DSD16 v Minister for Immigration

[2018] FCCA 1197

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSD16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1197

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in its assessment of whether to consider new information – whether the Authority failed to consider the risk of harm the applicant may face as a member of a particular social group – no jurisdictional error – application dismissed.

Legislation:

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

Privacy Act 1988 (Cth)

Cases cited:

BRA16 v Minister for Immigration & Border Protection [2018] FCA 127
BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958
Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176
Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16

Applicant: DSD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3435 of 2016

Judgment of: Judge Smith

Hearing date: 15 March 2018

Date of Last Submission: 15 March 2018

Delivered at: Sydney

Delivered on: 28 May 2018

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr J Kay Hoyle

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3435 of 2016

DSD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 8 November 2016.  The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka who arrived in Australia on 3 October 2012.  On 18 February 2016 he lodged an application for a protection visa.  The claims made in support of that application were as follows.

3. The applicant came from the Jaffna district in the north of Sri Lanka where his family are fishermen.  During the civil war in Sri Lanka the applicant claimed that the Liberation Tigers of Tamil Eelam (LTTE), a Tamil separatist group, demanded that the applicant either join them for military training or assist them through fishing.  He claimed that when he could not fish due to bad weather he was forced to do other work like digging bunkers to help hide the LTTE speed boats.  During the cease fire in 2002 he was again forced to assist the LTTE which often took his boat without his permission and beat him.

4. In 2006, he was forced to build more bunkers for the LTTE and to supply them with fish.  In 2008, he claimed that he was forced to jump from his boat and hide in the water as the navy approached and that those who were caught were tortured and killed.

5. Towards the end of the war the applicant escaped with some of his family members and went to an IDP[1] camp.

   [1] Internally displaced person.

6. When the war ended the applicant was interrogated by the CID[2] and accused of supporting the LTTE.  He was detained and starved and warned that they would gather more information and kill him if they discovered that he was involved.

   [2] Criminal Investigation Division.

7. The applicant was fearful because former members of the LTTE had become traitors and were identifying Tamils who had worked for the LTTE in the past.

8. The applicant claimed that he and other fishermen, while permitted to return to their village, were constantly interrogated by the CID who never stopped visiting their area.  Further, they had to register if they intended to fish.  The Sri Lankan navy forced the fishermen onto their boats and interrogated them.  During one such interrogation somebody informed on the applicant saying that he was an LTTE supporter and had helped LTTE escape.  The applicant was confronted with this and tortured.  He obtained release only upon his wife bribing a senior officer.  After he left Sri Lanka the CID questioned his wife about the applicant’s whereabouts.

9. The applicant added to these claims in an interview conducted by the delegate saying that he had departed Sri Lanka illegally without a passport and feared returning because he was a Tamil, that he would be imputed with the profile of an LTTE supporter and was considered a failed asylum seeker.  He also claimed fear on the basis of his religion saying that there had been attacks on various churches.

10. On 11 August 2016 the delegate of the Minister made a decision to refuse to grant the applicant a visa and, as that decision was a fast track reviewable decision within the meaning of the Migration Act 1958 (Cth), the matter was referred to the Authority for review pursuant to s.473CA of the Act.

11. On 18 September 2016 the applicant sent a statutory declaration to the Authority together with a number of documents.  At [5] of the statutory declaration the applicant made the following statement:

    The applicant belongs to the PSG [Particular Social Group] of being (i)ethnic Tamil, (ii) living in a LTTE controlled area (iii) having worked for LTTE as fisherman (delegate accepts the evidence that he worked for LTTE- part 4 Claims accepted —dot point 5) and perceived links to LTTE enabling the escape of LTTE men by sea (which occurred during the final stages of war and his boat was shelled , mother in law was injured and all these were accepted by the delegate ). It is submitted that the delegate failed to consider the harm that would occur to the this PSG (to which the visa applicant belongs) on their return to Sri Lanka especially having accepted that the applicant worked for LTTE as fisherman and perceived by the SLA as enabling to cause the escape of LTTE cadres at the time of war for which he was detained and tortured by SLA

    (Without alteration)

12. In addition the statutory declaration included a reference to general country information.  The documents sent together with the declaration included a letter purporting to be from the CID addressed to the applicant requiring him to present at the CID’s office in Colombo for the purposes of obtaining a statement relevant to an enquiry that is being held from the year 2008.  The second document was a letter from a Justice of the Peace dated 10 December 2015 stating that the applicant’s wife had told the author that after the applicant’s departure “the police and army and other unidentified armed men had come in search of her husband and threatening that they will harm him if they find him”. 

13. The third document was from a lawyer dated 15 February 2016 stating that the applicant had been arrested several times by the Sri Lankan police and army and that following his departure his wife had been harassed badly and that the threats to her were growing in intensity every time.

14. The Authority made its decision to affirm the delegate’s decision on 8 November 2016.

Authority’s reasons for decision

1. After a brief introduction, the Authority set out at [3] to [7] of its reasons, its consideration of the material submitted to it by the applicant.  This consideration is the subject of the first ground in this application and is dealt with in greater detail later in these reasons.

2. The Authority accepted the applicant’s claims concerning his religion but found that the applicant had not claimed to have been targeted because of his faith and accepted country information to the effect that people could worship freely: [31].

3. The Authority accepted that certain of the incidents claimed by the applicant had occurred, including that the applicant had been forced to assist the LTTE, but did not accept that those incidents meant that the applicant faced a real risk of harm upon return to Sri Lanka.  Having regard to the country information before it, it did not accept that Tamil ethnicity per se resulted in the imputation of a pro-LTTE opinion and that the applicant did not fit within the risk profile identified in the guidelines prepared by the UNHCR[3] in respect of Tamils from Sri Lanka.  The Authority found that the applicant would not be at risk of harassment or monitoring on return and that there was no real chance of harm on the basis of his Tamil ethnicity.

   [3] UNHCR, “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012.

4. The Authority accepted that the applicant would be identified as a failed asylum seeker and as someone who had departed illegally, but again, on the basis of the country information before it concerning the treatment of illegal returnees and asylum seekers, the Authority was not satisfied that the laws to which the applicant would be subject and punished operated in a discriminatory fashion or that any punishment that he received would amount to harm sufficient to give rise to protection obligations in respect of him.  For those reasons, the Authority was not satisfied that the applicant met the criteria for a grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. The first ground in the application is that the Authority erred by failing to consider the additional documents and evidence sent to it by the applicant.

2. In order to deal with this ground it is first necessary to briefly outline the statutory parameters in which the Authority operates.

3. The conduct of a review of a delegate’s decision by the Authority is determined by the provisions in pt.7AA of the Act. Ordinarily, that review is one conducted on the papers: s.473DB. However, the Authority may get “new information” for the purposes of the review.

4. “New information” is information referred to in s.473DC which, read in context, is 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 sub-ss.473DC(1)(a) and (b): Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16.

5. The first condition is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa.  The second condition is that the Authority considers that the information may be relevant:  Plaintiff M174/2016 at [24].

6. The circumstances in which the Authority may consider any “new information” are limited by s.473DD. It provides that the Authority may only consider “new information” if:

   Considering new information in exceptional circumstances

   …

   (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)

7. The requirements of sub-ss.473DD(a) and (b) are cumulative in that the Authority must not consider “new information” if either one of those sub-paragraphs has not been satisfied:  Plaintiff M174/2016 at [31]; BRA16 v Minister for Immigration & Border Protection [2018] FCA 127 at [26].

8. In Plaintiff M174/2016 the plurality explained at [30]:

   Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement.  The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”:  “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

   (Citation omitted)

9. In BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958, White J at [9] explained the appropriate consideration to be given when determining whether exceptional circumstances arise:

   9.The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent.  The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information.  So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)).  Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.

10. His Honour’s reasons for decision were subsequently approved by a Full Court of the Federal Court in Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [102]-[105].

11. It is clear from both BVZ16 and BBS16 that it will generally not be sufficient for the Authority to conclude that there are no “exceptional circumstances” within the meaning of s.473DD(a) simply because the applicant could have provided the information to the delegate prior to the making of his or her decision and failed to provide an adequate reason for not doing so.

12. In considering the question of whether it could take the matters in the applicant’s submissions into account, the Authority first accepted at [4], that some of the submissions in it were not new information and that it could have regard to them.

13. The Authority then turned, at [5], to consider what I have described as the general country information.  Its reasoning in respect of that information was:

    5.… I note that these reports were referenced to support the arguments against the delegate’s findings, however they relate to matters which were in issue at the SHEV interview conducted more than eight weeks prior to the decision being made. The reports are publicly available and precede both the interview and the delegate’s decision. The applicant was not limited to providing this information prior to or at the SHEV interview and could have done so at any time until the decision was made. The submission does not address why the reports could not have been provided before that time, or why they may be considered credible personal information. On the basis of the information before me, I am not satisfied that the information falls within s.473DD(b)(i) or s.473DD(b)(ii), nor am I satisfied there are exceptional reasons to justify considering the information. I have not considered the information in those reports.

14. This reasoning shows that the Authority considered effectively two matters in addressing s.473DD: first, that the applicant was aware of the issues to which the information related from the interview with the delegate, and had plenty of time to obtain the information which was publicly available, and did not explain why he could not have obtained it prior to the delegate’s decision; and secondly, that the information was not credible personal information. Those two matters, in the mind of the Authority, addressed the issues in both s.473DD(a) and s.473DD(b). I can see no error in its reasoning.

15. First, it is clear that the country information was not credible personal information because it was not “personal information” within the meaning of the Act. Section 5 provides that personal information has the same meaning as in the Privacy Act 1988 (Cth) and that Act provides that personal information means information or an opinion about an identified individual or an individual who is reasonably identifiable. The information concerned the circumstances pertaining in Sri Lanka, rather than, an identified or reasonably identifiable individual. That means that it was open to the Authority to conclude that sub-s.473DD(b)(ii) was not satisfied.

16. Secondly, the Authority’s conclusion that it was not satisfied that the information could not have been provided to the Authority meant that sub-s.473DD(b)(i) was not met. That means that s.473DD(b) was not satisfied and, as I have noted, the requirements in s.473DD being cumulative, the Authority was prohibited from considering the country information.

17. Thirdly, and in any event, there is no indication in [5] that the Authority proceeded on an unduly narrow understanding of the term “exceptional reasons”. I do not consider that the Authority, although relevance and cogency of information may be relevant to that issue, falls into error every time that it fails to have regard to those issues in determining whether there are such circumstances. In any event, even if the Authority did take such an approach it does not have a material impact upon its decision because s.473DD(b) was not met.

18. The Authority considered the documents attached to the applicant’s submissions in [6] and [7] of its reasons:

    6.Attached to the submission were copies of three documents: The first is a translated letter from the Colombo Criminal Investigation Department (dated 12 November 2015) to the local police requesting the applicant present at their office in respect of an enquiry. The second is a letter from a Justice of the Peace (dated 10 December 2015) in the applicant’s area attesting that the applicant had been accused of helping the LTTE, was badly assaulted several times and that according to the applicant’s wife, since his departure, police, army and unidentified armed men have been coming in search of, and threatening to harm, the applicant. The third is a letter from an attorney in Jaffna district (dated 15 February 2015) attesting that the applicant was forced to help the LTTE, and that due to this LTTE activity he arrested several times, detained, threatened and badly assaulted and that since his departure, the applicant’s wife has been harassed several times and that she is subject to worsening threats. I note the applicant has never claimed that he was arrested, nor that his wife has been subject to threats.

    7.The applicant claims these letters were not previously available to him when the case was presented to the delegate. While I am prepared to accept that the applicant may not have had these documents in his possession earlier, no explanation has been provided as to why he had not been able to obtain them earlier, particularly given they pre-date the delegate’s decision by eight to eighteen months and all also predate the application. The referred material also does not show the applicant had indicated to the delegate that he was seeking to obtain further evidence, or indeed that his wife was being threatened or that he had previously been arrested. In this case I am not satisfied there are exceptional circumstances to justify their consideration.

19. Unlike its approach in respect of the country information, the Authority only addressed the question of exceptional circumstances under s.473DD(a) when considering the three documents. The question is whether it took an unduly narrow approach to that issue.

20. In considering that question it is necessary to bear in mind that the Authority had no obligation to set out its reasons concerning its consideration of s.473DD of the Act. Nevertheless, the fact that it did so allows the Court to draw inferences as to what its actual reasons were rather than simply basing the analysis upon the outcome of its deliberation.

1. In his submissions the Minister argued that the last sentence of [6] shows that the Authority was evaluating the weight of the material as part of its determination of whether there were exceptional circumstances.  If that were so, then I would agree that the Authority did not fall into the error identified by White J in BVZ16.  Similarly, the Minister accepted that if I disagreed with that submission then it would be open for the Court to conclude that the Authority had erred.

2. While the Authority’s reasons are not pellucid in this respect and they may be open to a different interpretation, I have concluded that the Minister’s submissions ought to be accepted.  The last sentence of [6] bears repeating:

   … I note the applicant has never claimed that he was arrested, nor that his wife has been subject to threats.

3. This single sentence, although somewhat oblique, reveals that the Authority has looked at and assessed the documents with a view to comparing what is said in them to the claims made by the applicant. That conclusion is fortified by the fact that the Authority says again in [7] that the applicant had not said to the delegate that “his wife was being threatened or that he had previously been arrested”. The question to be asked is why that fact is an important one for the purposes of the Authority’s decision in respect of s.473DD.

4. There are two answers: first, the claim to which the information may have related was not before the delegate when the delegate made his decision.  That fact was clearly relevant to the question posed by the second part of sub-s.473DD(b)(ii) (“not previously known”). 

5. Secondly, it is also relevant to the probative value of the information because it is, at least on one view, potentially inconsistent with the claims made by the applicant before the delegate.  It is inconsistent if it be accepted that the applicant had told the delegate everything that had occurred upon which he relied.  That fact is relevant to the very first question posed by sub-s.473DD(b)(ii) (“credible”).  Although the Minister submitted that the better view is that the Authority considered that the claim had not been made only in weighing credibility of that claim, I consider that the Authority most likely had both questions in mind when it referred to that fact. 

6. In other words, I consider that as part of its assessment of whether there were exceptional circumstances within the meaning of s.473DD(a), the Authority had regard not only to the fact that the applicant had not explained why he could not obtain the documents earlier but also to their potential probative value. In taking that approach, the Authority did not take an unduly narrow view of what was required in order to determine whether there were exceptional circumstances. For those reasons, I reject the first ground.

7. The second ground is that the Authority “erred in law by failing to consider the correct social group to which the applicant belongs and the risks of serious harm upon return attendant to it”.  The particulars to the ground are important.  They are:

   The correct social group (PSG) to which I belong is (i) LTTE supporter/perceived supporter on account of Tamil ethnicity (ii) lived in the LTTE controlled area. (iii) Having links to LTTE as relatives of the applicant viz my father and brother were killed in the fight by the Sri Lankan Army due to their perceived LTTE links (iv) person who failed to obey the orders ( like free ferrying to camps) of the Army (v) Failed asylum seeker returning to the country and (vi) Person having departed illegally from the country . The risks attributable to this particular social group was not considered. Hence it is submitted that the IAA applied a wrong test in determining the serious harm that may occur to the applicant upon his return to Sri Lanka

   (Without alteration and emphasis added)

8. The Minister submitted that it was not entirely clear whether the particulars of this ground suggest that there was one particular social group or six.  The emphasised portion of the particular however does make it plain that what the applicant intends to suggest is that he was a member of a particular social group with the six attributes identified in the particulars.

9. The ground suffers from a number of difficulties.  The first is that the applicant never claimed to have been a member of a particular social group as currently identified.  It will be recalled that in his submission to the Authority the applicant identified the particular social group to which he belonged as consisting of:

   i)ethnic Tamil;

   ii)living in an LTTE controlled area;

   iii)having worked for the LTTE as fisherman; and

   iv)perceived links to LTTE enabling the escape of LTTE men by sea.

10. As the applicant had never made this claim, and it was not a claim which arose on any reading of the material before the Authority, there was no error in the Authority’s failure to deal with it as a single social group.

11. Secondly, it is doubtful, at best, that there could exist such a particular social group within the meaning of s.5L of the Act. The fact that a person fails to obey orders (like free ferrying to camps of the army) cannot be a characteristic that is innate or immutable or so fundamental to the applicant’s identity or conscience that he should not be forced to renounce it. Indeed, it is not a characteristic at all, but simply something that the applicant has done.

12. Thirdly, and in any event, with the exception of the third particular which was never claimed, the Authority considered each of the characteristics and concluded that the applicant’s claims did not support his claim to be owed protection by Australia.

13. For those reasons, the second ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:         28 May 2018