EDH16 v Minister for Immigration
[2020] FCCA 222
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDH16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 222 |
| Catchwords: MIGRATION – Immigration Assessment Authority – safe haven enterprise visa – consideration of new information submitted by the Applicant – whether there were exceptional circumstances to consider the new information – exceptional circumstances not found – application dismissed. |
| Legislation: Migration Act 1958, s.473DD |
| Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 |
| Applicant: | EDH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 2830 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 5 December 2019 |
| Date of last submission: | 5 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| Advocate for the Applicant: | Mr Hodges |
| Solicitors for the Applicant: | Stephen Hodges Solicitor |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed on 28 December 2016, amended on 11 November 2019 and further amended on 19 November 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2830 of 2016
| EDH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 6 December 2016. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (Class XE-790) Visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The background to the present matter is set out in the written submissions of the Applicant filed in the proceeding. The Minister accepted the accuracy of the background as summarised. It is re-produced below:
‘4. The applicant is a male, born in Batticaloa in the Eastern province of Sri Lanka on 18 January 1991, is of Tamil ethnicity and a practicing Hindu [CB 194].
5. The applicant arrived in Australia without a valid visa on 28 August 2012 and applied for a Safe Haven Enterprise Visa (SHEV) (XE-790) on 6 January 2016 [CB 388].
6. The delegate of the first respondent refused to grant the visa on 12 October 2016 [CB 282].
7. The delegate's decision was reviewed by the IAA. The IAA affirmed the delegate's decision and on 6 December 2016 [CB 387] refused to grant the applicant a visa.
The applicant's claims
8. The applicant claims as described by the IAA are as follows:
8.1. He fears harm from the Sri Lankan authorities, including the Sri Lankan Army (SLA), the Sri Lankan police, the Karuna Group/TMVP Group, other paramilitary groups and other political groups for the reasons set out below.
8.2. His Tamil ethnicity.
8.3. His imputed political opinion as his uncle was in the LTTE.
8.4. His imputed political opinion as his father was a Tamil National Alliance (TNA) supporter.
8.5. His imputed political opinion as he resided in Colombo in a house that a named TNA politician (P) visited also resided at and that the applicant travelled around Colombo in P's van,
8.6. His being a failed Tamil asylum seeker and a young Tamil male from the Eastern Province of Sri Lanka.
9. The applicant submitted a Statutory Declaration dated 10 December 2016 and more submissions to the IAA. These included photos of a van, a claim that the applicant assisted at LTTE Remembrance day activities in 2003, 2004, 2007 and 2008, details of SLA army check points where the applicant was stopped when travelling in P's van and volunteer activities with the Tamil Refugee Council after arriving in Australia.’
Grounds of Application for Review
The Applicant filed a further amended initiating application on 19 November 2019 (‘Application’). The Application contained two grounds of review. At the hearing the Applicant indicated that ground two of the Application was not pressed. Accordingly, there is a single ground of review which is as follows:
‘The Authority committed jurisdictional error by erroneously applying the test outlined in the s 473DD of the Migration Act 1958 (Cth) for the consideration of new information.
PARTICULARS
a. In his Protection Visa interview, the applicant claimed that his aunt was a friend and supporter of [Mr P]. As a result, the applicant rode in his van 4 to 5 times, including trips around Colombo and Batticaloa.
b. The applicant further claimed that the gunman involved in the December 2009 home invasion was motivated by his association with [Mr P].
c. In their decision, the delegate expressed concerns with the applicant's evidence with respect to trips the applicant took and [Mr P]’s van before they rejected the applicant's claim.
d. In his Statutory Declaration, dated 10 November 2016, the applicant expanded upon his prior claims by providing particulars of checkpoints he travelled through while in [Mr P]’s van. The applicant reasoned exceptional circumstances existed for the consideration the information on the basis that the new evidence provided a "more detailed example of [his] travel [in] [Mr P]’s black Dolphin van".
e. At paragraph 6 of its decision, the Authority noted that the Applicant had provided both further particulars on matters he had already raised and new claims in the November 2016 Statutory Declaration.
f. In making the finding that it was not satisfied that there were exceptional circumstances to justify the consideration of the new information, the Authority confined its consideration to the fact that the information had not been supplied before and [taken] account of other relevant matters.
g. The Authority's reasons focused on the point that the applicant had been made aware of the importance of providing all of his protection claims during the Safe Haven Protection Visa interview.’
It can be seen from the above that the issue raised in the ground of review concerns the operation of section 473DD of the Migration Act 1958 (‘Act’). That section provides as follows:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The paragraphs of the decision of the Authority that the Applicant says gives rise to the relevant error are paragraphs [5] and [6]. I set out below those paragraphs for convenience:
‘5. In his statutory declaration the applicant says there are exceptional circumstances for considering the material in the statutory declaration as a failure to do so may result in the delegate's decision being affirmed notwithstanding that the applicant is at risk of harm if returned to Sri Lanka and owed protection by Australia; and he was not aware of the delegate's concerns regarding his claims and not all the concerns were put to him for comment. In relation to statements in his statutory declaration as to his travel in a van he also says that information was provided as a more detailed example of his travel in the van in question.
6. Most, if not all, new information from applicants would be supplied to the IAA because applicants wish to avoid the IAA affirming the delegate's decision and consider themselves at risk of harm and to be owed protection by Australia. I am not satisfied that of itself this (sic) means there are exceptional circumstances to justify its consideration. All the new information provided by the applicant pre-dates both the date of the SHEV interview (30 March 2016) and the delegate's decision. The new information is either further particulars of matters already raised by the applicant (the applicant's activities in Australia and travelling in the van) or new claims (involvement in Liberation Tigers of Tamil Eelam (LTTE) Remembrance Day events in Sri Lanka and the army obtaining Remembrance Day materials when they searched his house). At the SHEV interview he was, among other things, asked about his involvement with the LTTE, his traveling in the van, including the interviewer's concerns as to how anyone in Batticaloa would know or care that the applicant was seen in the van in Colombo, and his activities since he came to Australia. The interviewer explained to the applicant the importance of providing the Department with full claims as early as possible and that if he doesn't provide all his protection claims and other relevant information he has, and the application is refused, he may not have another opportunity to forward his claims. Near the end of his interview, the interviewer confirmed with the applicant that he had provided all his protection claims, asked him if there was anything further he wished to add and said if he provides further information to the Department it may be considered prior to the decision being made. The applicant's representative provided further submissions and information to the Department post the interview and prior to the delegate's decision. I am not satisfied that there are exceptional circumstances to justify considering the new information.’
The Applicant’s written submissions filed prior to the hearing relied on principles enunciated by BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (‘BVZ16’) and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (‘BBS16’). At the hearing, the Applicant accepted that the law had developed in this area and accepted that the matter was governed by the principles set out by Justice Thawley in CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 (‘CMY17’) at [26]. Given the application of those principles was central to the matters in issue before me, I set them out below:
‘26. The following principles emerge:
(1) The requirements of s 473DD(a) and (b) are cumulative. The Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii) or both: CQW17 at [36]; AQU17 at [13].
(2) The words “exceptional circumstances” are not defined and are to be given their ordinary meaning; circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: AQU17 at [13].
(3) What will amount to “exceptional circumstances” is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant’s case: Plaintiff M174 at [30]; AQU17 at [14]. There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor itself may be sufficient for “exceptional circumstances” to exist: AQU17 at [13].
(4) The Authority’s satisfaction that there are exceptional circumstances (subparagraph (a)) to justify considering the new information extend beyond, but might be contributed to by, the Authority’s satisfaction that the new information:
(a) could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or
(b) is credible personal information which had not previously been known (subparagraph (b)(ii)): CQW17 at [48]-[49].
(5) Whilst it always depends on the particular facts, a failure by the Authority to turn its mind to the matters in subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are “exceptional circumstances” for the purposes of paragraph (a) may constitute jurisdictional error: CQW17 at [51]-[53]. However, it is a misconception that the matters in (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist under (a): AQU17 at [14]. Nor is there a requirement to make an express finding under (b)(i) or (ii) for the purpose of considering whether “exceptional circumstances” exist under (a): AQU17 at [16].
(6) It is possible that the Authority’s consideration of the existence of exceptional circumstances under paragraph (a) is relevant to its satisfaction as to the matters in paragraph (b), however it would be necessary to identify:
(a) the circumstances contended to be exceptional; and
(b) how consideration of such asserted exceptional circumstances might have informed the Authority’s consideration of the matters in (b): CQW17 at [71]-[72].’
At the outset of the hearing, the Applicant acknowledged that the compass of the dispute between the parties was a narrow one. The Applicant’s contentions are set out in his written submissions. In summary, it is the Applicant’s contention that the Authority failed to consider new information that it ought to have considered because, among other things, the Applicant identified that information as being credible personal information. The Applicant also contended that the Authority wrongly focused, in considering whether exceptional circumstances existed, on the question of whether the information could have been given to the Minister previously. It was the Applicant’s submission that the case authorities required the Authority to consider all information cumulatively, and particularly where the Applicant had, in substance, invited consideration on a particular ground (in this case, the ground being that the new information was both ‘credible’ and ‘personal’).
Consideration of these matters needs to begin with the text of section 473DD of the Act. The language of the section makes it plain that in order to be able to consider new information, the Authority must be satisfied of the matters set out in subparagraphs (a) and (b) of the section. In that sense, the requirements set out in subparagraphs (a) and (b) are cumulative. An applicant seeking to submit new information must satisfy the Authority of the matters set out in subparagraph (a) and subparagraph (b) (either subparagraph (b)(i) or subparagraph (b)(ii)).
The next matter to observe is that the legislative scheme contemplates that the Authority is principally required to conduct its review on the papers only: PlaintiffM174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (‘Plaintiff M174’) at [22]. To alter that position, an applicant must show that there is something beyond that which is ‘regularly, or routinely, or normally encountered’: Plaintiff M174 at [30].
The Applicant submitted, having regard to the text of section 473DD of the Act and the principles summarised by Thawley J, that the requirement that there be a cumulative assessment of all relevant matters meant that the Authority was required to consider and respond to information identified and labelled by the Applicant as being credible personal information for the purposes of section 473DD(b)(ii). That submission, however, must fail for the following reasons.
First, it is not consistent with the text of section 473DD of the Act. The requirements in the section operate cumulatively. The failure to satisfy either limb of section 473DD will mean that the new information cannot be considered. It matters not if an Applicant labels one piece of the information as credible and personal. The application to submit new information will still fail if the other requirements of section 473DD are not met.
Second, the proposition advanced is not consistent with principle five summarised by Thawley J in paragraph [26] of the decision in CMY17, which is in turn drawn from the decision of the Full Court of the Federal Court of Australia in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111.
There is then the Applicant’s contention that the Authority failed to consider the issue of exceptional circumstances and focused only on the question of whether the information could have been given to the Minister previously.
Consideration of the above begins with an examination of the information sought to be admitted. That new information is contained in a submission from the Applicant’s representatives which commences at Court Book 351. It also encompasses information set out in a statutory declaration made by the Applicant and contained at Court Book 360. The Authority summarised the ‘new information’ at paragraph [4] of the Decision in the following terms:
‘The further information consists of photos of a dolphin van and the applicant at an event in 2013 in Brisbane and a statutory declaration from the applicant dated 10 November 2016, together with an attached letter dated 7 November 2016 from the president of the Tamil Refugee Council. The photos, statutory declaration and letter were not before the delegate and are new information.’
The Authority expressed the view in paragraph [6] of its Decision that the new information was either further particulars of matters already raised by the Applicant, or new claims.
Of significance in this matter, the Applicant advanced the same set of reasons as to why there existed exceptional circumstances for admitting all of the claimed ‘new information’. Those reasons are relevantly set out in paragraph [5] of the Applicant’s Statutory Declaration. The reasons are as follows:
‘5. To the extent that the above constitutes new information, there are exceptional circumstances for taking account of it because:
a. a failure to do so may result in the Delegate's Decision being affirmed, notwithstanding that I am at risk of relevant harm on return to Sri Lanka and that Australia owed protection obligations in respect of me;
b. I was not aware of the extent of the Delegate's concerns regarding my claims, with not all concerns having been put to me for comment at the time the Delegate interviewed me.’ (emphasis in original)
When the reasons expressed at paragraph [5] of the Statutory Declaration are contrasted with paragraph [6] of the Decision, it can immediately be seen that what the Authority endeavoured to do in its Decision was to address directly the exceptional circumstances advanced by the Applicant. In stating at paragraph [6] that ‘most, if not all, new information from applicants would be supplied to the IAA because applicants wish to avoid the IAA affirming the delegate’s decision and consider themselves at risk of harm and [are] to be owed protection by Australia’, the Authority was directing its attention to the reason given by the Applicant at paragraph [5(a)] of the Statutory declaration. Further, the part of paragraph [6] of the Decision of the Authority that begins with ‘At the SHEV interview’ and ends with ‘I am not satisfied that there are exceptional circumstances to justify considering the new information’ directly deal with the Applicant’s contention at paragraph [5(b)] of the Statutory Declaration. The fact that the Authority dealt directly with each of the grounds said by the Applicant to be ‘exceptional circumstances’ means that, in my view, any submission by the Applicant that the Authority did not consider his reasons as to why exceptional circumstances existed fails.
Part of the submission advanced by the Applicant was that the Authority had not considered all of the new information provided, or had unduly focused on the timing of matters – whether the information could have been given to Minister earlier. I do not accept that submission. I find that the new information was properly considered. For example, in reaching its conclusion in paragraph [6] of the Decision that exceptional circumstances did not exist, the Authority in paragraph [6] considered ‘the applicant’s activities in Australia’ (raised by the Applicant in paragraphs [17] – [21] of the Statutory Declaration at CB 361-2), the Applicant ‘travelling in a van’ (raised at paragraphs [11] – [16] of the Applicant’s Statutory Declaration at CB 361), the Applicant’s ‘involvement in the Liberation Tigers of Tamil Eelam Remembrance Day events’ (raised by the Applicant in paragraphs [1] – [10] of the Statutory Declaration at CB 360-361), and the ‘army obtaining Remembrance Day materials when they searched [the applicants] house’ (raised at paragraphs [8] – [10] of the Applicant’s Statutory Declaration at CB 360-1).
The Applicant next took issue with the failure of the Authority, in paragraph [6] of the Decision, to expressly mention new information, being that he provided assistance to victims of war crimes in Sri Lanka. I am satisfied this information, although not expressly mentioned, was taken into account. First of all, it is clear from the paragraph above that the Authority engaged closely with the content of the Statutory Declaration. Secondly, the Authority in the Decision repeatedly referred to the ‘new information’ provided in the Statutory Declaration. In fact, the Authority makes reference to the Applicant’s Statutory Declaration no less than five times in paragraphs [4] and [5] of the Decision. I am therefore satisfied that the Authority had regard to all of the matters in the Statutory Declaration in arriving at its decision.
In addition to any particular consideration of the Applicant’s claims, a review of the Decision at paragraph [6] discloses the Authority took into account a number of other matters in reaching its conclusion. Those matters, that it was entitled to take account of, are that:
a)the new information predated not only the delegate’s decision but also the SHEV interview, with the result that it could have been put on at any stage of the application process;
b)the Applicant had been expressly asked by the delegate about the substance of his claim involving his trips in the van and his activities in Australia, both of which were the subject of the claimed ‘new information’;
c)the Applicant had been told of the importance of providing full claims at the initial stage of the process and had been expressly offered the opportunity to provide additional information; and
d)the Applicant was represented and the representative had provided further information.
Finally, regard should be had to the decision of Justice Farrell in AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053. In that decision, Farrell J set out some matters that might lead the Authority not to consider subparagraph (b)(ii) of section 473DD. Relevantly:
a)if the new claims are ‘bare assertions’. In the present matter, substantial parts of the asserted new information consisted of not much more than bare assertions. For example, the claim that the Applicant had assisted victims of war crimes;
b)if the factual basis of the new material predated the appellant’s departure. This situation covers some of the material in the present matter;
c)where no explanation was offered as to why the new material could not have been put before the Delegate. This situation covers the present matter. No explanation was offered why the asserted new information was not given earlier; and
d)the submissions were made by a lawyer. This again is applicable to this case, where the Applicant had retained experienced representatives throughout the visa application process – see the submissions that commence at Court Book 351.
For all of the above reasons, I find that the Authority has not made an error and that the single ground of review is not made out. For those reasons, the Application must be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 6 February 2020
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
0
6
0