EMD17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 369
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EMD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 369
File number(s): SYG 3080 of 2017 Judgment of: JUDGE LAING Date of judgment: 11 May 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA materially misconstrued and misapplied s 473DD of the Act – whether the IAA relevantly erred in not inviting the applicant to give new information regarding the issue of religious persecution – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 473DC, 473DD Cases cited: ADN18 v Minister for Home Affairs [2018] FCA 1677
CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; (2017) 257 FCR 297
CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 27 April 2023 Counsel for the Applicant: Mr R. Chia (Counsel) appeared in person on behalf of the applicant. Counsel for the First Respondent: Ms N. Maddocks (Counsel) appeared in person on behalf of the first respondent. Solicitor for the First Respondent: HWL Ebsworth Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3080 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMD17
First Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
11 May 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XD) (Subclass 785) visa (protection visa).
BACKGROUND
The applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival in 2012. On 26 February 2016, he applied for a protection visa.
On 1 December 2016, the Delegate refused the application. The Delegate’s decision was then referred to the IAA for review.
On 8 September 2017, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA observed that the applicant’s representative had provided a submission to the IAA on 28 December 2016. As the IAA’s reasoning in this regard is the subject of challenge, it is appropriate to set out that reasoning relatively fulsomely (footnotes omitted):
4. The applicant’s representative provided a submission to the IAA on 28 December 2016. The submission contains discussion on why the applicant does not agree with the delegate’s decision, including legal argument, and contains information already before me. More specifically it refers to a UK Upper Tribunal decision in relation to Tamil asylum seekers1 (referred to in UK Home Office – Tamil Separatism referred to in the delegate’s decision and six screen shots from the [redacted] a YouTube post provided to the delegate. The submission also refers to a number of claims made to the delegate and country information considered by the delegate.
5.The submission contends that “the act of putting the song against this backdrop has now made a clear political statement about the SLA which was not present in the applicant’s songs before departure”. These claims were not made to the delegate and I consider them to be new information. The applicant was given the opportunity to present his claims to the Department. The applicant was asked at the end of the protection visa interview whether he had put forward all his claims for protection. The applicant has not satisfied me that the information could not have been provided prior to the decision being made or that it is credible personal information. Having regard to all the circumstances, I am not satisfied that there are exceptional circumstances to justify the consideration of this new information…
8. The applicant’s representative sent an email to the IAA on 2 January 2017. The email attached the same submission which had previously been provided to the IAA on 28 December 2016. The email also attaches an English translation of the Tamil song lyrics for a YouTube post. The YouTube post was already before the delegate and I do not regard this as new information.
The IAA also observed that various country information had been provided on behalf of the applicant (at [6]). The IAA considered that this was new information, but was not satisfied that it met the requirements for consideration under s 473DD of the Migration Act 1958 (Cth) (Act) (at [7]). The IAA erred in this regard in respect of a UK Home Office report, which appears to have been before the Delegate and was therefore not new information. However, the applicant did not press any argument that this resulted in jurisdictional error, in circumstances where it appears that the report before the Delegate was nonetheless considered by the IAA.
The IAA found that exceptional circumstances justified consideration of two further country information reports that it had obtained (at [9]-[10]). In relation to one such report, the IAA stated:
9. I have obtained new information, specifically the International Religious Freedom Report for 2016 - Sri Lanka. This source contains information about the extent of religious freedom in Sri Lanka. The delegate did not consider the applicant’s claims that he had been previously targeted as a practising member of the [redacted] Church in Sri Lanka. I am satisfied exceptional circumstances justify the consideration of this new information.
The IAA accepted that:
(a)the applicant was a Tamil male from Sri Lanka (at [14]);
(b)his family were displaced and travelled to India when he was a child (at [15]-[16]); and
(c)his family subsequently voluntarily returned to Sri Lanka some years later (at [17]).
However, the IAA did not accept that the applicant’s father or uncle had any involvement with the LTTE (at [20]). Nor did the IAA accept that the applicant had been arrested, detained, questioned and assaulted by the Sri Lankan Army (SLA), or otherwise faced any relevant risk of harm, on account of his previous employment or suspicion of involvement with a claymore mine blast in 2010 (at [28]-[46]). These findings are not the subject of independent challenge in these proceedings.
In relation to the applicant’s claims regarding religion and his membership of a church (Church), the IAA reasoned at [21]-[25] (footnotes omitted):
21. The applicant claimed that as a member of the [Church] he experienced lots of problems when practising his religion in Sri Lanka.
22. The applicant claimed on one occasion his church group had been given approval by the Grama Seva Niladhari to set up a stage and preach about Jesus in a predominately Hindu area. When they started to preach the applicant and others members of his church were attacked by the Hindu people living in the area.
23. The applicant claimed that another occasion in 2011, stones were hurled and poison was put on his family’s land and instead of his family being poisoned his dog ate the poison and died. He stated he believes these actions were taken by people from the Roman Catholic Church. He stated that they did not report the incident to the police as it was to do with religion and nothing would be done about it.
24. I accept the applicant is a practising member of the [Church]. I accept that in the past the applicant may have encountered some difficulties in practising his religion. I accept on one occasion stones were hurled and his dog poisoned and on another occasion he was physically assaulted when he sought to preach his religion in a predominately Hindu area. The applicant’s evidence regarding his experience when he sought to preach is consistent with country information that practitioners who attempt to proselytise may be subject to harassment.2
25. Despite these experiences, the applicant has made no claims of any other occasions when he was harassed or harmed in the past when practising his religion. The applicant’s evidence is that his father continues to be an active member and work in the [Church] in [redacted] and that his father is organising to build an [Church] on the family’s vacant land in [redacted]. The applicant has made no claims indicating that his father or any of his family members who continue to be members of the [Church] have been subjected to any type of harassment or harm when practising their religion in Sri Lanka.
Having regard to available country information, although the IAA accepted there was “some risk” of harm should the applicant seek to preach again, the IAA was not satisfied that this gave rise to a real chance of harm. In this regard, the IAA observed that the applicant had “only claimed that on one occasion in the past did he seek to preach and was harmed”. He had not claimed that he would preach again nor that his family members who continued to be members of the Church had been subjected to harm whilst practising their religion in Sri Lanka. The IAA did not accept that the applicant would face a real chance of relevant harm as a practising member of the Church in the reasonably foreseeable future (at [26]-[27] and [82]).
The IAA accepted that the applicant told the Department about a SLA solider who travelled to Australia on the same boat. However, the applicant did not appear to have provided identifying details or made claims of harm on this basis. The IAA did not accept that these circumstances gave rise to a real chance of relevant harm (at [49] and [82]).
The IAA observed that the applicant had claimed to fear harm on return because he had published a song on YouTube. It observed that the post included “a compilation of pictures which depict the maiming and killing of women, men and children in the Sri Lankan civil war”. Whilst it was published under a different name, an associated photo was of the applicant. The IAA was not satisfied that the making and posting of this material was otherwise than for the purposes of strengthening the applicant’s claim for protection (at [50]-[56]). At [85]-[87], the IAA reasoned as follows in relation to this claim:
85. I accept that in May 2013 the applicant uploaded made a YouTube post of pictures depicting the Sri Lankan civil war; however I am not satisfied the nature of this activity will be perceived by the Sri Lankan government as having been engaged in (or suspected thereof) Tamil separatism, or activities which would impute him as an LTTE sympathiser, or threat to the state and nor does he fit within the other risk profiles identified by the UK.
86. The applicant’s involvement has been to publish one YouTube post of pictures depicting the Sri Lankan civil war. The applicant’s evidence is that these pictures are from an open source Channel 4 documentary. The song lyrics make no reference to the LTTE or Tamil separatism. The applicant has not claimed to be a member or involved with the LTTE, politics or any political organisations nor is there any information before me to indicate he would continue to undertake such activities on his return to Sri Lanka; rather my findings above are that the applicant has undertaken this activity to strengthen his claims for protection.
87. It follows, that I do not accept that after the applicant published the YouTube post his father was approached by the SLA and asked about the YouTube post. I am not satisfied there is any plausible basis for this claim given that I have found that the applicant was not of interest to the SLA or the Sri Lankan authorities for any reason at the time of his departure from Sri Lanka in 2012 and nor am I satisfied that the nature of this activity will not be perceived by the Sri Lankan government as having been engaged in (or suspected thereof) Tamil separatism, or activities which would impute him as an LTTE sympathiser, or threat to the state and nor does he fit within the other risk profiles identified by the UK.
Having regard to available country information, the IAA did not accept that the applicant faced a real chance of relevant harm because of his ethnicity, profile or potential status as a failed asylum seeker from Australia who departed Sri Lanka illegally. The IAA accepted that the applicant may be charged for his illegal departure, face a brief period of detention and possibly a fine. The IAA found that this would be pursuant to a law of general and non-discriminatory application and would not amount to persecution for the purposes of ss 5H and 5J of the Act. In any event, the IAA was not satisfied that this treatment would amount to serious or significant harm (at [58]-[76] and [82]).
Based upon the above, the IAA did not accept that the applicant was a person to whom protection obligations were owed (at [77] and [89]). Accordingly, the IAA affirmed the Delegate’s decision.
LEGISLATION
Section 473DC of the Act provided:
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD of the Act provided:
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.
PROCEEDINGS BEFORE THIS COURT
The applicants commenced these proceedings through an application filed on 5 October 2017. A further amended application was ultimately relied upon, containing the following grounds:
1.The second respondent (Authority) materially misconstrued and misapplied section 473DD of the Act.
Particulars
The Authority did not consider the applicant’s submissions based upon the UK Home Office “Country Information and Guidance, Sri Lanka: Tamil Separatism” report dated 19 May 2016.
Further the Authority at [5] did not deal with the applicant’s submissions regarding the YouTube video.
2. Further or in the alternative, the Authority’s exercise of discretion under section 473DC of the Act not to invite the applicant to give new information regarding the issue of religious persecution was legally unreasonable.
Ground 1
At hearing, the applicant advised that the first particular to ground 1 (concerning the UK Home Office report) was not pressed. However, he maintained his contention that the IAA erred at [5] of its decision in relation to the YouTube video.
In this regard, the applicant relied upon Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 (CLV16), where it was stated at [50]-[51]:
50It is concluded that a “submission” which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:
· a “document”; nor
· “information”
for the purposes of the definition of “new information” as set forth in s 473DC.
51Less difficulty is experienced in construing the term “information” as not including a “submission” than in so construing the term “document”. The natural and ordinary meaning of the term “information” is “[c]ommunication of the knowledge of some fact or occurrence” (cf. The New Shorter Oxford English Dictionary (Clarendon Press, 1993)). That natural and ordinary meaning would not embrace a “submission” as to the significance to be attached to any “fact or occurrence”. Albeit less certain, it is nevertheless further concluded that the term “documents” in s 473DC(1) is confined to the means whereby the “knowledge of some fact or occurrence” is conveyed to the Authority.
Failing to consider a submission due to an erroneous application of s 473DD, it was submitted, was capable of resulting in jurisdictional error: CLV16 at [63].
The IAA’s reasoning at [4]-[5] of its decision is set out in full above. At [5], the IAA found that the applicant’s contention in relation to the YouTube video that “the act of putting the song against this backdrop has now made a clear political statement about the SLA which was not present in the applicant’s songs before” was a new claim and “new information”.
The applicant submitted that, to the contrary, his contention regarding the effect of the YouTube video was no more than a submission based upon existing information that was before the Delegate. By mistaking this submission for a new claim, the applicant submitted, the IAA failed to consider the submission that the juxtaposition of the pictures and lyrics in the video would be perceived as a political statement. This, it was submitted, resulted in jurisdictional error.
I am unable to accept this argument for two reasons.
Firstly, I accept the Minister’s submission that it was open to the IAA to consider that the new claim that it perceived in the applicant’s submissions was new information. A new claim was capable of constituting new information, even if it relied upon evidence that had otherwise been before the Delegate: see CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; (2017) 257 FCR 297 at [53] and ADN18 v Minister for Home Affairs [2018] FCA 1677 at [39]. Further, the claim made on the applicant’s behalf could, on one available view, have been interpreted as conveying some knowledge on the part of the applicant as to how the video’s content would be perceived. This was capable of being regarded as new information.
Secondly, and in any event, I accept the Minister’s submission that materiality is unable to be demonstrated in circumstances where the IAA appears to have gone on to consider the potential import of the images and song lyrics taken together. At [50], the IAA had regard to the applicant’s claim that he would be in danger because he had published a song on YouTube which utilised pictures from “Channel 4”. At [52], the IAA observed that the YouTube post was a “compilation of pictures which depict the maiming and killing of women, men and children in the Sri Lankan civil war” which was placed against the backing of a song in Tamil. It is apparent, from [8] and [86] of the IAA’s decision, that the IAA had regard to the English translation of the Tamil song lyrics.
However, the IAA was not satisfied that the YouTube post would result in the applicant being imputed with a political profile that may give rise to a real risk of relevant harm from the Sri Lankan authorities (at [85]-[87]). In coming to this conclusion, the IAA considered that the pictures used appeared to have been from an open source Channel 4 documentary and that the song lyrics made no reference to the LTTE or Tamil separatism. In conducting this analysis, I accept the Minister’s submission that the IAA was considering the combined effect of the lyrics and the images together.
Based upon the above, I accept the Minister’s submission that the IAA did, effectively, consider whether the juxtaposition of the pictures and lyrics in the video would be perceived as a political statement capable of attracting adverse attention from the Sri Lankan authorities. I therefore accept that even if the IAA erred in considering that the applicant’s contention in this regard in the submissions was “new information”, materiality is unable to be established. This is because the applicant was not deprived of the possibility of a successful outcome, in circumstances where risk arising from the political import of the video was nonetheless considered by the IAA: see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441.
It follows that ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the IAA’s exercise of discretion under s 473DC of the Act not to invite the applicant to give new information regarding the issue of religious persecution was legally unreasonable.
In this regard, the applicant relied upon Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475. In that case, at [82], it was stated:
82.Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
The applicant also relied upon DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134. In that case, the IAA was aware that the Delegate had accepted the applicant’s account through reliance upon demeanour at interview. The IAA subsequently rejected the applicant’s credibility without considering inviting the applicant to an interview in order to undertake its own assessment of his demeanour. Instead, the IAA relied upon inconsistencies the Delegate had indicated would not be given substantial weight. This approach by the IAA was found to have been legally unreasonable.
Both cases occurred within particular factual contexts. It is to be recalled that the general position under Part 7AA of the Act is that the IAA “does not have a duty to get, request or accept, any new information”: see 473DC(2). This position is not generally displaced simply because the IAA elects to decide the matter on a different basis to the Delegate: CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502 at [46]. Questions of reasonableness are inevitably factually specific. Their answers will depend upon the particular circumstances of each case.
In the present case, the applicant relied heavily upon the following exchanges at the SHEV interview (at page 15 of the transcript):
Interviewing Officer: Did you have any issues practicing your religion?
Interpreter: Lots of problems
Interviewing Officer: Like what?
Interpreter: We had a Gospel meeting and we preach about Jesus to others so that time we faced a lot of problems
Interviewing Officer: Tell me what sort of problems?
Interpreter: I could tell you one incident. We went to a place in [redacted], it was Hindu area, through GS we got a grounds, so we put up a stage and arranged sound system and music and everything and we were preaching about the Lord Jesus Christ. So, this was like organised by the youth so I was the leader for the youth, so when I was preaching the Hindu people they damaged the music, musical instruments and they have tied me up. They wanted to cut me, they wanted to cut my throat so they tied me. So that time GS came there and with the God's grace I was saved. I have lots of incidence and because I am a Christian I have been affected so much.
The Interviewing Officer then asked the applicant about his ethnicity. This, it was submitted, denied the applicant the opportunity of elaborating upon other instances of problems he had faced on account of his religion. Within this context, the applicant submitted that it was unreasonable for the IAA not to have invited the applicant under s 473DC of the Act to give new information regarding additional problems he may have faced, and then to have reasoned as it did at [25] of its decision. At [25], the IAA relied upon its understanding that the applicant “made no claims of any other occasions when he was harassed or harmed in the past when practising his religion” beyond those incidents it had considered at [22]-[24].
I accept that at the end of the above extract from the SHEV interview, the Interviewing Officer asked the applicant a question about another topic without asking him what he meant by “lots of incidence”. However, this change in topic followed three earlier questions by which the Interviewing Officer had invited the applicant to provide any evidence he wished regarding the issues that he had faced and to expand upon what he meant by “lots of problems” on account of his religion.
Further, and importantly, the applicant had already given other evidence regarding what he said had happened on account of his religion. In his statement, the applicant had referred to stones being hurled and to his dog having been being poisoned. It is therefore possible that the Delegate, and the IAA, thought that the applicant had already given evidence of any other incidents or problems upon which he relied. These incidents were considered in the IAA’s decision (at [23]-[24]).
As the Minister observed, this is also supported by what is recorded later in the transcript of the SHEV interview where the following exchanges occurred (at page 43):
Interviewing Officer: Ok, so before we finish this interview is there anything else you would like to say in regards to your protection visa application which has not been already discussed?
Interpreter: You didn't ask me something about the Christianity and the poison.
Interviewing Officer: Christianity and what sorry?
Interpreter: Something like poison? I have given at my interview but you did not ask me questions about that.
Interviewing Officer: Tell me what do you want to say about that?
Interpreter: We finished with the gospel meeting and we came back. They kept poison in our house and our dog died. You didn't ask me any questions, if you want I can tell you.
Interviewing Officer: I don't really understand how that will be relevant to your case that your dog was poisoned by the Roman Catholic Church.
Interpreter: The poison was kept not for the dog, it was kept in our land. They had some Mundo rum and they kept poison so if he had stepped onto that poison it would have made some effect on us. Because it was eaten by the dog, the dog died.
Interviewing Officer: This was by the Roman Catholic Church?
Interpreter: Yes
Interviewing Officer: And according to your application form this was in 2011?
Interpreter: Yes
Interviewing Officer: Did you report that to the police?
Interpreter: It was something to do with the religion we didn't do anything, we thought that God has saved us so we finished off with prayers.
Interviewing Officer: Ok, so that was finished after the prayers?
Interpreter: Yes
The Interviewing Officer then asked the applicant “Ok, all right, have you put forward all your things for protection?”, in response to which the applicant answered, “Yes.”
Having regard to the above, I accept the Minister’s submission that the applicant was not denied the opportunity of elaborating upon his claims to have faced problems on account of his religion. In these circumstances, the IAA’s non-exercise of the discretion under s 473DC of the Act to invite the applicant to provide further information was not legally unreasonable.
It follows that ground 2 is unable to succeed.
CONCLUSION
As jurisdictional error has not been demonstrated, the application before this Court must be dismissed.
I will hear the parties in relation to costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 11 May 2023
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