CHK17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 28
Federal Circuit and Family Court of Australia
(DIVISION 2)
CHK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 28
File number: SYG 1660 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 30 January 2023 Catchwords: MIGRATION – Immigration Assessment Authority – Protection visa – whether Tribunal gave proper consideration. Legislation: Migration Act 1958 (Cth) ss 473, 474 Migration Regulations 1994 (Cth) cl 790.221 of Schedule 2 Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
AUS17 v Minister for Immigration [2020]HCA 37
AVQ15 v Minister for Immigration [2018] FCAFC 133
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
MZZJO v Minister for Immigration [2014] FCAFC 80
Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 16 December 2022 Date of hearing: 16 December 2022 Place: Parramatta Counsel for the Applicant: Mr Issa Counsel for the Respondents: Mr Johnson ORDERS
SYG 1660 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
30 January 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 is to pay the first respondents costs, fixed in the amount of $7,853.00.
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 HUMPHREYS
introduction
The applicant is a citizen of Sri Lanka. He arrived in Australia in 2012. In 2016, the applicant applied for a Temporary Protection visa (“TPV”) due to claiming to fear harm on the basis of his actual or imputed political opinion.
On 23 January 2017, a delegate of the Minister for Immigration (“a delegate”) refused to grant the applicant his TPV. The applicant’s application was referred to the Immigration Assessment Authority (“the Authority”) pursuant to s 473CC of the Migration Act 1958 (Cth) (“the Act”).
On 8 May 2017, the Authority affirmed the decision of the delegate not to grant the applicant his TPV. The applicant now seeks judicial review of the Authority’s decision in this Court.
The authority’s decision
Paragraphs 1 and 2 of the Authority’s decision record outline the background of the applicant’s TPV application.
In paragraphs 3 to 10, the Authority considers the information that was before it. On 24 February 2017, the Authority received a submission from the applicant’s representative which included material that was and was not new information.
The Authority received the United Nations Human Rights Council report of 2016 which was considered to be new information. The Authority was not satisfied that the applicant’s submission explained why the report could not have been given to the delegate or how it could be considered credible personal information.
The applicant’s submissions referred to the following claims that were not before the delegate:
•The applicant’s brother and uncle were crew members of an illegal boat venture to Australia.
•The applicant’s uncle was tortured by the Sri Lankan police after he was returned to Sri Lanka.
•The applicant will be charged under s 45C of the Immigrants and Emigrants Act of Sri Lanka due to his link to his brother and uncle.
•An audio recording containing details of the applicant’s identity and protections claims was misplaced, subject of a data breach, and/ore is in the hands of the Sri Lankan government.
•The delegate’s decision was communicated to a third party without the applicant’s knowledge.
In relation to the claims that relate to the applicant’s brother and uncle, the Authority noted that these were not advanced in his TPV application or at any other time. The Authority found that the events pre-dated the delegate’s decision and that the applicant had not provided any reason as to why the information was not provided to the delegate. Accordingly, the Authority was not satisfied that the new claims represented credible personal information or could not have been provided before the delegate’s decision was made.
The Authority states that the claim in relation to the missing audio recording was not raised as a protection ground prior to the delegate’s decision, however it was information that was before the delegate. The claim that the audio recording was subject to a data breach and/or was in the possession of the Sri Lankan government was new information. The Authority was unsure whether the new information was said to have occurred after the delegate’s decision and so it was not clear whether it could have been provided to the delegate before the decision was made. However, the Authority was satisfied that this new information was credible personal information such as to satisfy s 473DD(b)(ii) of the Act and that there were exceptional circumstances to justify considering this new information pursuant to s 473DD(a) of the Act.
The Authority outlined the applicant’s claims for protection at paragraph 11 as follows:
•The applicant is a Sinhalese male from the Western province;
•The applicant was a member of the ‘street drama protect group’ for many years. He participated in a protest in June 2009;
•The applicant was the President of the National Fisheries Solidarity Movement’s (NFSM) youth wing from March 2010 until August 2012. The NFSM campaigned against various aspects of state policy affecting the fishing community. The applicant was a proactive leader who distributed leaflets, acted in street plays, posted posters, and addressed meetings;
•In November 2010, the applicant was assaulted by the Sri Lankan police while posting street posters. Following the assault, the applicant was questioned by officers of the Criminal Investigation Department (CID) about his political activities;
•The applicant headed the regional youth movement in the precessions held for celebration of Fisherman’s Day (21 November 2011) and Human Rights Day (10 December 2011);
•In around January 2012, the applicant was arrested and detained by the Sri Lankan police. Following his release, the applicant went into hiding for two weeks;
•In February 2012, the applicant led a youth protest in response to rising petrol and kerosene prices. He was assaulted by the police;
•Following this protest, the applicant and the senior membership of the NFSM were intimidated by the police;
•The applicant and the NFSM national convenor received death threats;
•In May 2012, the applicant was forced to go into hiding for two to three months;
•In mid-2016, the police went to the applicant’s home in Sri Lanka looking for him;
•If he returned to Sri Lanka, the applicant fears harm from the CID, the police Intelligence Unit, and the State Intelligence Services on account of his profile as a political human rights activist;
•A digital recording of the applicant’s first TPV interview on 15 June 2016 has gone missing;
•The delegate’s decision of 25 January 2017 was communicated to an unauthorised third party.
In paragraphs 12 and 13, the Authority outlines the refugee assessment and what is well-founded fear of persecution. At paragraph 15, the Authority accepts the applicant’s identity as being a Sinhalese male from the Western province.
At paragraph 30, the Authority states that it was not persuaded that the applicant being scared when arriving in Australia and that he may have been advised to not tell the truth were adequate reasons for explaining the many discrepancies in the applicant’s evidence, including the large number found within the TPV application alone. At paragraph 31, the Authority states that it was implausible that the applicant could not remember the name of the youth movement for which he was the president, or that he could not recall his age when he joined the movement. The Authority further found that it was implausible that the applicant could not remember details about the organisation given his claimed profile and level of involvement.
At paragraph 35, the Authority was not satisfied that the applicant was a person who the police were seeking to arrest as claimed. At paragraph 36, the Authority found that the applicant’s evidence in relation to events that followed his claimed arrest were vague and evasive, and including inconsistencies, which led the Authority to conclude that the applicant was not recalling a genuine personal experience.
At paragraph 37, the Authority considered the inconsistencies to be significant and undermined the applicant’s credibility. The Authority accepted that it was plausible that the applicant participated in protests on issues that affected his local community, however it did not accept that the applicant came to any adverse attention of the Sri Lankan authorities on account of his or his family’s involvement in such protests. The Authority did not accept the claim that the applicant was the president of either of the youth political parties, nor that he headed movements or protests, addressed meetings, or educated others in relation to the impacts of governmental policy. The Authority did not accept that the applicant was assaulted, arrested or detained by police due to his participation in protests in Sri Lanka. The Authority found that the applicant was a low-level participant in protests relating to issues such as fisherman’s rights and oil prices. As such, the Authority was not satisfied that the applicant faced a real chance of serious harm on account of his activist political human rights related profile upon his return to Sri Lanka, at that time or in the foreseeable future.
At paragraph 38, the Authority considered the applicant’s heart condition. As the Authority had already found that the applicant did not have an adverse profile with the police, the Authority rejected the applicant’s claim that he stopped receiving treatment for his condition due to the police informing the hospital that they had to be informed if the applicant came in for treatment.
At paragraph 40, the Authority states that it was plausible that the applicant may have experienced some societal discrimination due to his inability to continue studying, however it was not satisfied that such treatment constituted serious harm as defined by the Act. The Authority found that it was more likely that the applicant was in fact unable to pursue a secondary education on account of his inability to read or write. At paragraph 41, the Authority found that the applicant did not face any significant barriers to being able to obtain employment or that he would be denied access to basic services that threaten his capacity to subsist upon his return to Sri Lanka, at that time or in the foreseeable future.
At paragraph 42, the Authority noted the applicant’s evidence that his uncle and his brother arrived in Australia on separate boats, however he did not advance any claim that he feared harm in Sri Lanka on account of his brother’s or his uncle’s profiles. The Authority was therefore not satisfied that the applicant had a well-founded fear of harm of persecution on account of his brother’s and/or his uncle’s profiles.
At paragraph 45, the Authority stated that it was satisfied that the audio recording of the applicant’s interview on 15 June 2016 had been misplaced or lost by the Department of Immigration. As there was no evidence to indicate that the recording was lost or taken following a data breach, or that it was in the possession of the Sri Lankan authorities, the Authority found the claim to speculative and it was not satisfied that the applicant faced a real chance of serious harm in Sri Lanka, at that time or in the foreseeable future, in relation to the missing audio recording.
At paragraph 47, the Authority states that there was no evidence before it that the delegate’s decision had been sent to an unauthorised third party. It was therefore not satisfied that the delegate’s decision being improperly disclosed as claimed meant that the applicant faced a real chance of serious harm in Sri Lanka.
At paragraph 50, the Authority accepted that the applicant may be identified upon return to Sri Lanka as a returning asylum seeker, regardless of the fact that the applicant’s brother was made aware that the applicant had sought protection, given that he did not depart Sri Lanka through an official, legal channel and because he would return on a temporary travel document. The Authority noted that the risk of mistreatment for majority of returning asylum seekers was low and it was not satisfied that the applicant faced a real change of serious harm as a result of the Authority’s disclosure of his personal information to his brother.
Paragraphs 51 to 58 deal with the applicant’s illegal departure from Sri Lanka and his possible return as a failed asylum seeker. The Authority found that as the applicant departed Sri Lanka without a passport, he may be found to have committed an offence under the Immigrants and Emigrants Act (“IAEA”). The Authority found that the applicant would be charged and fined under the IAEA and then released. If the applicant plead not guilty to an offence under the IAEA, he would either be granted bail on a personal surety or have a family member as a guarantor. As the applicant was only an illegal departee, from Sri Lanka, the Authority found that he would not face imprisonment. The Authority was not satisfied that the applicant would face any real chance of serious harm during any brief time spent in detention or that he was at an elevated risk of harm due to his heart condition.
It was found that the imposition of any fine, surety or guarantee would not of itself constitute serious harm. The Authority was satisfied that the provisions and penalties of the IAEA are laws of general application that apply to all Sri Lankans equally. The Authority was also satisfied that that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purposes of the Act.
At paragraph 58, the Authority found that, having regard to the applicant’s claims individually and cumulatively, the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act. At paragraph 59 it was found that the applicant did not meet the requirements of the definition of a refugee under s 5H(1) , and therefore did not meet s 36(2)(a) of the Act.
Paragraphs 60 to 67 deal with the complimentary protection assessment. The Authority concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of bring returned from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm. The applicant therefore did not meet s 36(2)(aa) of the Act.
The grounds of judicial review
The applicant’s single ground of judicial review is contained within an Initiating Application filed with the Court on 27 April 2022. The ground is as follows verbatim:
1. The Second Respondent (Authority) made a jurisdictional error by not giving proper consideration to the Applicant’s case.
a.In relation to the Authority’s duty to give proper consideration to the Applicant’s case, the question of whether the Authority has failed to effect active intellectual engagement is a matter of impression in the circumstances of the case, necessitating a qualitative assessment of whether in substance the requisite consideration occurred: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89];
b.Proper consideration requires more than mere acknowledgement of the Applicant’s case and may require the Authority to make specific findings of fact with respect to the case: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 289 at [39];
c.The Authority found at paragraph 8 of its decision that it would not admit the Applicant’s claim of harm relating to his uncle and brother;
d.The Authority rightly observed at paragraph 10 of its decision, albeit in relation to a separate matter, that “credible personal information” for the purposes of s 473DD(b)(ii) of the Migration Act 1958 (Cth) referred to information which was not inherently false or unbelievable: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [75], extension of time for special leave refused [2021] HCASL 51;
e.The Authority did not properly consider, in the sense of actively engaging with, the question of whether the Applicant’s claims relating to his uncle and brother were credible and, in particular, the reasons of Authority did not evince a basis for the conclusion that the Authority considered those claims inherently false or unbelievable.
The applicant’s submissions
The applicant submitted that cl 790.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) was the critical provision in this matter. The Authority is bound by stringent restrictions before it can consider new information as set out in s 473DD of the Act. There are two limbs to s 473DD(b) of the Act which the Authority must consider before it has regard to the ‘exceptional circumstances’ referred to in s 473DD(a) of the Act: (see; AUS17 v Minister for Immigration [2020]HCA 37) (AUS17).
The applicant submitted that s 473DD(b)(ii) of the Act was of critical importance. This provision refers to new information which 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. It was submitted that, in this context, known means ‘known to the Minister’. It is enough that the credible personal information was not previously before the Department, even if it was previously known to the applicant: (see; Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16).
The applicant submitted that proper consideration requires active intellectual engagement with the applicant’s case. It was submitted that the applicant’s case for this purpose extends to matters arising from findings of fact made by the Tribunal: (see; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89).
The applicant conceded that the Authority appeared to have been aware of the applicable statutory meaning of the expression ‘credible’, however it was submitted that it had not given proper consideration to that criterion. The Authority reasoned that, as new information was not earlier raised, it was not credible in the relevant sense and this was an error. Merely because a claim has earlier been omitted by an applicant for a Protection visa does not mean that the claim should necessarily be disbelieved: (see; MZZJO v Minister for Immigration [2014] FCAFC 80; AVQ15 v Minister for Immigration [2018] FCAFC 133).
The applicant submitted that, in relation to materiality, it was clear enough that the position of the applicant’s brother and uncle were relevant to the applicant’s case and was discounted from consideration by the Authority after omitting the new information (see; Court Book pages 312 at [42]). The Authority also considered the applicant’s position in relation to the illegal departure without regard to the brother and uncle (Court Book page 315 at [56]). It was submitted that it was a realistic conjecture that the Authority’s consideration of applicant’s case, particularly in relation to illegal departure, could have been affected had the new information been properly tested for credibility in the relevant sense and then admitted.
The first respondent’s submissions
The first respondent submitted that the applicant’s contention is not that the Authority failed to address the criteria in s 473DD(b) of the Act, but that in doing so it misconstrued or misapplied the statutory criterion.
The first respondent submitted that the Authority did not conclude that the applicant’s new claims were not credible personal information merely because they were omitted from the Protection visa, rather it formed the conclusion by reference to the following:
•The uncle and brother had (according to information in the referred materials) arrived in Australia in 2012 [ie, before the applicant lodged his TPV application];
•The applicant advanced no claim in his TPV application, or at any other time, that his uncle and brother were crew members of an illegal boat venture to Australia;
•The applicant advanced no claim that his uncle was tortured by Sri Lankan authorities upon his return to Sri Lanka; and
•The applicant was legally represented in respect of his TPV application, and these matters have not previously been mentioned.
The first respondent submitted that the Authority formed the view by reference to the circumstances it referred to, that the new claims were evidently not credible: (see; CSR16 v Minister for Immigration and Border Protection [2018] FCA 474).
The first respondent submitted that, even had the Authority misapplied s 473DD of the Act, the error could not be said to have been material as the ultimate and inevitable consequence would have been that the new claims would have been rejected as untrue: (see; ABH18 v Minister for Home Affairs [2020] FCA 620 (ABH118) at [44] – [45]).
consideration
The applicant relies upon a single ground of judicial review asserting that the Authority did not consider, “in the sense of actively engaging with” the question of whether the claims of his brother and uncle were credible. The Court however agrees with the first respondent that the real question is whether the Authority properly understood and applied s 473DD of the Act in considering the purported new information relating to the brother and uncle.
As set out in AUS17 when considering ‘new information’, the Authority must first consider if the information meets either of the criteria in s 473DD(2)(b) of the Act in that it either was not and could not have been provided to the Minister before the decision was made
(s 473DD(b)(i) of the Act), or is credible personal information that was not previously known and, if it had been known may have affected the consideration of the applicant’s claims (s474DD(b)(ii) of the Act).
In CSR16 v Minister for Immigration and Border protection [2018] FCA 474 at [41] – [42] Bromberg J stated:
[41] In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEALv Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
In this case, the Authority found at paragraph 8 of its decision that the information was both not credible and could have been provided before the delegate’s decision was made. In considering if the information was ‘credible’, the Authority clearly understood the correct meaning of this term, as this is set out at paragraph 10. The Authority set out clearly at paragraph 8 why it did not consider the claims to be credible for the purposes of s 473DD(b)(ii) of the Act.
At paragraph 8 of the Authority’s decision, the Authority noted that the applicant advanced no claim in his Temporary Protection Visa application, or at any other time, that his brother and uncle were crew members of an illegal boat venture to Australia. Nor did he advance any claim that his uncle was tortured by the Sri Lankan police after he returned to Sri Lanka. Further, the applicant was legally represented in respect of his Temporary Protection Visa application and the matters were not previously mentioned. It was upon a consideration of these matters, that the Authority formed a view that the information was not credible or could not have been provided before the delegate’s decision was made. The Authority therefore decided not to admit this new information.
The Court is satisfied that the Authority undertook its task in considering this new information in accordance with the relevant requirements of s 473DD of the Act. There is nothing legally unreasonable illogical or irrational, in coming to the conclusion that the Authority did, that the information was not credible in the particular circumstances of this case. The approach taken by the Authority was clearly available to it in the context of the information that was before it and the applicant’s claims. It gave adequate and proper reasons for finding the information was not credible. The Authority did not fail to ‘actively engage with’ the proper considerations when considering whether or not to admit this new information pursuant to s 473DD of the Act.
Further, a conclusion that the information meets either of the criteria in s 473DD(b) of the Act will then inform a consideration of whether or not there are exceptional circumstances such as to admit the information pursuant to s 473DD(a) of the Act. The fact that information may meet the criteria in s 474DD(b) of the Act does not mean, as a matter of certainty, that s 474DD(a) of the Act will be met.
Further, as noted by the first respondent, even if the Court is wrong with respect to the above conclusion, the Court is not satisfied that the error is material, in that any ultimate assessment by the Authority as to whether not the information was true, as opposed to be credible, would have resulted in a rejection of these new claims as untrue: (see; ABH18).
CONCLUSION
In these circumstances, the Court is not satisfied any jurisdictional error exists in the decision of the Authority.
Accordingly, the application must be dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 30 January 2023
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