CHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1395

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1395

File number(s):	SYG 1662 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	22 June 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – whether the Authority properly exercised its discretion under ss 473DC and 473DD of the Migration Act 1958 (Cth) – distinction between getting new information and considering new information – whether the Authority erroneously construed the power being constrained by the requirement of a need for exceptional circumstances to get new information – whether the Authority misunderstood the request for an interview made by the applicant – no jurisdictional error – amended application dismissed
Legislation:	Migration Act 1958 (Cth) div 3; sub-div C; pt 7AA; ss 5H(1), 36(2)(a), 36(2)(aa), 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 476
Number of paragraphs:	33
Date of hearing:	22 June 2021
Place:	Sydney
Counsel for the Applicant:	Mr G I Foster
Counsel for the first respondent:	Mr T Reilly

ORDERS

SYG 1662 of 2017

BETWEEN:

CHP17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	22 JUNE 2021

THE COURT ORDERS THAT:

1.The amended application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $7,467.00. 

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 3 May 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“the Visa”). 

2. The applicant is a citizen of Sri Lanka, and his claims were assessed against that country. The applicant was also found to be a Tamil from the Eastern Province.

3. The applicant claimed to fear harm from a grease man attack and alleges that he was kidnapped.  The applicant also feared harm due to his father having worked for the Liberation Tigers of Tamil Elam (“the LTTE”). 

4. On 22 September 2016, the delegate found that the applicant failed to meet the criteria for the grant of the Visa. 

5. On 23 September 2016, the Authority wrote to the applicant, explaining that the application for the Visa had been referred to the Authority for review. The Authority provided an attached facts sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions.

6. In its reasons, the Authority identified the background to the Visa application and had regard for the information under s 473CB of the Act. The Authority considered the new information consistent with the requirements, taking into account the whole of the provision of s 473DD of the Act.

7. The Authority also turned to an invitation that the applicant made in his submissions, dated 19 October 2016, asking the Authority to contact him if any concern arises before a decision is made. The applicant’s submissions asserted that the applicant trusted the review application will be accorded with natural justice and:

   Please provide me with an opportunity to provide any information you think relevant before you make a decision on your review.

8. The applicant’s submissions then said:

   I am willing to attend to the IAA and trust the IAA will invite me to appear before the IAA to give further evidence and present my oral evidence if only any issues arise, even after this submission, when the IAA review no doubt before it makes a decision.  Should you have any queries in respect of this review generally and or in respect of this submission, please do not hesitate to contact me.

9. The Authority was not satisfied that it was appropriate to exercise its powers under s 473DC(3) of the Act, and the Court will return to the reasoning shortly.

10. The Authority summarised the applicant’s claims. Due to inconsistencies in the applicant’s evidence, the Authority was not satisfied that the applicant’s home village or neighbouring village were attacked by a grease man in 2010. The Authority found that there is only a remote, and therefore not a real, chance that the applicant will face harm from a grease man, now and in the reasonably foreseeable future in Sri Lanka.

11. The Authority referred to the entry interview, in which the applicant made no reference to any abduction. The Authority identified the inconsistencies in the applicant’s claims in that regard as undermining his credibility.

12. The Authority rejected that the applicant’s father was first forced to work or worked with the LTTE. The Authority rejected that the applicant was abducted and held by abductors and or the Karuna group in 2010. The Authority rejected that the abductors and or the Karuna group made further attempts to extort money or threaten the applicant’s family in 2012 or 2014.

13. The Authority found that the applicant had fabricated these claims so as to create a basis upon which to apply for protection. The Authority was not satisfied that the applicant faced a real chance of serious harm from the Sri Lankan authorities, the abductors, the Karuna group, or any other armed groups for a reputed pro-LTTE or anti-Sri Lankan Government political opinion, by reason of his age, his Tamil ethnicity, or being born in the Eastern Province, now or in the reasonably foreseeable future if the applicant returns to Sri Lanka.

14. The Authority was not satisfied that the applicant faced a real chance of serious harm from Sri Lankan authorities due to being a failed asylum seeker now or in the reasonably foreseeable future if he returns to Sri Lanka. The Authority was not satisfied that any process or penalty the applicant may face due to his illegal departure would cause due persecution for the purpose of the Act. The Authority was not satisfied that the applicant has a well-founded fear of persecution.

15. Accordingly, the Authority found that the applicant did not meet the definition requirements of a refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

16. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Sri Lanka, there was a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act. Consequently, the Authority affirmed the decision of the delegate under review. 

17. These proceedings were commenced on 30 May 2017, and were fixed for hearing today, 22 June 2021.

    THE GROUNDS

18. An amended application was filed on 20 July 2020. The two grounds in the amended application are as follows:

    Ground 1

    REMOVED

    Ground 2

    REMOVED

    Ground 3

    The IAA erred when it considered ‘I am conducting a fast track review. My discretion to use my power under S 473DC (3) to receive new information orally from the applicant at an interview is for instance where I consider it to be relevant to do so. I do not have a duty to give the applicant an interview just because he requests it. Further, the proper exercise of my discretion to use my power in S 473DC to give the applicant an interview is subject to the restrictions in S 473DD. For those reasons I consider it would be an improper use of my discretion to give an interview to the applicant in the way the applicant has requested,…’.

    Particulars

    i.Paragraph 6

    ii.The IAA decided not to invite the Applicant on the bases that may have included

    a.It was conducting a fast track review;

    b.Its discretion to use the power under S 473DC (3) of the Act to receive new information orally from the applicant at an interview is for instance where IAA considered it to be relevant to do so;

    c.The IAA does not have a duty to give the applicant an interview just because he requests it;

    d.The proper exercise of the discretion to use the IAA’s power in S 473DC to give the applicant an interview is subject to the restrictions in S 473DD the S 473DD;

    iii.The Applicant takes no issue with grounds a, b, or c above;

    iv.However, S 473DC is not subject to the restrictions of, or dependent upon, S 473DD;

    v.S 473DC allows the IAA to get any documents or information that

    a.Were not before the Minister when the Minister made the decision under S 65; and

    b.The Authority considers may be relevant.

    vi.S 473DD prevents the IAA from considering any new information unless ….[Ss (a) & (b)];

    vii.The power to exercise the discretion under S 473DC is accordingly available where 473DC (1) (a) and (b) are satisfied;

    viii.S 473DD is not a relevant matter the IAA was required to, or could, take into account when deciding whether to exercise its discretion to use the power under S 473DC (3) to receive new information

    ix.Accordingly, as the reason ‘the proper exercise of my discretion to use my power in S 473DC to give the applicant an interview is subject to the restrictions in S 473DD.’ Is not legally valid and, as this was one of the reasons upon which the IAA based its decision to refuse the Applicant’s request to give him an interview, the IAA thereby committed a jurisdictional error.

    Ground 4

    The IAA erred when it considered the Applicant requested ‘he have a second opportunity to put forward all his claims orally and to provide new information.’ when this summarisation of what the Applicant did request was not accurate. As a result, the IAA erroneously ‘therefore consider[ed] it reasonable to make a decision without inviting the applicant to an oral interview.’, such consideration amounting to a jurisdictional error.

    Particulars

    i.Paragraph 6

    ii.The Applicant’s request was stated by the IAA as follows: ‘The applicant states I should invite him to give further evidence and present oral evidence before I make a decision.’;

    iii.This request does not overtly include a request, or implicitly include a request, that the Applicant ‘have a second opportunity to put forward all his claims orally’, as understood by the IAA;

    iv.The request merely was for an opportunity to give further evidence and present oral evidence;

    v.Accordingly the IAA misunderstood the nature of the Applicant’s request before declining to exercise its discretion under S 473DC of the Act, thereby failing to properly review the Applicant’s claims under s 473DB of the Act and so committing a jurisdictional error.

    GROUND 3

19. Mr Foster, counsel on behalf of the applicant, contended that the Authority, in paragraph 6 of its reasons, had erroneously assumed that there must exist exceptional circumstances before the Authority could exercise its power under s 473DC(3) of the Act.

20. What was said by the Authority in paragraph 6 of its reasons is as follows:

    The applicant states I should invite him to an interview to give further evidence and present oral evidence before I make a decision. I am conducting a fast-track review. My discretion to use my power under s.473DC(3) to receive new information orally from the applicant at an interview is for instances where I consider it to be relevant to do so. I do not have a duty to give the applicant an interview just because he requests it. Further, I consider the proper exercise of my discretion to use my power in s.473DC to give the applicant an interview is subject to the restrictions in s.473DD. For those reasons, I consider it would be an improper use of my discretion to give an interview to the applicant in the way the applicant has requested, which is essentially a request he have a second opportunity to put forward all his claims orally and to provide new information. I therefore consider it reasonable to make a decision without inviting the applicant to an oral interview.

21. Mr Foster contended that the reference to the restrictions in s 473DD of the Act, and the reference to “For these reasons” and “improper use of my discretion”, supported the Court inferring that the Authority had assumed there must exist exceptional circumstances before exercising power under s 473DC of the Act. 

22. The Authority’s reasons are not to be read with a keen eye for error. Nowhere in its reasoning in paragraph 6 does the Authority identify such an assumption.

23. Within the Act, s 473DC appears in sub-div C of div 3 of pt 7AA, and concerns the getting of new information. Section 473DC defines the content of new information. Section 473DD addresses considering new information. The exercise of considering the new information is clearly different from the exercise of getting the information.

24. The two different steps in that regard are clearly reinforced by the procedural fairness obligation identified in s 473DE and the work done by s 473DF of the Act that extends to new information obtained under s 473DC, or and new information within s 473DE of the Act.

25. The reference to “an improper use of my discretion” makes not reference to exceptional circumstances and is consistent with a discretion at large. The reference to “the proper exercise of my discretion” supports the Authority understanding it had a discretion at large. The reference to “For these reasons” picks up the three preceding sentences that reflect no error as to the scope of the discretion. It does not support the implication that the Authority has erroneously construed the power as being constrained by the requirement of a need for exceptional circumstances to get new information.

26. Having received new information, that new information is the subject of the other provisions, including s 473DD of the Act. The word “restrictions” does not, on a fair reading, support the Authority having implied a constraint on the exercise of the discretionary power under s 473DC(3) of the Act. Rather that reference is consistent with the reality correctly recognised by the Authority of there being restrictions in s 473DD. The reference to restrictions should not be read as implying an unexpressed assumption as to a need for exceptional circumstances to exercise the discretion.

27. No jurisdictional errors, as alleged by Mr Foster, arise in Ground 3. 

    GROUND 4

28. In relation to Ground 4, Mr Foster says that the Authority misunderstood the nature of the request made by the applicant. 

29. On a fair reading, the Authority’s reasons in paragraph 6 do not reflect any misunderstanding of the applicant’s application, which was a general invitation to conduct a further interview. It was not a topic specific request. It was a request at large and fairly characterised as a second opportunity to put forward all the applicant’s claims orally and to provide new information. 

30. Given the structure of pt 7AA of the Act and, in particular, the obligation under s 473CA and the work done by ss 473DA and 473DB of the Act, it is clear that subject to pt 7AA, the Authority was to conduct the required review of the review material without accepting or requesting new information and without interviewing the referred applicant. In that context, the characterisation of an erroneous or improper use of the Authority’s discretion does not reflect error in the understanding of the request that was being advanced. It was a request at large to interview and get new information which, subject to the provisions of pt 7AA, the authority is not required to do.

31. The Authority provided an evident and intelligible justification for not exercising the power under s 473DC(3) of the Act, being that the applicant, in substance, was seeking a second opportunity to put forward all his claims orally and to provide new information which was not required by the statutory framework of pt 7AA.

32. No jurisdictional as alleged in Ground 4 is made out.

33. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 22 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 22 September 2021