CCL18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FCA 346

FEDERAL COURT OF AUSTRALIA

CCL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 346

Appeal from:

CCL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 248

File number:

NSD 229 of 2020

Judgment of:

BEACH J

Date of judgment:

18 April 2023

Catchwords:

MIGRATION – appeal from dismissal of judicial review application – no question of principle – appeal dismissed

Legislation:

Migration Act 1958 (Cth) ss 36(2), 473CB, 473DC(1), 473DD

Cases cited:

AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

44

Date of hearing:

14 and 17 April 2023

Counsel for the Appellant:

The Appellant did not appear on 14 April 2023, but made written submissions concerning an adjournment
The Appellant appeared on 17 April 2023 with the assistance of a Tamil interpreter

Counsel for the First Respondent:

Mr N Swan

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 229 of 2020

BETWEEN:

CCL18

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	BEACH J
DATE OF ORDER:	18 APRIL 2023

THE COURT ORDERS THAT:

1.The name of the first respondent be amended by deleting the words “Migrant Services”.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of and incidental to his appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BEACH J:

1. The appellant appeals from a judgment of the primary judge below who had dismissed his application for judicial review of a decision of the Immigration Assessment Authority which had affirmed a decision of a delegate of the Minister who had refused to grant to the appellant a Safe Haven Enterprise visa.

2. For the reasons set out below I would dismiss his appeal.

3. I should say that the appellant made an application for an adjournment just before the commencement of the hearing of his appeal.  I will explain at the end of these reasons how I dealt with that application.

   Relevant background

4. The appellant is a citizen of Sri Lanka who first arrived in Australia as an unauthorised maritime arrival on 17 November 2012.  On 15 April 2016, he applied for a visa of the type that I have indicated.

5. The appellant raised the following matters in support of his visa application.

6. He said that he commenced studying at Jaffna University in 2008.  Apparently, he joined the student union and attended a number of pro-Tamil demonstrations.  Two presidents of the union were apparently killed by the Army.

7. The appellant said that in March 2009 he learned that his brother, who had joined the Liberation Tigers of Tamil Eelam (LTTE), had been killed.

8. Further, he said that he and his family were captured by the Army and placed in a refugee camp.  There, apparently the Criminal Investigation Department (CID) learned about his activities at Jaffna University.  He said that he was also questioned about his brother’s LTTE activities.  He said that he was tortured, but his uncle was able to organise his release.

9. Apparently the appellant returned to Jaffna University and was again involved in pro-Tamil protests and demonstrations.  Apparently, the appellant and some others were taken by the Army to Urelu camp, where he was harmed and warned to stop his activities.

10. He said that he then moved to Vavuniya, where he worked for a non-government organisation.  Apparently, he feared that he was being followed, so he moved back to Jaffna to finish his university studies.  Apparently, he was then approached by two men on a motorbike who threatened him.  The appellant then decided to flee Sri Lanka.

11. The appellant claimed to fear harm if he was returned to Sri Lanka on account of his brother having joined the LTTE, his work for the Tamil student union at Jaffna University, and because of his race, location, gender and age, which marked him as pro-LTTE.

12. On 7 June 2017, a delegate of the Minister refused to grant to the appellant the visa sought.  On 14 June 2017, the delegate’s decision was referred to the Authority for review.  On 27 March 2018, the Authority affirmed the delegate’s decision.

13. Let me say something more about the Authority’s decision at this point.

    The Authority’s decision

14. The Authority had regard to the material provided to it pursuant to s 473CB of the Migration Act 1958 (Cth). The Authority also referred to the appellant’s submissions to it and stated that it had taken those submissions into account to the extent that it was argument in response to the delegate’s decision. The Authority then referred to a number of new claims made by the appellant as well as further documentation provided to it. It considered those matters pursuant to s 473DD, but explained why it was not able to take them into account.

15. The Authority accepted that the appellant’s brother had joined the LTTE in 1997 but was not satisfied that the appellant’s family were otherwise politically aligned with, or supported, the LTTE.  The Authority also accepted that the appellant had studied at Jaffna University between 2007 and 2011, although he did not complete his degree.  The Authority accepted that the appellant became involved in the Jaffna University student union as an ordinary (non-executive) member, and participated in rallies, demonstrations and protests.  But it did not accept that he suffered any adverse consequences or was in danger because of the claimed protests in January 2008.

16. The Authority accepted that the appellant’s brother, who was in the LTTE, was killed in 2009.

17. The Authority also accepted that the appellant and his family were detained by the Army for 3 to 4 days, but did not accept that the appellant was tortured by the CID or that he was identified at that time as a person of interest either as a Jaffna University student who had participated in protests or as an LTTE supporter.  It noted that the appellant had subsequently returned to Jaffna University.

18. Further, the Authority accepted that he had participated in the 2009 and 2011 protests, but it did not accept that these would have made him a person of interest.  It also did not accept that the appellant was detained or tortured at Urela camp.  The Authority also did not accept that the appellant had been threatened by two men on a motorbike in 2012.

19. The Authority concluded that whilst the appellant had been involved in student demonstrations, protests and rallies, and was a member of the student union, he would not now, or in the reasonably foreseeable future, be of adverse interest to the Sri Lankan authorities.  It also did not accept that being a member of the student union would lead to the appellant being marked as pro-LTTE.  Accordingly, the Authority was not satisfied that the appellant faced any harm on account of being a member of the student union or having participated in protests and demonstrations.

20. Now the Authority also considered the appellant’s ethnicity, age, gender and origin from a former LTTE controlled area.  But the Authority was not satisfied, after also taking into account the country information before it and the changed conditions in Sri Lanka, that the appellant faced a real chance of harm from the Sri Lankan authorities for any of these reasons.

21. Now the Authority accepted that the appellant would be identified as a person who had sought asylum in Australia, but was not satisfied on the basis of country information before it that there was a real chance that the appellant would face harm for this reason.  The Authority also observed that the appellant had departed Sri Lanka legally.  So, there was no issue of the appellant having committed any offence under the Immigrants and Emigrants Act (Sri Lanka).

22. In summary, the Authority was not satisfied that the appellant met the s 36(2)(a) criterion. Further, the Authority was not satisfied that the appellant faced a real risk of significant harm, and so found that he did not satisfy the s 36(2)(aa) criterion.

    The present appeal

23. Now the appellant’s notice of appeal states that the appellant relies on the grounds and particulars in the judicial review application that he made below. The notice also says that the primary judge erred in finding that the Authority correctly applied the test in s 473DD.

24. In essence then, the appellant has pressed before me the same two grounds that he ran before the primary judge.  And he says that her Honour erred by failing to accept either or both of these grounds.  Let me deal with each in turn.

    Ground One

25. Before the primary judge it was said that the Authority fell into jurisdictional error by failing to correctly apply the test in s 473DD. The particulars identified that error as occurring in [8] of the Authority’s reasons, but see also [7]. It was said that the Authority erred because it did not expressly or implicitly refer to the “exceptional circumstances” test in s 473DD(a), but only focused on s 473DD(b).

26. But this ground proceeds on a misunderstanding of the structure of s 473DD. Section 473DD provides that the Authority must not consider new information unless certain matters are established, namely, those in s 473DD(a) and s 473DD(b). The use of “and” in s 473DD is not unimportant. The prohibition on considering new information can only be displaced if the requirements of both s 473DD(a) and s 473DD(b) are satisfied.

27. As was explained in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [11] by the plurality, the Authority is to assess new information against s 473DD(b):

    …and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant…

28. Now that is what the Authority did in the present case. The Authority explained that it was not satisfied of either of the matters in s 473DD(b). In essence then, s 473DD could not be satisfied and the Authority was precluded from considering the “new information”. In those circumstances, there was no obligation to also consider s 473DD(a).

29. The primary judge’s conclusion on this point was correct.  There was no jurisdictional error.  Further, nothing said to me yesterday afternoon by the appellant gainsays that conclusion.  Let me turn to the second ground.

    Ground Two

30. Before the primary judge it was said that the Authority fell into jurisdictional error by failing to consider a part of the appellant’s claims because it erroneously considered it to be “new information”.  Particulars (a) to (d) of this ground refer to the Authority’s reasons at [9] and [10].  There, the Authority summarised the appellant’s statement to it that the Jaffna University student union received funds from overseas in 2011 and also 2012.  The Authority also referred to the appellant’s statement that Australia is a country where the Tamil diaspora is willing to make contributions to the Tamil cause in Sri Lanka.

31. Now the Authority treated these matters as “new information”, which approach was correct.

32. “Information” for the purposes of s 473DD is a “communication of knowledge about some particular fact, subject or event”: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24] per Gageler, Keane and Nettle JJ.

33. Now the statements made by the appellant, and summarised by the Authority at [9] and [10] of its reasons, constituted “information” as so defined. And as the Authority found, the appellant had not raised these matters other than to the Authority itself. In other words, they were not put to the delegate. So, they were “not before the Minister when the Minister made the decision” (s 473DC(1)(a)). So, the Authority was correct to treat them as “new information”, as that phrase is defined in s 473DC(1).

34. Now the appellant attempted to argue in particulars (e) and (f) that the claims made by the appellant to the delegate somehow drew a connection between the Jaffna University student union and the Tamil cause, and that the appellant’s claim as to monetary contributions by the Tamil diaspora was always linked to his claims about the Jaffna University student union.

35. But whether or not some claim is linked to some other claim is not the test for “new information” in s 473DC. The fact is that the appellant’s statements referred to at [9] and [10] of the Authority’s reasons were not made to the Department or the delegate. Accordingly, they were “new information”, applying s 473DC(1), and had to be dealt with as such.

36. And as these statements were “new information”, the Authority was precluded from considering them unless satisfied of the matters in s 473DD(a) and (b). Now the Authority was not satisfied of the matters in s 473DD(b). So, it could not consider this “new information”.

37. In summary, no jurisdictional error by the Authority was established on this aspect.  The primary judge was correct to reject this ground as well.  And again, nothing said to me yesterday afternoon by the appellant demonstrates any error by either the Authority or the primary judge.

38. Let me deal with one other matter.

    Adjournment application

39. On the morning of the hearing of this appeal last Friday and throughout the day until the hearing at 2.15pm, the appellant sent my chambers various emails seeking an adjournment for an unspecified time.  Principally, he relied upon an unspecified medical condition.

40. Just before the hearing he provided via email a copy of a medical certificate from a doctor at a Dandenong Clinic which stated simply and only that he “has a medical condition and will be unfit for work/school (sic) 14/04/2023 to 14/04/2023 inclusive”.  This was palpably unsatisfactory as to the nature of the condition.  And it did not explain why the appellant could not appear in person or via video link which had been sent to him twice.  This was explained to him via an email sent from my chambers.  There were other emails sent by the appellant to my chambers that were also unsatisfactory and which I do not need to detail.

41. Last Friday I refused the open-ended adjournment sought and heard argument from the Minister’s counsel on the substantive appeal and then stood the matter over until 2.15pm yesterday for the appellant to provide further material whether written or orally in support of his appeal.  My chambers sent an email to the parties at 3.50pm on Friday stating in part:

    His Honour has refused the adjournment sought by the appellant.

    Nevertheless, his Honour has stood the matter over until 2.15 pm on Monday 17 April 2023 to give the appellant an opportunity to provide further written material in support of his appeal or to attend at that time to put any further submissions.  If the appellant wishes, he can attend via video link.

    Please also see below a Microsoft Teams invitation for those that wish to participate remotely:

    [Details of link]

    If nothing further is put before his Honour as to the substance of his appeal or substantiating any further adjournment of the matter, his Honour will proceed to judgment.

    Again, I confirm that a Tamil interpreter will be in Court from 2.00 pm on 17 April 2023 for the appellant on the day.

42. The appellant availed himself of that opportunity and appeared before me yesterday afternoon.

43. At that time he put forward various matters in support of his appeal in asserting that the Authority had not properly considered the information that he had put before it.  Unsurprisingly and given that he was unrepresented, he failed to grapple with the relevant legal questions.

    Conclusion

44. For the foregoing reasons the appeal must be dismissed with costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach.

Associate:

Dated:       18 April 2023