BTF17 v Minister for Immigration

[2019] FCCA 99

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTF17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 99

Catchwords:
MIGRATION – Visa – protection visa – whether procedural unfairness in conduct of review – whether failure to take into account relevant consideration – new information – whether failure to properly consider reception of new information – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 65, 473DC(1), 473DD and 473DD(a) & (b)

Cases cited:

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal & Ors (2011) 193 FCR 57
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958

Minister for Immigration and Border Protection v BBS16 [2017] 158 ALD 198
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: BTF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 145 of 2017

Judgment of: Judge Heffernan

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Adelaide

Delivered on: 18 January 2019

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. There be an order in the nature of certiorari that the decision of the Immigration Assessment Authority dated 10 April 2017 affirming the decision of the delegate of the first respondent made on 9 February 2017 rejecting the applicant’s application for a Safe Haven Enterprise (Class XE) subclass 790 visa is quashed.

2. There be an order in the nature of mandamus that the Immigration Assessment Authority review according to law the decision of the delegate of the first respondent dated 9 February 2017 rejecting the applicant’s application for a Safe Haven Enterprise (Class XE) subclass 790 visa.

* Pursuant to Paragraph 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth), the Orders are amended on 14 February 2019.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 145 of 2017

BTF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 (‘the IAA’) dated 10 April 2017.  That decision affirmed an earlier decision of a delegate of the Minister not to grant the respondent a Safe Haven Enterprise (Class XE) Subclass 790 (Safe Haven Enterprise) visa (‘the visa’).  The applicant, who appeared before me self-represented and with the assistance of an interpreter in the Tamil and English languages, filed an application for review within time which identifies one ground:

   “The applicant was denied procedural fairness by the Immigration Assessment Authority to address part of the applicant’s claim and this failure to take into account for a relevant consideration.”

2. That ground is obviously unparticularised and fails to identify any particular jurisdictional error.  That alone can be a basis for dismissing an application for judicial review.[1]  Allowing for the fact that the applicant is unrepresented, I have considered this matter in light of whether or not there is, firstly, any procedural unfairness or, secondly, any relevant consideration that the IAA failed to take into account.

   [1]     WZAVW v Minister for Immigration and Border Protection [2016] FCA 760.

3. On 9 June 2017, a Registrar of the Court made an order giving the applicant leave to file and serve an amended application by 6 October 2017 and any further material upon which he sought to rely at the hearing, also by 6 October 2017.  The Registrar ordered that the applicant file and serve an outline of submissions at least 10 business days prior to the hearing.  The applicant did not file an amended application, any further material on which he sought to rely, and did not comply with the order for filing a written outline of submissions.

4. When I initially explained the nature of these proceedings to the applicant, he indicated that he was not able to say how it was that the IAA had made an error but that he needed more time to prepare this matter.  He told the Court that he had tried his best to get a free lawyer but that he simply could not afford a lawyer.  However, he said that he had been recently employed, and he was hoping to be able to save enough money to obtain a lawyer.  He said that all the lawyers have told him that they cannot take his case, but they may be able to take it at some time next year.  He is not presently able to afford the cost of a lawyer.  He sought that these proceedings be adjourned.

5. Mr d'Assumpcao, for the Minister, opposed the adjournment, noting the length of time for which this matter had been listed for final hearing.  I refused the application for an adjournment.  These proceedings were filed in April of 2017, and the matter was listed for final hearing on 9 June 2017.

6. I take the view that the applicant has had sufficient time to either obtain legal advice and representation or make his own inquiries in order to represent himself.  I give weight to the fact that the migration jurisdiction of this Court is one that is beset, regrettably, by considerable delay between filing dates and the date of hearing.  There is a public interest in ensuring that these matters are expedited by the Court as best as can be achieved.  I was not satisfied that it was appropriate to adjourn the proceedings.

Background

1. The background to this matter has been helpfully summarised by the first respondent in its outline of submissions.  I do not understand that summary to be disputed by the applicant, and so I have paraphrased the first respondent’s written submissions as to the procedural background, the applicant’s claims, and the decision made by the IAA.

2. The applicant comes from Sri Lanka and arrived in Australia as an unauthorised maritime arrival on 27 August 2012. On 10 March 2016, he applied for the visa. The applicant comes within the category of being a ‘fast-track applicant’, as defined in s.5(1) of the Migration Act 1958 (Cth) (‘the Act’).  That application was refused by a delegate of the Minister on 9 February 2017.  On 14 February 2017, the IAA advised the applicant that the delegate’s decision had been referred to it.

3. On 12 and 13 March 2017, a representative of the applicant provided the IAA with two separate written submissions.  Those submissions were directed, firstly, to some of the delegate’s findings, and each also contained some new information.  On 10 April 2017, the delegate’s decision was affirmed by the IAA.

4. In summary, the claims made by the applicant for a protection visa are as follows:

   a)      In 1985, he fled to India where he stayed in a refugee camp for a period of about three years, when he returned to Sri Lanka.  He later travelled to India in 1990 and remained in a refugee camp until 1992, when he once again returned to Sri Lanka.

   b)      He was a carpenter by trade and performed work in that capacity with the Liberation Tigers of Tamil Eelam (‘LTTE’) and one of its related organisations.  He claims that this came to the attention of the Sri Lankan Army and that he was detained and assaulted for a period of one day and then placed on a condition that he had to report to them on a weekly basis.

   c)      The Sri Lankan Army interrogated him again in 2001.  The applicant claimed to have had some involvement with a group known as the Tamil National Alliance, and when “white van kidnapping incidents” increased in 2006, he once again fled to India for another two years.

   d)      The applicant claims that in 2008 and 2009, friends and relatives of his were killed.  Some of his relatives who had been killed were LTTE fighters and, as such, a primary target of the Sri Lankan Army.  He said that around this time, he and his wife undertook a religious pilgrimage to India.

   e)      The applicant claimed that he was tipped off by a Tamil police officer in 2011 that he might encounter trouble.  This caused him to keep a low profile and remain in hiding.

   f)      He claimed that since he left Sri Lanka in 2012, the authorities had been making inquiries of his family about his whereabouts.

   g)      He claimed to fear persecution because of an event he attended in Adelaide and because of a data breach by the Department in 2014.

5. The IAA considered the representative’s two written submissions insofar as they responded to the delegate’s decision.  It did not regard them as being new information in that respect.

6. The IAA identified two aspects of new information in the applicant’s written submissions.  The first was contained in the submission of 12 March 2017.  It was information that was not before the delegate, and it was to the effect that the applicant participated in LTTE self-defence weapons training in the Vanni area at some time after 2009.  The submission advised that the applicant did not provide the information earlier due to a fear that he would be imprisoned by the Australian authorities and subjected to some form of interrogation or submitted to Sri Lankan authorities.

7. The submission of 13 March was also found by the IAA to contain new information.  That new information dealt with the Sri Lankan government’s failure to repeal the Prevention of Terrorism Act and the fact that suspects were still detained under that legislation.  The IAA summarises the new information in paragraph 9 of the Decision Record.  That paragraph will be reproduced later in these reasons.

8. With respect to the new information contained in both submissions, the IAA decided that there were no exceptional circumstances to justify its consideration.  It did not accept the applicant’s explanation for why the new information contained in the submissions of 12 March could not have been provided prior to the delegate’s decision.  The IAA also made reference to the fact that it was not satisfied that the new information contained in the submissions of 13 March was credible and personal information.

9. That aspect of the IAAs findings became relevant on submissions before me.

10. On reading the Decision Record of the IAA, there is a question as to whether the authority properly considered both limbs of s.473DD, which deals with the receipt of new information and the ambit of exceptional circumstances. I will set that section out in full later in these reasons.

11. The IAA accepted that the applicant was Sri Lankan and that he came from an area that had previously been controlled by the LTTE.  It accepted that he had experienced dislocation and, had been detained and mistreated by the Sri Lankan Army in 1998.  It accepted that he was forced to report to the authorities for about three years from 1996.  It noted that he had made a number of trips to India and returned to Sri Lanka without incident through Colombo International Airport on each occasion, including in 2008 and 2010.

12. The view taken by the IAA was that his unremarkable exit and re-entry to Sri Lanka on a number of occasions weighed strongly against the applicant having a real fear of harm from the authorities at the time.  It later found for the same reason that the authorities had no interest in him.  It did not accept that he had been warned in 2011 by a Tamil police officer that he might be in trouble and that that was a reason for him subsequently going into hiding.

13. The IAA accepted that the applicant may have performed work as a carpenter for the LTTE and a related organisation, but it was not satisfied, based on its earlier findings, that he faced a real chance of harm.  The IAA was not satisfied that the applicant would face a real chance of harm due to other claimed activities linked with the time of conflict or that his role in that activity gave rise to a political profile.  Nor did the IAA accept that the applicant’s attendance at a memorial service in Adelaide would give rise to a real chance of harm.  It did not accept that he would be persecuted on the basis of his race if he were to return to Sri Lanka.

14. The authority found that the applicant may fear harm for having departed Sri Lanka illegally but concluded, on the basis of country information, that any detention to which he was subjected on his return to Sri Lanka would not amount to persecution.

15. The IAA found that the applicant did not meet the complementary protection criteria and affirmed the decision not to grant the visa.

Submissions

1. The applicant made brief submissions before me.  When asked how the review process was procedurally unfair to him, he said that the immigration authorities had kept asking him for proof but that his family was unable to find proof, and so it was not able to give them what they wanted.  This is not sufficient to amount to a lack of procedural unfairness such as to give rise to jurisdictional error.

2. He said that when he travelled to India on two occasions, he did so at a less risky time in Sri Lanka.  This amounted, essentially, to a complaint about a factual finding made by the IAA and, in a sense, a request for a merits review, which this Court cannot undertake.[2]

   [2]     Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal & Ors (2011) 193 FCR 57 at paras [16] - [17]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at para [10].

3. He said that he worked a lot with the LTTE but that this was not demonstrated on the papers.  In fact, the authority did take into account the extent to which the applicant claimed to have worked for the LTTE and made findings that were open to it in relation to that.

4. When attempting to articulate why the IAA had failed to take a relevant matter into consideration, he submitted that they simply did not believe him, and he believed this meant that he had not been treated fairly.  Decisions relating to credit are within the ambit of the authority’s role as a reviewing body.[3]  A complaint that he had not been believed by the delegate, or that his submissions about his claims had been rejected is a complaint about a finding of fact made by the authority and essentially a request for a merits review.  Whilst findings of credit are not immune from challenge on the basis of unreasonableness, illogicality; irrationality, or a lack of probative reasoning,[4] I am satisfied that the findings of the IAA were open to it.

   [3]     Re: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405.

   [4]     CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146.

5. The applicant’s final submission was, in effect, that he has experienced difficult circumstances as a result of the conflict in Sri Lanka over a period of approximately 30 years.  Since arriving in Australia, he has found a peaceful life, and he wants to be able to remain here.  Those matters are, of course, of extreme importance to the applicant but do not demonstrate a jurisdictional error on the part of the IAA.

6. The first respondent relied upon its written submissions for all but one aspect of their submissions.  The effect of their written submissions is that there is no demonstrated procedural unfairness, that the IAA correctly identified all of the claims of the applicant and addressed them, and that no jurisdictional error has been demonstrated. 

7. I raised with counsel for the first respondent the question of the manner in which the IAA dealt with the question of whether it should receive new information in the submissions of 12 March 2017 or 13 March 2017. The term ‘new information’ is defined in s.473DC(1) as follows:

   “(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.”

8. The circumstances in which the IAA may consider new information are limited and provided for in s.473DD as follows:

   “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.”

9. It is appropriate to set out the relevant paragraphs of the Decision Record of the IAA:

   “4.    On 12 March 2017 the IAA received a submission from the applicant’s representative.  The submission in part responds to the delegate’s decision.  I do not consider this to be new information and have considered these aspects of the submission.

   5.  The 12 March 2017 submission includes new information not before the delegate, that the applicant participated in LTTE self-defence weapons training in the Vanni area some time after 2009.  The submission states that the applicant did not provide this information earlier due to fear he would be imprisoned by Australian authorities, subjected to some form of interrogation or submitted to Sri Lankan authorities.

   6.  I have reviewed the audio recording of the PV interview.  At the commencement of the interview the delegate informs the applicant ‘Your personal information including the information you provide at this interview will not be made available to the authorities in Sri Lanka while your Protection visa is being decided.’  The applicant indicated he understood this.  The delegate then informed the applicant ‘It is extremely important that you provide the department with complete accurate and personal protection claims during this interview.  If you do not give the department all of the relevant information about your protection claims and your application is refused you might not have another chance to provide this information.  If you have not provided some information to the department or you wish to correct some information you may do so now.  Is there anything in your application that you would like to change or add?’  The applicant responded that he did not wish to change anything and stated ‘I have provided all the information.’

   7.  I note the applicant’s statement that part of his reason for not providing this information earlier was his fear of imprisonment by Australian authorities.  The applicant’s current representative assisted him at the primary level and at the time of his interview he had been in Australia for around four years.  I am satisfied that at the interview the applicant understood his obligation to provide all his protection claims and that any claims raised would be held in confidence and not provided to Sri Lankan authorities.  In light of this, while the applicant has provided reasons why the new information was not, and in his mind, could not have been provided prior to the delegate making the decision under s.65, I am not satisfied that this is the case or that there are exceptional circumstances to justify considering the new information.

   8.  On 13 March 2017 the IAA received a further submission from the applicant’s representative.  The submission in part responds to the delegate’s decision.  I do not consider this to be new information and have considered these aspects of the submission.

   9.  The 13 March 2017 submission includes new information published in February 2017 concerning: the Sri Lankan government’s failure to repeal the Prevention of Terrorism Act and continued detention of suspects under the legislation; Al Jazeera reports around criticism of police for holding military suspects for long periods; the Australian Tamil Congress warning that every Tamil asylum seeker cannot just return to Sri Lanka without worrying about the consequences; the International Truth and Justice Project reporting about appointments to the National Authority for Victim and Witness Protection and that rehabilitation camps were more like detention facilities than rehabilitation camps; TamilNet reports that some land continues to be taken from Tamil owners.  I accept that this information could not have been provided to the delegate prior to the decision under s.65 being taken. The new information provides general information that assists in forming an overall picture of conditions in Sri Lanka.  I do not accept the assertion by the applicant’s representative that the new information is a credible, contemporary and solid indication of the Sri Lankan authorities’ continuing torture, forced disappearance and sexual abuse of Sri Lankan Tamils of the applicant’s profile.  I am not satisfied the information is credible personal information or that there are exceptional circumstances to justify its consideration.”[5]

   (emphasis added)

   [5]     Court Book, pp 156 & 157 at para [4] - [9].

1. Counsel for the first respondent addressed me on whether the manner in which the new information had been dealt with by the authority raised issues first identified in the cases of BVZ16 v Minister for Immigration and Border Protection[6] and Minister for Immigration and Border Protection v BBS16[7]. He acknowledged that the IAA had not used the specific wording of s.473DD in dealing with the question of whether there were exceptional circumstances to warrant considering new information. It was submitted that it is not necessary for an authority to adopt the exact wording of the legislation, but rather, it is necessary that the reasons demonstrate that the legislation was understood and correctly applied. It was submitted that the IAA had complied with all the terms, including both limbs of s.473DD(b)(i) and (ii). That submission was based on a close analysis of the relevant paragraphs of the decision and reasons.

   [6] [2017] FCA 958.

   [7] [2017] 158 ALD 198 at para [104] - [105].

2. In BVZ16, his Honour White J observed that s.473DD prohibits the consideration of new information unless two conditions are satisfied. Firstly, under s.473DD(a) there must be “exceptional circumstances to justify” considering the new information. Secondly, s.473DD(b) must be satisfied, and it can be satisfied in one of the two alternative ways indicated. His Honour noted that subparagraphs (a) and (b) are “cumulative but may nevertheless overlap to some extent”.[8] As a result, for example, the fact that new information could not have been provided prior to the s.65 decision being made might have relevance to the IAA’s consideration of whether exceptional circumstances exist. The consideration of exceptional circumstances is not limited to the matters identified in subparagraphs (i) and (ii) and significantly, his Honour noted that “it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.”[9]  The two alternatives in subparagraphs (i) and (ii) focus on fundamentally different considerations.  Subparagraph (i) is concerned with whether the information could have been provided within a particular time frame and subparagraph (ii) “requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally”.[10]

   [8] Ibid at para [9].

   [9] Ibid.

   [10]    BBS16, op cit at para [105].

3. The difficulty presented by the reasons of the IAA is that in considering the new information of 12 March 2017, as to the applicant participating in LTTE weapons training in 2009, the IAA dealt only with subparagraph (b)(i) and appears to have given no consideration to b(ii). It has treated its failure to be satisfied by the applicant that the new information was not and could not have been provided to the Minister before the decision was made under s.65 as being dispositive. It did not consider the alternative pathway to satisfying the condition in s.473DD(b)(ii), whether the information was credible personal information not previously known which might, had it been known, have affected the consideration of the applicant’s claims. Whilst I accept the submission of the first respondent that the IAA appears to have considered both s.473DD(b)(i) and (ii) when dealing with the new information contained in the 13 March 2017 submissions, I am not prepared to infer that it must therefore also have consideration subparagraph (ii) with respect to the new information contained in the submissions of 12 March 2017. There is nothing in the reasons of the IAA to suggest that it made any evaluative assessment of that new information either as to whether it was credible personal information or in the event that it was, whether it might have affected the consideration of the applicant’s claims generally. The fact that the IAA rejected other aspects of the applicant’s claims and made certain findings going to his credit does not answer that deficiency.

4. I have considered whether such a finding ignores the stricture in MinisterforImmigration and Ethnic Affairs v Wu Shan Liang[11] that a decision is not to be read with an eye too keenly attuned to the perception of error. I am satisfied that it does not. Section 473DD operates in the context of a legislative scheme that provides for a very limited form of review in which Division 3, together with ss.473GA and 473GB is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA.[12]  Where the reception of new information is so strictly circumscribed and where a failure to properly consider it may potentially have profound implications, especially in the case of an applicant, it is all the more necessary for a Court to be satisfied that the statutory requirements have been properly considered and adhered to.  In this case, I am not satisfied that they have been.

   [11] (1996) 185 CLR 259.

   [12]    Section 473DA.

5. I am satisfied that there has been jurisdictional error by virtue of a constructive failure on the part of the IAA to exercise its jurisdiction in failing to properly determine whether to consider new information pursuant to s.473DD of the Act.

6. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 18 January 2019