DFV17 v Minister for Immigration

[2019] FCCA 810

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFV17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 810

Catchwords:
MIGRATION – Application for judicial review – protection visa – Immigration Assessment Authority – consideration of ‘exceptional circumstances’ under s.473DD of the Migration Act 1958 – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473DD

Cases cited:

AQU17 v the Minister for Immigration [2018] FCAFC 111

Applicant: DFV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1545 of 2017

Judgment of: Judge Riethmuller

Hearing date: 13 February 2019

Date of Last Submission: 13 February 2019

Delivered at: Melbourne

Delivered on: 1 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Kaneally

Solicitors for the Applicant: Ms Abraham

Counsel for the Respondents: Mr Hill

Solicitors for the Respondents: Ms Buhray

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1545 of 2017

DFV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the IAA”) made on 26 June 2017. That decision affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is a Sri Lankan citizen who is of Tamil ethnicity and a Hindu.  He came to Australia by boat on 17 August 2012.  Upon his arrival, the Department conducted an irregular maritime arrival entry interview soon after on 24 October 2012.

3. In July 2013, the applicant lodged an application for a protection visa. This application included a statutory declaration and submissions from his representative.

4. In September 2015, the applicant was informed that his application for a protection visa was invalid and could not be processed, but he was instead invited to apply for a temporary protection visa or a safe haven enterprise visa. The applicant applied for a temporary protection visa on 16 February 2016. That application included a second statutory declaration as well as the previous statutory declaration.  In April 2016, the applicant provided further documents to support his application.

5. In May 2016, a delegate interviewed the applicant and subsequently made a decision on 17 October 2016 refusing the application.

6. On 26 October 2016, the matter was referred to the IAA for review.  The applicant provided to the IAA a further statement dated 17 November 2016, which attached a newspaper article and medical records with respect to the applicant's father. 

7. In May 2017, the IAA invited the applicant to comment on specific parts of a 2017 DFAT report.  The applicant's representative provided a submission in response to the invitation, together with further submissions with respect to his case.

8. The IAA was not satisfied that the applicant would face a real chance of persecution from the Sri Lankan authorities due to any links with the LTTE either as a result of an imputed political opinion or him being a young Tamil male and fisherman from the east. 

9. The IAA also found that there was not a real chance that the applicant would experience harm from those who had abducted his father, people smugglers, or one of the various groups that he identified, either because of unpaid debts or for any other reason. 

10. The IAA was not satisfied that the applicant faced a real chance of persecution if he returned to Sri Lanka on the basis of being a failed Tamil asylum seeker who had departed illegally.

Grounds of the application

1. The applicant relies upon four grounds of judicial review.  It is convenient to deal with the first three grounds together. 

Grounds 1 to 3

1. The first three grounds of the applicant's application are framed as follows:

   1.The Immigration Assessment Authority (Authority) asked itself the wrong question in assessing whether exceptional circumstances justified considering new information submitted by the applicant regarding his claim to fear harm as a Tamil fisherman, and as a result constructively failed to exercise its jurisdiction to conduct a review under the Migration Act 1958 (Cth) (the Act).

   Particulars

   a) The Authority was required to conduct a review on the basis of the “review material” (ss.473CB, 473DB the Act).

   b) The Authority may only consider new information if satisfied:

   i.      the information could not have been provided to the Minister (s 473DD(b)(i)), or is credible personal information that would have been relevant to the Delegate of the Minister’s assessment of the applicant’s claims (s 473DD(b)(ii); and

   ii.      exceptional circumstances warrant consideration of the new information (s 473DD(a)).

   c)The meaning of “exceptional circumstances” in s 473DD(a) is not confined to the matters in s 473DD(b).

   d)The applicant submitted new information to the Authority relating to his claim to fear harm as a Tamil fisherman including a Tamil newspaper article and accompanying translation (CB 290 – 293).

   e)The applicant had, in his SHEV interview, indicated he did not have sufficient funds to pay for translations of Tamil newspaper articles (Transcript: 29)

   f) The Authority found there were no exceptional circumstances to warrant considering the information (CB 332, [4]).

   g) In making the finding there were no exceptional circumstances, the Authority adopted a definition of exceptional circumstances confined to whether the new information could have been provided to the Minister, the s 473DD(b)(i) criteria.

   h) As a result the Authority overlooked the following potentially relevant circumstances:

   i.      Whether the new information satisfied s 473DD(b)(ii) as credible, personal information that could have affected the Delegate’s assessment of the applicant’s claims.

   ii.     The cost to the applicant of translating the newspaper articles for the Delegate.

   2.The Authority failed to consider matters clearly arising from the material relevant to the assessment of whether exceptional circumstances existed to justify consideration of the new information submitted by the applicant relating to this claim to fear serious or significant harm because he is a Tamil fisherman.

   Particulars

   a)The applicant relies on particulars (a) – (f), in ground 1.

   b)The Authority was required to assess any potential exceptional circumstances relating to the new information clearly arising from the material before it.

   c)The Authority failed to consider the following potentially exceptional circumstances:

   i.      Whether the new information satisfied s 473DD(b)(ii) as credible, personal information that could have affected the Delegate’s assessment of the applicant’s claims.

   ii.     The difficulties the applicant might have had translating newspaper articles for the Delegate.

   3.The Authority’s finding that no exceptional circumstances existed to justify consideration of new information relating to the applicant’s claim to fear harm as a Tamil fisherman was legally unreasonable.

   Particulars

   d)The applicant relies on particulars (a) – (f) in ground 1.

   e)The Authority found there were no exceptional circumstances justifying consideration of the newspaper article and translation given the opportunity the applicant had had to provide information in the SHEV interview, and after the SHEV interview.

   f)The Authority did not consider if the applicant’s claim in the SHEV interviews that he did not have sufficient funds to translate newspaper articles from Tamil to English constituted an exceptional circumstance.

   g)The failure to consider the cost of the translation was unreasonable and/or irrational.

2. The applicant provided additional information to the IAA in the form of a statement claiming that a relative and a friend went missing while fishing, and that he believed they had been abducted by Sri Lankan security forces.  He also submitted a print out of an online article relating to the incident from May 2016.  He said, in a written statement, that he believed that if this information had been provided to the delegate it would have had a positive effect on the [delegates]'s decision (CB 291).

3. The applicant had raised the issue of fishermen going missing when he undertook his SHEV interview.  At that time, he attempted to provide articles however they were written in Tamil and no translations were provided.  He explained that he was unable to provide a translation as he had only obtained a working visa recently and did not have sufficient funds.  The interviewer invited him to provide emails of the articles that could be obtained in English. The applicant did not provide copies of any articles. He did however did send an email with internet links that did not work (CB 261-262).

4. The IAA decided that there were not exceptional circumstances within the meaning of s.473DD of the Act to justify considering the new material. Section 473DD of the Act provides:

   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.

5. The IAA, in its reasons for decisions, said:

   3. On 18 November 2016 the IAA received a statement and further information from the applicant. The statement contains additional information about some of the applicant’s protection claims as well as new claims that a few months after January 2012 he started getting threats from the Criminal Investigation Department (CID) and that a relative and a friend of his went fishing in April 2016 and disappeared. The further information consists of a copy of a news article about the two fishermen going missing (together with an English translation) and copies of the applicant’s father’s CT scan reports from 2013 and 2015. The additional information and new claims in the statement, the news article and the CT scans were not before the delegate and are new information.

   4. In his statement that applicant says that he strongly believes that if he had provided this information to the delegate at the interview it would have had a positive effect on the decision on his application. Most, if not all, new information from applicants would be supplied to the IAA because applicants wish there to be a positive result in the IAA review of the delegate’s decision. I am not satisfied that of itself this means there are exceptional circumstances to justify its consideration. All the new information provided by the applicant pre-dates the delegate’s decision. At the TPV interview he and the interviewer, among other things, discussed his interactions with the Sri Lankan authorities and the Karuna Group, his family being a family of fishermen, his father’s death, the presence of the Sri Lankan authorities in his village, that people in the village joined the Liberation Tigers of Tamil Eelam (LTTE) and that he knew people who were missing. The interviewer explained to the applicant the importance of providing the Department with full claims as early as possible and that if he doesn’t provide all his protection claims and other relevant information he has, and the application is refused, he may not have another opportunity to forward his claims. Near the end of his interview, the interviewer confirmed with the applicant that he had provided all his protection claims, asked him if there was anything further he wished to add and said if he provides further information to the Department it would be considered prior to the decision being made. I am not satisfied that there are exceptional circumstances to justify considering the new information.

6. The IAA identified that most new information would be supplied for the purpose of assisting an applicant.  Therefore, that of itself, is not sufficient to satisfy the provision.  

7. The applicant argues that the reasons given by the IAA focused entirely upon whether or not the new information could have been provided to the delegate.  It must be accepted that whilst this is not the sole criteria, it will always remain a powerful consideration under the relevant provision.  It is for this reason that any explanation that is provided for why material was not provided to the delegate will be significant in considering whether or not exceptional circumstances have been made out with respect to material that was available or capable of being obtained prior to the delegate’s decision.

8. Counsel for the applicant points out that the IAA did not undertake a consideration of the factors set out in s.473DD(b)(ii) of the Act. Whilst the IAA does not have to carry out such an enquiry in every case (see AQU17 v the Minister for Immigration [2018] FCAFC 111), the question of whether or not new information is credible is significant, not simply because of the low bar set in this regard by the subsection, but also because it indicates the importance of assessing the potential weight and impact of the evidence as part of the considerations relevant to determining whether or not there are ‘exceptional circumstances’. However, in this case he material was clearly available prior to the delegate’s decision, but would have met the lower threshold for being ‘credible’ with the meaning of s.473DD(b) of the Act. These points were not the central focus of the reasoning, rather s.473DD(a) of the Act.

9. In a case where the new material appears to be overwhelming or likely to be determinative of the outcome of the matter, the lack of any significant explanation for the failure to produce the material before the delegate would be unlikely to impede a finding that there were ‘exceptional circumstances’.  This can be contrasted with a case where there is no significant explanation for the delay in providing a reference that simply goes to an applicant's character, and adds little to the material already before the authority. 

10. This case concerns not only the provision of additional evidence but, in substance, an additional claim based upon the allegation that one of the fishermen who went missing was a relative of the applicant.  That relative is said to have gone missing, and a newspaper article was printed (at least in Tamil) prior to the hearing before the delegate.  There is no explanation for why this claim would not have been raised with the delegate, even if the newspaper articles were not provided at that time for the reasons stated by the applicant. The significant point was his familial relationship, which was well known to him.

11. The applicant had alleged that recently two fishermen had gone missing and that there were suspicions that security forces may have arrested them.  He had also alleged that his brother does not like to go fishing because of this. The IAA accepted that the applicant's family were fishermen, and earn their living from a fishing boat.  The IAA also accepted that his brother doesn't like to go fishing since two fishermen from the village disappeared in 2016 (paragraph 28 of the IAA’s decision).

12. The substantive issue was dealt with in paragraph 39 of the IAA's decision where the authority said:

    39.I accept that the applicant’s family is a fishermen’s family and the applicant also occasionally worked as a fisherman between 2010 and July 2012 in Sri Lanka. The UNHCR states that there are reports that, albeit in the north, permission must be obtained to access coastal waters and Tamil fishermen must submit daily documentation. I accept based on the country information that the applicant and his family were subject to a registration and daily pass system as Tamil fishermen and I am prepared to accept that the applicant may face the same situation if he returns and resumes fishing. I accept that this is discriminatory and systematic conduct by the Sri Lankan authorities based on his Tamil ethnicity and results in a level of day to day harassment while undertaking fishing that may impact in the future on the applicant’s capacity to earn a living as a fisherman. However, his evidence does not suggest that he or his family were unable to support and maintain themselves when undertaking fishing work or that he would be unable to do so in the future. Although the applicant’s family is considering sending his brother to Qatar following the disappearance of two fishermen from the village, there is nothing in the evidence to suggest that the disappearance of those two fishermen was part of any ongoing harassment or targeting of fishermen from his village. I do not accept that any harassment of his fishing work would be to such an extent that it threatens the applicant’s capacity to subsist or otherwise constitutes serious harm. (citation omitted)

13. To the extent that the new information included the newspaper article the IAA has nonetheless accepted the claims supported by the article: that is that two men went missing when fishing.  In the context of the other material, it does not appear that the newspaper article could have had an impact upon the outcome.  Whilst it is said in the article that the father of one of the men who went missing suspected security forces, this does not logically affect the reasoning that the IAA set out in paragraph 39. 

14. In this case, the nature of the evidence was identified and considered by the IAA in paragraph 3 of its reasons. The nature of the new information was not likely to be significant to the outcome, and the lack of explanation by the applicant significant in the context of this case. It appears that the IAA did address the significant facts and circumstances relevant to the text in this case.

15. In the context of this case, it appears that the IAA has considered the significant matters relevant to the exercise of its discretion particularly given that the new material would have had little or no potential impact upon the findings of the IAA. As a result, I'm not persuaded that the IAA has committed a jurisdictional error in this regard. 

16. Even if I am wrong in concluding that the IAA inadequately approached the test in paragraphs 3 to 4 of their decision, it appears clear that the failure to consider the material would have caused no practical injustice given that the IAA accepted the fishermen went missing at paragraph 39 of their decision, and that the ultimate outcome turned upon improvements in security conditions in Sri Lanka.

Ground 4

1. Ground four of the applicant's application is framed as:

   4.The Authority failed to consider the applicant’s claim to fear serious or significant harm due to his membership of his family group for reason of his father’s ethnicity. Alternatively, the Authority failed to consider an integer of the applicant’s claim to fear serious harm due to his membership of his family group.

   Particulars

   a) The applicant claimed in the SHEV interview that his family faced threats on return to India in 2008 because of his father’s ethnic background as a Sinhalese man who had become a Tamil (Transcript, p 21 - 22).

   b) The Authority did not refer to the applicant’s father’s ethnicity in its reasons for decision.

   c) The Authority, therefore, failed to consider a basis upon which the applicant claimed to satisfy the statutory criteria in s 36(2)(a) or (aa) of the Act.

   d) Alternatively the applicant claimed to fear harm due to membership of his family group. The applicant’s father’s ethnic background was an integral part of that claim, which the Authority failed to consider.

1. The applicant argues that the IAA failed to consider an integer of the applicant's claim, namely that he was at risk because his father was ethnically a Sinhalese man, but one who had become a Tamil.  This appears in the transcript of the SHEV interview at pages 21 to 22.  It is argued that the IAA did not consider the applicant's father's ethnicity in the decision.

2. The applicant had claimed that his father was abducted in 2011 and only released after a ransom had been paid.  The IAA accepted that his father had been abducted but found that the attackers were unknown and that the applicant did not face any risk from the attackers in future: see paragraphs 23 and 50 of the decision.

3. The relevant passage that the applicant relies upon from the interview is as follows:

   [T]he Sinhalese people didn’t like my father because my father’s father was a Sinhalese man, and then my grandmother married a Tamil and he became a Tamil, so the Sinhalese people didn’t like my father because of it, and so they threatened us, saying that they will kill us, and had issued because of it. So even when we returned from India we had problems from my father’s people, and so if anything happens in my father’s – in the Tamil area, but they would say “You’re a Sinhalese, and why would you say with the Tamils”, and they actually beat up my father as well.

4. Counsel for the Minister argues that this passage indicates only that his father may have suffered greater mistreatment because he had been a Sinhalese man who married a Tamil and became a Tamil man, rather than this being a basis for fears by the applicant.  The last sentence of the passage makes clear that his father's relatives may beat up his father but does not make an allegation with respect to the applicant.

5. The substance of the applicant's claim wasn't mistreatment because he was a Tamil, as he reiterated towards the end of the interview where he said, at page 22, line 30 of the transcript:

   It was the army, after I came back; they would do roundups, and also the general Sinhalese people as well. It's because we  were returned from India, even the general public, they thought we were  L TTE, and I can't - when I returned from work at night time, where I was  working was, like, a Sinhalese area, so - and when I returned sometimes they'd throw stones at me, and also they would pull my bike and stop me  there, and ask me to wait there, and then Sinhalese, they would say "You're a  Tiger", and they keep saying that, and they'll come to hit me. Mostly Sinhalese people, and also the army as well, because I'm a Tamil they think I'm - I was a L TTE. Mostly they don't - they sort of had a hatred towards Tamil people.

6. As counsel for the Minister points out, this particular claim does not appear in the applicant's statement made after his interview with the delegate (CB 290) nor in the representative summary put to the IAA of the applicant's background (CB 311), nor in the summary of claims (CB 312). 

7. When considering the small passage in the transcript in the context of the information more generally I am not persuaded that this was made as a separate claim rather than an incident of the claim by the applicant of mistreatment as a Tamil.  In the circumstances I am not persuaded that this ground is made out.

Conclusions

1. As the applicant has not established a ground the application must be dismissed.

2. It was agreed by the parties that costs should follow the event fixed at $7,206. In the circumstances, I order that the applicant pay the Minister's cost fixed in that amount.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  1 April 2019