COE16 v Minister for Immigration
[2019] FCCA 246
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COE16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 246 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by the Immigration Assessment Authority (Authority) affirming decision of a delegate not to grant Safe Haven Enterprise visa – whether new information provided to Authority could be considered under s.473DD of the Act - whether Authority failed to consider country information – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.5(1), 5AA, 5H(1), 473FB, 473DC, 473DD |
| Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 |
| Applicant: | COE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2452 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 November 2017 |
| Date of Last Submission: | 15 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M P Nesbeth |
| Solicitors for the Applicant: | Hall & Wilcox |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2452 of 2016
| COE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Sri Lanka, seeks judicial review of a decision of the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 785) visa (SHEV).
Background
The applicant travelled to Australia by boat, reaching the Cocos (Keeling) Islands on 26 September 2012.[1] The applicant, therefore, is an “unauthorised maritime arrival” as that expression is defined in s.5AA of the Migration Act 1958 (Cth) (Act).
[1] CB7
The applicant applied for a SHEV on 26 October 2015.[2] After being interviewed by a delegate of the Minister on 29 March 2016 (SHEV interview) the delegate refused the application on 17 June 2016. The delegate’s decision was referred to the Authority on 20 June 2016. On 18 August 2016 the Authority affirmed the delegate’s decision not to grant the applicant a SHEV.
[2] The Authority incorrectly states the application for a SHEV was lodged on 6 November 2015 (CB463, [1])
Claims for Protection
The applicant stated his claims for protection in a statutory declaration that formed part of his application for a SHEV.[3] His claims are as follows.
[3] CB205-208
a)The applicant is a Tamil and a Hindu. He was born in Batticaloa, Eastern Province.
b)In 2004 the applicant became involved in the Tamil National Alliance (TNA) by supporting the TNA during the election, by promoting them among the applicant’s community, and by printing election material.
c)After the tsunami, through a committee known as the “relief committee”, a group of members of the Liberation Tigers of Tamil Eelam (LTTE) became involved in relief activities in the applicant’s area. The applicant and his cousin, Mr V, who was a village administrative officer, helped the relief committee.
d)In July 2005, after cooperation between the government and the LTTE ended, and after a village administrator of a nearby village had been shot and killed by unknown people, unidentified people came searching for the applicant and his cousin, Mr V. It was widely believed that the men were from the CID (that is, the Criminal Investigation Division). The applicant’s family felt threatened for the applicant’s and Mr V’s lives. Mr V fled the country.
e)In 2006 the special task force (STF) created within the CID told the applicant to come to their office at Amparai. The applicant was interrogated with physical violence about his assistance to the LTTE, and how the applicant helped Mr V to escape.
f)In 2007 two relevant events occurred. First, the Karuna group forced the applicant to shut his shop, and paraded the applicant to their camp where the applicant was interrogated frequently over three days. On his return the applicant found his shop had been ransacked, with publications having been examined and equipment missing or broken. Second, the applicant was blindfolded and taken away to an unknown destination where he was interrogated frequently with severe violence for nearly ten days. The applicant was asked why he was supporting the TNA and helping with their activities, and whether the applicant was a supporter of the LTTE.
g)Due to “the ongoing problems” in 2008 the applicant, his wife, and their two infant daughters travelled to Malaysia with the intention of applying for protection in Europe. The applicant did not proceed with his intention because the applicant’s agent had abandoned him, the applicant received news from his 14-year-old adopted daughter who remained in Sri Lanka that the army questioned her extensively about the applicant and the rest of his family, and the adopted daughter had become ill. On his return to Sri Lanka the applicant and his family were detained at Colombo Airport, and the applicant was taken to a separate floor where he was held and interrogated with violence for one week.
h)In January 2010 the applicant travelled to Belarus to meet a person called A who was referred to the applicant by “someone” the applicant had met in Colombo. The applicant’s plan was “to settle somewhere in peace with some protection”. The applicant did not proceed with that plan because the applicant “found the agent unreliable”. The applicant returned to Sri Lanka.
i)In the middle of 2010 the applicant applied through an agent for an Italian visa. In July 2010 the CID arrested the applicant at Colombo Airport as he was trying to leave for Italy. The applicant was alleged to have obtained the passport through fraudulent activity. The applicant was kept naked and terrorised in a dark cell, and he was interrogated and pressured into accepting he was a LTTE cadre. The applicant was released after his family paid a bribe.
j)The applicant continued to operate his business in 2010 but because of “continual harassment and interrogations from various groups” he closed his store in late 2010 and relocated to his mother-in-law’s house.
k)In the meantime the applicant was required to report to the CID until his case regarding his Italian visa was heard. That matter was sent to court in August 2012 and resulted in the applicant being issued with a fine which the applicant paid. The applicant’s passport, however, was not returned to him, and the CID required the applicant to continue to report to them.
l)The applicant claimed he feared harm from various groups, including the Karuna group, the CID, and the Sri Lankan Army, if he were to return to Sri Lanka; and that he believed he would be targeted because of the problems he had previously experienced where he was “harassed of supporting [sic] the TNA and accused of supporting the LTTE”.
m)The applicant also claimed that while in Australia he fell down in the bathroom fracturing his skull. He requires regular check-ups and treatment from the doctor, and if he were to return to Sri Lanka he would not be able to follow appointments regularly, and the authorities will not allow the applicant to go to hospital, or otherwise understand that he needs treatment.
In support of his application the applicant provided two letters, one purportedly from a Mr K,[4] who signed the document as member of Eastern Provincial Council, and one purportedly from a Mr C,[5] who signed as “Ex Member of Parliament Ampara Distric” [sic]. The letter from Mr K purports to have been written on the letterhead of the TNA and states that the applicant had been attracted by “the doctrines of the Political Party Called and known as Ilankai Thamilarasu katchi” [sic], the applicant is a member of that party and had worked “for the Victory of mine and my Party”, and that in “this context, during the propaganda and even Presently, he is being Threanen his life by unidentifiable persons” [sic]. The purported letter from Mr C gave an account of various events involving harm to the applicant.
[4] CB126
[5] CB127
During his entry interview the applicant claimed he was the subject of extortion, but he did not make any such claim in his statutory declaration. In a supplementary statement the applicant submitted to the delegate after the SHEV interview the applicant referred to the delegate’s having asked the applicant why he did not mention extortion in the statutory declaration. The applicant stated he was unable “to properly explain this in my interview”.[6] The applicant then stated that he had received “three or four letters of extortion” to which the applicant did not respond, and that the applicant and his wife began receiving phone calls that were threatening, asking for money, and asking where the applicant was.
[6] CB374, [17]
Delegate’s decision
The delegate accepted the applicant was the owner and operator of a print shop that was subsequently closed; the applicant was known to be close to his cousin, Mr V, who was a local administrative officer who had dealings with various groups, the government, and the LTTE in the aftermath of the 2004 tsunami; Mr V fled Sri Lanka in 2005 after another local administrative officer and the applicant assisted Mr V to flee; the applicant is a low-level supporter of the TNA, a member of ITAK (being the Ilankai Thamilarasu Kadchi); the applicant was questioned by Sri Lankan authorities following Mr V’s departure from Sri Lanka; the applicant was stopped attempting to depart Sri Lanka on a forged Italian passport as a result of which the applicant’s passport was confiscated and the applicant detained in relation to a charge under s.45 of the Immigrants and Emigrants Act (IE Act); the applicant was released after posting bail and was required occasionally to report to the CID; in mid-2012 the applicant was found guilty of an immigration offence and fined 100,000 Sri Lankan rupees; and the applicant departed Sri Lanka illegally and, if returned to Sri Lanka, the applicant will be treated as a failed asylum seeker. The delegate otherwise did not accept the applicant’s claims.
There are two aspects of the delegate’s reasons for decision that may be relevant to the grounds on which the applicant relies. The first relates to the delegate’s finding that the applicant did not face a real risk of harm because he is a low-level supporter of the TNA.[7] The delegate relied on country information to the effect that the TNA holds a high-level of political legitimacy in Sri Lankan politics,[8] there was no evidence to suggest the assertion that government authorities, including the CID, or paramilitary groups such as the TMVP (that is, the Tamil Makkal Viduthalai Pulikal), actively target or persecute members of the TNA because of their political opinion,[9] and the current political environment in Sri Lanka is focusing on reconciliation and unity.[10]
[7] CB414, [119]
[8] CB413, [114]
[9] CB413, [114]
[10] CB412, [118]
The second aspect relates to the delegate’s findings in relation to the applicant’s knowledge of politicians. The delegate recorded that when asked to name some TNA candidates the applicant gave the names of K, P, S and R. The delegate said no information could be found to indicate the existence of an electorate candidate by the name of K, although the applicant provided a document purporting to be a letter from a similarly named K which country information showed was a TNA candidate for 2012.[11] The delegate noted that no information could be found to support the existence of TNA candidates by the name of S or R.[12]
[11] CB397, [54]. The purported letter is at CB126
[12] CB397, [54]
Applicant’s submissions to the Authority
By letter dated 20 June 2016 the Authority informed the applicant that the matter had been referred to it for review, and provided to the applicant information about the Authority and a document titled “Practice Direction for Applicants, Representatives and Authorised Recipients” (Practice Direction).[13] The Practice Direction was issued under s.473FB of the Act, which provides:
(1) The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:
(a) the operations of the Immigration Assessment Authority; and
(b) the conduct of reviews by the Authority.
[13] CB428-440
(2) Without limiting subsection (1), the directions may:
(a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or
(b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview.
(3) The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision.
(4) If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.
(5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.
The Practice Direction referred to s.473DD of the Act, and stated that the Authority can only consider new information (which it described as “information that was not before the Department”) if the Authority is satisfied there are exceptional circumstances to justify considering the new information.[14] It would be useful to set out here s.473DD of the Act:
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.
[14] CB439, [22]
The expression “new information” is defined in s.473DC(1) of the Act as any document or information that “were not before the Minister when the Minister made the decision under section 65” and “the Authority considers may be relevant”.
Paragraph 23 of the Practice Direction stated that if an applicant wanted to give new information, he or she must provide an explanation why the information could not have been given to the Department before the decision was made, or why the information is credible personal information that was not previously known, and which may have affected consideration of the applicant’s claims. Paragraph 24 of the Practice Direction further stated that any explanation given under paragraph 23 “should be no longer than 5 pages and must accompany any new information” an applicant gives the Authority.
On 7 July 2016 the applicant provided the Authority “further submissions in response to” the delegate’s decision (IAA Statement).[15] After identifying the aspects of the applicant’s claims the delegate accepted, the applicant submitted the delegate erroneously determined the applicant does not face a real chance of persecution should he return to Sri Lanka because of his affiliation with his cousin, Mr V, his imputed association with LTTE, his support for the TNA, his being a failed asylum seeker, and the applicant’s ethnicity. The applicant then stated that “[w]e provide new information addressing issues arising from the decision” that reveals there is a real chance the applicant will be persecuted for these reasons. The IAA Statement then sets out extensive country information in relation to a number of matters, one of which is a public announcement reported on 12 June 2018 that the TNA would no longer provide unconditional support to the Sri Lankan government (TNA Announcement). The IAA Statement also contained the following submissions:
19. In his protection visa interview, the applicant named a number of TNA candidates that he supported. The DIBP was unable to find information regarding TNA candidates and [S] or [R].
20. In his protection visa interview, the applicant explained that ‘[S]’ was a nickname for the candidate and he did not know his real name. He also explained that this candidate was in hiding.
21. Research has indicated that [R] (TNA) was a candidate and elected in 2012 Eastern Provincial council election, along with [K]. [R] was also noted as being a TNA party leader in 2015.
[15] CB454-456
In a footnote to paragraph 20 a link is given to what the footnote describes as “Nomination papers for the Ampara district submitted by TNA today! Details of candidates here’, 13 July 2015”.
Authority’s reasons
After setting out the delegate’s reasons for not granting the applicant a SHEV the Authority considered whether it could have regard to the IAA Statement, given s.473DD of the Act (the text of which I reproduced above). The Authority considered that, to the extent the IAA Statement contains legal argument in response to the delegate’s decision or country information that was referred to in the delegate’s decision, the IAA Statement did not constitute “new information”. The Authority considered the IAA Statement constituted “new information” to the extent it included extracts from country information that was not before the delegate. In relation to that information the Authority said:[16]
The applicant has not complied with Practice Direction 1 dated May 2016 (“the Practice Direction”) made by the President under s.473FB. He has not provided reasons addressing the requirement of s.473DD(b) as to why I should have regard to that new information. Without the benefit of those reasons, it is not apparent to me why the applicant was unable to put that country information before the delegate. In any event, I am not satisfied there exist exceptional circumstances which justify me having regard to that country information.
[16] CB463-464, [4]
The Authority then considered the applicant’s claims for protection.
Claims based on association with Mr V
The Authority was willing to accept or consider plausible that the applicant was close to Mr V, that Mr V was a local government official whom the applicant accompanied when Mr V exercised official duties, that Mr V’s performance of those duties brought Mr V into contact with the LTTE, the shooting death of another official motivated Mr V to leave Sri Lanka and that the applicant drove Mr V to the airport, and that the authorities questioned the applicant about Mr V’s whereabouts. The Authority, however, did not accept that the Sri Lankan authorities harmed the applicant at that time;[17] and the Authority was not satisfied the applicant will suffer serious harm from Sri Lankan authorities because of his relationship with V, given the Authority found there was no credible evidence before it that the applicant had been harmed by the Sri Lankan authorities for that reason.[18]
[17] CB466, [12]
[18] CB466, [13]
Claims based on extortion
The Authority was not satisfied the applicant “was extorted by the TMVP, the Karuna group or any anonymous persons in the past”.[19] The Authority so concluded because although there was country information that the TMVP and Karuna group had been implicated in extorting Tamil businesses, the applicant had given vague and inconsistent evidence about his being extorted.[20]
[19] CB467, [15]
[20] CB467, [14]
Claims based on association with TNA
The Authority accepted the applicant was the owner of a print shop business, that he ran that business until he departed Sri Lanka in 2012, that he supported the TNA, that it was plausible that the owner of a print shop would print materials for political parties at election times, and, for these reasons, the Authority was willing to accept the applicant was a low-level supporter of the TNA.[21] The Authority, however, did not accept the applicant was targeted for harm by the Sri Lankan authorities because of his association with the TNA, as claimed in the two reference letters the applicant provided in support of his application (these being the purported letters from Mr K and Mr C). The Authority relied on its concerns with the formatting of the letters containing poor English, the apparent “copy and paste” of TNA logos, and the assertion of events “not elsewhere claimed to have occurred by the applicant”.[22] The Authority also relied on country information “regarding the prevalence of fraudulent documents in Sri Lanka”.[23]
[21] CB467-468, [17]
[22] CB468, [18]
[23] CB468, [18]
The Authority accepted that in 2007 the applicant was questioned and assaulted by the Sri Lankan army several times during round-ups in his home village; the questioning was about matters that included support the applicant had given to the TNA and the LTTE; and that on one occasion the applicant had been detained for ten days. The Authority found, however, that the applicant had not been personally targeted by the Sri Lankan authorities; the applicant had been released, and that these events took place within the context of the Sri Lankan civil war that ended in 2009; the Authority also found it implausible that the CID or STF were looking for the applicant but could not find him because the Sri Lankan authorities could easily have located the applicant at his workplace;[24] and, in any event, the Authority noted the “country information quoted in the delegate’s decision that the TNA is now the official opposition in the national parliament since the 2015 elections and in power”.[25]
[24] CB469, [21]
[25] CB468, [19]
For these reasons the Authority was not satisfied there is a real chance the applicant will face serious harm from the Sri Lankan authorities because of his support of the TNA.[26]
[26] CB468, [19]
Claims based on imputed association with LTTE
The Authority was not satisfied the applicant faced a real chance of serious harm from Sri Lankan authorities because of an imputed pro-LTTE or anti-Sri Lankan government opinion or because he is a Tamil.[27] The Authority relied on the following matters:
a)The Authority found the applicant’s connection to the LTTE is remote and at a very low-level, and it did not find credible that a person with the applicant’s profile would be subjected to the level of questioning and monitoring to which the applicant claimed he had been subjected.[28]
b)The Authority also found it implausible that the CID or STF were looking for the applicant but could not find him because the Sri Lankan authorities could easily have located the applicant at his workplace.[29]
c)The applicant’s travel history – he travelled to Malaysia in 2008, to India in 2009, and to Belarus in 2010 – without being questioned at the airport strongly undermined the applicant’s claims he was detained or subjected to reporting conditions, or harmed by the Sri Lankan authorities at any time.[30]
[27] CB471, [27]
[28] CB469, [21]
[29] CB469, [21]
[30] CB469-471, [23]-[26]
Claims based on failed asylum seeker and illegal departure
The Authority was not satisfied the applicant faced a real chance of significant harm because he would be considered a failed asylum seeker.[31] The Authority also concluded that, although the applicant had left Sri Lanka illegally and would on his return be detained and charged, he would not be given a custodial sentence but would instead be sentenced to pay a fine. The Authority was not satisfied that any processes to which the applicant will be subjected or penalties that may be imposed on the applicant would amount to serious harm. In arriving at these conclusion, the Authority relied on a number of matters, including the following:
a)The Authority accepted that in 2010 the applicant was arrested, detained, and charged with offences under the IE Act for attempting to depart Sri Lanka using a fraudulent Italian visa, then released on bail, and then fined by a court.[32]
b)If the authorities suspect the applicant departed Sri Lanka illegally the applicant may be charged under the IE Act. As part of that process of arrest returnees remain in police custody at the CID’s airport office for up to 24 hours, but if a magistrate is not available over that time those charged may be held at a nearby prison.[33]
c)Penalties for breach of the IE Act includes imprisonment for up to five years and fines of up to 200,000 Sri Lankan rupees, but in practice penalties are applied on a discretionary basis and usually in the form of a fine. According to advice from Sri Lanka’s Attorney General’s Department no returnee who left Sri Lanka unlawfully as a simple passenger has been given a custodial sentence. Fines are common, but the amounts vary depending on the circumstances of the case, and are typically on the lower end, and may be paid by instalments.[34]
d)It is likely that on his return the applicant will be charged and fined under the IE Act and then released. If the applicant were to elect to plead not guilty he would be granted bail on personal surety or a family member. The applicant would not face any chance of being sentenced to imprisonment; it is likely he will be fined and, given the applicant’s having already been fined for breaching the IE Act when he attempted to leave Sri Lanka under a fraudulent Italian passport, the applicant would be given a larger fine for a second offence. The applicant did not claim he would be unable to pay a higher fine. The Authority found that the imposition on the applicant of any fine, or requirement of a surety or guarantee, would not constitute serious harm. The Authority considered the possibility of a custodial sentence being imposed on the applicant, but there was no country information before the Authority that indicated custodial sentences were being imposed against low profile illegal departees.[35]
[31] CB471-472, [29]-[30]
[32] CB472, [34]
[33] CB473, [36]
[34] CB473, [37]
[35] CB473, [38]
Authority’s conclusions
The Authority, therefore concluded the applicant was not a “refugee” within the meaning of s.5H(1) of the Act. Relying substantially on the same matters on which it relied for concluding the applicant is not a “refugee”, the Authority found there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm.
Ground 2
The applicant relies on the two grounds stated in the amended application. Following the course counsel for the applicant adopted at the hearing before me, I will first consider ground 2, which is as follows:
The IAA incorrectly applied s 473DD of the Migration Act 1958 in its treatment of the Applicant’s statement dated 7 April 2016 (‘the IAA Statement’).
Particulars
a) At [3] of its reasons for decision, the IAA concluded that the legal argument and country information already available to the Delegate were not new information and would be considered. However, it was considered that the IAA Statement also contained new information but would not be considered as the requirements of s 473DD had not been satisfied.
b) In its reasons for decision, particularly at [16] and [20] regard is had to new information contained in the IAA Statement.
c) The IAA failed to adequately distinguish between what aspects of the IAA Statement it could consider and those which failed to comply with s 473DD.
d) In having regard to the operation of s 473DD and why information could not have been made available to the delegate the IAA failed to consider that some of the new information post-dated the Protection Visa Interview on 29 March 2016.
Parties’ submissions
There is some complexity in the submissions the parties made. That, at least in part, is due to the handing down by the Full Federal Court of its judgment in Minister for Immigration and Border Protection v BBS16 on the day of the hearing before me.[36] The matters decided in that case were potentially relevant to ground 2 of the application and, for that reason, counsel for the Minister requested time to consider the judgment in BBS16 and obtain instructions. After some discussion it was agreed I would hear all the submissions the parties were in a position to make, and, at the conclusion of the hearing, make directions for the filing of further submissions with the parties having liberty to inform me whether they would require a further hearing or instead whether they would be content for me to deal with the matter without a further hearing. In the event, the parties filed written submissions,[37] and by email sent to my chambers on 25 January 2018 I was informed the parties were content for me to deal with the matter without a further hearing.
[36] [2017] FCAFC 176
[37] The applicant filed on 1 December 2017 a document titled “Applicant’s Further Submissions”, and on 15 December 2017 the Minister filed a document titled “Further Submissions of First Respondent”.
In the applicant’s written submissions dated 1 November 2017 it is apparent that ground 2 is directed to two items of “new information”. The first is the TNA Announcement, and the second is the information referred to in paragraph 21 of the IAA Statement (which I have reproduced in paragraph 14 of these reasons) (R Identity Information). In relation to the TNA Announcement the applicant makes two submissions. The first is the Authority either did not consider whether there were exceptional circumstances to justify considering the TNA Announcement or, if it did, the Authority did not properly consider that question. The applicant relies on the following matters:
a)There is nothing in the Authority’s reasons that indicates the Authority had in mind the TNA Announcement, or that the TNA Announcement was “new information” when concluding it was not satisfied there were exceptional circumstances to justify the Authority having regard to “that country information”.
b)The TNA Announcement was relevant to an aspect of the applicant’s claims, and in particular his claims based on the applicant’s being a supporter of the TNA. There is nothing in the Authority’s reasons that indicates the Authority considered whether the TNA Announcement was relevant which, in turn, indicates the Authority did not consider the TNA Announcement and whether there were exceptional circumstances to justify considering the TNA Announcement.
c)The TNA Announcement was made on 12 June 2016, many weeks after the SHEV interview that was held on 29 March 2016. That circumstance was relevant to whether there were exceptional circumstances to justify considering the TNA Announcement.
The applicant’s second submission in relation to the TNA Announcement is that the Authority fell into an error of the kind identified in BVZ16 v Minister for Immigration[38] because the Authority failed “to consider both s 473DD(a) (to the extent that it was considered) and s 473DD(b)”.[39]
[38] [2017] FCA 958
[39] Applicant’s Submissions, [26.a.]
As to the R Identification Information the applicant submits that, although the Authority referred to the applicant clarifying in the IAA Statement that the name of one of the politicians to whom he had referred in the SHEV Interview was a nickname, the Authority did not refer to the R Identification Information. The applicant submits that, given the credibility issues and suggestions of exaggeration, “the existence of a TNA candidate whom the applicant claimed he supported was relevant to whether the applicant’s accounts were to be accepted and to the ultimate finding that he was a ‘low level’ TNA supporter”.[40]
[40] Applicant’s Submissions, [33]
In his written submissions filed on 1 November 2017 the Minister submits as follows:
a)When providing the IAA Statement to the Authority the applicant failed to comply with paragraph 23 of the Practice Direction because the IAA Statement was not accompanied by an explanation why the information could not have been given to the Department before the decision was made, or why the information is credible personal information that was not previously known, and which may have affected consideration of the applicant’s claims. In those circumstances, s.473FB(5) of the Act applied, which means the Authority was not required to accept new information;[41] and the reasons the Authority gave in the fourth-last and third-last sentences of paragraph 4 in relation to new information “ought to be treated as those that it gave to justify its non-acceptance of” the new information.[42]
b)The penultimate sentence of paragraph 4 of the Authority’s reasons[43] ought to be treated as a finding that the applicant had not satisfied s.473DD(b) of the Act, and that conclusion is separate from, and independent of, the conclusion stated in fourth-last and third-last sentences of paragraph 4.[44]
c)The last sentence of paragraph 4 of the Authority’s reasons constitutes a finding under s.473DD(a) of the Act that there were no exceptional circumstances to justify considering any new information contained in the IAA Statement.[45]
d)The Authority did not make an error of the kind identified in BVZ16.[46]
[41] Outline Submissions of the First Respondent, [12]-[15]
[42] Outline Submissions of the First Respondent, [16]
[43] “Without the benefit of those reasons, it is not apparent to me why the applicant was unable to put the country information before the delegate.”
[44] Outline Submissions of the First Respondent, [17]
[45] Outline Submissions of the First Respondent, [19]
[46] Outline Submissions of the First Respondent, [21]-[26]
During the hearing before me, and in the applicant’s further written submissions filed on 1 December 2017, counsel for the applicant submitted the applicant did not fail to comply with the Practice Direction but, in any event, even if the applicant failed to comply with the Practice Direction, the Authority accepted the TNA Announcement because it considered whether exceptional circumstances existed for considering it.
From this summary of the parties’ submissions, the following issues arise:
a)Given the TNA Announcement is “new information” within the meaning of s.473DC of the Act, was it information that fell or could reasonably be considered to fall within s.473DD of the Act?
b)Assuming (a) is answered in the negative, does that mean that any failure by the Authority to consider, or properly consider the TNA Announcement, or any error the Authority may have made in construing or applying s.473DD of the Act results in the Authority having made a jurisdictional error?
c)Assuming the (a) is answered in the affirmative, did the Authority:
i)Receive the TNA Announcement?
ii)Assuming (i) is answered in the affirmative, did the Authority:
(A)make an error of the sort identified in BVZ16; or
(B)otherwise fail to consider or properly consider the TNA Announcement?
These issues relate only to the TNA Announcement. I must also consider, however, the applicant’s submissions about the R Identity Information. Before I consider these issues, it would be useful to set out some matters relating to the construction of s.473DD of the Act.
Construction of s.473DD
Section 473DD of the Act has been considered by the Full Federal Court of Australia on a number of occasions, a relatively recent occasion being Minister for Immigration and Border Protection v CQW17.[47] The effect of what the Full Federal Court said in CQW17 is that before the Authority can consider “new information” it must be satisfied of the matters stated in both s.473DD(a) and of either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act.[48] In other words, the requirements of s.473DD(a) and either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act are cumulative. That requires consideration of each of paragraphs (a) and (b) of s.473DD.
[47] [2018] FCAFC 110
[48] See also the judgment of Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [31]: “Cumulatively upon the precondition set out in s 473DD(a) . . . s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).”
Paragraph (a) requires that the Authority be satisfied there are “exceptional circumstances to justify considering the new information”. The meaning of the expression “exceptional circumstances” in the context of s.473DD was considered by Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[49]
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
[49] [2018] HCA 16 at [30] and [31] (footnote omitted)
Then there is s.473DD(b)(i) of the Act which requires that the information “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65”. That paragraph suggests it applies to information that exists at the time the Minister makes a decision under s.65 of the Act, whether or not an applicant was aware of the existence of the information. It is not necessary to say anything further about s.473DD(b)(i) because the applicant does not suggest the TNA Announcement was information that was not, and could not have been provided to the delegate before the delegate made his decision.
Next, there is s.473DD(b)(ii) of the Act which requires that the information 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”. The expression “credible personal information” is not defined in the Act. Subsection 5(1) of the Act, however, provides that “personal information” has the same meaning as in the Privacy Act 1988 (Cth). Section 6 of that Act defines “personal information” as “information or an opinion about an identified individual, or an individual who is reasonably identifiable . . . whether the information or opinion is true or not”, and “whether the information or opinion is recorded in a material form or not”.
In Plaintiff M174/2016 Gageler, Keane, and Nettle JJ proceeded on the footing that “personal information” as defined in s.5(1) of the Act was the meaning to be assigned to “personal information” contained in s.473DD(b)(ii).[50] After considering the meaning of “not previously known”, their Honours concluded as follows:[51]
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.
[50] [2018] HCA 16 at [33]: “In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”.
[51] [2018] HCA 16 at [34]
The next matter to note is that although paragraphs (a) and (b) of s.473DD are cumulative that does not imply the Authority must consider them sequentially – first paragraph (a) then either one of paragraphs (b)(i) or (b)(ii). That is because matters that are relevant to assessing whether paragraph (a) is satisfied may also be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) are satisfied, and matters that may be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) are satisfied may be relevant to assessing whether (a) is satisfied. This point was made by White J in BVZ16[52] in a passage that has been approved by the Full Federal Court on at least four occasions:[53]
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
[52] [2017] FCA 958 at [9]
[53] This passage was set out with approval by the Full Federal Court in CQW17 at [48] after which the Court noted: “His Honour’s view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).”
In BVZ16 White J held that the Authority had confined “its consideration of whether there were exceptional circumstances to the evaluation of the” review applicant’s “explanation for not having provided the information earlier”; and by doing so the Authority “had applied an unduly narrow interpretation of the term “exceptional circumstances””.[54]
[54] [2017] FCA 958 at [46]
Also relevant is the judgment of the Full Federal Court’s in AQU17 v Minister for Immigration and Border Protection.[55] In that case it was submitted the Authority had taken too narrow a view of what constitutes exceptional circumstances. The Full Federal Court noted, however, that the appellant “was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration”.[56] That implies that before it can be found the Authority has taken too narrow a view of what constitutes exceptional circumstances, it is necessary to identify some fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s.473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration.
[55] [2018] FCAFC 111
[56] [2018] FCAFC 111, at [17]
Was the TNA Announcement capable of falling within s.473DD?
The Minister submits that the TNA Announcement is not information that could, on any view, be said to be “personal information” for the purposes of s.473DD(b)(ii) of the Act. I accept that submission. The TNA Announcement is a representation to the effect that the TNA would no longer provide unconditional support to the Sri Lankan government. It is information about the TNA, and the TNA, although identified, is not an individual.
Consequences of s.473DD not applying to TNA Announcement
The next question is, assuming the Authority accepted the TNA Announcement, but then failed to consider, or properly consider the TNA Announcement, or the Authority made some other error, does the fact that s.473DD does not apply to the TNA mean that the Authority’s decision cannot be affected by such failure or error? That question is to be answered by the principles considered by the plurality in Hossain v Minister for Immigration and Border Protection.[57]
[57] [2018] HCA 34
In Hossain the plurality said that ordinarily an implied condition of a statutory conferral of decision-making authority is that the decision-maker “must proceed by reference to correct legal principles, correctly applied”.[58] The plurality further said that, again ordinarily, “a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition”; the “statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”;[59] and that, ordinarily, “breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision”.[60]
[58] [2018] HCA 34, at [29] quoting Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) [2010] HCA 41, at [78]
[59] [2018] HCA 34, at [29]
[60] [2018] HCA 34, at [31]
In my opinion s.473DD of the Act is to be interpreted as incorporating the threshold of materiality in the event of the Authority’s not complying with the implied condition that it must “proceed by reference to correct legal principles, correctly applied”. Further, any failure by the Authority to consider or properly consider the TNA Announcement, or any error the Authority may have made in purporting to apply s.473DD of the Act, was not material to its decision: had the Authority proceeded by reference to correct legal principles, correctly applied, it ought to have concluded that the TNA information was not new information to which s.473DD applied and, for that reason, was information it could not and would not have considered.
Other issues relating to the TNA Announcement
Given the conclusions to which I have arrived, it follows that ground 2 must fail to the extent it concerns the TNA Announcement. I will, however, briefly consider the issues that arise assuming that s.473DD did apply to the TNA Announcement. First, I accept the applicant’s submission that the Authority did receive the TNA Announcement. That is apparent from the Authority stating that “[i]n any event, I am not satisfied there exist exceptional circumstances which justify me having regard to that country information”. That indicates that although the Authority was of the view the applicant had not complied with the Practice Direction, and, as a consequence, the Authority was not in a position to determine why the applicant was unable to put that information before the delegate, the Authority nevertheless considered whether there were exceptional circumstances but concluded there were no such circumstances. That constitutes the Authority’s engaging or purporting to engage with s.473DD(a) of the Act.
Second, I am not satisfied that, in concluding it was not satisfied there existed exceptional circumstances to justify the Authority having regard to new information, the Authority was not aware the TNA Announcement was new information, or that it did not have regard to the matters the applicant claims the Authority ought to have but did not have regard to when so concluding. The Authority was aware the IAA Statement contained information that was both new and not new information, thus indicating the Authority read the IAA Statement; and there is nothing to suggest the Authority was not aware of the date on which the SHEV interview occurred, the date on which the delegate made its decision, and the date on which the TNA Announcement was published. Given these conclusions, it also follows I am not satisfied the Authority made an error of the sort identified in BVA16.
R Identity Information
As I have already noted the applicant submits the Authority did not consider the R Identity Information. The basis of that submission is that the Authority referred to that part of the IAA Statement that, in turn, referred to two TNA politicians, namely S and R, but the Authority only referred to that part of the IAA Statement that had referred to S (being the nickname for the politician). The applicant submits that “the existence of a TNA candidate whom the applicant claimed he supported was relevant to whether the applicant’s accounts were to be accepted and to the ultimate finding that he was a ‘low level’ TNA supporter”.[61]
[61] Applicant’s Submissions, [33]
I am not prepared to find that only because the Authority did not refer to the applicant’s having identified the name of R that the Authority did not take into account the applicant’s having also identified in the IAA Statement the identify of R. First, that the IAA referred to that part of the IAA Statement that the applicant referred to one of the politicians R by nickname indicates the Authority Read the IAA Statement. Second, the Authority accepted the applicant was a low-level supporter of the TNA, thus suggesting the Authority had accepted that R was in fact a TNA party leader in 2015, and that the applicant’s not being able to identify R during the SHEV interview was not a matter that could count against the applicant’s claims that he was a TNA supporter. Third, the applicant has not articulated how the identity of R as a leader could be relevant to that part of the applicant’s claims the Authority did not accept. In my opinion, the identity of R was not reasonably capable of supporting anything more than that which the Authority found, namely, that the applicant was a low-level supporter of the TNA. Thus, even if the Authority had not considered the R Identity Information, this would have been an immaterial omission. That is, had the Authority considered the R Identity Information, that could not have resulted in the Authority making a different decision.
Ground 2 - conclusion
For these reasons, ground 2 fails.
Ground 1
Ground 1 is as follows:
The IAA failed to properly consider the applicant’s claim that he will be imprisoned for a second offence of departing Sri Lanka illegally or an integer of those claims.
Particulars
a) The IAA accepted that the applicant was arrested and imprisoned for a week for attempting to leave Sri Lanka with a fraudulent Italian passport in 2010 and later fined in 2012 [32]-[34].
b) The IAA accepted that the applicant left Sri Lanka illegally a second time before coming to Australia in 2012, in contravention of the Immigrants and Emigrants Act 1949 (Sri Lanka) (‘IEA’).
c) The IAA acknowledged that penalties for leaving Sri Lanka illegally can attract a penalty of up to five years imprisonment and a fine of up to SLR 200,000 [37].
d) At [38] the IAA finds [sic] that it is likely that upon his return to Sri Lanka the applicant will be charged and fined under the IEA and released.
e) This finding was not supported by any evidence or country information referred to, particularly for re-offenders, and constitutes jurisdictional error.
In his written submissions the applicant makes two submissions. One is that the Authority failed to consider country information that was before it, and in particular the following passage from an extract of a report prepared by the Department of Foreign Affairs and Trade (DFAT) that I set out in the delegate’s reasons for decision:[62]
Sri Lankans who depart, or attempt to depart, Sri Lanka without properly documented authority commit a criminal act under Section 45 of the Immigration Act 1998(1)(b). . . . Sri Lankan police advise that terms of imprisonment are usually imposed where the offenders are repeat offenders or have some connection with associated smuggling activities.
[62] CB402, [71
The basis of the applicant’s submission that the Authority did not consider this country information is that it does not refer to it in its reasons. The applicant also relies on the Authority’s statement that “there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees”.[63]
[63] CB473, [38]
The second submission the applicant makes is directed to the Authority’s finding that on his return the applicant would be considered an “ordinary illegal departee from Sri Lanka”.[64] The applicant submits that in so finding the Authority failed to consider “all integers of his claim”, these being country information that indicated imprisonment was a penalty which could be applied to repeat offenders, the applicant would be considered a repeat offender, the applicant had been previously convicted of attempting to leave Sri Lanka using a fraudulent passport, the applicant would fall into the social group of returned asylum seekers, the applicant having been questioned following Mr V’s sudden departure in July 2005, the applicant’s having been detained for 10 days and interrogated with violence in 2007 due to suspected links with the LTTE, the applicant’s support for various TNA politicians, the TNA Announcement, and a “combination of any of the above”.[65]
[64] CB473, [38]
[65] Applicant’s Submissions, [11]
Failure to consider country information
It is true the Authority did not refer to that part of the DFAT report which referred to the advice of Sri Lankan police “that terms of imprisonment are usually imposed where the offenders are repeat offenders or have some connection with associated smuggling activities”; and it is true the Authority stated there was no country information that indicates custodial sentences are being levelled against low-profile illegal departees. I am not prepared to find, however, that the Authority did not consider that information.
The applicant’s submissions assumes that the applicant’s conviction under the IE Act on his return would be a conviction for the same offence for which the applicant had been convicted in 2012 based on his attempted departure from Sri Lanka by use of a forged Italian passport. That assumption, however, is not warranted. The delegate’s reasons refer to two items of country information relating to the illegal departure from Sri Lanka.
a)The first is the country information the applicant submits the Authority failed to consider. The country information is from a DFAT report of 2013 (2013 DFAT Report), and it concerns offences under the IE Act based on departing, or attempting to depart Sri Lanka without properly documented authority. The delegate referred to this report in the context of assessing the applicant’s claims that he had attempted to depart Sri Lanka by using a forged Italian passport; and the extract from the 2013 DFAT Report was from a section in that report that dealt with the consequences of a “false document” being “discovered by airline staff or foreign ALO’s”, that consequence being the passenger’s being reported to the Sri Lankan police. The 2013 DFAT Report referred to the penalty being a fine of up to 50,000 Sri Lankan rupees, or imprisonment for up to two years.
b)The second item of country information to which the Authority referred is that contained in a 2015 DFAT report that is set out in a different section of the delegate’s reasons for decision (2015 DFAT Report).[66] The delegate set out extracts from the 2015 DFAT Report when considering the applicant’s claims based on his being a failed asylum seeker. The delegate referred to s.45(1)(b) of the IE Act noting that it makes it an offence for a person to depart Sri Lanka other than via an official port of entry or exit, such as a seaport or airport; and it refers to penalties including custodial sentences of up to 5 years, and a fine of up to 200,000 Sri Lankan rupees.[67] Further, the delegate’s reasons for decision contain extracts from the DFAT 2015 Report which includes the statement that “DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence from departing Sri Lanka illegally”.[68]
[66] CB416-417, [125]-[128]
[67] CB416, [125]
[68] CB416, [128]
The Authority referred to the second, but not the first of the two sources of country information. The Authority said:[69]
If the authorities suspect the applicant has departed Sri Lanka illegally, he may be charged under the IAEA. . . . Penalties can include up to five years imprisonment and fines of up to SLR200,000. DFAT advises that in practice, penalties are applied on a discretionary basis and usually in the form of a fine. Advice from Sri Lanka’s Attorney General Department to DFAT is that no returnee who left Sri Lanka unlawfully as a simple passenger has been given a custodial sentence for their breach of t IAEA.
[69] CB473, [36]-[37]
Given that the two items of country information could reasonably be considered to refer to two distinct classes of offences, having different legal consequences for those who contravene them, and given that the 2015 DFAT Report could reasonably be seen as correctly identifying the class of offence for which the applicant would be prosecuted on his return to Sri Lanka, it would have been reasonably open to the Authority to find that the applicant would be charged with a different offence from that for which he was charged in 2012 and, for that reason, he would not be considered to be a repeat offender. In those circumstances, I am not prepared to find that the explanation for the Authority’s not referring to the 2013 DFAT report was due to its not having considered it. An equally likely, if not more likely explanation is that the Authority considered that the 2013 Report was not relevant, or that the 2015 DFAT carried more weight than the 2013 DFAT report.
Failure to consider integers
I have already concluded I am not prepared to accept the Authority did not consider the 2013 DFAT report to the extent it reported on the legal consequences of persons who commit offences by attempting to depart Sri Lanka using forged documents. Further, the Authority did take into account when assessing the penalties the applicant would face on his return to Sri Lanka the fact that he had already been fined for attempting to leave Sri Lanka by using a forged Italian passport: the Authority found the applicant would be given a larger fine for a second offence.[70]
[70] CB473, [38]
It is true that, when considering the applicant’s claims based on his being a returned asylum seeker, the Authority did not assess whether those aspects of the applicant’s claims it accepted concerning his having been questioned following Mr V’s sudden departure in July 2005, the applicant’s having been detained for 10 days and interrogated with violence in 2007 due to suspected links with the LTTE, the applicant’s support for various TNA politicians, or the TNA Announcement, would result in a risk of harm to the applicant due to his being a failed asylum seeker. The Authority, however, found that these matters did not give rise to any real risk of harm to the Applicant; and the applicant has pointed to nothing that could reasonably have suggested to the Authority that, given, as the Authority had found, these matters did not give rise to a real risk of harm to the applicant they nevertheless increased the risk of harm to the applicant when considered in the context of the applicant’s claims based on his being a returned asylum seeker. There is nothing that was before the Authority that could reasonably have suggested any such increased risk.
This part of ground 2, therefore, also fails.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs at the time I pronounce my order dismissing the application.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 8 February 2019
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