CVK16 v Minister for Immigration & Anor
[2017] FCCA 235
•20 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVK16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 235 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – applicant raising a new claim because he was charged with a serious criminal offence in Australia – Authority refusing to consider the new claim – whether a new claim is “new information” which cannot be considered by the Authority save in exceptional circumstances considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5AAA, 36, 349, 415, 423A, 473CC, 473DC, 473DD |
| Cases cited: AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 CDR16 v Minister for Immigration & Anor [2016] FCCA 2759 Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 |
| Applicant: | CVK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 449 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 20 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr F A Robertson, pro bono publico |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Mr H P V Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 23 December 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 449 of 2016
| CVK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 September 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa known as a Save Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka and arrived in Australia as an Unauthorised Maritime Arrival.
The applicant’s claims for protection
The applicant claimed to fear harm in Sri Lanka for the following reasons:
a)as a result of his support for the Tamil National Party and in particular for supporting Gnanamuthu Krishnapillai;
b)that he feared harm from supporters of the Pillayan Party, whose supporters had targeted the applicant to kill him;
c)that he had been beaten and threatened with death; and
d)that after his departure, members of the Pillayan Party had targeted his family who remained in Sri Lanka.
Before the Authority, for the first time, the applicant advanced a further claim relating to an offence with which he had been charged, but where the charge was ultimately withdrawn. The offence was sexual penetration of a child under the age of 16 years. The applicant sought to raise a claim based on the existence of this charge and a fear of harm arising out of those circumstances should he be returned to Sri Lanka.
The present proceedings
These proceedings began with a show cause application filed on 29 September 2016. The applicant now relies upon an amended application filed on 22 December 2016. There is a single particularised ground in that application:
The second respondent erred in concluding, at [11], that the applicant’s claim was ‘new information’ and in doing so constructively failed to exercise [its] jurisdiction to review the decisions.
Particulars
(a)section 473DC of the Migration Act 1958 (Cth) (‘Act’) defines new information as “any documents or information”.
(b)the making of a claim to fear specific harm (based on information which the second respondent appears to have acknowledged was already before the delegate), properly) construed, is not new information as it does not constitute ‘any documents or information that were not before the Minister…’
(c)as such, the claim raised does not constitute new information and therefore does not attract the operation of sections 473DC and 473DD of the Act;
(d)by failing to have regard to the claim raised by the applicant, erroneously on the basis that reliance on the claim was excluded unless section 473DD of the Act could be satisfied, the second respondent constructively failed to exercise jurisdiction. ”
I have before me as evidence the court book filed on 21 October 2016.
Both the applicant and the Minister made helpful pre-trial submissions as well as oral submissions at the trial of the matter on 8 February 2017. The applicant was represented on a pro bono basis in these proceedings. The Court appreciates the willingness of practitioners to appear on this basis.
Consideration
The statutory framework
The framework within which fast track decisions are subject to review was set out by me in CDR16 v Minister for Immigration & Anor[1] at [23]-[39] and in subsequent cases.
[1] [2016] FCCA 2759
The relevant statutory provisions in this case are s.473DC and s.473DD of the Migration Act 1958 (Cth) (Migration Act). Those sections are in the following terms:
Section 473DC
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Section 473DC has not, at the date of this judgment, been judicially considered by a superior court.
Applicant’s contentions
In the context of the statutory framework set out above, the applicant raises the question of whether a “claim” is new “information” as that term is used in the Migration Act and therefore subject to the provisions of ss.473DC and ss.473DD.
The applicant makes several observations about s.473DC:
a)the section defines new information as “any documents or information”, and in that regard:
i)“documents” has a clear and ordinary meaning
ii)“information” is defined by the Oxford Dictionary as “Facts provided or learned about something or someone”;
iii)either documents or information can constitute “new information”;
b)the definition of “new information” does not include the word “claims”;
c)the section is related to the “getting” of new information in the sense of receiving or obtaining new information[2]. The Authority can “get” “new information” by its own motion or it can receive new information from an applicant[3].
d)section 473DD(b)(ii) of the Migration Act, when referring to the requirements for new information to be received by the Authority, that the new information must be (for one limb) “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims”;
e)the defined phrase “new information”, when read with s.473DD(b)(ii) reveals that the intention of Parliament would be that “new information” would be factual in nature, rather than the raising of an additional claim which is a legal conclusion based on other facts advanced;
f)the exclusion of the word claims from the definition must be intentional given that s.473DD specifically refers to:
i)“the referred applicant's claims”;
ii)the fact that the new information may have affected the...claims (as opposed to the new information being or comprising a claim).
[2] when read together with s.473DD and particularly s.473DD(b)
[3] see s.473DD(b)
There does not appear to be any express prohibition or limitation elsewhere in the Migration Act which prevents an applicant from advancing a claim before the Authority that was not advanced before the delegate.
The primary complaint of the applicant is directed to [11] and [12] of the Authority’s decision[4]. In those paragraphs, the applicant claimed a fear of harm in relation to the knowledge throughout his village that he was charged with sexual penetration of a child under 16 years old. Those charges were ultimately withdrawn but he claimed that the fact of the charges put him at risk of harm in Sri Lanka.
[4] CB 253
The Authority concluded at [12]:
Although the fact that the applicant was charged with this offence was in the information considered by the delegate, I consider that the applicant's claims to fear specific harm as a consequence is new information, because it substantially changes and adds to the basis on which his claims were initially made before the delegate. While l have some sympathy for the predicament of the applicant I do not consider that there are exceptional circumstances which justify consideration of the new information, being the claims that the applicant fears harm in Sri Lanka as a result of being charged in Australia, from the community in general who know about the charge, from the family of the girl, and from armed groups connected with the girl's father… (emphasis added)
The applicant submits that it is here that the Tribunal erred. It is said to have misapplied the statutory prohibition against receiving “new information” as also applying to “the applicant's claims to fear specific harm as a consequence is new information, because it substantially changes and adds to the basis on which his claims were initially made before the delegate.”
The applicant submits that the Authority’s obligation is to consider any claim made by an applicant[5] and that to make a decision without considering all of the claims fails to complete the exercise of the jurisdiction conferred[6] and, consequently, establishes jurisdictional error[7].
[5] Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at 356 [90]; NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1, 18–19, [58]
[6] Htun v Minister for Immigration (2001) 194 ALR 244, 259
[7] NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1
That misapplication of the law is said to mean that the Tribunal failed to complete the exercise of its jurisdiction to review the decision as it was obliged to do pursuant to s.473CC of the Migration Act and, for that reason, fell into jurisdictional error.
Minister’s contentions
The Minister submits that the applicant’s argument does not properly characterise the applicant’s new material and does not receive support from the statute. In short, the Authority is said to have correctly disregarded the new material.
The new material and how the Authority dealt with it
The Minister notes the following. On 19 July 2016, the Authority wrote to the applicant[8]. That letter said, among other things[9]:
The Department … has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction. (emphasis added)
[8] CB 205-218
[9] CB 206
The letter included a fact sheet in both the English[10] and Tamil[11] languages. Relevantly, the fact sheet included the following statements:
[10] CB 208-210
[11] CB 211-214
We will only consider the information that was before the department at the time when the department’s refusal decision was made, except in limited circumstances when new information might be considered.[12]
What information does the IAA have about my case?
The department will provide the IAA with all documents the department considers relevant to your case. This includes any documents you provided to the department in connection with the protection visa application. Generally, we will conduct a review of the department’s decision solely on the basis of the information provided by the department.[13](emphasis added)
[12] CB 208
[13] CB 209
Can I provide new information to the IAA?
We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision.
If there is new information that you want us to consider, you must also provide an explanation why the information:
·could not have been provided to the department before it made the decision to refuse you a protection visa; or
·is credible personal information that, had it been known to the department, may have affected the department’s decision. [14]
[14] CB 209
The last of these passages was also reflected in the Authority’s Practice Direction which was also enclosed[15].
[15] See CB 217 [22]-[23]
The applicant sent a submission, together with some documents, to the Authority late on 4 August 2016[16]. There is no challenge to the way in which the Authority dealt with that material[17].
[16] CB 220-237
[17] CB 252 [7]-[10]
The applicant sent a further communication to the Authority late on 10 August 2016[18]. In his covering letter, the applicant said that he “would like to add some more important submission to the … Authority with regard to the review of the refusal of my protection visa”[19].
[18] CB 239-242
[19] CB 240
The submission begins as follows[20]:
I would like to include some crucial and different information to be attached to my submission. The incident relates to the criminal charge I had in this country. … . (emphasis added)
[20] CB 241
The delegate referred to the fact of the charge in Australia and its subsequent withdrawal in the context of his consideration of the criterion in s.36(1C) of the Migration Act[21].
[21] CB 201 [122]
It is common ground that, before the delegate, the applicant did not give any other details about this charge insofar as his claims to protection were concerned.
The supplementary submission to the Authority then proceeds[22]:
a)to outline the effect the charge had on the applicant;
b)to assert that the incident was “widely spread throughout [his] village”;
c)to provide details concerning the alleged circumstances giving rise to the charge and its withdrawal;
d)to explain why he had not mentioned it in his protection visa interview;
e)to specify, for the first time, why he says he fears harm as a result.
[22] CB 241
The Authority set out a summary of this material[23]. Apart from the fact of the charge and its subsequent withdrawal, everything else was new. The applicant does not assert the contrary.
[23] CB 253 [11]
The Authority then assessed the material[24].
[24] CB 253 [12]. While certain passages are emphasised in this outline, the Minister relies on the whole of the Authority’s reasons
It considered that the applicant’s claims “to fear specific harm as a consequence [of the charge] is new information, because it substantially changes and adds to the basis on which his claims were initially made before the delegate”.
The Authority did not consider that there were “exceptional circumstances which justify consideration of the new information”. This was because the applicant included the information about the charge in his application (notwithstanding its embarrassing nature) and he must have known that the delegate “would have been aware of the circumstances of his detention”. The Authority found it “difficult to accept” that the applicant did not provide the delegate with “all of the information now given to the [Authority]” and that it was “hard to believe” that, given its extenuating nature, he felt “too uncomfortable” to give it to the delegate.
The Authority was not satisfied that any of the conditions of s.473DD were met and accordingly did not have regard to the material. The applicant now challenges this conclusion.
The Minister submits that the Authority did not err. First, the Authority identified that the material put forward by the applicant for the first time in August 2016 was new. The material conveyed to the Authority knowledge of alleged facts and circumstances that were not before the delegate. Even on the applicant’s approach[25], this material is said to be “new information”.
[25] see applicant’s submissions at [12.5]: “‘new information’ would be factual in nature … ”
Secondly, the Authority’s conclusion is in accordance with the statutory regime established by Part 7AA[26], especially having regard to the following aspects:
a)that, by s.473DA, Division 3 of Part 7AA is taken to be an exhaustive statement of the requirements of the natural justice hearing rule which operates to the exclusion of the common law[27];
b)that, by s.473DB, the review is to be on the papers by reference to the “review material” (defined in s.473CB) and “without interviewing the referred applicant”;
c)the Authority’s powers on review in s.473CC(2) (which do not include a power to set aside the delegate’s decision and substitute a new decision[28]).
[26] the structure and key provisions of Part 7AA were set out by me in CDR16 v Minister for Immigration & Anor [2016] FCCA 2759 at [23]-[40]
[27] See AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12] per Judge Cameron; CDR16 (at [34])
[28] in contrast to a review under Part 5 (see s.349(2)(d)) and Part 7 (see s.415(2)(d))
It is also said to be consistent with the following provisions which were introduced into the Migration Act at the same time[29]:
a)section 5AAA(2), which provides that, for the purposes of the Migration Act, it is “the responsibility of the non‑citizen to specify all particulars of his or her claim” to be “a person in respect of whom Australia owes protection obligations” and “to provide sufficient evidence to establish the claim”;
b)section 423A, which provides that the Administrative Appeals Tribunal (AAT) is to draw certain inferences where an applicant raises new claims or evidence – there was no need for an equivalent provision in Part 7AA because “new information” (that is not in the “review material”) was already excluded unless certain conditions were satisfied.
[29] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 (Cth)
Thirdly, the distinction the applicant seeks to draw between “new claims”, on the one hand, and “new information”, on the other, is said to be illusory. A non-citizen claims to be a person in respect of whom Australia owes protection obligations[30]. That claim can only be advanced – and ultimately made good – by giving information about the factual circumstances that pertain to the non-citizen and his or her country of origin. It is the provision of information (that is, by particulars and evidence[31]) that permits a claim to be assessed by the relevant decision-maker against the applicable legal criteria. Here, the Minister submits that that opportunity arose before the delegate.
[30] See eg s.5AAA(1) and s.35A
[31] See eg s.5AAA(2)
Fourthly, the Minister submits that the cases to which the applicant refers[32] do not compel the resolution of this case in the applicant’s favour. Plaintiff M61 v Commonwealth[33] and NABE v Minister for Immigration (No.2)[34] rely on Dranichnikov v Minister for Immigration[35] for the proposition that the failure by the decision-maker to respond to a “substantial, clearly articulated argument relying upon established facts” was erroneous. Htun v Minister for Immigration[36] is to similar effect. The Minister does not cavil with that proposition, as far as it goes, but it must be acknowledged that those authorities arose in different statutory contexts that, importantly, did not include s.473DD.
[32] applicant’s submissions at [18]
[33] (2010) 243 CLR 319, [2010] HCA 41 at [90]
[34] (2004) 144 FCR 1, [2004] FCAFC 263
[35] (2003) 77 ALJR 1088, 197 ALR 389, [2003] HCA 26 at [24]
[36] 233 FCR 136, [2001] FCA 1802 at [42]
In this case, the Minister submits that the Authority’s obligation to review the decision was governed by Part 7AA. The Authority reviewed the delegate’s decision having regard to the “review material” and excluding “new information”. The applicant’s “new claim” which emerged from the “new information” proffered belatedly by the applicant to the Authority was not one that the Authority was obliged to consider.
Resolution
As was made clear in submissions, the issue in this proceeding is whether the Authority erred when it did not have regard to new material (adopting a neutral word for present purposes) that was not before the Minister’s delegate and which the applicant advanced for the first time in his submission to the Authority.
The applicant says that he was advancing a new “claim to fear specific harm” but not new “information” such that the constraint in s.473DD of the Migration Act was not applicable.
The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text[37]. In the present case I was not taken to any such material.
[37] Thiess v Collector of Customs (2014) 88 ALJR 514 at [22] (the Court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 at [39] (the Court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan & Kiefel JJ). See also Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [23]-[26]
In my view, it would disregard what is plainly Parliament’s intention to accept the applicant’s interpretation of ss.473DC and 473DD. In my view, it is plain that Parliament’s intention in enacting these provisions was to restrict applicants to material put before the delegate, save in exceptional circumstances. The provisions must be read in their context. The Authority does not review decisions of delegates in the same way as the AAT. It cannot substitute its own decision; it can only affirm the decision or remit the case for further consideration. Further, the Authority’s function is not to deal with applications for review but to review adverse decisions referred to it by the Minister’s Department. The Authority does not stand in the shoes of the original decision maker in the same way as the AAT. Given the limited statutory function of the Authority, it would be very odd if the Authority could consider new claims as a general rule.
In addition, it is in my view artificial to distinguish between “claims” and “information”. While a “claim” in the most general terms is simply an expression of fear of return to another country for some reason, a “claim” does not exist in a vacuum. It only carries with it meaning capable of consideration if it is accompanied by asserted facts and circumstances. Those facts and circumstances are undoubtedly “information” for the purposes of ss.473DC and 473DD of the Migration Act.
Having rejected the applicant’s interpretation of the statutory provisions, his application must fail. I note, however, for completeness, that the applicant had provided information concerning his criminal case to the delegate. The delegate treated it only as information bearing upon the question of whether the applicant posed a risk to the Australian community. The delegate found that the applicant did not pose such a risk. There was no consideration by the delegate of the applicant’s alleged offence in respect of his claims for protection. That is unsurprising as the applicant had advanced nothing before the delegate to indicate that he might harbour a fear for that reason should he return to Sri Lanka. It was nevertheless open to the applicant to submit to the Authority that the bare facts provided to the delegate gave rise to a claim worthy of consideration. If he had done so, the Authority would no doubt have had to consider that submission. However, the applicant made no such submission. He implicitly acknowledged that the information before the delegate did not constitute a claim because he put to the Authority that the claim was a new one which the Authority should consider as exceptional. In my view, this distinction made by the applicant himself, eliminates any proposition that the Authority erred by failing to consider whether the delegate overlooked the claim.
Conclusion
I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. I will therefore order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 March 2017
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