DTH17 v Minister for Immigration
[2018] FCCA 729
•27 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTH17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 729 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority (IAA) – whether the IAA erred by misconstruing s.473DD of the Migration Act 1958 (Cth) – whether the IAA erred by failing to consider relevant material – whether the Tribunal failed to comply with Ministerial Direction No. 56 – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473DD, 476, 499, pt.7AA Ministerial Direction No. 56 |
| Cases cited: BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 |
| Applicant: | DTH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 453 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 22 February 2018 |
| Date of Last Submission: | 22 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 27 April 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr J Ramachandran, Magnus Law |
| Counsel for the Respondents: | Mr P J Hannan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 453 of 2017
| DTH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 31 July 2017. The IAA affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka who arrived in Australia on the Cocos Islands on 18 October 2012 by boat and without a valid visa. On 23 March 2016, she lodged an application for a protection visa. That application was based upon the following factual claims.
The applicant is a Tamil woman from the northern province of Sri Lanka who lived in a hostel after the death of her parents in 2000 and 2002. During the school holidays, the applicant used to visit her cousin with her sister at the family home. In 2008, when the applicant was visiting her cousin, the Army[1] undertook a check on the applicant, her sister and cousin. The Army also searched the house and asked the applicant the whereabouts of her brother who they believed to be in the LTTE[2]. The Army officers questioned and accused the applicant, her sister and her cousin of being in the LTTE and took the applicant and her sister onto the road. They took a photograph of the applicant and her sister outside the house and then released them. The Army officers said that since they now had a photograph, they could arrest them at any time.
[1] Sri Lankan Army.
[2] Liberation Tigers Tamil Eelam.
The Army came to the cousin’s house every second day and made threats to kill the family if they did not tell them the whereabouts of the applicant’s brother. The last time the applicant visited her cousin’s house, the Army checked her identification documents which showed her residence at the hostel.
In the middle of 2011, the applicant applied for and was granted a tourist visa to travel to India and she went there and stayed for a month before returning to Sri Lanka.
After arriving in Sri Lanka, the applicant returned to her cousin’s town where she stayed only for a few days. The applicant was told that the Army was looking for her. Her cousin arranged for her to stay at a friend’s house in another town with her sister where she remained for 11 months. While in that town, she and her sister were questioned by the local police who asked her for her identification documents which showed that she was not from the local area.
The applicant and her sister returned to stay at the hostel but decided not to stay long because the Army knew this as her address.
On 1 October 2012 the applicant departed Sri Lanka for Australia illegally by boat. After arriving here, the applicant has been informed that the hostel would not provide her cousin with documents confirming her residence because the Army had been looking for her there. Further, since arriving in Australia the applicant married and became pregnant.
The applicant claimed to fear returning to Sri Lanka because her sister would not return with her and she may be attacked, sexually harassed or threatened because she has no guardians to protect her. The applicant fears imprisonment because the Army, CID[3] and police believe she is a member of the LTTE.
[3] Criminal Investigation Department.
On 30 November 2016, a delegate of the Minister made the decision to refuse to grant the applicant a protection visa and also determined that the applicant was not an excluded fast track review applicant. For those reasons, the matter was referred automatically to the IAA for review. The applicant sent the IAA a two page submission in which she made a number of claims that had not been made before the delegate. It will be necessary to return to the details of this submission in due course.
On 31 July 2017, the IAA made a decision to affirm the delegate’s decision.
In its Statement of Reasons, the IAA set out at [3] to [11], the material which it had considered for the purposes of the review as well as its consideration of whether it could consider the new claims made by the applicant in her written submissions. This consideration was the subject of one of the grounds of review in this Court which will be set out later in these reasons.
IAA’s reasons
The following summary of the IAA’s reasons for its decision is taken from the first respondent’s submissions[4]:
36.The IAA accepted the Applicant had been questioned and harassed by SLA officers, officers may have accused her of being involved with the LTTE and taken a photo of her and the sister outside of their home. See CB 150 [24]. However, the IAA found that the Applicant was not of adverse interest to authorities. See CB 150 [26].
37.The IAA further found that, as at the time of the Applicant’s departure, she was not of any interest to the authorities for any LTTE involvement or due to connections with family members who may have been suspected of being LTTE members or supporters. See CB 151 [28].
38.On the basis of country information, the IAA was not satisfied that violence against women in Sri Lanka was state-sponsored and/or systematic. The IAA was not satisfied that the Applicant faced a real chance of harm or that she would not be able to access state protection. See CB 151 - 152 [30]. The IAA was further not satisfied that the Applicant would face societal discrimination as a result of seeking employment outside of the home or that she would face harm because she did not have a guardian to protect her. The IAA found that she would be able to access support and assistance from her extended family and that her recent marriage and her new family circumstances mitigated those concerns. See CB 152 [31] - [32].
39.The IAA found that there was no information before it to suggest that the sister ever held a profile with the Sri Lankan authorities that would trigger any adverse interest in the Applicant due to their connection. The IAA further found that the Applicant’s concerns that the sister would be imputed by authorities because she did not return with the Applicant to be speculative. See CB 152 [34]).
40.The IAA accepted that the Applicant would be considered by the authorities to be a failed asylum seeker who departed illegally. See CB 152 [35]. The IAA found that, should the Applicant plead guilty, she would be fined and then be free to go and that in the event she plead not guilty she would, in most cases, be granted bail immediately and released on the basis of a surety. See CB 153 [40] - [41]. The IAA did not consider that such treatment would amount to serious harm and, found that the investigation, prosecution and punishment under the Sri Lankan departure laws would be the result of a law of general application. See CB 153 [42] - [43].
41.With respect to the complementary protection criteria, the IAA relied on its earlier findings to support the conclusion that the Applicant would not face a real risk of significant harm for any of the reasons advanced. See CB 155 [51]. In relation to the Applicant’s illegal departure, the IAA found that she would be detained for a short time and, if she plead guilty, the most likely penalty would be a fine. See CB 155 [53]). The IAA found that there was no intention to inflict pain and suffering or degrading treatment in relation to the poor conditions in prison and on remand and that financial penalties were not imposed in a manner intended to inflict pain and suffering or cause extreme humiliation. See CB 155 [54]. The IAA further found that the questioning on arrival, short duration in detention and financial penalty would not amount to severe pain or suffering or suffering that may be considered cruel or inhuman or degrading. See CB 155 [55].
(Emphasis in original)
[4] Filed 10 November 2017.
For those reasons the IAA concluded that the applicant did not satisfy the criteria for the grant of a protection visa and affirmed the decision of the delegate.
Consideration
Ground 1: “The Second Respondent had committed jurisdictional error by adopting and applying an unduly narrow interpretation of the term “exceptional circumstances” and, accordingly, had failed to consider all the matters relevant and capable of constituting the circumstances of his case as exceptional.”
The review conducted by the IAA was governed by the provisions of pt.7AA of the Migration Act 1958 (Cth). The apparent aim of that part is to provide for a review conducted primarily, if not exclusively, on the papers. An essential element of the scheme is s.473DD of the Act which provides for the circumstances in which the IAA is entitled to consider information that was not before the delegate.
Section 473DD 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.
(Emphasis in original)
This provision was examined by White J in BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958. His Honour relevantly described its operation as follows:
9The 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.
This statement was considered correct by the Full Court of the Federal Court in Minister for Immigration & Border Protection v BBS16[2017] FCAFC 176: see [102]-[104]; and CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192.
Before turning to the IAA’s consideration of this provision, it is necessary to set out the relevant aspects of the applicant’s written submissions to the IAA.
Part of the submissions repeated what had been before the delegate however, the following submissions were clearly new matters:
…
When they search us, there was no female police always male police search us they always touch inappropriately because that I always get mentally and psychically affected a lot but the immigration understanding in a different way and says that’s normal …
…
Even under the new government there still having a lot of problems against women and girls like raping and abusing and murdering very bad compare to Australia. Australia is a heaven compare to sri lanka. In the recent months and years there were over 100 Tamil girls got raped and got killed.
14/may/2015 a Tamil girl and school student got raped and got killed and 28 June 2015 there was another student in Vavuniya got raped and got killed 23of June 2015 another student. 20 of June 2015 there are still a lot of children’s and Tamil girls and women are living their life in fear but the government trying to cover up whatever happens against Tamil women and innocent girls.
…
In the case of myself returning to sri lanka I will be tortured and rape and will get killed or life time in jail. …
I have a brother who live in London for many years his name [name] his date of birth [date of birth] and he is a former LTTE member and he collect money for LTTE and after the war went over now he is functioning under Overseas Tamil Ellam Government. sri Lankan government black list 424 Tamil live overseas in the list my brother is one of them all his financial and asset been taken over by the sri Lankan government. because him I am very worried I have no choice. Because I did not tell this correct information about my brother I was in a lot mental stress and worried in case of going back to sri lanka I will get in trouble and lose my life. (Emphasis added)
And me and my sister we are came together … when we came here we have the same case,same problems,same situation.but immigration accepted if she going back to srilanka she will get trouble and problems.same case same situation for me immigration refused my visa application. I don’t know how can they take this decision? ..
Immigration accepted my sister’s visa application and she got 3 year tpv visa.in same case my application was refused by immigration. …
And i cannot going back srilanka as a refused asylum seekers without my sister.if i going without my sister i may face more trouple and mentally psycally torture by cid and srilankan forces.if i going without my sister cid or police or army will ask “where is your sister?how can she got visa?how australian government accepted her claim.” may they can take decision my sister is a ltte member or related with any crime. …
…
I am six months Pregnant and I am worried for my baby in the case you sending me to sri lanka myself and my child have no hope of life Please let me stay here in Australia for my baby’s future and my life I can’t imagine my life and child life going back to sri lanka please give me a life chance to have peaceful life in Australia I will always be very loyal to Australia I promise. …
(Emphasis and errors in original)
The submissions were accompanied by a number of documents referred to at [5] of the IAA’s decision. The IAA considered the claims in the submissions at [5] through to [10]:
5.The applicant’s submission contained additional information consisting of an update to her personal circumstances and the outcome of her sister's visa application, claims that when the police searched her they touched her inappropriately and assaulted her, and that she has a brother, SS, who is a former LTTE member and is on a Sri Lankan government black list of Tamils living overseas. The submission also attached snapshots of the following documents relating to the applicant’s brother:
•an article on infolanka.asia, “Eelam buses run in the UK; registered as L77E”, undated
•an article titled “Harlesden man walks from London to Geneva in call to end violence in Sri Lanka”, dated 11 March 2013
•partial snapshot of an article from the Gazette of the Democratic Socialist Republic of Sri Lanka about the designation of individuals and organisations, dated 21 March 2014
•an article from the Weekend Leader about a person called [name] who joined a demonstration in Geneva about the Tamil plight, accessed on 16 December 2016
•two photographs of a man dressed in camouflage uniform, and
•an English translation of a birth certificate for [applicant’s name], issued on 16 December 2016.
6.I consider the update to the applicant’s personal circumstances, her recent claims and the snapshots of documents may be relevant to assessing the application, were not before the delegate and is new information.
7.As the information about the applicant current personal circumstances and the outcome of her sister’s visa application relate to events occurring after the delegate’s decision I am satisfied they could not have been provided to the delegate prior to their decision being made. As the information updates her personal and family circumstances, I am satisfied there are exceptional circumstances to justify considering this new information.
8.The applicant's submission includes claims about the treatment she received by police when she was being searched and the existence of a second brother who was formerly an LTTE member and has engaged in high profile diaspora activities while living abroad in the United Kingdom. These claims were not before the delegate and are new information. However, the information basing these new claims, including the snapshotted articles, photographs and birth certificate, were in existence before the delegate’s decision and the applicant provided no explanation for why the new information could not have been provided to the delegate prior to the decision being made. I note that the applicant was assisted in the preparation of her visa application by a registered migration agent but was self-represented during the visa interview. Despite not being represented at the time of the interview, the delegate reiterated to the applicant the importance of putting forward all information relating to their claims for protection as early as possible. The applicant was also informed that the department would consider any additional material she provided after the interview and before a decision was made. I consider that despite not being represented during the visa interview, the applicant was on notice of the importance of providing all information to support her claims for protection and had adequate opportunity to do so.
9.There is no further information provided in support of the applicant’s claim that she was inappropriately touched and assaulted by police while being searched. The information provided in support of the applicant’s claim she has a second brother consists of incomplete website articles and an English translation of a birth certificate that does not include a copy of the original birth certificate. The applicant has not provided any explanation about how this material may be considered credible, personal information. The applicant has not satisfied me that the claim of being inappropriately treated by police when being searched and having a second brother is credible, personal information that, had it been known, may have affected the consideration of her claims.
10.I consider s.473DD(b) is not met. I am also not satisfied there are exceptional circumstances to justify considering the new information.
The applicant submitted that the IAA did not consider all of the matters set out in the submissions. I reject that submission. The submissions are adequately summarised at [5] of the IAA’s reasons. That summary reveals that the IAA had read all of the material and considered it. Further, the following three paragraphs which follow [5] reveal that the IAA had closely considered that material when addressing the issues by s.473DD of the Act.
The applicant also submitted that in [8] and [9] of its reasons, the IAA wrongly focussed on only one matter in determining whether or not there were exceptional circumstances to justify considering the new information. That submission cannot be accepted on the plain reading of those paragraphs. First, it is important to note that, at [10], the IAA addressed both limbs of s.473DD of the Act, the exceptional circumstances in s.473DD(a) as well as s.473DD(b).
Secondly, it is clear that the IAA considered whether there were exceptional circumstances by having regard to all of the matters in the submissions as well as the matters referred to in s.473DD(b). Paragraph 8 appears to be focussed upon the issues under sub-s.473DD(b)(i), namely whether the information was not and could not have been provided to the Minister. Paragraph 8 also focuses upon the failure by the applicant to explain “why the new information could not have been provided to the delegate prior to the decision being made”.
The applicant submitted that contrary to this reasoning, she had explained why the material could not have been given to the delegate. She relied upon the following statement in her submissions:
Because I did not tell this correct information about my brother I was in a lot mental stress and worried in case of going back to sri lanka I will get in trouble and lose my life.[5]
(Emphasis in original)
[5] This has been highlighted in [20] above.
I accept that, read in the context of the whole of the submissions, this was an explanation as to why the applicant had not provided the information to the delegate. The balance of the submissions reveals that the author had some, but not a total, grasp of the English language. In light of that, the placement of the word ‘because’ at the beginning of the sentence could be understood to be a grammatical error and that properly read the sentence is “I did not tell this correct information about my brother” because “I was in lot mental stress …”[6]. Nevertheless that is not an explanation as to why the information could not have been provided to the delegate. Thus, the IAA was correct at [8] to suggest that there was no explanation in the terms required by the legislation.
[6] Emphasis in original.
Paragraph 9 is addressed to the question in sub-s.473DD(b)(ii). Although the last sentence of that paragraph addresses the two elements of that sub-section, that is, both the credible person information element and the possibility that the information “may have affected the consideration of her claims”, the balance of the paragraph shows what the IAA was considering was whether in fact the information was “credible” personal information. The entirety of the reasoning of [9] is focussed upon the fact that the applicant provided no support for the assertions made in her claims and that such documents as provided were not very probative.
On a proper understanding of the IAA’s reasons the following may be observed: first, the IAA was not satisfied of either of the two cumulative limbs in s.473DD; secondly, its consideration of exceptional circumstances was not limited to any one matter but was made on the basis of all of the material before it; and thirdly, it addressed both possible alternatives under s.473DD(b) of the Act. These observations distinguish the reasons of the IAA in these proceedings from the circumstances considered in BVZ16 and BBS16. I am not satisfied that there is any jurisdictional error apparent in the IAA’s consideration of s.473DD and reject the first ground.
Ground 2: “That the decision of the First Respondent and Second Respondent falls into an error of law. First and Second Respondent made facts finding error, ignored relevant material and relied on irrelevant in reaching their respective decision and reasons.”
As a preliminary point, it may be noted that, to the extent that the ground refers to a decision of a delegate it must be rejected as this Court has no jurisdiction in respect of that decision: s.476 of the Act.
Section 476 provides:
476 Jurisdiction of the Federal Circuit Court
(1)Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a)a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c)a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3)Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non‑privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b)that would have been so reviewable if an application for such review had been made within a specified period; or
(c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).
(Emphasis in original)
Otherwise the ground was neither formulated nor argued with any degree of clarity. As far as it is comprehensible, it is based on the claim that the applicant’s sister was granted a protection visa whereas the applicant was not. The applicant argues that “no reference or explanation was made by the IAA regarding the conflicting decisions or double standard decision made by the First Respondent”. I understand that to be an argument that the IAA should have allowed the applicant’s application because her sister had been granted a protection visa.
The ground is misguided. It may be, as the applicant asserted in her submissions to the IAA, that she and her sister had the same claims; however, that does not necessarily mean that there must be the same result. The task of the IAA is to review the delegate’s decision. That means, as far as is presently relevant, that the IAA must determine whether it is satisfied that the applicant meets the criteria for the grant of a protection visa on the basis of the material before it. That can mean that, even where there is the same material before the IAA in respect of different applications, there can still be different outcomes.
In any event, it is not clear whether the applicant’s sister is said to have been successful before a delegate or the IAA and, if the latter, whether the IAA was differently constituted. Further, there is no evidence to suggest that the material before the IAA was the same as the material relied on by her sister.
For those reasons, this ground is rejected.
It should be noted that, in her written submissions to the Court, the applicant stated that the delegate and IAA were “inefficient and subject to biasness [sic]”. That submission was apparently prepared by a practising lawyer. Given that it was no more than a bare assertion, was not referred to in the application itself and the requirement that any form of bias must be clearly stated and clearly established, it is rejected without any further consideration.
Ground 3: “Second Respondent precluded from considering other relevant and credible information about the real situation in Sri Lanka and failed to comply with the ministerial direction no 56 under s 499 of the migration act”
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Ministerial Direction No. 56 was a direction made by the Minister under s.499(1). That Direction was not in evidence before the Court; however, it has been considered in a number of other cases and, for present purposes, it may be accepted that it was addressed to a person or body “performing functions or exercising powers under section 65, 414, or 415 of the Act”. The IAA was not performing any such function.
Section 499(2A) requires a person or body to comply with a direction made under s.499(1) and so a failure to comply with such a direction may amount to jurisdictional error. However, the applicant does not assert that there was any failure to comply with the Direction. Rather, her point appears to be that, although the Direction required the IAA to have regard to certain information, such as a report from the Department of Foreign Affairs and Trade (DFAT), it did not preclude the IAA from considering other relevant material.
This ground must fail for a number of reasons. First, the applicant has not established that the IAA acted on the basis that it was precluded from considering any material outside the scope of the Direction. Secondly, she has not established that there was material before the IAA that it did not consider (as opposed to there being material that it relied on in making its findings of fact).
The applicant’s argument went no higher than asserting that there was other “relevant and reliable material” regarding the “real situation” in Sri Lanka apart from the DFAT report relied on by the IAA. That assertion, even if accepted, which it is not, does not establish jurisdictional error. Rather, it is no more than an argument that there exists material that supported a conclusion different to the one reached by the IAA on the material before it. It is an attack on the merits of the IAA’s decision, not the legality of the decision.
Conclusion
There is no jurisdictional error in the IAA’s decision. The application is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 27 April 2018
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