DJB16 v Minister for Immigration
[2018] FCCA 3791
•20 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJB16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3791 |
| Catchwords: MIGRATION – Visa – protection visa – whether Immigration Assessment Authority fell into error by failing to consider ‘new information’ – whether ‘credible personal information’ – whether ‘exceptional circumstances’ – no error demonstrated – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.473DD |
| Cases cited: BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 |
| Applicant: | DJB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 379 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 6 December 2017 |
| Date of Last Submission: | 6 December 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 20 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Clark |
| Solicitors for the Applicant: | Camatta Lempens Lawyers |
| Counsel for the Respondents: | Mr Tredrea |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 379 of 2016
| DJB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘IAA’) dated 20 October 2016 affirming a decision of a delegate of the Minister dated 1 August 2016, refusing to grant the applicant a Safe Haven Enterprise Visa (‘the visa’).
As it was a fast track reviewable decision, the decision of the delegate was referred directly to the IAA for review.
The grounds of review
When the application was first filed, the applicant made an un-particularised claim of a denial of procedural fairness. On 17 October 2017, I granted leave to the applicant to file an amended application. That application raises the following ground:
“1. The Immigration Assessment Authority (“the IAA”) constructively failed to exercise jurisdiction by not properly applying the test set out in section 473DD of the Migration Act 1958 (“the Act”).
Particulars
1.1 The applicant provided to the IAA a medical certificate, an arrest warrant and bank statements which the IAA was satisfied at paragraph [5] was new information (‘the new information”).
1.2 It was implicit in the characterisation of the new information that it was relevant to his claims.
1.3 The IAA was required by section 473DD of the Act to form a state of satisfaction as to:
1.3.1 whether exceptional circumstances existed to justify considering the new information, and;
1.3.2 whether the new information, had it been known, may have affected the consideration of the applicant’s claims.
1.4 The IAA erred in not accepting the new information was credible personal information not previously known to the delegate.
1.5 The IAA failed to consider the second limb to section 473DD(b)(ii), in not turning its mind to whether the new information may have affected the consideration of the applicant’s claims.
1.6 In so doing, the IAA constructively failed to exercise the jurisdiction imparted upon it in section 473DD.”
Background and IAA Decision
The applicant is a citizen of Sri Lanka. He arrived in Australia as an Unauthorised Maritime Arrival on 27 August 2012. He applied for a Safe Haven Enterprise Visa on 4 November 2015. The applicant claims to be a Tamil. He claims that in approximately 1991, his family travelled to India from Sri Lanka to seek refuge during the Civil War. During that time he lived in refugee camps which had terrible conditions. He later returned to Sri Lanka.
The applicant said in effect that he had been deprived of his livelihood by the Criminal Investigation Department because they suspected that he had connections with the Liberation Tigers of Tamil Elan (‘LTTE’). He claimed that he owned a tailoring shop and that police and paramilitary groups had demanded free services from him. He said that notwithstanding this, his business had become successful but that the authorities were suspicious of any Tamil who had money.
The applicant said that he had received anonymous telephone threats and demands for money and that he was forced to write blank cheques to persons from these groups who would come into his shop. He said that on one occasion a blank cheque was filled in by one of those persons, the cheque had later bounced, the victim of that fraud had found him and a court case was launched.
The applicant said that he was suspected of supporting the LTTE because he had made clothes for them. He claimed that if he were to be returned to Sri Lanka, he would be arrested and punished for leaving the country illegally and that he would be investigated upon his return.
Once this matter was referred to the IAA, the applicant was invited to make submissions. The applicant did make written submissions through his migration agent.[1] He also submitted a medical certificate dated 8 February 2016,[2] a scanned Sri Lankan arrest warrant dated 20 December 2012,[3] and bank statements from 2011 and 2012.[4]
[1] Court Book (‘CB’) pp 149-153.
[2] CB p 139.
[3] CB p 140.
[4] CB pp 154-158.
The IAA was satisfied that the written submissions were not “new information” and considered the arguments in its assessment of the application.
The IAA was satisfied that the documents provided by the applicant were “new information that was not before the delegate”.[5] As such, it would need to satisfy s.473DD of the Migration Act 1958 (Cth) (‘the Act’) before the IAA could consider it. It declined to consider the “new information” and set out its reasons for doing so:
“6. The applicant and his representative have not provided any reasons why the IAA should consider the new information under s.473DD. I note that the information predates the delegate’s decision. I am not satisfied that the information could not have been provided to the Minister before the decision was made, nor am I satisfied that it is credible personal information which was not previously known. I am not satisfied that s.473DD(b) is met. Considering all the circumstances, I am also not satisfied that there are exceptional circumstances to justify considering the new information.”
[5] CB p 165 at para [4].
The IAA ultimately concluded that there was not a real chance that the applicant would be seriously harmed on return to Sri Lanka for reasons of his ethnicity; for being a Tamil from the north; by reason of any actual or imputed connection to the LTTE; for being imputed to be a wealthy Tamil business owner; for any other reason relating to his business; or, as a result of having departed Sri Lanka illegally.
The IAA also concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm.
Having drawn those conclusions, the IAA affirmed the decision.
Consideration
Section 473DD of the Act provides as follows:
“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.”
The interplay between 473DD(a) and 473DD(b) is central to this application.
Submissions
The applicant accepts that there was no basis on which the IAA could have been satisfied with respect to s.473DD(b)(i) as all of the documents comprising the “new information” pre-dated the delegate’s decision.
In the applicant’s submission, the IAA fell into error in its approach to s.473DD(b)(ii) which deals with credible personal information not previously known. It is contended that there are three aspects to that subsection. They are:
a)whether the information was credible and personal;
b)whether or not the information was previously known to the delegate;[6] and
c)whether it may have affected the applicant’s claims.
It was submitted that the lack of detail in the reasoning of the IAA suggests both that it lacks intelligible justification and that it misunderstood the test embodied in s.473DD(b)(ii).
[6] See BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958.
Conversely, the first respondent submits that the IAA clearly considered both limbs of s.473DD. Irrespective of whether the IAA misconstrued the implications of the words “not previously known” in s.473DD(b)(ii), the first respondent says the IAA made a discrete finding that there was a lack of “exceptional circumstances”, a phrase which it did not misconstrue. For that reason, this case can be distinguished from the cases of BVZ16[7] and BBS16.[8]
[7] Op cit.
[8] Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176.
As the two limbs of the section were cumulative, a lawful finding about the absence of exceptional circumstances was dispositive of the question of whether the new information could be considered. It was submitted that there could be no doubt that the IAA had correctly considered the question of exceptional circumstances because it said that it reached its conclusion after “considering all the circumstances”.
The applicant contends that the IAA must assess whether the information is credible personal information and whether it could have affected the consideration of the applicant’s claims. The applicant submits that unless such an assessment is made, the IAA has failed in its duty to properly have regard as to whether the new information should be before it.
The applicant claims that it is clear that the IAA did not undertake any such intellectual exercise.
Discussion
The plain language of the section mandates that conditions (a) and (b) are cumulative or conjunctive with each other. This means that the information must satisfy the IAA that there are exceptional circumstances to justify considering it AND it must also be information that could not have been given to the Minister before the Minister made the decision, or it must be credible personal information which could have affected the consideration of the claims.
From paragraph 6 of the decision and reasons, it is clear that the IAA looked at the factors in condition (b) first. While the IAA does not go into detail as to why it was not satisfied, it is plain that it considered the question and have come to the conclusion that they were not satisfied that it was credible personal information.
Even if there were some error because the IAA did not actually say that it had considered whether the information could have affected the consideration of the claims, unless the information was credible personal information, subsection (b)(ii) could not be met.
Even if one of the alternatives in subsection (b) had been met, the IAA was quite clear that it was not satisfied that there were exceptional circumstances to justify considering the new information, in other words, condition (a) had not been met.
Such a finding was open on the evidence. Having made that finding, the IAA was precluded from considering that new information because there were no exceptional circumstances.
Conclusion
I am satisfied that the IAA properly considered section 473DD. I am not persuaded that jurisdictional error that has been established. I dismiss the application with costs and make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 20 December 2018
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