CPA16 v Minister for Immigration
[2018] FCCA 2700
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPA16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2700 |
| Catchwords: MIGRATION – Application for judicial review – protection application – Immigration Assessment Authority – failure of Secretary to transmit all of the evidence before the delegate to the IAA – whether jurisdictional error where IAA did not have all of the relevant evidence before the delegate – finding that constitutional writs should issue. |
| Legislation: Migration Act 1958 (Cth), ss.473DD, 473BD, 473CB(1)(b), 473DA(2), 473DC |
| Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 CRJ16 v Minister for Immigration & Anor [2017] FCCA 727 Minster for Immigration and Border Protection v CRY16 [2017] FCAFC 210 |
| Applicant: | CPA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1965 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 28 May 2018 |
| Date of Last Submission: | 28 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Barefoot Immigration & Legal Services |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue, quashing the decision of the Second Respondent dated 19 August 2016.
A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1965 of 2016
| CPA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (“the IAA”) dated 19 August 2016. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa.
The applicant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia as an illegal maritime arrival on 27 August 2012. On
4 October 2015 the applicant applied for a protection visa.
The delegate did not find the applicant’s claims that he was of interest to the Sri Lankan authorities to be credible or that he would be associated with the LTTE: see delegate’s decision at [54]. The application was referred to the IAA on 15 July 2016.
The applicant’s claims are summarised at [13] of the IAA’s decision as follows:
·The applicant is a Tamil and a Catholic from Northern Province.
·In 2008, he was requested to join the LTTE, but did not agree. As noted above, in the IAA submissions, the applicant made new claims that he was an informant for the LTTE from 2005 to 2009. He began this role as a compromise so as not to be forcibly recruited as a fighter. He used his Singhalese language skills and the proximity of his workplace in Colombo to a named military base to provide troop movement information to LTTE leaders in Colombo. He further claims he grew up in an LTTE controlled area and he was heavily influenced by their ideology.
·The applicant then went to Malaysia in 2008, he has given various reasons for doing that and various reasons why he returned to Sri Lanka 6 months later.
·From around January 2010 he worked for a named TV station which broadcast in the applicant's home district. In the IAA statement he said he took up that work in part because of his pro-LTTE and pro-Tamil political views and wanting to promote Tamil interests.
·In February 2011, he was a cameraman and journalist assistant to same named co-workers who interviewed two named TNA members of parliament at a Tamil village which was one of several the government appeared to have deliberately flooded by opening a dam.
·The morning after the TV station broadcast that interview as part of a named programme, two CID officers and several plain-clothed police came to the TV station office. They assaulted the editor. The applicant, one of the cameramen and another staff he assisted were at the TV station too. He and those colleagues were taken to the police station and held overnight. The next day they were transferred to a CID office. He heard one of the police speak on the telephone to a person he assumes to the Minister.
·At the CID office, the applicant was interrogated and beaten. He was asked about his connection to the LTTE. A businessperson friend of the applicant's employer was able to arrange the applicant's release.
·After his release, it was clear to the applicant the Minister was responsible for their arrest as the Minister feared losing support in upcoming elections from the bad publicity arising from the flooding.
·The TV station was sealed on the day of the applicant's arrest and has not operated since. The applicant's colleagues began working at another named TV station and have since all left Sri Lanka. The applicant then changed careers to work in construction. In the IAA statement he made new claims he was fearful his past role with the LTTE would come to light if he was subject to further investigation, so he ceased working in the media.
·In May 2011, the applicant's father successfully ran for the TNA as Chairman for the local Pradeshiya Sabha. His father held that position until recently (as at October 2015).
·The Minister caused difficulty to the applicant and the applicant's father, because they were from the TNA and the Minister feared not being re-elected in (the then) upcoming parliamentary elections, as many Tamils support the TNA. The applicant's father rejected a bribe from the Minister to give the applicant's brother a government job. The Minister has threatened the applicant's father on several occasions.
·In July 2012, some Muslim fishermen protested outside the court house of the applicant's home town regarding a fishing dispute with Tamil fishermen. As the church treasurer, the applicant accompanied the priest, some other churchgoers and some affected Tamil fishermen to see the protest. Some media were covering the protest. The applicant left when the protest became unruly and violent. The army had to be called to disperse the protest. Some of the Muslim men were arrested through footage of the protest the media handed to police.
·A week later, at a time he was at a Church event in the village of his parents, the Minister's men came to the home of the applicant's wife in search of the applicant. He believes the men accuse him of providing the footage to the police and wished to abduct and harm him. This event led to the applicant leaving Sri Lanka.
·Since he came to Australia, supporters of the Minister have looked for the applicant several times at his wife's home. They made threats against him to his wife and his wife continues to receive anonymous threatening phone calls inquiring as to his whereabouts.
The IAA’s Findings
The IAA summarised the applicant’s fear of return to Sri Lanka under the following four categories at [14]:
(a) from the Minster, the supports of the Minister and/or the police;
(b) because he will be implicated with the LTTE;
(c) because he applied for asylum in Australia; and
(d) because he departed Sri Lanka illegally.
The IAA considered the applicant’s claims in relation to his working at a TV station. The IAA did not accept that in 2011 the applicant and his colleagues were arrested by police, at the direction of a Minister following reporting on the flooding. The IAA did not accept that the applicant worked at the TV station and found the applicant’s claims were inconsistent, implausible and lacked credibility: see [19] to [23].
The IAA considered the applicant’s claims in relation to attending a Muslim protest in 2012 and footage being provided to the Minister. The IAA again found the applicant’s evidence to be inconsistent: see [25]. While the IAA accepted that the applicant accompanied people from his church to the protest, it rejected that the applicant was accused of providing footage to the police and that subsequent threats had been made to his wife: see [26].
The IAA considered the applicant’s claims of him being targeted as a result of his father’s political activities. The IAA had concerns for the applicant’s credibility and rejected that the Minister has troubled the applicant or his father, due his father being a TNA politician: see [28].
The IAA accepted the applicant’s father was a local government chairman for the TNA and the applicant has a pro-TNA political opinion but the IAA found at [30]:
30. On the evidence before me, I am not satisfied the applicant faces a real chance of serious harm from the Minister, or the Minister's supporters or Muslims, or the police on behalf of the Minister, for … the applicant's political opinion or because his father was a TNA politician, now or in the reasonably foreseeable future if the applicant returns to Sri Lanka.
The IAA considered the applicant’s claims of being associated with the LTTE at [31] to [38] including country information. The IAA found as follows:
35. On the evidence before me, I am not satisfied the applicant was an informant for the LTTE. The applicant has demonstrated a pattern of increasing the seriousness of his claims, for example his role with the TV station and his role at the protest. I am concerned the applicant's new claims regarding his role with the LTTE are another example of that pattern. I found above several instances where the applicant has exaggerated and fabricated his claims of past harm. Again, it concerns me the applicant's claims regarding his being an informer with the LTTE are another instance of his doing that. Further undermining his claims regarding the LTTE is his claims regarding his travels to and from Malaysia. My findings above too regarding the general credibility of the applicant undermine as well his claims he was an informant for the LTTE.
36. For the above reasons, I reject the applicant was approached to join the LTTE. I reject he was an informant for the LTTE as a way to avoid being a combatant. I reject he went to Malaysia to avoid fighting for the LTTE and I reject he returned to Sri Lanka from Malaysia to fight for the LTTE. I consider the applicant has fabricated these claims in their entirety as a means to create a profile upon which to apply for protection and undermine s his credibility generally.
The IAA went on to consider the applicant returning as a failed asylum seeker and his illegal departure from Sri Lanka: see [39] to [49]. The IAA considered the country information and found that the applicant ‘would likely be charged and fined under the IAEA and then released’: see [45]. The IAA states at [47]:
47. I am also satisfied that the provisions and penalties of the IAEA are laws of general application that apply to all Sri Lankans equally. The law is not discriminatory on its terms, nor is there country information before me that indicates that the law is applied in a discriminatory manner or that it is selectively enforced.
Ultimately, the IAA found as follows:
48. Considered singularly or cumulatively, I am also not satisfied that any processes or penalties that the applicant may face as person who left Sri Lanka illegally and returning to Sri Lanka would amount to serious harm. Accordingly, I am satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the Act.
49. I have had regard to all of the evidence before me and I have considered the applicant's claims individually and cumulatively, as well as considering the personal circumstances of the applicant. I am not satisfied the applicant has a well-founded fear of persecution from the Sri Lankan authorities or paramilitaries for reason or combination of reasons of his race, religion, nationality, membership of a particular social group and/or political opinion now or in the reasonably foreseeable future, if he returns to Sri Lanka.
Grounds of Application
On 14 September 2018 the applicant applied to this Court for judicial review. By a Second Further Amended Application filed 10 May 2018, the applicant relies upon the following five grounds.
Ground 1
The first ground of the application is framed as:
1. The IAA erred by refusing to get or consider new information in the form of a reference from [A], particularly by ignoring the Applicant's explanation for providing new information, failing to notice it was a second reference by the same person, and thirdly considering whether the information could have been obtained, rather than provided, earlier.
The facts related to this ground are unusual. In support of the application before the delegate the applicant (through his migration agent) provided a reference purporting to be from a witness [A]. It transpired that the reference was in support of one of the applicant’s colleagues [N], and not the applicant himself. It appears that this went unnoticed by the migration agent.
The applicant’s case before this Court, is that the reference the agent originally provided was not obtained by the applicant, and that the applicant was unaware that the agent had the document that was provided. The agent was not called to give evidence or provide an explanation. As a result, the applicant was concerned that the reference by [A] about the applicant (which he had provided to his agent) be provided to the IAA. The applicant says he has no knowledge of the provenance of the reference about [N], nor how it came to be sent by his agent. At best it was negligence of the agent when acting for the applicant and [N] (if he ever acted for [N]) in mixing up the documents on his files and forwarding the wrong document. I need not consider the other possibilities for the wrong reference being sent in this hearing.
The reference provided to the delegate
The applicant had originally provided a letter in support of his case to the delegate. It appears to be from the witness [A]: see Court Book (CB) p.84. That letter was in the following terms:
This is to certify that [N] is known to me well. I understand that he is now away from the country.
He is a Roman Catholic and hails from a respectable family. He was a regional media officer for Thai Television (a private T.V. channel), through which the Tamil people were bringing their day today problems and the Government’s harassment to the light. But unfortunately the channel was banned by the Police and they were searching for the people who were working in that field. Three months back the Police surrounded the house of [N] but fortunately he escaped and fled from the country for the survival of the life. But the Police officers are still searching for the hide out through the Police Intelligence.
After the above incident his Mother… is mentally affected and is living in quandary.
Under this circumstances [N] contemplated that his life would be jeopardized in Sri Lanka and had to leave for abroad to protect his life.
As far as my knowledge goes it is very dangerous to the life of [N] to come back to Sri Lanka.
The Reference the Applicant sought to provide to the IAA
The applicant sought to provide a further letter in his submissions dated 11 August 2016.
The findings at [48] and [49] are findings of fact by the delegate, where the delegate said:
48. However, I do not accept that the applicant was threatened or intimidated in any way over this incident. The applicant was never questioned by police or CID about the incident and was never part of any investigation regarding the incident. As stated above, I do not accept [X] was anyway involved in the arrest or questioning of the applicant during the earlier incident at Thai TV, therefore I find it implausible that the Minster would suspect the applicant of supplying video evidence of the protest to Police and subsequently send people to his house to abduct and/or seriously harm him. I note country information indicates Muslim gang members associated with [X] threatened journalists about coverage of the incident. [FN: CX302133: “SLFP-men issue death threat to journalists in Mannaar:, Tamil net, 16 July 2012,] However, the applicant was no longer associated with TV or media at the time of the incident and never had the role of journalist or reporter during his employment with Thai TV. I am not satisfied the applicant has any particular profile working in journalism or a profile of any significance in media in Sri Lanka. The applicant stated he was at the protest with fellow church members and left as soon as the protest turned violent.
49. Consequently, I find that the applicant has exaggerated any investigations or enquiries made by men associated with [X] to enhance his profile. This includes the claim his wife has been visited and received anonymous threats by [X] supporters after the applicant fled to Australia. I find the applicant was of no particular adverse interest to the Sri Lankan authorities including the CID, to [X], any gangs associated with the Minister, or to anyone else prior to the applicant’s departure from Sri Lanka to Australia.
These findings followed, in part from a consideration of the letter about [N] (see [35] at CB p.109) and findings by the delegate about the letter (and another from a priest (discussed below under Ground 2)) that:
36. … I have concerns regarding the genuineness of the two reference letters supplied by the applicant. The reference letters are from two different people yet have almost identical content. The letters state both the applicant and his colleague were Regional Media Officers at Thai TV. This is contradictory to the applicants TPV application. Furthermore, the letters are photocopies and no originals were supplied by the applicant. I give the two reference letters no weight in establishing his claim to have worked for Thai TV.
Thus, the applicant’s claim to have been harassed as a result of his work at Thai TV was rejected by the delegate who rejected the two letters (one of which was about the applicant’s colleague [N] and not the applicant).
The Applicant’s request of the IAA
The applicant’s agent made a general submission to the IAA addressing the merits of the delegate’s decision. On p.2 of that submission (at CB p.160) the agent simply says with respect to the letter from [A]:
In response to the Delegate's findings in Paragraphs 48 and 49, we refer to the reference provided by [A].
The submissions of the applicant do not draw the IAA to the fact that this is a different letter by [A], but simply annex another copy: see CB p.167). The new letter from [A], stated:
I have known [the applicant] who hails from [Z] district for the past 10 years. During this time, I came to know him first as a media personnel attached to Thai TV, a Tamil telephone network that operated in Mannar. He was well known as a camera crew member and frequently seen covering events that were of news value in the area.
Subsequently, I came to know that he was affiliate of the main rebel group, the Liberation Tigers of Tamil Eelam (LTTE) who were involved in fighting the Sri Lankan government security forces in their campaign for an independent Tamil state in the north and east of Sri Lanka.
I understand that at present [the applicant] lives in exile as he fears for his life from the Sri Lankan security forces and the Muslim people including a minister. Although the war is over the military intelligence network put in place has not been withdrawn. Even under the new government that came to power in January 2015, sporadic incidents of arrest, detention, abductions and disappearances have been noted. For instance, a spate of arrests of former LTTE cadets including those who had been rehabilitated by the government crated panic among Tamil youth who have had some affiliation with the LTTE organisation. The military intelligence has been successful in forcing confessions under duress from arrested cadets and compiling lists of LTTE sympathisers and affiliates who had left the country.
Under these circumstances, I am of the view that in the event [the applicant] is forced to return to Sri Lanka, his life would be in danger due to his personal profile as a ex-LTTE associate.
Unlike the first letter from [A], there is no closure (‘Yours sincerely’), giving the second letter the appearance of being the first of more than one page.
Curiously, the submission made no reference to s.473DD, nor, more importantly, did the submission say anything about the error that occurred, causing the wrong letter to be forwarded to the delegate.
The Response of the IAA
In response to this request, the IAA declined to have regard to the material, saying (at [8.2]):
Attached to the IAA submission is a reference letter from [A] regarding the applicant dated 25 July 2016. The applicant therefore has received this letter after the delegate refused him the visa. The IAA submission does not include any reasons addressing why the applicant could not obtain this reference prior to the delegate's decision. Nor does the IAA submission contain and reasons why the reference is credible personal information. On the contrary, the reference letter appears to include personal information which is not credible. Although the author claims to know the applicant, the letter describes a different role for the applicant with the TV channel than claimed by the applicant. It contains vague language about the author having knowledge of the applicant being an ‘affiliate’ of the LTTE. It contains one limited reference to the applicant fearing harm from Muslims and [X], but states no reasons why. I am not satisfied there are exceptional circumstances which justify me having regard to the reference letter.
The statutory test that the IAA had to consider is that set out in s.473DD which provides:
473DD. 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.
This section provides a complex test, which continues to be clarified by judicial decisions. At present it can be said that:
a)The test for ‘exceptional circumstances’ must be satisfied even if an applicant satisfies s.473DD(b).
b)Whilst the factors set out in s.473DD(b) must be separately considered if s.473DD(b) is engaged, the facts and circumstances relevant to s.473DD(b) may also be relevant to determining the question under s.473DD(a).
Whilst there is no mandatory process for the IAA to follow when considering the questions, it would be wise for the IAA to take care to distinguish between the broader and more general matters under s.473DD(a) and the more specific findings as to whether s.473DD(b) is satisfied, if it is engaged. Hopefully this would minimise the number of cases where the argument is made that the IAA has unduly confined the test in s.473DD(a) to matters determined under s.473DD(b).
Challenge to finding under s.473DD(a)
In this case, the reasons of the IAA member read as though the matters in s.473DD(b) were all that was considered in order to find that s.473DD(a) was not satisfied. This is indicative of an error on the part of the IAA on the basis of unduly restricting the ambit of considerations relevant to s.473DD(a) to those that relate to the narrower tests in s.473DD(6).
If the claim had been made to the IAA that the first letter by [A] was sent by the agent without instructions and unknown to the applicant, this would undoubtedly have been a relevant consideration for the operation of s.473DD(a). However, in this case the claim as to the agent’s conduct was only made in this Court and not to the IAA member, thus the IAA could not have considered the claim related to the conduct of the agent. As the IAA pointed out, the submission did not include any reasons addressing why the applicant could not have obtained this additional testimony from the witness prior to the delegate’s decision.
The applicant argues in this Court that until the delegate’s decision was made, and the reasons examined, it was not apparent that these matters were at issue, resulting in an explanation for why the applicant could not have obtained this evidence from the witness prior to the delegate’s decision. This argument has two difficulties: first, this was the issue that the first letter from [A] addresses; and secondly, this was not alleged in the submissions to the IAA.
Paragraphs 48 and 49 (of the delegate’s decision) do not raise what can fairly be said to be a new or fresh issue. In substance, the applicant simply seeks to provide further evidence on a point that was part of the reasons why he failed before the delegate. If the argument is put in its simpler form, it is claimed that an applicant can provide further evidence in response to any adverse finding of the delegate. If this were to be accepted, it would mean that this requirement of s.473BD would almost never have any effect.
On the material before the IAA there appears to be nothing beyond the facts and circumstances relevant to s.473DD(b) that was put to the IAA member to take into account when considering s.473DD(a). As a result it is difficult to conclude that the member unduly confined their considerations under s.473DD(a) in the particular context of this case.
Challenge to finding under s.473DD(b)
In this case there is no dispute that s.473DD(b) is engaged. Nor is it in dispute that the applicant is unable to satisfy s.473DD(b)(i) of the test in s.473DD(b): Clearly, the witness was available to the applicant and had provided a letter addressing circumstances of a colleague that were relevant to the matter.
The alternative path through s.473DD(b) is by satisfying s.473DD(b)(ii) of the Act. The evidence of [A] with respect to the applicant directly was not previously known to the Minister, satisfying one part of s.473DD(b)(ii): see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16. The two questions that arise are therefore whether :
a)The information was ‘credible personal information’; and
b)The information ‘may have affected the consideration of the … applicant’s claims.’
The applicant complains that the IAA failed to mention that this piece of evidence was a second letter from the same witness, the first of which was provided to the delegate. I do not see how this fact or circumstance assists the applicant’s case on the question of whether s.473DD(b) is satisfied. It is simply additional evidence from a previously identified witness (recalling that the IAA was unaware of the claims about the negligence of the applicant’s agent). If anything, it weighs against the evidence being ‘credible’ as one would have expected the evidence directly about the applicant to have been provided by the witness when the first letter was provided.
In this case, the IAA has identified arguable reasons for concluding that it was not satisfied that the second letter was ‘credible’. Whilst noting the low threshold for this particular test (see CSR16 v Minister for Immigration and Border Protection [2018] FCA 474), in the circumstances of this case I am not persuaded that the findings by the IAA in this regard demonstrate an error in understanding the operation of the section, nor are they illogical, nor were they outside what could reasonably be considered a reasonable range of findings on the issues before the IAA in the context of s.473DD(b)(ii).
IAA’s use of the word ‘obtained’
A third argument raised by the applicant relates to the use of the word ‘obtained’ by the IAA when discussing whether or not the applicant could ‘obtain’ the material prior to the delegate’s decision.
As counsel for the applicant points out, the word used in s.473DD is ‘provided’. I accept that a different word has been used by the IAA, than the word in the legislative test. The real question, however, is whether the substance of the test applied by the IAA, as described in this paragraph, is the test that they were required to apply under s.473DD. It is clear that the IAA was looking to the substance of the question, namely why this letter was not placed before the delegate, and only sent to the IAA after the delegate’s decision. In some contexts the use of the word ‘obtained’ rather than ‘provided’ may indicate an error in the substance of the test being applied. In this case, having regard to the context in which the word was used, I am not persuaded that it indicates that the IAA applied the wrong test.
I again note that the applicant did not indicate in the submissions that the letter was the second letter from the same person, nor provide any reference to the earlier letter, nor advice of the agent’s error. On the face of the letters it is not readily apparent that they are necessarily from the same person: see CB pp.84 and 167.
It is argued more generally that the IAA erred by not noticing that the letter was from the witness [A] who had provided an earlier letter. I do not accept this argument as: first, it is not a fact that it was necessary for the IAA to determine, nor so relevant as to make it necessary to identify it in the decision; and secondly, any potential error of fact of this type is within the jurisdiction of the IAA.
In the circumstances, I therefore find that the applicant has not established this ground.
Ground 2
The second ground alleges that the IAA failed to have regard to the review material that had been sent to it. The applicant frames the ground as:
2. The IAA’s decision is affected by jurisdictional error in that the IAA failed to review the delegate’s decision by failing to consider the review material. Had the IAA considered the review material, it would have observed that critical documentary evidence had been omitted from the review material provided to the IAA by the Secretary.
The applicant points out that in the delegate’s decision (at CB p.109) the delegate identifies two ‘reference letters’ that had been provided by the applicant (see [35]): one from a priest and one from [A]. This was reinforced by the terms of the submission made by the applicant’s advisor (at CB p.160). The reference from the priest (referred to in [35.2] of the delegation’s decision) does not appear in the CB.
A copy of the priest’s reference has been annexed to the affidavit of the applicant filed 6 February 2018. The letter, addressed to ‘To whom it may Concern’, contains the following information:
This is to certify that [the applicant] of Thoddaveli, Mannar is known to me well. I understand that he is now away from country.
He hails from my parish and a respected Roman Catholic family. He was a regional media officer for Thai telephone (a private T.V. channel) through which the Tamil people were bringing their day today problem and the government’s harassment to light. But unfortunately the channel was banned by the police and they were searching for the people who were working in that field. Three months back the police surrounded the house of [the applicant] but fortunately he escaped and fled from the country for the survival of the life. But the police men are still searching for the hide out through the police intelligence.
After the above incident his wife [K] with the small child is mentally affected and is living in quandary.
Under this circumstance [the applicant] contemplated that his life would be jeopardized in Sri Lanka and had to leave for abroad to protect his life.
As far as my knowledge goes it is very dangerous to the life of [the applicant] to come back to Sri Lanka.
The letter was provided by the parish priest of a Catholic church in Sri Lanka. The Minister accepts that the two references were provided to the delegate (as referred to in [35] of the delegate’s decision) and that the priest’s reference was not provided to the IAA. It is also accepted that this was a breach of s.473CB(1)(b) of the Act.
Counsel for the Minister argues that whilst this was non-compliant with s.473CB, it does not necessarily result in jurisdictional error. It was argued that the IAA had regard to the letter. The IAA referred to the letter from the church at [19] of its decision saying:
19. Firstly, the applicant has provided inconsistent evidence regarding his role with the TV station. He has variously said that he assisted the cameramen and journalist (in his TPV statement), he was the ‘play out (for his home region)’ (the work ID card he provided), a regional media officer (the reference letter he provided from a church), he was in charge of choosing what programmes to air (during the TPV interview) and that he considers himself a journalist (in the IAA submission). I consider if the applicant genuinely was employed at the TV station, he would give a consistent account of his position. Further, his various claims show a pattern of increasing the importance of his role with the TV station and I consider his changing his evidence in this way strongly weighs against his credibility that he had any role with the TV station.
In light of the acceptance by the Minister that the letter from the priest at the Church was not before the IAA, it is apparent that the conclusions in paragraph [19] of the IAA’s decision can only be a summary of the delegate’s reasons, rather than an independent assessment of the evidence before the IAA.
Counsel refers to CRJ16 v Minister for Immigration & Anor [2017] FCCA 727 at [31] to [35] where Judge Vasta pointed out that s.473CB could lead to absurdities if it were interpreted as meaning that everything had to be before the IAA. For example, documents disclosing the last address for service, when such documents were of such peripheral relevance (providing that the appropriate address for service was used) that they could not possibly result any jurisdictional error on the part of the IAA if the IAA did consider them.
In CRJ16, the missing document was a letter prepared by a psychologist which detailed that the applicant suffered from anxiety and depression and symptoms including an inability to concentrate: see [21] of CRJ16. In CRJ16, the substantive point to be proved by the missing letter was identified and accepted in the delegate’s decision. ‘The IAA did not make any findings that would have been different if the actual letter, rather than the summary of the letter in the reasons of the delegate, been before it’: see [33]. As a result, his Honour concluded that the IAA had considered the review material, notwithstanding that the actual letter was not contained within that material, because the pertinent parts of the letter had been referred to and accepted by the delegate and it was not, his Honour noted, ‘germane to the issues being considered’: see [33].
The difficulty confronting the Minister in this case is that whilst the summary of the letter was relied upon by the IAA for reasons that told against the applicant succeeding (see [19] of the IAA’s decision), such an argument did not deal with the possibility that a reviewer may have found the priest’s letter more compelling and accepted that the version given by the priest was the appropriate version. Whilst, given that the balance of the evidence is against such a scenario, as a likely outcome, it is impossible to predict what the IAA’s decision would have been had it had all of the evidence before it.
Ultimately, I am persuaded that this amounts to a ground for judicial review in the context of this particular case, noting that the facts and circumstances are different to those Judge Vasta considered in CRJ16.
Ground 3
The third ground alleges that the IAA’s handling of the matter was legally unreasonable as it proceeded to hear and determine the application before the applicant was able to successfully pursue a Freedom of Information (‘FOI’) application for documents held by the department. This ground is framed as:
3. The IAA’s conduct in proceeding to make its decision on 19 August 2016 without allowing time for the applicant to obtain a copy of the evidence before the IAA/delegate was legally unreasonable.
On 15 July 2016, the applicant was advised of the referral of the delegate’s decision to the IAA. The applicant’s representative requested FOI access to all of the information provided to the IAA by the department, and any documents and recordings with regards to his entry interview, subsequent interview, and application for a temporary protection visa: see CB pp.132 to 135.
The next day the applicant’s representative sought an extension of time to respond to the IAA so as to allow them to first receive the documents that may be disclosed under the FOI request. On 21 July 2016, the FOI request was forwarded to the department by the IAA, and on 1 August 2016 a further request was made for an extension of time: see CB p.144.
The IAA responded to the request for an extension of time on 1 August 2016 stating:
I am writing to you in relation to your application for a protection visa and the review conduction by the Immigration Assessment Authority (IAA).
I refer to your emails received by the IAA on 21 July 2018 and 1 August 2016 requesting an extension of time to provide submissions and/or new information.
The IAA has considered the request, however the Migration Act 1958 (the Act) imposes strict deadlines for a response to a request to provide new information. The IAA has no capacity under the Act to extend the deadline.
The IAA has made efforts to assist you in this capacity by releasing the DIBP Decision Record, Refusal Notification letter, TPV Application and supporting documents as well as the TPV Interview Recording to you on 25 July 2016, outside of FOI.
As advised in the Practice Directions sent with the Acknowledgement letter on 15 July 2016 the due date for you to respond to the request for new information is 5 August 2016. You should provide a response by that date.
However, any new information you send that is received after 5 August 2016, but before 12 August 2016, may be considered.
The IAA recognised some form of error in this letter and sent a further letter (dated 8 August 2016) granting an extension of time to provide submissions to 15 August 2016, stating:
I am writing to you in relation to your application for a protection visa and the review conduction by the Immigration Assessment Authority (IAA).
I refer to the letter sent by the IAA on 1 August 2016 in response to your requests for an extension of time to supply a submission of 21 July and 1 August 2016. Please disregard this letter, it was sent in error.
I confirm, however that an extension of time has been granted to 15 August 2016 to provide a submission in accordance with the IAA’s Practice Direction for Applicants, Representatives and Authorised Recipients.
The period of the extension is curious, given that the sole purpose for seeking the extension was to enable the applicant to receive the FOI material, yet the extension actually granted was to a date that bore no real relevance to when the FOI material would be forthcoming. The IAA in its decision at [4] simply recounts that an extension was granted and some submissions were received.
The substantive issue was dealt with by the IAA in [10] of their decision where they stated:
10. The IAA submission further states I should give the applicant an interview because the applicant has a pending freedom of information (“FOI”) application and the migration agent is unable to prepare a proper response to the IAA unless all of the documents before the department are available to the applicant. I am not persuaded by that submission. The IAA gave to the applicant the materially relevant documents and recordings from the review material outside of the FOI scheme.
Counsel for the applicant argues that this paragraph shows that the IAA misunderstood the question that they were required to answer as it refers to granting the applicant ‘an interview’ rather than an extension of time to make submissions. Read in context, it is difficult to see that the IAA was in fact referring to an interview rather than the extension of time to make submissions as the balance of the paragraph refers to time to prepare ‘a proper response’ to the IAA, the necessity to have ‘all of the documents before the department’, and the finding of the IAA that it had already given the applicant all of the materially relevant documents and recordings outside of the FOI scheme.
On the basis of findings by the IAA that all of the materially relevant documents had been provided to the applicant, outside of the FOI scheme, the determination of the IAA not to grant an extension of time appears perfectly logical. The purpose of the extension was to enable access to all of the relevant material, and in the IAA’s view all of the relevant material had already been provided.
Counsel for the Minister argues that the applicant’s case also fails on the basis that s.473DA(2) provides:
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
I accept that the mere fact that a FOI request may have been lodged and remain on foot is not of itself sufficient to result in the IAA having to grant an extension of time in every case. This would be inconsistent with the framework of the legislation. However, whilst s.473DA does not require the IAA to give to the applicant any particular material that was before the Minister, the IAA is nonetheless required to act reasonably in determining the review: see Minster for Immigration and Border Protection v CRY16 [2017] FCAFC 210.
In argument before me, the applicant did not identify any specific arguments about documents which had not been provided to him by the IAA, which he sought through the FOI request, that could be said to be of such significance that it was unreasonable not to grant the extension of time. It seems that the FOI request was really a fishing expedition.
In the circumstances of this case, I am not persuaded that the IAA misunderstood the purpose of the extension, nor that they failed to properly consider whether or not to grant the extension. Prima facie, the IAA have dealt with the issue at [10] of their decision. To the extent that it is argued that [10] is legally unreasonable, submissions were not made identifying any particular argument about documents which the applicant had not received until the FOI material was provided, which would demonstrate that it was legally unreasonable not to have granted the extension of time.
In the circumstances, I therefore refuse this ground.
Ground 4
Ground 4 provides that:
4. The IAA misconstrued s 473DC of the Act in refusing the applicant’s request to be invited to an interview, particularly by transposing a relevance test that was not part of s473DC and then misapplying the test in s 473DC.
It is argued that the IAA failed to properly exercise its discretion under s.473DC in failing to invite the applicant to an interview. The IAA considered whether or not to grant the applicant an interview at paragraph [9] of their decision saying:
9. The IAA statement and IAA submission both state I should give the applicant an interview due to interpreting errors during the TPV interview. I do not agree to the applicant’s request to give him an interview. There a several reasons for that. Firstly, and importantly, I have listened to the TPV interview. The applicant demonstrated a good command of English during parts of the interview and on occasions, the delegate requested the applicant revert to using the interpreter. Moreover, by stating he has now identified errors in the interpreting the applicant is in effect also asserting his command of English is such that he is able to identify those errors. Yet, during the TPV interview, the applicant did not directly raise with the delegate any instances where the applicant believed the interpreter had misinterpreted. Secondly, the delegate often clarified with the applicant whether the delegate had understood the applicant's evidence correctly, thus reducing the opportunity for any interpreting error to go uncorrected by the applicant. Thirdly, in the IAA statement and in the IAA submission, neither the applicant nor the migration agent have identified any specific errors or how any such error materially affected his opportunity to discuss his claims with the delegate. Finally I am conducting a fast-track review. My discretion to use my power under s.473DC(3) to receive new information orally from the applicant at an interview is for instances where I consider it to be relevant to do so, I do not have a duty to give the applicant an interview just because he requests it. Further, I consider the proper exercise of my discretion to use my power in s.473DC to give the applicant an interview is subject to the restrictions in s.473D0. For those reasons, I consider it would be an improper use of my discretion to give an interview to the applicant in the way the applicant has requested, which is essentially a request he have a second opportunity to put forward all his claims orally. On the evidence before me, it is not apparent to me that any material interpreting error occurred during the TPV interview and I consider the applicant had an adequate opportunity to discuss his claims during the TPV interview.
The relevant provisions are ss.473DC and 473DD. Section 473DD is set out above, s.473DC provides:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(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 newinformation:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The legislation provides a two-step process. First, s.473DC requires consideration of whether or not the IAA decides to ‘get any documents or information’ (provided that it was not before the delegate, and that the IAA considers it ‘may be relevant’). Once the IAA has ‘got’ a document or information, it may not consider that information unless s.473DD is satisfied, namely that there are exceptional circumstances to justify considering the new information. Further, where it is from the applicant, that it was not and could not have been provided to the delegate or is credible personal information that was not previously known and may have affected the consideration of the applicant’s claims.
The applicant argues in this case that the IAA has conflated these tests. On the applicant’s interpretation, the IAA would first have to get the information under s.473DC and then determine whether or not to consider it under s.473DD. This would create an odd process in situations where it was apparent that the conditions in s.473DD would prevent the IAA from considering the new information.
The Minister argues that the discretion under s.473DC to ‘get’ new information is a broad one, which is capable of encompassing a consideration of whether or not new information ‘gotten’ under that provision could be considered having regard to the provisions of s.473DD.
In this case, the IAA formed the view that the evidence given before the delegate (having regard to the quality of the interpreting) was sufficient to allow the applicant to put forward his case. A further interview with the applicant to enable him to again present his case does not appear to me to be ‘new information’, provided that the evidence to be given by the applicant was substantially the same as that given before the delegate. With respect to the evidence to be provided by the applicant, it is clear that any evidence of events that took place prior to the interview with the delegate could have been provided to the Minister before the delegate’s decision, excluding it under s.473DD(b)(i).
On a practical level, this case concerned a claim that the translations were insufficient in the evidence before the delegate. If that was found to be the case by the IAA, then no doubt they would have exercised their discretion to obtain information under s.473DC on the basis that it would be relevant because they did not receive accurate information from the applicant as a result of poor translation. It would also be the case that the new information was not, and could not, have been provided before the delegate’s decision as a process involving inadequate interpretation prevented that information from being provided to the delegate, thus resulting in a situation where that information could not have been provided by the applicant to the delegate.
It must be accepted that the operation of s.473DD(b)(i) calls for practical application. Turning to the consideration of the IAA with respect to the adequacy of translation before the delegate, this was a matter that the IAA was required to consider and determine. There is no interpreter’s evidence as to the quality and nature of the translation before the IAA or this Court. There is nothing before this Court from which one could draw an inference that the determination by the IAA, in this regard, was legally unreasonable. To the extent that this ground argues that the decision of the IAA in this regard was legally unreasonable, the ground cannot succeed.
I therefore find that the applicant has not made out this ground for judicial review.
Ground 5
In ground 5, the applicant sought to rely upon an ID card of his father’s that was issued in December 2012. Ground 5 sets claims that:
5. The IAA misconstrued s 473DD(b)(ii) of the Act in refusing to consider new information in the form of an ID card of Applicant’s father issued December 2011 (CB 164) and a 25 July 2016 letter from [A] regarding the Applicant (CB 167).
A copy of this ID card appears at CB p.164. It appears to be issued by a Commissioner of Local Government in Sri Lanka. The IAA’s considerations with respect to this ID card appear in [8.3] where the IAA said:
Attached to the IAA submission is a local government ID card purported to be issued to the applicant's father stating he is a chairman. It was issued in December 2011. There are no reasons in the IAA submission as to why the card could not be provided to the delegate at an earlier date, nor why the card is credible personal information which could have affected the decision. I noted above the delegate did not make any finding regarding the applicant's father being a local politician. The delegate did make reference to country information in the decision to the changed political environment in Sri Lanka since the elections in 2015, the reduction in political violence and that the TNA are now the official opposition in the national parliament and the ruling party in Northern province. I am not satisfied that the card is credible personal information which if it was known, would have affected consideration of the applicant's claims. Nor do I consider there are exceptional circumstances which justify my having regard to the ID card.
In the context of this case, it appears that this point is entirely academic. The government ID card was evidence that the applicant sought to rely upon to show that his father was a local government chairman for the TNA: see [28] of the IAA decision. In [29] of the decision, the IAA accepts that the applicant’s father was a local government chairman for the TNA. In these circumstances, the information in the government ID card was irrelevant as it was led solely to show that the applicant’s father was a local government chairman, a fact that was accepted by the IAA.
The second part of the ground relates to a letter from [A] dated 25 July 2016 and which appears at CB p.167. This is the letter discussed in respect of ground 1. The applicant argues that the incorrect test was applied in determining whether or not the letter was ‘credible’ as the IAA concluded that the letter was not credible as it describes the applicant’s role at a TV channel differently to that of the applicant. This issue is dealt with above under Ground 1.
I am not persuaded that this matter is a ground for judicial review.
Additional argument put
A further oral argument alleges that there has been a fraud on the IAA as a result of the conduct of the agent, leaving it unable to properly carry out its task.
This ground relies upon the provision of the first letter from [A] (discussed above under Ground 1, and appearing at CB p.84) to the delegate. This letter from [A] is regarding a person other than the applicant. The applicant says that he did not give this letter to his migration agent and that a letter from [A] dated three days earlier ought to have been provided to the delegate or the IAA. The correct letter, which does refer to the applicant, is exhibited to his affidavit filed 16 February 2018.
The applicant gave brief oral evidence saying that he never read the delegate’s decision but was told of its contents by the agent he was using, who assisted him with his statutory declaration that appears at CB p.151. The applicant said he could not remember when he prepared the statutory declaration. The importance of this evidence is that at [14] and [15] of the statutory declaration (at CB p.152) the applicant says:
14. In response to the delegate’s findings in paragraph 36 of the refusal decision I wish to state I identity myself as a journalist during my time with Thai TV. I was both a technician and producer. I have stated this in my statement dated 4 October 2015.
15. In response to the delegates findings in paragraph 37 of the refusal decision, I wish to state that Thai TV was a TV channel and not cable.
…
17. I have listened to the recording of my interview and find that there are a number of mistakes in the interpretation of questions put to me and answers I have given as a result. The interpreter at times has pre-empted my responses and also interpreted my responses by mistake from English into Tamil. For these reasons I request the authority to provide me another opportunity to be interviewed so that I can put my claims across clearly.
The applicant’s oral evidence was also to the effect that he believed his agent who assisted him with the application at the delegate stage was honest. It is not necessary for me to make a formal finding, as he issue can be disposed of on the basis that the applicant cannot succeed on this ground even if his evidence were to be accepted. As the matter is being remitted to the IAA for other reasons it is best that the IAA consider the credibility of the applicant.
There is no evidence before me as to the agent’s file, nor was the agent subpoenaed to produce his file or give evidence by either party. The letter, on its face, appears not only to have come from [A], but to relate to a person who worked with or was associated with the applicant. In the context of this case (if the applicant’s evidence is correct) it only demonstrates a negligent handling of the applicant’s case. There was no purpose to be served by the agent sending the wrong letter in the context of this case.
Even if the agent forwarded a letter from [A] that related to the wrong applicant, the circumstances of this case do not show a fraud upon the IAA as it did not prevent the IAA carrying out its statutory task.
In the circumstances, I would therefore dismiss this ground.
Conclusion
As I have found that the applicant is successful with respect to the ground concerning the failure of the IAA to consider the letter from the parish priest, and in particular any positive inferences that may have flowed from it for the applicant, I find that constitutional writs should issue.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 21 September 2018
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