BVZ16 v Minister for Immigration
[2017] FCCA 775
•3 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVZ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 775 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that it misapplied s.473DD of the Migration Act 1958 when considering whether exceptional circumstances existed which permitted the consideration of information. |
| Legislation: Migration Act 1958, ss.5, 5AA, 13, 14, 36, 46A, 473BB, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 474 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 An v Minister for Immigration & Citizenship (2007) 160 FCR 480 Maan v Minister for Immigration & Citizenship (2009) 179 FCR 581 |
| Applicant: | BVZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 225 of 2016 |
| Judgment of: | Judge Cameron |
| Hearing date: | 2 March 2017 |
| Date of Last Submission: | 2 March 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 3 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Ower SC |
| Solicitors for the Applicant: | MSM Legal |
| Counsel for the First Respondent: | Mr D. O’Leary |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 225 of 2016
| BVZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived by boat at the Cocos (Keeling) Islands on 27 August 2012 without a visa permitting him to enter and stay in Australia. On 20 August 2015 he lodged an application for a Safe Haven Enterprise (subclass 790) visa with the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity and his imputed political opinion. On 3 May 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”). The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Fast track review legislative framework
Section 5AA of the Act relevantly provides that a person is an “unauthorised maritime arrival” if he or she entered Australia by sea at an excised offshore place at any time after the excision time for that place and the person became an unlawful non-citizen because of that entry. Section 5(1) of the Act prescribes the Territory of the Cocos (Keeling) Islands, amongst other places, as an excised offshore place. Its excision time was 12 noon on 17 September 2001 by the legal time in the Australian Capital Territory.
Between them, ss.13 and 14 of the Act provide that a non-citizen in the migration zone who does not hold a visa which is in effect is an unlawful non-citizen. Section 5 provides that, relevantly, the migration zone includes the Australian States and Territories. Consequently, the applicant is an unauthorised maritime arrival.
Section 46A(1) of the Act provides that an unauthorised maritime arrival cannot make a valid application for a visa. However, s.46A(2) of the Act provides that the Minister may, in his or her discretion, lift the bar on an applicant making such an application.
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 5(1) of the Act relevantly defines a “fast track applicant” as, relevantly, a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Part 7AA of the Act sets out the IAA fast track process. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. Section 473CB relevantly provides:
473CB 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; …
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The relevant sections of div.3 relevantly provide:
473BB Definitions
In this Part
…
new information has the meaning given by subsection 473DC(1).
…
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
473DCGetting 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.
…
473DDConsidering 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.
Background facts
Because he is an unauthorised maritime arrival, the applicant was initially barred from making a valid visa application. However, by letter dated 13 July 2015 he was advised that the Minister had exercised his power under s.46A(2) of the Act to lift the bar on him applying for a visa. The applicant subsequently made his application for a safe haven enterprise visa on 20 August 2015.
The applicant’s claims for protection were made in a statutory declaration dated 15 August 2015 attached to his visa application and at an interview with the delegate on 4 December 2015. As summarised by the IAA in its decision, the applicant relevantly made the following claims:
a)he is a Tamil from the north of Sri Lanka;
b)during the Sri Lankan civil war his village was frequently attacked by the LTTE and Sri Lankan forces. In 2009 when the war intensified several of his relatives who were members of the LTTE were killed by the Sri Lankan army;
c)in 2007 his wife witnessed her cousin being questioned by the army and she subsequently reported his disappearance. Since then she had problems with the CID. In April 2010, after the war had ended, two CID officers questioned and threatened his wife at their home while he was not there;
d)he and his had wife lived closed to several navy and army camps and had worried about being taken away on suspicion of having links to the LTTE. They had also worried about his wife’s CID problems and so in April 2010 they decided to move to India as refugees;
e)on 13 March 2012 he and his wife voluntarily returned to Sri Lanka because they believed that the situation there had improved. Upon arrival at the airport, they were separated and he was interrogated for three hours by two CID officers, two customs officers and one special task force officer. He was questioned about whether he was an LTTE member and about his reasons for going to India. He denied any LTTE links and said he had gone to India for his sister’s wedding but they did not believe him;
f)after three hours he and his wife were reunited and were interrogated together for a further two hours about his wife’s cousin and whether they had other family members who were linked to the LTTE. They were eventually released on condition that they provided contact details so they could be called for further questioning;
g)the next day he and his wife were summoned by a CID officer in their home area and questioned about whether they had provided funding to the LTTE. They denied the allegations and were released the same day on condition that they not leave the area without permission. The CID officer continued to contact him by telephone every two weeks to check on his whereabouts;
h)in April 2012 he was summoned by the CID and interrogated for an hour about receiving financial support from the LTTE and supporting the LTTE while in India. He was detained for eight hours before being released;
i)after his release, the CID contacted him on five further occasions to check on his whereabouts. He decided that it was not safe to remain in Sri Lanka and travelled to Australia. His mother-in-law told him that the CID had been looking for him since he left;
j)he feared being killed or harmed by the Sri Lankan authorities and members of Tamil paramilitary groups because they perceived him to have links to the LTTE. He would be targeted because he is Tamil from an area formerly controlled by the LTTE and because some of his relatives had been LTTE members. He had already previously been accused and interrogated on suspicion of having links to the LTTE; and
k)he also feared harm because he had spent many years in India, had departed Sri Lankan illegally and had sought asylum in Australia.
As noted earlier, the applicant’s application was refused by the delegate on 3 May 2016. The delegate found that the applicant was not an “excluded fast track review applicant” and so referred his matter for review by the IAA as required by s.473CA of the Act.
On 22 May 2016 the applicant’s representatives provided written submissions to the IAA. Accompanying those submissions was a statement made by the applicant on 22 May 2016. In that statement the applicant claimed that the Sri Lankan army had detained him for two days in July 2012, during which time he was tortured physically, suffered sexual violence and was interrogated on suspicion of being an LTTE member and supporter. He claimed that upon his release the interrogators threatened that his wife would suffer similar treatment. The applicant stated that he had failed to mention this claim earlier because he had been afraid that the Australian authorities would perceive him to be an LTTE member and return him to Sri Lanka. He also claimed that he was too embarrassed to disclose the incident because it had been humiliating and degrading and that as a male it had been difficult for him to discuss it. The applicant provided a report dated 1 June 2016 made by a doctor in Australia. The report noted that the applicant had reported having been tortured. It further noted that the applicant had scars consistent with the claimed assault and that he had been treated for injuries arising from the assault.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. The IAA accepted that the events the applicant had recounted had occurred but it was not satisfied that he would suffer serious or significant harm in Sri Lanka by reason of his Tamil ethnicity, his being a relatively young Tamil male from the north of Sri Lanka, his previous history with the authorities, his illegal departure from Sri Lanka, his return as a failed asylum seeker or his residence in India and in Australia.
Relevantly for this proceeding, the IAA referred to the written submissions dated 22 May 2016 provided by the applicant’s representatives. It noted that the submissions provided reasons why the applicant disagreed with the delegate’s decision and implied that certain aspects of his claims had been overlooked by the delegate. The IAA found that to the extent that the submissions contained legal arguments responding to the delegate’s decision and reasserted claims before the delegate, they did not constitute new information as defined by s.473DC(1) of the Act. The IAA therefore had regard to that material when reaching its decision.
The IAA also considered the applicant’s statement dated 22 May 2016 and said:
… the [applicant’s representatives’] submission also contains an additional statement from the applicant containing information the applicant had not previously provided to the department that is ‘new information’ for the purposes of this review.
…
The new information relates to material which was squarely at issue at the [delegate’s] interview on 4 December 2015. The substance of his protection claims rest on his claims that he has repeatedly been accused of, and interrogated about, LTTE membership and support and he has provided details of various other incidents in which he claims he was detained and interrogated about this. He was specifically asked about incidents of detention and torture during the SHEV interview and he responded with descriptions of those incidents. Given these factors, and the fact that he was represented and had been residing in Australia for three years by the time he was questioned by the delegate, I do not accept his explanation that he was afraid he would be suspected of being returned on account of being perceived as an LTTE member.
The applicant also claims he was previously too embarrassed to disclose the incident to either the delegate or his representative. While I accept if these events occurred it would be natural for the applicant to experience feelings of embarrassment and shame and that that may impede his willingness to recall and discuss the details, I do not consider this an explanation as to why he previously made no mention of being detained for two days in July 2012. I consider he need not have provided intimate details about the torture to make the delegate aware that he had been detained and interrogated as recently as one month before he left Sri Lanka. Given he disclosed various other similar incidents with basic detail I do not accept he would not have mentioned that the event occurred, even if he did not wish to discuss the finer details.
I do not accept there are exceptional circumstances to justify considering the information.
The IAA therefore disregarded the information in the applicant’s statement of 22 May 2016 when reaching its decision.
Proceedings in this Court
Only one ground in the application commencing these proceedings was pursued. The applicant alleged:
1.The Immigration Assessment Authority (IAA), Second respondent, fell into jurisdictional error in failing to consider the new information provided by the Applicant and in determining that there were no exceptional circumstances in existence in the case to justify considering the information.
The applicant accepted that the information he had provided to the IAA had been “new information”. As noted earlier, ss.473BB and 473DC(1) of the Act define “new information” to be documents or 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.
It was at least implicit in the relevant parts of the Minister’s submissions that he contended that the information provided by the applicant to the IAA had been “new information”. This confluence of views avoided the necessity to determine the Kafkaesque question whether the IAA had to find, and if so in what terms or manner, that certain information, which had not been before the Minister but which was available to it, might be relevant to its review and consequently liable to be ignored pursuant to s.473DD.
Significantly, the applicant also acknowledged the structure of s.473DD and the cumulative requirements of paras.(a) and (b) of that section. Even so, he submitted that he needed only to address the requirements of para.(a), arguing that the IAA had not considered s.473DD(b) and whether the information he had provided to it:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)[was] credible personal information which was not previously known and, had it been known, [might] have affected the consideration of the referred applicant’s claims.
The applicant noted in this regard that although the IAA had, as quoted earlier in these reasons, discussed his explanations for not having disclosed the new information earlier than he had, it had not articulated express conclusions as to whether that information could not have been provided earlier, was credible and had not been previously known. He said that the IAA had limited its reasoning to the absence of exceptional circumstances and had concluded, solely on the basis that it was not satisfied that there were such circumstances, that it could not take the new information into account.
The applicant submitted that this review therefore turned on whether the IAA’s lack of satisfaction that any relevant exceptional circumstances had existed was erroneous.
If indeed the IAA had not considered whether s.473DD(b) had been satisfied, as the applicant contended, then its decision would have been erroneous because the matters to which that paragraph refers are, by virtue of the terms of that section, ones which the IAA is obliged to consider when dealing with “new information”. However, the IAA’s discussion of the applicant’s explanations for not having disclosed the new information at the application stage reveals an appreciation of the requirements of s.473DD(b) and, in particular, s.473DD(b)(i). Contrary to the applicant’s argument, in substance if not in terms, the IAA found that it was not satisfied that the new information could not have been provided to the Department before the delegate decided to refuse the visa application. The IAA’s conclusion that the requirement in s.473DD(b)(i) had not been met was an independent basis for affirming the delegate’s decision. Because it was not contended that any such conclusion was erroneous, I find that the IAA’s decision can be supported on this basis and so will not be set aside.
Consequently, it is not necessary to consider the applicant’s argument that the IAA’s finding as to the absence of exceptional circumstances was erroneous. Nevertheless, it was a matter argued at some length and deserves consideration.
It is important to note that the only bases which the applicant advanced to the IAA as justifying it considering the new information were his explanations for not having disclosed it earlier. Consequently, it is not surprising that the IAA concluded its discussion of the applicant’s explanations with the statement that it did not accept that there were exceptional circumstances which justified it considering the new information. That statement simply reflected that nature of the arguments advanced to it. It is also not surprising that that statement was brief because, although the IAA had to address s.473DD(a), anything it might have said had already been said in the context of s.433DD(b)(i). In the circumstances, it did not need to say more than it did and, as senior counsel for the applicant observed in addresses, the matters referred to in s.433DD do not need to be considered in any particular order.
The applicant argued that the IAA’s considerations had been inadequate in that it had not turned its mind to all the matters relevant to whether exceptional circumstances, which would justify it taking the new information into account, existed. Specifically, it was submitted that the IAA had been obliged to consider whether the cogency and relevance of the new information was or were of a quality that amounted to exceptional circumstances. By way of example, it was posited that a recently presented video of a person being mistreated in a manner corroborative of claims of persecution could be of such exceptional significance that the IAA would be justified in considering it. The applicant argued that the IAA could not decide on the existence or absence of exceptional circumstances without considering the cogency and relevance of the new information sought to be adduced before it.
It would appear to be implicit in s.473DD(a) that the IAA must consider whether new information placed before it is of a quality and significance that its availability, and possibly its existence, amounts to a circumstance which is exceptional in the sense discussed in cases such as An v Minister for Immigration & Citizenship (2007) 160 FCR 480 and Maan v Minister for Immigration & Citizenship (2009) 179 FCR 581.
The IAA’s discussion of the new information advanced by the applicant evidences a consideration of its quality and plausibility. It rejected the information as recent invention, saying in para.8 of its reasons:
While I accept if these events occurred it would be natural for the applicant to experience feelings of embarrassment and shame and that that may impede his willingness to recall and discuss the details, I do not consider this an explanation as to why he previously made no mention of being detained for two days in July 2012. … Given he disclosed various other similar incidents with basic detail I do not accept he would not have mentioned that the event occurred, even if he did not wish to discuss the finer details.
Having done so, the IAA did not also need to expressly articulate its reasoning by reference to whether the new information was so cogent and relevant that its availability or existence amounted to an exceptional circumstance.
For that reason, the IAA did not err in the manner alleged by the applicant.
Conclusion
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 21 April 2017
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