EAC18 v Minister for Immigration
[2020] FCCA 1019
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EAC18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1019 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – numerous errors alleged – whether the Authority’s review was disabled by the failure of the Secretary to provide it with a record of interview with the applicant which had been taken into account by the delegate considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 65, 473CB, 473DC, 473DD |
| Cases cited: AUF18 v Minister for Immigration [2019] FCAFC 222 BVI18 v Minister for Immigration & Anor [2020] FCCA 9 BVZ16 v Minister for Immigration [2017] FCA 958 EVS17 v Minister for Immigration [2019] FCAFC 20 Hossain v Minister for Immigration [2018] HCA 34 Minister for Immigration v CPA16 [2019] FCAFC 40 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration v Rajalingham (1999) 93 FCR 220 Minister for Immigration v SZMTA [2019] HCA 3 NAHI v Minister for Immigration [2004] FCAFC 10 |
| Applicant: | EAC18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2154 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 February 2020 |
| Date of Last Submission: | 8 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2020 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 18 July 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2154 of 2018
| EAC18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 July 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister.
The applicant is a citizen of Sri Lanka. As noted above, he seeks judicial review of the decision of the Authority,[1] in which it affirmed a decision of the delegate dated 19 September 2017 (delegate’s decision) refusing the grant of a protection visa pursuant to s.65 of the Migration Act 1958 (Cth) (Migration Act).[2]
[1] Court Book (CB) 197-216
[2] CB 135-150
The applicant arrived in Australia on 18 November 2012 as an unauthorised maritime arrival.[3] He made an application for a Safe Haven Enterprise Visa (SHEV) dated 12 February 2016[4] although the application was not received until 1 March 2016.[5] The applicant provided a supporting statutory declaration 12 February 2016.[6] The applicant also provided some further documentation including translations.[7]
[3] CB 135
[4] CB 23-82
[5] CB 24
[6] CB 67-71
[7] CB 95-104
In a letter dated 29 August 2017, the delegate invited the applicant to comment on potentially adverse information about the applicant’s Sri Lankan Identity Card.[8] In response, the applicant’s representative provided a submission and further documentation.[9] In the delegate’s decision, the delegate considered the position in respect of the applicant’s identity, the applicant having provided a passport under one name (which he claimed was bogus) and an identity card under a different name which he claimed was genuine. The delegate found that the passport was evidence of the applicant’s real identity. However, the delegate declined to find that the applicant had provided a bogus document in respect of the identity card.[10]
[8] CB 118-121
[9] CB 123-130
[10] CB 136-137
Following the delegate’s decision, the matter was referred to the Authority on 25 September 2017.[11] The Minister provided to the Authority a certificate and notification pursuant to s.473GB of the Migration Act (Certificate). The Certificate identified certain information concerning the Minister’s Department’s investigative methodology for identifying fraudulent documents and indicated that disclosure of that information would be contrary to the public interest.[12]
[11] CB 153
[12] CB 151
The applicant, among other things, sought to provide further documentation proving his identity as set out in the identity card was correct, including evidence of an application for a DNA test to prove that he was the brother of another individual who had also travelled to Australia.[13] The Authority ultimately found that there were exceptional circumstances to consider the information and accepted, contrary to the finding of the delegate, that the applicant’s identity was as stated in the identity card and not in the passport (the applicant having subsequently provided a copy of a further passport in a different name).[14]
[13] CB 166-178; 181-183; 185-191
[14] CB 198-199
The applicant’s representative provided a written submission to the Authority in an e-mail dated 18 October 2017, dealing with claims that psychological harm caused by physical harm could amount to serious or significant harm.[15] The applicant’s representative sent a further e-mail dated 9 November 2017 asking the Authority to put his client on notice of any finding that the Authority proposed to make that differed from a finding of the delegate, principally in the context of a finding concerning the applicant’s identity.[16] In an e-mail dated 8 July 2018, the applicant’s representative made a further submission concerning the delay in the Authority providing a decision, noting among other things that a decision-maker may forget what they had listened to in an audio recording.[17]
[15] CB 180
[16] CB 184
[17] CB 193
The applicant filed an application for judicial review dated 3 August 2017 on 3 August 2018 (indicating a typographical error in the date of the application).
The applicant’s claims
The applicant claimed to be from a large family of ten siblings, comprising four brothers and six sisters. Two brothers were present in Australia having also arrived by boat and one brother had disappeared.
The applicant stated that in January 2008, he had witnessed two men, one of whom he recognised as a member of the Tamil Makkal Viduthalai Pulikal (TMVP), kill a woman, P,[18] whose son was a member of the Liberation Tigers of Tamil Ealam (LTTE).
[18] The name has been anonymised
The men fled the scene of the crime and a large crowd gathered who thought that the applicant was responsible or that he knew who had shot P. The men actually responsible for the killing had warned him that he would be harmed if he mentioned who had killed P.
On the night following the shooting, four armed men came to the applicant’s house and took him to the TMVP office where he was interrogated and tortured. The police also interrogated him. He managed to escape after 15 days and then hid in several places between February 2008 and July 2011. He claimed that the Criminal Investigation Division (CID) and the TMVP continued to look for him.
The applicant’s uncle arranged for him to leave Sri Lanka using a fraudulently obtained passport in a false name. He went to Qatar until October 2012 when he returned to Sri Lanka. When he returned he was told that it was not safe and that the authorities would continue to target him. He claimed that they continued to search for him. The applicant claimed that his mother owned land that was taken away from her.
The applicant claimed to fear harm from the Sri Lankan authorities over the shooting and from P’s son who blamed him for P’s death. He also claimed to fear harm as an illegal returnee, asylum seeker and someone who had used a false passport. He claimed that the authorities would discover he has used two identities.
The Authority’s reasons
The Authority’s reasons are set out at [2]-[66] of the decision, with the reasons in respect of new information set out at [2]-[7].[19]
[19] CB 198-211; 198-199
In respect of the material provided to the Authority concerning the applicant’s identity and his further passport documentation, the Authority accepted at [4]-[6] that there were exceptional circumstances pursuant to s.473DD of the Migration Act to consider this material and considered the balance of the material as legal submissions at [3].
As noted above, the Authority found that despite the irregularities in some of the documentation provided by the applicant that he was the person he claimed to be who had a brother of the same last name, whose two brothers also came to Australia by boat and who has a number of siblings living in Sri Lanka.[20]
[20] CB 200 at [9]-[13]
In respect of the applicant’s factual claims, the Authority found as follows:
a)it did not accept that the applicant’s father had been shot dead as the applicant claimed but rather he died of natural causes. It did not accept the applicant’s explanation for the discrepancies in the applicant’s claims (noting that in his SHEV application the applicant claimed that his father had died of natural causes) and that the documents provided by the applicant in support of the claim did not prove that his father had been shot;[21]
b)it accepted that the applicant’s brother went missing in 2000 but based on the applicant’s evidence the Authority was satisfied that the applicant had not faced any problems in relation to the disappearance of his brother or due to the departure of two other brothers;[22]
c)it did not accept that the applicant witnessed the killing of P, went into hiding, that he left Sri Lanka because the TMVP and the CID were searching for him or that the TMVP and CID continued to search for him after he arrived in Australia. The Authority had a number of concerns about the plausibility and credibility of the applicant’s claims, including that the men would make him sit down to witness the killing or that the applicant would be trusted to leave the scene of the killing only to be interrogated the following evening. It did not accept the evidence of the applicant concerning how he managed to escape. It found that the documents provided by the applicant did not support his case or were vague and should be given no weight;[23]
d)it accepted that the applicant travelled to Qatar and returned on a false passport but it did not accept the reason for obtaining the fraudulent passport (bearing in mind its other findings concerning the lack of adverse interest of the Sri Lankan authorities). The Authority was not satisfied that the applicant would be at risk from the Sri Lankan authorities in respect of having more than one identity bearing in mind, among other things, the weakness of the Sri Lankan government system in dealing with document fraud and the fact that the applicant approached the Sri Lankan authorities to verify his genuine passport. It found that the Sri Lankan authorities would not be aware that the applicant travelled on a false passport in 2011 and 2012;[24]
e)based on the applicant’s evidence, the Authority was not satisfied that the applicant’s family had land taken from them by the government. The matter was not raised in the entry interview or the visa application and the evidence at the SHEV interview lacked detail. Country information indicated that while land disputes arose the government was taking active steps to return land seized by the military. There was no evidence that the land was taken by the military.[25]
[21] CB 201 at [14]-[15]
[22] CB 201-202 at [16]-[17]
[23] CB 202-204 at [18]-[28]
[24] CB 204 at [29]-[32]
[25] CB 205 at [33]-[35]
By reason of the Authority’s factual findings, it did not accept that the applicant was at risk of harm by reason of the shooting incident or from members of the TMVP or CID.[26] The Authority then assessed whether the applicant would be at risk by virtue of his being a young Tamil male from the Eastern Province. It found that the applicant was not of adverse interest to the Sri Lankan authorities when he departed Sri Lanka and that Tamil ethnicity was not, of itself, something that warranted protection. The Authority did not accept, based on a range of country information, that the applicant was at risk of harm as a young Tamil man. In that regard, the Authority relied on, among other things, a Department of Foreign Affairs and Trade (DFAT) Country Information Report on Sri Lanka dated 24 January 2017 (DFAT Report).[27]
[26] CB 206 at [38]
[27] CB 206-209 at [39]-[52]
The Authority accepted that the applicant left Sri Lanka illegally by boat and that he had committed an offence under Sri Lankan law. However, based on country information concerning the treatment of illegal returnees, the Authority was not satisfied that the applicant was at risk of a custodial sentence or serious harm. It did not accept that potentially being held in prison for a few days and being fined involved systematic and discriminatory conduct or constituted serious harm.[28]
[28] CB 210 at [53]-[58]
Bearing in mind its other findings, the Authority found that the applicant was not at risk of significant harm for the purposes of complementary protection.[29]
[29] CB 211 at [61]-[66]
The current proceedings
As noted above, these proceedings began with a show cause application filed on 3 August 2018. No amended application has been filed. The seven particularised grounds in that application are:
Ground 1
1. The Immigration Assessment Authority (hereinafter refers as ‘IAA’) acted unreasonably and denied the applicant procedural fairness in not exercising its power, and not considering whether to exercise its power under s 473DC (3) to invite the applicant to comment on the new information 24 January 2017 of the Department of Foreign Affairs and Trade orally or in writing before it made its decision.
Particulars
a)The IAA failed to afford an opportunity to the applicant inviting him to comment about the Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017. Relevantly to this decision, the report provides information about the position of Tamils, people linked with the LTTE, persons who departed Sri Lanka illegally and returning asylum seekers.
b)The information contained in the said report in relation to the political situation in Sri Lanka, the security situation in Sri Lanka, incidence of extra-judicial killings, disappearances and abduction for ransom, torture, and prisons conditions that are of general application to people in Sri Lanka and extracts from the said DFAT Report of the relevant paragraphs should have been attached to an invitation to comment by the applicant was crucial before making a decision by .
c)These circumstances constituted a constructive failure to exercise jurisdiction, as the IAA failed to afford the applicant an opportunity inviting him to comment on the said DFAT report before it made a decision.
Ground 2
2. The applicant contends that the failure to exercise the power, or to consider whether or not to exercise the power, in s.473DC(3) to put the applicant on notice that, in contrast to the delegate’s decision, his credibility concerning some of his claims was in issue, was unreasonable such that the IAA committed a jurisdictional error.
Particulars
a)In Minister v Li (2013) 249 CLR 332 at [29], [47] and [63] that the High Court stated:
"When a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably".
b)In DZU16 v Minister [2017] FCCA 851 at [116]-[124] Judge Driver applied this principle to s473DC.
a)The IAA reviewer M Wei has adopted inconsistent positions on the issue of the applicant's elder brother's disappearance, his father's death and his witnessing the killing of a Tamil woman called P on 31 January 2008 carried out by the Tamil Makkal Viduthalai Pulikal (TMVP) a pro-militant group working with the Sri Lankan Armed Forces and Police while accepting it and downplaying the relevance to the applicant's claims for protection. The IAA reviewer M Wei concluded on his protection claims that there was no risk of harm to the applicant if he were to return to Sri Lanka.
b)The IAA reviewer M Wei's disbelief of the applicant was based on fact that the applicant will not be harmed. There are aspects of the IAA reviewer M Wei's reasoning which suggest to the disinterested observer an enthusiasm to reject the applicant's claims which may not be wholly warranted.
c)The reviewer M Wei failed to research and take into consideration of the significant judgements in the cases BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 by White J; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; and CHF16 & Anor v minister Immigration and Border Protection &Anor [2017] FCAFC 192 in making a decision for the applicant under review.
Ground 3
3. The IAA accepted some of the applicant’s claims but not others. In the circumstances, in relation to the claims which the IAA did not accept, it was necessary for the IAA to take into account of the possibility that that those events claimed by the applicant occurred: see Minister v Rajalingam (1999) 93 FCR 220. The IAA did not take into account this possibility. This was a jurisdictional error.
Particulars
a) The IAA stated in [para 40] in its decision “the applicant does not claim that he has a family member who was a LTTE member or supporter, and I am not satisfied that he would be perceived as such.”
b) The applicant claims his brother … remains missing, having disappeared in the early 2000’s. The delegate in his decision dated 19 September 2017 accepted in [page 4] “At the SHEV interview ….. Given the country information which indicates enforced disappearances occurred during the time that the applicant claims his brother disappeared, I have accepted this claim.”
c) The delegate in his decision dated 19 September 2017 accepted in [page 6] “There are numerous reports throughout Sri Lanka of land dispute issues, including where the Sri Lankan Government has appropriated land for their own purposes. While this aspect of the applicant's claims was not explored in detail, based on the applicant's statements and the available country information. I accept that the applicant has lost access to land previously cultivated by his family." Contrary to the above findings of the delegate, the IAA said "This matter was not raised at the entry interview or in his visa application" at [para 34] in its decision.
Ground 4
4.The IAA accepted in its decision that "the applicant departed illegally by boat, and as such, he is likely to be considered to have committed an offence under the I & E Act and is likely to be arrested and charged at the airport on return to Sri Lanka at [para 53]. The IAA states "I do not accept the applicant will face a real chance of serious harm on the basis of being of being a returned asylum seeker and/or for illegal departure. [at para 40]. This being an erroneous application of the "real chance" test. The IAA ought to have considered the possibility that allegations of torture and mistreatment suffered by the returnees were true. Its failure to do so involved a misapprehension of the "real chance" test which was a jurisdictional error.
Particulars
a)The applicant would be remanded upon his return to Sri Lanka and would be exposed to the prison conditions and also due to his background, he would face a real risk of [Cruel or] Inhuman Treatment or Punishment (CITP) or Degrading Treatment or Punishment (DTP).
b)While the UNHCR noted claims of detention, ill-treatment or torture regarding Sri Lankans- particularly Tamil-asylum seekers returned to Sri Lanka following the rejection of asylum claims, the DFAT report CIS29707: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka acknowledged that ‘[t]here is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.
c) The IAA failed to adequately consider the available Country Information “Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016 and did not consider the subsequent Country Information of the International Truth and Justice Project July 2017 "Unstopped: 2016/17 Torture in Sri Lanka July 2017.
Ground 5
5. The applicant stated that the harm he would face if he were to return to Sri Lanka is due to the essential and significant reasons of his ethnicity as a young Tamil from former LTTE controlled area in the eastern part of Sri Lanka real or imputed political opinion as supporter of LTTE and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct: see Ram v MIEA (1997) 190 CLR 225; and MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].
Ground 6
6.The IAA erred in law in failing to respond to the appellant's claim to fear of significant harm in Sri Lanka prisons by reason of being imprisoned on pre-trial remand for up to two weeks.
Particulars
a)The [IAA] accepted that departing Sri Lanka illegally is an offence, and that the applicant departed Sri Lanka illegally: [65].
b)The IAA' s findings in respect of the applicant's claim for a protection visa on the complementary protection ground in s 36(2)(aa) of the Migration Act 1958 (Cth) in contrast to the Refugees Convention ground in s 36(2)(a). The IAA did not deal with the applicant's case of torture whilst in remand detention under the complementary protection provisions.
c)The IAA did not properly deal with the Pre-Trial Remand Claim in considering the applicant's claim for a protection visa on the complementary protection ground. Where the Tribunal fails to deal with a claim expressly articulated by an applicant, this is a jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs 144 FCR 1 at [55]-[63]. Therefore, the IAA committed a jurisdictional error.
7.The IAA alleged in general terms, the situation for Tamils in Sri Lanka in relation to their civil and human rights has improved contrary to the overwhelming independent country information on human rights in Sri Lanka. However, the DFAT reports do not follow that the situation will continue to improve or satisfactory.
Particulars:
a)Where the political situation in a country is "fluid", political developments concerning human rights and civil rights can move in different direction, including backwards (by deteriorating)-of the political situation in Hungary and Poland in recent years.
b)It is reported in the Colombo Telegraph November, 16, 2016 that the Executive Director of the International Truth and Justice Project, Yasmin Sooka said, "It requires political will and a commitment on the part of the government of Sri Lanka to carry out a comprehensive security reform programme which is sadly missing in Sri Lanka."
c)Citing the report "Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016", "Intelligence and security operatives continue to target Tamils for illegal detention in secret sites and inflict on them horrific torture and sexual violence with impunity, despite the change of government in January 2015," the Executive Director of the International Truth and Justice Project, Yasmin Sooka who also said:
"Torture and abduction are so systematic and entrenched in the DNA of the security forces that even realignment of political parties in parliament and the new government under President Srisena are not able to stop these crimes. It requires political will and a commitment on the part of the government of Sri Lanka to carry out a comprehensive security reform programme which is sadly missing in Sri Lanka."
d)Kasun Ubayasiri, Lecturer, School of Humanities, Griffith University states, "Australian government has become the great defender of Sri Lanka's ( and Australia's) insistence that the end of the civil war means an end to persecution ignores considerable anecdotal evidence of continued ethnic intimidation and a rise in Buddhist-nationalist violence." It was reported in the article "War is over, but not Sri Lanka's climate of violence and threats", July 14, 2014 5.52am AEST The Conversation Academic rigour. Journalistic Flair.
e)UN agency says "government torture and abductions continue in Sri Lanka" wrote by Saman Gunadasa, 19 December 2016 at World Socialist Web Site citing the comments by Juan E. Mendez, the United Nations' special rapporteur on Torture, "Contrary to the insistence of President Sirisena and Prime Minister Wickramasinghe that their administration represents "good governance", CAT (Convention Against Torture) makes it clear that seven years after the defeat of the separatist Liberation Tigers of Tamil Eelam (LTTE) in 2009, Colombo's police-state apparatus is still being used against the working class and oppressed mases. The report said that these anti-democratic methods were covered up by the judiciary and that "neither the Attorney General nor the judiciary exert sufficient supervision over the legality of the detention or the conduct of police investigations to prevent this practice.
f)The applicant states that this process of the IAA was unreasonable. The IAA failed to explain why it preferred the DFAT reports in the review materials and the new DFAT report 24 January 2017 in light of the very serious allegations made in the country report "Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016" and the about the Sri Lankan Authorities.
g)Failure to consider this information by the IAA in its review is a jurisdictional error.
Ground 7
8.Actual or perceived lack of impartiality of the reviewer Wei, Reviewer of the Immigration Assessment Authority (the IAA) which had led to the finding in affirming the decision of the delegate of the Minister for Immigration and Border Protection that "the applicant does not meet the requirements of the definition of refugee in s.5H(l). The applicant does not meet s.36(2)(a)" at [para 60].
Particulars
a)It is evident the said reviewer M Wei's state of mind so committed to a conclusion already formed as to be incapable of alteration, despite the evidence and arguments presented by the applicant stating as implausible every claim that there is a real chance of risk that the applicant would be subjected to serious or significant harm on his return to Sri Lanka.
b)Assessing the credibility of past and present events is an important aspect of assessing a claim, because the referred-applicant was already being subjected to persecution and torture and serious harm makes it clear that this will be a serious indication of a well-founded fear of persecution or real risk of suffering serious harm, unless there is good reason to believe that such ill-treatment will not be repeated. The available overwhelming country information of Sri Lanka human rights situation does not support such torture and illtreatment will not be repeated by his persecutors to the applicant. This was a jurisdictional error.
c)The IAA reviewer M Wei failed to appreciate the level of proof needed to establish the material facts is relatively low one-a reasonable degree of likelihood-and must be borne in mind throughout the process. It is low because of what is potentially at stake -the individual's life or liberty-because asylum seekers are unlikely to be able to compile and carry dossiers of evidence out of the country of persecution.
d)The IAA reviewer M Wei should have found that the delegate's assessment indicates that he needs to be 'certain', 'convinced', or even 'satisfied' of the truth of the account-that sets too high a standard of proof. See in reviewing material facts, the Court of Appeal [judgment] in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ11 (25 January 2000).
e)The IAA reviewer M Wei should have considered a claimant's testimony may include lies or exaggerations for a variety of reasons, not all of which need reflect adversely on other areas. Depending on their relevance to the totality of the evidence, falsehood will be troubling but do not mean that everything the claimant has said must be dismissed as unreliable: MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 (24 November 2010).
f)Caseworkers (delegates) must take into account any personal factors which may explain why a claimant's testimony might be inconsistent with other evidence, lacking in detail, or there has been late disclosure of evidence. These factors may include (the list is not exhaustive): age, gender; variations in the capacity of human memory; physical and mental health; emotional trauma; lack of education; social status and cultural traditions; feeling of shame; painful memories, particularly those of a sexual nature.
g)The reviewer M Wei failed to research and take into consideration of the significant judgements in the cases BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 by White J; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; and CHF16 & Anor v Minister Immigration and Border Protection & Anor [2017] FCAFC 192 in making a decision for the applicant under review.
(errors in original)
The application was supported by an affidavit filed with it which is in the nature of a submission. The only evidence I have before me is the court book filed on 28 September 2018. The Minister filed pre-hearing written submissions in accordance with procedural orders I made by consent on 30 August 2018.
The applicant appeared unrepresented but with the assistance of a Tamil interpreter at the trial of this matter on 5 February 2020. He told me that he understood he was to be represented by Mr Ben Zipser of counsel but that Mr Zipser was not available on that day. He stated that Mr Zipser would be available on a later occasion and sought an adjournment. Counsel for the Minister referred to email correspondence from Mr Zipser on 27 January 2020 indicating that he had asked the applicant to contact him, which might have indicated a breakdown in communications between the applicant and Mr Zipser.
I declined to grant an adjournment but it became apparent in the course of oral argument that there was an issue not raised by the applicant. That further issue was whether there was a breach of s.473CB(1)(b) or (c) of the Migration Act and if so, whether the breach was material. The issue concerns a transcript of an apparent interview with the applicant, the provenance of which is uncertain.
I noted that a similar issue had arisen in another case in which I was then reserved BVI18 v Minister for Immigration & Anor[30] and I ordered that the parties have the opportunity to file post-hearing submissions in light of my judgment in that case when delivered. The Minister filed supplementary submissions on 8 April 2020.
[30] [2020] FCCA 9
Consideration
There is no substance in the grounds of review advanced in the application. I accept the Minister’s submissions in relation to those grounds.
The applicant’s grounds of review are extensive and identify a number of particulars. However, closer examination of the grounds indicates that they either seek to engage in merits review, do not advance a specific ground or proceed on the basis of a misconception about the Authority’s reasons and its statutory task.
Grounds 1 and 2: s.473DC(3) of the Migration Act
These grounds are dealt with together as they both allege an unreasonable failure on the part of the Authority to consider exercising, or an unreasonable failure to exercise, the power under s.473DC(3).
Ground 1 proceeds on the basis of a misconception. The power in s.473DC(3) involves a discretion to invite a person to give “new information”. For the purposes of s.473DC(3), new information is information or documents not before the Minister when the Minister made the decision under s.65 (in other words, the delegate’s decision). However, the DFAT Report, on which the applicant relies, was a document that was before the delegate.[31] It follows that s.473DC(3) was not engaged.
[31] CB 143
In respect of Ground 2, the premise of this ground appears to be that the Authority reached different conclusions from the delegate concerning the applicant’s central claims. That premise is misplaced: both the delegate and the Authority found that the applicant’s claims concerning the shooting and the interest of the TMVP and the CID were implausible. The delegate and the Authority both found that the applicant’s father had died of natural causes and both accepted the applicant’s claims concerning his brothers.
More generally, there are further difficulties with this ground. The authorities at particular (c), notably the decision in BVZ16 v Minister for Immigration,[32] relate to consideration of s.473DD which does not arise in the present circumstances. There is no dispute that s.473DC(3) is a discretionary power that must be exercised reasonably but this does not have any bearing in this case on the Authority’s assessment of the merits of the applicant’s claims.
Ground 3: Rajalingham
[32] [2017] FCA 958
This ground is misconceived. The principles set out in Minister for Immigration v Rajalingham[33] are not engaged. It is correct that in certain circumstances, a decision-maker may have to ask the question “what if I am wrong?” but those circumstances only arise where there is a degree of doubt about findings that are made. There was no such doubt or uncertainty about the findings made by the Authority.
[33] (1999) 93 FCR 220
Ground 4: real chance test
It is apparent from the Authority’s reasons at [53]-[57] that the Authority engaged with the nature of the issue and assessed, based on country information, what may happen to the applicant bearing in mind he would be treated as an illegal returnee. The assessment of, and weight to be given to, country information is a matter for the decision-maker.[34] As the particulars to this ground make clear, the applicant disagrees with the Authority’s assessment and seeks impermissible merits review.
[34] NAHI v Minister for Immigration [2004] FCAFC 10
Ground 5: Tamil ethnicity
This ground is not particularised. It involves a statement as to what the applicant claimed (which in broad terms is accurate) but no clear articulation of any error. To the extent that it suggests that the Authority failed to engage with the applicant’s claims concerning his ethnicity, the reasons clearly indicate otherwise; the question was assessed at length by reference to a range of country information. As currently framed, this ground does no more than seek to cavil (implicitly) with the Authority’s conclusions.
Ground 6: significant harm
The applicant did not make any claim concerning torture were he to be questioned by Sri Lankan authorities as an illegal returnee. To the extent that the matters set out at [6] of the application refer to the broader issue of the potential period that the applicant may have to spend on remand, the Authority dealt with this issue. The matters at [7] of the application refer to the applicant’s own assessment of the material in certain country information. None of this information was expressly raised by the applicant and it was open to the Authority to prefer one set of country information over another.[35]
[35] NAHI
Ground 7: apprehended bias
It is well established that a claim in respect of bias must be clearly and distinctly made and proved.[36] None of the matters identified in the particulars to this ground support any claim that the Authority prejudged the applicant’s case or could give rise to any arguable basis to suggest that the Authority would not bring an impartial mind to bear on the applicant’s case. Indeed, the particulars all address areas of the Authority’s reasons where the applicant disagrees with the Authority’s conclusion or approach. In broad terms, as particular (a) suggests, the applicant argues that the wholesale nature of the Authority’s rejection of the applicant’s claims was evidence of prejudgment. However, the rejection of an applicant’s claims, even in their entirety, on the basis of identifiable evidence, reasons and information, cannot be a proper basis for a claim of apprehended bias.
[36] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [127]
The additional issue – s.473CB(1)(b)
Before the delegate, there was available a written statement which was an English transcript of certain oral statements made by the applicant concerning his claims. The document is clearly referred to in the delegate’s decision.[37] The document is before the Court in the Supplementary Court Book.
[37] CB 139
The Minister conceded at the trial that this document was not provided to the Authority when the matter was referred to it. Pursuant to s.473CB(1)(b), the Secretary must give to the Authority all “material provided by the referred applicant” to the delegate. On the basis that the written statement was provided to the delegate by the applicant, a failure to provide the Authority with the written statement would be a breach of s.473CB(1)(b).[38] Alternatively, if the delegate obtained the document by other means and the document was considered by the delegate, it would be relevant to the review, raising the likelihood of a breach of s.473CB(1)(c).
[38] EVS17 v Minister for Immigration [2019] FCAFC 20
However, even accepting that there was a breach of s.473CB(1)(b) or (c), the applicant would still need to demonstrate that the error was material and, thereby, jurisdictional: namely, that the error could have made a difference to the outcome;[39] and, the Authority’s statutory task of review was disabled by reason of the failure to have before it material that the applicant had provided to, or was otherwise before, the delegate.[40]
[39] CB 205-210 at [36]-[54]
[40] CB 2014-205 at [32]-[35]
The Minister submitted at the trial that the error in the present case is not material. The matters raised by the applicant in the written statement involved the same claims considered by both the delegate and the Authority. In circumstances where the Authority gave detailed consideration to the applicant’s claims the Minister contends that it could not be said that the written statement could realistically have made a difference to the result.
The Minister’s supplementary submissions helpfully explore the issues concerning the document in more detail.
I accept that the transcript appears to relate to certain oral statements made by the applicant in respect of his protection claims. The transcript is referred to in the delegate’s decision, albeit only once.[41] It is clear that the document was before the delegate. It is also the case that the transcript did not form part of the material provided to the Authority pursuant to s.473CB(1).
[41] CB 139
How the document came to be before the delegate is less clear. Following the hearing, the Minister clarified the following matters.[42] First, the file that was before the delegate carried the descriptor “CLF2016/1756”. Secondly, the transcript appears to have been placed in a separate file carrying the descriptor “CLF2012/233129”; the transcript was placed in the file on 2 July 2013. Thirdly, the file “CLF2012/233129” was the file relating to the applicant when he was in detention.
[42] The Minister provided these further details in an e-mail to the Court dated 25 February 2020
Based on the evidence before the Court it is uncertain whether the applicant provided a copy of the transcript to the delegate. If he did not then it would follow that there was no breach of s.473CB(1)(b), contrary to the position put forward by the Minister in his original submissions, that the section is predicated upon provision of material by the applicant.[43]
[43] BVI18 at [83]
If, on the other hand, the applicant did provide the transcript to the delegate then the Minister accepts that the failure to provide the transcript to the Authority would constitute a breach of s.473CB(1)(b) but whether that error was jurisdictional would still be subject to whether the error was material.[44]
[44] [32]-[35] of the Minister’s submissions filed on 29 January 2020
In any event, if the applicant did not provide the transcript to the delegate then it would appear to be the case that the delegate accessed the transcript. In those circumstances, the question arises whether the Secretary’s decision not to refer the transcript to the Authority constituted a legally unreasonable exercise of the power in s.473CB(1)(c), an issue that did not arise in the Minister’s original submissions.
Section 473CB(1)(b) and (c)
I proceed on the assumption that the delegate obtained the transcript otherwise than from the applicant. On that basis, the operative provision is s.473CB(1)(c), not (b).
In BVI18, I explained that s.473CB(1)(c) involved a process of evaluation by the Secretary conditioned by identification of the documents to be considered and the manner in which the Secretary undertakes consideration of the domain of documents. I noted that in assessing the Secretary’s evaluation two situations may arise: first, a document which was considered but, it may be inferred, determined to be irrelevant; and, secondly, a document which was never considered because it was considered not to be relevant to look for such a document within the relevant domain of documents.[45]
[45] BVI18 at [89]-[91]
The Secretary is not required to look for every document within his possession or control; however, the Secretary must look beyond merely documents of which he is aware.[46] The evaluation undertaken by the Secretary must be referable to the fast-track reviewable decision, not a decision under some other process.[47]
[46] BVI18 at [92]-[95]
[47] BVI18 at [95]
The obligation placed on the Secretary is to maintain the correct domain of documents and to undertake reasonable searches within that domain.[48]
[48] BVI18 at [97]
It should be added that in BVI18 I did not have the benefit of being taken to the reasons of the Full Federal Court in AUF18 v Minister for Immigration,[49] which was handed down on 10 December 2019. Fortunately, my reasons in BVI18 are consistent with the approach taken by the Full Federal Court in AUF18 at [62]-[70].
[49] [2019] FCAFC 222
In the present case, it is not clear whether the Secretary never considered the transcript (because it did not fall within the domain of documents searched by the Secretary) or considered the transcript and concluded that it was not relevant to the review. An inference is said to be available either way. In those circumstances, the Minister does not concede that the Secretary’s failure to provide the Authority with the transcript was legally unreasonable for the following reasons.
First, if it is assumed that the transcript was never considered, it is said to be open to the Court to conclude that any process of identification excluded material forming part of a separate process. That separate process was referable to an application that might have been made prior the changes rendering any such application invalid and which was not made. Subsequently after the lifting of the bar in s.46A of the Migration Act, the applicant was permitted to make a new application as part of a distinct process.
The difficulty with that submission is that there is no evidence to support it, other than the fact that is predates the applicant’s SHEV application. It is a matter of conjecture why the document was created. It might have been created as part of a separate process or it might have been created for the purpose of the protection claim subsequently made by the applicant. I make no finding either way.
Secondly, if it is assumed that the transcript was considered, it is said to be open to the Court to conclude that it was not unreasonable for the Secretary to exclude the document on the basis that it was not relevant, for the same reason: the document related to a distinct process (not part of the application forming part of the review).
With respect, the Minister’s submission is untenable. First, I have not made the finding that I was invited to make which would be necessary to support it. Secondly, even if I had made that finding, the point of significance is not the process for which the document was created[50] but what the delegate did with it. The simple fact is that the delegate referred to it in his reasons and treated it as relevant to the consideration of the visa application. Given the content of the document, having somehow obtained the document, the delegate could hardly do otherwise. The delegate having treated the information in the document as relevant, it was not open to the Secretary to conclude that it was not relevant to the review. Assuming the document was considered, it was unreasonable for the Secretary to treat it as not relevant. If, on the other hand, the document was not considered, it should have been as it was specifically referred by the delegate, and that hypothetical failure would be unreasonable.
[50] although that might have been important for the Authority to know
Materiality
Even though, pursuant to s.473CB(1)(c), the failure of the Secretary to provide the transcript to the Authority was legally unreasonable, the applicant still needs to demonstrate that the error was material in order for it to be jurisdictional and therefore amenable to supervisory review in this Court.
In that regard, I accept the Minister’s submission that in Hossain v Minister for Immigration[51] their Honours Kiefel CJ, Gageler and Keane JJ noted at [25] that the concept of a jurisdictional error goes not only to the presence of an error but to the gravity of that error. A statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.[52] While the statute may set a higher or lower threshold for such materiality, that threshold would not ordinarily be met in circumstances where failing to comply with the statutory condition “could have made no difference to the decision that was made in the circumstances in which the decision was made”.[53]
[51] [2018] HCA 34
[52] Hossain at [29]
[53] Hossain at [30]
In Minister for Immigration v SZMTA,[54] the plurality (Bell, Gageler and Keane JJ) elaborated on the concept of materiality. Their Honours noted at [45] that a breach is material to a decision only if “compliance could realistically have resulted in a different decision”. In that regard, materiality was an ordinary question of fact to be determined by inferences drawn from the evidence adduced on the application.[55] This would include what can be expected to occur in the course of “the regular administration of the Act”.[56] The applicant bears the onus of proof in showing that any error is material.[57]
[54] [2019] HCA 3
[55] SZMTA at [46]
[56] SZMTA at [47]
[57] SZMTA at [46]
In Minister for Immigration v CPA16,[58] the Full Federal Court noted, in relation to a case concerning s.473CB(1)(c), that speculation as to how the missing document “may” have affected the decision is not enough to discharge the onus on the appellant of demonstrating materiality. What must be shown is whether the decision could realistically have been different.[59]
[58] [2019] FCAFC 40
[59] CPA16 at [32]
The Minister submits that the following features of the transcript are important to bear in mind:
a)the applicant referred to matters that he had not previously raised. This must, set in context, be a reference to matters not raised in the initial entry interview when the applicant arrived in Australia. The matters then formed part of the applicant’s application and were dealt with in the applicant’s supporting material;
b)the applicant identified the evidence about the false passport in his application and also before the delegate. A comparison between that material shows that the applicant did not make any materially different claim (and to the extent that he did it formed part of the application considered by the delegate and then by the Authority);
c)similarly to (b) above, the applicant identified the critical elements of his claimed fear by reference to the alleged witnessing of the death of P, the years spent hiding from the authorities, the time spent in Qatar and the applicant’s return to Sri Lanka and subsequent departure. A careful comparison between the matters raised in the transcript and the matters raised by the applicant in his application and before the delegate show no material or significant differences. If anything, the applicant took the later opportunity to provide a greater level of detail; and
d)the applicant referred to the death of his father in 1996 and the fact that he was shot. This was a different claim from that made by the applicant in the entry interview and from the claim made in the application. However, the claim was made by the applicant during the SHEV interview and, as noted above, the delegate identified that the claim had been made in the transcript.
The Minister submits that the important point to be drawn from this, and made clear by the treatment of the applicant’s claims in the Authority’s reasons, is that the transcript made no material difference to the scope or nature of the applicant’s claims that were considered. In the Minister’s submission, it cannot be said that there was any claim that was overlooked or not addressed as a result of the Authority not having the transcript before it. It would follow that the failure to provide the transcript could not realistically have made any difference to the assessment of the applicant’s claims; all of the claims were considered.
The Minister concedes that one aspect of the applicant’s claims that might arguably have made a difference was the claim concerning the applicant’s father and how and when he died. However, the Minister submits that the interview before the delegate and the delegate’s decision made clear all of the material matters to be taken into account and when the respective claims were made. The Authority is said to have made its assessment on a proper characterisation of the claims.
The other way in which the transcript could have made a difference is if the Authority had drawn adverse inferences about credibility based on inconsistencies between accounts at various times. However, the Minister submits that that issue does not arise in the present case. The Authority’s credibility findings are said to have been based on the plausibility of the applicant’s claims, not inconsistencies between different versions at different points in time. However, a critical claim that did rely on such differences was the claim about the applicant’s father’s death. The Minister submits that that claim was properly assessed on the totality of the material actually advanced by the applicant. In respect of the fraudulent passport claim and the matters relating to land, those claims were not addressed in the transcript.
I do not accept the Minister’s submission that the transcript could not have made any realistic difference to the outcome. In particular, the transcript could have made a difference to the assessment of the credibility of the applicant’s claim concerning the manner of his father’s death.
In my opinion, at least s.473CB(1)(c) of the Migration Act was breached in this case and the breach was unreasonable. Further, I find that the breach was material.
The transcript in issue was plainly relevant to the review as it bore directly on the applicant’s claims. Further, the transcript establishes that the revelations, apparently then made for the first time, were made orally on 20 June 2013. The applicant appears to have consistently maintained the claims made on that day since then.
The applicant’s revelations were made more than four years before the delegate’s decision. The date of the statement is referred to at footnote 35 of the delegate’s decision, so that was known to the Authority, but the delegate did not disclose the circumstances in which that statement was made, other than to note that it was a “verbal” statement. I cannot rule out the possibility that those circumstances might have borne upon the credibility of the applicant’s revelations, which involved significant changes to what he had stated earlier, especially in relation to the death of his father. It is therefore possible that the failure by the Secretary to furnish the statement to the Authority may have impacted upon the outcome of the review.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority in this case is affected by jurisdictional error. The applicant should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 May 2020
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