CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 417

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 417

File number(s):

SYG 735 of 2023

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

9 May 2024

Catchwords:

MIGRATION – Safe Haven Enterprise Visa (SHEV) – Immigration Assessment Authority – what constitutes “new information” – whether there was a failure to act in accordance with section 473DE and s 473DD – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CB, 473DC, 473DD, 473DE

Cases cited:

BWV16 v Minister for Home Affairs (2018) 261 FCR 476

CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 179 ALD 330; [2022] FCA 1567

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

SZBYR v Minister for Immigration [2007] HCA 26

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of last submission/s:

2 May 2024

Date of hearing:

4 April 2024

Place:

Parramatta

Counsel for the Applicant:

Mr Godwin

Solicitor for the Applicant:

Legal Aid

Counsel for the Respondents:

Mr Johnson

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

SYG 735 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CRG17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	9 MAY 2024

THE COURT ORDERS THAT:

1.The Further Amended application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $9500.00.

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

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

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. The applicant is a Sri Lankan national and is of Tamil ethnicity. The applicant first arrived in Australia, as an unauthorised maritime arrival, on 13 October 2012.

2. Prior to his arrival in Australia, the applicant resided in Singapore, Malaysia and Indonesia for brief periods of time.

3. On 12 April 2016, the applicant lodged an application for the grant of a Safe Haven Enterprise Visa (“SHEV”). This application was refused by a delegate of the Minister (“the delegate”) on 7 October 2016.

4. The applicant sought merits review of the delegate’s decision to refuse to grant him a SHEV at the Immigration Assessment Authority (“the first IAA”). The first IAA affirmed the delegate’s decision to refuse the applicant his visa on 18 May 2017

5. The decision of the first IAA was referred to the Federal Circuit Court (“FCC”), as it was then known, for judicial review. On 11 March 2020, the FCC affirmed the decision of the delegate. The FCC decision was subsequently quashed by the Federal Court and the matter was remitted to the IAA for reconsideration; (see: CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 179 ALD 330; [2022] FCA 1567).

6. In a decision dated 5 April 2023, a differently constituted IAA (“the second IAA”) affirmed the decision of the delegate to refuse the applicant the SHEV.

7. For the reasons set out below, the application should be dismissed.

   GROUNDS OF JUDICIAL REVIEW

8. The applicant filed an Originating Application with the Court on 4 May 2023 and was unrepresented at this time. This application pressed two grounds of review (as follows):

   ·I did not have procedural fairness in my case. I did not have the chance to submit all of the evidence in my case.

   ·The IAA did not properly assess my claims for protection.

9. An Amended Application was filed with the Court by the applicant’s legal representatives on 4 March 2024. This articulated a single ground of review as follows (verbatim):

   The Authority failed to comply with its obligations under section 473DE of the Migration Act 1958 (Cth) in relation to the ‘new information’ in the applicant’s Facebook account described in paragraph [32] of the first Authority’s decision dated 18 May 2017 (First Authority Decision) and considered in paragraphs [45]-[47] of the second Authority’s decision dated 5 April 2023 (Second Authority Decision).

10. A further Amended Application and post-hearing submissions were filed with the Court by the applicant’s legal representatives on 16 April 2024. These documents sought to press an additional ground of review in the alternative (less particulars):

    In the alternative, the Second Authority exceeded its jurisdiction by considering the information on the applicant’s Facebook page referred to in the First Authority Decision without following the procedure contained in section 473DD of the Act.

11. The Court granted leave to allow the second ground to be considered.

    THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

12. Given the limited portion of the second IAA’s decision that is in the scope for judicial review in this Court, it is not necessary to summarise the entirety of its reasons.

13. At [6] – [17] of its decision, the second IAA noted that its review considered a variety of material provided to it by the Secretary pursuant to s 473CB of the Migration Act 1958 (Cth) (“the Act”) that was not available to the first IAA at the time of its decision. This included medical evidence concerning the applicant, documentary evidence concerning the disappearance of the applicant’s brother together with updates of country information. The IAA considered receiving this new information pursuant to s 473DD of the Act and found there were exceptional circumstances in relation to the majority of the material such that the new information should be considered.

14. At [18], the IAA outlined the applicant’s claims for protection, wherein he recounted his experiences in Sri Lanka that informed his fears regarding his safety. These experiences included claims of receiving threats from members of the Liberation Tigers of Tamil Eelam (“LTTE”) and Eelam People’s Democratic Party (“EPDP”), as well as being subjected to intimidation by Sri Lankan authorities. The applicant went on to claim that he faced a “real risk of death, torture or inability to subsist on the basis of his Tamil ethnicity, mental health and his status as a returned asylum seeker”.

15. At [19], the IAA outlined the statutory framework in the Act and proceeded at [20] to [62] to make the following findings, inter alia, regarding the applicant’s claims:

    (a)The IAA accepted that the applicant was a citizen of Sri Lanka from the northern province. It also accepted that he was of Tamil ethnicity and followed the Catholic faith, although it noted that no claims had been made by the applicant on the basis of his religion.

    (b)At [24] to [27], the IAA considered medical evidence provided by the applicant relating to mental health treatment he had received since his arrival in Australia. The IAA accepted that the applicant was referred to the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) in March 2013, and subsequently received two counselling sessions from that provider for treatment of depression in that year, as well as five counselling sessions between 1 September 2016 and 20 October 2016. The IAA also accepted that the applicant had received psychological treatment following a workplace injury which occurred in August 2020. Although it appreciated that the applicant had faced mental health issues since his arrival in Australia, the IAA was not prepared to accept that these conditions were permanent, or that they required “ongoing treatment or medication” upon the applicant’s return to Sri Lanka.

    (c)In relation to the applicant’s experiences in Sri Lanka prior to his departure in 2006, the Authority accepted that the applicant and his family lived in an area controlled by the LTTE, but rejected the claim raised by the applicant at his SHEV interview that the applicant’s father participated in Tamil separatist activities or protests in support of the LTTE. It referred to the applicant’s evidence at his entry interview, which indicated that his father’s involvement with the LTTE involved cooperation with the group’s demands by virtue of his status as a local business owner. Similarly, the Authority was not satisfied that the applicant himself was perceived as a Tamil separatist by the Sri Lankan authorities, noting that his participation in LTTE commemoration days, raising of the LTTE flag and other related activities were simply a by-product of having resided in an area controlled by the LTTE.

    (d)At [48] to [58], the Authority summarised its findings in relation to country information provided by the Department of Foreign Affairs and Trade (“DFAT”) . It found that the political situation and safety of Tamils living in Sri Lanka has vastly improved since the applicant departed Sri Lanka in 2010, following the presidential campaign of 2015 which promised a “path of reconciliation with the Tamil minority” (CB VOL II, para 48). The IAA accepted DFAT’s assessment of the political and economic environment in Sri Lanka and found that the applicant’s risk of harm should he return to Sri Lanka had significantly decreased since his departure from the country in 2010. The Authority found that despite the undesirable political and economic situation in the country, these conditions are affecting Sri Lankans as a whole. As such, it found that the applicant could not demonstrate a risk of being personally subjected to harm as a result of the political and economic climate in Sri Lanka.

    (e)Further, the IAA at [51] accepted information from DFAT which reported the following regarding the current situation in Sri Lanka:

    It is reported that Tamils with former links with the LTTE, and those who are not politically active, have generally been able to lead their lives without concern for the security as a result of their past association with the LTTE, with the government focusing on Tail activities in the diaspora who are working for Tamil separatism to destabilise the government that monitoring of Tamil diaspora returning to Sri Lank depends on their security risk profile.

    (f)The Authority found that the applicant had not demonstrated any involvement in Tamil separatist movements during his time in Malaysia or Indonesia. Similarly, it was not satisfied that any conduct whilst residing in Australia would attract attention from Sri Lankan authorities and leave him vulnerable to violence or persecution. As such, the IAA found that the applicant was not “at a real risk of detention or torture”.

16. Owing to its findings as to the applicant’s claims, the Authority concluded that the applicant did not meet the definition of a refugee per the requirements contained in s 5H (1) of the Act. It was not satisfied that the applicant had a “well rounded fear of persecution” as prescribed in s 5(J) of the Act, and, as such, did not find the applicant to be a person to whom Australia owed protection obligations under s 36(2)(a) of the Act. 

17. At [63] to [70], the Authority went on to outline its consideration of the complementary protection requirements under s 36(2) (aa) of the Act. For the same reasons above, it concluded that the applicant would not be at risk of suffering significant harm should he be returned to Sri Lanka.

    THE APPLICANT’S SUBMISSIONS

18. The applicant’s primary submissions filed on 15 March 2024 recount the applicant’s protection claims as they are summarised in CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 179 ALD 330; [2022] FCA 1567. The submissions particularise the grounds of review being pressed as relating to the claim by the applicant that he had posted pro-Tamil or anti-Sri Lankan government material on Facebook during his time in Australia.

19. The applicant’s submissions noted that the original delegate was unsuccessful in accessing the applicant’s Facebook account and could not authenticate the claim above. The first IAA, however, was able to access the account and recorded the following observations at [32] of its decision:

    I have checked the applicant’s Facebook page and I note his posts from 2004 to the present contain photographs of him in Sydney, posts about his mother’s love, prayers, and a few other items. I am satisfied there is nothing on the applicant’s Facebook page or timeline that would give rise to a real chance of him facing harm now or in the reasonably foreseeable future in Sri Lanka.

20. The applicant’s submissions then extract [45] – [47] of the second IAA decision in relation to the information that could be found on the applicant’s Facebook account. What is clear is that the second IAA did not directly access the applicant’s Facebook page, but relied upon the findings of the first IAA decision as to the contents of the pages on the Facebook account.

21. The applicant submitted that the IAA had failed to comply with its obligations under s 473DE of the Act, stating that “neither the first IAA or second IAA provided the applicant with an invitation to comment on the information obtained by the first IAA from his Facebook page”. The applicant claimed that information regarding what was on the applicant’s Facebook account constituted “new information” under s 473DC of the Act. It was submitted that the information was not before the delegate, as the delegate had been unable to access the applicant’s Facebook account.

22. The applicant claimed that the absence of information on his Facebook page which would purportedly support his claims was a situation analogous to that in BWV16 v Minister for Home Affairs (2018) 261 FCR 476. That is, it would enliven the provision which would trigger the IAA’s obligations to seek further comment from the applicant under s 473DE of the Act.

23. The applicant contended that the first and second IAA’s failure to act in accordance with s 473DE of the Act regarding the “new information” infected its decision with jurisdictional error. It was submitted that if the applicant had been afforded an opportunity to explain the absence of information on his Facebook page, such insights may have materially affected the decision reached by the IAA.

24. In terms of the second ground, in the alternative, it was submitted that the IAA committed jurisdictional error in “considering new information without following the procedure in s 473DD” of the Act.

25. This turns on an inference that the IAA failed to apply the test in s 473DD(1)(a) of the Act. This is at odds with the position of the first respondent, which is that the IAA did, in fact, apply the test, but did not record so in its reasons (and was under no obligation to do so).

26. The applicant submitted that a failure by the IAA to comply with s 473DD of the Act in considering this new information constitutes a jurisdictional error and that the failure to do so was material. It is not known whether an evaluation of the Facebook information was undertaken by the IAA and so it is not known whether consideration of it may have led to a different outcome.

    THE FIRST RESPONDENT’S SUBMISSIONS

27. The first respondent’s ultimate contention consists of two limbs. Firstly, it was contended that the Facebook information was not “new information”, as alleged by the applicant. As such, this information does not enliven obligations to invite comment under s 473DE(1) of the Act.

28. Secondly, even if the Court were to find that the Facebook information was “new information” under the Act, the Court should not find that it was relevant to the IAA’s consideration of the matter, or that it was “the reason, or part of the reason, for affirming the fast track reviewable decision” under s 473DE(1)(a)(ii) of the Act. As a result, the Facebook information did not engage s 473DD of the Act.

29. The IAA does not make it clear whether it deemed the information it viewed on the applicant’s Facebook account as “new information”. However, the IAA’s reasons made it clear it did not consider is as part of its review. The first respondent noted that the second IAA did not have the Facebook information before it, but instead relied on the first IAA’s observations about what was on the applicant’s Facebook account.

30. It was submitted that even if the Court were to accept the Facebook information as “new information” under the Act, it was not information that was adverse to the applicant’s claims, stating that “it was asserted by the applicant that such information would support his claims”. The second IAA had regard to the Facebook information which did not support the applicant’s claims. The first respondent then proceeded to reject the applicant’s submission that drew parallels between the current case and that of BMV16 v Minister for Home Affairs (2018) 261 FCR 476.

31. In relation to the new second ground, the Minister accepts that the second IAA did not determine whether the first IAA’s observations about the Facebook information met s 473DD of the Act. It was submitted that it was unnecessary to do so as the Facebook information was not “new information” as defined in s 473DC of the Act as it was not information that “may be relevant”.

32. It was submitted that based on the High Court judgement in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [9] – [10] and [14], any error (which is not admitted) is not material. Taking a backward-looking approach, there was no realistic possibility the outcome might have been different.

33. The applicant claimed that he held pro-Tamil views and posted about his anti-Sri Lankan views on Facebook. However, the Authority rejected this submission as “no details regarding the applicant’s attendance at protests in Australia or how he engages in pro-Tamil speariest activities in Australia”. The applicant’s claim of fear in relation to his Facebook activities was rejected as the applicant provided no actual information as to what was on the account. The Authority had before it the first IAA’s observations about the account, but it did not form part of the Authority’s critical reasoning and the information was of no consequence to its conclusions at [46]. Thus, any error in relation to the Facebook account was immaterial. In any event, the Authority concluded that the applicant’s social media accounts would not be monitored.

    CONSIDERATION

34. It is trite to state that the Court is not reviewing the first IAA decision, only the second decision. In assessing whether the IAA fell fowl of its obligations under s 473DE of the Act, it is first necessary to determine what constitutes “new information” for the purposes of s 473DC of the Act.

35. At the second IAA’s findings at [5] – [17] of its reasons, the Authority made explicit reference to a variety of material provided to it by the applicant that was not before the delegate. It proceeded to outline the reasons it found that there were exceptional circumstances under s 473DD of the Act to justify either considering or not considering this “new information”. The contents of the applicant’s Facebook account are notably absent from this portion of the second IAA’s decision. The Court assumes that this is because the IAA did not consider the Facebook information as “new information” under s 473DC of the Act and did not proceed to evaluate its usefulness under s 473DD of the Act.

36. This was in circumstances where the first IAA stated the following in relation to the applicant’s Facebook account:

    I have checked the applicant’s Facebook page and I note his posts from 2004 to the present contain photographs of him in Sydney, posts about his mother’s love, prayers, and a few other items.

1. The applicant was clearly on notice that the first IAA had viewed his Facebook account and had not found any information that might support the applicant’s claims that he was fearful due to the nature of the information in his post. It was open to the applicant to provide additional information for the second IAA to consider that might have assisted in this regard. The applicant did not do so.

2. The second IAA did not attempt to access the applicant’s Facebook page itself, but instead adopted the first IAA’s observations above in its reasons. As a matter of fact, the contents of the applicant’s Facebook page were not before the delegate at the time of its decision, as the delegate was unable to access the link provided to it by the applicant. It was, however, before the first IAA.

3. As regards the second IAA, the information remained as being “new information” that was before the delegate. To that extent it was new information. Whether or not the applicant had, as he claimed, posted pro-Tamil or anti-Sri Lankan government material on his Facebook page is not a matter for this Court to speculate on as there is no evidence before it to support this assertion.

4. However, the information regarding the applicant’s Facebook account came before the second IAA apparently as part of the review material provided to the second IAA by virtue of s 473CB(1) of the Act. As a result it was not “new information” that required the second IAA to rule on pursuant to s 473DD of the Act. Even if the Court is wrong in this regard, the Court is not satisfied that the information on the Facebook page was part of any reason for affirming the review. The Court notes the description of the posts as “posts contain photographs of him in Sydney, posts about his mother’s love, prayers and a few other items”. The information was entirely innocuous and neither assisted the applicant or alternatively formed part of the reasoning to affirm the decision under review such as to enliven a requirement under s 473DE of the Act.

5. The applicant’s submissions characterised the lack of evidence on the applicant’s Facebook page as positive information that is contrary to his claim that pro-Tamil, anti-Sri Lankan government posts do exist on his account. However, as articulated in the High Court in SZBYR v Minister for Immigration [2007] HCA 26, the function of s 473DE of the Act is not to cure evidentiary gaps in an applicant’s claims. It should be utilised as a means by which to obtain further clarification about material provided that has already met the requirements contained in s 473DD of the Act. In this case, the IAA should not have been expected to assume the role of a factfinder and request supporting information from the applicant simply because nothing had been provided to substantiate his claim regarding the Facebook posts.

6. The second IAA noted at [46] that it was satisfied that the applicant, having been absent from Sri Lanka for over a decade, would not face a foreseeable risk of harm nor be of interest to Sri Lankan authorities should he return. It follows that the applicant’s Facebook account would not attract attention or be monitored by Sri Lankan authorities. Despite the fact that the IAA was under no obligation per s 473DC(3) of the Act to invite the applicant to comment, I am satisfied that the second IAA would have arrived at its final determination based on the entirety of the evidence before it, irrespective of a consideration of the Facebook information. No jurisdictional error is apparent in the second IAA’s decision and this ground of review cannot succeed.

7. Ground two is an assertion that the second Authority failed to follow the dictates of s 473DD of the Act in its consideration of the Facebook information. First, for the reasons set out above the Court does not consider that this was “new information” that required the Authority to comply with s 473DD of the Act. It was provided as part of the material given to the second IAA by the Secretary. No obligation to refer the material to the applicant arose under s 473DE of the Act as it was not new information for the purposes of s 473DC of the Act.

8. Again, even if the Court is wrong in this regard, it does not consider any error to be material. The Court has found that the material did nothing to support the applicant’s claims and was of no consequence to the ultimate outcome. Thus, any error in applying s 473DD of the Act is immaterial. Ground two has no merit.

   CONCLUSION

9. Accordingly, this application must be dismissed.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       9 May 2024