CJL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2023] FedCFamC2G 482

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CJL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 482

File number(s):	SYG 2004 of 2017
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	9 June 2023
Catchwords:	MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Immigration Assessment Authority (Authority) – whether it was open to the Authority to proceed on the basis that the applicant had become aware of new information before a delegate of the Minister had refused to grant the applicant a Safe Haven Enterprise visa – whether Authority acted unreasonably in not seeking information from the applicant relevant to determining the time at which the applicant became aware of the new information – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5AA, 473CB, 473DC, 476
Division:	General
Number of paragraphs:	25
Date of hearing:	8 April 2022
Place:	Sydney
Counsel for the Applicant:	Mr G Foster, by telephone
Solicitor for the Applicant:	Sentil Solicitor
Solicitor for the First Respondent:	Ms J Strugnell of Minter Ellison Lawyers, by telephone

ORDERS

SYG 2004 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CJL16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	9 June 2023

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs set in the amount of $7,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. The question that arises on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Authority) made a jurisdictional error in concluding it was not satisfied that the applicant could not have provided “new information” within the meaning of s 473DC of the Act to the delegate of the first respondent (Minister) by the time the delegate decided not to grant the applicant a Safe Haven Enterprise (Class XA) visa (SHEV).

   BACKGROUND AND CLAIMS FOR PROTECTION

2. The applicant is a citizen of Sri Lanka. He departed Sri Lanka by boat, reaching Australia on 26 September 2012. The applicant, therefore, is an “unauthorised maritime arrival”, as that expression is defined in s 5AA of the Act.

3. On 12 November 2015 the applicant lodged an application for a SHEV. In a statement that formed part of his application, the applicant made the following claims:[1]

   [1] CB73-80

   (a)The applicant was born in a particular area in the Eastern Province of Sri Lanka. He is a Tamil and a Hindu.

   (b)The applicant’s father was openly supportive of the Liberation Tigers of Tamil Eelam (LTTE), and was killed in a bomb blast in 1992 while working in a van issuing tickets. The applicant’s mother, unaware of her husband’s death, reported to the police that the applicant’s father was missing.

   (c)One week later, the applicant’s mother was arrested by authorities whilst pregnant with the applicant. The authorities suspected her of being an LTTE supporter. The authorities also suspected the applicant’s father was responsible for the bomb. The applicant’s mother was released from jail in 1992 shortly after the applicant’s birth.

   (d)The applicant’s aunt was taken by the Sri Lankan Army (SLA) because she was a member of the LTTE. The applicant was a young child when this happened and he grew up believing that his aunt had been killed.

   (e)From around 2002 the CID (that is, the Criminal Investigation Department), the police, and the SLA constantly harassed the applicant’s family. They would regularly come to the applicant’s house and interrogate his family. On these occasions, the applicant’s two older sisters and mother were beaten, and the applicant and his older brother were taken away for questioning. The applicant was taken “at least 15 times”.

   (f)The applicant and his brother were taken to various SLA camps where they were interrogated, physically abused, and accused of being responsible for attacks launched by the LTTE.

   (g)Due to the “continued persecution from the CID and police”, the applicant’s older brother fled to Dubai, where he stayed between 2002 and 2007. When the applicant’s brother returned to Sri Lanka for a holiday in 2007, people affiliated with the authorities came in a white van searching for the applicant’s older brother.

   (h)The applicant, his brother, and other “Tamil men” were taken by the plain clothed authorities in a “round up” on suspicion of being affiliated with the LTTE. The applicant and his brother were taken to the “CID interrogation camp” and were accused of being involved with the LTTE and beaten. The applicant has scars on his feet from this incident. During this “round up” the applicant’s sister was kicked in the chest by an officer wearing boots. She was admitted to hospital, required stitches, and was released one week later.

   (i)In 2008 the applicant was forcibly taken by the LTTE to join their ranks, but he was later released.

   (j)In 2009 the applicant was taken by the SLA, CID, and the police in a “round up” following a bomb blast that killed four SLA officers. The authorities threatened the applicant with a warning to stay home, and the authorities told the applicant they would check up on him at any time.

   (k)In 2010 the applicant’s girlfriend ended their relationship. She told the applicant the authorities had warned her to stay away from the applicant because he could be taken at any time, and that could cause her potential problems.

   (l)In 2011 the applicant’s sister passed away from the long term effects of the injuries she suffered at the hands of the SLA in 2007. A clot had formed in her chest.

   (m)The applicant’s brother returned to Sri Lanka to attend the applicant’s sister’s funeral. In 2011 the authorities came to the applicant’s house to extort money from his brother because he had been working overseas. The applicant’s brother told the authorities he had no money; but he “gave a letter saying he would give them money before a certain date”, but the applicant’s brother “advanced his flight and went back to Dubai earlier than planned to escape the attempts by the authorities to extort money from him”.

   (n)“After this”, the applicant went into hiding at his uncle’s place, then departed for Dubai where he stayed for 3 months on a “work visa”. While the applicant was in Dubai the applicant’s mother informed him that his aunt, who they thought was killed by the SLA, was alive and in jail.

   (o)After the applicant’s visa expired, the applicant had “no choice” but to return to Sri Lanka. The applicant paid 1.5 Lakhs to “the agency” to ensure his safe return through the airport.

   (p)The applicant’s mother visited the applicant’s aunt in jail. The applicant’s aunt warned the applicant’s mother that the applicant should flee Sri Lanka because innocent Tamils had been jailed for being related to people involved in the LTTE.

   (q)After the applicant returned from Dubai unidentified authorities would regularly go to the applicant’s house and attempt to extort money from him. When the applicant refused to hand over money, the authorities threatened they would return and the applicant would have to pay them then.

   (r)In 2014, after the applicant left Sri Lanka, the applicant’s mother informed him that the authorities visited his house. The SLA questioned the applicant’s mother on suspicion of hiding explosives in the soil out the front of the applicant’s house.

   (s)In 2015 a Tamil male was shot and killed by unidentified authorities 2 kilometres from the applicant’s house on suspicion of being affiliated with the LTTE.

4. In addition to his statement, the applicant provided a number of documents in support of his application for a SHEV.

5. The applicant was interviewed by the delegate on 6 April 2016 (SHEV Interview). At that interview the applicant claimed that in 2009 the authorities shot and killed his neighbour because they suspected the neighbour had been involved in a nearby bombing.

   DELEGATE’S DECISION

6. On 24 June 2016 the delegate refused to grant the applicant a SHEV.[2] The delegate accepted:

   (a)the applicant is Tamil and a Hindu;

   (b)the applicant’s father was killed in a bomb attack in 1992, and his mother was briefly detained due to suspicion of her husband’s involvement in the attack;

   (c)the applicant’s father was broadly supportive of the LTTE, and the applicant’s paternal uncle was an LTTE supporter;

   (d)the applicant’s neighbour was shot and killed by authorities in 2009 because they suspected the neighbour had been involved in a nearby bombing;

   (e)the applicant’s girlfriend broke up with the applicant in 2010 after the authorities warned her not to associate with him, although the Authority drew no conclusions about what motivated this action by the authorities; and

   (f)the applicant and members of his family were subject to occasional questioning and harassment by the authorities regarding their links to the LTTE and the whereabouts of the applicant’s older brother; and the applicant was taken by authorities for questioning in 2007 before being released with a general warning.

   [2] CB116

7. The delegate did not accept that:

   (a)the applicant was held for two days or harmed at a CID camp;

   (b)the applicant or his mother were asked to join the LTTE;

   (c)a Tamil man was shot in 2015 because he was linked to the LTTE; or

   (d)the applicant’s paternal uncle was directly involved in the LTTE group, or that his death was for reasons relating to his support.

   APPLICANT PROVIDES NEW INFORMATION TO AUTHORITY

8. After the matter was referred to the Authority, the applicant provided to the Authority submissions dated 22 July 2016 (22 July 2016 Submissions),[3] and seven photographs depicting damage to the applicant’s family’s home.[4] In the 22 July 2016 Submissions the applicant restated the claims he had made in his application for a SHEV and at the SHEV Interview. The 22 July 2016 Submissions also contained information the applicant described as “exceptional circumstances that have arisen”, being information the applicant stated he “couldn’t provide during the interview with the Department of Immigration and Border Protection”, and that this “information came to hand only after the interview with the Department”.[5]

   [3] CB223-258

   [4] CB234-241

   [5] CB224

9. There are three classes of new information the applicant provided. The first is new information relating to events the applicant claimed occurred before the applicant departed from Sri Lanka. The second class relates to the arrest of the applicant’s brother in law, and matters the brother in law reported. That information is as follows (Relevant New Information):[6]

   The exceptional circumstances that have arisen which I wish to put forward to you are the present situation in Sri Lanka affecting my livelihood if I am sent back to Sri Lanka. My mother informed me that my brother-in-law Mr [J] who recently married my sister . . . in December 2015 was arrested by the CID and was detained at the Batticloa [sic] army camp.

   My mother and sister had attempted to meet him and when they met him in May 2016, [Mr J] indicated that the CID officers were repeatedly questioning him as to my involvement in the LTTE in the past and he mentioned that the CID officers were aware that I had left Sri Lanka by illegal boat and they had been notified by Sri Lankan High Commission staff in Australia as to my presence in Australia.

   My Mother is trying hard to release [Mr J]. Eventually when [Mr J] was released, the CID never stopped harassing and questioning as to our family members involvement in the LTTE in the past. They were especially asking about my participation as a LTTE cadre in the combat in 2009. [Mr J] hails from a different area in Sri Lanka had no knowledge of our family involvement in the past, and couldn’t reply positively to the CID officers during investigation. This ultimately lead the CID to believe that we were in fact LTTE cadres like my father.

   [6] CB226-227

10. The third class of new information relates to incidents that occurred on 19 and 20 July 2016 involving “CID officers armed and in civil tried to enter our house”.[7] The applicant’s description of the third class of information is prefaced with the following sentence:

    This exceptional circumstance that has arisen at the moment makes me fear to go back to Sri Lanka in the future.

    [7] CB227

11. The 22 July 2016 Submissions contain an explanation or explanations about why the applicant had not provided the new information to the delegate (errors in original):[8]

    I never thought that my application for protection visa would be rejected and till I received the rejection letter, I never considered giving any new information to you. If only I had suspected that my case could be rejected, I could have given the latest change of circumstances to the Department.

    When I arrived in Australia illegally, as a layman and having no one to assist me or to advise me as to what sort of information that I should provide to the department in my application, I left out many information relevant to my case. I had to understand the legal advisor and the interpreter to reply to questions put by the department during the interview. On the other hand, many Sri Lankans were deported back to Sri Lanka and I feared that I could be deported as well if I came out with the whole truth to the department. I was confused as to what information that I should provide to obtain my stay in Australia to live safely.

    As the interpreter is a Tamil speaking person I feared that my information could be leaked through the interpreter to Sri Lankan authorities whereby my family members and I could be adversely affected. Further I doubt whether the Interpreter translated all my answers to officer during the interview. Now I realise that I have to tell you the whole truth that I failed to mention during the interview because of the above reasons.

    [8] CB224-225

    AUTHORITY’S REASONS

12. The Authority first identified the material that was before it, including the 22 July 2016 Submissions. The Authority distinguished the three classes of new information to which I have already referred. In relation to the first class of new information the Authority found the applicant could have provided this information at the SHEV Interview.[9] The Authority relied on the following matters:

    (a)The Authority did not accept the applicant would have been unaware that his application for a SHEV may be rejected. The applicant was put on notice at the SHEV Interview of numerous credibility concerns. The delegate did this throughout the interview, and at the end of the interview, when the delegate explained he would give the applicant an opportunity to explain confusion and concerns about his evidence. The delegate also put to the applicant matters that raised concerns about the applicant’s truthfulness which may lead to a finding the applicant has manufactured his claims.[10]

    (b)The Authority did not accept the explanation the applicant gives in the 22 July 2016 Submissions for not mentioning matters at the arrival interview.[11]

    (c)The Authority did not accept the applicant feared that information he would provide could be leaked through the interpreter to the Sri Lankan authorities, or that the applicant had doubted whether the interpreter had translated all of the applicant’s answers. The applicant was told at the SHEV Interview that the interpreter was bound to not discuss any information heard during the interview; the applicant raised no concerns during the interview; the applicant provided no evidence that his answers were not completely or accurately interpreted; and, in any event, the applicant’s asserted fear does not explain why the applicant could not have provided the information in the written claims, or in writing after the SHEV Interview.[12]

    (d)During the SHEV Interview the delegate repeatedly asked the applicant for further detail, and asked the applicant whether he had put forward all his claims, and if he had anything further to raise.[13]

    [9] CB581, [9]

    [10] CB580, [6]

    [11] CB580, [7]

    [12] CB581, [8]

    [13] CB581, [9]

13. In relation to the Relevant New Information, the Authority accepted it was “given to the applicant’s mother by his brother in law in May 2016”, and this “post-dates the SHEV interview”.[14] The Authority, nevertheless, was not satisfied the applicant could not have provided the Relevant New Information before 24 June 2016, when the delegate made his decision. The Authority relied on the following matters:[15]

    The applicant was advised at the start of the SHEV interview about the limitations of the IAA’s procedures. The applicant was told that it was very important he give the Department of Immigration and Border Protection (Department) personal, accurate and full claims as early as possible. He was told he may not have an opportunity to provide further information later on. At the conclusion of the interview, he was advised that if he provided further information to the Department it would be taken into account prior to a decision being made. The applicant has made no claim that he had attempted to provide this information to the Department or did not learn of it until after a decision was made.

    [14] CB581, [10]

    [15] CB581, [10]

14. The Authority then considered the applicant’s claims for protection and, for reasons it is unnecessary to set out, affirmed the delegate’s decision.

    GROUND OF APPLICATION

15. Pursuant to leave I granted at the hearing, the applicant relies on the ground set out in the further amended application, which is as follows:

    The IAA erred when it was not satisfied that the applicant could not have provided the new information to the delegate prior to the decision being made, and did not accept the applicant's reasons for failing ton [sic] to raise the new information earlier.

    Particulars

    a.         [11]

    b.The ‘new information’: In [11] the IAA was referring to new information given to the applicant’s mother by the Applicant’s brother in law J. in May 2016 and accepted it post-dated the SHEV interview. The IAA stated ‘However, the delegate’s decision was not made until 24 June 2016.’ [10]

    c.The new information is set out at [CB226] (final paragraph) – [CB227] (first 2 paragraphs).

    d.The new information does not disclose when the Applicant became aware of it.

    e.The document containing the new information is dated 22 July 2016 [CB224], and the new information asserts: “The exceptional circumstances that have arisen which I wish to put forward to you are the present situation in Sri Lanka affecting my livelihood if I am sent back to Sri Lanka .... “ [CB226], emphasis on ‘the present situation’;

    f.        22 July 2016 post-dated the delegate’s decision;

    g.While the IAA noted the information was given to the Applicant's mother by the brother in law in May 2016 [CB227], this does not indicate when the information was passed on to the Applicant and certainly does not confirm it was received by the Applicant in May 2016 or before the delegate’s decision 24 June 2016;

    h.The IAA had no rational basis to not be satisfied ‘the applicant could not have provided the new information to the delegate prior to the decision being made.’ [11], and the IAA appears to have considered that the Applicant became aware of the information in May 2016 as the IAA does not raise any other date or possibility the Applicant received the new information after that date or after the delegate's decision 24 June 2016;

    i.This information could have been clarified by the IAA getting new information under S 473DC, but the IAA did not appear to have considered its discretion to get new information as to when the Applicant received the new information, noting the use of the words 'the present situation’. Such failure amounts to jurisdictional error.

    j.The new information is relevant to the Applicant’s case in that it confirms the CID officers met his brother in law in May 2016 and ‘repeatedly’ questioned him about the Applicant's involvement in the LTTE in the past, mentioning that the CID officers were aware the Applicant had left Sri Lanka by illegal boat (correct information) and had been notified by the Sri Lankan High Commission staff in Australia as to the Applicant's presence in Australia (correct information) [CB227].

    k.The new information is further relevant as it confirms the CID has never stopped harassing and questioning Applicant's family's involvement in the LTTE in the past, especially the Applicant's participation as a LTTE cadre in the combat in 2009. [CB227]. It further confirms the CID had a basis to believe 'we' (ie., presumably his family members including himself) "were in fact LTTE cadres like my father". [CB227];

    l.As a result of the IAA's refusal to consider the new information, the IAA subsequently

    i.Was not satisfied the applicant has ever personally been of interest to the Sri Lankan authorities other than when he was caught up in a round up of Tamil males in 2007 during the civil conflict [57];

    ii.Was not satisfied on the evidence that the family’s LTTE connections have led to any interest in or suspicion in the applicant [57];

    iii.Found that neither the applicant [nor his brother] are persons of interest to the Sri Lankan authorities [58].

    The IAA accordingly made unreasonable and irrational findings, and thereby committed jurisdictional error.

    Parties’ submissions

1. The ground stated in the further amended application makes two related claims. The first is the Authority assumed the applicant became aware of the Relevant New Information in May 2016 or, at any rate, before 24 June 2016 when the delegate made his decision; but it was irrational or unreasonable for the Authority to have so assumed because there was nothing that could reasonably have supported such assumption. The second claim is that the Authority ought reasonably to have exercised the power under s 473DC(1) of the Act to obtain information from the applicant about when the applicant became aware of the Relevant New Information.

2. In his oral submissions, counsel for the applicant submitted that on a fair reading of the first paragraph of the Relevant New Information, the Authority ought reasonably to have understood the applicant to have conveyed that he had become aware of the Relevant New Information at around the time he had sent the 22 July 2016 Submissions to the Authority. The basis of that submission are the words “exceptional circumstances that have arisen which I wish to put forward to you are the present situation in Sri Lanka affecting my livelihood if I am sent back to Sri Lanka”. Counsel submitted that the Authority ought reasonably to have understood the words “present situation” to refer to information that was available to the applicant only after the day of the delegate’s decision.

3. The Minister, on the other hand, in his written submissions, submitted there was nothing in the 22 July 2016 Submissions that ought reasonably to have suggested to the Authority that the applicant was not aware of the events that allegedly occurred in May or June 2016 before the delegate made his decision. The Minister further submitted the Authority did turn its mind to whether the applicant was aware of the Relevant New Information, but dismissed this possibility in light of the applicant’s own evidence that he had not provided the whole truth because he did not think his application for a SHEV would be rejected.

   Determination

4. I accept the applicant’s submission that the Authority proceeded on the basis that the applicant had become aware of the events described by the Relevant New Information before 24 June 2016 and, in particular, by the end of May 2016. I do not, however, accept the applicant’s submission that, by using the words “present situation” the applicant intended to convey, or the Authority ought reasonably to have understood the applicant to have intended to convey, that the applicant had become aware of the Relevant New Information after 24 June 2016 or at around 22 July 2016, being the date of the 22 July 2016 Submissions.

   (a)First, “present situation” does not refer, or it was reasonably open to the Authority not to consider the expression “present situation” to refer, to the time at which the applicant claimed he became aware of the Relevant New Information. “[P]resent situation” referred, or it was reasonably open to the Authority to consider “present situation” to refer, to the risk of harm the applicant claimed existed at the time he prepared the 22 July 2016 Submissions because of the purported events the Relevant New Information describes. Those events are the activities of the CID officers which, according to the Relevant New Information, the applicant’s brother in law reported to the applicant’s mother in May 2016.

   (b)Second, the applicant’s use of “present situation” in the preface to the Relevant New Information is to be read with the words the applicant used in his preface to the third class of new information. The applicant there referred to circumstances that had arisen “at the moment”. That is a reference to the events of which the applicant claimed he had been informed occurred on 19 July and 20 July 2016. That implies the applicant intended to convey that he had only become aware of the third class of new information at around the time he prepared the 22 July 2016 Submissions. If the applicant had intended to convey that he had also become aware of the Relevant New Information at around the time the applicant prepared the 22 July 2016 Submissions, it is reasonable to expect that he would have referred to the events described in the Relevant New Information as also having arisen “at the moment”.

5. I am not satisfied it was not reasonably open to the Authority to have proceeded on the basis that the applicant had intended to convey that he had become aware of the events the Relevant New Information describes by the end of May 2016, and certainly before 24 June 2016. In the 22 July 2016 Submissions the applicant claimed he had been informed of events that purportedly occurred on 19 and 20 July 2016. That affords a rational basis for assuming that the applicant would have been informed by his family of events of which they were aware that occurred in Sri Lanka, and that were relevant to his claims for protection, near the time the applicant’s relatives had become aware of those events. That, in turn, affords a rational basis for inferring that the applicant’s family would have similarly informed the applicant of events that occurred in May 2016 near the time the applicant’s family became aware of those events.

6. I am also not satisfied that the Authority came under an obligation to consider whether it should exercise the power under s 473DC(1) of the Act to require information from the applicant about the time at which he became aware of the Relevant New Information. First, I have already concluded I am not satisfied it was not reasonably open to the Authority to have proceeded on the basis that the applicant had become aware of the events the Relevant New Information describes by the end of May 2016, and certainly before 24 June 2016.

7. Second, assuming the applicant did not make clear in the 22 July 2016 Submissions the time at which he intended to convey he became aware of the Relevant New Information, it would not have been unreasonable for the Authority not to ask the applicant for information about when he became aware of the Relevant New Information. By letter dated 27 June 2016,[16] the Authority informed the applicant that the delegate’s decision refusing to grant the applicant a SHEV had been referred to the Authority, and the Authority provided to the applicant a document titled “What you need to know about the Immigration Assessment Authority”,[17] and a document titled “Practice Direction for Applicants, Representatives and Authorised Recipients”.[18] These two documents give clear information about the circumstances in which the applicant could seek to have the Authority consider new information. In those circumstances, the Authority was under no duty to consider whether the applicant had correctly understood what the applicant needed to do to have the Authority receive new information or, if the applicant did understand what he had to do, whether the applicant did put forward all of the information it was necessary for him to put forward to have the Authority receive new information.

   [16] CB149

   [17] CB151

   [18] CB158

   DISPOSITION

8. The application will be dismissed.

9. As for costs, the parties’ legal representatives agreed that costs should follow the event. Ms Strugnell, who appeared for the Minister, submitted the Minister would seek an order that his costs be set in the amount of $7,000. I am satisfied that represents a fair indemnity of the costs the Minister has incurred in the proceeding. I will therefore order that the applicant pay the Minister’s costs set in the amount of $7,000.

10. Finally, I will order that the Minister’s name be changed to its current description.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       9 June 2023