CJF18 v Minister for Immigration
[2019] FCCA 2780
•10 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJF18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2780 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Authority erred in considering new information considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | CJF18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1291 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 September 2019 |
| Date of Last Submission: | 23 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed on 8 May 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1291 of 2018
| CJF18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 April 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from submissions filed on behalf of the Minister.
The applicant is a national of Sri Lanka who claimed to be of Tamil ethnicity and a Hindu.[1] He arrived in Australia at Cocos (Keeling) Islands on 8 November 2012 as an unauthorised maritime arrival[2] and lodged a valid application for a Safe Haven Enterprise Visa (SHEV) on 19 July 2016.[3]
[1] Court Book (CB 63)
[2] CB 45, 63
[3] CB 25-62
In a statement provided with his SHEV application,[4] the applicant claimed to fear harm from the Sri Lankan authorities, including the Criminal Investigation Department (CID), on the basis of his “imputed connection” with the Liberation Tigers of Tamil Eelam (LTTE).
[4] CB 63-67
Between mid-2005 and 2008, the applicant lived in Mullaitheevu, an LTTE controlled area. In 2006, while he was at school, the applicant and other students were required to undertake self defence training with the LTTE. He claimed that he became scared during the training and ran away, and did not return to school because his parents feared he would be forcibly recruited by the LTTE. He stayed at his mother’s house for two years, kept a low profile and worked on the family farm to avoid the LTTE.
In 2008, the applicant moved to Vavuniya, which was under the control of the Sri Lankan Army (SLA). He completed his schooling and began working for the Sri Lankan Red Cross Society. On one occasion he went to Gamini Camp and helped people who were suspected of being involved with or members of the LTTE.
In mid-2009, the applicant returned to Mullaitheevu and was told one of his school friends was kidnapped by the CID, taken to the “4th floor” in Colombo and released after two years. The applicant feared he would be taken as a suspect by the CID because his friend had been taken.
In 2012, the applicant and about five other Tamil men were approached by a Tamil speaking Muslim person, who asked them if they were involved with or knew other people who were involved with the LTTE (the 2012 incident). Two or three days after the 2012 incident the applicant’s friend (RG), who was with him in that group, disappeared. The applicant became concerned that the person who had approached them was with the CID. About three or four days after RG’s disappearance, “someone” went to the applicant’s mother’s house and asked for the applicant. His mother believed they were CID. The applicant left Sri Lanka a few months after RG’s disappearance.
The applicant claimed RG was released two or three years later. He was concerned that RG told the CID the applicant was involved with the LTTE to secure his release. The applicant claimed that since arriving in Australia people had continued to look for him at his mother’s house, and he and his brother were summonsed by the CID to “an interview”. Further, the applicant claimed to fear harm as a failed asylum seeker who would be suspected of being “connected” with the LTTE because he was from an area formerly controlled by the LTTE and he could not avail himself of effective state protection because he feared the authorities, who would be able to find him anywhere in Sri Lanka.
The delegate
By a letter dated 3 February 2017, the applicant was invited to attend an interview with the delegate scheduled for 24 February 2017,[5] which he attended.
[5] CB 81-83
On 16 June 2017, the delegate refused to grant the applicant a SHEV.[6] The delegate found the applicant’s evidence was inconsistent, contradictory and implausible and concluded that he was not a credible witness. The delegate did not accept that the applicant left Sri Lanka because he had a genuine fear of harm from the CID, the SLA, or any other Sri Lankan authority.[7]
[6] CB 94-105
[7] CB 100
The Authority
On 21 June 2017, the matter was referred to the Authority.[8]
[8] CB 110-111
On 15 July 2017, the Authority received a legal submission (Authority submission) prepared by a solicitor and migration agent who was not representing the applicant in an official capacity annexing a letter of support from a Justice of the Peace (JP Letter) and two country information reports.[9]
[9] CB 130-173
In a decision dated 10 April 2018, the Authority affirmed the delegate’s decision on the basis of identified inconsistencies and adverse credibility findings.[10]
[10] CB 202-224
The Authority found the JP Letter was before the delegate and was not new information and had regard to it.[11] However, it rejected the claim raised in the submission that the delegate “showed no interest” in documentary evidence the applicant attempted to submit at the SHEV interview in support his claim that RG was detained in 2012, and found the documentation the applicant submitted to the Authority in support of this claim was new information.[12]
[11] CB 203, [6]
[12] CB 203, [5]
In addition to the legal argument, which it considered, the Authority found the Authority submission contained several new claims.[13] First, the applicant alleged the delegate failed to consider a claim he raised at his arrival interview that he was a member of the Mulliyawallai Sports Club and that the Eelam People’s Democratic Party (EPDP) were present in the area where he lived. The Authority found the applicant did not claim to fear harm in connection with his membership of the sports club or from the EPDP at the arrival interview or before the delegate and rejected any implication arising from the submission that these claims clearly arose on the materials. The Authority found the applicant could have raised these claims earlier but failed to do so and was not satisfied they were credible personal information or that either limb of s.473DD(b) of the Migration Act 1958 (Cth) (Migration Act) was met.[14]
[13] CB 203, [6]
[14] CB 203-204, first dot point
Secondly, the Authority submission raised a claim that the applicant would not have a family member to bail him out if he returned to Sri Lanka and pleaded not guilty to departing illegally. As the delegate had not raised Sri Lanka’s treatment of persons who had departed illegally with the applicant and went on to make findings on this issue, the Authority was satisfied there were exceptional circumstances to justify considering this claim.[15]
[15] CB 204, second dot point
Thirdly, the Authority considered a new claim that the applicant’s father was killed by the SLA may have been made in error, as the applicant had previously claimed his father was still alive. The Authority found that if this claim was not made in error, without further information it was not satisfied that either limb of s.473DD(b) was met.[16]
[16] CB 204, third dot point
The Authority found both country information reports pre-dated the delegate’s decision and rejected the submission that the UN Committee Against Torture report (CAT Report) should be considered because it was “more recent” than the Department of Foreign Affairs and Trade (DFAT) report relied on by the delegate. The Authority found this submission was “misconceived” as the delegate had relied on a January 2017 DFAT report, which was more recent than the CAT Report. The Authority found the applicant had not made any argument about why he could not have provided the reports prior to the delegate’s decision or why it was credible personal information. For these reasons, the Authority was not satisfied the applicant could not have provided the information prior to the delegate’s decision or was credible personal information or that there were exceptional circumstances for considering the reports.[17]
[17] CB 204-205, fourth dot point
Further supporting documents were submitted to the Authority on the applicant’s behalf on 18 July 2017,[18] 19 July 2017[19] and 30 July 2017.[20]
[18] CB174-184
[19] CB 185-189
[20] CB 190-198
The Authority[21] considered the applicant’s emails dated 18 and 19 July 2017 with attachments and found the documents either pre-dated the delegate’s decision or referred to events that pre-dated the delegate’s decision. It found the applicant had not explained why these documents were not sought or provided by the applicant prior to the delegate’s decision and was concerned about the credibility and the veracity of the documents.[22] However, the Authority found there were exceptional circumstances for considering the two news articles attached to the second email dated 18 July 2017 and considered them[23] and found that, as the Red Cross Society card also provided on 18 July 2017 was before the delegate, it was not new information.[24]
[21] at CB 205-207, [7]
[22] CB 207, [8]
[23] CB 207, [9]
[24] CB 207, [10]
The Authority considered the applicant’s email dated 30 July 2017 attaching six photographs, three of which purported to show the applicant’s brother (K) being questioned by the SLA. It found the applicant had provided insufficient information about the claimed interaction depicted in the photographs and was therefore not satisfied that the interaction had any connection to the applicant; the photographs could not have been provided prior to the delegate’s decision; or that they were credible personal information. The Authority was not satisfied that either limb of s.473DD(b) was satisfied.[25]
[25] CB 207-208, [11]
The Authority accepted the applicant was a Sri Lankan national who had been displaced between Mullaitheevu and Vavuniya up until mid-2010;[26] had undertaken training with the LTTE while at school;[27] and kept a low profile out of fear of forcible recruitment.[28] The Authority also accepted that RG was taken and detained by the Sri Lankan authorities.[29] However, the Authority was not satisfied the applicant had any involvement with the LTTE beyond the training he undertook while at school and did not accept he was ever an LTTE member or cadre.[30]
[26] CB 209-210, [14]-[15]
[27] CB 210, [16]
[28] CB 210, [17]
[29] CB 210-211, [19]
[30] CB 210, [18]
The Authority found the applicant gave inconsistent evidence at his arrival interview and in his written claims about the attention he received from the authorities prior to departing Sri Lanka but found he had consistently referred to one incident, namely the 2012 incident. For example, at the arrival interview he claimed that a lot of CID and Muslims had asked him questions about his association with the LTTE, told him they had heard from other people that he had an association with and was a member of the LTTE and threatened to take him like “two other boys”. However, in his written claims the applicant only referred to one incident in 2012 in which he was personally questioned by the authorities about his LTTE involvement.[31]
[31] CB 210-211, [20]
The Authority found there were inconsistencies as to the timing of the 2012 incident and RG’s disappearance and the applicant’s departure from Sri Lanka in October 2012. At the arrival interview, the applicant claimed he: was threatened by the CID in September or October 2012; then left and went to Colombo; and then travelled to Australia 15 days later. However, in his written claims he stated he left for Australia a “few months” after the 2012 incident, RG’s disappearance and somebody coming to his mother’s house looking for him. The Authority found the applicant also “presented” a third version at the interview with the delegate and, for these reasons, was not satisfied the applicant was describing his “genuine life experience”.[32]
[32] CB 211, [21]
The Authority doubted the plausibility of the applicant’s claims that the Sri Lankan authorities were interested in him because he had not claimed to have experienced any adverse attention by the authorities when he lived in Vavuniya (an area controlled by the SLA). It also doubted he would have been permitted to work for the Red Cross if there was suspicion about his LTTE connections. Further, the applicant only claimed to have been questioned a number of years after the civil war ended and, even then, the questioning was “fairly casual”. The Authority found the authorities’ claimed level of interest in him “difficult to reconcile” with the apparent lack of interest in him prior to departing Sri Lanka.[33]
[33] CB 211‑212, [22]
The Authority had regard to the letters submitted to it by the applicant dated 19 December 2012, 18 December 2012 and 16 February 2017 and identified further inconsistencies between those letters and the applicant’s claims. For example, the 16 February 2017 letter claimed the applicant’s mother had three deceased brothers who were in the LTTE and also that the applicant was an LTTE member and was “in [the] searching list”. The Authority found the applicant had not previously raised any of these claims[34] and the letters did not “outweigh” its earlier concerns about the applicant’s evidence. It found the identified “implausibilities and inconsistencies” about the timing of events and the nature of the interest in the applicant was significant and undermined his claims.[35]
[34] CB 212, [23]
[35] CB 212, [24]
Having regard to the applicant’s consistent evidence, his reference to and presentation of the two news articles and relevant country information, the Authority accepted that the 2012 incident occurred and two people, one of whom was RG, were detained by the Sri Lankan authorities. However, it did not accept there was any connection between the 2012 incident and RG’s disappearance or that it led to any adverse interest in the applicant. Nor did it accept the applicant was ever threatened or that the authorities searched for him prior to or following his departure, questioned his family about him, or invited him and his brother to an interview. On the basis of its adverse credibility findings, the Authority was also not satisfied that K went to Switzerland for any reason relating to the applicant. Nor did it accept the applicant was ever identified as a person of interest to the Sri Lankan authorities, including by RG, and found the applicant’s claim that RG provided information about him to the authorities was “far-fetched and speculative”.[36]
[36] CB 213, [25]
The Authority found the applicant did not have a profile of interest to the authorities.[37] The Authority had regard to country information that indicated the political and security situations in Sri Lanka for Tamils had improved since the applicant’s departure.[38] Despite country information that indicated there was a continued military presence in the north of Sri Lanka and that young and middle-aged Tamil men had been surveilled and harassed in the past, the Authority was not satisfied that Tamils from former LTTE controlled areas were perceived as LTTE supporters or anti-government.[39] It considered it was “remote” that the applicant would be viewed as a person of any interest; imputed with views in favour of the LTTE or Tamil separatism and harmed for that reason; or experience surveillance and harassment that would rise to the level of serious harm or lead to the applicant being identified as a person of interest and harmed.[40]
[37] CB 214, [29]
[38] at CB 214, [29]-[30]
[39] CB 214-215, [31]
[40] CB 215, [32]
Based on its assessment of relevant country information and the applicant’s own evidence, the Authority found he had been able to pursue his education and find employment in Sri Lanka, was from a “Tamil-dominated area” and had not claimed any “societal discrimination”. Accordingly, the Authority was not satisfied the applicant faced more than a remote prospect of experiencing discrimination amounting to serious harm.[41]
[41] CB 215‑216, [33]
The Authority accepted the applicant would be brought to the attention of the Sri Lankan government if he returned to Sri Lanka because of the “manner of his return” and that it may be inferred that he had sought asylum in Australia.[42] However, based on its assessment of relevant country information, the Authority was not satisfied that seeking asylum or living abroad would lead to adverse interest or harm, nor was it satisfied that the authorities impute persons who had claimed asylum or departed illegally with an anti-government, pro-LTTE or Tamil separatist opinion or harm them for these reasons. It found any investigation into the applicant upon his return would identify that he was not a person of any interest. Accordingly, the Authority was not satisfied the applicant faced a real chance of harm during the investigation or subsequently in the reasonably foreseeable future.[43]
[42] CB 216, [35]
[43] CB 216‑217, [36]
The Authority accepted the applicant would be identified as a person who departed Sri Lanka illegally and charged with an offence under the Sri Lanka’s Immigrants and Emigrants Act (Immigrants and Emigrants Act). However, as there was no evidence the applicant was involved in people smuggling or was anything other than an ordinary passenger, the Authority found the applicant would only be fined. The Authority accepted the applicant may spend a period of time in custody at the airport or in prison if he arrived on a weekend or public holiday or pleaded not guilty to an offence under the Immigrants and Emigrants Act. The Authority found the applicant had not provided any evidence to indicate why one of his family members in Sri Lanka could not provide bail if it was required and found that his chance of being detained for anything other than a brief period or receiving a penalty greater than a fine was remote.[44] The Authority was not satisfied there was a real chance the applicant would be harmed during the investigation process or during any brief detention or that there was a real chance of mistreatment and found that such treatment was a non-discriminatory application of a Sri Lankan law.[45]
[44] CB 217, [37]-[38]
[45] CB 218, [39]
On the basis of its findings in relation to its refugee assessment and the applicant’s own past history, the Authority found that there was not a real risk that the applicant would experience monitoring, harassment or discrimination to an extent that would amount to significant harm.[46]
[46] CB 219, [45]
Additionally, the Authority was not satisfied the “crowded and unsanitary” conditions the applicant may be detained in while on remand or that the “acts or omissions” of the Sri Lankan officials involved in “this process” were intended to amount to significant harm.[47] Nor was the Authority satisfied that any brief period of detention or any fine would amount to significant harm.[48]
[47] CB 219, [47]
[48] CB 219, [47]-[48]
The Authority otherwise relied on its earlier factual findings that the applicant would not face a real chance of harm in Sri Lanka in the reasonably foreseeable future to conclude that the applicant did not face a real risk of suffering significant harm and did not satisfy s.36(2)(aa) of the Migration Act.[49]
[49] CB 219-220, [49]-[50]
Further background facts concerning “new information”
In general terms, the applicant claimed to fear harm from the Sri Lankan authorities, including the CID, because of his imputed connection to the LTTE. In that regard, and as noted above, the applicant did not provide any submissions to the delegate but did raise certain matters with the delegate at interview and, subsequently, provided the Authority with further documentation.
Early in the interview with the delegate, the applicant, in answer to a question from the delegate asking whether he would like to add or change anything to the SHEV application, stated that there was “a letter which is in my email”.[50] The applicant stated that he was unable to print a copy of the letter, noting that “I thought I would provide a copy of the letter, but now I am unable to take a printout from my email”.[51] It may be inferred that the applicant was referring to an email that he received which had the letter in question as an attachment but which the applicant was unable to print (and therefore bring with him to the interview to give to the delegate).
[50] Transcript (annexed to the affidavit of David Baddeley made on 4 April 2019), page 3, line 41
[51] Transcript page 3, lines 42-44
The delegate then asked the applicant what the letter was about. The applicant stated that the letter was sent “last year”. The applicant indicated that the letter was sent by the CID asking him to come “for an inquiry or interrogation” and the delegate then confirmed with the applicant that this was the letter referred to in his “statement of claim”.[52] It should be noted that the applicant, at [32] of his undated statement supporting the SHEV application, referred to a letter given to his mother asking the applicant and his brother to attend an interview with the CID.[53]
[52] Transcript page 4, lines 8-23
[53] CB 67
The delegate told the applicant the provision of the letter would be discussed at the end of the interview.[54] The delegate then asked the applicant questions about the applicant’s claims; no further reference was made to any additional documents. Towards the end of the interview, the applicant raised the issue of the letter again and the delegate asked him about the letter from the CID.[55] In answer to that question, the applicant stated as follows: [56]
There was a small piece of paper in which the name and address which was given to us by the CID and when my brother and mother was asked to go for inquiry they brought the piece of paper and CID has obtained the letter – piece of paper back. There was a person – there was a JP in Mulliyawalai my mother and brother approached, took the JP with them to the authorities and a letter in detail was given at that time.
[54] Transcript page 4, lines 19-20
[55] Transcript page 21, lines 19-20
[56] Transcript page 21, lines 22-27
The delegate asked who gave “them” the letter.[57] This appears to be a reference to the applicant’s mother and brother. The applicant replied “that person Geppi”.[58] It is not clear to whom the name “Geppi” refers.[59] When asked whether the applicant gave the letter to the Minister, the applicant appears to indicate that at the time when his application was compiled he did not have the letter but only the “small piece of paper” to which he had also referred in his answer set out above.[60]
[57] Transcript page 21, line 29
[58] Transcript page 21, line 31
[59] It is possible that the applicant was trying to say “JP”, see Transcript page 21
[60] Transcript page 21, line 34-43
The applicant then appears to indicate that the “small piece of paper” was not returned or retained and at that point the delegate indicates there will be a discussion about a further period of time to “submit any further documents you’d like to send to the department”.[61] At the end of the interview, the delegate indicates that the applicant will have a further seven days to provide documentation, which the applicant appears to take as a reference to the letter that he was unable to print. The applicant asks the delegate to print the letter but the delegate indicates that this was not possible. However, the delegate tells the applicant that he can forward the email (with the attachment) to the Minister and then provided the applicant the details of the email address.[62]
[61] Transcript page 22, lines 1-3
[62] Transcript page 28, lines 21-38
It appears that, other than these exchanges, the applicant did not identify any specific documents that he proposed to give the delegate or refer to any further documents on which he proposed to rely.
The applicant subsequently, in the Authority submission, referred to the JP Letter. The applicant noted that the delegate had given little weight to a letter dated 19 December 2012 (Coroner Letter) and, in that context, further noted that the “applicant states that he also provided a letter dated 16/02/2017 to the delegate”. This was a reference to the JP Letter. It appears to have been provided to the Authority, among other things, to address concerns that the delegate had about the Coroner Letter.[63]
[63] CB 131
Later in the Authority submission, the applicant referred to the delegate’s finding that the applicant did not provide any supporting evidence for claims concerning the detention of the applicant’s friend, RG. The applicant claimed that he had attempted to provide evidence to the delegate but that the delegate showed no interest in the evidence. The applicant invited the Authority to listen to the recording of the SHEV interview and the migration agent made a submission that any such material may not be “new information” for the purposes of s.473DC(1).[64]
[64] CB 132
In the email dated 18 July 2017 to the Authority, the applicant provided the following documents:
a)an extract from a Tamil newspaper (in translation) dated 7 December 2011. The email from the applicant’s migration agent stated the document was provided to prove that RG had been kidnapped (RG newspaper article);[65]
b)a letter from the applicant’s mother, dated 15 July 2017, about certain events in relation to the applicant. The letter was apparently witnessed by a JP (15 July Letter);[66]
c)a copy of Swiss identity documentation in relation to the applicant’s brother;[67]
d)a letter from a Member of Parliament, dated 12 May 2017, concerning complaints made by the applicant’s mother about the conduct of the CID (12 May Letter);[68]
e)a letter from a Member of the Provincial Council, Northern Province, dated 12 July 2017, about the activities of the CID in relation to the applicant and the applicant’s family (12 July Letter);[69] and
f)a copy of the applicant’s Red Cross identification card from 2010.[70]
[65] CB 175
[66] CB 176
[67] CB 177
[68] CB 178
[69] CB 179
[70] CB 180-181
As noted above, the applicant also provided copies of the police complaints, dated 9 September 2012, 4 August 2015 and 9 April 2016.
In respect of the additional photographs, the applicant’s migration agent noted the photographs had been taken “recently” and that this “new information” occurred in “more recent times”.[71] The applicant claimed that the photographs corroborated his claims.
[71] CB 190
As noted above, the Authority set out its reasons in respect of the further documentation provided by the applicant at [3]-[12] of the decision.[72] Relevantly, the Authority found as follows:
[72] CB 203-208
a)apart from referring to a letter that he was unable to print, it was not apparent that the applicant referred to or unsuccessfully attempted to submit any documentation. The delegate allowed the applicant to provide further documentation afterwards. It did not accept that the documentation provided to the Authority was not “new information” because the applicant attempted to provide it;[73]
b)it accepted that the JP Letter was not new information and considered it. The Authority considered certain information in the JP Letter to be new information and went on to consider whether the requirements of s.473DD were met. It was not satisfied that new information concerning fear of harm in relation to his membership of a sports club or the death of his father at the hands of the SLA (where he had previously claimed that his father was alive) satisfied the requirements of s.473DD(b);[74]
c)it was not satisfied that there were exceptional circumstances that warranted consideration of the CAT Report or the United Nations Special Rapporteur Report (where the information could have been provided earlier and was not personal information);[75]
d)it considered the letters provided by the applicant (being the 12 May Letter, the 12 July Letter and the 15 July Letter referred to above), noting that two of them post-dated the delegate’s decision but referred to events prior to that decision and the third predated the delegate’s decision. It further noted that some of the information in the letters was inconsistent with the applicant’s claims and the 12 May Letter contained no information about the searching or investigation that were said to have occurred;[76]
e)it accepted that the applicant’s brother was in Switzerland and that therefore the Swiss identity documents did not add anything to what had already been accepted;[77]
f)it considered the police complaints, noting that all of them pre-dated the delegate’s decision and further noted that the contents of the documents suggested that the instruction to appear was given to the applicant’s brother rather than the applicant;[78]
g)it considered the applicant’s claim that a letter had been sent to his mother’s house from the CID about the applicant and his brother. It noted that the applicant had referred to a document that he could not print at the delegate interview. It further noted (having summarised the exchanges between the delegate and the applicant) that no document was submitted from the applicant that came from the CID. It noted that the police complaint dated April 2016 was consistent with the timing of the alleged letter. It noted that it was unclear whether the police complaint document was the document to which the applicant referred in his exchanges with the delegate and found that if it was the same document then it was not before the delegate and was “new information”. It also noted that no explanation was provided as to why the 2012 and 2015 complaints were not provided to the delegate;
h)it found that it was not clear that the applicant had ever previously claimed that he had been asked to attend an interview or investigation by the CID prior to 2016. It noted that it was implausible that if the applicant failed to attend the 2012 request that it would be three years before a further request was made. The documents appeared to be internal communications;
i)it found that all of the documents considered pre-dated the delegate’s decision or referred to events that occurred prior to the delegate’s decision. No explanation was provided as to why the documents were not sought or provided earlier (and the applicant provided other material). It had concerns about the credibility or value of the documents and was not satisfied that there were exceptional circumstances that would justify consideration of the new information;[79] and
j)in respect of the additional photographs, no detail had been provided about the questions allegedly asked of the applicant’s brother other than that they were about the applicant’s whereabouts and, without more, the photographs did not evidence any interaction in connection with the applicant. No information was provided as to when the questioning occurred. In those circumstances, the Authority was not satisfied that the requirements of s.473DD(b) were met.[80]
[73] at [5]
[74] at [6]
[75] at [6]
[76] first, third and fourth dot points of [7]
[77] second dot point of [7]
[78] fifth dot point of [7]
[79] at [8]
[80] at [11]
The current proceedings
These proceedings began with a show cause application filed on 8 May 2018. The applicant continues to rely upon that application. The application was, on its face, defective in that it only sought a writ of certiorari but, with the consent of the applicant, that was corrected by me on 7 March 2019. The application thereafter sought also a writ of mandamus. The only ground in the application is that the Authority made the “rong decision”.
The application is supported by an affidavit filed with it which I received. I also received as evidence the court book filed on 27 June 2018 and the affidavit of Mr Baddeley made on 4 April 2019. Annexed to Mr Baddeley’s affidavit is a transcript of the protection interview conducted with the applicant by the delegate on 24 February 2017 referred to above.
The matter came before me for a show cause hearing on 7 March 2019. At that time, notwithstanding the exceedingly unhelpful ground in the application, I identified an arguable case for judicial review and ordered, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), that the Minister show cause why relief should not be granted in relation to the Authority’s treatment of new information under s.473DD of the Migration Act, in particular being the documents referred to at [7] of the Authority’s reasons and photographs referred to at [11] of the Authority’s reasons.[81] I also ordered the Minister to file a verified transcript of the delegate’s interview, which was annexed to Mr Baddeley’s affidavit.
[81] CB 206-207
The matter came before me for a final hearing on 27 September 2019. At that time, the applicant submitted that at least one of the documents referred to by the Authority at CB 206 was not new information as he had discussed it at his interview with the delegate. The applicant was able to draw some support for that proposition from the transcript of the interview before the delegate.
Counsel for the Minister sought the opportunity to make further submissions on that question after the hearing. That request was granted and further submissions were filed on 23 October 2019. The applicant also sought additional time to make submissions and was given until 13 November 2019. Nothing further was filed, other than a Notice of Address for Service.
Consideration
The Minister’s submissions make the point that it is important to note that the issues raised by the applicant are of very narrow compass. They essentially turn on the alleged attempted provision of documents to the delegate and the circumstances in which those documents were subsequently provided to, and considered by, the Authority. The applicant’s claims are problematic for a number of reasons.
First, a careful examination of what the applicant said before the delegate indicates that it was unclear which document the applicant was referring to in his exchanges with the delegate. There appears to have been a measure of confusion as to the provenance of whatever the document was, given the applicant refers to a letter involving a JP and the delegate questioned the applicant on that basis. Later, the migration agent, in the Authority submission, makes a submission based on the JP Letter. However, it seems to be the case the applicant may have had in mind the letter apparently referred to in the undated statement (consistently with the suggestion that the applicant’s mother still had a copy of the letter). Importantly, that was a letter from the CID. It follows that a threshold difficulty is that it remains unclear which document the applicant claims was the subject of the discussion with the delegate and, on the applicant’s argument, that the delegate did not consider. The Authority identified nothing provided to it resembled a letter from the CID concerning the applicant written at around the relevant time (being some time in 2016).
Secondly, it is possible that the applicant, and, importantly, the migration agent, was actually referring to the JP Letter. Although this is not a letter from the CID, it does purport to describe some interactions with the CID. It is clear that the migration agent considered that the document was either “provided” in the sense that the applicant attempted to give it to the delegate or, alternatively, that it was given to the delegate but the delegate failed to consider it. The JP Letter was found by the Authority not to be “new information” and was considered (albeit that some aspects of the information in it were treated as new information). That renders moot any suggestion that the JP Letter was not new information by reason of the fact that it was “before” the delegate (whether actually or on an attempted basis). The fact that the delegate did not consider it (even if that were to be accepted) is of no significance in circumstances where the Authority conducts a de novo merits review although within the constraints imposed by Part 7AA.
Thirdly, as noted above, there was no document before the Authority that even approximated to a letter from the CID. It may be inferred that, to the extent that there was such a letter, the applicant failed to provide it to the delegate when given an opportunity to do so. In any event, even if the delegate had in some way prevented the applicant from providing such a letter then it was incumbent on the applicant to provide the letter to the Authority in order to make good any argument that the letter should be considered. That is not what occurred.
Fourthly, the Authority, as it was open to do, endeavoured, in the absence of any document resembling the letter from the CID, to identify the document to that referred to by the applicant to which the applicant referred during the interview with the delegate. Of all of the documents before the Authority, the closest document to that referral to by the applicant in argument before me (albeit not a letter) was the Police Complaint dated April 2016. This document had the benefit of being approximately within the timeframe identified by the applicant as the relevant one (being three months prior to the date of the applicant’s SHEV application) and, on one view, the document could be taken to be, at a minimum, a communication from the CID requesting the applicant to attend an interview as described in [32] of the applicant’s undated statement.
Fifthly, there is no evidence to support the applicant’s claim that he sought to rely on or provide any other documents during the interview before the delegate. Indeed, the transcript clearly indicates the contrary proposition is correct. The suggestion identified by the applicant’s migration agent in the Authority submission that the interview record would reveal that the applicant attempted to provide the delegate with further documents is at best an overstatement.
Sixthly, to the extent that the applicant now suggests he attempted to provide the Authority with the other letters (being the 12 May Letter, the 12 July Letter and the 15 July Letter) or other information provided in the 18 July email, the record of the interview indicates that the applicant did not provide such documentation to the delegate. The Authority considered the circumstances in which the material was actually provided (including its timing) and the nature of the documents and information (including its reservations about the credibility of the information).
Seventhly, in relation to the Additional Photographs, for the reasons outlined above, the applicant cannot show that the photographs were provided to the delegate or that the applicant attempted to provide the photographs to the delegate. It is clear that the Additional Photographs were provided for the first time in the email to the Authority. They were clearly provided to the Authority on the basis that they had not been before the delegate. In that regard, the Authority considered both the information relating to the provenance of the photographs but also the probative significance of the photographs. There was no error in respect of the application of s.473DD.
In the light of the oral argument at the trial, the only remaining issue to resolve is that concerning the Authority’s consideration, at [7] and [8] of its reasons[82] concerning the document dated 9 April 2016 (which was itself a translation of a document reproduced at CB 189) (the April 2016 document).
[82] CB 206-207
I accept the Minister’s submissions in relation to the status of that document as new information.
The applicant’s application for a SHEV was lodged on 19 July 2016.[83] Provided with the application was a statement in which the applicant summarised his claims for protection.[84] The applicant claimed to fear harm from the CID.[85] He alleged, among other things, that:[86]
Approximately 3 months ago, a letter was sent to my mother’s house about me and my brother [K]. My mother told me that she was home alone and someone came to the door to give her the letter by hand. My mother said the letter was asking my brother and I to attend an interview to answer some questions at a specified place, but I am not sure of the exact address. The letter was from the CID. My mother still has the letter.
[83] CB 25-62
[84] CB 63-67
[85] cf. CB 63 [3]; 66-67 [25]-[32]
[86] at CB 67 [32]
At his interview with the delegate, the applicant referred to “a letter” and claimed that:[87]
The letter was sent last year that me and my brother should be interrogated by the CID. The letter was sent by the CID asking us to come for an inquiry or interrogation
[87] Transcript, page 4, lines.8-10
The applicant said to the delegate that he had referred to this letter in his statement of claims, but was unable to print it out from his email account.[88] The delegate gave the applicant an opportunity to provide the “letter” after the interview (but before the decision),[89] but that was not done.
[88] Transcript, page 3, lines 41-44; page 4, lines 15-17
[89] see Transcript, pages 28-29
The delegate referred to the applicant’s claim about the letter.[90] It was noted that the applicant had failed to provide “any supporting documentary evidence for his claim that his mother was given a letter by the CID asking him and his brother to report to them”, and noted that the applicant had failed to provide the letter to the Minister’s Department.[91] The delegate did not accept that the applicant’s mother had been given a letter from the CID asking for the applicant and his brother to attend an interview.[92]
[90] CB 96, ninth dot point
[91] CB 99, final paragraph
[92] CB 100
On 19 July 2017, the applicant’s representative provided to the Authority “police complaints” (in Sinhala) and “English translations of same”.[93] One of the documents provided was a “Sri Lanka Police Message Form” dated 9 April 2016 (ie. the April 2016 Document).[94] The April 2016 Document, as explained above, was not before the delegate.
[93] CB 185
[94] CB 189
At [7] of its reasons, the Authority considered documents provided to it by the applicant “which purport to corroborate the Applicant’s claims to have been searched for by the CID”.[95] At [7],[96] it dealt with three “police complaints”, including the April 2016 Document. The Authority observed that the April 2016 document was not before the delegate and found it to be “new information”. The Authority observed that no explanation had been provided as to why the April 2016 Document (and the two other “police complaints” attached to the same email) had not been provided to the delegate, explained that it had “considerable concern over the veracity of these documents” and their “credibility or value”, and was not satisfied that there were exceptional circumstances that would justify consideration of the new information.[97]
[95] CB 205-207
[96] CB 206, fifth dot point
[97] cf. s.473DD of the Migration Act; CB 207 [7]-[8]
The Authority found that the April 2016 Document was “new information”. I see no error in the Authority’s reasoning.
“New information” is defined in s.473DC(1) of the Migration Act. In that definition, reference is made to “documents or information”. In Plaintiff M174/2016 v Minister for Immigration[98] at [24], Gageler, Keane and Nettle JJ held:
The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)…
[98] (2018) 92 ALJR 481
Here, one piece of “information”, in the sense described in Plaintiff M174 (a “communication of knowledge about some particular fact, subject or event”), was the applicant’s statements in his statement of claims, and his oral statement to the delegate, namely that a letter from the CID was sent to his mother, which required the applicant and his brother to attend for questioning.
The April 2016 Document is not the same “information” as that discussed immediately above. It is, first, a “document” that was not put before the delegate by the applicant. Secondly, it is a different “communication” of knowledge to that discussed above. The April 2016 Document was alleged to be a document, or communication, emanating from or issued by the CID or the police themselves, whereas the matters referred to by the applicant in his written claims and orally before the delegate emanated from the applicant himself. Thirdly, the April 2016 Document contains “knowledge” of facts, circumstances and events that were not conveyed by the applicant in his statements. For example (and as the Authority observed in its reasons), it refers to earlier messages and requests to attend CID investigations allegedly sent by the CID to the applicant in 2012 and 2015, the existence of which had never previously been raised by the applicant. Fourthly (but connected with the second proposition), the nature of the April 2016 Document, being something (allegedly) issued by the CID or Police, rather than emanating from the applicant, is important. That is because the April 2016 Document was being relied on as a document, from a third party (unaffected by the credibility concerns held by the delegate and, ultimately, the Authority, about the applicant), that was corroborative of the applicant’s claims to fear harm. In this sense, the origin and nature of the April 2016 Document was itself something that the applicant was relying on as important to, and corroborative of, his case.
In circumstances where, first, the April 2016 Document was not the same “information” given by the applicant to the delegate, and, secondly, where the April 2016 Document was not before the delegate, it follows that the April 2016 Document was “new information”, as that term is defined by s.473DC(1). The Authority was correct to treat the April 2016 Document as such, and to apply s.473DD in relation to it.
Merely because the April 2016 Document relates to a similar subject matter or issue as the applicant’s earlier statements to the delegate, and to some extent overlaps with those statements (because the April 2016 Document appears to be the “letter” referred to by the applicant), does not lead to the conclusion that the April 2016 Document was not “new information”. It was “new information”, for the reasons explained above.
Indeed, I accept that to treat the April 2016 Document as not being “new information” because the applicant had, to the delegate, referred to the document’s existence and generally to what it stated, would undermine the scheme of Part 7AA of the Migration Act.
The “primary requirement”[99] is that reviews under Part 7AA of the Migration Act take place on the material that was before the delegate, without the Authority accepting further material and without interviewing the review applicant.[100] Here, the applicant made, to the delegate, certain claims about the CID having an ongoing interest in him. He was given the opportunity, by the delegate, to provide corroborative materials, such as the April 2016 Document. He chose not to do so. The applicant’s claim was ultimately rejected by the delegate. The applicant then, before the Authority, sought to strengthen his case by providing the allegedly corroborative April 2016 Document, which he had had before, and at the time of, the delegate’s decision. The Part 7AA scheme would be undermined if review applicants could raise a particular claim before the delegate, fail to provide corroborative materials in their possession (especially after being offered the opportunity to provide them), have that claim rejected by the delegate, but then seek to improve their position on review by providing that corroborative material to the Authority and assert that it is not “new information” (with the consequence that it can be considered by the Authority without applying s.473DD of the Migration Act), simply because it is related to, or overlaps, with something said by the review applicant to the delegate.[101] The result would be that the applicant could in such a situation effectively require the Authority to consider material that he or she did not put before the delegate (such that the Authority’s review is no longer on the papers), but without having to satisfying the s.473DD requirements.
[99] cf. Plaintiff M174 at [22]
[100] cf. s.473DB(1) of the Migration Act
[101] cf. by analogy FIG17 v Minister for Home Affairs [2019] FCA 1105 at [34] (although that decision was dealing only with s 473DD(b)(i))
Materiality
Even if, contrary to my finding above, the Authority was wrong to treat the April 2016 Document as “new information”, with the result that the Authority should have considered that document in making its decision, no jurisdictional error occurred. That is because any such error would not have been material to the Authority’s decision, in the sense that the Authority’s decision would not “realistically” have been any different.[102]
[102] cf. Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [45]
The Authority expressly identified the applicant’s claim, that his mother had in 2016 received a letter from the CID asking the applicant and his brother to attend an interview.[103] The Authority held otherwise considerable concern about the credibility of the applicant’s claims.[104] On account of those concerns, the Authority, among other things, did not “accept that the Applicant was ever threatened, that the authorities searched for him prior to or following his departure, questioned his family about him or that he has been sent a letter from the CID asking [him] and his brother to attend an interview”.[105] That finding was sufficient to dispose of the applicant’s underlying claim (to which the April 2016 Document related) that the CID had given his mother a letter by the CID requiring him and his brother to attend for questioning.[106] At [7][107] of its reasons, the Authority explained, in detail, the “considerable concern over the veracity of these documents” as well as their “credibility or value” that it held, including in relation to the April 2016 Document. Given the Authority’s “considerable concern” about the April 2016 Document, it is difficult to see how that document could possibly have made a difference to the Authority’s rejection, at [25] of its reasons, of the applicant’s claim that his mother had been given a letter by the CID in 2016 requiring him and his brother to attend an interview. It certainly cannot be concluded that this finding would “realistically” have been different, if the Authority had considered the April 2016 Document in making its decision.
[103] CB 209, eighth dot point
[104] eg. CB 210-212 [20]-[24]
[105] CB 213 [25], emphasis added
[106] cf. Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]-[47]
[107] fifth dot point
Conclusion
The applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 December 2019
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