BVL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 412

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVL19 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2020] FCCA 412

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

Legislation:

Migration Act 1958 (Cth), ss.31, 65, Part 7AA, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474, 476

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
AUH17 v Minister for Immigration and Border Protection (2018) FCA 388
DDS17 v Minister for Home Affairs (2019) FCA 962
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: BVL19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1082 of 2019

Judgment of: Judge Emmett

Hearing date: 26 February 2020

Date of Last Submission: 26 February 2020

Delivered at: Sydney

Delivered on: 26 February 2020

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr Ben Hancock

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1082 of 2019

BVL19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 15 April 2019 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 20 September 2018 refusing the applicant a Safe Haven Enterprise Visa (Class XE) visa (“SHEV”).

2. The applicant is a citizen of Sri Lanka and of Sinhalese ethnicity, who fears harm from the military and authorities in Sri Lanka as a deserter from the Sri Lankan army (“SLA”) and as a suspected LTTE supporter.

Background

1. On 20 April 2016, the applicant lodged an application for a SHEV with the Department of Home Affairs (“the Department”).

2. On 20 September 2018, the Delegate refused the applicant’s application for a SHEV.

3. On 25 September 2018, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.

4. On 15 April 2019, the Authority handed down its decision affirming the decision of the Delegate not to grant a SHEV.

5. On 6 May 2019, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative framework

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

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

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

   “Simplified outline of this Part

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

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

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

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

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

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

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

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

   “Material to be provided to Immigration Assessment Authority

   (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a) a statement that:

   (i) sets out the findings of fact made by the person who made the decision; and

   (ii) refers to the evidence on which those findings were based; and

   (iii) gives the reasons for the decision;

   (b) material provided by the referred applicant to the person making the decision before the decision was made;

   (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

   (d) the following details:

   (i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

   (ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

   (v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

   (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

9. Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.

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

    “Exhaustive statement of natural justice hearing rule

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

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

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

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

    “Getting new information

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

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

    (b) the Authority considers may be relevant.

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

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

    (a) in writing; or

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

    Section 473DD of the Act provides as follows:

    “Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

The Background, the Delegate’s decision and the Authority’s review and decision

1. The background, the Delegate’s decision and the Authority’s review and decision are summarised in the submissions of the first respondent as follows:

   “3. The Applicant is a Sri Lankan national. The Applicant made an application for a Safe Haven Enterprise Visa in March 2016: CB, pp 24-82. In his application, the Applicant claimed to fear serious harm by reason of his having formerly being a member of the Sri Lankan Army (SLA) and his support for the Liberation Tigers of Tamil Eelam (LTTE): CB, p 78, [1].

   4. The Applicant’s claim based on his membership of the SLA was that he feared harm by reason of leaving the SLA without permission: CB, p 78, [7]. His claimed reason for his fear based on support for the LTTE was that he had assisted members of the LTTE to travel to Colombo in the hope that the LTTE would release his brother, whom they had detained: CB, pp 79-80, [8]-[23].

   5. Following an interview with a delegate of the Minister, the Applicant made further submissions addressing issues raised in the interview, including raising as a basis for the Applicant’s well-founded fear of persecution that, if returned, he would be a failed asylum seeker who had departed Sri Lanka illegally: see CB, pp 134-148.

   6. On 20 September 2018, a delegate of the Minister refused the Applicant’s application: CB, p 162. The delegate’s reasons for doing so were, in summary, that:

   6.1. while accepting that the Applicant went absent without leave from the SLA, the delegate did not accept that the Applicant was of ongoing adverse interest to the Sri Lankan authorities for that reason (CB, p 172);

   6.2. while accepting that the Applicant had provided low level material assistance to the LTTE (CB, 171), the delegate did not accept that he was of adverse interest to the Sri Lankan authorities for this reason (CB, p 175);

   6.3. the delegate was satisfied that the Applicant would not hold a well-founded fear of persecution by reason of being a failed asylum seeker who departed Sri Lanka illegally (CB, p 177).

   7. For the same reasons, the delegate concluded that there was not a real chance that the Applicant would suffer serious harm if returned to Sri Lanka: CB, p 177.

   8. At the same time as the delegate decided to refuse the application, the Department of Home Affairs referred the decision to the IAA for review under Part 7AA of the Migration Act 1958 (Cth) (Act): CB, pp 162-163.

   9. On 16 October 2018, the Applicant, through a solicitor and migration agent, made submissions to the IAA (IAA Submissions): CB, pp 191-195. In those submissions, the Applicant contested a number of findings by the delegate, including by reference to a Wikipedia page (footnotes 1 and 2), news articles (footnotes 3, 7, 8 and 10) and Sri Lankan Government web pages (footnotes 4-6). The Applicant reiterated his claims to have a well-founded fear of persecution based on his imputed political opinion in support of the LTTE arising from his collaboration with the LTTE and his status as a returned failed asylum seeker who departed Sri Lanka illegally: CB, p 195.

   10. On 26 March 2019, the IAA invited the Applicant to provide further information and to comment on certain other information: CB, pp 198-202. This invitation was given in accordance with ss 473DC and 473DE. The Applicant did not respond to this invitation: CB, p 237, [9].

   11. On 15 April 2019, the IAA decided to affirm the decision not to grant the Applicant a visa: CB, p 234. In summary, the IAA’s reasons for this decision were:

   11.1. following a formal discharge in 2005, the Applicant was no longer of interest in the Applicant by Sri Lankan authorities by reason of his being a former soldier of or deserter from the SLA (CB, p 239, [14]-[15]);

   11.2. the IAA did not accept that the Applicant had provided assistance to the LTTE as claimed (CB, pp 240-245, [16]-[33], [36]); and 11.3. the Applicant would not face a real chance of harm on the basis of being a failed asylum seeker (CB, pp 246-249, [38]-[46]).”

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Sinhalese interpreter.  

2. On 23 May 2019, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an Amended Application and any further evidence by way of affidavit. The matter was set down for callover on 7 December 2019. On that occasion, the applicant was directed to file and serve submissions in support of his application and the matter was set down for hearing today before me.

3. At the commencement of today’s hearing, the applicant confirmed that he has not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

4. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake.

5. The applicant confirmed that he relied on the ground contained in an Application filed on 6 May 2019 as follows:

   “1. The Immigration Assessment Authority erred in failing to consider evidence that corroborated the applicant's claim.

   2. Particulars

   (a) The applicant claimed to have a genuine and ongoing fear to his life.

   (b)The applicant provided corroborating evidence of the genuine relationship; namely: The country information, which was not before the delegate but provided to the Immigration Assessment Authority.

   (c)The second respondent, having made adverse findings about the applicant's ongoing relationship and in relation to other factual claims, gave no evidentiary weight to the corroborating evidence that included Amnesty International Report and other country information.

   (d) In the circumstances, the second respondent was required to specifically address and make findings in relation to the corroborating evidence, rather than rely upon the decision of delegate and failed to give any evidentiary weight to the corroborating evidence.”

6. The ground and its particulars were interpreted for the applicant and the applicant was invited to make submissions in support of the ground and in support of the application generally.

7. I asked the applicant if his complaint was that the Authority failed to consider the new information which he provided to the Authority and which had not been before the Delegate. The applicant responded that he had documents which got lost and that he had been let down by his lawyer. The applicant said that he wrote the ground by himself and that it was translated by another person. The applicant otherwise had nothing relevant to say in relation to the ground in his application.

8. Ground 1(a) does not identify any error capable of review by this Court.

9. Given that the applicant did not make any relevant submissions in support of the particulars in Ground 1, I understand the complaints to relate to the Authority’s consideration of new information and, accordingly, have dealt with all the Authority’s findings relating to its consideration of new information.

10. The Authority noted that the applicant’s former representative was present at the SHEV interview.

11. The Authority referred to a submission received from the applicant’s representative, dated 16 October 2018. To the extent that the submission addressed the Delegate’s decision, or reiterated claims or evidence before the Delegate, the Authority had regard to that information.

12. The Authority then referred to new information about a Sri Lankan woman who went to Saudi Arabia on a false passport, as corroboration of the applicant’s claim that he did not need to obtain a police clearance certificate for Saudi Arabia. The submission cited hyperlinks to a Wikipedia page and news article about that incident. The Authority did not consider that an incident of a woman obtaining a passport with an incorrect birth date was probative or corroborative of the applicant’s claims.

13. To the extent that the submission raised a new claim that falsified details were used to obtain police clearance, the Authority found such a claim to be at odds with that submission and previous submissions to the Delegate that no such clearance was required at all. The Authority noted this was a claim not previously raised, despite the issues of police clearance being discussed at the SHEV interview. The Authority noted concerns expressed by the Delegate about how a clearance certificate could have been issued if the applicant was of adverse interest to authorities as claimed.

14. The post interview submissions to the Delegate did not raise any issue of falsified information being used by the applicant to obtain travel documentation for Saudi Arabia. Nor did the applicant’s evidence in the review material make mention of any falsified information or documents being used for this purpose. The Authority noted that the applicant had been advised, including at the SHEV interview, of the need to provide all relevant information and evidence before a decision was made on his SHEV application. The Authority found that the applicant had had ample opportunity to do so.

1. The Authority found there was no explanation as to why this new information was not or could not have been provided to the Delegate prior to the Delegate’s decision. Nor did any such claim comprise credible personal information that might have affected consideration of the applicant’s claims. The Authority was not satisfied that exceptional circumstances existed to justify considering that new information.

2. In the circumstances, the effect of the Authority’s findings were that the information was not probative or corroborative of the applicant’s claims and would not therefore have affected consideration of the applicant’s claims.

3. Before it could consider new information, the Authority must be satisfied that the criteria in both 473DD(a) and 473DD(b) of the Act are met. Having found that it was not satisfied that s.473DD(b) of the Act was not made out, it was not strictly necessary for the Authority to consider whether there were exceptional circumstances to justify considering the new information as required by s.473DD(a) of the Act (see AUH17 v Minister for Immigration and Border Protection (2018) FCA 388 (“AUH17”) at [33]).

4. Those findings were open to the Authority on the evidence and material before it, and for the reasons it gave. The findings were based on rational grounds that were logically probative of the relevant issues. The findings were neither unreasonable, nor without an intelligible foundation (ARG15 v Minister for Immigration and Border Protection (2016) FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ)

5. Accordingly, the Authority addressed itself to the correct question as to whether the criteria in s.473DD of the Act were satisfied and concluded that the criteria in s.473DD(a) and s.473DD(b) of the Act were not satisfied.

6. In the circumstances, the Authority’s consideration of the new information referred to above is without error.

7. The Authority noted that the Delegate had placed significant weight on its finding that the applicant would be required to attend in person to obtain his new driving licence in 2012 and that this undermined his claim to have been in hiding from the authorities. The applicant’s submission to the Authority, dated 16 October 2018, submitted that the Delegate’s finding was incorrect and in support provided a Department of Motor Traffic extract regarding renewal requirements. The Authority found that to be new information that was not before the Delegate.

8. In considering whether it was new information to which it could have regard, the Authority noted that the extract was ambiguous as to whether personal attendance was required and therefore had limited probative value to the applicant’s claims. The Authority also noted that in its consideration of that issue, the Authority had not placed weight on the drivers licence obtained in 2012 as being material to the claimed interest in the applicant by the military or police authorities.

9. The Authority found that there were not exceptional circumstances to justify considering this new information and, accordingly, found that it was not satisfied that s.473DD of the Act was met. Given the Authority’s conclusion that the information’s potential probative value was irrelevant, consideration of the matters in s.473DD(b) of the Act would not have assisted in determining whether s.473DD(a) was satisfied. Therefore, there was no error in the Authority not doing so (see DDS17 v Minister for Home Affairs (2019) FCA 962 at [33]).

10. In the circumstances, the Authority’s consideration of that new information in the context of s.473DD of the Act was without error.

11. The applicant’s submission to the Authority also addressed the likely penalties faced by an asylum seeker returning to Sri Lanka. In support, the submission referred to Sri Lankan legislation, news articles and a report by Amnesty International. The Authority found this to be new information and that there was no explanation provided as to why this material was not or could have been put before the Delegate. Further, there was no explanation as to why this new information was credible personal information that might have affected consideration of the applicant’s claims. The Authority noted that the materials referred to, pre-dated the Delegate’s decision by several years and that the applicant had had ample opportunity to have given that material to the Delegate.

12. In the absence of any explanation from the applicant, this was a sufficient basis for the Authority to conclude that s.473DD(b)(i) was not satisfied (see AUH17 at [33]). The Authority also found the information was general country information and was not credible personal information. In the circumstances, the Authority found that the criteria in s.473DD(b)(ii) of the Act were not met. Further, the Authority concluded that there were no exceptional circumstances to justify its consideration, given the volume of country information, including more recent country information on the same topic already before the Authority.

13. Again, those findings were open to the Authority on the evidence and material before it, and for the reasons it gave. The Authority’s consideration of the new information in the context of s.473DD of the Act is without error.

14. The Authority did have regard to new and more recent country information that it identified with particularity and which it invited that applicant to comment upon by letter, dated 26 March 2019, as it was adverse information that was inconsistent with the applicant’s claims. The Authority determined that there were exceptional circumstances to justify considering the new information which it explained in writing to the applicant. No response was received to that letter by the applicant or his representative.

15. In the circumstances, the Authority was entitled to consider that new information and place such weight as it determined appropriate upon it (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

16. To the extent that Ground 1(d) asserts that the Authority was required to specifically address and make findings in relation to the corroborating evidence rather than rely on the decision of the Delegate, a fair reading of the Authority’s decision record does not support such an assertion. If Ground 1(d) is referring to new information, then that is dealt with above.

17. Otherwise, a fair reading of the Authority’s decisions record makes clear that the Authority accurately summarised and considered the applicant’s claims and considered in detail the applicant’s claim to be at risk of harm if returned to Sri Lanka.

18. In relation to the applicant’s claim to fear harm as a deserter from the SLA. The Authority found that the applicant did not and has not had any outstanding offences or charges or any criminal convictions after leaving the SLA, and was not of any adverse or continuing interest to authorities, including military intelligence and the SLA, including as a suspected LTTE collaborator or supporter. The Authority considered the applicant’s claims in the context of the Refugee Convention and the complementary protection criterion and concluded that he satisfied neither. I accept the first respondent submission that the Authority’s reasons disclose that it conducted a thorough and independent assessment to the applicant’s claims, making findings that were open to it on the evidence and material before it, and that were reasoned and logical.

19. Accordingly, none of the complaints in Ground 1 and its particulars is made out.

Conclusion

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

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

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

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

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

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  26 February 2020