the second applicant
The second applicant was not interviewed by the delegate.
As explained in the submissions regarding Ground 1, the applicants contend that the second applicant in fact made substantive claims to have a well-founded fear of persecution in her own right. Consequently, the second applicant had not had an opportunity to present arguments or evidence in support of her own claims beyond those that had been advanced in the written submissions.
The Authority had not had an opportunity to consider the second applicant’s evidence, both in terms of the substance of the evidence and issues such as demeanour going to her credibility, either in support of her own claims of harm or the events she narrated that supported the claims of harm made by her husband and son.
In those circumstances, it said to have been unreasonable of the Authority not to exercise the statutory powers at its disposal to rectify the delegate’s omission and ensure that it had before it the evidence of the second applicant.
Incomplete interview of the first applicant
The audio recording of the delegate’s interview of the first applicant omits a period of the interview between 11:10am and 11:27am. Approximately five minutes of that 17 minute break appears to have been a toilet break. However, the transcript reveals the delegate saying, upon the audio recording recommencing at 11:27am, “The previous 10 minutes of recording, due to a technical error, has not been kept.”[36]
[36] Transcript of the interview between the Minister’s delegate and the first applicant, 26 July 2018, annexure RSJ-1 to the affidavit of Reuben Saul Jahnke affirmed 9 June 2020 (T) 19.24
It is further apparent from the transcript that the subject matter of the part of the interview that is missing from the recording was a matter of substance. The description given by the delegate of the missing portion was, “Just to summarise, we were talking… [the first applicant] and I were talking about the harm that he fears returning to Sri Lanka.”[37]
[37] T19.26
The applicants submit that, having listened to the audio recording and ascertained that there was a gap of between 10 and 17 minutes where an issue of substance had been discussed but was not recorded, the Authority could not have been confident that it had the entirety of the first applicant’s evidence for the purpose of conducting the fast-track review.
Accordingly, it is said to have been unreasonable for the Authority not to exercise its power under s.473DC(3) to invite the first applicant to an interview and to satisfy itself that it had the entirety of the evidence before it before proceeding to make a decision on the review.
Minister’s contentions
By reference to the provisions of Part 7AA of the Migration Act, the applicants did not have a right to an interview, and procedural fairness did not require the Authority to invite the applicants to an interview. Whilst the Authority has discretion to get new information, it “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”.[38]
[38] s.473DC(2)
The asserted jurisdictional error is one of unreasonableness in respect of the Authority’s power under s.473DC(1) to get new information. The requirement that a statutory discretion be exercised reasonably is sourced in the implication that Parliament intended that it be so exercised.[39] The evaluation of whether an administrative decision was made within the boundaries of the relevant power is conducted by reference to the relevant statute, its terms, scope and purpose.[40] Legal unreasonableness imposes a stringent standard.[41]
[39] Minister for Immigration v Li (2013) 249 CLR 332 at [23]-[26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88]-[89] (Gageler J); Minister for Immigration v Eden (2016) 240 FCR 158 at [58]
[40] Minister for Immigration v Stretton (2016) 237 FCR 1 at [11] (Allsop CJ, with whose reasons Wigney J agreed at [90]); Minister for Immigration v SZVFW (2018) 357 ALR 408; (2018) 163 ALD 1 at [54]- [60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J)
[41] SZVFW at [11] (Kiefel CJ)
The Minister submits that if his submissions concerning the first ground are accepted, then it should necessarily follow that it was not legally unreasonable for the Authority not to invite the second applicant to an interview. She was not a primary applicant advancing her own protection claims. The most she could do would be to give evidence in support of the first and third applicants’ claims. However, the fact that the second applicant might have been capable of giving such evidence did not make it unreasonable for the Authority not to interview her. Further, and whether the Minister’s submissions on the first ground are accepted or not, the fact that the Authority did not invite any of the applicants to an interview is not legally unreasonable in circumstances where the applicants had the opportunity and right to make submissions both to the Minister’s Department (which the first and third applicants did) and to the Authority (but which opportunity was not taken up). It was not then for the Authority to provide further opportunity to the applicants to give evidence supporting their claims in the circumstances of this case.
In relation to the incomplete delegate’s interview it is accepted that the evidence before the Court establishes that about 10 minutes of questions and answers during the interview were not recorded, not transcribed, and were not before the Authority when it conducted the review. The applicants contend that in the circumstances it was unreasonable for the Authority not to exercise its power under s.473DC(1) to invite the first applicant to an interview to take further evidence from the first applicant.
It is not possible to know precisely what questions were asked and answers given during the non-transcribed period. However, it appears that the delegate realising at the time that a portion of the interview had not been recorded took steps to summarise the nature of the evidence that was given during the non-transcribed period.[42] The delegate then said to the first applicant that, “this is your opportunity for you to tell me anything which you think is pertinent to your claims”. The delegate gave the first applicant an opportunity to make a further submission in writing after the interview, which the first applicant provided through his representative.[43]
[42] T19.26- T20.3
[43] CB 281
The Minister submits that, in light of the attempt made by the delegate to summarise the first applicant’s evidence given in the preceding minutes, and the fact that the first applicant had an opportunity, which he took up, of providing an additional post-interview statement it was not in the circumstances unreasonable for the Authority not to invite the first applicant to an interview to give more information in support of his claims.
Resolution
In the second ground the applicants assert that the Authority unreasonably failed to invite any of the applicants to an interview. In particular, that it was unreasonable not to invite the second applicant to an interview because she had not been interviewed by the delegate.
I prefer the Minister’s submission in relation to this ground. The circumstances were not sufficient to render unreasonable the Authority’s failure to invite (or consider inviting) the applicants to a hearing. First, there was nothing arising from the delegate’s decision which should have caused the Authority to consider a further hearing opportunity. In particular, there was nothing arising from the delegate’s decision relating to the missing audio record of the delegate’s interview that should have given rise to any particular concern. Further, the applicants did not themselves raise any complaint about the delegate’s decision or the interview.
In my view, the mere fact of a gap in the audio recording of the delegate’s interview did not of itself compel the Authority to consider a further hearing opportunity. Neither did the circumstances render unreasonable the failure to invite the second applicant to a hearing. She had not sought a hearing at any stage and had expressly made no claims for protection. Her evidentiary contribution was expressly considered by the Authority, as already noted above in relation to Ground 1.
I reject Ground 2.
Ground 3 – did the Authority err by not getting the newspaper article shown to the delegate?
Applicants’ contentions
One of the claims raised by the applicants was that the first applicant had been arrested and detained by Malaysian authorities for trying to leave Malaysia for Australia in April 2010, when the second and third applicants were still in Sri Lanka. The first applicant claimed that while in detention in Malaysia, officials from the Sri Lankan High Commission had interrogated him and the other Sri Lankan Tamil detainees and told them that they had disgraced their country by leaving unlawfully and should return immediately. He claimed that they were fingerprinted and that the Sri Lankan officials had recorded them using video cameras in their pens.[44]
[44] submissions to the Minister’s delegate, 16 October 2017, CB 234
The Tamil detainees, including the first applicant, were only released four months later, in August 2010, after the intervention of a prominent Malaysian politician. It was claimed that the incident received significant publicity in Tamil language electronic and print media in both Malaysia and Sri Lanka.
As a consequence of the publicity of the incident that occurred in Malaysia, the second applicant claimed that the CID showed a renewed interest in the family, repeatedly visited their home and threatened her and her son. It was that treatment from the CID that caused the second and third applicants to conclude that their lives were at risk and to flee Sri Lanka in May 2011 to join the first applicant in Malaysia.[45]
[45] submissions to the Minister’s delegate, 16 October 2017, CB 234
In support of this part of the applicants’ claims, the applicants, through their representative, produced a newspaper article from a Tamil language Malaysian newspaper, which reported the release of the group in August 2010 and showed a photograph of the first applicant.[46]
[46] Copy of newspaper article, annexure UK-1 to the affidavit of the third applicant affirmed 9 June 2020.
The delegate gave the article no weight, on the basis that the photocopy of the article produced in the interview was of poor quality.
The article appears not to have been retained by the delegate.
The Authority was aware from the recording of the interview before the delegate that the newspaper article had been produced in the interview,[47] but the article was not before the Authority.
[47] CB 367 at [33]
The Authority stated in its decision record that it gave the article no weight, despite not having seen the article.[48]
[48] CB 367 at [33]
Fast track review by the Authority is intended to proceed on the basis that all evidence presented by the applicants at the delegate stage, including interviews with the delegate and any statements and supporting evidence supplied by the applicants to the Minister’s Department, is included in the review material provided to the Authority.[49]
[49] Plaintiff M174/2016 at [15] (Gageler, Keane and Nettle JJ).
The definition of “review material” in s.473CB of the Migration Act, which the Secretary has a mandatory duty to provide to the Authority, includes material that was provided by the applicant to the delegate before the delegate’s decision was made.
Where the Authority has been deprived of evidence that had been relied on by the applicants as part of their case for protection, the presumptions upon which the fast-track review system is premised will be absent and the Authority review will miscarry as a result.[50]
[50] EVS17 v Minister for Immigration (2019) 268 FCR 299 at [35] (Allsop CJ, Markovic and Steward JJ)
The applicants submit that there can be no doubt in this case that the newspaper article formed part of the case put forward by the applicants.
If the newspaper article was “provided” to the delegate within the meaning of s.473CB(1)(b), or if it was in the possession or control of the Secretary at the time of the referral to the Authority, per s.473CB(1)(c), the Secretary was obliged to make reasonable enquiries to locate it and then provide it to the Authority as part of the review material.[51]
[51] AUF18 v Minister for Immigration [2019] FCAFC 222 at [70] (Allsop CJ, Jagot and Moshinsky JJ)
The applicants submit that, as the newspaper article was shown to the delegate, it was, for the reasons explained by Mortimer J in CVV16 v Minister for Immigration, [52] before the delegate at the time the delegate’s decision was made.
[52] [2019] FCA 1890 at [78]
In any case, even if neither of the circumstances in s.473CB(1)(b) or (c) apply, the Authority was still obliged to act reasonably in the conduct of the review. In the circumstances of this case, where it was plain that the newspaper article was a piece of evidence on which the applicants relied, but was not before the Authority, it is said to have been unreasonable for the Authority not to take steps to obtain it, for instance, by contacting the applicants’ representative.
On either formulation, the applicants submit that the result is that the Authority was precluded from considering a piece of evidence on which the applicants relied. The Authority’s review was therefore not conducted in the manner required by statute and was affected by jurisdictional error.
Minister’s contentions
In the third ground the applicants contend that the Authority’s review miscarried because it did not have before it an item of evidence presented to the delegate in support of the applicants’ claims. It is not in dispute that the third applicant produced at interview a photocopy of what appeared to be a Malaysian newspaper article concerning a group of detainees in Malaysia, including (it was claimed) the first applicant. The relevant exchange at the interview is set out at page 12 of the transcript of the third applicant’s interview. It is clear that at no time did either applicant, or the representative, offer the photocopy to the delegate, or ask that the delegate accept the document. To the contrary, the representative appeared reluctant to give the document to the delegate, in light of its illegibility and the fact that it had not been translated, and ultimately the document was not given to the delegate. The representative told the delegate that enquiries had been made with the Malaysian newspaper to try and get a better copy.
These matters are important to the question of whether the article was “material provided by the referred applicant to the person making the decision before the decision was made” (s.473CB(1)(b)) and the question of whether the article was “before the Minister when the Minister made the decision under section 65” (s.473DC(1)(a)). The Minister submits that on the facts of this case, it cannot be suggested that the article was in the Secretary’s possession or control for the purposes of s.473CB(1)(c). The notion that documents or information are “before” the Minister is a narrower concept than documents or information in the control of the Minister.[53]
[53] DTK17 v Minister for Immigration [2018] FCAFC 170 at [37]
A material failure by the Secretary to comply with the duty imposed under s.473CB(1) may give rise to jurisdictional error.[54] However in this case there is said to have been no breach of s.473CB(1). There are arguably conflicting authorities in the Federal Court concerning whether a document or other information shown to a delegate but not retained by the delegate is “material provided” by the applicant.
[54] EVS17 v Minister for Immigration (2019) 163 ALD 422
In AWV18 v Minister for Home Affairs (No 3),[55] Derrington J stated at [67]:
In the context of s 473CB(1), which is set out above, the word “material” appears to refer to physical “material” which can be transferred to the Authority. It does not appear to refer to the visual perceptions of the delegate, whether that be in the nature of photographs shown but not given or the nature of the mannerisms or conduct of the persons being interviewed by the delegate. Here, the obituary document could not be classified as “review material” as it had not been provided to the decision-maker in the sense used in s 473CB and, therefore, the Secretary had no duty to provide it the Authority.
[55] [2020] FCA 365
To the contrary, in BVC20 v Minister for Immigration[56] Wigney J came to an ostensibly different view as to the meaning of s.473CB(1)(b), where his Honour opined at [72]-[73]:
[56] [2020] FCA 565
One of the dictionary definitions of “provide” is “to furnish or supply” (Macquarie Dictionary). If the word “provided”, when used in s 473CB, is given that meaning, it is difficult to see why it could not be said that, when the appellant showed the digital image to the delegate, he provided it.
Showing a decision-maker a digital photograph is, in a sense, a way of furnishing or supplying the decision-maker with the information depicted in or revealed by the image or photograph.
…
Further, at [75]:
When a visa applicant in the appellant’s position shows a decision-maker a photograph or other item in the course of an interview, the applicant is essentially providing the information or knowledge conveyed by the photograph to the decision-maker. The fact that the applicant may not tender or submit the photograph does not mean that the information in it was not provided.
…
Notwithstanding the differences in approach taken in the Federal Court, the Minister submits that, on the facts of the present case it cannot be said, adopting the ordinary meaning of “provide”, that any of the applicants furnished or supplied the article to the delegate. As stated above, while the article appears to have been shown to the delegate, it was (it would appear quite deliberately) not submitted because of faults with the document. The article was not “before” the delegate for the purposes of s.473CB(1)(b). The Secretary was thus not required to give the article to the Authority.
Next, the applicants rely on a judgment of the Federal Court in CVV16 in support of the contention that the article was “before” the delegate for the purposes of s.473DC(1) of the Migration Act. If the article was not “before” the delegate, it was therefore capable of being new information (to the extent the article was considered relevant by the Authority) and open for the Authority to get, or for the applicants to give under s.473DC. The Minister submits that, for the reasons that follow, the article was not “before” the delegate.
In CVV16 Mortimer J accepted evidence that the appellant had attempted to give certain (what her Honour considered to be probative) documents to the delegate, but the delegate refused to accept them on the basis that she “had everything”. Justice Mortimer held that in the circumstances the documents not accepted by the delegate had been “before” her for the purposes of s.473DC(1)(a) and were therefore not new information. Her Honour stated relevantly at [78]-[79]:
In the present situation, on the basis of the appellant’s evidence which I have accepted, I find that the Commission documents were “before the Minister” for the purposes of s 473DC(1)(a), because the appellant attempted to give them to the delegate, and, in his words, “showed them” to her. They were, in a relevant sense, physically before the delegate. It was not within the appellant’s control whether the delegate kept them and placed them on the file. As it turns out, on his evidence (which I accept), she did not.
The purpose of the new information provisions is, in my opinion, consistent with the approach I have taken. Those provisions are designed to encourage (through subsequent prohibition) visa applicants to bring forward all relevant information at the first level consideration of their visa applications. They do not have any punitive purpose. The provisions are also designed to limit the amount of information before the Authority, so as to facilitate the “fast track” nature of the Authority’s process. I do not consider Parliament intended to require the additional hurdles in the new information provision to have to be met in circumstances where a delegate elected to refuse information proffered by a visa applicant. I do not consider Parliament contemplated that a delegate might refuse to accept relevant information. To the contrary, such information is, in its timing and purpose, no different from information the delegate accepted.
Her Honour’s reasoning in CVV16 was based on the particular circumstances that arose in that case. It is said to be distinguishable from the present case. In this case none of the applicants or their representative attempted to give the article to the delegate. The delegate certainly did not refuse to accept it. What appears to have happened is that the third applicant informed the delegate of the existence of the article, showed the delegate the article, but chose not to give it to the delegate because it was difficult to identify the first applicant in the photograph that accompanied the article, and the article was not translated.
For those reasons, it is submitted by the Minister that the article was not “provided to the delegate” for the purposes of s.473CB(1)(b), was not relevantly “before” the delegate for the purposes of s.473DC(1) and, as such, there could have not been any lack of compliance with s.473CB .
The applicants contend that regardless of whether s.473CB(1)(b) or (c) might apply to the article, the Authority was obliged, acting reasonably, to take steps to obtain the article including by contacting the applicants’ representative. The Minister contends that this submission should not be accepted. The applicants were represented by a migration agent, who was in attendance at the delegate interviews. The applicants, assisted by their agent, did not submit the article, or a better version or copy of the article, to the delegate and the representative admitted to the delegate that the article was hard to read and not translated. The applicants, assisted by their agent, did not provide the article, or a better version or copy of the article, to the Authority. Having not taken these steps, it was not incumbent on the Authority to seek out the article. The applicants continue to bear the onus of making out their case, even in a fast-track review.
Lastly, on a question of materiality it is submitted by the Minister that the article itself cannot have made any difference to the outcome of the review.[57] The Authority accepted as a fact at [34] that the first applicant was detained in Malaysia, and released because of the work of a Malaysian refugee advocate, and that the release was publicised in the Malaysian media. The Authority did not accept that the first applicant was forcibly fingerprinted, photographed and interrogated by consular officials as he claimed. Nor that the first applicant’s release was widely publicised in Sri Lanka. The matters on which the Authority was not satisfied in relation to the first applicant’s claims concerning his experiences in Malaysia are said not to have been matters that could possibly have been influenced by the Authority’s consideration of the article (even assuming the Authority had obtained a translation of the article and was satisfied it concerned the first applicant). The Minister submits that the applicants have not established how any error in the Authority’s procedures concerning the article resulted in a material error.
[57] Hossain v Minister for Immigration (2018) 92 ALJR 780
Resolution
At [33] the Authority stated:[58]
Applicant 1 stated that he did not have evidence to prove the wide publicity in Sri Lanka. I note at Applicant 3's SHEV interview which took place on the same day following Applicant l's interview, Applicant 3 showed the delegate a copy of a Malaysian newspaper article of a group of detainees in Malaysia and their migration agent stated the one of the men in the photo was Applicant 1. The migration agent also acknowledged that the photo of the detainees was unclear and the article was not translated as it was illegible and that they had tried to get a better copy from the newspaper in Malaysia. It does not appear this copy of the article was submitted at Applicant 3's interview or another copy with translation was provided after the interview. I give this article no weight.
[58] CB 367
It does strike me as odd that the Authority gave the article no weight without seeing it. That would in many circumstances raise the spectre of jurisdictional error, particularly if the article was material. In my view, it was potentially material, not least because of its possible significance in terms of the second applicant’s attempt at corroboration of the first applicant’s claims.
However, with the benefit of the original and translated article and photographs, it is not apparent to me that if those documents had been before the Authority, they might have made some difference. At [34] the Authority accepted that there had been publicity in Malaysia and accepted that the Sri Lankan authorities might be aware of the first applicant’s detention in Malaysia. The Authority also accepted the fact of the release of the detainees, which was the subject of the article. The Authority was not satisfied that the release was widely publicised in Sri Lanka. That was not a finding that could have been disturbed by the publication in the Malaysian media. Further, the Authority made other findings concerning the lack of any adverse interest in the first applicant by the Sri Lankan authorities which supported its ultimate conclusions and caused it to reject the attempt by the second applicant to corroborate her husband’s claims.
Because of my conclusion that the article and translation would not have been material to the outcome before the Authority, it is not necessary to attempt to resolve the difficult questions concerning the obligation, if any, on the Secretary of the Minister’s Department to provide the article to the Authority, or the question of the Authority’s discretion to get the article itself.
Further, the applicants themselves were not helpless participants in the review. They were able to provide a good copy of the original Tamil article with an English translation to me for the purposes of this proceeding. They could have done likewise for the Authority. They did not do so.
Conclusion
I conclude that the applicants are unable to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 July 2020
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