CJX17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 25
Federal Circuit and Family Court of Australia
(DIVISION 2)
CJX17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 25
File number(s): MLG 1171 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 25 January 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visa – where the applicant was not invited to interview with Authority – consideration of sections 473DC and 473DD of the Migration Act 1958 (Cth) – whether the Tribunal conflated requirements for ‘getting’ and ‘considering’ new information – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 473DC, 473DD Cases cited: DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375
EMJ17 v Minister for Immigration & Border Protection [2018] FCA 1462
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 6 September 2022 Date of hearing: 6 September 2022 Place: Melbourne Counsel for the Applicant: Mr S Sharify Solicitors for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr J Barrington Solicitors for the First Respondent: Mills Oakley ORDERS
MLG 1171 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CJX17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULITCULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
25 January 2023
THE COURT ORDERS THAT:
1.The applicant’s amended application filed on 6 June 2022 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
3.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 1 May 2017, in which the Authority affirmed a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (‘protection visa’).
The applicant seeks orders quashing the Authority’s decision and directing the Authority to review the delegate’s decision according to law.[1]
[1] Amended initiating application filed on 6 June 2022.
The Minister opposes this application and seeks that the application be dismissed with costs.[2]
[2] Minister’s Outline of Submissions filed on 18 August 2022.
BACKGROUND
The applicant is a Sri Lankan citizen who arrived on 11 September 2012 as an unauthorised maritime arrival.[3]
[3] Court book at page 154.
Application for protection visa on 30 May 2016
On 30 May 2016, the applicant lodged his application for a protection visa.[4]
[4] Court book at pages 38 to 113.
The applicant’s claims for protection are set out in various statements, including a statutory declaration sworn on 19 September 2013 and 24 May 2016,[5] as well as his protection visa interview. In summary, the applicant claimed that:
[5] Court book at pages 80 to 82; Court book at pages 144 to 146.
(a)he lived in a village south of Batticaloa, where his family remains living;
(b)he has no association with the Liberation Tigers of Tamil Eelam (‘LTTE’);
(c)he and/or his family were associated with the Tamil National Alliance (‘TNA’);[6]
(d)in 1991, he was detained for three days and beaten by the Sri Lankan Army for visiting a Hindu temple in an LTTE-controlled area without permission;
(e)whilst studying in Batticaloa he became friends with a person named ‘K’;
(f)in or about May 2007, K spent six days at the applicant’s home – the applicant did not see or speak with him again after this;
(g)on 29 May 2012, the Criminal Investigation Department (‘CID’) went to the company where the applicant had previously worked inquiring about the applicant and K. Later that same day, two unidentified men attended the applicant’s family home and made inquiries to his mother about him;
(h)the applicant was then advised that K had just died and a funeral had been held for him;
(i)the applicant says that he subsequently found out that K had been a member of the LTTE;
(j)K’s family suspected that there was a link between K’s death and the CID;[7]
(k)the applicant was extremely fearful for his safety when he heard about K’s death; and
(l)the applicant has been told by his family that in October 2014, after he arrived in Australia, some unidentified people went to his neighbourhood and sat near his house watching for a couple of hours. The applicant believes that they were the CID.
[6] Court book at page 22.
[7] Statutory declaration sworn on 24 May 2016 at paragraph [1]; Court book at page 80.
The applicant states that as a result of these incidents, he decided to flee Sri Lanka.[8]
[8] Statutory declaration sworn on 19 September 2013 at paragraphs [7] to [16]; Court book at pages 144 to 145.
He says that his brother and sister have told him that even after he left the country, the CID has continued to look for him.[9] The applicant says that his mother has also left her home as a result of the CID’s continued searches for the applicant, and has moved in with his older brother.[10]
[9] Statutory declaration sworn on 19 September 2013 at paragraph [23]; Court book at page 145.
[10] Statutory declaration sworn on 19 September 2013 at paragraph [22]; Court book at page 145.
The applicant says that he believes that the CID suspect that he was associated with the LTTE due to his friendship with K.[11]
[11] Statutory declaration sworn on 24 May 2016 at paragraph [7]; Court book at page 81.
On 1 March 2017, a delegate of the first respondent refused to grant the applicant the visa.[12]
[12] Court book at pages 151 to 166.
Referral to Authority for review on 7 March 2017
On 8 March 2017, the applicant was notified by letter that the matter had been referred to the Authority for review.[13]
[13] Court book at pages 168 to 169.
On 13 April 2017, the applicant’s representative provided legal submissions, a statement from the applicant clarifying the claims made and evidence given previously, as well as a letter from the Village Services Officer, together with a translation of that document into English.[14]
[14] Court book at page 186 and following.
Relevantly at paragraph [10] of the applicant’s statement provided to the Authority dated 13 April 2017, he requested that if the Authority had any concerns about his credibility, that he be granted an in-person interview to allow him to respond to those concerns.[15]
[15] Court book at page 188.
The Authority ultimately did not exercise its power to interview the applicant under section 473DC(3) of the Migration Act 1958 (Cth) (‘the Act’). Relevantly, the Authority dealt with this issue at paragraph [11] of its decision record where it said:
11.The applicant’s statement to the IAA requests an in-person interview with the IAA to respond to any concerns about credibility or claims. The IAA may get new information and consider it in limited circumstances, and has an obligation to invite comment on certain new information, but unlike reviews under Part 7 of the Act, there is no right to an interview or hearing. Given I have taken a different view to the delegate on the applicant’s credibility, I am not satisfied that an interview is necessary or required.
Authority decision on 1 May 2017
Ultimately, on 1 May 2017, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.[16]
[16] Court book at pages 197 to 198.
A record of the Authority’s decision of 1 May 2017 is at pages 201 to 220 of the court book.
Ground of review
The applicant raises only one ground of review in his amended application filed on 6 June 2022, namely that:
1.In assessing whether the Applicant was to be granted an interview under Section 473DC of the Migration Act 1958 (Cth) (‘the Act’), the Second Respondent misunderstood the scope of its power under s 473DC.
Particulars
(i)In determining not to grant an interview to the Applicant pursuant to s 473DC, the Second Respondent determined (at [11]) ‘The IAA may get new information and consider it in limited circumstances. Given I have taken a different view to the Delegate on the Applicant’s credibility, I am not satisfied that an interview is necessary or required.’
(ii)However, the Second Respondent then determined at [20] ‘I find the Applicant has embellished the number and frequency of visits that he has claimed.’
(iii)In making this finding, the Second Respondent has made its own adverse finding as to the Applicant’s credibility, which the First Respondent did not make.
(iv)In so reasoning, the Second Respondent has misunderstood the scope of its power under s 473DC. That is, it has conflated the limited circumstances in which new information can be considered pursuant to section 473DD, with the power to obtain new information pursuant to s 473DC, which is relatively unconfined.
In essence, by this ground, the applicant submits that the Authority conflated its power to get new information under section 473DC of the Act with its power to consider new information under section 473DD of the Act.
The Minister concedes that if the Authority had read the limitations in section 473DD as applying to its power under section 473DC, that this might amount to a jurisdictional error.[17]
[17] Minister’s Outline of Submissions filed on 18 August 2022 at paragraph [28].
The Authority’s findings at paragraph [11] must be read in the context of the findings made by the delegate at page 157 of the court book where the delegate found:
… the applicant has fabricated the claim about [K] being a member of the LTTE intelligence wing …[18]
[18] Delegate decision record dated 1 March 2017.
The delegate also went on to conclude that the CID had no ‘interest in the applicant whatsoever as a result of his association with [K]’.[19] Ultimately, and for the reasons set out at paragraph [16] of the Authority’s decision record, the Authority did not draw any adverse inference as to credibility arising from the applicant’s genuinely held beliefs about K’s activities and the circumstances in which K died.
[19] Court book at page 157.
Relevantly, at paragraph [17] of its decision record, the Authority was prepared to accept that there was a friendship between the applicant and K and that K stayed with the applicant for six days in 2007 as claimed. The Authority was also prepared to accept that the applicant believed that K was involved with the LTTE and was killed in 2012.
The Authority then went on to accept that it was plausible that the CID made inquiries of the applicant about K.[20] The Authority was also prepared to accept the applicant’s claims that the CID made a number of visits to the applicant’s family home after the applicant left Sri Lanka.[21]
[20] Tribunal decision record dated 1 May 2017 at paragraph [18].
[21] Tribunal decision record dated 1 May 2017 at paragraph [19].
The Authority’s comments at paragraph [11] of the decision record, which are central to the applicant’s sole ground of review, must be considered in the context of these findings.
Statutory framework
The parties agree on the legislative framework which is relevant to the consideration of this application, as well as the principles which arise from the authorities in this area. The difference between them is the proper characterisation of the Authority’s reasons at paragraph [11] of its decision record.
Before considering the parties’ respective arguments in this regard, it is appropriate to set out the applicable statutory framework.
Section 473DC of the Act deals with the circumstances in which the Authority may get ‘new information’ and relevantly provides:
(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.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD of the Act then deals with the circumstances in which the Authority may consider any such new information. That section relevantly provides:
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.
As stated, it is submitted for the applicant that the Authority erred by conflating the limitations in section 473DD into the power in section 473DC. In support of this submission, the applicant relies upon the findings made by Thawley J in EMJ17 v Minister for Immigration & Border Protection [2018] FCA 1462 (‘EMJ17’) where his Honour held that:[22]
62.… the Authority approached the task of whether to get new information under s 473DC on the basis that it was required to be satisfied there were ‘exceptional circumstances’ within the meaning of s473DD. That was erroneous. Whether ‘exceptional circumstances’ exist for the purposes of s 473DD may depend in part on the nature and content of the new information which has been obtained; the question whether to get new information arises before the information has been obtained.
63.If the Authority had taken the view that the circumstances were not sufficiently unusual or exceptional to warrant getting the information, that may not have been erroneous … the error lies in the Authority thinking the discretion in s 473DC(1) was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), ‘exceptional circumstances’ within the meaning of s 473DD(a) which would justify the Authority later considering the new information. That issue only arises once the Authority has got the ‘new information’. The determination of that issue might depend in part on the nature and content of the material so obtained. It is not known what approach the Authority would have taken if it had not thought there was a requirement for it to be satisfied that, at the time it considered its discretion under s 473DC(1), there then existed ‘exceptional circumstances’ within the meaning of s 473DD(a).
[22] See Applicant’s Outline of Submissions filed on 14 June 2022 at paragraph [18] and following.
The applicant concedes that in this case, the conflation between ‘getting’ and ‘considering’ the new information is not as obvious as it was in EMJ17.[23]However, the applicant states that the conflation is apparent from the Authority’s reasoning at paragraph [11] of its reasons.
[23] Applicant’s Outline of Submissions filed on 14 June 2022 at paragraph [21].
In the applicant’s written submissions, the applicant puts it this way:
22.… a closer inspection reveals that the Authority has made the same error. In stating that the Authority may ‘get new information and consider in limited circumstances’, the Authority has expressed its power to get new information as being narrowed by its limited ability to consider new information.
23.The Authority may not proceed under such a misapprehension because it simply does not know whether the limited circumstances in which new information may be considered exist, until it has determined the content of the new information.
24.Moreover … it is inaccurate to describe the Authority’s ability to get new information as being ‘limited’. The Authority’s discretion to get new information is very broad, with the only requirements being that … the information was not before the delegate, and that the information may be relevant. This lies in stark contrast to the exceptional circumstances requirement of considering new information. (emphasis in original)
The applicant further submitted that had the Authority not taken such a restrictive view of its ability to get new information, it may have granted the request for an interview.[24] This is particularly so, the applicant submits, in the context of the adverse credibility findings made by the Authority which had not been made by the delegate.[25]
[24] Applicant’s Outline of Submissions filed on 14 June 2022 at paragraph [25].
[25] Applicant’s Outline of Submissions filed on 14 June 2022 at paragraph [26].
In its written submissions, the first respondent asserts that the applicant’s submission relies upon a misreading of the Authority’s reasons.[26]
[26] Minister’s Outline of Submissions filed on 18 August 2022 at paragraph [30] and following.
In essence, the Minister’s submissions assert that the proper reading of paragraph [11] of the Authority’s reasons require the words ‘in limited circumstances’ to be read as applying only to the consideration of any new information and not to the getting of new information. The Minister further submits that so read, the Authority did not misunderstand its powers, but rather, acted consistently with the High Court’s recent description of these powers in DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375.[27]
[27] Minister’s Outline of Submissions filed on 18 August 2022 at paragraph [31] and following.
It is agreed between the parties that the Authority has the power to ‘get’ new information and it has the power, in limited circumstances, to ‘consider’ any such new information. The issue in this case is whether the statement made by the Authority at paragraph [11] of its decision record indicates that it conflated the distinct matters to which it ought to have had regard in deciding whether to get new information (in the form of inviting the applicant to an interview) and whether to consider any such new information obtained.
Consideration
When read fairly and in context, I find that the Authority was doing no more in paragraph [11] of the decision record than describing its powers under Part 7AA of the Act.
First of all, unlike EMJ17, there is no suggestion in paragraph [11], or elsewhere in the Authority’s reasons, that the Authority determined not to invite the applicant for an interview because there were no ‘exceptional circumstances’. Had it done so, as was the case in EMJ17, this would have clearly indicated that the Authority had conflated its powers under sections 473DC and 473DD of the Act.
Rather, at paragraph [11], the Authority said that it did not consider that an interview was necessary or required. Moreover, it indicated that it came to this view because it did not make the same adverse credibility findings made by the delegate.
Furthermore, the remainder of paragraph [11] is a general description of the Authority’s powers under Part 7AA of the Act. In particular, the Authority notes that unlike a review under Part 7 of the Act, there is no right to an interview or a hearing. This is clearly a reference to the distinction to be drawn to a review under Part 7AA.
It is well settled that the statement of reasons delivered by the Tribunal is to be read fairly and not with an eye keenly attuned to error.[28] Applying this principle, and on balance, I find that the interpretation contended for by the applicant in this case is not open. This is the case, not only by reference to the wording of paragraph [11] itself for the reasons discussed above, but it is also evident from the remainder of the Authority’s reasons that it was well aware of the distinct powers it had under sections 473DC and 473DD of the Act.
[28] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
For example, at paragraph [7] of the decision record, the Authority refers to a letter and certified translation provided to the Authority as part of the applicant’s submission dated 13 April 2017. Relevantly, the Authority states that the:
7.… letter post-dates the decision and I am satisfied that it is new information. It refers to, and largely repeats, the evidence that the applicant has previously provided to the Department. The applicant states that he tried to obtain this letter earlier but the officer was scared of the authorities and only recently agreed to provide this letter. …
At paragraph [8], the Authority then goes on to say:
8.I take into account that the applicant was not represented or assisted at the interview and although the interviewing officer stated that the Department would consider any information received before the decision was made, I am satisfied that the applicant was unable to obtain this letter before then. I am satisfied that there are exceptional circumstances to justify considering this new information.
It is clear from these paragraphs that the Authority was aware of the different considerations which applied to getting new information under section 473DC and considering new information under section 473DD of the Act.
For these reasons, the sole ground of review is not made out.
Conclusion
I therefore order that the applicant’s application be dismissed and that the applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
In addition, the first respondent seeks an order to amend its name to reflect current administrative arrangements. It is appropriate to make such an order.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mercuri. Deputy Associate:
Dated: 25 January 2023
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