BTW17 v Minister for Immigration
[2019] FCCA 3614
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTW17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3614 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to properly consider new information – whether the Authority misunderstood the meaning of credible personal information – jurisdictional error made out – application upheld – costs awarded against the first respondent. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473DD |
| Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 BYM16 v Minster for Immigration & Anor [2017] FCCA 2445 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260 Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 |
| Applicant: | BTW17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 238 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 19 November 2019 |
| Date of Last Submission: | 19 November 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Crowley |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Mr Macliver |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
An order that the decision of the Immigration Assessment Authority be quashed.
A writ of mandamus directed to the Immigration Assessment Authority requiring them to determine the applicant’s application according to law.
An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
The first respondent pay the applicant’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 238 of 2018
| BTW17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a Sinhalese Sri Lankan citizen. On 13 September 2016, the applicant lodged a Safe Haven Enterprise visa (“SHEV”), Subclass 790 application. On 6 February 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused the visa application. On 23 March 2017, the Immigration Assessment Authority (“the Authority”) affirmed the delegate’s decision and on 27 July 2017, the Federal Magistrate’s Court dismissed that application.
The applicant then appealed to the Full Federal Court. On 1 February 2018, the Full Federal Court set aside the decision of the Federal Magistrate’s Court and remitted the matter back to the Authority for further consideration. The Full Federal Court was not satisfied that there was sufficient, clear evidence that the applicant may not face the death penalty if returned to Sri Lanka. The Court was not satisfied that it was a reasonable conclusion that the applicant would not be exposed to real risk as to the death penalty if returned.
In a decision of 28 March 2018, the Authority again affirmed the Minister’s decision to refuse the visa application. The applicant has again sought judicial review by the Federal Circuit Court. The question to be answered by the Court is whether or not the second Authority decision is subject to jurisdictional error.
The Immigration Assessment Authority’s Decision
After setting out the background, at paragraph 5 to 23 of its decision, the Authority considers new information that has been provided to it. Of particular relevance to the consideration of this matter was the following:
· An untranslated newspaper article
· A translation of a scanned copy of the document in Sinhalese text by Anuruddha Liyanage dated January 2015, with the heading Dinamina Newspaper 13 January 2015,
· Typed page about a criminal arrested by police who died before he was taken to Court;
· A 27 February 2017 Reuters report about gunman opening fire on a prison bus near Colombo on the way to Court, believed to be a gangland dispute.
In relation to the newspaper article and the typed translation with the heading ‘Dinamina Newspaper 13 January 2015’, at paragraph 10 of the Authority’s decision, it was noted that the 2015 article named the applicant by his alias when it refers to his arrest.
At paragraph 13 of its decision, the Authority notes the 2015 newspaper article pre dates the delegate’s decision. The Authority determined that it was not satisfied that the 2015 article and the undated typed page could not have been provided prior to the delegate’s decisions and accordingly was not satisfied as to the provisions of s 473DD(b)(i) of the Migration Act 1958 (Cth) (“the Act”).
At paragraph 14 of its decision, the Authority then considers whether or not the information is credible and personal information. The Authority notes that:
Rather it is general information about an investigation of a claimed police assault on a prisoner. It does not mention who was involved or suggest that it relates to the applicant or associates. In respect of the typed page I am not satisfied as to s 473DD(b)(i) or (ii) of the Act.
At paragraph 15 of its decision, the Authority considers the 2015 newspaper article. There is mention of the arrest of “Ranga” (the applicant’s nickname) for the shooting of “Senarathna”. The Authority considers that if the information is true, it is personal information. The Authority goes on to say:
“However, that the applicant only provided this document so late in the proceedings leaves me to doubt the genuineness of the documents. As discussed above, I find it difficult to believe that he would not have such a document in earlier given his claims it mentioned him and given it was dated January 2015. Secondly, the article mentions that Ranga gave the weapon to Ajith and it was found in a cupboard. However, this is inconsistent with other evidence provided by the applicant, such as the magistrate’s court document about who the gun was given to and that it was found under a bed. Further the applicant’s statement that Ajith was shot in 2011 which is inconsistent with the article’s account that Ajith was released on bail in 2012 and developed a friendship with Suddha again at the end of 2013. Further, given the long rambling of the nature of the account, it is odd that there is no further mention of what happened to Ranga, the claimed bail or that he fled the country. Thirdly, the country information which indicates the prevalence of fraudulent documents which further reinforces my view that the document is not credible. I am not satisfied that the information is credible personal information. I am not satisfied as to s 473DD(b)(ii) of the Act.”
The Authority determined not to consider the information.
At paragraph 24 of its decision, the Authority set out the applicant’s claims, which are as follows:
· The applicant fears harm from a man named Aananda, a gang member, as he shot him.
· He fears from authorities as he has a criminal case outstanding
· He breached his bail
· He fled Sri Lanka illegally.
In what was a lengthy decision, the applicant’s claims were rejected by the Authority as it finds the applicant is not a witness of truth. The Authority does not accept that the applicant faces the death penalty if returned, does not accept that he has outstanding charges or that he faces harm from Aananda or other gang members.
While accepting the applicant may be held and placed before a magistrate as an illegal departee, the Authority finds no risk of serious harm even if held in prison for a few days, pending his appearance before a magistrate.
The Authority rejects that the applicant satisfies the refugee criteria under s 36(2)(a) of the Act or the complementary protection criteria under s 36(2)(aa) of the Act.
Preliminary Issue
An original application was filed with the Court on 2 April 2018. It listed one ground of appeal. On 29 October 2018, by consent, orders were made that the time for the applicant to file and serve any amended application, giving particulars of the grounds of review and any affidavits, be extended to 29 October 2018. Pursuant to those consent orders, the original ground of appeal was abandoned and a single ground of appeal was relied upon. This was as follows:
The decision of the Immigration Assessment Authority (IAA) of 28 March 2018 was vitiated by a constructive failure to exercise jurisdiction in that the IAA misconstrued or misapplied the words 'credible personal information' in paragraph 473DD(b)(ii) of the Migration Act 1958 (Cth), resulting in a purported but not a real review.
Particulars were then provided.
At the hearing of the matter, an application in a case was made by the applicant to rely upon two new proposed grounds of appeal, which were contained within the applicant’s outline of submissions. These were filed with the Court on 13 November 2019, some 6 days prior to the trial date and the day after the first respondent’s submissions had been filed with the Court.
The two proposed grounds of appeal are as follows:
Proposed Ground 1. This is not BTW17’s first rodeo. A differently-constituted Second Respondent (IAA) affirmed the delegate’s visa refusal decision in 2017 under paragraph 473CC(2)(a) of the Migration Act 1958 (Cth) (the Act). Along the way, the 2017 IAA had exercised a procedural discretion under 473DD to consider certain ‘new information.’ An appeal of the 2017 IAA’s decision to affirm was ultimately allowed by the FFC. The jurisdiction Federal Circuit Court (FCCA), and the Full Federal Court (FFC) on appeal, was limited by paragraph 75(v) of the Constitution. On remitter, the 2018 IAA refused to consider the very same ‘new information,’ invoking section 473DD.Could the 2018 IAA re-exercise the discretion previously exercised by the 2017 IAA? Was the 2017 IAA’s discretion capable of attracting certiorari so as to invoke paragraph 75(v)? Did its exercise affect BTW17’s legal rights or obligations? Could the High Court have quashed the 2017 IAA’s 473CC(2)(a) decision before it made its final decision? Would a misapplication of 473DD alone be jurisdictional error? What was the statutory authority to re-exercise section 473DD? Could the 2018 IAA ‘review’ procedural decisions of the 2017 IAA?
Proposed Ground 2. In February 2018, the FFC quashed the 2017 IAA’s decision to affirm the delegate’s refusal on the basis that there was insufficient foundational material to justify dismissing the risk that the Applicant would be hanged in Sri Lanka for his crime. On remitter in February 2018, the 2018 IAA had no better information than the 2017 IAA because inter alia the 2018 DFAT report would not become available until May 2018. The 2018 IAA undertook a ‘google search’ of its own and sourced information on the internet potentially falsifying the death penalty claim…
In support of the application in a case, the applicant’s solicitor filed an affidavit dated 15 November 2019. Within that, it was deposed that an amended application was not accepted by the registry, but that the first respondent was provided with an unstamped copy on the morning of 13 November 2019. I note here that was the day after the first respondent had filed their submissions. The bases upon which it was suggested the applicant was unable to file the amended grounds of appeal, was because the registry refused to accept them, bearing in mind they did not comply with the orders of the Court from the previous year. In his submissions, Mr Crowley of counsel, on behalf of the applicant, suggested that “in the course of preparing these submissions, the proposed grounds of appeal crystallised. They had merits.” It was further deposed as follows “the Minister is a model litigant. By the time of the hearing, there will have been almost an entire week to respond to the applicant’s case but the Minister seeks an advantage in not doing so. The Minister suffers no prejudice but seeks to take advantage of the applicant’s admitted delinquency in late filing his submissions and a further application”.
It was noted that Counsel acts in the matter pro bono and that an additional complication is that the applicant was, on 12 November 2019, detained by the Minister and taken to Villawood Detention Centre. This has made it difficult to take instructions.
The initial question for the Court to determine is whether or not leave should be granted to rely upon the two additional grounds of appeal, contained within the applicant’s submissions and subject to the application in a case.
The usual process to adopt in such a matter, is to consider whether or not there is any merit in the proposed amended grounds of appeal and then consider whether or not there is any prejudice arising from the consideration of those grounds of appeal to the first respondent. In this case, the first respondent, quite understandably, opposes leave being granted to rely upon the amended grounds of appeal. The amended grounds were sought to be filed after the first respondent’s submissions had been filed. Responding to those new grounds would understandably involve a complete reappraisal of the case, together with significant additional expenses on behalf of the first respondent.
There is also the issue of relevant case management principles. The High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 (“Aon”), made very clear that a Court is entitled to take account of case management principles in relation to considering proposed amendments. In the case summary of the case at page 2, the following appears:
Taking into account the objects and purposes of the rules set out in 21, matters relevant to the exercise of discretion would include, but not limited to, the extent of the delay in seeking to amend and the costs associated with the delay; prejudice to the opposing party if leave were to be granted, the nature and the importance of the amended to the party applying; the point the litigation reached relative to the trial commencement date; prejudice to other litigants awaiting trial dates and the proposing parties explanation for the delay in applying for the amendment. To the extent that the statements in the case in Qld v LJL Holdings Pty Ltd [1997] HCA 1, suggest that only a limited application for case management principles in determining applications for leave to amend, the court held that such should not apply in the future.
Considerable concern has been expressed by this Court in relation to the late filing of amendments to proposed grounds of appeal in migration matters. In BYM16 v Minster for immigration & Anor [2017] FCCA 2445 (“BYM16”) at paragraphs [6]-[7], Judge Smith had the following to say:
[6] There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
[7] The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings.
I adopt those comments.
In this particular matter, it has been before the Court since 2 May 2018. Orders were made extending the time for the filing of any amended application to 29 October 2018. An amended application was in fact filed on 30 October 2018, containing one ground of appeal that is now relied upon. At all relevant times, the applicant has been represented by the same solicitor.
At the hearing before the Court, it was suggested by Counsel for the applicant that the single ground of appeal that was relied upon could be the subject of oral argument and that the two new grounds of appeal could be the subject of written submissions by both parties, so as to allow the Court to consider them. This course of action, would have allowed the new matters to be considered but would have deprived the Court of the benefit of oral argument. This is a considerable disadvantage to the Court. In relation to any costs orders that could have been made, I note that the applicant is in custody and the likelihood of them being complied with is in fact remote. Costs therefore do not provide an adequate remedy in this situation. Whilst costs orders could have been made on a personal basis against Counsel appearing for the applicant and/or his solicitor, the first respondent did not press for these and in all of the circumstances, I do not consider the award of costs personally against the applicant’s legal representatives to be appropriate either. Even such an award of costs would not deal with the issue of delay that would be occasioned by the matter going over.
The Court is also mindful as of 30 June 2019, there were some 9500 migration matters in the Court’s list. During 2018-2019, some 5491 new matters were filed and only 3785 matters were finalised. There is considerable pressure on the Court to finalise as many migration matters as possible. However, at the same time, the Court is under an obligation to provide procedural fairness to parties and provide adjournments when it is just and equitable to do so.
The Court is also mindful that, in many cases, the delay of proceedings works to the advantage of the applicant in that they may not have to face the ultimate outcome of being removed from Australia to their country of origin. In such cases, delay works to their advantage.
What the Court is faced with in the current situation is that, notwithstanding the fact that the matter has been in the Court’s list since July 2018, an extension was granted for the amendment of any application in relation to appeal grounds in October 2018, which was taken advantage of. At the very last minute, the applicant has sought to rely on two new grounds of appeal. The first respondent has been taken by surprise in relation to these two new grounds and has not filed any submissions in respect of them. This inhibits the Courts capacity to consider whether or not the grounds have merit.
The first ground seeks to argue that the Authority was bound by previous decisions of itself and could not re-exercise the discretion previously exercised by it in 2017. Given that the matter was remitted back to the Authority to be dealt with according to law, I am not convinced that this ground has particular merit. Having been remitted, the matter was to be dealt with afresh and in my view the Authority was entitled to re-exercise all discretions and powers that were open to it, as it was a de novo hearing. In relation to ground 2, this can best be described as an assertion of apprehended bias. No evidence was put forward, which in my view, would indicate that the Authority approached the matter in no other than an open mind.
I have taken account of the relevant case management principles in Aon, together with the comments of Judge Smith in BMY16. I note the fact that the applicant has been legally represented at all times, together with what is a brief overview of the possible merits of the proposed amended grounds. I have not had the advantage of having any submissions from the first respondent. If leave were granted to rely upon the amended application, it would inevitably result in the hearing being adjourned. I am of the view that leave should be refused to rely upon the proposed two new grounds of appeal contained within the applicant’s submissions and the subject of the application in a case.
The Third Ground of appeal
The remaining ground of appeal is as follows:
l. The decision of the Immigration Assessment Authority (IAA) of 28 March 2018 was vitiated by a constructive failure to exercise jurisdiction in that the IAA misconstrued or misapplied the words 'credible personal information' in paragraph 473DD(b)(ii) of the Migration Act 1958 (Cth), resulting in a purported but not a real review.
Particulars
1.1 The IAA refused to consider 'new information' constituted by what was prima facie a news article in Dinamina Newspaper on 13 January 2015 naming the Applicant in respect of the shooting of 'Senaratna'.
1.2 The IAA reasoned that, although 'personal information', the article was not 'credible personal information,' because it was inconsistent with the balance of the review material in three specified ways.
1.3 In doing so, the IAA proceeded on the incorrect understanding that 'credible personal information' is to be assimilated with 'true personal information', whereas paragraph 473DD(b)(ii) required only that the personal information could be true."
The applicant relied upon the judgment of Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (“CSR16”), where His Honour found jurisdictional error in the Authority’s decision, by imposing a higher standard of satisfaction of “credible personal information” than s 473DD(b)(ii) of the Act requires. At [41], His Honour found that the “credible” element in s 473DD(b)(ii) of the Act should be construed as meaning “capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true”.
It was submitted that the Dinamina article, set out above, incorporates claims made in the police material. On that basis alone, it was credible personal information in the sense explained by Bromberg J. The express words of the Authority were “I accept if true, this was personal information”. The Authority considered it was not true, because of the timing of the applicant providing the Dinamina article, which caused the Authority to doubt its authenticity. It is further noted that at no time did the Authority consider whether or not there were exceptional circumstances to justify the acceptance of the information. The document was rejected solely upon the basis that in the Authority’s view, it did not satisfy s 473DD(b)(ii) of the Act.
The First Respondent’s Submissions
Counsel for the first respondent submitted that the applicant’s ground of appeal appears to be based on the Federal Court’s decision in CSR16. The first respondent acknowledges that the Court is bound by the decision in CSR16, but noted that the decision sits uncomfortably with the Full Court’s judgment in DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260 (“DYS16”) at paragraphs [37] – [39].
The first respondent submitted that the Authority’s approach in the current matter was:
a. Not inconsistent with CSR16; and
b. That in the event the Court found the Authority did make an error in its interpretation of the application of the phrase “credible personal information”, in s 4773DD(b)(ii) of the Act, such an error would not amount to jurisdictional error because it could not have realistically deprived the applicant of the opportunity of a successful outcome.
In a note, however, to its submissions, the first respondent formally submitted that CSR16 is wrongly decided in order to preserve the Minister’s rights, in the event that either party appeals the Court’s judgment in this matter. It was submitted that there was nothing in CSR16 that supports the idea that an assessment about whether or not the information is “credible” has to restrict it only to the information itself. It follows that the circumstances in which the information was provided, may be relevant in assessing whether the information is credible.
It was also submitted that the terms of s 473DD(b) of the Act made it clear that the onus is on the applicant to satisfy the Authority that the new information meets the requirements of the subsection, including that it is credible personal information. It was submitted that the applicant simply put forward that he was publicly named in relation to “underworld” incidents which places him in great danger. It was further submitted that the Authority did not accept the applicant shot Aananda or that he was arrested for his crimes. This was based on a number of inconsistencies in the applicant’s evidence in relation to the alleged incident, as well as inconsistencies and implausibility in the document provided in support, namely, the police investigation report to the magistrate’s Court and country information, which indicates the prevalence of fraudulent documents.
Consideration
Section 473DD of the Act is 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.
It is clear in this case that the Authority determined to reject the information provided in the newspaper article on the basis that it was not “credible personal information”. Paragraph [41] and [42] of CSR16 states as follows:
[41]In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being by the Authority as truthful (or accurate, or genuine).
It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEALv Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
In my view, the Authority misconceived its role in considering the information under the anterior stage of s 473DD(b)(ii) of the Act. All the Authority found was that it was “I am not satisfied the information was credible personal information”. There is no discussion as to whether the information is either true or whether it was capable of belief. Further, the Authority, having determined it was not credible personal information, failed to, as would have been the safer course, to consider whether or not there was exceptional circumstances to warrant its receipt into consideration. Reading the paragraph as a whole, I cannot be satisfied that the Authority did not misapply the test required under s 473DD(b)(ii) of the Act. At no stage did the Authority, for example, say that the information was incapable of being believed. Clear words in my view need to be used. At this stage of the consideration, in order for the information to be deemed “not credible” in circumstances where clear language is not used, in my view, the applicant is entitled to the benefit of the doubt.
The first respondent argued that even if the Court found that the information should have been considered, it would have made no difference to the outcome for the reasons given as to why the information was not considered credible. The first respondent argued that if there was an error, it was not material, as it could not have realistically made or resulted in any different decision (see Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599).
The requirement to consider whether or not the information might have realistically made a difference is very difficult for a Court to determine in circumstances like these. At face value, the information is corroborative of the applicant’s account that he was charged with the murder of a person and assists in his claim that he could possibly face the death penalty if returned. Given that the possibility of a death penalty would invoke the protection regime, certainly in relation to complimentary protection under s 36(2)(aa) of the Act and most likely the refugee criteria s 36(2)(a) of the Act. I am unable to discount the possibility that it may have realistically made a difference.
Conclusion
In these circumstances, I find that jurisdictional error has been made out and the orders sought by the applicant are granted.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 19 December 2019
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