BWO18 v Minister for Home Affairs and Anor

[2019] FCCA 2109

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWO18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2109

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to properly consider new information under s.473DD of the Act – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DA, 473DB, 473DC, 473DD, 473DE, 473DF

Cases cited:

DZU16 v Minister for Immigration & Anor [2017] FCCA 851
Plaintiff M174/2016 v Minister for Immigration and BorderProtection [2018] HCA 16

Applicant: BWO18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1039 of 2018

Judgment of: Judge Humphreys

Hearing date: 1 August 2019

Date of Last Submission: 1 August 2019

Delivered at: Sydney

Delivered on: 1 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Foster

Solicitors for the Applicant: Sentil Solicitors & Barristers

Solicitors for the Respondents: Mr Cabarrus, Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1039 of 2018

BWO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a Tamil from the northern province of Sri Lanka. The applicant left Sri Lanka by boat illegally, arriving in Australia. On 30 September 2016, the applicant applied for a Safe Haven Enterprise visa. On 15 June 2017, a delegate of the Minister refused the Safe Haven Enterprise visa. The applicant then sought merits review with the Immigration Assessment Authority (“the Authority”) where he was a ‘fast track applicant’. On 29 March 2018, the Authority affirmed the decision not to grant the applicant a visa. The applicant now seeks judicial review of the Authority’s decision in this Court.

The Authority’s Decision

1. At paragraph 4 of the decision, the Authority noted it had generally reached some very different conclusions on the evidence as compared to that of the delegate. The delegate found, in summary, that the applicant’s brother was a high-ranking member of the Liberation Tigers of Tamil Eelam (“LTTE”), his father was a head chef with the LTTE, that his brother had died in 1994 and his father died in 2002. The delegate found that the applicant was a member of the Sea Tigers Division of the LTTE from 1990 to 2006 and that the applicant was shot in the hip during a confrontation with the Sri Lankan Navy in 1994. After this, the applicant helped in the kitchens of the LTTE with his father.

2. The delegate found that the applicant went to India in 2006 to avoid further work with the LTTE. He returned to Sri Lanka in 2010 and in 2011 was made to report daily to the Criminal Investigation Department, (“CID”) which is a section of the Sri Lankan security apparatus, for a period of four months. In 2012, the delegate found that the applicant was removed from a bus and detained for somewhere between one and a half and three months and was the subject of torture. The delegate found that, whilst the applicant claimed that he escaped from this detention, he in fact was released.

3. The delegate did not accept that the authorities were and are currently still looking for the applicant. The delegate found that the applicant was not of interest to authorities at the time of his illegal departure from Sri Lanka. The delegate did, however, accept that the applicant suffers from post-traumatic stress disorder.

4. The Authority, on the other hand, found the following. The Authority accepted the applicant’s identity, nationality and his Tamil background. The Authority found that the applicant had embellished his claims, in terms of his brother, to bolster his prospects of success in his visa application.

5. The Authority accepted that some of the mental health issues were present, that the applicant requires counselling and that he receives counselling. The Authority did not accept that the applicant necessarily suffers from post-traumatic stress disorder or that the condition arose from the claimed torture from the Sri Lankan Army or the CID. The Authority did not accept that the applicant had a head injury caused by shrapnel. It did not accept that the applicant’s brother, P, was a high level LTTE commander who died in May 2009.

6. The Authority did not accept the applicant’s father was a high level LTTE leader. Rather, the applicant’s father was a manager of LTTE kitchens in the Killinochchci and Vavunyia areas. The Authority did not accept that the applicant served as a Sea Tiger captain - being the coxswain of the boat – or that he was injured in a confrontation with the Sri Lankan navy. The Authority did not accept that it was possible that the applicant sustained bullet injuries to his leg and thigh during the conflict. In so doing the Authority undertook a detailed analysis of the applicant’s claims against historical material that was footnoted in the delegate’s decision.

7. The Authority accepted that the applicant was a supporter of the LTTE but was not paid a daily wage by them. The Authority accepted that the applicant may have been required to report to authorities for three or four months daily. The Authority was willing to accept that whilst being questioned by authorities, the applicant was mistreated but does not accept that he was sexually assaulted or that his toenails were pulled out during questioning about the location of weapons or sunken LTTE Sea Tiger boats.

8. The Authority did not find that the applicant was credible as to his account of his escape from a detention camp. It did not accept that he was detained, interrogated and tortured in March or May 2012. The Authority did not accept that the CID were searching for the applicant. It found that the applicant has no profile of adverse concern to Sri Lankan authorities. The Authority found that the applicant did not face a chance of real harm on account of his ethnicity or origins or imputed LTTE support by him or from the involvement of his brother and father.

9. The Authority was not satisfied that the applicant was at risk of harm due to any mental health condition that he may suffer from. The Authority accepted the applicant may be detained and placed before a magistrate as an illegal departee from Sri Lanka but found that this does not amount to a real chance of serious harm. Accordingly, the Authority found that the applicant does not meet the requirements of s 36(2)(a) or s 36(2)(aa) of the Migration Action 1958 (Cth) (“the Act”), being the complementary protection requirements.

Grounds of Appeal

1. Eight grounds of appeal were originally filed before the Court. These were subsequently withdrawn and leave was sought to rely upon five completely new grounds of appeal filed on 24 July 2019 which was out of time and leaving some 7 clear days until the hearing. After some consideration leave was granted to rely upon these new grounds, noting that the first respondent did not seek for the matter to be adjourned and did not either oppose or consent to the leave being granted to apply upon the new grounds.

2. The new grounds are as follows. In referring to them I refer to them by the numbers they are allocated in the amended application. As Grounds 1 to 8 have been withdrawn, the Amended grounds commence with Ground 9.

   Ground 9

   The IAA erred when it had regard to new information concerning his brother P but failed to consider s 473DD before taking the new information into account in its decision and/ or failed to apply the provisions of s 473DD in deciding whether that new information was capable of being considered by the IAA in its decision.

   Particulars

   At paragraph 14 of its decision the IAA examined the material provided by the applicant concerning his brother P and then considered the material the IAA had obtained from various sources. This information included:

   (i) Neither Ps name nor Kabil were listed amongst senior officers killed in 2001 to 2009.

   (ii) High ranking general colonels and district commanders were fairly widely known and reported upon.

   (iii) The leader of the artillery regiment in Maniwannan is listed as killed.

   (iv) The only similar name to the brother’s nom de guerre in the list is Kapil Amman who was a longstanding head of intelligence gathering and the Deputy Chief of Intelligence.

   (v) IPKF arrived in Sri Lanka in 1987 and withdrew in 1990.

   (vi) The commander of the Mallaitivu District in 1987 was Paseelan.

   (vii) The district was later merged into one regional command under Brigadier Balraj followed later by Theepan and Mahathaya.

   (viii) The artillery brigade was only formed in 1995 to 1998 known as Kittu Artillery Brigade, under the command of Colonel Banu until 2004 and by April 2009 was led by Manivannan.

   (b) The IAA was only entitled to obtain new information pursuant to s 473DC that “may be relevant.”

   (c) The obtaining of the new information pursuant to the provisions of s 473DC was “subject to this part”, such part including s 473DD.

   (d) The IAA failed to explain why the new information may have been relevant.

   (e) The IAA could only consider the new information pursuant to the provisions of s 473DD.

   (f) The IAA did not consider s 473DD and accordingly was not entitled and ought not, to have considered the new information.

   (g) Contrary to these provisions, the IAA did so consider the new information and found against the applicant and/or did not accept the applicant’s claims concerning his brother, such error causing the decisions to be infected with jurisdictional error, unreasonableness, and the taking into account of material which is irrelevant or which it was otherwise not entitled to consider.

   Ground 10

   The IAA erred when it failed to give particulars of the new information particularised in Ground 9 above to the applicant; failed to explain to the applicant why the new information is relevant to the review; and failed to invite the applicant orally or in writing to give comments on the new information in writing or at interview in person or by telephone or in any other way when the new information was new information that was to be considered by the IAA and was a part of the reason for affirming the fast track reviewable decision pursuant to s 473DE of the Act and otherwise did not invite the applicant for interview under section 473DB.

   Particulars – see Ground 9 above

   Ground 11

   The IAA erred when it had regard to new information concerning boats the applicant claimed he drove while with the Sea Tigers, but failed to consider S. 473DD before taking new information into account in its decision and/ or failed to apply the provisions of S 473D in deciding whether that new information was capable of being considered by the IAA in its decision.

   Particulars

   a. At paragraph 20, the IAA examined the material provided by the applicant concerning boats he claimed he drove while with the Sea Tigers, and then considered new information the IAA had obtained from various sources. This new information included:

   i. Boats mainly used for logistics transport runs by the LTTE were the Muraj class boats crewed by ten to fourteen sailors and mounted with three machine guns. Sometimes also used as a fast attack boat;

   ii. Other  boats in the Tiger fleet included  the four man 'Thrikka'  class boats, used to deploy combat divers, and the six man  'Suddai'  class boats used to attack SLN vessels;

   iii. These boats were mounted with a single machine gun and also often accompanied and protected the larger 'Muraj' transport boats by attacking and luring away SLN vessels;

   iv. There's no indication in the country information before the IAA of any boats used for the transportation matching the applicant's description and named 'Dorah';

   v. The LTTE captured one or two similar sounding  'Dvora Sea Tigers'  boats from the DLN, the applicant explained that the Dorah boats he drove were distinctive to the SLN because the Dorah boats were totally different from the navy boats;

   vi.  The SLN's Dvora boats were much larger vessels, at between 19.9m to 27.4 m long (depending on the model) than the description by the applicant of the Dorah boats at between 16 to 35 feet long maximum;

   vii. Most of the recruits for the Sea Tigers came from the coastal fishing communities;

   viii. Regular military forces were not paid for their services.

   b. The IAA was only entitled to obtained new information pursuant to S 473DC that 'may be relevant';

   c. The obtaining of new information pursuant to the provisions of S 473DC was 'Subject to this Part', such Part including S 473DD;

   d. The IAA failed to explain why the new information may have been relevant;

   e. The IAA could only consider that new information pursuant to the provisions of S 473DD;

   f. The IAA did not consider S 473DD and accordingly was not entitled, and ought not, to have considered the new information;

   g. The IAA did so consider the new information and found against the applicant and/or did not accept the applicant's claims concerning the boats he claimed he drove while with the LTTE, such error causing the decisions at paragraph 21 and at paragraph 22 to be infected with jurisdictional error, unreasonableness, and the taking into account material which was irrelevant or which it was otherwise not entitled to consider.

   Ground 12

   The IAA erred when it failed to give particulars of the new information particularised in Ground 11 above to the applicant, failed to explain to the applicant why the new information is relevant to the review, and failed to invite the applicant orally or in writing, to give comments on the new information in writing or at interview in person or by telephone or in any other way, when the new information was new information that is to be considered by the IAA and was a part of the reason for affirming the fast track reviewable decision, pursuant to S 473DE of the Act, or otherwise did not invite the applicant for an interview under S 473DB.

   Particulars

   See Particulars to Ground 11 above.

   Ground 13

   The IAA should have, in all the circumstances and in light of the findings that the IAA made contrary to the applicant's claims about his involvement with the Sea Tigers and the brother P, considered whether to invite and/or invited the applicant for an interview pursuant to S 473DC. Such failure to consider whether to invite and/or invite the applicant for an interview, was unreasonable and resulted in jurisdictional error.

   Particulars

   See particulars in Grounds 9- 12 above.

Applicant’s Submissions

1. Mr Foster of counsel, who appeared on behalf of the applicant, in his submissions set out relevant sections being 473DB, 473DC and 473DD of the Act. The essential gravamen of Mr Foster’s submissions was that the information which was set out in the particulars to the grounds of appeal was in fact ‘new information’. The Authority, having relied upon that new information to make an adverse finding, should have put the information to the applicant to invite him to make any comment on it. This was required under the statutory requirements for procedural fairness. This is because the material fell under s 473DE(1) of the Act which required certain new information to be given to the referred applicant.

2. Section 473DE of the Act is headed

   Certain new information must be given to the referred applicant:

   (1) The Immigration Assessment Authority must in relation to a fast track reviewable decision:

   (a) give to the referred applicant particulars of any new information but only if the new information:

   (i) has been or is to be considered by the Authority under section 473DD and;

   (ii) would be reason or part of that reason for affirming a fast track reviewable decision.

   (2) The Immigration Authority may give the particulars mentioned in paragraph (1)(a) in the way the Authority thinks appropriate in the circumstances

   (3) Subsection (1) does not apply to new information that:

   (a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member.

3. There is no doubt that the information which was referred to in the particulars of the Grounds of Appeal formed part of the reasons of the Authority to actually affirm the decision. The question, however, is whether or not that particular material that was relied upon was ‘new information’. Counsel for the applicant put to the Court that the Authority’s decision shows it examined in detail the materials, and in a particularity that the delegate who made the original decision did not.

4. Counsel for the applicant put to me that footnoting documents in a delegate’s decision is not evidence that they were, necessarily, before the delegate and thus, before the Minister.

5. Counsel for the applicant suggested to the Court that, in relation to Ground 13, it was a discretion pursuant to s473DC of the Act to invite the applicant to attend for an interview. That discretion in the circumstances of this case was not exercised and that failure to exercise that discretion was exercised in an unreasonable manner. Counsel relied on DZU16 v Minister for Immigration & Anor [2017] FCCA 851.

First Respondent’s Submissions

1. Mr Cabarrus, who appeared on behalf of the first respondent, in his written submissions, put to me that the material which was relied upon by the applicant as being new material was, in fact, not. Mr Cabarrus put to me that Grounds 9 and 11 alleged that the Authority obtained and considered new information, otherwise, in accordance with the provisions of Part 7A of the Act. Mr Cabarrus noted that Grounds 10 and 12 were in substantially identical terms and they pleaded reference to the new information.

2. Mr Cabarrus said that, read together, the applicant’s submissions, in Grounds 10 and 12 plead that the Authority erred by then failing to give the applicant particulars of the new information pursuant to s 473DE of the Act. In relation to Ground 13, that ground was particularised only by a broad reference to the particulars in Grounds 9 to 12 and suggest legal unreasonableness.

3. Mr Cabarrus put to me that the phrase “new information” is defined in s 473BB of the Act to have:

   The meaning given by the section 473DC(1).

   That subsection, in turn, provides:

   (1) subject to this Part, the Immigration Assessment Authority may, in relation to 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.

4. It was put to the Court that the Authority is, in fact, prohibited from considering new information unless it satisfies the matters in s 473DD. Mr Cabarrus put to the Court that the fundamental misapprehension underlying all of the applicant’s pleaded grounds was that the information was, in fact, new information. It was put to the Court that the information was, in fact, before the delegate due to the footnotes and was thus, expressly considered by the delegate. Therefore, it did not comprise new information for the purposes of sections 473DC, DD, and DE of the Act.

5. As to Grounds 9 and 11, Mr Cabarrus referred to three particular items of country information at paragraph 14, which he set out, and specifically noted that these items were before the delegate in that they concerned, so much is apparent from the delegate’s decision, in making findings concerning the applicant’s brother. He expressly cited each of these items of country information and referred to footnote 9 of the original delegate’s decision.

6. Accordingly, it was not new information. It was before the delegate. In terms of Grounds 10 and 12, it was submitted that if it was not new information, there was no requirement under s 473DE(1) of the Act that the particulars of the new information had to be put to the applicant. Mr Cabarrus noted, however, that s 473DA(2) of the Act provides:

   To avoid doubt, nothing in this part requires the Immigration Assessment Authority to give a referred applicant any material that was before the Minister when the Minister made the decisions under section 65.

1. If it was new information, it would be required to be put to the applicant, if that new information was going to be relied upon to make an adverse decision to the applicant. If it is not new information, then there is no requirement to put that information to the applicant.

2. Mr Cabarrus put to me that Ground 13 was a particularly sweeping reference and that the submissions go no further than the pleaded ground. It was difficult to discern any precise basis upon which the Authority had unreasonably failed to invite the applicant for interview.

3. Mr Cabarrus referred the Court to the case of Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16 (“Plaintiff M174”) per Gageler, Keane and Nettle JJ at paragraph 24 where the following was said:

   The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event that meets the two conditions set out in 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of the making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

Consideration

1. The legislation clearly lays out a statutory framework for reviews to be undertaken by the Authority. New information is not to be considered unless the relevant circumstances of s 473DC and s473DD of the Act apply. It is to be noted, in particular, that s 473DD of the Act indicates that, first of all, there must be exceptional circumstances (s [473DD(a)) and either one or the other of 473DD(b)(i) and (ii) of the Act are satisfied. In relation to s473(b) of the Act, this applies only to new information provided by the applicant.

2. That did not happen here. The information was not provided by the applicant. It arose from a detailed consideration by the Authority of material footnoted in the delegate’s decision. So where the material is not provided by the applicant we are left with the situation where the Authority must be satisfied that there are exceptional circumstances to consider the new information.

3. In many ways, s 473DD of the Act is not relevant because it was not information that was provided by the applicant. It was information that was provided or was contained within the original delegate’s decision. When I look at the delegate’s decision, it is clearly heavily footnoted. It is common ground between the parties that each of the matters that are taken issue with in the grounds of appeal was contained within documentation that was footnoted in the delegate’s decision.

4. The fact is that it may have been referred to, but it was not necessarily set out in great detail. It was put to Mr Foster that in many cases, country information may be referred to, but in fact, the entirety of the country information is not set out, but that country information is clearly information that was before the delegate.

5. In this case, what has happened is that the Authority has clearly undertaken consideration of all of the materials that were before the delegate and it has actually then looked at materials that were footnoted as part of the delegate’s decision.

6. There was no doubt that the Authority is entitled to come to the conclusions that it does based on a different interpretation of the evidence. It is able to make findings that are different to that of the delegate. That is because the Authority undertakes a merits review decision, rather than simply being in a situation whereby they are undertaking a review of the outcome of the delegate’s decision. It is an entirely new decision.

7. Whilst I accept that the Authority made a different decision and they did go to material which formed footnotes to the delegate’s decision, the question that I have to be satisfied of is, whether or not that information was “new information” that was not before the Minister. If I find that it was, in fact, before the Minister, it is not new information. This means that there was no requirement on the part of the Authority to put that information to the applicant because it was not new information under s 473DC of the Act, and it was not information which was required to be provided to the applicant under s 473DE of the Act.

8. The overriding premise for the conduct of review by the Authority pursuant to s 473DB of the Act is that it is to be a review on the papers without accepting new information and without interviewing the applicant.

9. It is only where the Authority makes a decision pursuant to s 473DC of the Act to obtain new information that there then becomes a situation whereby there may be a requirement to put that information to the applicant pursuant to s473DE of the Act.

10. When I look at the requirement as to what is new information under Plaintiff M174, whilst I find it helpful, I do not find it that helpful in this particular case.

11. In my view, the analogy as to whether or not the information was before the Minister can be looked at in the same light as country information. Country information can be both voluminous and large or it can be quite small. However, it is all regarded as being before the Minister. In this case, there were footnotes to the relevant historical information. The applicant was clearly aware of that footnoted information in relation to the history of the war. It was not personal information. It was historical information or other technical information.

12. I am not satisfied that the particulars referred to in Grounds 9 to 11 was ‘new information’ within the terms of the relevant sections. Once I make a decision that it was not new information and it was information that was before the Minister and therefore was before the Authority when it made its decision. That in fact becomes a complete answer to the applicant’s claims. Once I find it was not new information, s 473DE of the Act does not apply. The Authority was able to consider the information. The Authority did not err in understanding the provisions of the Act in how the Authority was able to deal with the material contained within the footnotes. There was no requirement to refer it back to the applicant for comment under s 473DF of the Act.

13. In terms of Ground 13, it was put that in the circumstances of the current case, there was a requirement to exercise the discretion to actually call the applicant for interview or provide the information to him to comment in writing. When I look at the overall statutory scheme as to whether or not there is such requirement to call the referred applicant, I go back to s 473DB(1)(b) of the Act which directs the Authority that it should consider the review material without accepting or requesting new material and it should consider the decision without interviewing the referred applicant. So there is a statutory mandate not to actually conduct an interview except in very limited circumstances under s473DF.

14. Nothing that has been put to me by Mr Foster would indicate that the decision not to interview the referred applicant was in any way unreasonable, illogical or, indeed, irrational. In so doing, I am cognisant that there is a very high standard to be met before a Court such as this can find that there has been legal unreasonableness. I am not satisfied that the failure to invite the applicant for an interview or provide written comments was unreasonable, given it was a discretion which must be exercised reasonably.

15. Accordingly, I dismiss the application.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  30 August 2019