EDQ17 v Minister for Immigration

[2019] FCCA 3654

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDQ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3654

Catchwords:
MIGRATION – Application for judicial review – Immigration Assessment Authority decision – real risk of serious harm – failed asylum seeker – departed homeland unlawfully – jurisdictional error – legally unreasonable – consideration of new information – three limb test – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DD

Cases cited:

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
VEAL v Minister for Immigration and Multicultural Affairs[2005] HCA 72; (2005) 225 CLR 88
BDY18 & Ors v Minister for Immigration and Border Protection & Anor (WAD107/2019)
Minister for Immigration and Citizenship v Li [2013] HCA 18
ALJ18 v Minister for Immigration & Anor [2018] FCCA 3835
DLB17 v Minister for Home Affairs [2018] FCAFC 230
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Applicant: EDQ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1999 of 2017

Judgment of: Judge Riethmuller

Hearing date: 30 July 2019

Date of Last Submission: 2 August 2019

Delivered at: Melbourne

Delivered on: 13 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the First Respondent: Mr Maloney

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1999 of 2017

EDQ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a Tamil from Sri Lanka who arrived in Australia by boat on 12 October 2012.

2. On 20 February 2016 the applicant applied for a temporary protection visa on the basis of fearing harm from Sri Lankan authorities as a result of being a Tamil who had worked as a driver for the Liberation Tigers of Tamil Eelam (‘LTTE’) during the civil war.

3. A delegate of the Minister refused to grant the applicant a visa on

   
   

   15 February 2017, finding that the applicant did not have a profile that indicated he would face a real risk of serious harm in Sri Lanka. That decision was affirmed by the Immigration Assessment Authority (‘IAA’) on 31 August 2017. The applicant seeks judicial review of the IAA’s decision.

The Applicant’s Claims

1. The thrust of the applicant’s case was based upon the claim that he worked as a driver for the LTTE between 2005 and 2009 and was paid monthly (what was described in the Court Book as a ‘salary position’) for transporting goods, personnel and weapons.

2. The applicant explained that he was displaced a number of times during the war and that his in-laws were killed during an attack in 2009 as a result of shelling. The applicant also said that during the war he sustained a shrapnel wound. He said that he was questioned by authorities and at one point placed in a displaced persons camp where he remained with his family until April 2011. The applicant says the family was resettled on land owned by his wife’s family thereafter. The applicant explained he had been questioned by the Criminal Investigation Department (‘CID’) and believed that local people had informed on him as a result of his previous work for the LTTE.  The applicant said that the CID had visited him three times per week in the lead up to his leaving Sri Lanka and that he had been taken to their office for questioning on at least one occasion and verbally abused by CID officers: see [15]–[17] of IAA decision.

3. The applicant further gave an account that two local Tamil farmers had been kidnapped in a white van in 2012 which gave rise to him being concerned for his safety and his decision to leave in October 2012. After his departure, the applicant reports that his wife received visits from CID officers at her work, from which she eventually resigned, but that the CID nevertheless continued to visit her at the family home and would come with a photo of the applicant: see [18]–[19] of IAA decision.

4. The applicant sought protection on the grounds of his fear of harm on the basis of his Tamil ethnicity and as a failed asylum seeker who departed Sri Lanka unlawfully.

The Delegate’s Findings

1. In the hearing before the delegate, the delegate did not accept the applicant’s claims. The delegate’s findings in this regard were as follows [Part 5 of the decision: CB pp.154–156]:

   The applicant was receiving a salary of 14,000 rupees per month for his driving duties. In his arrival interview the applicant stated that he was driving a tractor, mainly transporting food and sometimes civilians. The applicant stated that because he was working for a salary he was not required and did not do any training with the LTTE.

   …

   The applicant’s story varies slightly and I acknowledge that his claim of not being required to do any form o[f] military training with the LTTE does not correlate with country information.

   …

   Based on the country information above, I find it difficult to accept that the applicant was employed by the LTTE for several years and did not undergo any form of military training. I find it more likely that the applicant was forced to provide a low level material support to the LTTE, possibly in the form of transport at one time or another.

   Furthermore I have not been able to locate any country information that supports the applicant’s claims that he was merely employed by the LTTE therefore did not have a requirement to undergo any form of military training.

   I do not accept that the applicant was employed by the LTTE and did not undergo any military training. However I do accept that the applicant provided transport from time to time to the LTTE as required.

Proceedings before the IAA

1. When the matter was referred to the IAA, the applicant sought to put new information before the IAA which addressed some of the difficulties he confronted in the decision of the delegate. 

2. The important passages from the applicant’s material are set out (at CB pp.179–179) in the following terms:

   3. Working for the LTTE - The Delegate stated that he does not accept that I worked for the Liberation Tamil Tigers of Eelam (LTTE) and did not undergo any military training. I did not tell the correct information to the Delegate. I feared I would be detained if I reveal I took the LTTE self-defence training in 2005. I was told by friends that anyone with LTTE association would be put in detention in Australia. Therefore. I did not talk about it out of fear.

   4. Close relative of a former LTTE cadre - My younger sister [name omitted] was a LTTE cadre from 1998 - 2009. Her LTTE name was [P]. Due to her association, I was not forced to join the LTTE. As I have previously stated, I worked for the LTTE between the years 2005 - April 2009. I will submit evidence of her membership as soon as I get them from my family from Sri Lanka.

3. The IAA considered whether or not the new information should be accepted by them in accordance with section 473DD of the Migration Act 1958 (Cth) (‘the Act’). That section provides for the following relevant test:

   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, 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.

4. In the decision by the IAA, the IAA said:

   7. At his TPV interview the delegate advised the applicant of the importance of putting his claims forward and cautioned that he may not have a further opportunity to do so. The delegate gave him an opportunity to correct any information in his application and to provide any further information and advised the applicant that the IAA can only accept new information in exceptional circumstances.

   8. In relation to the matter in paragraph a) I note the delegate asked the applicant specific questions at his TPV interview about involvement with the LTTE and any training with the LTTE. The applicant stated that he had not undertaken any training with the LTTE and he did not advance the claim at paragraph b) that his sister was an LTTE fighter. The applicant states that he was previously fearful of divulging this information because he was concerned he could be detained in Australia. I am not persuaded by this explanation. The applicant advanced claims to have worked in a salaried position for the LTTE for four years, including claims that he transported weapons and fighters. Noting that he was willing to divulge this claimed LTTE involvement I am not satisfied that his stated concern of detention in Australia explains his failure to put forward the claims relating to training and his sister to the Minister. Furthermore, I find the late advance of these claims casts doubt on their credibility.

   …

   10. The applicant has not satisfied me that the new information, documents and claims could not have been provided to the Minister, or that it is credible personal information that was not known and had it been known may have affected the consideration of the applicant's claims. Furthermore, having regard to the entirety of the circumstances, I am not satisfied that there are exceptional circumstances to justify consideration of the new information, documents and claims.

   …

   12. In his submission the applicant advised he was willing to provide any further information requested by the IAA. The IAA is a limited form of review and can only consider new information in exceptional circumstances. The applicant was given an opportunity to discuss his fears on return to Sri Lanka at his TPV interview. I am not satisfied that any circumstances exist that warrant the IAA getting new information.

Grounds of Review

1. The applicant relies upon a number of different grounds for judicial review as set out in his Further Amended Application filed on 5 July 2019, which are as follows:

   1. The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.

   PARTICULARS

   (a) The Authority did not consider all the material and information in the Applicant's submission dated and received by the Authority on 14 March 2017 including the claims and the supporting information that:

   (i) the Applicant undertook self-defence training with the LTTE in 2005. (CB 178, [3]; CB 179, [8]; CB 188-189, IAA Decision and Reasons [6], [88], [10])

   (ii) the Applicant's sister was a LTTE cadre from 1998 -2009. (CB 178, [4]; CB 179, [8]; CB 181-182; CB 188-189, IAA Decision and Reasons [6], [88], [10]).

   2. The Authority fell into jurisdictional error in that it did not give procedural fairness to the Applicant.

   PARTICULARS

   (a)    The Applicant refers to and repeats the Particulars to Ground l of this application.

   (b)    The Authority did not seek to get new information from the Applicant whether at interview or otherwise about the claims and the supporting information that:

   (i) the Applicant undertook self-defence training with the LTTE in 2005. (CB 178, [3]; CB 179, [8]; CB 188-189, IAA Decisions and Reasons [6], [88], [10])

   (ii)the Applicant’s sister was a LTTE cadre from 1998 – 2009. (CB 178, [4]; CB 179 [8]; CB 181-182; CB 188-189, IAA Decision and Reasons [6], [88], [10])

   3. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.

   PARTICULARS

   (a) The Authority ended in interpreting or applying section 473DD of the Migration Act 1958 when it did not consider all the material and information in the Applicant's submission dated and received by the Authority on 14 March 2017 including the claims and the supporting information referred to in the particulars to Ground 1 of this application.

   (b) The Authority erred in interpreting or applying section 473DC of the Migration Act 1958 when it did not seek to get new information from the Applicant whether at interview or otherwise about the claims and the supporting information that:

   (i) the Applicant undertook self-defence training with the LTTE in 2005. (CB 178, [3]; CB 181-182; CB 188-189, IAA Decision and Reasons [6], [88], [10])

   (ii) the Applicant’s sister was a LTTE cadre from 1998 – 2009. (CB 178, [4]; CB 179 [8]; CB 181-182; CB 188-189, IAA Decision and Reasons [6], [88], [10])

   4. The Authority fell into jurisdictional error in that it was unreasonable.

   PARTICULARS

   (a) The Applicant refers to and repeats the Particulars to the other Grounds herein.

Grounds 3 and 4

1. Whilst there are four grounds set out, the substantive ground pursued by the applicant was ground 3 which alleges that the IAA fell into jurisdictional error in failing to consider the new information that the applicant had provided. Ground 4 is related to this issue as it alleges that even if the IAA correctly applied section 473DD of the Act, its exercise of its discretion was legally unreasonable. It is convenient to deal with these grounds together.

2. Section 473DD requires that the IAA be satisfied of three things before accepting new information:

   a)That the information is ‘relevant’: see section 473DC;

   b)That there are ‘exceptional circumstances’: see section 473DD(a); and

   c)That either of the limbs of section 473DD(b) is satisfied.

3. It is only if each of these three limbs of the section are satisfied, that the new information can be considered by the IAA. 

4. The argument with respect to grounds 3 and 4 commences with a consideration of the third limb, provided for in section 473DD(b)(ii). The relevant test that must be applied when considering whether or not information is ‘credible’ is that set out by Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] to [42] where his Honour says:

   41. … all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s.473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

   42. The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

5. In the passage referred to in VEAL’s Case the High Court said (with respect to a similar legislative use of the word):

   18.    It follows that what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.

6. Counsel for the Minister indicated that the decision in CSR16 may be the subject of some reconsideration as a result of a notice of contention that the Minister filed in a presently pending appeal (see BDY18 & Ors v Minister for Immigration and Border Protection & Anor (WAD107/2019)).  However, there is no judgment in that case as yet. For present purposes it appears to me, that the test as set out in CSR16 is clearly articulated and binding upon this court. I therefore proceed to apply that test in the present proceedings. 

7. The test for considering whether or not the determination under section 473DD(b)(ii) was unreasonable is based upon the general principles of reasonableness in administrative decision-making, as discussed by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18, where the court said:

   68. Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury - [[1947] EWCA Civ 1; [1948] 1 KB 223 at 230] has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it [See Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation[1990] FCA 139; (1990) 96 ALR 153 at 166 per Gummow J, referring to Allars, Introduction to Australian Administrative Law, (1990) at 187 [5.52]]. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The Kinghttps:// - [(1936) 55 CLR 499; [1936] HCA 40.], before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation [[1949] HCA 26; (1949) 78 CLR 353 at 360; [1949] HCA 26.], which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area [Wright v Wright [1948] HCA 33; (1948) 77 CLR 191 at 210; [1948] HCA 33; Commissioner of Stamp Duties (NSW) v Pearse [1953] UKPCHCA 2; (1953) 89 CLR 51 at 63-64; [1954] AC 91 at 112.].

1. In this case it is difficult to see how the IAA could reach the conclusion that the relevant information was so lacking in credibility that it could not be accepted. The new information certainly had significant weaknesses, given the circumstances in which it was given and the failure of the applicant to give the new information in a timely fashion. If the test for credibility required a level of credibility necessary for the information to be accepted on the balance of probabilities, then clearly the determination by the IAA in this regard would be open. That is because logically it would be open to a decision-maker to conclude that the failure to divulge such information (in light of the interactions of this applicant with the delegate as recounted in the delegate decision), would so weaken the evidence that it could be rejected. However, the relevant test is whether it is capable of being accepted on the balance of probabilities.

2. It could not be said that the evidence (although particularly weak) was such that it was not ‘credible’ in the limited sense that the word is used in the provision (as discussed in CSR16): the evidence was the direct evidence of the applicant which provided an explanation for the failure to provide the evidence in the past. 

3. In coming to this decision I note the determination of ALJ18 v Minister for Immigration & Anor [2018] FCCA 3835 with respect to a similar challenge. However, in that case the trial judge was pressed only with arguments about the reasoning process, not with arguments about whether or not the outcome was legally unreasonable. In these circumstances, I am not persuaded that the decision in ALJ18 has particular relevance to the determination in this matter with respect to section 473DD(b)(ii).

4. I am persuaded that in this regard the IAA either applied the wrong test (which appears more likely as the judgment in CSR16 was delivered well after the IAA’s decision in this case), or alternatively the IAA acted unreasonably when applying the test to the facts of this case.

5. As a result, the applicant has made out the claim that the IAA committed a judicially reviewable error with respect to the application of section 473DD(1)(b)(i).

6. The question that then arises is whether this could have affected the outcome in the proceedings in any event as it is clear from the findings in paragraph 10 of the IAA reasons that the IAA was not satisfied that ‘exceptional circumstances’ (section 473DD(a)) had been made out.

7. Notably, the very low threshold the legislature has chosen to provide in subsection 473DD(b)(i) does not foreclose more general considerations of the reliability of the evidence under subsection (a).  As the Full Court said in DLB17 v Minister for Home Affairs [2018] FCAFC 230:

   22. In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of
   s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.

8. As discussed above the finding at paragraph 8 of the IAA’s decision in this case, (where it is noted that the circumstances cast doubt on the credibility of the information) is a more general assessment of the weight of the evidence, rather than using the limited test for whether it was ‘credible’ in the relevant sense.

9. In this case it is not suggested that the IAA approached the decision-making process with respect to section 473DD(a) inappropriately, nor that they failed to consider relevant material. The matters relevant to section 473DD(b)(ii) will commonly be relevant to the determination of section 473DD(a). It is clear that the considerations as to the weight of the evidence are relevant in determining whether or not there are exceptional circumstances, as was recounted in ALJ18 (at [40]) where the trial judge said:

   40. The Court is satisfied that the applicant’s failure to raise the New Claims at any earlier stage, given that those matters were known to him, was relevant to the IAA deciding whether exceptional circumstances existed in this matter. The Court accepts that the IAA took into account all of the circumstances (see [4]-[8] of its reasons) and finds that the IAA’s finding that ss473DD(a) of the Act was not met was open to it in the particular factual circumstances of this case.

10. In this case when considering the reasons of the IAA, it appears that the IAA adopted a test as to credibility that had regard to whether or not the material was likely to be accepted by or be persuasive to the IAA, rather than the test required by Bromberg J in CSR16.

11. In this case the decision-maker had regard to the nature of the actual evidence, its relevance to the determination to be made, and the circumstances in which it was sought to be provided (having also noted the circumstances that cast doubt upon the credibility of that new evidence).  It is difficult to see that in all of the circumstances of the case it was legally unreasonable for the IAA to have concluded that there were not ‘exceptional circumstances’ that would justify the receipt of this new information. 

12. In the circumstances, I am not persuaded that the decision-maker made an error of law in their application of section 473DD(a).

13. Further, it appears that it was within the bounds of the discretion of the IAA member to determine that exceptional circumstances were not established in this particular case.

14. In these circumstances, the IAA could not accept the further additional information, even if it had been satisfied that section 473DD(b)(ii) was fulfilled. The error with respect to section 473DD(b)(ii) could not have made a difference to the outcome.

15. Thus, I find that ground 3 is not established in this regard.

16. It was also argued that in light of the nature of this information, the IAA acted unreasonably in not exercising power under section 473DC to seek to ‘get’ new information relating to these issues, once the IAA had become aware of the information that the applicant sought to place before it.

17. I am not persuaded that there is an obligation upon the IAA to seek out information of this type in these particular circumstances. The obligation upon a decision-maker to undertake a review, and generally not to enquire or seek out information save in very limited circumstances: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]

18. The applicant had put his information to the IAA.  There was nothing else the IAA would expect to obtain beyond what the applicant put.  This is not a case that concerns an obvious fact that could easily be ascertained: see SZIAI at [26]. I am not persuaded that the circumstances of this case gave rise to any obligation on the part of the IAA to make enquiries.

19. Thus, this ground is made out.

Grounds 1 and 2

1. Turning then to ground 1, I find that as the information was not able to be placed before the IAA as a result of the operation of sections 473DC and 473DD, it cannot be argued that the IAA failed to consider the relevant information as an integer or material question of fact in the determination that the IAA made. Therefore, ground 1 must also be refused.

2. Similarly, with respect to ground 2, it cannot be argued that the IAA was in error in failing to receive the information, and thereby failing to give procedural fairness to the applicant in circumstances where the general rules of procedural fairness are replaced by the statutory scheme. The statutory scheme significantly restricts the information that can be placed before the IAA. In circumstances where the information was not able to be placed before the IAA as a result of the statutory provisions of sections 473DC and 473DD, this ground must therefore fail.

Conclusion

1. In the circumstances I am not persuaded that the applicant has established a ground for judicial review that justifies setting aside the decision and remitting it for redetermination by the IAA.

2. I therefore dismiss the application.

Costs

1. Costs ordinarily follow the event. Accordingly, I order the applicant to pay costs in the scale amount. Should either party seek to vary the costs order, they make such application within 14 days.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associates:  

Date:  13 December 2019