DGS17 v Minister for Immigration

[2018] FCCA 3928

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGS17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3928

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred by incorrectly interpreting the term “exceptional circumstances” – whether the Authority erred by failing to consider the correct social group – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5L, 473DD, pt.7AA

Other materials cited:
Prevention of Terrorism Act (Sri Lanka)

Cases cited:

An v Minister for Immigration & Citizenship (2007) 160 FCR 480

AQU17v Minister for Immigration & Border Protection [2018] FCAFC 111

BVZ16 v Minister for Immigration & Border Protection [20017] FCA 958

CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481

Applicant: DGS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2299 of 2017

Judgment of: Judge Smith

Hearing date: 12 December 2018

Date of Last Submission: 12 December 2018

Delivered at: Sydney

Delivered on: 12 December 2018

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Ms R Graycar

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2299 of 2017

DGS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of the decision of the Immigration Assessment Authority made on 29 June 2017.  The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Sri Lanka who arrived in Australia on 12 October 2012.  He lodged an application for a protection visa on 14 July 2016.  The claims he made in support of that application are summarised at [6] of the Authority’s reasons as set out below:

   ●  He lived in Mullaitivu which was under the control of the LTTE until he was married and moved to Vavuniya which was under the control of the Sri Lankan army (SLA). The military would frequently come to his house and ask whether he was involved in the LTTE. He was twice taken to a military camp and questioned about his support for the LTTE. He was abused and threatened with death. As a result of the harassment he went to Qatar to work. After he went to Qatar his wife was harassed as was his mother in law.

   ●  His brother, S, was killed by the SLA on 19 February 2009. The government would not record the cause of death as being shot by the SLA and instead recorded on his death certificate that he was killed in shelling. Another brother, U, was injured when he was shot in an incident on 17 June 2009.

   ●  After the end of the war, his parents and siblings were taken to an internally displaced persons (IDP) camp. He returned from Qatar to visit his family in 2009. When he visited his family in the IDP camp, he was detained by the SLA approximately 3 times and interrogated.

   ●  When he went to his home in Vavuniya to see his wife and son, the CID and the SLA visited his family home late at night on two occasions looking for the applicant as a result of which he got into the habit of sleeping at different relative’s houses at night.

   ●  He went back to Qatar after a month and then returned to Sri Lanka in 2010. He was followed and monitored when visiting his parents at their home. The CID would come to his house and question him approximately once a month. They would also frequently stop him when he was driving or travelling outside of his house.

   ●  If he wasn’t at home when they visited, the CID would question his wife about his whereabouts. The applicant believed that it was only a matter of time before he was going to be forcibly taken away from his home and killed.

   ●  Since arriving in Australia, the CID have visited applicant’s home in Sri Lanka, asking for the applicant’s whereabouts. The applicant’s wife disclosed to the CID that the applicant fled Sri Lanka and travelled to Australia. The CID have also approached his mother and siblings and enquired about the applicant’s whereabouts and his involvement with the LTTE, after his departure from Sri Lanka.

   (Without alteration)

3. On 24 March 2017 a delegate of the Minister made a decision to refuse to grant the applicant a visa and given the nature of the applicant’s arrival in Australia and the other circumstances pertaining to his case, the matter was referred to the Authority under pt.7AA of the Migration Act 1958 (Cth).

4. In a submission dated 22 April 2017 the applicant raised a number of new matters as well as some information dating back to February 2010 and I will return to that information later in these reasons.  On 29 June 2017 the Authority made a decision to affirm the delegate’s decision. 

5. After dealing with the information contained in the applicant’s submission of 24 April 2017 and having summarised the applicant’s claims as I have set out above, the Authority assessed the applicant’s claims against the evidence given by him and the country information before it.  A summary of its findings and reasons is set out at [20] to [32] of the first respondent’s submissions. 

6. In his application for judicial review the applicant raises two grounds. The first ground is that the Authority incorrectly interpreted the term “exceptional circumstances” under s.473DD of the Act. Section 473DD provides for the circumstances in which the Authority is allowed to consider certain information that was not before the delegate and I set out that provision in full:

   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.

(Emphasis in original)

1. The provisions of s.473DD have been the subject of much consideration in this Court and the Federal Court. The applicant’s ground appears to be based upon the decision of White J in BVZ16 v Minister for Immigration & Border Protection [20017] FCA 958 and he relies upon an earlier decision of the Full Court of the Federal Court in An v Minister for Immigration & Citizenship (2007) 160 FCR 480, which was a decision which did not concern s.473DD of the Act. The principles concerning s.473DD are relevantly summarised in the following cases: AQU17v Minister for Immigration & Border Protection [2018] FCAFC 111 at [13] to [14], and CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333 at [26].

2. In addition, in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 the High Court considered the meaning of “exceptional circumstances” in s.473DD, in particular, at [30], where the plurality explained that exceptional circumstances were inherently incapable of exhaustive statement. The word “exceptional” is not a term of art in the context but an ordinary familiar English adjective and that to be exceptional the circumstance need not be unique or unprecedented or very rare. However, it cannot be one that is regularly or routinely or normally encountered.

3. The particulars to the first ground suggest that the new information in question was such that it should have been considered pursuant to sub-s.473DD(b)(i).  In other words, it is a submission that the circumstances of the new information were, or came within, the description of exceptional circumstances.  The difficulty with that proposition is that the legislation has left the determination of what are exceptional circumstances to the Authority.  The breadth of the term is such that it requires some level of qualitative analysis by the decision-maker and it is difficult for the Court on judicial review to determine whether those circumstances are met.  That said, I have also considered whether, like was found by White J in BVZ16, the Authority took an overly narrow view of what was meant by “exceptional circumstances”. 

4. The Authority dealt with this issue by assessing the new information in two parts.  First were the particular claims relating to the applicant’s brother’s membership in the LTTE, and secondly, was what I have referred to as country information.  This consideration is set out at [4] and [5] of the Authority’s reasons, which I set out in full:

   4.  The applicant submitted that the main reason that the Criminal Investigation Department (CID) repeatedly searched him out is that they suspected he was also in the LTTE and country information indicates that LTTE suspects are still searched for by the authorities in Sri Lanka. The applicant stated he omitted this information at the beginning because he felt that if he revealed that information his application would be looked at adversely. I note that while the submission has been provided directly to the IAA by the applicant, the applicant was assisted by a representative in completing his SHEV application and a representative accompanied him to his SHEV interview. The applicant (and his representative) were advised at the end of his interview that any additional information provided before the decision was made would be considered. I have taken into consideration that a relatively short period of time elapsed between the date of his interview and the date on which the delegate made her decision. However, the applicant was advised by the delegate that it was his responsibility to provide to the Department all the information in support of his claims. He was also specifically asked in his SHEV interview whether there was anything in his written statement that he wished to add to or change; he responded no. Other than stating he felt his application may be looked at adversely, the applicant has not explained why he is only now providing the information. In the circumstances, I am not satisfied that exceptional circumstances exist to justify considering the applicant’s new claims.

   5.  In regard to the two pieces of country information provided by the applicant, one report is from Human Rights Watch, dated 1 February 2010. It is publically available material that predates the visa application by a number of years. It calls for the end of indefinite detention of LTTE suspects. I note that other more recent information from credible sources regarding the treatment of suspected members of the LTTE was before the delegate and I am not satisfied that exceptional circumstances exist to justify considering this new country information. The other new country information provided by the applicant is an extract from what appears to be a news article from Aljazeera dated sometime in 2017 and referring to the UN’s statement about the tardiness of Sri Lankan authorities in prosecuting war crimes. The relevance of this extract to the applicant’s application is not apparent and I am not satisfied there are exceptional circumstances to justify considering this new information.

5. Paragraph 4 reveals that the Authority assessed the question of exceptional circumstances by reference not only to the opportunity that the applicant had to put that information forward earlier in the process, but also by reference at some level to the credibility of that information.  I note in particular that the Authority placed weight on the fact that the applicant had been asked at the interview with the delegate whether there was anything more he wished to add and that he specifically responded, “No.”  That consideration goes both to the credibility of the new claim as well as to the opportunity that the applicant had to put forward the new claim. 

6. In addition, the Authority expressly dealt with the explanation given by the applicant in his submission for failing to put the information forward earlier.  As explained by the Full Court in AQU17, it is not necessary in every case, for the Authority to consider each of the elements in s.473DD(b) in determining whether or not there are exceptional circumstances within the meaning of s.473DD(a). Whether that is so, depends upon the circumstances of the case. Here, I do not see either that the Authority restricted itself to any one particular matter or that it overlooked any other relevant matter on the circumstances before it. For that reason, I do not see any error in [4] of the Authority’s reasons.

7. Paragraph 5 is perhaps more straightforward.  It was critical to the reasoning in that paragraph that the information put forward by the applicant in his submission was significantly older than other information before it.  In addition, there was some information put forward by the applicant that appeared to the Authority not to have any relevance to the applicant’s case.  That reasoning suggests to me that the Authority had regard to the weight and credibility of the information to be relied upon by the applicant and in that way, in my view, did not take an overly narrow view of what constitutes exceptional circumstances.  For those reasons, the first ground is rejected. 

8. The second ground is that the Authority and delegate failed to consider the correct social group to which the applicant belonged.  I will leave to one side the reference to “delegate” in this ground.  There are two reasons for that, first, if it be seen as a direct attack on the delegate’s decision, this Court has no jurisdiction to deal with it: see sub-s.476(2)(a) of the Act.  Secondly, if it is an indirect attack on the Authority’s reason by virtue of an underlying error in the delegate’s decision, then the High Court established in Plaintiff M174/2016 that any such error would not impact upon the legality of the Authority’s decision.  I will address the ground solely as relating to the Authority’s decision. 

9. In this ground the correct social group is defined by reference to six separate characteristics.  It seems to be suggested that the correct social group or correct particular social group was one involving a group of people with each of those characteristics.  Those characteristics are:

   (1)being ethnic Tamil Hindu young male;

   (2)who lived in an LTTE-controlled area;

   (3)who had close relatives, being both the brothers were shot dead by the Sri Lankan army due to LTTE affiliation;

   (4)being a person of interest to the Sri Lankan government authorities as having been interrogated and detained on multiple occasions;

   (5)being a failed asylum-seeker who illegally departed the country; and

   (6)with the possibility of the application of the Prevention of Terrorism Act (Sri Lanka) on return to Sri Lanka. 

10. The applicant relies upon [17] of the Authority’s reasons as establishing that it failed to consider that particular social group.  There are a number of difficulties with this ground.  First, [17] does not entail the totality of the Authority’s reason.  Secondly, the third characteristic in the particular social group put forward by the applicant did not arise at all on the material because it was contained in the new information which could not be considered by the Authority. 

11. Thirdly, the applicant did not in fact make any express claim that there was a particular social group which entailed each of these characteristics.  Rather, it seems to be, that whoever drafted this ground simply combined all of the individual claims made by the applicant and put them under the heading of “particular social group”. 

12. Fourthly, and subject to what I say later, there is no suggestion in any of the information in the evidence before the Court or before the Authority that there existed such a group.  I note the probability that the greater specificity in the description of a particular social group will inevitably lead to the lower likelihood that such a group exists. 

13. However, the critical difficulty with this ground is that membership of a particular social group is defined for the purposes of the Act in s.5L. That section does not apply to particular social groups constituted by a family and so applied to any claim relying on a particular social group made by the applicant in this case. I set s.5L out below:

    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c) any of the following apply:

    (i) the characteristic is an innate or immutable characteristic;

    (ii)     the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)    the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    (Emphasis in original)

14. I note in particular paragraph (c), which requires that the particular social group must have one of three elements.  None of those readily apply to the particular social group put forward by the applicant in ground 2.  Understood properly, the ground is an attempt to recast the applicant’s individual claims before the Authority by reference to a different attribution for the fear of harm claimed by the applicant.  Essentially, the applicant’s fear of harm was based upon his ethnicity and to some extent his youth.  Those matters fed into each of his other claims, which form part of the six characteristics relied upon as a particular social group. 

15. Leaving aside the third of the matters which the Authority could not accept or could not consider, it is clear from the Authority’s reasons as summarised above, that the Authority did consider each of those characteristics and whether or not they gave rise to a well-founded fear of persecution in the applicant.  For each of those reasons, ground 2 is rejected. 

Conclusion

1. I am not satisfied that the Authority’s decision is affected by jurisdictional error and the application must be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     18 January 2019