EEM17 v Minister for Home Affairs
[2019] FCCA 3396
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EEM17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3396 |
| Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – whether the IAA properly considered claims – whether the IAA was required to give the applicant an opportunity to comment on claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 473CB, 473DB, 473DC, 473DD, 473DE, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 DGZ16 v Minister for Immigration & Border Protection (2018) 258 FCR 551 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 |
| Applicant: | EEM17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 668 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 20 November 2019 |
| Date of Last Submission: | 20 November 2019 |
| Delivered at: | Perth |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr M Sunits |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 668 of 2018
| EEM17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 14 December 2018 the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 4 December 2018.
The IAA’s decision affirmed a decision of the delegate of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court the applicant must show that the IAA has made a jurisdictional error.
The Court had before it the applicant’s application for judicial review, a Court Book numbering 353 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 6 November 2019.
At the hearing on 20 November 2019 the applicant had a copy of the Court Book (“CB”) and the Minister’s written submissions. He appeared without legal representation but with the assistance of an interpreter.
Background
The Minister’s written submissions (at [3]-[9]) accurately summarise the factual background to this matter. The Court adopts that summary as its own. With some minor additions it provides as follows.
The applicant is a Sri Lankan national of Tamil ethnicity who arrived at Cocos Keeling Island by boat on 17 September 2012 (CB 3).
On 19 May 2016, the Minister lifted the bar under s.46A of the Act. The applicant then applied for the visa (CB 21-68). The applicant’s protection claims (as they had emerged over the course of the visa application process) can be summarised as follows:
a)the applicant is a Tamil and is from a former-Liberation Tigers of Tamil Eelam (“LTTE”) controlled area;
b)the applicant’s father was detained in India between 2007 – 2010 as it was believed that his father was assisting the LTTE to buy boats;
c)the applicant was harassed, questioned and detained by the authorities because of his father and his suspected LTTE links;
d)the applicant’s property was destroyed by members of a Muslim gang because he was Christian;
e)the applicant was involved with the Australian Tamil Congress (“ATC”); and
f)the applicant is an illegal departee/returnee to Sri Lanka.
The visa was refused by a delegate of the Minister on 24 July 2017 and the matter was referred to the IAA on 28 July 2017 (CB 183-198).
On 23 August 2017, the IAA affirmed the delegate’s decision (CB 256-271) (the “first IAA’s decision”).
The applicant unsuccessfully sought judicial review of the first IAA’s decision in this Court: EEM17 v Minister for Immigration & Border Protection [2018] FCCA 337.
On appeal to the Full Court of the Federal Court, it was found that the IAA had fallen into jurisdictional error. The matter was remitted to the IAA for re-consideration: EEM17 v Minister for Immigration & Border Protection [2018] FCAFC 180.
On 2 November 2019, the applicant was advised that the matter had been remitted for reconsideration (CB 289).
On 16 November 2019, the applicant was provided particulars of information and invited to attend an interview to provide comments on that information (CB 293-294). The applicant attended the interview on 23 November 2018 with his representative and with the assistance of a Tamil interpreter.
On 30 November 2018 (following the interview), the applicant’s representative provided a 5 page submission to the IAA (CB 297-301).
On 3 December 2018, the applicant’s representative provided “new information” to the IAA in the form of a supporting statutory declaration from the President of the Western Australian Chapter of the Australian Tamil Congress, along with a submission addressing the factors outlined in s.473DD of the Act and explaining why the information should be considered (CB 304-320).
On 4 December 2018, the IAA affirmed the delegate’s decision (CB 323-347).
IAA’s Decision
The IAA’s decision is lengthy. It is 23 pages long and spans 118 paragraphs. Four pages extract the relevant legislative provisions in full. The IAA summarises those provisions within its decision at [33]-[34] (in relation to the refugee criterion) and [108]-[109] (in relation to complementary protection criterion).
The Minister’s submissions (at [13]-[25]) accurately summarise the IAA’s decision. The Court adopts those submissions as its own with some alterations, as follows.
In relation to the materials that were before the IAA, the IAA:
a)had regard to the materials provided by the Secretary pursuant to s.473CB of the Act (CB 326 at [5]);
b)considered there were exceptional circumstances for obtaining new country information, being the Department of Foreign Affairs and Trade (“DFAT”) report and the UK Home Office reports (CB 326 at [6]-[7]);
c)considered the 24 July 2017 post-interview submission which was provided after the delegate’s decision and prior to the first IAA decision, which contained new information about the applicant’s ATC involvement (CB 326-327 at [8]-[10]). The IAA:
i)found that the new information about the applicant’s involvement in the ATC, a photograph he provided and country information in support of that claim, on its face, was credible personal information which may have affected the consideration of the applicant’s claims (CB 327 at [11]-[12]). These materials were thus considered
ii)declined to consider an IAA decision annexed to the 24 July 2017 submission as it was not directly relevant to the applicant (CB 327 at [13]-[14]); and
iii)considered new country information which predated the delegate’s decision (CB 327-328 at [15]-[16]);
d)considered the new information provided orally at the IAA interview (CB 328 at [17]-[24]) but declined to take evidence from an ATC leader as requested; and
e)considered the submissions and new information (including the statutory declaration by an ATC member and photographs) provided by the applicant’s representative on 30 November 2018 and 3 December 2018 (CB 329-330 at [26]-[31]).
The IAA then set out the applicant’s claims (CB 330 at [32]).
The IAA found that the applicant’s account about his father’s arrest and imprisonment and the subsequent monitoring of the applicant by the LTTE was inconsistent and lacked details (CB 331 at [35]-[38]). The IAA found that the Madras High Court document submitted in support of this claim was problematic. The IAA noted that there were many anomalies within the document and that it was “poorly written”. The IAA found that the document was fraudulent and placed no weight on it (CB 332 at [39]-[44]).
The IAA placed no weight on a media article which purportedly corroborated the applicant’s claims about his father as it did not name or refer to the applicant’s father and was “oddly written” (CB 332 at [45]-[46]).
It was noted that the other media articles the applicant provided concerning the arrest of LTTE activists in Chennai in December 2007 also did not refer to the applicant’s father (CB 333 at [47]). The IAA also placed no weight on other translated police documents as they were vague, contained anomalies and country information suggested that there was a prevalence of fraudulent documents in Sri Lanka (CB 333 at [48]). The IAA also placed no weight on the documents that were not translated (CB 333 at [49]).
At [50], the IAA found:
Given the applicant’s general vague account and his changing account about his father’s detention and whether the case was ongoing and the fraudulent documentation, I do not accept the applicant’s father was arrested, charged, jailed or on bail for assisting the LTTE or of adverse interest to any authorities in India or Sri Lanka.
The IAA rejected the applicant’s claim that he was harassed or questioned or detained by authorities about his father and that the authorities suspected him of LTTE involvement. The IAA did not accept the claims about the applicant’s father and, further, noted that the applicant’s account of the incidents was vague and lacked detail (CB 333 at [52]-[53]).
At [54], the IAA stated:
Late in his protection interview the applicant claimed authorities took his ID in Mannar in 2010 so he could not leave after that. However, the applicant had not claimed this in his written statement. Further, earlier in his interview he claimed he had travelled to Jaffna, but if the authorities found out they would take his brother and he would have to return. The applicant had not claimed his brother was taken in his statement. I consider the applicant was adding to his account as he went along. Further, I consider the applicant’s claims he was not allowed to travel outside Mannar as they took his ID is at odds with his earlier claims that when he left Mannar to Jaffna they took his brother. I consider the applicant was making up his account as he went along.
In circumstances where the applicant had resided in an LTTE controlled area, the IAA accepted that he may have been harassed. The IAA did not, however, accept that he was detained and harmed or that the applicant was suspected of being linked to the LTTE or of adverse interest to authorities or that he would suffer harm for the reason of being from a former LTTE controlled area (CB 333-334 at [55]-[57] and CB 336 at [73]).
At [58], the IAA stated:
I note the applicant’s explanation in his statement that there may be inconsistencies in interviews or with years due to interpretation, limited time, or resources. In his statement the applicant said the officer at interview misinterpreted that his father had died in 2002 when he told them he had been arrested. I have not placed any weight on minor inconsistencies and I have considered the applicant’s claims about his father’s arrest above. Further, having listened to the protection interview, I do not accept there were any interpretation issues and the applicant did not raise any such issues. Further, the interview was lengthy and the interview sought clarification where required and I am satisfied the applicant was given a meaningful opportunity to provide information. Further, it was evident at the IAA interview that he had no difficulty expressing himself and understanding proceedings. The applicant is also educated and has some English, having attended English classes and lived in Australia since 2012. Further, he has had legal assistance. Rather, I consider the applicant’s changing account about his father’s circumstances and his vague account is because the applicant was not recounting lived experience or true events. Further, I consider the court and media documents (as discussed above) were not genuine.
The IAA concluded, having regard to the written and oral evidence, that the applicant was not a credible witness and had fabricated his claims in their entirety (other than in relation to general low level harassment during the conflict). The IAA did not accept that the applicant’s mother or father had any issues with the authorities or were suspected of LTTE involvement and did not accept that the applicant had any LTTE or anti-government profile or was or is of adverse interest to authorities (CB 334 at [59]).
In relation to the applicant’s claims about involvement with the ATC, the IAA accepted that the applicant was an active member in the ATC (CB 334 at [60]). The IAA also accepted that, as a Tamil, the applicant had an interest in the ATC activities and celebrations and did not engage in the conduct solely for the purpose of strengthening his claims to be a refugee (CB 335 at [62]).
In light of the country information and the applicant’s profile (including that the applicant did not claim to have received any threats of harm arising from his involvement with the ATC and he was only a “member”), the IAA did not accept that the applicant’s involvement with the ATC meant that he would be perceived as a separatist or anti-government, an LTTE fundraiser, a propaganda activist or as having links to the diaspora who provided funding/support to the LTTE or as being pro-LTTE (CB 335 at [65]). Further, the IAA did not accept that in the reasonably foreseeable future (noting the political climate in Sri Lanka) that the applicant’s ATC involvement would cause him to have an antigovernment separatist profile or be perceived to have a significant role in relation to post conflict Tamil separatism (CB 335 at [66]).
The IAA accepted that Tamils suffered disproportionately until the end of the civil war in 2009 and that there may be some continuing detentions and torture against some Tamils who are suspected of certain LTTE involvement or of being criminals since the end of the war (CB 336 at [68]). The IAA did not, however, accept that the applicant’s profile gave rise to any risk of arrest or detention upon return because of imputed LTTE links or otherwise (including if he was to attend remembrance or hero days) (CB 336 at [70]-[72]).
On the basis of country information, the IAA found that the situation had improved for Tamils from the North of Sri Lanka or former LTTE controlled areas such that there was not a real chance of harm (CB 336-337 at [73]). The IAA was similarly not satisfied that the applicant faced a real chance of suffering harm on account of his ethnicity or connection to his brother (who came to Australia by boat in 2012) or as a young Tamil male from Northern Province (or previously LTTE controlled) or because of his ATC involvement or because of the Tamil diaspora (CB 337 at [76]).
On the basis of its finding that the applicant did not have an adverse profile or was of interest to authorities, the IAA did not accept that the applicant faced a risk of harm from security forces, police, or anyone under the current government, nor that (in the wake of political uncertainty over the upcoming elections) the applicant faced a real chance of harm, as the IAA had not accepted that the applicant had an adverse profile or was of interest to authorities (CB 337 at [77]-[78]).
In relation to the claims arising from the applicant being Christian, the IAA was not satisfied that the applicant faced a real chance of harm from Muslim gangs (CB 337-338 at [80]-[85]). The IAA placed no weight on the documentary evidence provided in support of this claim and noted that the applicant had changed his account of the harm he faced. At [84], it was noted that that Christians in Sri Lanka face a low risk of official and societal discrimination.
The IAA was not satisfied that the applicant faced a real chance of harm as a failed asylum seeker or on the basis of his illegal departure (CB 338-340 at [88]-[105]). The IAA accepted that the applicant might face questioning on return and that he might have to pay a fine. However, the IAA determined that this would not amount to serious or significant harm. It was noted that the applicant might be subject to a short period of detention in prison conditions which were poor, but that a short period of detention would not amount to persecution and, further, that the Sri Lankan departure laws were laws of general application (CB 340 at [102]-[105]).
For similar reasons, the IAA concluded that the applicant was not owed complementary protection obligations (CB 341-343 at [110]-[118]).
Proceedings in this Court
The applicant’s judicial review application contains two grounds of review as follows:
1. The Assessor failed to property consider all of my claims
2. The assessor didn’t give me a chance to comment on one aspect of my claims
The applicant was afforded an opportunity by a Registrar of this Court (in orders dated 6 February 2019) to file an amended application, any affidavits and a written outline of submissions. No materials were filed by the applicant.
The matter was originally listed for hearing on 13 November 2019. On that day the applicant indicated that he had not received a copy of the Minister’s written submissions. He also seemed to indicate that he thought he would be represented by a lawyer.
No lawyer has ever appeared on the record for the applicant. Counsel for the Minister stated that he had exchanged correspondence with a law firm who had indicated that they were considering whether they would represent the applicant. However, that law firm confirmed they were not able to represent the applicant.
While no lawyer had ever appeared on the record for the applicant, and the written submissions were sent by email and express post to the nominated address the applicant provided the Court, it emerged that both of these addresses were outdated. The Court determined that it would adjourn the matter to 20 November 2019 to allow the applicant time to read the submissions, contact the law firm and prepare for his case.
The matter returned on 20 November 2019. The applicant, assisted by an interpreter, was again without legal representation.
The Court notes the remarks of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate in a protection visa hearing for an unrepresented applicant to be given an opportunity to explain orally the matters that he or she believes give rise to any grounds of review.
To assist the applicant, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant that this Court cannot undertake a “merits review” of the IAA’s decision and cannot grant him the visa he seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Against this background the Court asked the applicant to explain his grounds of review and outline what he believed the IAA “did wrong”.
Regrettably, the applicant’s oral submissions rose no higher than requesting an impermissible merits review of the IAA’s decision and disagreeing with the IAA’s decision. In effect, the applicant indicated that the IAA did not accept his claims and this was wrong. The applicant submitted that everything he submitted was genuine and he does not know what he can do to convince the IAA to accept that his fears are genuine.
Regrettably, the Court cannot reconsider the applicant’s evidence and claims. Rather, the Court is limited to determining if there is a material error in the IAA’s decision.
For the reasons that follow the Court finds that there is no error in the IAA’s decision.
Consideration
Ground 1
Without particulars, it is difficult for the Court to identify what claim the applicant says was not properly considered.
At hearing, when asked what he was referring to in this ground, the applicant referred to the claim concerning his father being unable to return to Sri Lanka and remaining in India.
The IAA considered this claim comprehensively at [35]-[52]. It cannot be said the IAA did not consider this claim and the evidence in support of it.
The Court has, in its duty to the applicant as a self-represented litigant, otherwise addressed this ground in two parts:
a)it has first reviewed the materials in the Court Book to assess whether any claim was overlooked by the IAA; and
b)it has then considered whether the IAA has given “proper, genuine and realistic” consideration to each of the applicant’s claims.
The applicant’s claims were summarised by the IAA at [32] as follows:
• He is a Christian male from Mannar, Northern Province, who completed his O levels and worked as a fisherman.
• His sister lives in France. One brother is in Sri Lanka and the other travelled to Australia by boat in August 2012.
• His father was a fisherman and arrested by Indian police in December 2007 when he went there to buy fishing nets. Police thought he had come to help the LTTE buy boats as he had a lot of money to buy fishing nets. He was released on 2 February 2010. The Indian media reported his father was linked to the LTTE and provided copies of the reports. The father’s release document was also provided. His father cannot come to Sri Lanka as he would be arrested by the Sri Lankan government due to the newspaper publications (even though they are not true).
• Since then the Sri Lankan CID, army, navy and police have all questioned the applicant. They questioned him two or three times a month, followed him and monitored him. They question him at home for around 1.5 hours or sometimes several hours at the police station. They pressured him to say his father is helping the LTTE.
• In July 2012 the applicant’s fisherman’s cottage and equipment (and others) was destroyed by members of a Muslim gang, because they were Christians. The applicant provided a copy of police report he made about the incident. However, the police did not do anything about it.
• After he left Sri Lanka, the police, army and navy have visited his mother and asked where he was. They still question his mother about him and the father, including two months prior to the SHEV application statement.
• The applicant fears abduction, harassment and murder by CID due to his Tamil ethnicity, and police suspicion of his father’s LTTE involvement and destruction of his property by Muslim gangs on the basis of his religion. The applicant has been intimidated, questioned, harassed and suffered damage to his property by his persecutors.
• At interview the applicant added that his father was on bail in India and he still had a case against him so he could not leave India. Between 2007 and 2012 Sri Lankan authorities consistently harassed the applicant and put pressure on him to try to get information about his father and get him to return to Sri Lanka. In 2010, the authorities took the applicant’s ID so he could not travel outside Mannar. If authorities visited him and he was not there or in Jaffna, they would take his brother until the applicant returned. The applicant had a problem with a Muslim gang as they claimed the applicant and his friends were fishing in their area.
Absent from this summary is a reference to the ATC claim and the applicant’s claim that he feared harm as an illegal departee and returning failed asylum seeker. While the IAA did not expressly refer to these matters in its “summary”, the IAA did, however, consider these claims in the course of its consideration as a whole.
Having reviewed the materials in the Court Book in detail, the Court is satisfied that the IAA identified the applicant’s claims in their entirety. No claims were overlooked. The IAA was diligent in its consideration, having addressed claims or matters that were not expressly raised. For example, the IAA considered whether the applicant would face harm as a result of his livelihood as a fisherman (at [79]). The IAA noted that in the event the applicant was required to travel (to attend court appearances, for example) he could do so without a chance of any harm (at [98]). It also noted that while the applicant did not claim he would attend memorial day events in Sri Lanka on return, he would be able to do so without the chance or risk of harm (at [70] and [110]).
The IAA clearly identified and acknowledged the applicant’s claims, both expressed and implied.
Having identified the claims, it is necessary for the IAA to give those claims proper, active and intellectual engagement. Here, the information before the IAA was extensive. A fair reading of the comprehensive reasons provided by the IAA indicates that the IAA forensically and analytically considered both the applicant’s claims and evidence.
The Court observes as follows:
a)in relation to the applicant’s claim that his father was arrested in India (as it was believed he was helping the LTTE), the IAA addressed this claim in significant detail (at [35]-[52]). The IAA identified the evidence the applicant had provided to support his claim and made findings on that evidence to determine if it was satisfied that the claim was established. The IAA’s reasons for finding that it was not satisfied that the applicant’s father was detained or arrested for assisting the LTTE were based on the multiple concerns the IAA had with the corroborative evidence and the vagueness of the applicant’s own account. Clearly, the IAA properly considered the claim;
b)in relation to the applicant’s claim that he had been questioned or detained by authorities about his father, the basis upon which this claim was founded (being that his father had been arrested) was rejected by the IAA: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184. The IAA’s brief consideration of this at [52] was sufficient to have constituted “proper consideration”. In any event, the IAA considered the applicant’s evidence in relation to this claim to be vague and lacking in detail (at [43]). Again, the IAA clearly engaged with the claim;
c)in relation to the applicant’s claim that the authorities suspected him of involvement with the LTTE, the IAA’s consideration of this claim can be found at [54]-[57]. The IAA referred to the country information in accepting that the applicant may have been the subject of harassment, but considered the applicant’s particular circumstances (such as his being sent to a rehabilitation camp, that the applicant was issued with a fishing licence in 2008 and that he had lived, worked and travelled in the same area without harm until his departure) and then concluded that the applicant did not have, or would not be perceived to have, LTTE links. Again, the claim was properly considered;
d)in relation to the ATC claims, the IAA addressed these at [60]-[66]. The IAA made reference to the applicant’s submissions, the supporting statutory declaration, his evidence at interview and the country information when assessing whether it was satisfied that the applicant had a risk or chance of harm because of his involvement with the ATC while in Australia. The IAA comprehensively engaged with this claim. It addressed particular matters raised in the submissions to form a conclusion that was entirely sound. The IAA also considered the applicant’s chance of harm if he was to continue engaging in the activities he currently partakes in with the ATC back in Sri Lanka (despite the applicant not claiming he would do so). The IAA’s engagement with this claim was sound;
e)the IAA addressed the applicant’s claim regarding his being a Tamil and a Tamil originating from a former LTTE controlled area at [68]-[79]. Again, the IAA referred to country information when addressing this claim and acknowledged specific submissions made by the applicant’s representative. It then addressed those matters;
f)the applicant’s claim to have been at risk or chance of harm from Muslim gangs was addressed at [80]-[85]. Notably, the IAA rejected the claim that the applicant had been the subject of harm from Muslim gangs. In any event, the IAA considered the country information concerning Muslims and Christians and concluded that it was not satisfied that the applicant faced harm on the basis of his religion. The IAA here went beyond what was necessary and considered any harm on the basis of religion generally (despite it not being claimed);
g)the IAA accepted that the applicant would return as a failed asylum seeker and considered what would occur to him on return in light of this status (at [88]-[92]). The IAA referred to country information when making these findings. The IAA’s engagement with this claim extended to considering any social stigma the applicant may face. Clearly, the IAA engaged properly with this claim; and
h)in relation to the applicant returning as an illegal departee, the IAA accepted that the applicant had committed an offence and might be charged or fined. The IAA then considered the impact of any charge or fine on the applicant and again referred to country information, the applicant’s circumstances and the submissions and arguments raised by his representative to determine if he would face harm for this reason (CB 339-340 at [93]-[104] and CB 342 at [112]). The IAA, having actively engaged with the claim, was not so satisfied.
The IAA’s decision is comprehensive and detailed. The IAA has given proper, genuine and realistic consideration to each of the applicant’s claims and, further, arguments raised by the applicant’s representative.
The IAA’s findings were well informed. On each occasion the IAA clearly identified the basis or ground on which it made its findings. This included using country information, the applicant’s own evidence and the other information the IAA had before it. There is nothing illogical or unreasonable in the findings made. Each finding has an evident and intelligible justification.
Ground 1, accordingly, is dismissed.
Ground 2
Again, without particulars it is difficult for the Court to identify what “error” the applicant is referencing. When the Court asked the applicant to explain what he meant by this ground, he seemed to suggest that he did not understand it himself.
Here, the applicant was, in fact, invited to comment. He attended an interview where he was given an opportunity to comment and provide information.
Furthermore, the applicant was represented. Were it the case that he wanted to comment further, it would be expected that the applicant’s representative would have put what the applicant wanted to address before the IAA. The applicant’s representative provided new information after the interview with the IAA.
The applicant had ample opportunity to “comment” on any aspect of his claim. The Court does not accept that he was not given that opportunity.
It must be borne in mind that the IAA is not obliged to give the applicant an opportunity to comment on any aspect of its claims. More specifically, the norm in reviews by the IAA is that the review is conducted without inviting an applicant to comment: the Act, s.473DB.
Here, the applicant was given two opportunities to “comment” on his claims or matters by the IAA (prior to the first IAA decision and prior to the second IAA decision) (CB 244). He did so in the form of submissions provided by his representative. Those submissions were comprehensive and included further new information. He also partook in an interview that the IAA was not statutorily obliged to provide. In these circumstance, it cannot be said that the applicant was not given ample opportunity to comment.
Ground 2, accordingly, is dismissed.
Otherwise
The Minister, in its capacity as model litigant, made a number of general submissions at [43]-[47].
The Court notes in particular the Minister’s submissions at [44]-[46] as follows:
44. In regards to procedural fairness, subsection 473DE(1) provides that the IAA must put to an applicant for comment any new information which would be the reason, or part of the reason, for affirming the decision. This does not apply to new information given by an applicant to the IAA for the purposes of the review (s 473DE(3)(c) read with r 4.41 of the Migration Regulations 1994), which would necessarily include information which the applicant gave himself at the interview with the IAA.
45. The Full Court had been concerned, in respect of the first IAA decision, that the IAA had made adverse credibility findings about the photograph attached to the 24 July 2017 submission provided to the delegate after the decision was made without putting this adverse information under s 473DE(1). The Court had commented at [45]:
Further, had the Authority addressed the conditions set out in s 473DD in relation to the new information, it is likely that it would have given the appellant notice under s 473DE of a proposed adverse credibility finding before making an adverse credibility finding in relation to the photograph. As things stand, the Authority formed the view that the photograph of the appellant “purportedly” taken on Tamil Heroes’ Day was “staged in an attempt to strengthen his protection claims” without the appellant having had an opportunity to comment on that proposition.
46. The second IAA did not make such a finding (see [60] of the IAA’s reasons), and was not was required to put its concerns to the applicant. Further, information does not include the ‘existence of doubts, inconsistencies or the absence of evidence’: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].
The Minister also referred to the IAA’s findings that the documents were not genuine and questioned whether the IAA was required to put to the applicant the concerns it had with the credibility of those documents or the applicant’s credibility generally.
The Minister submitted that the credibility of the documents was a matter the applicant was on sufficient notice about given that the first IAA found that some of the documents were false. The Minister argued that the IAA was entitled to reach its own conclusions concerning the documents and materials before it, including on whether the documents were authentic.
It is accepted that a decision-maker is not required give an applicant its preliminary thoughts on the authenticity of documents, nor the existence of doubts or inconsistencies it has identified in any evidence: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18].
In BJB16 v Minister for Immigration & Border Protection [2018] FCAFC 49 at [69]-[72], the Full Court found as follows:
69… It is not the case that the Authority is incapable of reaching a decision that is inconsistent with the delegate as to a document’s authenticity. Clearly, for example, the Authority is entitled to obtain and consider new information (s 473DC and s 473DD of the Migration Act) and that new information may well bear on the question of whether or not a document is genuine or false. The Authority can have regard to the new information and form its own view (consistently or inconsistently with that of the delegate) as to whether or not new information affects the authenticity of a document. This is not the same exercise as that carried out under s 91W of the Migration Act. There would not be a review in the first place if a “bogus document” finding were made by the Minister or his or her delegate.
70. As the primary judge concluded, findings about a document may be made without necessarily engaging the specific provisions of s 91W of the Migration Act. It may be accepted that the specified findings for the purpose of s 91W are findings by the Minister or the delegate, rather than by the Authority.
71. We would emphasise that the power of the Authority to reach its own conclusions concerning the documents and other material before it is not dependent on new information coming to light. The Authority is entitled to reach its own conclusion on the same information and arrive at a different result. It is clear from the separate reasons for judgment in BMB16, discussed above at [52], that the findings of the delegate do not control the reasons or findings of the Authority: see BMB16 [15] (Dowsett J), [38] (Besanko J) and [88] (Charlesworth J).
72. There is no reason to conclude that the Authority is bound by the views reached by the delegate, whether this be in relation to the non-formation of an opinion about a bogus document or otherwise. It is clear that the Authority is entitled to conduct a different analysis.
Here, it was entirely open to the IAA to form its own view as to the authenticity of the documents that were provided to it and the weight it would afford those documents in light of that assessment. Critically, the documents which the IAA assessed as not being credible or genuine were not “new information”. They fell outside s.473DE of the Act.
To the extent that it might be argued that the IAA ought to have considered whether it should invite the applicant to comment on its views under s.473DC(3) of the Act, the Court does not consider that it was unreasonable for the IAA not to have done so.
The IAA conducts a de-novo review of the application and is entitled to form its own view and assessment of the evidence and materials before the delegate.
Here, it is not the case that additional information was “necessary to complete the review” such that s.473DC(3) should have been considered or exercised: DGZ16 v Minister for Immigration & Border Protection (2018) 258 FCR 551 at [70]. The applicant had provided the information he wished to rely upon to the delegate and the IAA was entitled to form its own view on that material without inviting the applicant to comment. This is the nature of a fast track review.
There was a reasonable basis for the IAA to conclude that the documents were not genuine. The IAA comprehensively set out the anomalies that were present in the documents, inconsistencies between the documents and the applicant’s account and the lack of relevance (or reference) to matters that were critical, in the IAA’s view, to corroborate the applicant’s claims. It was open to the IAA to differ from the delegate’s assessment of the document and choose to place no weight on the documents and to do so without inviting the applicant to comment.
Here, it is not the case that there was an absence of information or that the applicant did not have an opportunity to comment on a particular matter which he might have information about (such as reasonableness of relocation). The exercise of s.473DC(3) in this case would, in effect, be to enable the applicant to remedy doubts and inconsistencies in the evidence as opposed to providing information that was “necessary to complete the review”. Hence, it cannot be said to be unreasonable for the IAA not to have exercise the power under s.473DC(3) to obtain new information.
The Court is satisfied that it was reasonable for the IAA not to have exercised the power under s.473DC(3). The applicant was sufficiently alert to the possibility that his claims may not be accepted and that credibility was an issue.
The Court is satisfied that the IAA has not erred in conducting its review and that no error is otherwise apparent on the face of the decision.
Conclusion
The applicant’s grounds of review have failed to identify any error. The Court, and the Minister, have otherwise sought to review the IAA’s decision for error and are satisfied that nothing arises on the face of the decision.
The application, accordingly, is dismissed.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 26 November 2019
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