CJH16 v Minister for Immigration
[2017] FCCA 2375
•13 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJH16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2375 |
| Catchwords: MIGRATION – Application for protection visa – review of Immigration Assessment Authority decision – whether the IAA erred in not considering “new information” submitted by the applicant – whether the IAA erred in its assessment of the applicant’s credibility – whether the IAA erred in its interpretation of the terms “intentionally inflicting” and “intentionally causing” within the meaning of s.5(1) of the Migration Act 1958 (Cth) – whether the IAA failed to consider relevant information and appropriately question the applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 46A, 425, 473BB, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 476, pt.7, div.3 of pt.7AA |
| Cases cited: AMA16 v Minister for Immigration & Border Protection (2017) 317 FLR 141; [2017] FCCA 303 Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448; [2010] FCAFC 52 |
| Applicant: | CJH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2305 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 12 July 2017 |
| Date of Last Submission: | 12 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2305 of 2016
| CJH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia at Christmas Island by boat on 17 August 2012. He did not have a visa and so became an unlawful non-citizen upon arrival. This meant that, subject to the exercise by the Minister of a discretionary power to allow him to do so, the applicant was prevented from making a valid application for a visa.
On 20 August 2015, the Department of Immigration and Border Protection (Department) informed the applicant by letter that the Minister had exercised his power, under s.46A(2) of the Migration Act1958 (Cth) (Act), to permit him to apply for a Safe Haven Enterprise (subclass 790) visa (SHEV), a type of protection visa.
On 25 September 2015, the applicant made an application for a SHEV visa. In the circumstances, the applicant came within the definition of “fast track applicant” in s.5(1) of the Act.
In brief, he claimed to fear harm on the basis of:
a)his Tamil ethnicity and Hindu religion;
b)his imputed political opinion and being suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE);
c)his membership of particular social groups comprising young Tamil males from a town in the North East of Sri Lanka;
d)being an asylum seeker who came to Australia unlawfully without a passport;
e)being a young Tamil male with visible scars; and
f)returning as a failed Tamil asylum seeker.
On 16 June 2016, the delegate of the Minister made a decision to refuse to grant the applicant a SHEV visa. In light of the reasons for that decision, which need not be described in any detail for the purposes of these reasons, that decision was a “fast track reviewable decision” within the meaning of s.473BB of the Act. It was therefore referred to the Immigration Assessment Authority (IAA) for review under pt.7AA of the Act.
On 8 July 2016, the applicant’s migration agent and lawyer sent to the IAA a number of documents including submissions and a statement made by the applicant. Amongst other things, the applicant’s statement included a claim that had not been made before: namely, that the applicant had been in an illicit relationship with a married woman and feared harm at the hands of her husband, her relatives, paramilitaries and the army because of that relationship. The applicant also claimed that, due to his stay in Australia, he would be perceived as a wealthy person and either the woman with whom he had a relationship, her husband or relatives, or criminal gangs would abduct him to extort money.
On 29 July 2016, the IAA made a decision to affirm the decision of the delegate. The applicant now seeks judicial review of the IAA’s decision under s.476 of the Act.
Consideration
There are six grounds in the amended application filed by the applicant; however, the applicant only presses grounds 1, 2, 4 and 6. As will be seen, some of these grounds in fact contain a number of grounds.
Ground 1 – “To the extent the Authority declined to consider information and submissions by the Applicant’s representatives, it fell into jurisdictional error in failing to provide procedural fairness and/or to properly exercise its jurisdiction in respect of information submitted to the Authority”
The “information” the subject of this ground is not specified in the amended application. In his written submissions, the applicant refers to “documents corroborating some claims” which he argues “went to some critical matters and thus were relevant consideration”. He also refers to the claims regarding his extra-marital relationship with a woman who had a family connection to the authorities. The applicant argued that the IAA had not considered whether the reason for the lateness of this claim, being fear from conservative society, amounted to exceptional circumstances as the information related to the applicant personally.
In order to understand this ground, it is necessary to set out the relevant statutory provisions first and then the passages in which the IAA dealt with the submissions and statement sent to it by the applicant’s agent.
As already noted, the IAA operates under pt.7AA of the Act. Division 3 of that Part (ss.473DA – 473DF) provides for the manner in which the review is to be conducted. Section 473DB(1) of the Act provides:
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a)without accepting or requesting new information; and
(b)without interviewing the referred applicant.
(Emphasis added)
In spite of the limitation imposed by that provision, the IAA may get “new information” in certain circumstances and, subject to what follows, consider it for the purposes of making a decision on the review.
“New information” is information referred to in s.473DC(1) of the Act which provides:
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
…
(Emphasis in original)
The circumstances in which the IAA may consider any “new information” are defined in s.473DD of the Act which provides:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
(Emphasis in original)
In its statement of reasons, the IAA included a section dealing with the information that was before it, and set out which of that information was considered: see [15] – [26]. In this section, the IAA referred to the information provided by the applicant’s agent on 8 July 2016. The IAA explained at [18], that it did not consider that the legal argument contained in the submission redecorating and explaining some of the applicant’s earlier claims was “new information” and, that he had considered it.
The IAA then referred to the claims made in the applicant’s statement concerning his extra-marital affair in Sri Lanka and his fear of extortion. It said, in respect of these matters at [20] of its reasons:
The applicant has previously claimed that he fears crime and extortion in Sri Lanka, and to this extent the information in paragraph 4 of his statement is not new and I have considered it. As to the claim about the relationship and the child, I am not satisfied that there are exceptional circumstances justifying its consideration. The applicant has not made clear why or how this matter contributed to his decision to leave Sri Lanka, why he fears harm on return as a consequence, and what harm he fears. Given that the importance of providing all of his claims to protection at the earliest possible time has been repeatedly stressed to the applicant, and given that he has had the benefit of legal representation, I do not accept that the applicant could not have provided this information to the Minister’s delegate before the decision was made. I do not consider that his shyness about this matter constitutes an exceptional circumstance, especially in the context of an assertion that he faces serious or significant harm because of it. I have not considered this claim.
In light of the statutory scheme, the applicant’s first ground can be understood to be:
a)in considering whether there were exceptional circumstances to justify considering the claim concerning the extra-marital relationship, the IAA ought to, but did not, consider “in the circumstances of fear from the conservative society as well others”; and
b)the IAA ought to have considered the documents sent to it by the applicant’s agent because they had a direct bearing on the claims.
It is convenient to deal with the second of these first.
The fact that documents sent by the applicant to the IAA have a direct bearing on his or her claims does not, without more, mean that the IAA is bound to consider those documents. If the documents were also sent to the IAA by the Department under s.473CB of the Act, then the IAA must consider them: s.473DB(1). By contrast, if the documents constitute “new information” within the meaning of s.473DC of the Act, the IAA must not consider them for the purposes of making a decision in relation to a fast track reviewable decision except in the circumstances provided for in s.473DD. This part of the first ground ignores these statutory provisions and must be rejected in light of them.
The first part of ground 1 must also be rejected in light of the statutory provisions as well as in light of the facts of the case.
There are two parts to s.473DD of the Act. The first must be satisfied in the case of all “new information”, regardless of how it was obtained by the IAA. The requirement is that the IAA be satisfied that there are “exceptional circumstances to justify considering the new information”.
The second part relates to “new information” given, or proposed to be given to the IAA by the applicant. Under this part, the applicant bears the onus of satisfying the IAA of one of two matters:
a)first, that the information “was not, and could not have been” given to the Minister before his decision was made; or
b)secondly, in the alternative, that the “new information” is “credible personal information” which satisfies two further criteria:
i)it was not previously known; and
ii)had it been known, may have affected the consideration of the applicant’s claims.
The IAA relied upon the first part of s.473DD of the Act in respect of some of the information provided to it by the applicant’s agent: see [22] of its reasons.
In his statement, the applicant stated at [4], that he wished to disclose new information which was relevant to his case. Further, the applicant explained that he had not disclosed it previously because he was “very shy to say”. The applicant did not, and could not, rely on this to establish the second element of the second part of s.473DD of the Act: namely, that the information was not previously known. Rather, it could only feasibly have been relevant to the question of whether there were “exceptional circumstances to justify considering” the “new information” or whether the information “could not have been provided” to the Minister before the delegate’s decision. The IAA considered, but rejected both of those possibilities, by reference to the explanation actually given by the applicant: see [20] of its reasons.
The applicant does not complain about that, but says, in effect, that the IAA should have considered an argument which was not raised by him in connection with the new claim. The applicant gave no coherent basis as to why the IAA was required, at risk of jurisdictional error, to consider something that was not raised before it.
If this argument had been made in the context of the obligation of the Administrative Appeals Tribunal (Tribunal) to “review” a decision of a delegate under pt.7 of the Act, it would have been inconsistent with a long line of authority: see for example, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263; see also in another context, Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448; [2010] FCAFC 52.
However, in this case, the statutory precondition to consideration of a claim by a decision maker requires an applicant to satisfy the decision maker of a particular matter. It is extremely unlikely that there is any obligation on the decision maker to go beyond what is expressly put before it by the applicant in that respect. Thus, the IAA did not err in considering the second requirement in s.473DD of the Act by failing to consider something that was not expressly put before it by the applicant.
The first requirement in s.473DD of the Act does not impose the onus upon the applicant and only requires the IAA to be satisfied that there are “exceptional circumstances” to justify considering the claim. This suggests that there may be cases in which the IAA is to consider circumstances beyond those expressly relied upon by the applicant in connection with “new information”. However, in my view, against the background of the authorities referred to in [25] above, even having regard to the differences in context, there is no obligation on the IAA to sift through all of the material before it, in order to excavate some possible reason that might satisfy it that there are “exceptional circumstances”. The applicant’s argument relies on such an obligation and, for that reason, must fail.
The first ground is rejected.
Ground 2 – “The Authority fell into jurisdictional error in making of general assessment of credibility of the Applicant which lacked rational connection to the material before the Authority (in the circumstances the delegate did not raise the Applicant’s general credibility as concern) and denied procedural fairness”
The particulars to the ground suggest that there are three alternative parts to it:
a)there was no logical connection between the material before the IAA and its credibility finding;
b)the IAA “erred in the consideration and that it had powers under s 473DF of the Act and afford procedural fairness in acquiring additional information” [sic]; and
c)the IAA relied upon information that did not exist.
In his written submissions, the applicant explained the first of these parts by reference to the decision of Bromberg J in SZTKE v Minister for Immigration & Border Protection [2015] FCA 1002, in particular at [30] – [34]. In that passage, Bromberg J was explaining the decision of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL), a case concerning the obligation of the then Refugee Review Tribunal[1] to invite an applicant to attend a hearing under s.425 of the Act. There is no equivalent provision in pt.7AA of the Act. The lack of such an equivalent, together with the combined operation of ss.473DA(1), 473DB(1) and 473DC(2) of the Act means that the content of the natural justice hearing rule described in cases such as SZBEL does not apply to the IAA: see for example, AMA16 v Minister for Immigration & Border Protection (2017) 317 FLR 141; [2017] FCCA 303 at [21].
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The second part of this ground is incoherent and was not addressed by the applicant in his written submissions. Section 473DF of the Act applies if an applicant is invited under s.473DC to give “new information” in writing or at an interview, or is invited under s.473DE to give comments on “new information” in writing or at an interview. The applicant in this case was not invited under either of those provisions and so s.473DF of the Act had no application to the review.
The third part of this ground was explained in the applicant’s written submissions as being that the IAA’s finding of credibility was not supported “on any substantial basis but on presumptions and / or immaterial inconsistencies”. The description of the inconsistencies referred to in the IAA’s reasons (in particular at [31]) as “immaterial”, suggests that the applicant is attacking only the merits of the IAA’s decision. The nature of the attack becomes clear when regard is had to the IAA’s reasons. It said relevantly at [31]:
I have significant concerns about the applicant’s overall credibility. The details of his claims have not been consistent over time. There were significant discrepancies in the details given. He omitted some earlier claims when questioned at the SHEV interview, and also added significant new claims. He introduced a significant new claim – that he assisted wounded LTTE fighters – at the SHEV interview. When questioned about this claim by the delegate, he shifted his position and changed his evidence on various aspects, making some assertions that were highly implausible–for example, that the CID could not arrest him because he worked in a government hospital. When the delegate challenged this, he then stated that he had avoided arrest by moving from place to place and sleeping in a different place every night. This evidence in turn was inconsistent with previous evidence given when was questioned extensively about his places of residence, and had stated quite clearly that he had always lived with his family, apart from a two year period when he lived at his workplace, and one week when he stayed with a friend prior to his departure. I consider that the way this claim was presented by the applicant casts considerable doubt on his credibility overall, as it indicated a willingness to change his evidence if he thought it would be to his benefit to do so.
Clearly enough, the introduction of a new claim at an interview and change of evidence during the course of that interview, provided a sufficient logical basis for the IAA to doubt the credibility of the applicant. The fact that those matters did cause the IAA to doubt the applicant’s credibility suggests, contrary to the applicant’s argument, that those matters were not “immaterial”. It must be recalled that it is a matter for the IAA to determine on the evidence before it, what evidence it accepts and what facts it finds on the basis of that evidence. The applicant’s argument in reality rises to no more than a suggestion that the IAA ought not to have found that the applicant was not a credible witness. As such, the argument does not establish that the IAA’s decision was affected by jurisdictional error and is rejected.
Ground 4 – “The Authority fell into jurisdictional error in dealing with the Applicant’s claim regarding detention for illegal departure in harsh conditions under s 36(2)(aa) of the Act and in particular did not address the question of knowledge and intention. The actions in putting the Applicant in prison would constitute relevant intention to inflict harm”
The applicant claimed to satisfy the criterion for the grant of a protection visa in sub-s.36(2)(aa) of the Act on the basis that, if returned to Sri Lanka, he would be placed on remand in unsatisfactory prison conditions. The risk arose because, when he left Sri Lanka, the applicant did so in contravention of Sri Lankan law.
Sub-section.36(2)(aa) of the Act provides that a criterion for the grant of a protection visa is that the applicant is:
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
Section 36(2A) of the Act provides that a person will suffer “significant harm” for the purposes of sub-s.36(2)(aa) if:
…
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
There is no issue that the circumstances relied on by the applicant could only have satisfied sub-paras.(d) or (e) of s.36(2A) of the Act. Those sub-paragraphs are subject of the following further definition in s.5(1) of the Act:
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
(Emphasis in original and added)
In SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 (SZTAL), Kenny and Nicholas JJ held at [59], that:
The natural and ordinary meaning of intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct.
In rejecting the applicant’s claims concerning sub-s.36(2)(aa) of the Act and prison conditions, the IAA applied the same reasoning as that of the majority of the Full Court of the Federal Court in SZTAL. The IAA explained at [91] of its reasons:
I accept that conditions in prison or detention may be poor, but the evidence does not suggest that the applicant faces the death penalty or arbitrary deprivation of his life. The definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act requires that any pain or suffering be intentionally inflicted on a person. Similarly, “degrading treatment or punishment” is defined to mean an act or omission that causes and is intended to cause extreme humiliation. I am not satisfied that any pain or suffering caused to the applicant by overcrowding and poor and insanitary conditions in prison or on remand would be intentionally inflicted, as required. Nor do I accept that severe overcrowding and poor conditions are intended to cause extreme humiliation.
Special leave to appeal from the decision in SZTAL was granted by the High Court and judgment on the appeal was given on 6 September 2017: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34. The appeal was dismissed by majority, the Court finding that the reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective intention: [26] (Kiefel, Nettle and Gordon JJ) and see [101] and [114] (Edelman J).
For those reasons, there was no error in the way in which the IAA dealt with the applicant’s claims arising out of the prison conditions in Sri Lanka.
The applicant’s written submissions went beyond the ground as pleaded. No application to amend was made and no explanation was given as to why the arguments sought to be raised in the submissions had not been raised earlier. In those circumstances, I am not satisfied that it is in the interests of the administration of justice to allow the applicant to amend his claim to include those arguments.
Ground 4 is rejected.
Ground 6 – “The Authority fell into error when it found that the Applicant despite would not suffer any risk upon return owing to his scars ignored relevant considerations, asked incorrect questions or failed to ask correct questions. The Tribunal [sic] presumed that there would be records of the Applicant’s previous detention”
This ground concerns the findings of the IAA at [53] of its reasons where it said:
I accept that the applicant has scars on his arm caused by being burned with cigarette butts during his 1998 detention. Information provided by DFAT suggests that people with scars indicating that they may have been involved in combat may face adverse attention on the basis that they are suspected to have been LTTE fighters. Other information suggests that scars indicative of past torture may arouse the same suspicions. If there is any record of the applicant’s 1998 detention, I consider that the record would show that he was cleared of suspicion and released. Furthermore, the applicant was never subsequently the subject of serious accusations or suspicion of LTTE involvement, and in these circumstances I am satisfied that there is no real chance that these scars would cause him to be suspected of LTTE involvement on return.
(Citations omitted)
This ground is based upon the premise that the IAA assumed that there would be records of the applicant’s previous detention, but did not deal with the possibility that no such records existed. That premise cannot stand in light of the IAA’s actual findings.
First, the IAA dealt with the possibility of future harm coming to the applicant on the hypothesis, rather than the fact, that there might be records of the applicant’s previous detention. Secondly, the IAA dealt with the issue on the basis that the applicant was never the subject of serious accusations or suspicion of LTTE involvement at a time when he had scars from being burnt with cigarette butts. This finding supported the IAA’s conclusion regardless of whether there were, or were not, records of his prior detention. For that reason, the premise of the argument is flawed and the argument must be rejected.
Conclusion
The applicant has not established that the IAA’s decision was affected by jurisdictional error. The application must be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 13 October 2017
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