EBP19 v Minister for Immigration
[2020] FCCA 1392
•3 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBP19 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1392 |
| Catchwords: MIGRATION – Visa – whether failure to consider integer of applicants’ claims – whether erroneous failure to consider ‘new information’ – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DD, 473DD(a), 473DD(b)(i) & (ii) and 474(1) |
| Cases cited: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26 AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 |
| First Applicant: | EBP19 |
| Second Applicant: | EBR19 |
| Third Applicant: | EBS19 |
| Fourth Applicant: | EBT19 |
| Fifth Applicant: | EBU19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 386 of 2019 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 26 May 2020 |
| Date of Last Submission: | 26 May 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 3 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Marcus |
| Solicitors for the Applicant: | Camatta Lempens Pty Ltd |
| Solicitors for the Respondents: | Ms Milutinovic for Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicants do pay the first respondent’s costs fixed in the amount of SIX THOUSAND DOLLARS ($6,000).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 386 of 2019
| EBP19 |
First Applicant
| EBR19 |
Second Applicant
| EBS19 |
Third Applicant
| EBT19 |
Fourth Applicant
| EBU19 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS, |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review pursuant to s 474(1) of the Migration Act 1958 (Cth) (‘the Act’) of a decision of the Immigration Assessment Authority (‘the IAA’) dated 16 September 2019. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise (Class XE) Visa (‘the visa’).
On 19 May 2020, I gave leave to the applicant to file and serve an amended application. The two grounds pleaded in the Initiating Application were discontinued and the matter proceeded before me on the following two new grounds reproduced verbatim:
1.The Immigration Assessment Authority (IAA) failed to conduct a review under Part 7AA of the Migration Act 1958 by failing to consider an integer of the applicants’ claim.
1.1.The first applicant claimed to fear a false allegation of theft of a boat from the owner of that boat;
1.2.The boat was the boat the applicants came to Australia on;
1.3.The IAA failed to consider this claim in its entirety;
1.4.In doing so the IAA failed to conduct a review of the applicants’ claim according to law.
2.The IAA misapplied the test under s 473DD of the Migration Act 1958 leading to a failure to consider new information (the Negombo Magistrates Court report) in support of the applicants’ claim.
2.1.The first applicant claimed to fear false allegations of theft of a boat and of people smuggling;
2.2.The applicant provided new information to the IAA. The new information was a court report relating to an investigation into the board the applicants claimed to come to Australia on.
2.3.The court report details an ongoing investigation into the boat being stolen and being involved in people smuggling. The report advises of the arrest of two named people;
2.4.The court report provided corroboration of central aspects of the applicant’s claims.
2.5.The IAA found the court report did not show anyone possessed an adverse interest in the first applicant. From the report both the police and owner of the boat appeared to have an adverse interest in the first applicant. In so finding, the IAA made a finding that was contrary to the evidence.
2.6.The finding contrary to the evidence infected the IAA’s reasoning that there were no exceptional circumstances to consider the new information.
2.7.Had the IAA properly applied the test contained in s 473DD, it could have found that there were exceptional circumstances to consider the Negombo Magistrates Court document, which could realistically have made a difference to the conclusion reached by the IAA, namely that the fears held by the first applicant were well-founded.”
Background, Claims and IAA Findings
The relevant background to this matter has been summarised by both the applicants and the first respondent in their written submissions. I have adapted what follows from those documents.
The first applicant is a citizen of Sri Lanka and of Sinhalese ethnicity. The second applicant is his wife and the third to fifth applicants are their children who were born in 2007, 2012 and 2015 respectively. The fifth applicant was born in Australia and it was asserted is stateless.
The first to fourth applicants arrived on Christmas Island as unauthorised maritime arrivals in August 2013. The first applicant lodged a claim for the visa in November 2016. The second to fifth applicants lodged claims as part of the first applicant’s family unit. On 10 January 2017, the first and second applicants attended an interview with a delegate of the Minister. The delegate refused to grant the applicants’ visas on 28 February 2017 and the matter was automatically referred to the IAA early in March 2017. The IAA received a written submission prepared by a migration agent acting on behalf of the applicants in addition to a document from the Negombo Magistrates Court in Sri Lanka. The IAA affirmed the decision 2017.
The applicants applied to this Court for judicial review of that decision and in March 2018 that Application was dismissed. The applicants appealed to the Federal Court. In March 2019, the Full Court made orders setting aside the IAA’s decision and remitted it to the IAA for determination according to law.
Subsequent to the appeal the applicants’ solicitors provided a further submission to the IAA which attached a bundle of materials.[1] On 15 September 2019 the IAA again affirmed the delegate’s decision.
[1] Court Book (‘CB’), 312- 665.
The first applicant’s claims as found by the IAA were as follows:
a)He is of Sinhalese ethnicity from the Chilaw District of Sri Lanka.
b)In December 2012, having previously worked as a fisherman, he agreed at the request of a friend to take part in a fishing trip. During the trip he noticed other boats approaching their boat but did not see anything else happen. He was paid on return to shore. He was unaware during that trip that the owner of the fishing boat was a known drug smuggler. He was told this by friends at some time after the fishing trip. He was later asked to crew the boat on a second trip but he declined to do so. Two or three weeks later armed men came to his house when he was at work, forced their way in, assaulted the second applicant, his wife, telling her that they were going to kill him. They searched the house for the first applicant. The first applicant later learned that the second fishing trip had been intercepted by the authorities. He claims the armed men said they suspected him of having informed the police about the activities of the drug smugglers and that this is why they threatened him.
c)After the incident at his home the first applicant went into hiding. The second applicant told him that she had been followed and watched by people who appeared to be waiting to see if the first applicant would return home. For this reason, the applicants illegally left Sri Lanka in July 2013 with other family members. The drug smugglers know that he has left Sri Lanka and so relatives who remain there have not been harassed.
d)Since arriving in Australia, the first applicant came to learn that he had been “accused of having stolen the boat”.[2] He had been told by his father in law that it was dangerous for him to return because his name had been placed on a watch-list at the airport. The first applicant has not been able to obtain evidence of this.
e)He cannot relocate anywhere in Sri Lanka because drug smugglers are powerful and the authorities cannot protect him.
f)“He fears that he will be arrested and jailed (sic) because of the stolen boat. He fears he will be targeted and killed by the drug smugglers who believe he has informed on them. He believes the smugglers have colluded with the others about the boat accusations so that the first applicant will be placed into prison where he could be killed.”[3]
g)The other applicants claimed to fear harm from the persons targeting the first applicant.
h)The applicants departed Sri Lanka illegally.
[2] CB, 709 [21].
[3] Ibid.
The above claims were summarised more thoroughly by the IAA in considering the evidence.[4]
[4] CB, 710, 711 [25]-[31].
The IAA had regard to the information referred to it by the Secretary in accordance with s 473CB of the Act. It concluded that the first applicant was not of any ongoing adverse interest to any drug smugglers or of any adverse interest to the Sri Lankan authorities and that he was not suspected of stealing a boat or of being involved in people smuggling. For those reasons, it concluded that the first applicant did not face a real chance of persecution and that the applicants were not entitled to protection visas nor did they satisfy the complementary protection provisions.
The IAA found that the document from the Negombo Magistrates Court was new information and that the Report did not indicate any ongoing adverse interest in the first applicant. For that reason the IAA was not satisfied that there were exceptional circumstances to justify considering it.
I note that the use of the terms ‘new information’ and ‘exceptional circumstances’ are the only references in the relevant part of the decision record to the wording of s 473DD.
Submissions
Applicants’ submissions
With respect to ground one, the first applicant submits that the IAA failed to consider the false allegation of theft of the boat on which the applicants came to Australia. The first applicant relies on the principle that a reviewing the body must consider all claims made by an applicant and the failure to do so is a constructive failure to exercise jurisdiction on the basis of having failed to conduct a review according to law.[5] That aspect of the applicants’ claims was substantial and clearly articulated, and natural justice required that it be properly considered. It was submitted that in considering the applicants’ claim, the IAA confused itself about or failed to appreciate that there were three separate boat trips. The applicant claimed that the drug smugglers had blamed him for the detection of their smuggling operation on the second fishing trip. The IAA accepted that it was possible that drug smugglers could arrange with authorities to have people arrested on false charges and that such people also make claims of boats having been stolen in order to make an insurance claim. Whilst conceding that such a scenario was possible, the IAA found the first applicant was not of ongoing adverse interest to the smugglers and did not accept that the smugglers had arranged any premise to have the first applicant placed in prison where he might be harmed.[6] The first applicant submitted that it was important to keep in mind that those findings were made in the context of drug smugglers operating in Sri Lanka.
[5] Dranichnikov v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2003] HCA 26 [25].
[6] CB, 710 [31].
In a statutory declaration and submissions made on his behalf the first applicant, he articulated the claim that he believed he had been falsely accused of stealing the boat involved in the third trip namely, the trip to Australia. He did not claim to have been accused of stealing either of the boats involved in the first and second fishing trips. In the submission of the applicants, the IAA did not address the first applicant’s fear of harm with respect to the owner of the boat in which he had travelled to Australia. In considering the question of the stolen boat, the IAA confined its focus to ‘smugglers’. It was submitted that there was no evidence of any connection between the drug smugglers and the persons involved in the boat trip to Australia. For that reason, a consideration of any adverse interest in him on the part of only ‘smugglers’ could not be regarded as dispositive of the claim he had raised with respect to his fear relating to the owner of the boat on which he had travelled to Australia. When the IAA acknowledged the issue of the boat theft in its summary of the first applicant’s claims, that allegation was discussed in connection with a discussion of the potential adverse interest drug smugglers might have had in him. This amounted to a failure on the part of the IAA to engage with a specific claim.
The failure to properly appreciate the nature of the claims raised by the first applicant can also be demonstrated in its discussion with respect to the Negombo Magistrates Court Report which it declined to receive on the basis that it failed the test under s 473DD of the Act. In considering that Report, the IAA noted that the first applicant had not claimed to fear harm because of his association with any person named in that Report. That finding was not correct if the first applicant’s claims were properly understood. It was submitted this was a material error because the first applicant’s claimed fear of the owner of the boat and the false allegations which had been levelled against him was a claim of persecution that of itself could have sustained his application for the Visa. As a result, the applicants had been deprived of the possibility of a successful outcome.
With respect to ground two, the first applicant had claimed to fear false allegations of the theft of the boat on which he had travelled to Australia and false allegations of people smuggling. Consistent with recent authority on s 473DD, it was necessary to consider all of the relevant circumstances when considering whether ‘exceptional circumstances’ existed. This was because a combination of circumstances may be such that they could reasonably be regarded as exceptional given the broad meaning of that term.[7] In finding that the Negombo Magistrates Court Report did not satisfy the test in s 473DD, the IAA failed to take into account relevant information which was akin to a jurisdictional error in the exercise of its discretionary power.[8] An assessment of sub-s (b)(i) and (ii) of s 473DD was, in the circumstances of this matter, relevant and necessary to the IAA’s consideration of whether ‘exceptional circumstances’ existed. It was submitted that as the expression ‘exceptional circumstances’ was protean and to be construed widely and given that an assessment requires consideration of all relevant information, the IAA was bound to consider all of the first applicant’s claims and this included the information in the Negombo Magistrates Court Report. In failing to do so the IAA did not properly apply the test in s 473DD, made an error as to the relevance of the contents of the Report with respect to the claims made by the first applicant, and failed to consider important corroboratory material which could realistically have made a difference to the ultimate finding it reached. The rejected material could have had a material impact on the assessment by the IAA of the credibility of the first applicant.[9]
[7] AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 [7], [8].
[8] CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 [73].
[9] Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 [81]; SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 [44]-[45].
First Respondent’s submissions
In the submission of the first respondent, an acceptance of the applicants’ submissions with respect to ground one would involve an over emphasis on looseness of language or a scrutiny of the decision with an eye keenly attuned to the perception of error at the expense of a fair reading of the decision as a whole.[10] It was submitted that the IAA correctly summarised the first applicant’s claims in a manner which reflected a statutory declaration that he had provided. The IAA identified the claim that the first applicant had learned since his arrival in this country that he had been accused of stealing the boat.[11] That aspect of the first applicant’s claims was identified immediately after a passage in which the IAA discussed the circumstances of his departure from Sri Lanka. Read in that context, the decision record shows that the IAA properly understood the integers of the claims made by the first applicant. Further, the decision record clearly shows that the IAA accepted the first applicant’s claims with respect to the first and second fishing trips. It then concluded that he was not of adverse interest to the drug smugglers. Having reached that conclusion, the IAA then turned to consider the first applicant’s claim to have been falsely accused of stealing the boat and having had his name placed on a watch-list for that reason. It was submitted that a fair reading of the decision should take into account the sequence in which the IAA considered various aspects of the first applicant’s claims. When this is done it can be seen that the IAA appreciated the difference between the claims with respect to the drug smugglers and the allegations about having stolen the boat. In the materials provided by the first applicant’s reference was made to ‘people smugglers’, a term which was also used by the IAA in addition to the term ‘drug smugglers’. It was submitted that no misapprehension of the evidence as alleged by the applicants had occurred.
[10] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272.
[11] CB, 709 [21].
With respect to ground two, the first respondent submitted that the IAA was not required to consider whether the information met s 473DD(b) because it had concluded pursuant to s 473DD(a) that there were no exceptional circumstances which would justify it in considering the new information. The IAA was only permitted to consider new information if the cumulative requirements in sub-ss (a) and (b) of s 473DD were met. The finding with respect to there being no exceptional circumstances was considered, comprehensive and open to the IAA. It was submitted that it could not be reasonably contended that the IAA misunderstood or misconstrued the evidence in the Negombo Magistrates Court Report. The finding by the IAA that the Report did not suggest or support there being any ongoing adverse interest in the first applicant was open to it for the reasons it gave. Whilst the considerations in sub-s (b) could potentially be relevant to the question of whether exceptional circumstances existed, it was not necessary in every case to consider it. In this case it was clear that the IAA had concerns about the credibility about the contents of the Report.
Consideration
As I have noted above, in summarising the applicants’ claims for protection,[12] the IAA made reference to both the incidents involving the drug smugglers and the fact that the first applicant claimed to have been accused of stealing a boat. At first blush, on reading that section of the decision record, it might be arguable that the IAA was erroneously conflating the claims with respect to the drug smugglers with the purportedly false allegations as to having stolen a boat. I am not satisfied that it has been demonstrated that this was the case. That passage must be read in the context of the decision record as a whole and in light of the materials that were before the IAA.
[12] CB, 708-709.
Firstly, when considering the evidence, the IAA summarised the fishing trip and drug smuggling aspect of the claims as a distinct issue separate to any allegation that the first applicant had been involved in stealing a boat. It accepted that he had been involved in a fishing trip and then later came to suspect that it was in fact a drug smuggling operation.[13] The IAA then accepted that armed men had visited the first applicant’s house looking for him, had assaulted the second applicant and threatened the first applicant’s life.[14] In doing so, it accepted that it was plausible that this incident was related to the alleged drug smuggling activities and the later interception of the smugglers. The decision record continued in the next paragraph with the following:
“… I am not satisfied on the evidence before me that the first applicant had an adverse profile with the smugglers such that the smugglers took any further steps to locate or harm him. I find that while he may have been of initial interest, perhaps in the immediate aftermath of the interception, he was not of any ongoing adverse interest to these persons.”[15]
[13] CB, 710 [26].
[14] Ibid, [27].
[15] CB, 201 [28].
At this point in the decision record there can be no doubt that the IAA was referring to the drug smugglers even though in the passage quoted above they are simply described as ‘smugglers’. The decision record then continues:
“Having regard to all of the above, I am not satisfied that there is more than a remote chance that the first applicant would be of adverse interest to these persons or their associates now, or in the reasonably foreseeable future, should he return to Sri Lanka.”[16]
[16] CB, 711 [30].
The persons referred to in the passage above are once again those involved in the drug smuggling activity. That passage involved a finding that was dispositive of the claim with respect to the drug smugglers. The IAA then turned to consider the claim based on the allegation of stealing a boat. It made the following findings:
“The first applicant claims to be under suspicion for stealing a boat and that he is on a watch list because of this. He believes that the smugglers have arranged this so that he will be arrested and put into prison, where they may be able to harm him. He also told the delegate that he has heard that smugglers sometimes claimed boats were stolen so that they could get insurance. While it is possible that such incidents may occur, I have found above that the first applicant was not of ongoing adverse interest to the smugglers and I do not accept that the smugglers have arranged this story or any other premise to have him placed in prison where he can be harmed. I do not accept that he is on a watch list or that he will be of any adverse interest to the Sri Lankan authorities, other than as an alleged illegal departee, which I have considered further below.”[17]
(emphasis added)
[17] Ibid, [31]
Three issues arise from the above passage. Firstly, the words “I have found above” in the passage must be a reference to the finding immediately above in the decision record relating to the drug smugglers. That is one matter which might support the applicants’ argument that there was a conflation of the separate aspects of the claims relating to the drug smugglers and the allegation with respect to the boat.
That argument becomes more tenuous when the reference in the passage to the false insurance claims is considered. That is a clear reference to the first applicant having told the delegate about smugglers making false insurance claims as set out in the following passage in the delegate’s reasons:
“The applicant claims that when he was arranging to leave Sri Lanka he told the people smugglers that he wanted a good boat. He claims that he sold his house to pay for his family to get on the boat. He claims that when he was in detention on Christmas Island that he was told that the people smuggler, who is the owner of the boat, had reported the boat stolen and that the applicant was the perpetrator. He claims that he was told that the people smuggler and the drug smugglers have joined together to target and kill him … He told me that people in the Christmas Island detention centre had told him that the people smugglers report the boats stolen and then claim on insurance …”[18]
(emphasis added)
[18] CB, 239.
It can be seen that the claim to the delegate was that the drug smugglers and the people smuggler were working in combination. The IAA had regard to that passage of the delegate’s reasons where the distinction between the two was clearly set out and the claimed risk presented by the owner was acknowledged. However, if the risk to the first applicant arose from the drug smugglers and the people smuggler having a common purpose, the separate risk that each of them presented is a distinction without a difference. In summarising this section of its reasons the IAA went on to say:
“I am not satisfied that the first applicant faces a real chance of harm arising from the drug smuggling incidents, the smugglers or their associates, including being imprisoned on false charges. It follows that I am not satisfied that any of the other applicants face a real chance of harm from the smugglers or their associates.”[19]
[19] CB, 711 [32].
In my view, a fair reading of the decision record suggests that the IAA was referring to both types of smugglers in the passage above. In any event, the question of the separate harm at the hands of the boat owner, who was also a people smuggler, was subsumed by a finding of greater generality later in the reasons:
“… I have found that the first applicant does not face a real chance of being imprisoned for any reason relating to the drug smuggling incidents. I do not accept the first applicant’s claim that he is suspected of stealing a boat and I am not satisfied on the evidence before me that he would be suspected of being involved in the people smuggling venture as anything more than a passenger. ...”[20]
(emphasis added)
[20] CB, 712 [38].
In light of the claims made, the rejection of his claim to be under suspicion of stealing a boat would seem by implication to include a rejection of the possibility that the boat owner had accused him of stealing a boat. I am not satisfied that it has been demonstrated that there was a misapprehension on the part of the IAA as to the claim to fear harm at the hands of the boat owner or of which boat he claimed to have been falsely accused of stealing.
I dismiss ground one.
As to ground two, s 473DD provides as follows:
“Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims”
The conclusion reached by the IAA was:
“I am not satisfied that this court report indicates any ongoing adverse interest in the first applicant. I am not satisfied that there are exceptional circumstances to justify considering this report.”[21]
[21] CB, 706 [10].
As submitted by the first respondent, the IAA does not appear to have made a formal finding under s 473DD(b)(ii). A clear understanding of the approach taken by the IAA would have been made easier had the Reviewer set out the terms of the section in full and made specific reference to the relevant parts of the section being considered in the course of the reasoning process. Allowing for the fact that this was not done, it nonetheless seems plain that the Reviewer had reservations about the credibility of the information as it applied to the circumstances of the first applicant. The departure of the boat in the court Report occurred about a week after the date on which the first applicant claimed to have departed Sri Lanka. The port of departure was also different. The IAA had reservations about whether the first applicant had been identified in the Report. The Report named two suspects, neither of whom was the first applicant. It referred to two other persons who were suspected to have assisted in crewing the boat. It made reference to each of them by a single name only. One of those names was one of the several names of the first applicant. The IAA considered the explanation of the first applicant that the other named person had also been on the boat with him. It noted, correctly in my view, that the Report did not identify the first applicant as being under suspicion of having stolen the boat. It was not prepared to draw an inference in all of the circumstances that one of the singly named persons was the applicant.
The submission of the first applicant with respect to ground two was predicated on the assumption that on an objective view, the Report related to the boat on which the first applicant departed Sri Lanka, at least one of the named suspects was the boat owner and that the reference to a person who had one of the several names of the first applicant must have been a reference to the first applicant himself. In other words, that the Report provided potentially valuable corroborative material. The Reviewer had considerable reservations about all of those matters and for that reason concluded that exceptional circumstances did not exist to consider the court Report. In the reasoning process undertaken, the IAA can be seen to have considered the relevant circumstances in sub-s (b)(ii) because the relevant passages show that the information in the Report was assessed by reference to the claims the first applicant had made. The approach taken by the IAA was similar to that identified in AQU17:
“(T)he Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant’s claims. It is not to the point that no express finding was made under s 473DD(b)(ii), as the exceptional circumstances test did not require an express finding to be made. The Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible”[22]
[22] Op cit, AQU17, [16].
I am not satisfied that jurisdictional error has been demonstrated with respect to ground two and I dismiss that ground.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 3 June 2020
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