CDP16 v Minister for Immigration
[2018] FCCA 3708
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3708 |
| Catchwords: MIGRATION – Application for a review of the decision of the Immigration Assessment Authority (IAA) – whether the IAA failed to consider an integer of the applicant’s claim – whether the IAA adopted a “wrong construction” of s.473DD of the Migration Act 1958 (Cth) – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425, 473CB, 473DB, 473DD, 476 |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 |
| Applicant: | CDP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2082 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 July 2018 |
| Date of Last Submission: | 2 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher by direct access |
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 3 August 2016, and subsequently and variously amended, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2082 of 2016
| CDP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 August 2016, seeking review of the decision of the Immigration Assessment Authority (“the IAA”), made on 25 July 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Safe Haven Enterprise Visa (Class XE) (“SHEV”) to the applicant.
The evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1) and the affidavit of the applicant made on 3 August 2016.
Background
The following background is relevant. The applicant is a citizen of Sri Lanka who arrived in Australia on 26 August 2012 (CB 197). The applicant applied for a protection visa which was received by the Minister’s department on 19 August 2013 (CB 202). He made his claims to protection in a written statement that was attached to the application for the protection visa. He applied for a SHEV on 3 October 2015, which was received on 7 October 2015 (CB 115).
The applicant claimed to be of Tamil ethnicity and of the Hindu faith. He claimed that he and his family are supporters of the United National Party. He claimed that, in 2008, his father decided to build a Hindu temple in their local area, which was completed in 2010. His father was allegedly once beaten by two “Sinhala thugs”, Rexy (“R”) and Thushara (“T”), who were supporters of the Public Alliance.
The applicant claimed that, in 2011, R and T stopped him and warned him not to get involved in Hindu activities. In the applicant’s visa application, he stated that he did not take the threats seriously and continued to engage in the youth club activities.
The applicant claimed that, in 2012, he was stopped and threatened by R and his friends who were carrying wooden poles and an iron bar. The applicant claimed that he escaped, and was not able to lodge a complaint at the police station the following day because there were no witnesses. He claimed that he later received phone calls and death threats from either R or T, and that he will be harmed by these “Sinhala thugs” and their supporters if he is returned to Sri Lanka.
The applicant was interviewed on arrival in Australia by an officer of the Minister’s department. He stated that he had left Sri Lanka because he was perceived to be an LTTE supporter, as a result of delivering aid to the tsunami affected north (the Mullaitivu district). No mention was made of the “Sinhala thugs”.
The delegate refused the application on 8 June 2016. This decision was affirmed by the IAA on 25 July 2016.
In its decision record, the IAA noted the evidence given by the applicant ([23] at CB 256 to [40] at CB 260). The IAA stated that it had “significant concerns about the applicant’s credibility and the reasons he claims to fear harm if returned to Sri Lanka” ([23] at CB 256).
The IAA noted that, while the applicant claimed that R and T were well-connected, powerful and dangerous, he did not take the 2011 incident seriously and continued with his youth club activities ([23] at CB 256). Furthermore, the applicant failed to mention the 2011 incident at his arrival interview ([23] at CB 256). For these reasons, the IAA did not accept that the applicant feared any harm as a result of the 2011 incident ([24] at CB 256).
The IAA also noted inconsistencies between the applicant’s visa application, submissions, and SHEV interview regarding the 2012 incident ([25] at CB 256 – 257). The IAA preferred the applicant’s description in the SHEV interview, since it was “brief, natural, and sounded unrehearsed” ([25] at CB 257). Therefore, while accepting that the 2012 incident occurred, the IAA did not accept that “any threat was made or as a result of this incident the applicant was afraid for his life” ([25] at CB 257).
Given that the IAA did not accept that the applicant was threatened in or by the 2012 incident, the IAA also did not accept that he and his father went to the police the next day and that the police did not take action, nor that the applicant received death threats on his phone ([26] at CB 257). The IAA also did not accept that Sinhalese men came looking for the applicant since he left Sri Lanka ([26] at CB 257).
The IAA also considered other claims made by the applicant. It is not necessary to set these out in any detail as they do not appear relevant to the grounds of review. These were the applicant’s Tamil ethnicity and LTTE connections, status as an illegal Tamil departee, suspected LTTE profile and his father’s association with the United National Party (“the UNP”).
In light of the evidence, the IAA found that the applicant had not established a well-founded fear of persecution. In particular, while “there is a real chance the applicant may be subject to some level of discrimination on his return on the basis of his Tamil ethnicity or his family connections”, the IAA was not satisfied that “such discrimination amounts to serious harm” ([48] at CB 262).
Similarly, the IAA was not satisfied that the applicant would face a real chance of harm on the basis of his Hindu religion ([56] at CB 264), on the basis of his father’s support for the UNP ([58] at CB 264), or on the basis of his illegal departure of Sri Lanka ([73] at CB 267). Therefore, the IAA found that the applicant did not meet the definition of refugee in s.5H(1) of the Act and s.36(2)(a) of the Act.
Before the Court
At the hearing before this Court, both the applicant and the Minister were represented by counsel. The applicant sought to press a further amended application.
The applicant’s further amended grounds for review are as follows:
“Ground 1: Jurisdictional Error – Failure to address and register findings on an integer of the Applicant’s claim.
The Court erred in not considering, addressing or making a finding on an integer of the Applicant’s claim, namely – that he was a member of a Particular Social Group, namely the Temple Group (“PSG Claim”). The IAA failed to perform its tasks as required by law, thereby falling into error.
PARTICULARS
1. At [CB 19] the Applicant expressly stated that he was a member of a Particular Social Group, namely the Temple Group (“PSG Claim”).
2. At Paragraph 12 of his statutory declaration [CB 83], the Applicant further stated that his father was the leader of the Singanma Kaali Kovil temple committee and that he, the applicant was appointed president of the Singanma Kaali Kovil youth club. At the heart of the Applicant’s PSG Claim was a contention that he had a well-founded fear of persecution by reason of his membership of the “Temple Group”.
3. Notably at Paragraph 49 [CB 262] the IAA concluded that the applicant is not likely to face a real chance of harm on return to Sri Lanka because of his involvement in the building of a Hindu Temple. However, the conclusion does not address the reason for his fear as it relates to his PSG Claim. The PSG Claim revolves around the activities that the applicant undertakes in the day to day activities of the Temple, his association with other Temple members and the possible exposure to harm that comes with his alleged membership
New Ground Two: Jurisdictional Error –The IAA adopted a wrong construction of s473DD in that the Assessor formed the view that there was no exceptional circumstance requiring the consideration of new information (being “Sri Lanka Country Reports on Human Rights Practices 2015 (the “Report”)) without granting the Applicant the opportunity, pursuant to s473DD(b)(i) to satisfy the IAA, that the Report was not, and could not have been, provided to the Minister before he Minister made the decision under s65.
PARTICULARS
Pursuant to 473DD, the Applicant provided the IAA with new information, being a media report dated 1 November 2016 (“the Report). With respect to s473DD, the IAA formed the view that (i)
The Applicant had not provided an explanation why the information could not have been given to the Minister before the decision was made (ii) The Applicant has not submitted that it is credible personal information which was not previously known and which may have affected the consideration of his claims had it been known (iii) the Report pre-dates the Applicant’s SHEV interview and was freely available on the US Department of State website; (iv) The Applicant was represented by a Registered Migration Agent. It was on this basis that the Assessor concluded that there were no exceptional circumstances to justify considering the new information. Consequently, the Assessor did not consider the Report. [Paragraph 7, CB 252]
[Errors in original.]
Consideration
Ground one
Ground one asserts that the IAA failed to consider and make findings on the applicant’s claim that he feared harm because he was a member of a particular social group. This is described as being the “Temple group claim”.
Before the Court the applicant explained that his contention was not that the IAA “misstated his case”, but failed to deal with the claim as he presented it. This directs attention to what the applicant presented and claimed as the basis for his fear of harm if he were to return to Sri Lanka.
To support the contention that he raised the Temple group claim, the applicant referred to the following evidence.
One, in an interview conducted on the applicant’s arrival he was asked:
“Are you a member of any particular social or religious group?”
The applicant answered “yes”. In response to a request for details he stated: “Temple group” (CB 19).
Two, in a Statutory Declaration (CB 81 – 86) which accompanied his visa application, he stated in reply to a question: “Why I left Sri Lanka”:
“The Sinhala Buddhists have for many years caused problems for the Hindus all of whom are Tamils as the Buddhists believe the whole of Sri Lanka belongs to them as it is a Buddhist country.” (CB 81)
Three, in the same document the applicant submitted he introduced the “issue of the temple”:
“10. With much resistance from the Sinhalese most of whom were Buddhists my father and Babu were finally able to complete construction of the Hindu temple (Singamma Kaali Kovil). During the period 2008 - 2010 while the temple was being constructed my father received several death threats from unknown Sinhala men who called my father on his mobile. One occasion my father was beaten by [R] and [T] who were two influential and well-connected Sinhala thugs in the area I lived. [R] and [T] have committed several crimes in the area and are staunch supporters of the ruling police party (PA - Public Alliance; also known as "Podu Peramuna") and are backed by the PA minister of parliament, Sarath Gunaratne.” (CB 82)
Four, subsequently in the same Declaration he indicated that his father was a leader of the temple ([12] at CB 83), and the applicant was appointed president of the Temple’s youth club. The applicant recounted an incident in 2011 when he was threatened by R and T, but he continued to engage in youth club activities ([17] at CB 83). I note that the reason the applicant gave for this was that he said he “did not take the threats made by [R] he and [T] are serious”.
Five, in the same Statutory Declaration he also stated:
“What I fear may happen to me if I return to that country and why
[28] I believe that I am at risk of being harmed and killed possibly by [R], [T] and their supporters.
[29] I also fear the Sinhalese in my area as I am a devout Hindu actively involved in Hindu religious activities.
…
Who I think may harm/mistreat me in that country and why
[31] [R], [T], their supporters and Sinhalese in my area as I’m a devout and active Hindu involved in temple activities.” (CB 85)
Six, in another statement he stated (CB 179.1):
“The committee decided to build a temple in our area on the road called Finance Watte. The Sinhalese people in the area did not like the idea of building a temple there. The committee gathered in our house very often to work out a plan to build the temple. The committee decided to build a temple in a vacant plot of land where Hindu people gathered and prayed by lighting a lamp. The vacant land belonged to the priest. His name Babu.”
The delegate (who first considered the applicant’s claims for the visa) recorded (CB 200):
“8. The applicant during his Entry Interview (EI) on 16 January 2013 made the following statement in response to Why did you leave your country of nationality (country of residence):
When the tsunami happened we had delivered supplies to people of Mullaitivu, an LTTE area. They now suspect I am LTTE. I am being harassed by the CID and Sinhalese in my area. I didn’t have once day of peace and am afraid for my life. So I left”.
[Footnotes not included.]
The applicant’s submission to the Court was that the applicant claimed to fear harm from a number of sources. These were R and T and their supporters, and Sinhalese in his area because of the activities in the Temple. In short, the claim was not just limited to R and T and the 2011 incident, and another incident in 2012 involving pilgrimage to India, but went further to include Sinhalese in his area.
The applicant submitted that the IAA considered the applicant’s claim to fear harm as it related to the incident of 2011 (at [23]). The IAA found (CB 256):
“[23] Considering the evidence as a whole, I have significant concerns about the applicant’s credibility and the reasons he claims to fear harm if returned to Sri Lanka. I accept that the applicant may have been stopped by two people in 2011 when he and a friend were on their way to or from the temple. However, I do not accept that he was threatened against involvement in temple activities by two criminal thugs. It is not credible that if R and T were as powerful, dangerous and well-connected as the applicant claims, that he would not take any threats made by them seriously and would not mention it in his arrival interview.
[24] The applicant has not claimed that, as a result of the threats, anything happened to him after this incident. The applicant’s evidence is that that he did not take the 2011 incident seriously and continued with his activities. This is consistent with his evidence that in January 2012 he went on pilgrimage to India during which he purchased statues and other paraphernalia for the temple. I do not accept that the applicant feared any harm as a result of this incident.”
The applicant submitted that the IAA did deal with the claims involving the 2011 incident (which involved R and T) and the 2012 incident.
However, the complaint was that the IAA did not address his claim to fear harm, as he had indicated in his entry interview, from Sinhalese generally in his area by reason of being a member of the Temple group.
The applicant relied on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No.2)”) to argue that this claim was expressly made, or at least clearly arose from the circumstances presented, and the IAA’s failure to deal with it was jurisdictional error:
55 Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at 394 [26]):
‘... the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.’
The applicant also relied on Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at 410 – 411 [69] to argue that the IAA failed to consider whether the Tamil Hindus who were involved in the activities of the Hindu Temple constituted a particular social group.
Further, that the IAA did not have regard to Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) which supported the applicant’s contention that the Temple group “did constitute a particular social group”.
There was no dispute between the parties that in the current case the IAA would fall into legal error (with reference to s.473DB(1)) if it did not consider a claim expressly raised (with reference to Dranichnikov) or clearly arising from the circumstances presented (with reference to NABE (No.2)).
I do not accept the applicant’s submissions (as set out above) as to what he now says were the claims to fear harm as presented before the delegate and then, relevantly, the IAA.
The applicant’s submissions before the Court appeared to have largely overlooked the actual terms of the ground he ultimately put before the Court. The assertion in the ground is that the IAA failed to consider his claim that he was a member of a particular social group, namely the Temple group.
The submissions sought to rely on his reference to “Temple Group” (as recorded in the entry interview report, reproduced at CB 19), and subsequent references to the 2011 incident and his fear of harm from R and T, and Sinhalese in his area generally, because of his involvement in the Temple.
It is important to note that at the entry interview (as recorded at CB 19) the applicant made no reference to a particular social group. The reference to “temple group” was a reference to his membership of a religious temple (see the words “or religious group” at CB 19).
There is a difference between a social or religious group, and a particular social group for the purposes of the review conducted by the IAA. No satisfactory attempt was made before the Court to explain how the reference to this group, even in the context of the claim to fear harm from Sinhalese generally, could be said to be a particular social group.
Noting of course what McHugh J said in Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR at 264:
“… while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society.”
The question, therefore, remains what were the applicant’s claims to fear harm as ascertained from what he expressly stated, or clearly arose, in the circumstances presented.
The applicant’s claim to fear harm was, clearly, that as a Hindu involved in the activities of the Hindu Temple group, he feared harm from Sinhalese (Buddhist) generally, and as this was revealed with specific instances of past harm as, for example, the 2011 incident involving R and T.
Before the Court, and as set out above, the applicant referred to his “statement” as reproduced at CB 81 – 86. Those references were to certain parts of that statement.
However, to properly understand the nature and character of the applicant’s claims, a holistic reading is required.
The format of the Statutory Declaration consists of a series of questions (taken from the protection visa application form) and the applicant’s answer to each of those questions.
The applicant stated that he was born into a devout Hindu family in Sri Lanka and that Sinhalese Buddhists cause problems for Hindu Tamils.
Despite opposition from Sinhalese generally, his father had been actively involved in the building of a Hindu Temple in his local area. The applicant was involved in certain activities with the Temple, including a youth leadership role, which brought him to the attention of certain persons who are part of the Sinhalese majority.
These persons, whom he identified as R and T, were involved in threats and assault against the applicant. These occurred in incidents in 2011 and 2012.
Relevantly, the applicant himself summarised his claims in the Statutory Declaration as follows (CB 85):
“What I fear may happen to me if I return to that country and why
28. I believe that I am at risk of being harmed and killed possibly by [R], [T] and their supporters.
29. I also fear the Sinhalese in my area as I am a devout Hindu actively involved in Hindu religious activities.”
The subsequent material referred to by the applicant before the Court did not alter the character of the applicant’s claim. That is, in all, he feared harm specifically from R and T and their supporters (thugs and criminals) because of his Hindu activities, and feared harm from Sinhalese generally in his area for the same reason.
That is what the IAA considered under the heading of “Hindu religion, temple activities and threats from thugs” (CB 254).
The IAA considered, and rejected, the applicant’s claim that he was threatened in 2011 by “criminal thugs” because of his Temple activities (at [23]).
The IAA accepted that the 2012 incident occurred, but not that any threat was made to him or that he was in fear of his life after that incident (at [25]). It did not accept that he was threatened after this time ([26] at CB 257):
“For this reason and as I do not accept that there was an incident in 2012 involving threats or weapons, I do not accept unknown Sinhala men have come looking for him since he left Sri Lanka.”
Under the same heading, the IAA considered the claim of threats, generally, from “Sinhalese people”. It did not accept that he had not had the opportunity to provide details about this (at [27]).
Under the heading of “Fear of harm as a Hindu and from thugs/criminal underworld”, the IAA specifically considered the applicant’s claim that he feared harm from R and T because of his involvement in the Hindu Temple in his local area. That is sufficient to deal with that aspect of the complaint in ground one.
I note further, and in any event, that the IAA’s analysis, based on, and including the applicant’s own evidence, was that he did not take the threat from R and T seriously, reasonably explained this finding (at [49]).
The IAA also considered the applicant’s claim, as made originally in his entry interview, that he had, and would fear for the future, threats from Sinhalese people.
There appeared to be two elements to the applicant’s claim in this regard. One, fear from thugs (including, and beyond, R and T) with whom R and T were associated and were part of some criminal element. Second, a far more general fear of harm from Sinhalese people because he was a Hindu and active in the Temple.
The IAA considered, and rejected, that these fears were well-founded. In relation to the generalised fear, the IAA found that it did not accept that the 2012 incident occurred, as the applicant had claimed, or that “unknown armed men were looking for him” (see [25] to [26]).
In his submissions to the IAA, the applicant complained that he had not had the opportunity to explain how these threats, generally from Sinhalese people, related to his activities with the Temple. The IAA found that, on the material before it, he had been given “a number of opportunities to expand on his claims and evidence” about “his involvement with the temple and about his fears because of these threats from Sinhalese people” (at [37]).
Further, the IAA specifically considered the claim to fear harm from criminals because of his Hindu activities, and on the basis of his Hindu religion generally, from Sinhalese (see [50] – [56]).
In short, the applicant’s claims were that he feared harm because of his Hindu activism and his activities in the Hindu Temple. This fear of harm was said to emanate from R and T, and a broader group of criminal thugs, and Sinhalese generally. The IAA considered all of the applicant’s claims as they clearly arose on what was before it.
As set out above, the particular to the applicant’s ground specifically asserts that the IAA failed to consider that he was a member of a particular social group.
What the applicant did not satisfactorily address in the current case before the Court is that the IAA found that the applicant’s claims to fear harm were either rejected at the factual level, or were otherwise not well-founded.
The applicant referred generally to Dranichnikov v Minister for Immigration & Citizenship (2003) 197 ALR 389, and in relation to the particular social group aspect of the ground, I understood that, apparently, the applicant relied on Dranichnikov at [26] per Gummow and Callinan JJ. However, the answer to this aspect of the applicant’s ground is, with respect, to be found in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78]:
Further, as Burnett FM correctly notes, there is clear authority for the proposition that the principles exposed by Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a “social group” for the purposes of Art 1A(2) of the Refugees Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s 91R(1) of the Act for any Convention reason (MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29] per Finkelstein J; SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [49]- [50] per Besanko J; and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21]-[25]). Unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to identify and consider the precise social group to which the applicant claims membership.
I note also MZZTW v Minister for Immigration and Border Protection [2015] FCA 475 at [14] – [16]):
14. Counsel for the appellant relied on what was said by Gummow and Callinan JJ in Dranichnikov (77 ALJR at 1092 [26]):
At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention [footnote omitted]. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.
The essence of the appellant’s point was that the reviewer in the present case did not closely follow this three-step process, specifically in relation to the first step. However, as I have indicated, the reviewer implicitly accepted the appellant’s case that the social group alleged did exist as such and that she was a member of it.
15. Furthermore, I do not consider that their Honours in Dranichnikov intended to propound that any failure scrupulously to adhere to the steps referred to would necessarily lead to the conclusion that there was a constructive failure to exercise jurisdiction. In the case itself, there had been a misidentification of the social group relied on: the group relied on was entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals, whereas the group as defined by the decision-making tribunal was entrepreneurs and/or businessmen, simpliciter. It is easy to see how an identification of the group too widely in this way would have caused the Tribunal to bypass the critical question in the case. No such issue arises in the present case. In the reasons of the reviewer, no misunderstanding of, or confusion about, the particular social group relied on by the appellant is revealed in the reasons of the reviewer. In her articulation of the appellant’s claims, the reviewer identified the group in the very terms which the appellant has used in this appeal.
16. In these circumstances, the omission from the reviewer’s reasons of an explicit finding that there was such a group and as to the appellant’s membership of it is of no consequence. On the question whether the reviewer constructively failed to exercise her jurisdiction, it leads nowhere. To the extent that the reviewer was obliged to consider the existence and nature of the group, and the appellant’s membership of it, she did so.
In the current case, there is no jurisdictional error in the IAA’s consideration and findings as to whether the applicant held a well-founded fear. The IAA’s findings at the factual level were all reasonably open to it, and for the reasons it gave, and which were probative of what was before it. Simply, there was no need in the current circumstances for the IAA to go on to consider whether any social group, let alone a particular social group, existed. In all, ground one is not made out.
Ground two
Ground two asserts that the IAA adopted the “wrong” construction of s.473DD. This is explained as being that it found that there were no exceptional circumstances requiring the consideration of “new information”. The applicant asserts that the IAA failed to give him the opportunity to satisfy it that a Sri Lankan Country Report on Human Rights Practices 2015 (“the 2015 report”) was “new information”, in that it was not, and could not, have been provided to the Minister before the making of the decision which was the subject of the assessment by the IAA.
Section 473DD of the Act is in the following terms:
“473DD 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.”
I note that since the hearing of this matter the Federal Court has handed down a number of judgments in relation to s.473DD (AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; BPC16 v Minister for Immigration and Border Protection [2018] FCA 920; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110). However, it was not necessary to refer to the parties for any further submissions following the hearing because of the following.
One, some of the applicant’s submissions in support of ground two fail at the factual level. Two, for the remainder, the specific complaints put forward by the applicant are, even at best for the applicant, not “enhanced” by these authorities. In any event, the following may be said with reference to the current circumstances.
First, as was made clear in Minister for Immigration & Border Protection v CQW17 [2018] FCAFC 110 at [36], the requirements of s.473DD(a) and (b) are cumulative. That means that the IAA is: “therefore prohibited from considering new information unless it is satisfied of the matters in subparagraphs (a) and (b)” (of s.473DD).
Second, in his submissions before the Court the applicant relied on BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958; (2017) 254 FCR 221 (“BVZ16”) at [8] and [9]. At [9], White J stated that while the requirements of subparagraphs (a) and (b) are cumulative, they “may nevertheless overlap to some extent”. His Honour explained:
“… The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.” (at [9])
This view was “affirmed” in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111; (2017) 158 ALD 198 (at [102] and [103], and see CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192; (2017) 257 FCR 148 at [17] and [18], and DYS16 v Minister for Immigration & Border Protection [2018] FCAFC 33 at [31] to [33]).
The applicant’s written submissions describe the “new information” as being the “2015 Report”. The applicant described as being “at the heart” of his ground, the contention that the IAA relied on a “wrong construction” of s.473DD and therefore failed to consider the 2015 Report.
The written submissions assert that on a proper construction of s.473DD(b)(i), the IAA was required to give the applicant an opportunity to advance his arguments and explanation, in particular for the purposes of the requisite satisfaction contemplated by s.473DD(b)(i).
The applicant’s ground and written submissions directed attention to the following from the IAA decision record:
“5. The submission included a link to what the applicant refers to as “country information on Sri Lanka”. The link is to the “Sri Lanka Country Reports on Human Rights Practices 2015 Sri Lanka” (sic) published by the US State Department on 25 June 2015 (the report). I have formed the view that the report is new information for the purposes of s.473DD of the Act. I note that on 3 April 2016 the applicant’s representative provided a written submission to the delegate referring to the ‘Country Reports on Human Rights Practices for 2013’ and ‘US State Department Report on Human Rights Practices in Sri Lanka’ and. In the context of that submission, I take this latter reference as a reference to the 2013 and not the 2015 report.
6. The applicant has not provided an explanation why the information could not have been given to the Minister before the decision was made nor has the applicant submitted that is it credible personal information which was not previously known and may have affected consideration of his claims had it been known.
7. The report is country information. The report’s publication date pre-dates the applicant’s SHEV interview and it is freely available on the US Department of State website. The applicant was represented before the Department by a registered migration agent, who was also present at the interview. I note that following his SHEV interview the applicant provided a submission to the Department in support of his application referring to an earlier US State Department Report. I am not satisfied ss.473DD(b) is met. Nor am I satisfied that there are exceptional circumstances to justify considering the new information. I am, accordingly, unable to consider it.
8. In the applicant’s post-decision submission dated 23 June 2016 the applicant claims he has been targeted because he is a Tamil and because of his father’s membership of the UNP. I note that the applicant raised the issue of general societal discrimination against Tamils in his arrival interview and also raised the issue of the UNP membership of his father in his post SHEV interview submission. On that basis it is not new information, and I have considered it.” (CB 252 – 253)
In oral submissions before the Court, the applicant appeared to raise new arguments not immediately apparent from the ground as pleaded and the written submissions. The matters raised by the applicant before the Court are as follows.
First, in the context of what was said in BVZ16, the applicant submitted that the IAA wrote to the applicant on 14 June 2016 and acknowledged receipt of the referral of the delegate’s decision to it by the Secretary of the Minister’s department (at CB 241 – 242).
In that letter the IAA stated, amongst other things (CB 241):
“…We can only consider new information in limited circumstances, which are explained in the attached fact sheet and Practice Direction…Please see the attached information sheet and Practice Directions for further information.”
The complaint before the Court was that no “fact sheet or practice direction” was attached to the letter. This was described as a “critical” aspect of the applicant’s ground.
It must be said that the applicant’s submissions did not satisfactorily explain how this claimed omission related to the applicant’s ground two.
As set out above, ground two asserts that the IAA “adopted a wrong construction of section 473DD”. The submissions, however, embarked on a long, and it must be said convoluted, exposition leading to what apparently was the proposition that the applicant was not put on notice of the capacity to make submissions, such as to satisfy the IAA that the “new information” (the 2015 report) was not, and could not have been, provided to the Minister (with reference to s.473DD(b)(i)).
The applicant’s submission fails at the factual level when proper regard is had to the evidence before the Court.
The same letter on which the applicant now relies contains, at the foot of the letter under the heading of “Attachments”:
“Practice Direction for the Applicants, Representatives, and Authorised Recipients.”
The actual attachment is not reproduced in the Court Book following the reproduction of the letter. However, the following is also in evidence before the Court.
There is a copy of an email sent by the IAA to the applicant on 14 June 2016 (that is the same date as the letter referred to by the applicant now) (CB 225). The email was directed to the email address provided by the applicant for the purposes of his application for the protection visa (see CB 129). That document was provided to the IAA by the Secretary of the Minister’s department pursuant to s.473CB of the Act (see [3] at CB 252).
This email attaches a letter from the IAA to the applicant which is in identical terms to the letter reproduced at CB 241 and CB 242, and on which the applicant now relies (CB 226 – 227). Attached to that letter was the “Practice Direction for Applicants, Representatives, and Authorised Recipients” (CB 235 – 238). Also attached was information about the IAA in English and in Tamil (at CB 228 – 234).
It appears that the email (and the attachments) was returned to the IAA as “undeliverable” (see CB 239). However, the IAA then sent another copy of the acknowledgement of referral letter to the applicant’s home address (CB 241 - 242).
Before the Court there was no submission, nor importantly any evidence, to say that the applicant did not receive the letter. To the contrary, there is evidence that the applicant did receive the “acknowledgement of referral” letter. In his own written submissions to the IAA of 23 June 2016, the applicant specifically states: “I refer to your acknowledgement of referral dated 14 June 2016”.
The applicant’s argument as put by his Counsel simply was that the applicant did not receive the attachments. The only basis for this assumption was the “omission” of a second set of copies of the attachments to the letter in the Court Book.
Finally, the applicant himself in the submissions of 23 June 2016 states:
“I read and have understood the DIBP’s decision, the acknowledgement of referral and Practice Directions for the applicant”. (CB 244)
(Emphasis added)
In all the circumstances, I find that the applicant was given the Practice Direction. The applicant’s submission before the Court is without merit.
In any event, even if the applicant did not receive this document (which I otherwise do not accept), no jurisdictional error is revealed as suggested in the submissions before the Court by the applicant’s Counsel.
The applicant’s submissions proceeded on, and indeed relied on, the proposition that the IAA had failed to discharge its duty to act in a procedurally fair way with the applicant in relation to the question of “new information”. That is, the IAA was obliged to invite the applicant to give further evidence about, or comment on, the matters set out in s.473DD.
As the Minister correctly, in my view, submitted, the nature of the statutory regime under Part 7AA of the Act does not contain matters which were described as the “traditional notions of procedural fairness”. As the Minister submitted, such notions are “significantly constrained” in that regard (see DBE16 v Minister for Immigration & Border Protection [2017] FCA 942 at [65]).
In short, the applicant’s submissions, and ground, appeared not to have understood the difference between the review of decisions under Part 7 of the Act, and the “fast track review” process as set out in Part 7AA and which applied to the applicant’s case.
Further, the words of s.473DD(b)(i), on which the applicant now relies, make clear that it is a matter for “the referred applicant” to satisfy the IAA that the new information was not, and could not have been, given to the Minister.
There is nothing in the terms of s.473DD, or elsewhere in Part 7AA, that requires the IAA to specifically ask the applicant to comment on, or respond to, certain information (as for example in s.424A with reference to the Administrative Appeals Tribunal) or to expose the “issue” of new information (as for example set out in s.425 of the Act).
In the present case, the IAA did not adopt a “wrong construction” of s.473DD by failing to give the applicant the opportunity to comment on, or even satisfy s.473DD, and in particular s.473DD(b)(i).
The applicant had the benefit of assistance from a legal practitioner who was also a migration agent (see CB 169 – 171 and CB 176). That agent made submissions on the applicant’s behalf (CB 175 – 176).
The IAA had specific regard to the applicant’s written submissions of 23 June 2016 (CB 244). The IAA summarised the nature of the submissions at [4] at CB 252:
On 23 June 2016 the applicant provided a written submission. The submission comprises material which re-states and further elaborates on the applicant’s claim. I have had regard to those parts of the applicant’s submission which are in the nature of argument or commentary on the delegate’s decision as I do not regard this as new information.
As is clear from the IAA’s decision (see [78] above), it found that to the extent that the applicant’s submissions addressed matters that were already before the delegate, and the applicant’s commentary on and arguments about the delegate’s decision, such information was not new information. Therefore it considered this information.
Further, it found the applicant’s claim in these submissions that he was targeted because he is a Tamil and his father was a member of the UNP was not new information and also considered it (see [8] at CB 252).
However, and with specific reference to s.473DD, the IAA found that the country information to which the applicant referred in his written submissions (that is the 2015 Report) was new information.
The IAA found that the applicant provided no explanation as to why the 2015 Report could not have been provided to the delegate before the delegate’s decision was made.
Further, it found that there was no submission from the applicant that the information was credible personal information which was not previously known, and if it had been known, may have affected the consideration of his claims.
The IAA also found that the 2015 Report pre-dated the delegate’s decision and was freely available online. Further, he and his representative were present at the interview with the delegate and the applicant had the further opportunity to raise it in the post interview written submissions.
The IAA found s.473DD(b) was not met and that there were no exceptional circumstances to justify considering the 2015 Report (s.473DD(1)(a)).
The IAA’s findings were all reasonably open to it on what was before it. Its reasoning was cogent and probative of the material before it. For immediate purposes, I agree with the Minister that the IAA did have regard to the cumulative requirements in s.473DD, and made findings, in that sense, as to both parts of s.473DD(b). Further, I cannot see that it adopted a “narrow construction of “exceptional circumstances” as asserted in the applicant’s written submissions to the Court, which in any event were not further, or satisfactorily, explained in oral submissions before the Court.
In all, ground two is not made out.
Conclusion
Neither ground of the amended application, nor the applicant’s written and oral submissions, reveal jurisdictional error in the IAA’s decision. It is appropriate to dismiss the application to the Court. I will make the appropriate order.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 14 December 2018
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