DVE16 v Minister for Immigration
[2017] FCCA 2084
•1 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DVE16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2084 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdictional error by reason that the IAA had failed to consider exercising a discretion. MIGRATION – Effect of s.473DA of the Migration Act 1958 on the operation of common law rules of natural justice in IAA reviews. |
| Legislation: Migration Act 1958, ss.5, 5AA, 36, 46A, 422B, 425, 473BB, 473CA, 473DA, 473DB, 473DC, 473DE, 473DF, 474 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 WAJR v Minister for Immigration & Multicultural and Indigenous Affairs (2004) 204 ALR 624 AFK16 v Minister for Immigration & Border Protection (No 1) [2016] FCCA 1826 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Yasmin v Attorney General (2015) 236 FCR 169 DZU16 v Minister for Immigration & Border Protection [2017] FCCA 851 SZRHL v Minister for Immigration & Citizenship (2016) 136 ALR 641 SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 |
| Applicant: | DVE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3525 of 2016 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 14 March 2017, 9 June 2017, 31 July 2017 |
| Date of Last Submission: | 31 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the First Respondent: | Mr B. Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3525 of 2016
| DVE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The applicant is a citizen of Sri Lanka who arrived by boat at the Cocos (Keeling) Islands on 8 November 2012. On 20 June 2016 he lodged an application for a Safe Haven Enterprise (subclass 790) visa with the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity and his imputed political opinion. On 24 August 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”). The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Fast track review legislative framework
Section 5AA of the Act relevantly provides that a person is an “unauthorised maritime arrival” if he or she entered Australia by sea at an excised offshore place at any time after the excision time for that place and the person became an unlawful non-citizen because of that entry. Section 5(1) of the Act prescribes the Territory of the Cocos (Keeling) Islands, amongst other places, as an excised offshore place. Its excision time was 12 noon on 17 September 2001 by the legal time in the Australian Capital Territory.
Section 46A(1) of the Act provides that an unauthorised maritime arrival cannot make a valid application for a visa. However, s.46A(2) of the Act provides that the Minister may, in his or her discretion, lift the bar on an applicant making such an application.
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 5(1) of the Act relevantly defines a “fast track applicant” as, relevantly, a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Part 7AA of the Act sets out the IAA fast track process. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that the division is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The relevant sections of that division relevantly provide:
Division 3—Conduct of review
Subdivision A—Natural justice requirements
473DA Exhaustive statement of natural justice hearing rule
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Subdivision B—Review on the papers
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
Subdivision C—Additional information
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
473DE Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i)has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i)in writing; or
(ii)at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3)Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b)is non-disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
473DF Invitation to give new information or comments in writing or at interview
(1) This section applies if a referred applicant is:
(a)invited under section 473DC to give new information in writing or at an interview; or
(b)invited under section 473DE to give comments on new information in writing or at an interview.
(2)The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.
(3)The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.
(4)If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a)without taking any further action to get the information or the referred applicant’s comments on the information; or
(b)without taking any further action to allow or enable the referred applicant to take part in a further interview.
Background facts
The applicant was interviewed by a departmental officer at an entry interview on 28 December 2012. Sometime after that interview, the applicant provided an undated written statement setting out the reasons he feared returning to Sri Lanka (“first undated statement”). The applicant provided a further undated statement at a later unspecified point in time (“second undated statement”). That document referred to the first undated statement, saying it had been made on 21 June 2013.
By letter dated 23 December 2015 the applicant was advised that the Minister had exercised his power under s.46A(2) of the Act to lift the bar on him applying for a visa. The applicant subsequently made his application for a safe haven enterprise visa on 20 June 2015. Accompanying his application was a statement dated 15 June 2016 setting out his claims for protection. The applicant made additional claims at an interview with the delegate on 8 July 2016 and in submissions made by his representatives dated 12 July 2016 and 14 September 2016.
In its decision the IAA summarised the facts alleged in support of the applicant’s claim for protection. As summarised by the IAA in its decision, the applicant relevantly made the following claims:
a)he is a Tamil from the Northern Province of Sri Lanka. His family home was located three-hundred metres from a Criminal Investigation Department (“CID”) base;
b)his paternal uncle was suspected of having smuggled weapons for the LTTE during the Sri Lankan civil war. His uncle was in hiding but sometimes visited his family;
c)in 2006 the Sri Lankan army attempted to shoot his uncle while he was hiding in the bush. Upon being unsuccessful in that, they shot the applicant’s neighbours instead;
d)in 2009 the army visited his home looking for his uncle. They beat his father and brother and took his brother to a camp where he was beaten and detained for two or three days;
e)in 2010 his uncle took him to a Martyr Day celebration where a photograph of him and other people was taken. The background of the photograph (“the 2010 photograph”) included weapons on a table;
f)in May 2012 he was abducted from school by men he believed to be members of the EPDP, a group which operated in the Northern Province and had been involved in security operations in co-operation with Sri Lankan authorities. The abductors had the 2010 photograph. They held him for three days and tortured him to obtain information about his uncle, the other men in the photograph and the weapons;
g)after he was released he hid in Colombo for three months while his family arranged for his illegal departure for Australia;
h)in 2013, after he had arrived in Australia, the CID visited his family home looking for him. They had the 2010 photograph and told his family that if he returned to Sri Lanka and returned the weapons in the photograph, he would face no further problems;
i)his brother had attempted to travel illegally to Australia but had been caught by the Sri Lanka authorities. He was released on bail; and
j)he feared that if he returned to Sri Lanka he would be harmed by the Sri Lankan authorities and the EPDP because :
i)his uncle was in the LTTE and was still in hiding;
ii)he would be imputed with knowledge of the whereabouts of the men and weapons in the 2010 photograph;
iii)he is a Tamil from the Northern Province; and
iv)he departed Sri Lanka illegally and had sought asylum in Australia.
The applicant provided to the Department a letter dated 24 January 2013 ostensibly signed by a justice of the peace who claimed to have known him since he was an infant. The justice of the peace stated that the applicant had been threatened by paramilitary groups associated with the Sri Lankan army and as a result had left school without completing his studies. The letterhead recorded the Justice of the peace’s registration number as a particular combination of letters and numbers commencing “2003/02 … ” while a stamp at the bottom of the letter recorded it as commencing “03/02 …”. The applicant also provided a letter apparently from the Human Rights Commission of Sri Lanka dated 5 June 2013. The author of the letter stated that the applicant had been abducted by unknown persons because he had helped his uncle who was an LTTE member. The letter stated that the applicant’s father had made a complaint to the Commission.
As noted earlier, the delegate refused the applicant’s application on 24 August 2016. The delegate found that the applicant was not an “excluded fast track review applicant” and so referred his matter for review by the IAA.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
The IAA did not accept that the applicant’s claims concerning his uncle were credible. It did not accept that the applicant’s uncle had been of interest to the Sri Lankan authorities because of his involvement with the LTTE, that the applicant had attended a Martyrs Day celebration with his uncle or that the 2010 photograph existed. The IAA also did not accept that the applicant or members of his family had been harmed because of their connection to his uncle or that the applicant was of interest to the EPDP or the LTTE. The IAA’s findings in this regard were based on the following findings and reasons:
a)the IAA found the applicant’s claim concerning the 2010 photograph vague and unpersuasive. It stated that the applicant had first made the claim regarding the photograph in the statement dated 15 June 2016 which accompanied his safe haven visa application. The IAA had difficulties accepting that the applicant’s uncle would have placed him at risk by photographing him in the presence of weapons. It also had difficulty accepting that the photograph would have come into the possession of the EPDP two years later in 2012 and into the possession of the CID three years later in 2013. The Tribunal also noted that the applicant gave the following inconsistent information regarding the photograph and the Martyr Day celebration:
i)at his interview with the delegate, the applicant claimed that he had not known where his uncle had been taking him, which was inconsistent with his representative’s submissions that out of respect he had felt obliged to accompany his uncle to the Martyr Day celebrations and to have a photograph taken with the other men because they were older than he;
ii)in his second undated statement, the applicant claimed that the 2010 photograph depicted him, his uncle and two other men but at his interview with the delegate he said that his uncle was the photographer;
iii)in his second undated statement the applicant said that the military investigation department visited his home in 2013 with the photograph but elsewhere he claimed it was the CID who did so; and
iv)in the second undated statement the applicant claimed that one of the other men in the photograph had been shot in March 2013 but at the interview he said that he knew nothing about the other men in the photograph;
b)the IAA found that the letter from the Justice of the peace was not consistent with the applicant’s claims in that it made no reference to the applicant’s abduction, the EPDP, the 2010 photograph or to the applicant’s uncle and referred to the Sri Lankan army when the applicant had claimed that only the EPDP and the CID had an interest in him. The IAA also noted the author’s registration number in a wet stamp affixed to the letter was not identical to the registration number in the letterhead and referred to country information which indicated that fraudulent documents were prevalent in Sri Lanka. It concluded that the letter was not a genuine document; and
c)the IAA also found that the letter from the Human Rights Commission of Sri Lanka was not a credible document. It noted that the letter stated that the applicant had assisted his uncle, which was contrary to the applicant’s own claims that he had not known what his uncle did in the LTTE. The letter also stated that the applicant had made a complaint to the Commission but the applicant did not state that he had made any such complaint.
The IAA found that country information indicated that the overall situation for Tamils in Sri Lanka had improved since the end of the civil war and that there were no official laws or policies discriminating against them, although societal discrimination continued to exist. It noted that the information also indicated that Tamils living in former LTTE areas in the north and east of the country, including those who had provided support or had family connections to the LTTE, might be monitored by the Sri Lankan authorities but were at low risk of being detained or prosecuted. The IAA was therefore not satisfied that the applicant faced serious or significant harm from the Sri Lankan authorities or the EPDP for an imputed pro-LTTE or anti-Sri Lankan government political opinion because of his age, Tamil ethnicity, origins in the Northern Province or the proximity of his home to a CID camp.
The IAA was also not satisfied that the applicant would face harm because he had sought asylum in Australia. In that connection it noted country information which reported that thousands of Tamils had been returned to Sri Lanka after the end of the war, including from Australia, and that only those with substantial links to the LTTE or outstanding warrants were harmed. The IAA found that the applicant did not have such a profile.
In relation to the applicant’s claim to fear harm because of his illegal departure from Sri Lanka, the IAA accepted that the applicant had committed an offence under Sri Lankan Immigrants and Emigrants Act (“I&E Act”) by departing the country without a passport. However, it was not satisfied that any processes or penalties that the applicant might face for his illegal departure would amount to serious or significant harm. In that regard:
a)the IAA accepted that authorities at the airport checked the identity information of returnees in order to determine whether they had warrants outstanding. It found that the applicant did not have identification concerns or criminal or security records which would raise the authorities’ concerns. It also noted that it had already rejected his claim to have been a person of interest to the Sri Lankan authorities or the EPDP;
b)the IAA found that on his return the applicant would be likely to be charged for his illegal departure and might be detained for some days pending an appearance before a magistrate. While accepting that Sri Lankan prisons had poor conditions due to lack of resources, overcrowding and poor sanitation, the IAA found that those poor conditions did not arise from an intention to inflict pain, suffering or extreme humiliation. It also found that any questioning and detention the applicant might face would be brief and would not constitute serious or significant harm; and
c)the IAA found that if the applicant elected to plead not guilty to an offence under the I&E Act, he would be granted bail on personal surety or that of a family member, noting that his parents and brother were in Sri Lanka. It noted that there was no country information which indicated that custodial sentences were imposed on low profile illegal departures. As there was no suggestion that the applicant was anything other than an ordinary illegal departer, the IAA found that he would not face any chance of imprisonment. It found that the punishment the applicant would be likely to face was a fine and that the imposition of any such fine, surety or guarantee would not constitute serious or significant harm. The IAA was also satisfied that the I&E Act was a law of general application which applied to all Sri Lankans equally and was not discriminatory or selectively enforced.
Proceedings in this Court
In his amended application the applicant alleged:
1.The Immigration Assessment Authority (the IAA) made adverse findings against the applicant about matters which were never put to the applicant prior to the decision of the IAA such that the applicant never had an opportunity to comment on them. The matters included the following:
a)that the letter from the justice of the peace dated 24 January 2013 was not genuine, and the provision of such a non-genuine document undermined the applicant’s credibility generally (at [11]);
b)that the letter from the Human Rights Commission dated 5 June 2013 was not a credible document, and the applicant providing such a non-credible document undermined his credibility generally (at [12));
c)that the applicant gave inconsistent evidence about whether his uncle was in the 2010 photograph or alternatively took the 2010 photograph, and the inconsistency undermined the credibility of the applicant’s claims (at [10]);
d)that there was an inconsistency between a claim by the applicant that one of the other men in the 2010 photograph was shot in March 2013, and evidence he gave at the SHEV interview that he knew nothing about the other men in the 2010 photograph, and the inconsistency undermined the credibility of the applicant’s claims (at [10]);
e)that there was an inconsistency between a claim by the applicant that it was the military investigation department who came to his family home in 2013, and evidence he gave elsewhere that it was the CID who came to his family home in 2013, and the inconsistency undermined the credibility of the applicant’s claims (at [10]).
Where the IAA is considering affirming the delegate’s decision on grounds markedly different than the delegate, the IAA must give the applicant an opportunity to comment on the new grounds via its power under s 473DC of the Migration Act 1958 (Cth) to get new information. To fail to do so results in jurisdictional error in the IAA’s decision - either because the IAA unreasonably declined to exercise its power under s 473DC to put the new grounds to the applicant and invite him to provide information in reply, or because the IAA denied the applicant procedural fairness by not so exercising its power under s 473DC. The IAA’s decision was infected by jurisdictional error for the above reasons.
2.The applicant provided to the Department a letter dated 24 January 2013 from a justice of the peace. First, the IAA found the content of the letter was “not consistent with the applicant’s claims”. This finding by the IAA was wrong. Second, the IAA found there was an “inconsistency” between the registration number in a wet stamp on the letter and the registration number elsewhere on the letter. This finding by the IAA was wrong. Third, the applicant was not given an opportunity to comment on these concerns of the IAA. This involved a denial of procedural fairness or unreasonable refusal to exercise a power under s 473DC - which contention overlaps with ground 1 above. Fourth, the IAA relied on its (wrong) findings of inconsistencies to find that the applicant was not generally credible. The IAA thereby “damn[ed] [the applicant’s] credibility by reference ... to a false factual premise”: SZRHL v Minister (2013) 136 ALD 641 at [34]; Minister v SZSNW [2014] FCAFC 145. For one or more of the reasons explained in this paragraph, the IAA’s decision was infected by jurisdictional error.
3.Shortly after 21 June 2013 the applicant provided a supplementary letter to the Department which set out some supplementary claims: at CB 181. The IAA believed that the applicant provided the supplementary letter to the Department after June 2016: at [9] and [10]. This was an error by the IAA. The IAA made adverse findings against the applicant based on its erroneous belief concerning the date the applicant provided the supplementary letter to the Department. In the circumstances, this error by the IAA was a jurisdictional error.
Ground 1
Submissions
The applicant submitted that although the IAA did not have a duty to put to him the matters particularised in this ground of the application, it had power to do so and erred by not doing so. He argued that the IAA ought to exercise the relevant power reasonably and in accordance with principles of procedural fairness. The Minister did not contend, for the purposes of this matter, that s.473DC(2) operates to exclude the implication of reasonableness in the exercise of powers such as those found in s.473DC(1) and (3). He did not submit that s.473DB did either. The question therefore became whether the Tribunal’s failure, to use a neutral term, to put the particularised matters to the applicant represented an unreasonable exercise of a discretion.
The applicant’s argument was that that where the IAA considers an issue which was not identified in the delegate’s decision as dispositive or important, a reasonable and procedurally fair exercise of the s.473DC discretion would usually require the IAA, through s.473DF, to invite the applicant “to give new information” concerning the issue. He cited in this connection Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592 and SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 161-162 [29] and [32]. Citing SZBEL he also submitted that if the IAA takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, an applicant is entitled to assume that the issues the delegate considered dispositive will be the relevant issues on the review.
In relation to the IAA’s findings that certain documents were not genuine and that their provision undermined his credibility, the applicant argued that the authorities showed that making such findings without letting him have the opportunity to address the issues might have been a denial of procedural fairness.
In relation to the IAA’s findings that his evidence contained inconsistencies, the applicant submitted that the inconsistent accounts were given nearly three years apart and in different circumstances which were unclear. He suggested that, given those facts, procedural fairness required that the inconsistencies be put to him so that he could comment on them.
In his supplementary written submissions the applicant argued that:
a)where it is unreasonable for the IAA not to exercise its s.473DC(1) or (3) powers in the particular circumstances, a failure by the IAA to exercise the power or to consider whether to exercise the power involves jurisdictional error; and
b)where the common law rules of procedural fairness require that the power in s.473DC(1) or (3) be exercised, a failure by the IAA to exercise the power or to consider whether to exercise the power involves jurisdictional error.
After referring to a number of cases the applicant also contended:
(a)If the common law rules of procedural fairness apply to the IAA’s exercise of power under s 483DC [sic], where those rules of procedural fairness require the IAA to provide information to the applicant and invite him to comment, a failure by the IAA to exercise the power (whether or not the IAA embarked on a consideration of whether to exercise the power) involves jurisdictional error.
(b)By analogy, where it is unreasonable for the IAA not to exercise its power in s 473DC(1) or (3) in the particular circumstances before the IAA … a failure by the IAA to exercise the power (including a failure to embark on a consideration of whether to exercise the power) involves jurisdictional error.
The Minister’s submissions were:
a)it is not correct to say that that provision confers a power on the IAA to “put” to the applicant the matters he identified. Section 473DC empowers the IAA to get new information but its purpose is to empower the IAA to obtain new information that is relevant to the review. It says nothing about the IAA having to give particulars of adverse information to an applicant. Such duty as the IAA has to put information to an applicant is found in s.473DE(1), and is confined to new information. A construction which read s.473DC so to require the IAA to put adverse information to an applicant would not promote “internal logical consistency and overall consistency” in the provisions in div.3 of pt.7AA;
b)in any case, the matters which the applicant particularised identified a proposed conclusion or a thought process of the IAA which, it is well-established, is not “information”. Even if the common law rules of procedural fairness were read into pt.7AA of the Act, they would still not assist the applicant because the matters he identified were all adverse conclusions drawn by reference to certain documents provided by the applicant to the Department or inconsistencies in his evidence. Those conclusions were obviously open on the known material;
c)further, s.473DC does not require the IAA to draw to an applicant’s attention the important or dispositive issues on the review. Judgments of this Court have construed ss.473DA(1), 473DB(1), 473DC(2) as excluding the natural justice hearing rule, as requiring the IAA to conduct a hearing on the papers, and as not imposing an obligation on the IAA to get, request or accept new information). Part 7AA of the Act does not contain a provision equivalent to s.425(1);
d)the delegate’s findings were so broad as to put the applicant on notice that the entirety of his claims relating to the taking of the photograph of him, his uncle and two other men, with weapons visible in the background, which were summarised in the delegate’s reasons, were in issue. The delegate relevantly found that the photograph had not been taken at all. That finding did away with the factual substratum underlying all of the matters particularised by the applicant. Accordingly, even if s.473DC operated as the applicant alleged, in the circumstances there was no unreasonable failure on the part of the IAA to exercise its purported power under that provision;
e)in circumstances where the IAA has a discretion whether to invite an applicant to comment on new information, by parity of reasoning it follows that it is not obliged to consider exercising that discretion. There is no general rule or presumption that powers carry a duty to consider whether they should be exercised, and nothing in the text or context of s.473DC(3) would indicate that such a duty exists in relation to it. On the contrary, the statutory scheme, the purpose of which is to ensure that reviews of decisions of delegates of the Minister are conducted efficiently and quickly, would militate against such a duty being read into s.473DC; and
f)at no stage in the merits review process did the applicant ask the IAA to exercise its discretion pursuant to s.473DC(3).
Consideration
Generally I accept the Minister’s submission that although s.473DC empowers the IAA to get new information that is relevant to the review it is not concerned with putting an applicant on notice of anything, in the fashion of s.425 of the Act. Generally, IAA reviews afford fewer rights to applicants than the AAT reviews which are available to applicants who are not irregular maritime arrivals. Sections 473DB(1) and 473DC(2) are examples of the new restrictiveness which is to be found in IAA reviews. I accept that a construction of s.473DC which would require the IAA to put adverse information to an applicant would not promote “internal logical consistency and overall consistency” in the provisions in div.3 of pt.7AA: Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at 22 [35] per French CJ, Hayne, Kiefel and Nettle JJ, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ.
In that connection, s.473DA relevantly provides:
473DA Exhaustive statement of natural justice hearing rule
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
It is similar to, but in a very material respect different from s.422B(1) of the Act which was quoted earlier. Discussing the latter provision French J noted in WAJR v Minister for Immigration & Multicultural and Indigenous Affairs (2004) 204 ALR 624 at 637 [57] that the phrase “in relation to the matters it deals with” imports a more “specific limitation upon the scope of procedural fairness than might have been achieved by a global reference” to the conduct of AAT reviews, the implication being that s.422B’s operation is limited to the particular provisions of the division of the Act to which it refers rather than “to its general subject matter, that is, the conduct of reviews by the tribunal”.
As I observed in AFK16 v Minister for Immigration & Border Protection (No.1) [2016] FCCA 1826 at [12], the difference between s.473DA(1)’s wording and that of s.422B cannot have been unintended. Nor can the omission of a statutory obligation equivalent to the one found in s.425 of the Act. The context in which s.473DC appears indicates clearly enough that the Parliament intended to deny to persons such as the applicant natural justice rights sourced from the common law, including the right to have identified to them any issue critical to the decision which is not apparent from the terms of the Act or the nature of the decision which the IAA is to make, and to replace those rights with limited statutory rights.
Whether the IAA sought the applicant’s response to such matters was a matter of discretion. Importantly, however, the IAA was not obliged to exercise the discretion implicit in s.473DC or even to consider whether to exercise it, absent a statutory intention that it should: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 603 [22], 619 [76] and 623 [91], [92]; Yasmin v Attorney General (2015) 236 FCR 169 at 195-196 [113]. It was not demonstrated that such an intention existed relevantly for this case. Indeed, as the Minister suggested in his address to the Court, s.473DC(2) indicates the contrary.
Further, the common law duty to exercise a discretion reasonably, to the extent that it is not in any event excluded by s.473DA(1), does not have the effect of creating an obligation to consider whether to exercise the discretion, as the applicant contended. Absent a duty imposed by the statute, there is nothing relevantly with which concepts of reasonableness can engage. To the extent that Judge Driver reached a different conclusion in DZU16 v Minister for Immigration & Border Protection [2017] FCCA 851, I respectfully disagree on the basis that such a conclusion is unsupported by the authorities and is also contrary to the observations of the Full Court of the Federal Court in Yasmin v Attorney General at 197 [120].
Finally, the evidence does not indicate that on its own motion the IAA considered exercising the discretion and there is no evidence that it was asked to. Consequently, there is no factual basis for concluding that it decided against exercising the discretion. In those circumstances no question of an unreasonable exercise of discretion arises.
For these reasons, the first ground of the application is not made out.
Ground 2
Submissions
In this ground the applicant referred to the IAA’s findings that:
a)the contents of the letter ostensibly from a justice of the peace were “not consistent with the applicant’s claims”; and
b)the two registration numbers on the letter were inconsistent.
The applicant submitted that:
a)the IAA’s statement in the first sentence of para.11 of its reasons, that he had provided the letter “in support of his claims” was not accurate because he had provided the letter to the Department to prove his identity;
b)the IAA was wrong to conclude in para.11 of its reasons that the letter’s statement that “the applicant had to cease his school studies because he was intimidated and threatened by paramilitary groups with the connivance of the Sri Lankan army” was inconsistent with his claims. The IAA’s conclusion on this document was based on the letter making no reference to the applicant’s abduction, not naming the EPDP and not referring to the 2010 photograph or to the applicant’s uncle in circumstances where the applicant had claimed that only the EPDP and CID had an interest in him, not the army. The applicant argued that:
i)the fact that the letter did not refer to details of his claims did not mean that it was not consistent with those claims; and
ii)the IAA’s statement that “the applicant has claimed only EPDP and CID have an interest in him, not the army” was wrong;
c)it was perverse and irrational of the IAA to conclude that the credibility of the letter was undermined by the difference between the two stamps on it when the only difference between the stamps was that one’s prefix was “2003/02” and the other’s was “03/02”; and
d)he had not been given an opportunity to comment on these concerns held by the IAA.
Referring to SZRHL v Minister for Immigration & Citizenship (2016) 136 ALR 641 at 650 [41], the applicant submitted that the IAA’s finding in para.11 of its reasons that he was generally not credible was illogical because it was based on a false factual premise, namely its (wrong) findings of inconsistency.
The Minister submitted:
a)irrespective of the applicant’s subjective intention, the contents of the letter went to his claims for protection under s.36(2)(a) of the Act;
b)the IAA’s conclusions in relation to the letter were open to it on the basis that the author of the letter said that the applicant was “well known to [him] from his infancy” but, although the applicant had claimed that only seven months before the letter was written he had been abducted, held for three days and tortured in order to obtain information about the photograph taken in 2010 and the location of the weapons, the letter only asserted that the applicant had faced intimidation and threats from various paramilitary groups. Further, at no stage had the applicant claimed, expressly or impliedly, to have been harmed previously, or to fear harm in the reasonably foreseeable future, at the hands of the Sri Lankan Army. Accordingly, it was neither incorrect nor irrational for the IAA to find that the applicant “has claimed only EPDP and CID have an interest in him, not the army.”
c)the IAA’s finding that the “registration number in the wet stamp is not identical to the registration number elsewhere in the letterhead” was not an incorrect statement of fact albeit that the difference only involved an abbreviation. In any event, the IAA gave several reasons for its finding that it was not satisfied that the letter was a genuine document. Moreover, it was submitted, McKerracher J (with whom Reeves J agreed) had said in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1:
Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. (at 23[85])
d)for the reasons advanced in his submissions concerning the first allegation in the amended application, the IAA was under no obligation to invite the applicant’s comments on its concerns regarding the letter.
The Minister also submitted that the IAA’s finding concerning the letter was but one basis for its broader finding, in the final sentence in para.11 of its reasons that the applicant’s credibility was undermined generally. He argued that if it were the only matter relied upon, and the findings at para.11 could be impugned, the result might be different but that was not this case.
Consideration
In relation to the first argument, I agree with the Minister that the applicant’s subjective intentions are not relevant to whether or not the letter had been submitted “in support of” the applicant’s claims. What is relevant is that the contents of the letter went to the applicant’s claims for protection under s.36(2)(a) of the Act and were part of his claim documents. That necessarily means that the letter was supplied in support of the applicant’s claims.
To determine the second argument it is important to have regard to what in fact the IAA relevantly said:
In support of his claims, the applicant provided a letter dated January 2013 purportedly from a justice of the peace. The author states the applicant is well-known to him since infancy, that the applicant had to cease his school studies because he was intimidated and threatened by paramilitary groups with the connivance of the Sri Lankan army. That is not consistent with the applicant's claims. It makes no reference to the applicant's abduction. It does not name the EPDP. It makes no reference to the 2010 photograph. It makes no reference to the applicant's uncle. The applicant has claimed only EPDP and CID have an interest in him, not the army. Those inconsistencies undermine the credibility of the letter, particularly where the author claims to have known the applicant well since infancy.
I do not read the IAA’s use of the words “not consistent” to mean “inconsistent”. Read in context I understand the words in question to mean that what the letter said was sufficiently different from the detail of the applicant’s allegations that it did not truly reflect those allegations. In that sense the letter was, indeed, not consistent with the applicant’s claims.
The applicant also submitted in connection with this argument that the IAA’s statement that he had “claimed only EPDP and CID have an interest in him, not the army” was wrong and in that connection referred to three places in the information before the IAA where he had referred to the army. The point is that the letter relevantly stated that he had faced “intimidation and threats” from paramilitary groups which functioned “with the connivance of the Sri Lankan Army”. The IAA’s statement that he had “claimed only EPDP and CID [had] an interest in him, not the army” should therefore be understood to be a reference to those claims of intimidation and of threats. On the facts the IAA was correct to conclude that the applicant had not alleged that the army had sought to intimidate or threaten him. Consequently the letter was in that respect too, not consistent with his claims.
In relation to the third argument, the fact is that the stamps were different. The IAA made that observation and its comments on the credibility concerns which the difference generated was made in the context of an immediately subsequent note that forged documents were prevalent in Sri Lanka. When the IAA’s consideration of the difference between the stamps is understood in context, it was neither perverse nor irrational of the IAA to draw an adverse inference from it.
Such requirement as div.3 of pt.7AA imposes in relation to the provision of material to an applicant concerns the provision of “information”, specifically “new information” as defined in s.473DC(1). It is well established in cases dealing with reviews before the AAT and its predecessors in this area, the Migration Review Tribunal and the Refugee Review Tribunal, that a proposed conclusion or a thought process, is not “information”. The matters the applicant identified were all conclusions drawn by or reasoning of the IAA concerning material before it and so not “information”. Just as importantly, the material the subject of that consideration by the IAA was not “new information”.
Ground 3
The applicant argued that the IAA had misunderstood when he had provided the first undated statement to the Department and that this mistake of fact had led to jurisdictional error. In support of that contention the applicant referred to VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 where the Full Court of the Federal Court stated:
As described in [66] above, the Tribunal’s error in not realising that the UNP Letter had been provided before the request made under s 424A of the Act was one of a number of factors that led the Tribunal to reject the first appellant’s claim to have been preselected as a UNP candidate. This claim was an important element of her claim … The error was a direct result of the Tribunal’s failure to take into account the UNP Letter that was provided to the Tribunal with the documents sent by the Secretary of the Department pursuant to s 418(3) of the Act. (at [72])
In that case, the Tribunal’s mistake as to when the letter in question had been sent led to it not taking that letter into account, an omission which was a jurisdictional error. Even assuming that the IAA had been mistaken as to when the first undated statement had been provided, no error going to jurisdiction of the sort seen in VAAD occurred in this case because the IAA considered the material in question. Moreover, the IAA’s relevant finding was not concerned with when the information in question had been provided but with the fact that it was inconsistent with other information which the applicant had supplied.
For these reasons the applicant third ground does not disclose a basis on which the IAA’s decision should be set aside.
A final matter
Shortly before completing the final draft of these reasons, Barker J’s judgment in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 was delivered. I do not understand these reasons to be inconsistent with his Honour’s.
Conclusion
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 8 September 2017
CORRECTIONS
Paragraph 27(c) line 7 – the word “not” has been inserted after the word “does”.
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