BYA17 v Minister for Immigration
[2018] FCCA 865
•23 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYA17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 865 |
| Catchwords: MIGRATION – Immigration Assessment Authority – refusal of safe haven enterprise visa – allegation of jurisdictional error – failure to consider marginally relevant material does not constitute jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.427(1)(d), 473DC(2), 473DD |
| Cases cited: Applicant WAEE v Minister for Immigration &Multicultural & Indigenous Affairs (2003) 236 FCR 593 Minister for Immigration & Citizenship v SZGUR & Anor (2011) 241 CLR 594 |
| First Applicant: | BYA17 |
| Second Applicant: | BYB17 |
| Third Applicant: | BYC17 |
| Fourth Applicant: | BYD17 |
| Fifth Applicant: | BYF17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 162 of 2017 |
| Judgment of: | Judge Young |
| Hearing dates: | 22, 23 March 2018 |
| Date of Last Submission: | 23 March 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 23 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Barnes |
| Solicitors for the Applicant: | Tern Visa and Migration Lawyers |
| Counsel for the First Respondent: | Mr D O’Leary |
| Solicitors for the First Respondent: | Spark Helmore |
ORDERS
That the application filed 4 May 2017 be dismissed.
That the applicant pay the respondent’s costs in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 162 of 2017
| BYA17 |
First Applicant
| BYB17 |
Second Applicant
| BYC17 |
Third Applicant
| BYD17 |
Fourth Applicant
| BYF17 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 4 April 2017 affirming a decision of the Minister or the Minister’s delegate made on 28 February 2017 to refuse the applicant and associated family members a safe haven enterprise visa. The applicant is a Sri Lankan citizen. The assessment by the Immigration Assessment Authority, which I will refer to as the Authority, was carried out under part 7AA of the Migration Act (“the Act”) under the so-called fast track review process.
The applicant pressed only two grounds of review – grounds 3(a) and 3(b) – in his second amended application.
Ground 3(a) alleged that the Authority committed jurisdictional error by failing to consider a series of newspaper reports about an incident in Sri Lanka where a prisoner in a prison van, evidently being transported to or from a prison, was assassinated in a gang-related shooting attack.
The applicant’s migration agent made a written submission on 27 March 2017 referring to these reports and other matters. It is not in dispute that the Authority did not refer to these newspaper reports or the incident that was the subject of the reports in its reasons. The claims advanced by the applicant were, relevantly, that he had unwittingly become involved in drug smuggling in Sri Lanka in 2012 and was suspected of informing police about the smugglers. He said he feared for his life if he were forced to return to Sri Lanka.
Counsel for the applicant submitted that it could be inferred from the failure of the Authority to refer to these reports in its reasons that the incident was not considered. Counsel went so far as to submit that the failure to refer to the reports was a failure of an obligation to provide adequate reasons, although the submission was developed to say, perhaps more pointedly, that the failure to mention the incident permitted an inference that the material had not been considered. It was said that the material was relevant to the applicant’s central claim – that is, to fear retribution from drug smugglers should he be forced to return to Sri Lanka. Counsel for the applicant submitted that the Authority was required to consider whether the criteria in section 473DD of the Act were satisfied by this material.
Section 473DD of the Migration Act, which I will paraphrase, requires that the Authority must not consider new information unless, under subsection (a), there are exceptional circumstances to justify considering the new information and, relevantly in the circumstances of this ground, under subsection (b)(i), that the information was not and could not have been provided to the Minister before the decision was made under section 65.
RECORDED: NOT TRANSCRIBED
The first difficulty with the applicant’s submission is that described in WAEE v MIMIA (2003) 236 FCR 593 at [46], where it was said that:
It is plainly not necessary for the Tribunal [referring to the Refugee Review Tribunal] to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact, and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court, and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
While that passage refers to a different tribunal, I am satisfied that the observations are equally true of a consideration by the Authority. In circumstances such as these, where the newspaper clippings relate to an incident of marginal relevance to the applicant’s claims, I am slow to infer that the information was not considered. Though it is clear that the articles relate to a drug related gangland killing in Sri Lanka, it is difficult to see any direct relevance to the applicant.
The Authority accepted that on one occasion the applicant unwittingly may have been involved in a drug transfer at sea and that the same boat was later seized or the subject of an arrest of people who the applicant had previously been involved with. The Authority found, nevertheless, that the applicant’s fears that he would be held responsible for the later arrests were speculative and the Authority gave reasons for that conclusion.
Having regard to the passage quoted from WAEE, and having regard to the fact that I am satisfied that the material referred to was of marginal relevance, I do not infer that the Tribunal failed to consider that material. Considering its marginal relevance, it is perhaps not surprising that it was not referred to. In my view, that conclusion is sufficient to dispose of this ground of review.
However, I should deal with the other submission made by counsel for the Minister. Counsel for the Minister submitted that there is no duty to consider material where the statutory scheme does not provide for such a duty. Counsel relied on Minister v SZGUR (2011) 241 CLR 594 and in particular on paragraph [22] which says that the question of whether section 427(1)(d) of the Act imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 277.
The High Court, referring to WAGJ, held that absent any legal obligation imposed on the Tribunal to make inquiry under section 427(1)(d) then:
“[b]y a parity of reasoning … there is no legal obligation to consider whether one should exercise that power”. That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application 427(1)(d).
While that decision is dealing with a slightly different point, that is, the duty of a tribunal to make inquiries, counsel submitted that, by parity of reasoning, unless there was a legal duty for the Authority to consider that material its failure to consider the material could not constitute jurisdictional error. Counsel went on to say that the scheme of Part 7AA of the Act, particularly subsection 473DC(2), is that there is no duty to accept information from an applicant, and therefore, it was said, no duty to consider such information.
Stated as broadly as that, I think the submission goes too far. There is no prohibition on an applicant making a submission to the Authority, as is clear from the Authority’s practice directions, and section 473DD provides an exception to the prohibition on the Authority considering new information. The exception provides that the Authority:
…must not consider 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.
In my view, if information was before the Authority that ought to have satisfied it of the matters set out in subsections (a) and (b), including one of the alternatives in (i) or (ii), there would be an obligation to consider that information and to fail to do so would involve a constructive failure to exercise jurisdiction. However, in my view, the material does not go so far and does not give rise to an obligation of the kind described in the exception in section 473DD. In particular, it does not satisfy each of the elements in subsections (a) and (b) which are cumulative, according to the decision of White J in BVZ16 v Minister for Immigration [2017] FCCA 775.
The Minister did not take any issue in relation to (b)(i) that is, the Minister did not assert that the material was not material satisfying the description in (b)(i): “… was not and could not have been provided to the Minister before the Minister made the decision…”. The relevance of that is the Minister’s decision was made on 28 February 2017 and the date of each of the newspaper articles, which were taken from the internet, was 27 February 2017.
While the material was published one day before the decision, the Minister, in my view, properly conceded that it could not really be said, in those circumstances, that the material was material that could have been put before the Minister’s delegate on 28 February. The more telling point, in my view, is that the information which, as mentioned, is about an unrelated incident not involving the applicant did not have the necessary cogency and direct relevance to affect the conclusion of the Authority that the applicant’s fears of being harmed, if he were forced to return home to Sri Lanka, were no more than speculative. I find that ground 3(a) is not made out.
In relation to ground 3(b) it is alleged the Authority refused to accept a document, called the “Negombo Magistrate’s Court document”, and that its refusal to accept that that document satisfied the criteria in section 473DD was legally unreasonable and constituted jurisdictional error. It was said that this document satisfied the criterion in section 473DD, of being “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 Negombo Magistrate’s Court document is, ostensibly, a report dated 27 May 2014, from Sri Lankan police about the departure of a boat for Christmas Island from Sri Lanka and the deportation of two persons associated with that boat journey by the Australian authorities back to Sri Lanka. The applicant is referred to as a pilot of that boat although he was not directly the subject of the police report. The applicant said that this document supported one of his claims – that claim being that he feared he had been the subject of a false report by the owner of the boat on which he and other persons left Sri Lanka to the effect that he, the applicant, had stolen the boat. He said that as a result of this false complaint he was at real risk of harm if he was returned to Sri Lanka and imprisoned: the real risk of harm being the risk of physical harm or death.
The Authority considered this document in some detail and it doubted the credibility of the document for two reasons. At paragraph 2 of the document the report identified the departure date of the persons involved as 19 July 2013 and the point of departure as a place called Chilaw in Sri Lanka. The applicant said that he departed Sri Lanka on the night of 12 and 13 July 2013. That is, one week before the dates mentioned in the report. Those claims are inconsistent. The applicant said that to reject the credibility of the document on such flimsy grounds was unreasonable.
I agree that, alone, that would be a flimsy ground for doubting the credibility of the document although whether or not that constitutes unreasonableness is another question. The other ground for rejection is more substantial in my view. It was the agreed position of the applicant and the respondent that the applicant had consistently said he departed Sri Lanka from a place called Akkarupatthu in Eastern Province on the east coast of Sri Lanka. The Negombo Magistrate’s Court document refers to the boat departing from Chilaw, as I have mentioned. It was agreed, between the applicant and the Minister, or at least counsel for the applicant or counsel for the Minister, that Chilaw is a town on the west coast of Sri Lanka, some hundreds of kilometres away from Akkarupatthu.
In my view, that fact leads, inexorably, to a doubt about the credibility of the document and the credibility of the information contained in the document. The test for legal unreasonableness is, essentially, that no reasonable minds could come to any other conclusion and that the tribunal has come to some other conclusion. One of the many formulations of the test is set out in Minister v SZMDS (2010) 240 CLR 611. One of the formulations occurs at paragraph [131] of the joint judgment of Crennan and Bell JJ and says as follows:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In my view, it was at least open to the Authority to doubt the credibility of the information, based on the inconsistencies between that document and the consistent assertions of the applicant and, accordingly, for the Authority not to be satisfied that the information was credible personal information in terms of subsection 473DD(b)(ii). Ground 3(b) is not made out.
I dismiss the application.
There will be an order that the applicant pay the Minister’s costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 11 April 2018
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