CCM18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 158
Federal Circuit and Family Court of Australia
(DIVISION 2)
CCM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 158
File number(s): SYG 1178 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 3 March 2023 Catchwords: MIGRATION – Immigration Assessment Authority – Temporary Protection visa – whether Authority failed to provide relevant information under s 473CB – whether Authority failed to seek information under s 473DC – whether Authority misapplied s 473DD – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 473, 438, Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA34
ANJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
AWO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 27
CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61
Daya v Cx Reinsure Co Ltd [2012] NSWSC 1616 at [16]
DFL16 v Minister for Immigration and Border Protection [2021] FCA 936
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Shanker v R [2018] VSCA 94
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 20 February 2023 Date of hearing: 20 February 2023 Place: Parramatta Counsel for the Applicant: Mr Schipp Solicitor for the Applicant: Lander & Rogers Counsel for the Respondents: Mr Sherman Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 1178 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCM18
Applicant
AND: MINISTER FOR IMMIGRAITION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
03 March 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs as agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
Introduction
The applicant is a citizen of Sri Lanka. The applicant is of Tamil ethnicity from the North-East of Sri Lanka. The applicant arrived at Christmas Island on 8 December 2012 as an Unauthorised Maritime Arrival.
On 10 September 2015, the applicant lodged an application for a Temporary Protection visa (“TPV”). The applicant’s TPV application was refused by a delegate of the Minister for Immigration “(the delegate”) on 12 July 2017.
Pursuant to Part 7AA of the Migration Act 1958 (Cth) (“the Act”), the applicant’s protection claim was referred to the Immigration Assessment Authority (“the Authority”). On 29 March 2018, the Authority affirmed the delegate’s decision not to grant the applicant his TPV.
The applicant now seeks judicial review of the Authority’s decision in this Court.
The immigration assessment authority’s decision
At paragraphs 1 and 2 of its decision record, the Authority provides the background to the applicant’s TPV application.
Paragraphs 3 to 16 of the Authority’s decision record deal with the information that was before it. At paragraph 3, the Authority states that it had regard to all material given to it by the Secretary under s 473CB of the Act.
On 23 August and 20 September 2017, the Authority received submissions on behalf of the applicant. As these submissions addressed the delegate’s decision and findings, the Authority regarded those as argument rather than information.
Information contained in the 23 August 2017 submissions concerned the applicant’s sister-in-law and was found to not be before the delegate. The Authority was not satisfied however that there were exceptional circumstances to justify considering the new information about the sister-in-law as it was satisfied that the information was an error of fact made by the delegate and repeated by the applicant’s representative.
At paragraph 7, the Authority did not accept the applicant’s claim that because he was not represented at the interview with the delegate that he could not identify who he fears persecution from in Sri Lanka. The Authority was also not satisfied that new information about para-military groups could not have been given before the delegate’s decision was made. The Authority found that this new information was not credible and rejected the information pursuant to s 473DD(b) of the Act.
The applicant’s 20 September 2017 submission contained new information that the applicant’s brother, S, was a high ranking member of the Liberation Tigers of Tamil Eelam (“LTTE”). At paragraph 11, the Authority states that, taking into account the information given during the Protection visa interview, the new information was that S was a high ranking member of the LTTE and that he joined the LTTE in 2000. The Authority was provided with two photographs, one of which purportedly shows S in LTTE uniform, but with no accompanying description.
At paragraph 12, the Authority states that it was correct that the applicant did not have a representative with him during the Protection visa interview, however the applicant agreed to proceed without one. The applicant was advised to state all of his protection claims and was warned that he may not be given an opportunity to discuss his claims again. The Authority was not satisfied that the applicant was unaware of the importance of disclosing claims relating to S’s involvement in the LTTE.
At paragraph 13, the Authority noted the applicant had already divulged S’s involvement with the LTTE and had not explained why his previous fear of divulging S’s involvement no longer exists. The Authority was not satisfied this new information, if it were true, could not have been given to the delegate before the decision was made.
At paragraph 14, the Authority noted that the applicant did not say what the “high rank” his brother held in the LTTE. The Authority states in paragraph 15 that it was not satisfied that the new information about S being a high ranking member of the LTTE was credible personal information. The Authority then went on to state that it was not satisfied that the new information about S being a high ranking LTTE member was true and that it was not satisfied there were exceptional circumstances to justify considering the new information.
Paragraph 17 outlines the applicant’s protection claims. They were summarised as follows:
•The applicant is a Sri Lankan Tamil male of Hindu faith from the Eastern Province. He is one of nine children, his three sisters and three of his brothers still live in Sri Lanka.
•The applicant’s brother-in-law, M, worked for the LTTE, went missing and was probably killed.
•After the civil wat ended in 2009 the Sri Lankan government sent the applicant to zone 4 detention centre.
•In February 2012, the applicant was released and resettled in his home village in the Eastern Province. Every week he had to report to the police station, which was a general rule for all Tamil people who came from the Vanni.
•The applicant lived with his Sister, K (her husband was M), and her two children. The police came to the house searching for M, and treated them with suspicion.
•The KG, a paramilitary group working with the SLA came to their house to ask him to join them. KG came whenever there was a protest against the United Nations (UN), which was investigating war crimes of the Rajapaksa government. KG offered them free food and lodging if they joined the protest.
•The applicant refused to join KG because so many of his family members were either killed (his mother, one of his brothers and his brother’s wife) or wounded (another brother, S) during the war, and because he refused to join he was arrested and locked in a room in a house. The CID, most of whom belong to the KG, came and swore at him and slapped him on the face. He heard others in nearby room being beaten and crying. After three days he was released.
•The applicant moved to a different house with K and her children. Once a month he had to report to the police station.
•The applicant worked for two pears with a private company as a security guard protecting various non-government organisations and Sri Lankan telecom.
•The police came regularly to his new rented house, so he moved to one area and later he went to another area where he stayed at his brother’s friend’s house. It was not long before he was harassed and monitored by the LSA, the police and KG coming to his house, abusing them, searching the house. K and her son were also harassed by them about M.
•In October 2012, the applicant left Sri Lanka and came to Australia.
•After the applicant came to Australia the CID went to his sister’s house and took his Sri Lankan National Identity Card and other documents of his.
•If the applicant returns to Sri Lanka, he fears the SLA, CID or KG will torture and/or kill him because of his Tamil ethnicity, the fact that he lived in the Vanni (home of the LTTE), he refused to join the KG, and because he sought asylum in Australia, they will consider him to be a traitor to his country. Upon return, he will not have a NIC, and he fears being arrested at the airport and detained.
At paragraph 18, the Authority accepts the applicant’s identity as a Sri Lankan Tamil male of Hindu faith from the Eastern province. It also accepts that the applicant is one of nine children, and his three sisters and three of his brothers still live in the Eastern Province in Sri Lanka.
At paragraph 21, the applicant notes that there were contradictions in the applicant’s written and oral evidence about where he was during the war and that these were not minor inconsistencies. It did not accept that the applicant had spent any length of time displaced in the Vanni during the war, or that he would be perceived as someone from the Vanni.
At paragraph 22, the Authority accepted that M worked for the LTTE, that he went missing and that the applicant suspects that he was probably killed. However, the Authority was not satisfied that M was a leader in the LTTE for seven years. The Authority found that M was involved with the LTTE and that he went missing.
At paragraph 23, the Tribunal was not satisfied the applicant had been honest about only having met up with his brother S when he came to Australia, or that he had lost contact with him. It was also not satisfied that S was anything more than involved with the LTTE, and found that S was involved with the LTTE as were many thousands of Tamils.
At paragraph 24, the Tribunal found that the applicant did not spend any time in a detention centre, given his account of this period of his life was inconsistent and not convincing. It found that the applicant lived and worked in the Eastern Province of Sri Lanka for the majority of the time after the wat before departing Sri Lanka.
The Authority found that the applicant did have to report weekly to police, like many other Tamils during that period, and that this was consistent with country information. The Authority accepted that the applicant lived with K and her two children and that police came to their home to search for M.
At paragraph 27, the Authority did not accept that the applicant was harassed, abducted and mistreated by the KG after the war as the claims were not convincing. The Tribunal was not satisfied, based on country information, that the KG was an active paramilitary group in the regions where the applicant lived or where be claimed to have lived. Paragraph 28 to 29 detail relevant country information on paramilitary groups in Sri Lanka at the relevant times.
At paragraph 30, the Authority was not convinced, based on his evidence, that the applicant was forced to move to a region in the Northern Province of Sri Lanka due to his treatment by the police. The Authority found that the applicant lived in a region in the Eastern Province of Sri Lanka with K and did not move to the Northern Province, and was not regularly visited by the police. As it did not accept that the applicant moved to the Northern Province, the Authority did not accept that the applicant was harassed and monitored there by the SLA, or that the police and KG went to his house, abused him and searched the house. The Authority did accept however, that the applicant’s sister may have separately been visited by the police to ask about M.
At paragraph 32, the Authority accepted that the applicant left Sri Lanka and came to Australia in October 2012. It accepted that the Criminal Intelligence Division (“CID”) took the applicant’s National Identity Card (“NIC”). The Authority did not accept however, that the NIC was taken after the applicant arrived in Australia. The Authority found that the CID did take the applicants NIC, but due to his reporting requirements after the war, the applicant’s identity was already known to the police.
At paragraph 34, the Authority summarises its findings in relation to the protections claims. It found that the applicant did not spend any time in detention in the Northern Province. The Authority did find that the applicant had weekly and then monthly reporting requirements after the war, like many other Tamils at that time. It found that M and S were involved with the LTTE, and that M went missing. The Authority found that the applicant was not targeted by the Sri Lankan Army (“SLA”), CID or the police for political reasons or any other reason before he departed Sri Lanka. It found that the applicant lived in the Eastern Province with K, did not move to the Northern Province, and was not regularly visited by the police. It found that the applicant departed Sri Lanka in October 2012, when he was not of any interest to the SLA, CID or police in connection with M and S. The Authority also found that when the applicant departed Sri Lanka he was not of any interest to the KG.
Paragraph 35 to 48 deal with the refugee assessment. Paragraph 36 outlines the assessment of well-founded fear of persecution. Paragraph 37 to 39 provide country information relevant to the applicant’s protections claims in relation to the LTTE, KG and returned failed asylum seekers.
At paragraph 40, the Authority found that, taking into account the country information, there is no real chance the applicant will face any harm for reasons of his Tamil ethnicity, nor his imputed political opinion on account of his family links to the LTTE, nor perceived opposition to the KG.
Paragraphs 41 to 46 deal with failed asylum seekers specifically. The Authority noted country information that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce. It found that there is not a real chance of harm for the applicant for reasons of an imputed political opinion in connection with being a failed asylum seeker. The Authority took into account country information on the Immigrants and Emigrants Act which indicates that the process and penalties imposed for any contraventions are not discriminatory and the Authority was not satisfied that they amount to persecution.
Paragraphs 49 to 54 deal with the complementary protection assessment. The Authority accepted that it is likely the applicant upon being returned will be questioned, detained for a short time and fined for having departed Sri Lanka unlawfully. It was not satisfied that the applicant would suffer the death penalty, arbitrary deprivation of life or torture for this reason. The Authority found that there is no real risk of significant harm on this basis. The Authority concludes that there is not a real chance the applicant would have any harm for reasons of his Tamil ethnicity, or for perceived opposition to the Sri Lankan government on account of his family links to the LTTE, or any perceived opposition to the KG. As such, it was not satisfied that there is a real chance of harm, let alone significant harm, on these bases.
Ground of judicial review
The applicant’s grounds of judicial review are contained within an amended Initiating Application filed with the Court on 28 June 2021. The grounds are as follows (verbatim):
1. The jurisdiction of the IAA failed in that it was not provided with relevant material, in particular the Departmental File for the Applicant’s brother, or part thereof under s 473CB, or alternatively it did not consider getting, or alternatively did not get, that material pursuant to s 473DC of the Migration Act 1958 (Cth).
Particulars
a)The Applicant provided information in his arrival interview that his brother resided in Australia.
b)It was known to the Second Respondent at the commencement of the Applicant's protection visa interview on 3 July 2017 that his brother had also applied for protection.
c)The Applicant provided information in his protection visa interview that his brother was involved with the Liberation Tigers of Tamil Ealam (LTTE).
d)The Applicant provided further information in his submissions dated 20 September 2017 that his brother was a high ranking LTTE member.
e)The information provided by the Applicant at (c) and (d) above was material to his claim for protection.
f)The Second Respondent, at [16] of its decision, rejected the claim that the Applicant's brother was a high ranking LTTE member on the basis that it was not convinced that the information was true.
g)In making the finding referred to above at (f), the First Respondent failed to provide and/or Second Respondent failed to seek any relevant documents in their possession or control regarding the application of the Applicant's brother that may impact upon the veracity of the claims made by the Applicant in relation to his brother's LTTE status, pursuant to s. 473CB(1)(c) and (2) and 473DC(1) of the Act.
h)Further and more generally, the Respondents failed to seek and consider documents, pursuant to s 473CB (1)(c) and (2) and/or 473DC(1) of the Act, regarding the Applicant's brother's application for protection to assess their relevance to the outcome of the Applicant's application for protection bearing in mind there was material relevant information common to both applications.
i)The matters referred to above at (a)-(h) were material to the outcome of the Second Respondent’s decision to affirm the refusal of the Applicant’s visa application. There was no intelligible justification given by the Second Respondent in its reasons to explain why it did not exercise, or consider exercising, the power in s.437DC of the Act in the circumstances.
2. The Second Respondent failed to give proper consideration to ‘new information’ pursuant to s.473DD of the Migration Act 1958 (Cth).
Particulars
a)At [15] of its decision, the Second Respondent refused to accept new information regarding the Applicant's brother which had been provided by the Applicant in support of his fears of harm based on actual and implied political opinion, on the basis that they did not meet the requirements of s.437DD of the Act.
b)The Second Respondent committed jurisdictional error in rejecting the Applicant's claim that his brother was a high-ranking member of the LTTE as:
i.the authority applied an incorrect and unduly narrow test for whether there were exceptional circumstances under s.437DD by confining its consideration of the new matter to whether the new information:
i.was not and could not have been provided to the delegate before she made her decision;
ii.was credible personal information which was not previously known.
ii.the authority did not consider or otherwise evaluate the importance of the new information in the context of the Applicant's claims, particularly his claim to have a well-founded fear of persecution by reason of his familial associations with the LTTE.
iii.the authority did not engage in an active intellectual process in relation to assessing the significance of the new information or otherwise give it genuine consideration.
iv.the authority failed to give consideration to or otherwise access evidence from the Applicant's brother's application for protection.
c)The strong familial links to the LTTE were material to whether the Applicant faced a real chance of harm because his risk profile was different to that of an ordinary person in Sri Lanka and, as such, was an integer of the Applicant's claim for protection.
d)The matters referred to above at (a)-(c) were material to the outcome of the Second Respondent's decision to affirm the refusal of the Applicant’s visa application. Consequently, the Second Respondent's decision was affected by jurisdictional error.
EVIDENCE BEFORE THE COURT
The following material was accepted into evidence:
(1)The Court Book
(2)Affidavit of Louisa Henderson, Solicitor, attaching a transcript of the protection visa interview by a delegate on 10 July 2017.
(3)A copy of 2 photographs that were attached to a submission provided to the Authority. The photographs depict first a group of people in military uniform. The second photograph shows an unidentified young man in uniform holding an assault with two other men behind him in a similar uniform. No badges of rank are visible on any of the people in uniform
Consideration
Ground one is a claim that the jurisdiction of the Authority failed in that it was either not provided with relevant material relating to the Applicant’s brother pursuant to s 473CB of the Act, or that it did not obtain that material pursuant to s 473DC of the Act.
In AWO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 27, the following was said in relation to the operation of s 473CB of the Act at [70] – [73]:
Section 473CB(1)(c) of the Act requires the Secretary to provide any material that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review. Subject to a materiality being established, an error by the Secretary under s 473CB(1) of the Act will result in jurisdictional error: (see; EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [42]).
Material that is “relevant to the review” is material “capable directly or indirectly of rationally affecting the assessment of the probability of the existence of some fact about which the Authority might be required to make a finding”: (see; ABT17 v Minister for Immigration and Border Protection [2020] HCA34 at [16]).
It was submitted that the threshold test for what might constitute evidence that is relevant, has been variously described as “undemanding”, “quite low”, a “low one” and “relatively low”: (see; Daya v Cx Reinsure Co Ltd [2012] NSWSC 1616 at [16]; Shanker v R [2018] VSCA 94 at [95]). What is relevant is a broad concept. In CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 at [105] the following was said per Derrington J:
As the obligation of Immigration Assessment Authority is to conduct a de novo hearing to consider the application for a protection visa afresh, all material which relates to every aspect of the visa application is necessarily relevant. Even where a delegate has decided a point in favour of the visa applicant, the material in the possession of the Secretary which tends to prove or disprove that issue can be said to be relevant to the review as the Immigration Assessment Authority is obliged to reach its own conclusions on each matter. Indeed, the relevant material before the Immigration Assessment Authority may include information which was not considered by the delegate but which is in the possession of the Secretary at the time of the referral.
It was submitted that where the Secretary does not carry out lawfully the duty under
s 473CB(1)(c) of the Act, this establishes a breach of the Act. However, the next question is whether or not such a breach is material. Materiality requires the applicant to establish “that there is a realistic possibility that the decision in fact made could have been different had the error not occurred”: (see; ANJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277 at [36]).Counsel for the applicant submitted that the Secretary should have made available to the Authority, the Protection visa application file of S.
On behalf of the first respondent, it was submitted that the Court should understand EVS17 in the light of what Jagot J said in CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 at [30] referring to Minister for Immigration and Citizenship v SGZUR (2011) 241 CLR 594 at [67] where the following was said:
“The first issue is one of fact. Has the appellant, who bears the onus of proof, proved that the Secretary failed to consider the relevance of these documents?”
As her Honour noted at [34], as is the situation in the present case, there are no reasons for a decision under s 473CB(1)(c) of the Act. This question tends to collapse into a second question which is “was it legally unreasonable for the Secretary not to have concluded that the documents were not relevant”. As noted by Derrington J in CQR17, at [106] ‘the Secretary is not required to guess at what additional issues the applicant might seek to raise by way of new information or new claims’.
Unlike AWO19, the information contained within S’s file that is said to have relevance to the review by the Authority of the applicant has not been identified with any particularity. At its highest, all the can be said is that the applicant speculates that there may be material with in the file of S that would support the assertion by the applicant that S was a high ranking officer within the LTTE. In these circumstances, the Court is not satisfied that there was any failure by the Secretary to undertake their duty pursuant to s 473CB of the Act. This aspect of ground one fails.
The second aspect of ground one is an alleged failure by the Authority pursuant to s 473DC(1) of the Act to obtain documents or information that was not before the Minister which the Authority considers may be relevant.
As pointed out by the first respondent, s 473DC(1) of the Act must be read in conjunction with three other provisions of the Act. Section 473DB(1)(a) of the Act requires the Authority to conduct its review without accepting or requesting new information and s 473DC(1)(b) of the Act without interviewing the applicant. Section 473DC(2) of the Act stipulates that the Authority does not have a duty to get, request accept, any new information whether the Authority requested to do so by referred applicant or by any other person or in any other circumstances. Further, the acceptance of any new information is subject to the provisions of s 473DD of the Act which reads 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.
Counsel for the applicant submitted that the exercise in obtaining material in relation to the applicant’s brother was neither difficult nor time consuming. The information may have led the Authority to come to a different conclusion as to:
(a)the leadership role in seniority of the applicants brother in the LTTE;
(b)the findings it made in paragraph 23; and
(c)whether the applicants brother cooperated the applicants allegation that he “the applicants brother” advise the applicant not to disclose information
It was further submitted that this may have impact on the Authority’s decision not to consider the further information provided by the applicant under s 473DD of the Act, as well as regard to the credit of the applicant.
The first respondent submitted that the course suggested by the applicant is ‘fundamentally at odds with the statutory scheme in relation to fast track reviews by the Authority” in the sense discussed by Wigney J in DFL16 v Minister for Immigration and Border Protection [2021] FCA 936 at [45]. This was not a case, for example, where the applicant had arrived on the same boat as his brother, and expressed to the Department of any point of time that his claims were the same as those of his brother. At best, the applicant’s claims developed on the basis that his brother was a high ranking LTTE officer, which he previously failed to disclose, for what can be described as unsatisfactory reasons that his brother had told him not to. The applicant’s reasons for not disclosing this was found to be inconsistent by the Authority, given that the applicant disclosed in his Protection visa interview the fact that his brother was involved with the LTTE. Why the applicant would not have gone further and fully disclosed the nature of the brother’s involvement, as alleged, was found to be troubling, by the Authority.
The duty imposed on the Authority by the Act is a duty to review are not a duty to enquire: (see; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]). The Court is not satisfied that there was an obvious failure by the Authority in the case before this Court, to make an obvious enquiry about a critical fact, the existence of which is easily ascertained. The material before the Authority was not of such cogency that the Authority would have been obliged to investigate the matter further by obtaining his brother’s Protection visa file. Ground 1(b) has no merit.
Ground two is cast as a failure by the Authority to properly apply s 473DD of the Act in its consideration as to whether or not to admit further material that had been supplied by the applicant’s representative. The application of s 473DD of the Act was considered by the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [11]. In considering whether not to admit any new material, the Authority is first required to see whether or not the provisions of s 473DD(b)(i) and (ii) are satisfied in order to then consider if there are exceptional circumstances to justify the admission of the new information.
At paragraph 11 of its decision, the Authority set out what are considered new information to be, that the applicant’s brother was a high ranking LTTE member, he joined the LTTE in 2000 and served in two named regiments, and two photographs, which accompanied the information purportedly show a photograph of the applicant’s brother in LTTE uniform.
The Authority noted at paragraph 12 of its decision that at his Protection visa interview the applicant did not have a representative but that he agreed to go ahead with the interview without representation. The Court notes that during the initial phases of the interview, the applicant was reminded that “it is your responsibility to raise all your claims for protection and provide evidence in support of those claims”. The applicant indicated the understood what was being said to him. The applicant was reminded of the need to tell the truth and provide complete and accurate protection claims as early as possible.
The applicant further stated that he did not wish to change any information previously provided. At page 10 of the transcript of the interview, the applicant is recorded as saying that his sister’s husband was in the LTTE for seven years as a leader. The applicant also confirmed at page 11 that his brother was in LTTE member. The records show at page 14 that because the authorities were looking for his brother-in-law and brother, the applicant had to go to a Police Station. The applicant states that at page 17, he was tortured because of his brother-in-law and brother. The Court notes that at no point of time, did the applicant state that his brother was a high ranking LTTE officer. The photograph that was provided gives no indication of who within the photograph is his brother or, as set out above, any rank badges indicating his rank within the LTTE. The Authority was not satisfied that the applicant was unaware of the importance of disclosing claims about the applicant’s brothers LTTE involvement.
At paragraph 13 of its decision, the Authority does not accept that the applicant could not have disclosed this additional information before, if it was true, because he feared serious mistreatment and persecution of those with links to the LTTE in Sri Lanka, which prevented him on giving this information. The Authority noted that it was not satisfied that the new information, if it were true, could not have been given to the delegate before the decision was made. This statement, the Court interprets to be with reference to s 473DD(b)(i) of the Act, that being the new information was not or could not have been provided to the Minister before the Minister made this decision.
Paragraph 15 deals with considerations under s 473DD9b)(ii) of the Act. The Authority concludes that it is not satisfied the new information, about the applicant’s brother being a high ranking LTTE member, is credible personal information, which had it been known, may have affected the consideration of the applicant’s claims. The Authority concludes this because the claims lacked detail or elaboration when considered against the entirety of the applicants claims and do not conform with them even though the applicant claimed in his Protection visa interview that his brother was LTTE.
Having considered these criteria, at paragraph 16, the Authority concludes that is not satisfied the new information about as being a high ranking LTTE member is true. For this reason, the Tribunal was not satisfied that exceptional circumstances justify considering new information.
Counsel for the applicant complains that the Authority wrongly found that the information was not true and in so doing, mis-instructed itself as to the meaning of the word credible. That is, all that was required at the preliminary stage was to consider whether or not the information was capable of belief and that, at the filtering stage, the Tribunal should not have determined that the information was in fact not true. Reliance was placed on Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (“BTW17”) at [37].
Counsel for the respondent submitted that in BTW17 at [81] the Authority was required to be satisfied that the new information was credible and “conversely, the Authority is able to decide that the new information is not capable of being believed”.
The Court is satisfied that the Authority went about its task in accordance with the majority’s reasons in AUS17. The Authority first found that it was not satisfied that the information, if it were true, could not have been given to the delegate before the decision was made, thus dealing with s 474DD(b)(i) of Act.
The Authority then turned its attention to a requirement under s 473DD(b)(ii) of the Act, and found that the information was not “credible personal information which was not previously known”. The Authority concluded there was no reason why the applicant, bearing in mind, he disclosed in the Protection visa interview that his brother was involved with the LTTE, that he could not have further disclosed the claim that he was a high-ranking officer within the LTTE.
On undertaking this task, Tribunal then correctly found under s 473DD(a) of the Act that there were not exceptional circumstances to justify considering the new information. In considering whether or not the Authority mis-instructed itself as to its task, it is important to remember that the Authority’s reasons are not to be read with “an eye finely attuned to error. The Court is not satisfied in considering whether not the information was credible, it committed an error such as to amount to jurisdictional error by finding that the information was not true. The use of the word true, as compared to credible in the Courts view, is simply another way of expressing the same proposition that the information was not credible. In these circumstances, the Court is not satisfied that ground two discloses jurisdictional error.
The Court is also satisfied, that even if there were some error in the Authority’s consideration of the “exceptional circumstances” test, it would not have resulted in a different outcome. In circumstances where the Authority concluded that the new information was not true, the Court is not satisfied that it would have impact upon the ultimate decision of the Authority.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 3 March 2023
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