CUK16 v Minister for Immigration
[2020] FCCA 994
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUK16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 994 |
| Catchwords: MIGRATION – Immigration Assessment Authority – whether legal unreasonableness in failure to exercise discretion under s.473DC(3) of the Migration Act 1958 – whether failure to consider integer of claims in relation to complementary protection criterion. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 425, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD |
| Cases cited: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 |
| Applicant: | CUK16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2634 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 16 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Okereke-Fisher |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2634 of 2016
| CUK16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) dated 9 September 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Safe Haven Enterprise visa (SHEV).
The Applicant, a citizen of Sri Lanka, was born in 1979. He arrived in Australia in 2012. He first applied for a SHEV in August 2015. He swore a supporting affidavit on 25 August 2015 and a personal statement on 24 August 2015. In September 2015 the Department notified him that the August 2015 application was invalid. The Applicant lodged another application for a SHEV in December 2015 which the Department assessed as valid. He re-swore his August 2015 affidavit and personal statement on 11 December 2015.
The Applicant claimed to be the second of four brothers with very similar names. The four brothers are referred to herein as brother 1 (the oldest), the Applicant (the second brother), brother 3 (the third brother) and brother 4 (the youngest).
The Applicant claimed that he and his family had been under constant threat from unidentified gunmen since 2008. In his protection visa application and his 2015 statutory declaration he claimed that in 2008 his family was attacked by a group of unknown people who entered their home, harassed and beat them, captured his “elder brother” (brother 1) and drove him away in a white van and threatened that if the family reported the incident to the police they would kill them all. The Applicant claimed that later in 2009, when there was “a split [in the] movement”, brother 1 escaped from captivity, came home and then went to Qatar. He claimed that in 2009 a group of people again came to the family home, beat them all and asked for his “elder brother” (brother 1). The family told these people that brother 1 was not in Sri Lanka.
In his protection visa application and statutory declaration the Applicant also claimed that in October 2009 a group of people tried to kidnap brother 4 who was studying at the time. They threw a bomb at that brother. He was injured, but managed to escape. The family moved to another town. His mother lodged a complaint to the police in November 2009 about the treatment of the family.
The Applicant claimed that on 26 December 2010 he was kidnapped by a group of unidentified people, beaten and threatened that he would be killed (as his father had been in 1985). He claimed that his wife made a complaint to the Sri Lankan Human Rights Commission and to a local police station on 28 December 2010 in relation to his “disappearance”.
In his “personal statement” of 24 August 2015 the Applicant explained that he was “released” by his kidnappers on 20 January 2011. He went to India for 14 months and returned to Sri Lanka for about a month before leaving the country and eventually travelling by boat to Australia. He claimed to fear that he would be killed by the people who had terrorised his family.
The Applicant provided copies and translations of the police complaints by his mother and wife. His mother complained to the police that in 2008 armed people had come to her house, attacked her four children, taken away her “third son” (brother 3) in a white van and threatened to shoot them if they reported the incident to police. She claimed that later in 2009 brother 3 had come home and had then gone to Qatar. She claimed that subsequently people from the Karuna group had come to the house in search of the son who had gone to Qatar (brother 3), had created problems and had told her to give them her “last son” (brother 4) who was later the subject of an attempted arrest by unidentified persons while he was studying elsewhere in Sri Lanka. She claimed that brother 4 was injured when a petrol bomb was thrown at him, but that he somehow escaped. She claimed that the Karuna group was searching for her and that she had moved to another address.
The Applicant was invited to and attended an interview with a delegate of the First Respondent in which he elaborated on his claims. A transcript of the interview is in evidence as an annexure to the affidavit of Christopher Hugh Levingston sworn on 7 April 2017.
In response to a question from the delegate, the Applicant claimed that he was forcibly recruited as a member of the Liberation Tigers of Tamil Eelam (the LTTE) from 1998 to 2000, but that he did not engage in combat. He denied that brother 1 had ever been taken by the Karuna group and suggested that there may have been some confusion about the names of his brothers in the translation of his claims. He claimed that it was brother 3 who was targeted by the Karuna group, because he had also been a member of the LTTE. However he claimed that brother 4 had been taken by the Karuna group on two occasions when they came looking for brother 3. He claimed that after his brother was taken the first time his mother stayed at the camp for three days and then they “let him go”. On the second occasion they threw a bomb at, and injured, brother 4.
On 31 March 2016 the delegate wrote to the Applicant requesting further information in relation to brother 3. The Applicant responded that brother 3 had been a member of the LTTE from 2002 or 2003 until 2007 and had lived in Qatar since 2009. He also advised that brother 4 lived in France on a medical visa.
On 14 July 2016 the delegate refused the application. The delegate found that the Applicant’s credibility was “highly uneven”, that several of his key claims lacked a credible explanation and were inconsistent with other evidence as to dates and which of his brothers was the subject of claimed events.
On 18 July 2016 the Applicant’s matter was referred to the Authority. The Applicant was notified of the referral by an email sent to his migration agent on 18 July 2016. As provided for in the Authority’s Practice Direction, the notification indicated that any new information or submissions must be given to the Authority within 21 days of the date of referral (that is, no later than 8 August 2016). The Applicant provided a statutory declaration to the Authority. His new representative provided two written submissions.
Relevantly, in his statutory declaration of 8 August 2016 the Applicant provided the correct names of his older brother (brother 1) and his two younger brothers (brothers 3 and 4). He corrected the spelling of brother 1’s name by his first migration agent and by departmental officers.
The Applicant claimed that he had been forcibly recruited by the LTTE in 1998 and had worked as a cook and helped injured people. He left the LTTE in 2000 during the peace talks. He then worked as a fisherman.
He claimed that brother 3 was forcibly recruited by the LTTE in 2005 and underwent combat activities before escaping in about 2006. He referred to the fact that the LTTE “had become separated” and Colonel Karuna Amman had formed his own army (Karuna group/Tamil Makkal Viduthalai Pulikal (the TMVP)). He claimed that because brother 3 had worked in the LTTE, the Karuna group came looking for that brother in 2008, entered the family home and abducted him (brother 3) in a white van. Later in 2009 there was a split in the movement and brother 3 escaped, came home and then fled to Qatar with the Applicant’s oldest brother (brother 1).
The Applicant claimed to the Authority that he now knew that during brother 3’s time with the LTTE he had worked as an intelligence officer. He had not known this at the time of his immigration interview. He claimed that the Karuna group kept harassing the family and had also asked his youngest brother (brother 4) to join them. When he refused, they had beaten members of the family.
He repeated his claim that in October 2009 a group of people tried to kidnap brother 4. Brother 4 managed to escape, but was injured when the kidnappers threw a bomb at him.
The Applicant claimed that in November 2009 he had accompanied his mother to a police station where she had lodged a complaint about the 2008 abduction of brother 3 as well as ongoing harassment. The family moved away from their home town.
He also claimed to the Authority that (as he had told the delegate) he had owned a restaurant in his home town and on many occasions had to pay money to the Karuna group and give them food parcels and the use of his vehicle to run errands whenever they needed it. He claimed that during those “transportation times” he had been in trouble with the police on some occasions. He believed that the Karuna group had given his name to the government after the end of the civil war.
The Applicant explained to the Authority that on 25 December 2010 he had an argument with four Karuna group men and the next day he was abducted, beaten and threatened because he had refused to give the Karuna group his vehicle. He was held in a camp for 21 days and beaten. He claimed that he escaped with the aid of a fellow detainee who had been a friend of his brother, after his uncle “paid money to [his] captors in exchange [for his] freedom and [he] escaped with their help”.
The Applicant described his subsequent movements, including his return to Sri Lanka after he heard the situation had improved, the arrest (and later death) of a fellow returnee, and his travel to Australia.
The Applicant complained about the performance of his first representative. He claimed that it had been difficult to communicate with that representative (who he described as his lawyer), that the lawyer had not obtained the services of an interpreter to understand his story and significant dates and had declined to accompany him to the departmental interview. He also claimed that he had not received the delegate’s decision (of 14 July 2016) until 19 July 2016. He believed his first lawyer’s negligence had contributed to the visa refusal. He claimed that he had made his personal statement of 24 August 2015 with the help of a friend’s employee. He suggested that in that statement his claim that he “escaped” from the camp where he was detained had been misinterpreted as a claim that he was “released”.
The Applicant claimed to fear being returned to Sri Lanka “mainly” due to the Karuna group. He claimed that two of the men he had argued with in December 2010 still lived in the area and would inform Karuna Amman of his return. He claimed that Karuna Amman was not on good terms with him due to his involvement with and support for Prabhakaran and could kill or harm him through his people.
In accompanying written submissions, the Applicant’s new representative submitted that the delegate had disregarded the Applicant’s main claims. She explained that all four brothers’ names sounded and were spelt similarly and suggested that this may have contributed to the fact that the delegate had questioned the identity of the brothers.
The representative suggested that the Applicant’s claim in his statements and at the interview was that it was brother 3 who was abducted by the Karuna group in 2008 and that the captors had warned his mother not to complain to the police and, because of this and brother 3’s previous involvement with of the LTTE, she had not complained at that time. However, following the incident in 2009 in which the Karuna group tried to abduct brother 4 (after brother 3 had fled safely to Qatar), his mother then complained to the police. This was followed by the abduction of the Applicant in December 2010.
The submission reiterated the Applicant’s claim about misinterpretation of his claim in his personal statement that he had “escaped” from the camp and his concerns about his first representative.
The Applicant was said to fear harm based on his political opinion and as a failed asylum seeker who illegally departed for Australia. The submission elaborated on the bases for these claims. As discussed below, the representative sought additional time “to provide a submission” to the Authority.
On 9 August 2016 the Authority advised the Applicant’s representative that a decision would not be made before 15 August 2016 and that any submission or new information provided before the decision was made may be considered, subject to s.473DD of the Migration Act 1958 (Cth) (the Act).
On 15 August 2016 the representative provided a further submission to the Authority. It was submitted that many points the Applicant wanted to convey had gone unheard because he had not received professional service from his first representative.
The representative also explained that it had been very difficult to assist the Applicant further, as they could not get his complete file and there had been no time for a Freedom of Information request. She sought “another opportunity [for the Applicant] to represent himself with the help of a professional representative” or that the Authority contact her for any further clarification.
The Authority’s Decision
On 9 September 2016 the Authority affirmed the decision not to grant the Applicant a protection visa. After stating that it had had regard to the material referred to it by the Secretary under s.473CB of the Act, the Authority addressed the information provided to it as follows:
3. The applicant provided two submissions and a written statement in support of his claims. To the extent that these contain legal submissions on the delegate’s decision, or clarify aspects of his earlier evidence, I am satisfied that this is not new information and I have considered these matters in this assessment. To the extent that any further clarification in the applicant’s statement is considered to constitute new information, I am satisfied this is credible personal information and it is seeking to address and clarify deficiencies identified by the delegate in his decision. Given all the circumstances, I am satisfied there are exceptional reasons to consider that new information.
4. The submission from the representative also contains reference to country information, some of which was not previously before the delegate, but pre-dates the delegate’s decision. No express submissions were made on why this information should be considered under s.473DD of the Act, however, a further submission dated 15 August 2016 indicates that the applicant was not satisfied with aspects of the delegate’s reasoning and indicates that he did not receive adequate support or advice from his former representative.
5. The reports referenced predate the delegate’s decision. I accept that the applicant may not have been satisfied with the carriage of this matter by his former representative. However, the applicant has not satisfied me why these reports could not have been provided to the delegate before that decision was made. There is also no suggestion that the reports contain credible personal information. Considering all the circumstances, I am also not satisfied that there are exceptional circumstances to justify considering the new information. Accordingly, I have not had regard to this information.
6. The submission also suggests the IAA should offer the applicant another opportunity to represent himself with his new representative. I have taken this to be a request that the IAA hold an interview. I have considered the submissions made by the applicant and his representative, however I am satisfied that he has been given an opportunity to present his case, and has been able to respond to his concerns with the delegate’s decision. In all the circumstances, I am not satisfied that an interview is necessary or required in the circumstances.
The Authority summarised the Applicant’s claims as presented to it, including his claim that his father was abducted and killed in 1985, that the family had been under constant threat from the Karuna group since 2008, the claimed 2008 attack on the family and capture of brother 3 and the 2009 attempt to kidnap brother 4. It also described the claim about the kidnapping of the Applicant in December 2010. The Authority recorded that the family had made two complaints to the police and that the Applicant claimed that his mother had sent his brothers to other countries to save their lives. It summarised the Applicant’s claim to fear that if he returned to Sri Lanka he would be killed by members of the Karuna group who had terrorised him and his family and that he would also face harm as a failed asylum seeker from a Western country.
Under the heading: “Claims related to Karuna”, the Authority stated that it found the Applicant’s evidence about his family’s profile and history of difficulties with the Karuna group to be “problematic”. It recorded his claim that his family’s issues with Kaurna stemmed from the fact that they supported Prabhakaran (the opposition leader) over Karuna following the split between the LTTE and Karuna and also because he and one of his brothers had been involved with the LTTE.
The Authority observed that little detail had initially been provided about these matters. It referred to the fact that in the original visa application the Applicant had claimed that his family had received threats from “unidentified gunmen” since 2008 and that in 2008 or 2009 “these men” came to the house and that his “elder brother” was taken away in a white van, but that that brother later escaped and fled to Qatar.
The Authority continued:
13. A significant discrepancy in this evidence relates to which brother was taken when the Karuna Group came to his house. In the translated police report dated 20 November 2009, the applicant’s mother claims that they kidnapped his middle brother [brother 3]. This brother later escaped. At the interview, the applicant’s claims were quite different. He claimed that Karuna came to his mother’s house looking for his middle brother [brother 3], but he was not there and so they took his youngest brother, being his brother then of school age [brother 4]. His mother later visited the camp where his youngest brother was being held and pleaded for them to let him go. He was released after three days.
14. In the application, the declaration indicates they again tried to kidnap his brother [brother 4] who was away from home studying in school. He escaped, but was hit with a bomb and his arm injured. It states his brothers were all sent to Qatar. The delegate asked why they would bother targeting his youngest brother. He responded that only they would know.
15. The delegate questioned him about the inconsistencies in his claims and his visa applications which state that it was his older brother who he claims was detained, not his younger brother. The applicant stressed that his eldest brother [brother 1] was not involved, as he left in 1998. It only involved his middle brother [brother 3] and youngest brother [brother 4].
16. I accept that the reference to his ‘elder brother’ [brother 1] in the written visa application is erroneous and that these matters related to his other brothers. Nevertheless, there remain significant discrepancies in these claims and the evidence that supports them. Specifically about the details of which brother was targeted and how long they were detained for, and how they ultimately came to return home before leaving Sri Lanka.
17. I have considered whether the applicant was confused about his evidence, and whether he may have conflated two incidents when Karuna visited, however the evidence does not suggest this is the case. The documentary evidence provided by the applicant is materially at odds with his oral evidence, as is his later evidence. His submissions to the IAA focus on deficiencies in the statement in the visa application, some of which I accept, such as the reference to his eldest brother and other generalities in his earlier statement that could be attributed to substandard interpreting and representation. However, the material conflicts between his corroborative documents and the evidence given at interview are not resolved. His statement to the IAA indicates that it was his middle brother [brother 3] who was kidnapped during the incident at his mother’s home and that he later escaped from detention in 2009. It makes no reference to his youngest brother being kidnapped, nor that his mother spent three days at the camp in order to secure his release. In these respects, his submission directly contradicts his evidence given at interview.
18. Ultimately, I find the applicant’s various accounts of these claimed incidents and his supporting documentary evidence to be unreliable. In terms of the documentation, I note the country information cited by the delegate refers to the prevalence of documentation fraud from Sri Lanka. Considering all the circumstances, I find the applicant has not been a credible witness. I do not accept that his family was visited and threatened by Karuna and one of his brothers was kidnapped. I do not accept that this brother escaped or his mother negotiated his release. I do not accept that his brother was targeted a second a time by Karuna, causing his arm to be badly injured. I do not accept he or his family have any profile with the Karuna Group, or that they were harassed or targeted for harm by the group in any way.
19. As I do not accept these claims occurred, it follows that I find there is no real chance of the applicant being harmed by Karuna or anyone else, for these reasons if he returns to Sri Lanka.
(footnote omitted, errors in original)
The Authority considered the Applicant’s claim at the departmental interview that while he and his wife were running a restaurant in the East of Sri Lanka, Karuna had regularly required them to pay protection money and had demanded the use of his vehicle and that on one occasion in December 2010, when the Applicant did not allow this, he had been threatened and the next day stopped, put in a van, and beaten so that his back was injured.
Having regard to the Applicant’s “detailed and unprompted evidence” to the delegate about the circumstances leading up to this incident, his detention and the serious mistreatment he endured while detained, the Authority accepted that the 2010 incident and his subsequent mistreatment and detention had occurred as claimed, despite some concerns about the provenance of supporting documents allegedly from the TMVP. It acknowledged that a receipt from the Human Rights Commission and a copy of the wife’s December 2010 letter of complaint to the police provided some support for these claims.
However the Authority found the Applicant’s evidence about “how or whether he had escaped” from detention was unconvincing. It did not accept that this had occurred as claimed. The Authority found that the evidence about how the Applicant’s family came to know that he was in detention and made arrangements for him to escape was very general and lacking in detail. In particular, it noted that the Applicant had not explained how his fellow detainee was able to communicate to his uncle that the Applicant was in detention or how this man and his uncle “were able to broker and facilitate his escape”.
It also had regard to the inconsistency about whether the Applicant had escaped or was released from this detention. It noted that in the entry interview he had not claimed to have escaped, but had indicated that he had paid money in order to be released from detention. It had regard to his claim that his later personal statement to the same effect was mistranslated, but noted that the entry interview preceded the claimed interpretation error.
The Authority did not accept that the Applicant had escaped from detention in 2011. It found that he had paid an amount to Karuna and “was allowed to go”. The Authority was of the view that the Applicant had embellished this aspect of his claim to create the impression that he still had a profile with Karuna and that the threat from the Karuna group was ongoing. The Authority stated that: “On the contrary”, it was satisfied that the group was acting in a criminal manner at the time the Applicant was detained and that his reaction in preventing them from using his truck had resulted in him being severely dealt with by the group. It accepted that the Applicant was targeted for protection money and the use of his vehicle and that as a result of his refusal to cooperate he was detained and seriously harmed, prior to paying money to be released from detention. However it found that he was not detained as part of security or military activity of the Sri Lankan Army or the Sri Lankan police, but as an act of criminal intimidation and extortion (which was said to be common on the part of the Karuna group around that time).
The Authority referred to the fact that the Applicant had told the delegate that he thought he was kidnapped because they wanted to use his vehicle and they were looking for his brother. However his representative had submitted to the Authority that while the Karuna group collected money and used the Applicant’s vehicle for transportation, he was mainly pursued due to his actual or imputed support for Prabhakaran (and hence his political opinion). The Authority accepted that extortion could be a multi-faceted phenomenon and that self-interested criminality and other motivations (such as political conflicts) could overlap. It accepted that the Karuna group/TMVP acted as a paramilitary group, as well as regularly engaging in arbitrary detentions, criminal activities and extortion. However as the Authority was not satisfied that the Applicant’s brothers were targeted for harm as claimed and given the specifics of the Applicant’s claims about bribery and the use of his vehicle by Karuna, it was not satisfied that he was targeted for any past low-level LTTE involvement, because of his support for Prabhakaran or for any specific conflict with Karuna or other individuals in the group. It found that he was targeted “for refusing to co-operate with the group’s criminal activities”.
The Authority also found that the Applicant’s account of his return to Sri Lanka after travelling to India was inconsistent and lacking in credibility.
The Authority did not accept that Karuna continued to have an issue with the Applicant or that the Karuna group would seek to target him again for those reasons should he return to Sri Lanka.
While the Authority accepted that Karuna/the TMVP had not been eradicated entirely and that there were credible reports of some ongoing criminal activity, it was satisfied that the group no longer had “the same capacity, reach and impunity” it had when the Applicant left Sir Lanka or that it continued to operate in a paramilitary way. The Authority continued (at paragraph 31):
… I do not accept the applicant or his family have a history or profile with the group such that he would be targeted for anything other than criminal reasons. I am satisfied that if the applicant returned to the East of Sri Lanka, he could recommence work in his restaurant, or start a new business, and there is a no more than remote chance that he would targeted or harmed by Karuna or the TMVP for any reason should he return to Sri Lanka in the reasonably foreseeable future.
The Authority also considered, but rejected, the Applicant’s claims to fear harm because of his ethnicity, residence in the East or relating to his past LTTE involvement having regard to country information, his limited involvement with the LTTE and the fact that he had faced no specific consequences from the Sri Lankan Army or the authorities due to any LTTE profile. Nor was it satisfied that he faced a real chance of serious harm as a failed asylum seeker who had departed Sri Lanka illegally. No issue is taken with these aspects of the decision.
The Authority concluded that the Applicant did not meet s.36(2)(a) of the Act.
The Authority addressed the complementary protection criterion. It referred to its findings in relation to ethnicity, origin from the East, discrimination towards Tamils and the treatment of the Applicant as a failed asylum seeker returning to Sri Lanka (including the possibility of detention on remand) but was not satisfied that he faced a real risk of significant harm on any of these bases.
In paragraph 66 of the reasons the Authority stated:
I have found that the applicant will not face a real chance of serious harm on return to Sri Lanka on the basis of any actual or imputed connection to the LTTE, including through his brother, for being a Tamil or being a Tamil from the East, as a result of leaving the country illegally or seeking asylum in Australia, or for any reason associated with his or his family’s profile or history with Karuna Group. For the same reasons, and having regard to the authority in (sic) On the basis of the authority in MIAC v SZQRB (2013) 210 FCR 505, I am satisfied there is not a real risk the applicant will face significant harm upon return to Sri Lanka for the reasons claimed.
The Authority concluded that the Applicant did not meet the complementary protection criterion. It affirmed the delegate’s decision.
The Applicant sought review by application filed on 27 September 2016. He now relies on an amended application filed on 16 April 2019.
Unreasonableness Ground
The first ground relied on in the amended application is as follows:
The Authority failed to exercise the discretionary powers conferred on it pursuant to s 473DC(3) within the bounds of reasonableness. The Authority’s failure to exercise its discretion reasonably undermined the Applicant’s participation in the proceeding and was unreasonable leading to a decision that was plainly unjust, lacking an evident and intelligent justification.
Particulars
The Authority denied the Applicant an opportunity to give new information via an interview in circumstances where (i) the Applicant had strongly alleged that the incompetence and negligence of his previous representative had affected his ability to convey his claims effectively[CB 570-572]; and (ii) the Authority relied on alleged discrepancies that were not put to the Applicant in the course of the interview, to find that the Applicant was not a credible witness.[Paragraphs 16 & 17, CB 582-583].
(errors in original)
The Applicant’s contention is that the Authority exercised its power under s.473DC(3) of the Act unreasonably in a way that led to the decision being manifestly and plainly unjust (see Minister for Immigration and Border Protection v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] per Hayne, Kiefel and Bell JJ and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [10]–[11] per Allsop CJ, [76] per Griffiths J and [101] per Wigney J).
The Applicant submitted that it was legally unreasonable for the Authority to deny him an opportunity to comment and give new information at an interview with the support of a professional representative, in circumstances where his new agent had described his previous representative’s incompetence and negligence and this was said to have affected the Applicant’s ability to convey his claims effectively.
In addition, it was pointed out that the Authority had relied on alleged inconsistencies and discrepancies in the Applicant’s claims to find that he was not a credible witness. It was submitted that these discrepancies had not been put to the Applicant in the course of the delegate’s interview. It was contended that the Applicant ought to have been interviewed by the Authority and given the opportunity to comment on and address the alleged inconsistencies and discrepancies with competent representation.
The Applicant pointed out that the powers conferred upon the Authority under Division 3 of Part 7AA of the Act (including s.473DC) were conferred on the implied condition that they were to be exercised within the bounds of reasonableness, as explained in Li (and see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16). It was also pointed out that the Full Court of the Federal Court had observed Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 at [69] that the fact that the Authority had a discretion, rather than a duty, to get new documents or new information did not provide an answer to whether or not it had acted unreasonably. Reference was made to the outline of principles in relation to legal unreasonableness in DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [37]-[38].
The Applicant referred to the issues he raised with the Authority about his representation before the delegate, the circumstances in which he was notified of the referral to the Authority and the subsequent interaction between his new representative and the Authority. It was pointed out that the Applicant’s new agent had highlighted problems the Applicant had encountered with his previous representative (including allegations of negligence and incompetence, failure to use an interpreter to translate his claims and the fact that his first lawyer had not attended the departmental interview). The new agent had also claimed she had limited time and information to prepare submissions to the Authority in circumstances where the Applicant had previously lacked “quality” representation.
Counsel for the Applicant submitted that at paragraphs 15 to 18 of its reasons the Authority had relied on alleged inconsistencies (as to which brother was targeted) and discrepancies in the Applicant’s claims (such as in relation to which brother was abducted, how long he was detained and how he came to return home). It was submitted that as these matters had not been put to the Applicant in the course of the departmental interview, he had not had an opportunity to comment.
There were said to be two relevant inconsistencies. The first was in relation to whether it was brother 1 or another brother who was abducted in 2008. The second suggested inconsistency was the difference between the Applicant’s oral evidence to the delegate that it was brother 4 who was abducted in 2008 and his written claim to the Authority that it was brother 3.
The Applicant acknowledged that the Authority had accepted that the reference to brother 1 in the visa application was an error. It was submitted however that the Authority had relied on the other inconsistency and discrepancies to find that he was not a credible witness and to reject his Karuna claims, notwithstanding that the claim by the Applicant to the Authority that it was brother 3 who was abducted in 2008 was corroborated by the mother’s police report.
It was also submitted that having regard to the similarities in the names of the Applicant’s brothers, the fact that he was not represented at the interview with the delegate, interpretation difficulties and the pressure of sitting through an important interview without professional support, there was a wide spectrum of reasons that could account for the inconsistency between his evidence at the interview and in his submission to the Authority.
Counsel for the Applicant submitted that it was apparent from the second submission made to the Authority on 15 August 2016 that his representative was “agitating for the Authority to give the Applicant another opportunity to advance his claims with the assistance of a competent representative”.
The Applicant took issue with the Authority’s conclusion at paragraph 6 of its reasons that it was satisfied that he had been given an opportunity to present his case and had been able to “respond to his concerns” with the delegate’s decision and that in all the circumstances it was not satisfied that an interview was necessary or required.
In these circumstances it was said to be unreasonable for the Authority to have exercised its discretion to deny the Applicant “the opportunity to explain the Second Inconsistency [whether it was brother 3 or brother 4 who was abducted in 2008], and to entertain questions pertaining to the Alleged Discrepancies”.
The First Respondent submitted that in the circumstances of this case it was not legally unreasonable for the Authority to fail to invite the Applicant to an interview to give new information under s.473DC(3) of the Act, having regard to the applicable statutory provisions and the fact that the Authority had considered exercising its power, and that its reasons for declining to invite the Applicant to such an interview were cogent and rational.
Consideration
Section 473DC of the Act is as follows:
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 new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
It is not in dispute that the discretionary powers conferred on the Authority by Division 3 of Part 7AA of the Act (including under s.473DC(3)) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness. Hence an unreasonable failure to exercise such a power could render invalid a purported performance by the Authority of the duty to conduct a review imposed on it by s.473CC of the Act (see Plaintiff M174 at [21], [49], [71], [86] and [97], CRY16 at [82]-[83] and DPI17 at [36] and [91]). It was not disputed that these principles applied to the Authority’s decision not to exercise its power to invite the Applicant to give new information under s.473DC(3) of the Act.
In DPI17 at [35] Griffiths and Steward JJ summarised propositions established by the plurality’s judgment in Plaintiff M174 in relation to Part 7AA of the Act as follows:
The plurality’s judgment in M174 (Gageler, Keane and Nettle JJ) establishes the following propositions:
(1) as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);
(2) the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);
(3) the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]);
(4) the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);
(5) although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and
(6) s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).
Their Honours continued in DPI17 at [36]-[38]:
36. Both Gordon and Edelman JJ, who delivered separate reasons for judgment in M174, agreed that the power conferred by s 473DC was subject to the principles in Li concerning legal unreasonableness (see at [86] and [97] respectively). To similar effect, see CRY16 at [82] and [83].
37. Other relevant principles which guide the application of the ground of review for legal unreasonableness are summarised in Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 353 ALR 408 (SZVFW) and Minister for Immigration & Border Protection v Haq [2019] FCAFC 7 (Haq) at [31]–[37] per Griffiths J (with whom Gleeson J agreed). Three points deserve particular emphasis. First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.
38. In CCQ17 at [51], Thawley J helpfully identified the following three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:
(1) identify the failure with precision;
(2) examine the terms, scope and purpose of the statutory power which the decision‐maker failed to consider; and
(3) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
As the Applicant acknowledged, this was not a case in which the Authority failed to consider exercising its discretion under s.473DC(3) of the Act. However such principles also apply in relation to a decision not to exercise the discretion under s.473DC of the Act (also see DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 at [70] and CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [51]).
In determining whether the exercise of the discretion was unreasonable (that is, whether it was outside the area of its decisional “freedom” as considered in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [62] per Allsop CJ, Griffiths and Wigney JJ) it is necessary to pay close attention to the particular facts and circumstances in issue (see CCQ17 at [51] and DPI17 at [42]). In this case that includes consideration of the opportunity the Applicant had to put additional submissions and new information to the Authority in writing.
The Applicant relied on the fact that he had alleged to the Authority that the incompetence and negligence of his previous representative had affected his ability to convey his claims effectively and that certain inconsistencies and/or discrepancies in his claims had not been put to him for comment.
The delegate’s decision of 14 July 2016 was posted to the Applicant’s then representative by letter of that date. The decision was referred to the Authority on 18 July 2016. On that basis, the time for submissions and the provision of new information was to expire on 8 August 2016. The Applicant’s then representative was informed of the referral by email of 18 July 2016.
In his statutory declaration of 8 August 2016 the Applicant expressed concern about his first representative. He complained that he did not receive the decision of 14 July 2016 from his representative until 19 July 2016. This was one day after the matter was referred to the Authority. He made no claim that receipt of the decision on 19 July 2016 allowed insufficient time to provide new information to the Authority.
The courtbook includes an Authority file note which records that on 5 August 2016 the Applicant telephoned it and expressed concern that his former representative was “no longer available”. There is no evidence that at that time he raised any concern about the quality of his representation. He was recorded as explaining that a new representative would only take the case if there was an extension of time to provide submissions. The Authority officer advised that any such request must be made in writing.
The new representative provided to the Authority a copy of an appointment of representative form signed by the Applicant on 5 August 2016. On 8 August 2016 the agent emailed the Authority seeking an extension of time to provide a written submission. The agent stated that the Applicant believed that his initial application had been handled by a lawyer who lacked professionalism and that he had not received the decision in a timely fashion. It was claimed that the Applicant also believed that there were several mistakes in the interpretation of his story and relevant documents provided to the Department.
Later on 8 August 2016 the new agent telephoned the Authority and asked whether it had received the written request for an extension of time. An Authority file note records that an officer responded that “a response would likely be issued in the next couple of days”, that is (rather unhelpfully) after the time specified in the Practice Direction for provision of submissions and new information would have expired. The agent indicated that she should be able to provide correspondence in relation to the case by midnight that day, but that she still awaited a response to the extension of time request.
At 11:56pm on Monday 8 August 2016 the Applicant’s new agent provided the statutory declaration sworn that day by the Applicant and a submission to the Authority.
In addition to clarifying aspects of his claims, in his 2016 statutory declaration the Applicant elaborated on his complaints about his first lawyer. He complained about the lawyer’s delay in applying for a SHEV within “the given time frame”. The basis for this complaint was not made clear. While the first SHEV application was assessed as invalid under s.46A(1) of the Act, the Minister exercised the power under s.46A(2) to lift the s.46A bar to allow the Applicant to make a second, valid, SHEV application.
The Applicant also complained that his first lawyer had not made himself available to discuss the case, that it was very difficult to communicate with him and that his “negligence” had contributed to the visa refusal. In particular, he claimed that his former lawyer had never obtained the services of an interpreter to understand his story and significant dates “thoroughly”. He did not elaborate on any resulting translation error or other inadequacies. He appeared to claim that a misinterpretation of “escaped” as “released” in his personal statement was attributable to a friend’s employee. The Applicant also complained that his former lawyer had declined to accompany him to his departmental interview.
In the accompanying submission of 8 August 2016 the new agent addressed the credibility of the Applicant’s claims and reiterated his claim about misinterpretation of his personal statement and his concern about his first representative. His agent explained to the Authority that the Applicant “believe[d]” that the interpreter of the personal statement had not interpreted “the exact word” correctly and that his previous representative had not checked back with him.
On 9 August 2016 the Authority afforded the Applicant additional time to provide further submissions and also further new information which it stated may be considered, subject to s.473DD of the Act.
On 15 August 2016 the agent made a further submission to the Authority. No further statement from the Applicant or further new information was provided. The agent submitted that it was evident that the Applicant had not received the professional service he expected from his previous representative who had not advised him of the complete process, had not used an interpreter, had not represented him at the departmental interview, had not made any relevant submissions to support his claim for protection, and had not had any consultation with him at which he had the opportunity to explain his story. It was claimed that therefore “many points” the Applicant wanted to convey had gone unheard. These “points” were not identified.
The agent suggested to the Authority that the Applicant was stressed and anxious at the SHEV interview. It was acknowledged that there could have been “nominal error(s)” in the Applicant’s oral evidence as to “dates and time frames for each questions asked/incidents”. It was suggested that this could be expected from any person who was recalling memories after 15 years. The agent did not address the inconsistency in the Applicant’s claims about which brother was abducted. Somewhat opaquely (given the Part 7AA regime), the agent sought generally that the Authority “at least offer [the Applicant] another opportunity to represent himself” with the help of a professional.
Apart from the claims about negligence and inadequacy on the part of the first representative, the other matters relied on support of the contention that the Authority’s refusal to invite the Applicant to an interview was legally unreasonable were particularised in ground 2 of the amended application as concerns that the decision was made in circumstances where the Authority “relied on alleged discrepancies that had not been put to him in the departmental interview” to find that he was not a credible witness. This contention was made notwithstanding that some of the discrepancies in the Applicant’s evidence, in particular as to whether brother 3 or 4 was abducted, did not “arise” until he made his submission to the Authority. Reference was made to paragraphs 16 and 17 of the Authority’s decision (set out at [36] above), in particular the references to the discrepancies in the Applicant’s evidence about which brother (of brothers 3 and 4) was targeted, how long he was detained and how he came to return home before leaving Sri Lanka.
The Applicant contended that his allegations about his former representative and the fact he did not have an opportunity to explain inconsistencies and to entertain questions about alleged discrepancies in the evidence left the Authority with no reasonable option other than to exercise its powers in s.473DC(3)(b) to invite him to an interview, and that its failure to do so was legally unreasonable.
In considering the “terms, scope and purpose” of the statutory power in issue (CCQ17 at [51]) it is to be borne in mind that, as pointed out in Plaintiff M174, Part 7AA provides a limited form of review of fast track reviewable decisions. The task of the Authority in conducting such a review is not to correct error on the part of the delegate. It is engaged in a de novo consideration of the merits of the decision referred to it. It is not in dispute that the Authority must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (see Plaintiff M174 at [17]).
As indicated, it is also not in dispute that the powers conferred upon the Authority under Division 3 of Part 7AA of the Act (including s.473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness as explained in Li (see Plaintiff M174 at [21]). However it is also clear that the Authority is under no obligation under Part 7AA to invite an applicant to appear before it to give evidence or address issues in the manner provided for under s.425 of the Act. On the contrary. Under s.473DB of the Act the Authority is required, subject to the other provisions in Part 7AA, to conduct the review by having regard to the review material provided to it under s.473DA, without accepting or requesting new information and without interviewing the referred applicant (see DGZ16 at [75]).
Further, while the Applicant’s submissions described the asserted unreasonableness as a failure to invite the Applicant to an interview to give him the opportunity to explain an inconsistency in his evidence and to entertain questions pertaining to alleged discrepancies, the power in s.473DC(3)(b) is a power to invite an applicant “to give new information” at an interview (or in any other way). It is not a power to invite an applicant to explain or comment on his evidence or to give an applicant another opportunity to advance his claims.
The principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 do not readily apply to reviews conducted by the Authority under Part 7AA (see DGZ16 at [69]). As pointed out in DPI17 at [37]:
… having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ) …
Moreover, the Full Court of the Federal Court observed in DGZ16 at [69] and [72] that:
69. In our opinion, the starting point for analysis is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions. Instead, the starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). Also, by s 473DA, Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In our view, SZBEL is not the appropriate starting point.
…
72. In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
In other words, there was no statutory duty on the Authority to invite the Applicant to an interview in order to put dispositive issues to him or to invite comment on inconsistencies or possible discrepancies that arose on the face of the evidence, or to allow him another opportunity to advance his claims, whether (or not) with a different representative.
Nor does Part 7AA confer a power on the part of the Authority to invite an applicant to give evidence and present arguments relating to issues arising in relation to the decision under review akin to that provided for in s.425 of the Act. As stated DGZ16 at [75]:
… by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
It is the case that the absence of a statutory duty does not, in itself, mean that the Authority could not be said to have unreasonably failed to exercise its power under s.473DC(3) of the Act. Where a legislative discretion is being exercised, the legislation is taken to intend that the power will be exercised reasonably, according to “the rules of reason and justice” (see Li at [24], [26] and [65]). In this context, however, it is relevant to bear in mind the limited nature of the power conferred by s.473DC of the Act. It is a power to invite an Applicant to provide “new information” in the sense described in Part 7AA and referred to in Plaintiff M174 at [24]. It is not a general power to invite an applicant to an interview (see DGZ16 at [72]).
In light of these principles, it is necessary to evaluate the particular failure in issue to see “whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense”, as explained in CCQ17 at [51] and DPI17 at [38].
As indicated, the allegation of an unreasonable exercise of the discretion in s.473DC(3) is also to be seen in light of the opportunity that was in fact afforded to the Applicant to put further submissions and new information to the Authority in writing in response to his concerns about his first lawyer and the limited time the new representative had had to assist him.
The asserted failure by the Authority occurred after the Applicant had provided the Authority with a statutory declaration clarifying and elaborating on aspects of his claims. Both he and his agent complained generally about his former agent. He attributed the misspelling of brother 1’s name and the failure to correctly interpret his claim that he escaped from detention to his agent’s negligence, while the new agent attributed the delegate’s issues about the identity of the relevant brothers to the similar sounding and spelling of their names.
In seeking an extension of time on 8 August 2016 the agent also claimed that there were several mistakes when interpreting the Applicant’s story and relevant documents, but these were not elaborated on in this request.
In response to the agent’s request, on 9 August 2016 the Authority granted an extension of time to provide further submissions and new information. The Authority advised that any new information received prior to a decision being made may be considered subject to s.473DD of the Act. Even if this was not an invitation by the Authority to provide new information within s.473DC(3)(a), it effectively gave the Applicant further time to give new information and submissions to the Authority in writing. Consistent with this, the Authority drew the agent’s attention to the fact that the Practice Direction required an explanation for why any new information could not have been given to the Department prior to the decision under review or why it was credible personal information not previously known which may have affected the consideration of the claims.
In response, the Applicant’s representative provided the further submission of 15 August 2016 which reiterated concerns about the first lawyer. No further evidence from the Applicant was provided. The agent did not identify any of the “many points” the Applicant wanted to convey to the Minister or elaborate on the allegations of mistakes made in interpreting the Applicant’s story and relevant documents. In so far as the agent sought generally that the Authority give the Applicant “another opportunity” to represent himself with the help of a professional representative, there is no provision for such an opportunity in Part 7AA of the Act.
As to the fact that certain inconsistencies and/or discrepancies identified by the Authority had not been put to the Applicant by the delegate, as indicated in DGZ16 at [69], SZBEL is not the appropriate starting point.
Moreover, as counsel for the First Respondent pointed out, the Authority accepted that the Applicant’s initial reference in his SHEV application and 2015 affidavit to his “elder brother” being abducted in 2008 was a mistake (which was clarified in the departmental interview). In this way it responded to his concerns about his first agent. The Authority accepted that deficiencies in the 2015 statement in support of the visa application such as the reference to the elder brother and other generalities could be attributed to substandard interpreting and representation, but was of the view that this left unresolved the other conflicts in the evidence.
There was a remaining inconsistency in the evidence before the Authority as to whether it was brother 4 (as the Applicant told the delegate in his interview) or brother 3 (as the Applicant submitted to the Authority) who was in fact taken in 2008. This inconsistency arose only when the matter was before the Authority. It was not an inconsistency that could have been put to the Applicant by the delegate. Nor is it apparent that it was attributable to any conduct of the first agent. The Applicant could have explained his different evidence in his statutory declaration or submission to the Authority (beyond the general submission about stress and anxiety). He did not do so. Further, there is no statutory or procedural fairness obligation on the Authority to inform the Applicant of its provisional reasoning or otherwise to invite him to explain an inconsistency. The fact that the Authority considered submissions and new information provided to it does not mean that it was required, whether “as matter of legal reasonableness or otherwise”, to seek further submissions from the Applicant “once it formed specific reservations about [his] case, and to provide [him] with an opportunity to respond” (DGZ16 at [74]).
In addition to inconsistencies which only arose before the Authority, the Authority also had regard to the fact that the Applicant’s claims to the delegate differed from the claims made in his supporting documents (such as in the translated police report of his mother’s complaint of November 2009). In particular, it had regard to the fact that in his interview the Applicant had told the delegate that in 2008 the Karuna group came looking for brother 3 (who he described as his second brother) but that as that brother was not home, they took his little brother (brother 4). The transcript of the interview reveals that the Applicant volunteered to the delegate that his “little brother who’s in France at the moment” was taken in 2008 (transcript pp.31 to 35). In contrast, in the 2009 translated police report his mother had claimed that they took brother 3. However in so far as it was submitted that the Authority acted unreasonably in failing to invite the Applicant to an interview to explain such inconsistency, the delegate recorded that the Applicant’s submitted evidence provided different accounts of dates and the identity of the relevant brother. The Applicant was therefore on notice of this concern from the delegate’s decision and had the opportunity to address it in his submissions and statement to the Authority.
In his written statement to the Authority the Applicant changed his claim about who was abducted in 2008 to state that it was brother 3. However he did not explain why he had made a different claim in his oral evidence to the delegate (a matter that could not have been affected by misinterpretation or inadequacies on the part of his first agent). Nor was any medical or other evidence provided to the Authority to support the agent’s claim that the Applicant was affected by stress and anxiety at the interview.
The Applicant also pointed to the Authority’s consideration of other “discrepancies” in the evidence which, it was suggested, should have been raised with him by the Authority at an interview. There were other discrepancies in the evidence before the Authority, for example in relation to how long the abducted brother was held by his abductors and how he returned home. In the interview with the delegate the Applicant stated that the abducted brother was at the camp for 3 days and was released after his “mother was there and pleading with them… so then they let him go” (transcript pp.33 and 34). In the Applicant’s 2015 and 2016 statements, and in his mother’s police report, it was claimed that the abducted brother was taken in 2008 and had come home in 2009. He claimed that the abducted brother had “escaped” when there was a “split movement”. As the delegate recorded, in this respect the Applicant’s evidence provided different accounts.
However the Applicant had the opportunity to address these and any other such discrepancies in his statement to the Authority, to which the Authority had regard. He repeated the claim that his abducted brother escaped late in 2009 when there was a split in the movement, but did not address other discrepancies in his evidence.
In other words, the Applicant had the opportunity to provide new information to the Authority seeking to address any deficiency or inconsistency, whether identified by the delegate or otherwise. The Authority took the new information, including that which related to his earlier claims about his brothers and what occurred to them in 2008 and/or 2009, into account. However, as the Authority found, both the Applicant’s later evidence and some of the documentary evidence he provided were materially at odds with his oral evidence to the delegate and the material conflicts between the corroborative documents and the oral evidence had not been resolved.
I have borne in mind that the starting point for analysis is not through a “natural justice” lens (DGZ16 at [69] and [73] and DPI17 at [37]). Having regard to the statutory scheme and the particular circumstances of this case, the fact that the Authority might have been minded to have regard to unexplained inconsistencies or discrepancies did not render its decision not to invite the Applicant to an interview to give new information (the invitation contemplated by s.473DC(3)(b)) legally unreasonable.
Notably, the Authority had regard to the new information the Applicant provided to it in his 2016 statutory declaration. It found that to the extent that any clarification in the Applicant’s statement to it was considered to constitute new information, it was satisfied that it was credible personal information. It was also satisfied that there were exceptional reasons to consider this new information. In other words, it had regard to such new information about the Applicant’s claims as was provided in his statutory declaration. It understood in that context that he was “seeking to address and clarify deficiencies identified by the delegate in his decision”. This did not mean that as a matter of legal reasonableness the Authority had to afford a further opportunity to the Applicant to provide new information or comment if it had reservations about his case (DGZ16 at [74]).
The Authority understood that the Applicant was not satisfied with carriage of the matter by his former representative and was of the view that he had not received adequate support or advice. The Authority’s decision not to exercise its power under s.473DC(3)(b) occurred in circumstances where the Applicant was represented by a new agent who had been permitted additional time to make a second written submission and also to provide further new information. The agent advanced concerns about the former representative, including the submission that many points the Applicant had wanted to convey to the Minister had gone unheard. However these “points” were not specifically identified. The Authority took into account the Applicant’s statement and the submissions to it (except in relation to citation of country information). It understood that this material sought to address and clarify deficiencies identified in the delegate’s reasons. Indeed, it accepted that the reference to brother 1 in the 2015 statement in support of the visa application and other generalities in the earlier statement could be attributed to substandard interpreting and representation.
The Authority understood the agent’s submission as amounting to a request for an interview (which under s.437DC(3) would be to provide new information). There is no provision under Part 7AA of the Act for a hearing of the nature provided for in s.425 of the Act. The Authority considered the request, but gave reasons for declining to invite the Applicant to a hearing in circumstances where, as it explained, he had been given an opportunity to present his case to it (including by provision of new information in writing which the Authority took into account) and also to clarify deficiencies in the delegate’s decision.
Having regard to the nature of the review and the fact the Applicant had an opportunity to put new information to the Authority in writing (which it took into account), and an extension of time to provide further submissions and new information, the Authority’s reasoning that he had been given the opportunity to present his case and had been able to respond to concerns about the delegate’s decision was cogent and rational.
In all the circumstances it has not been established that the Authority’s decision not to exercise its power to invite the Applicant to provide further new information at an interview was legally unreasonable, whether in the sense considered in CCQ17 at [51] or otherwise.
This ground is not made out.
Extortion Ground
The other ground relied on in the amended application is as follows:
The Authority failed to consider the Applicant’s Extortion Claim under the complementary protection assessment. This was a constructive failure to exercise jurisdiction leading to jurisdictional error.
Particulars
a. The Applicant claimed that in or around 2010 when he and his wife were running a restaurant in the East of Sri Lanka, the Karuna extorted protection money from them and demanded the use of his vehicle. When the Applicant refused to give them access to the vehicle, they abducted him in a van, beat him and injured his back. [the “Extortion Claim”] [Paragraph 21, CB 583]
b. The Authority accepted the Extortion Claim but did not accept the Applicant’s evidence of how he escaped from detention. [Paragraph 22 – 25, CB 583- 584]
The Applicant acknowledged that the Authority had considered his claims about extortion and detention by the Karuna group in the context of its consideration of the Refugees Convention criterion.
The Authority accepted that the Applicant had experienced extortion in having to pay the Karuna group for protection as a restaurant manager and make his vehicle available to Karuna men and that he was mistreated and detained. It did not accept his claim that he escaped from such detention, but found that an amount was paid to his captors and he was released. The Authority was of the view that the Applicant had been targeted for protection money and use of his vehicle and that he was detained and harmed as a result of refusing to cooperate with the Karuna group’s demands. It was satisfied that the Karuna group was acting in a criminal manner and that the Applicant was not targeted for his past LTTE involvement, his support for Prabhakaran or any specific conflict with Karuna or others in the group, but as an act of criminal intimidation and extortion. It found that he was targeted for refusing to cooperate with the group’s criminal activities.
The Authority found at paragraph 31 that:
While I accept that there remains evidence that Karuna/TMVP has not been eradicated entirely, and there are credible reports of some ongoing criminal activity, I am satisfied that the group no longer has the same capacity, reach and impunity it previously did when the applicant left Sri Lanka, or that it continues to operate in a paramilitary way. I do not accept the applicant or his family have a history or profile with the group such that he would be targeted for anything other than criminal reasons. I am satisfied that if the applicant returned to the East of Sri Lanka, he could recommence work in his restaurant, or start a new business, and there is a no more than remote chance that he would targeted or harmed by Karuna or the TMVP for any reason should he return to Sri Lanka in the reasonably foreseeable future.
(emphasis added)
The Applicant submitted, however, that while the Authority had addressed this aspect of his claims in the context of considering the Refugees Convention criterion, when it turned to the complementary protection criterion it fell into jurisdictional error as there was no express reference to and consideration of the extortion claim.
At paragraph 66 the Authority found in relation to the complementary protection criterion:
I have found that the applicant will not face a real chance of serious harm on return to Sri Lanka on the basis of any actual or imputed connection to the LTTE, including through his brother, for being a Tamil or being a Tamil from the East, as a result of leaving the country illegally or seeking asylum in Australia, or for any reason associated with his or his family’s profile or history with Karuna Group. For the same reasons, and having regard to the authority in On the basis of the authority in MIAC v SZQRB (2013) 210 FCR 505, I am satisfied there is not a real risk the applicant will face significant harm upon return to Sri Lanka for the reasons claimed.
(errors in original)
The Applicant submitted that the Authority’s reference in paragraph 66 to its finding that the Applicant would not face a real chance of serious harm “for any reason associated with his and his family’s profile or history with Karuna Group” did not include the extortion claim, as that claim was not a “reason associated with” his or his family’s profile or history with the Karuna group. On this basis it was submitted that the Authority’s conclusion that: “For the same reasons”, and having regard to Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33, it was satisfied that there was “not a real risk the applicant would face significant harm upon return to Sri Lanka for the reasons claimed” did not address the extortion claim. This was said to amount to a failure by the Authority to exercise jurisdiction.
The Applicant submitted that in the context of considering complementary protection the Authority should have evaluated the evidence of past extortion and made findings in relation to the requirements of s.36(2)(aa) of the Act and that in failing to do so it had failed to consider a claim which arose squarely on the material before it in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58].
The First Respondent submitted that, when read in context, the Authority’s findings in paragraph 66 of its reasons by reference to its earlier findings (in particular in paragraph 31 of its reasons) adequately addressed the complementary protection criterion in relation to the extortion claim.
Consideration
First, despite the Applicant’s reference to NABE (No 2), it is clear that he expressly made an extortion claim. It is not necessary for present purposes to consider whether such a claim arose clearly or squarely on the material before the Authority.
The Authority gave detailed consideration to the Applicant’s extortion claim in paragraphs 20 to 31 of its decision. It recognised that extortion could be a multi-faceted phenomenon, but found that the Applicant was not targeted because of his past low-level LTTE involvement, because of his support for Prabhakaran or for any specific conflict with Karuna or other individuals in the group, but rather for refusing to cooperate with the Karuna group’s criminal activities. In other words, there was no Convention nexus.
Moreover, while the Authority accepted that past extortion had occurred, it did not accept that Karuna or the Karuna group continued to have an issue with the Applicant or that they would seek to target him again for the reasons it accepted had existed in the past (that is, for refusing to cooperate with the group’s criminal activities). In that context, the Authority referred to country information about the difference between the Karuna group’s conduct, strength, support from the government and impunity at the time the Applicant claimed he was the victim of extortion and the group’s situation at the time of decision, including indicators that it no longer operated outside the law and that former Karuna members were being brought to account for past criminal activity.
Critically, at paragraph 31 of its reasons the Authority found not only that it did “not accept the applicant or his family have a history or profile with the group such that he would be targeted for anything other than criminal reasons”, but also that “there is a no more than remote chance that he would [be] targeted or harmed by Karuna or the TMVP for any reason”.
As the First Respondent submitted, the Authority’s findings in paragraph 66 which referred to “any reason associated with his or his family’s profile and history with Karuna group” referred back to, and must be read in light of, the earlier findings in paragraph 31 expressed in similar terms. The Authority did not accept that the Applicant’s family had a “history or profile with the group” such that he would be targeted for anything other than criminal reasons. Relevant to the complementary protection criterion the Authority also found at paragraph 31 that there was no more than a remote chance the Applicant would be targeted or harmed by the Karuna group or TMVP “for any reason” if he returned to Sri Lanka in the reasonably foreseeable future.
The Authority’s reference to the Applicant’s “history” with the Karuna group in paragraph 66 of its reasons clearly encompassed its earlier findings in relation to extortion by the Karuna group. I am satisfied that the Authority adequately addressed the Applicant’s extortion claim “for the same reasons” it gave in relation to the Refugees Convention criterion in the context of considering whether there was a real risk of significant harm for the purposes of the complementary protection criterion, consistent with the principles in SZQRB at [246]. This ground is not made out.
As no jurisdictional error has been established on any basis contended for by the Applicant, the application must be dismissed.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 1 May 2020
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