EWF17 v Minister for Immigration
[2019] FCCA 1511
•28 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EWF17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1511 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – whether the Authority acted unreasonably or otherwise erred in its application of s.473DD of the Migration Act 1958 (Cth) or whether the Authority unreasonably failed to consider exercising its discretion under s.473DC of the Migration Act considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.473DA, 473DC, 473DD, 473EA |
| Cases cited: ABT17 v Minister for Immigration [2019] FCA 613 AQU17 v Minister for Immigration [2018] FCAFC 111 AUS17 v Minister for Immigration & Anor [2017] FCCA 1986 BCQ16 v Minister for Immigration [2018] FCA 365 BVD17 v Minister for Immigration [2018] FCAFC 114 BVZ16 v Minister for Immigration [2017] FCA 958 CCQ17 v Minister for Immigration [2018] FCA 1641 CHF16 vMinister for Immigration [2017] FCAFC 192 CVS16 v Minister for Immigration [2018] FCA 951 DGZ16 v Minister for Immigration (2018) 258 FCR 551 DHH16 v Minister for Immigration [2018] FCCA 1638 DYK16 v Minister for Immigration [2018] FCAFC 222 DZU17 v Minister for Immigration & Anor [2019] FCCA 491 Minister for Immigration v BBS16 [2017] FCAFC 176 Minister for Immigration v CRY16 [2017] FCAFC 210 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZVFW (2018) 92 ALJR 713 VAAD v Minister for Immigration [2005] FCAFC 117 |
| Applicant: | EWF17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3390 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Kulkarni |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The application as amended on 11 April 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3390 of 2017
| EWF17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 16 October 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who arrived in Australia in October 2012. He participated in arrival interviews on 10 October 2012 and 17 January 2013.[1] On 21 November 2016 he made an application for a Safe Haven Enterprise Visa (SHEV), having earlier made an invalid protection visa application. He claimed to fear harm on the basis of his ethnicity, imputed links with the Liberation Tigers of Tamil Eelam (LTTE), his formerly residing in the Eastern Province, his illegal departure from Sri Lanka and for seeking asylum in Australia. The applicant gave detailed claims of encounters with the Sri Lankan Army (SLA) and the Karuna Group during the war, and with the Criminal Investigation Department (CID) following the war. The applicant was interviewed by the delegate on 1 March 2017.[2] On 10 March 2017 the delegate refused to grant the applicant a visa.[3]
[1] Court Book (CB) 1-28
[2] CB 220
[3] CB 228
The applicant’s matter was referred to the Authority for review. On 12 April 2017 the applicant and his migration agent sent to the Authority two submissions, each dated 11 April 2017. The first submission comprised a statement from the applicant.[4] In the statement the applicant addressed various shortcomings in the delegate’s decision-making. In particular the applicant asserted in the statement that he had stated in his claims and at the interview with the delegate that he was ordered to do work by the LTTE by putting up posters and flags and that these activities happened during peacetime from 2002 to 2006 a few times a year. He stated that occasionally he was asked to transport goods for the LTTE. He stated further that:
The Department failed to question me what I was asked to transport as the Department was aware that if I answered to that question, I could have given more details as to the goods which could establish beyond doubt that I would face persecution on my return back to Sri Lanka. The goods that I transported for the LTTE under duress is well known to the authorities and that was the main reason for the authorities to come in search of me constantly.
[4] CB 277
The second submission[5] was a submission from the applicant’s migration agent. In the submission, the agent submitted[6] that the delegate “did not ask [the applicant] for the specific details of the activities he participated in for the LTTE, nor did he ask him to explain the extent of his activities…”.
[5] CB 283
[6] CB 284
Authority’s decision
On 16 October 2017 the Authority affirmed the decision under review.[7]
[7] CB 306
As noted at [4] above, the Authority received two submissions on 12 April 2017; the first from the applicant, and the second from the applicant’s former representative.[8] The Authority noted that the applicant advised it by telephone that he did not want the Authority to consider the second of the submissions his former representative had sent. Accordingly, the Authority did not take the second submission into account.
[8] CB 307-308 at [4]-[9]. The applicant had sent a Withdrawal of Representative form on 6 April 2017 (CB 273-274)
In relation to the first submission, the Authority referred relevantly to the applicant’s assertion that he previously transported arms and equipment to the LTTE, and that the Sri Lankan authorities were aware of this and it was the main reason that the authorities came in search of him. The Authority noted these claims were not before the delegate and they related to events that pre-dated the delegate’s decision. It noted that the applicant had not explained why the information could not have been provided to the delegate or why it may be considered credible personal information. The Authority referred to the applicant having referred on a number of occasions during his SHEV interview to having transported “goods” for the LTTE, without having ever mentioned that he transported arms, or that the authorities were aware he was doing this. The Authority was not satisfied that exceptional circumstances existed to warrant consideration of the claims.[9]
[9] CB 308 at [9]
The Authority was not satisfied the applicant was entitled to a SHEV under either s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[10]
[10] CB 318 at [51] and CB 320 at [60]
The present proceedings
These proceedings began with a show cause application filed on 6 November 2017. The applicant now relies upon an amended application filed on 11 April 2018. There are four grounds in that application:
1.The Immigration Assessment Authority (IAA) acted unreasonably under section 473DD of the Migration Act 1958 (Cth) in deciding not to consider the information provided to the IAA regarding the nature of the applicant's involvement in Liberation Tigers of Tamil Eelam (LTTE) activities (transporting arms and equipment to the LTTE) (Information): CB308, para 9.
2.The IAA adopted an unduly narrow interpretation of section 473DD of the Migration Act 1958 (Cth) by confining its determination of whether to consider the Information to the failure of the applicant to explain why he had not provided the Information to the Minister's delegate before the delegate's decision was made.
3.The IAA failed to properly exercise its jurisdiction by failing to evaluate the significance of the Information in the context of the applicant's claims more generally; particularly in circumstances where the IAA had accepted the applicant's claims as to his involvement in LTTE activities in 2004 and 2005 (CB311, para 18), including transporting goods (CB310, para 12).
4.The IAA acted unreasonably under section 473DC of the Migration Act 1958 (Cth) in failing to consider whether it should get further information from the applicant relating to the Information in circumstances where the applicant had submitted that he had not been afforded an opportunity to provide such further information to the Minister's delegate and the IAA was minded (and proceeded to decide) not to consider the Information because the applicant had not explained why it was credible personal information.
Grounds 1-3 are closely related and were presented together. Ground 4 is separate but, as a practical matter, depends upon a finding of error in the Authority’s assessment under s.473DD. That is because, if the Authority properly concluded that there were no exceptional circumstances warranting receipt of the new information under s.473DD, there would be no basis for considering whether to get the same information in the exercise of discretion of s.473DC.
The only evidence I have before me is the court book lodged on 17 January 2018.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial of this matter on 4 June 2019.
Consideration
Grounds 1-3 – did the Authority err in its application of s.473DD?
As noted above, following the delegate’s decision refusing to grant the applicant a SHEV, the applicant provided new information in a written submission to the Authority. The new information was about the nature of the applicant’s involvement in the LTTE activities; namely, that he transported arms and equipment for the LTTE (Arms Information).
Specifically, the Arms Information was as follows:
Occasionally I was asked to transport goods for the LTTE. The Department failed to question me what I was asked to transport… I could have given more details as to the goods which could establish beyond doubt that I would face persecution on my return back to Sri Lanka. The goods that I transported for the LTTE under duress is well known to the authorities and that was the main reason for the authorities to come in search of me constantly. Till the security officers established through the witnesses that I transported arms and equipment to the LTTE, I could hide around Sri Lanka making arrangements to flee from the country.
(applicant’s counsel’s emphasis retained)
The Authority dealt with the Arms Information at [9] as follows:
In the IAA submission, the applicant states that he previously transported ‘arms and equipment’ to the Liberation Tigers of Tamil Eelam (LTTE). He also submits that the Sri Lankan security officers are aware of this and it was ‘the main reason’ that the authorities came in search of him. These new claims [which] were not before the delegate relate to events that pre-date the delegate’s decision. The IAA submission does not explain why this information could not have been provided to the delegate or why it may be considered credible personal information. In the interview with the delegate of 1 March 2017 (SHEV interview), the applicant indicated that he occasionally transported ‘goods’ (unspecified) for the LTTE if requested to do so. He also stated that on one occasion in April 2004 he was falsely accused of transporting goods to the LTTE. At no time did the applicant claim that he transported or provided arms to the LTTE, or that the Sri Lankan authorities were aware that he transported or provided arms (or any goods) to the LTTE, including in his SHEV application, at the SHEV interview, or in the post-SHEV interview submission of 7 March 2017. Further, at no time did the applicant indicate that it was for this reason that he had come to the adverse attention of the Sri Lankan authorities. In the circumstances, I am not satisfied that these new claims represent credible personal information or could not have been provided before the delegate’s decision was made. Neither am I satisfied that there are exceptional circumstances to warrant consideration of these claims.
Section 473DD of the Migration Act provides:
For the purposes of making a decision in relation to a fast track reviewable decision the Immigration Assessment Authority must not consider any new information unless:
a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The proper approach to this provision has been established in a number of cases.[11]
[11] see BVZ16 v Minister for Immigration [2017] FCA 958 at [8]-[9], [34]-[37], [41], [46]-[48] (White J); Minister for Immigration v BBS16 [2017] FCAFC 176 at [102]-[105], [111]-[112] (Kenny, Tracey and Griffiths JJ); CHF16 vMinister for Immigration [2017] FCAFC 192 at [44]-[45] (Gilmour, Robertson and Kerr JJ); see also AUS17 v Minister for Immigration & Anor [2017] FCCA 1986; DHH16 v Minister for Immigration & Anor [2018] FCCA 1638
The applicant contends that the Authority here has made the same kind of error as was made in those cases. He submits that, fairly and properly read, the conclusion at [9] of the Authority’s reasons that the Arms Information was not to be considered pursuant to s.473DD of the Migration Act was based only on the fact that the information related to events before the delegate’s decision but was not brought forward earlier and that the applicant had given no explanation for that. The applicant submits that all the Authority did was to describe the opportunities the applicant had earlier in the process to provide the information.[12] Merely setting out the fact that the information was not raised earlier is nothing more than saying it is new information.
[12] see BBS16 at [111]
The applicant contends that by deciding not to consider the Arms Information on such confined reasoning, the Authority fell into error, either because it proceeded upon an unduly narrow construction of s.473DD of the Migration Act or because it acted unreasonably pursuant to that provision.
Further, the Authority is said not to have undertaken any evaluation of the significance of the new information in the context of the applicant’s claims generally.
In the SHEV interview the applicant claimed that his involvement in LTTE activities in 2004 and 2005 included transporting goods.[13] The Authority at [18] accepted the applicant’s claims in relation to this involvement in LTTE activities in that period. The Authority at [18] concluded by accepting that the applicant was forced to assist the LTTE as claimed.
[13] see [12] of the Authority’s reasons
The Authority accepted that the applicant came to the adverse attention of the Sri Lankan authorities in April 2004 under suspicion of transporting goods for the LTTE.[14] But the Authority was not satisfied that he came to the adverse attention of the Karuna Group, or any other arm of the Sri Lankan government, which attention he claimed prompted him to leave Sri Lanka in 2006.[15]
[14] see at [17] and [31]
[15] see [31]
The applicant submits that the Arms Information bears upon the nature of the applicant’s work for the LTTE (that it involved a higher level of support than initially known) and was relevant to assessing the claim that he was targeted by the Karuna Group. Had the Authority considered how the Arms Information related to the earlier claims, it may well have considered that the information should not be excluded from consideration under s.473DD of the Migration Act because it was relevant to assessing his claim of being targeted by the Karuna Group. That is not to say that the Authority had to decide to consider the Arms Information, but it is said to have been required to engage in some evaluation of whether that new information might affect the applicant’s other claims.[16]
[16] BBS16 at [105]
I am not persuaded by these submissions. This was not a case of the applicant raising a new claim which was material in that it could have transformed the review.[17] Rather, it was a case of the applicant attempting to develop a minor and incidental set of asserted facts touched upon in his initial invalid protection visa application[18] which was only raised almost in passing again at the interview with the delegate. The applicant did not adequately explain why the additional details now brought forward could not have been raised before the delegate. The applicant stated that he was not asked for the additional details but he made no complaint of procedural unfairness before the delegate. The sound recording of the delegate’s interview was before the Authority and the inference is open that the Authority had listened to that sound recording.
[17] see DZU17 v Minister for Immigration & Anor [2019] FCCA 491
[18] the applicant’s earlier statement dated 15 August 2013 in that protection visa application is at CB 56-60
The Authority purported to deal with all three elements of s.473DD at [9] of its reasons where it stated:[19]
In the IAA submission, the applicant states that he previously transported ‘arms and equipment’ to the Liberation Tigers of Tamil Eelam (LTTE). He also submits that the Sri Lankan security officers are aware of this and it was ‘the main reason’ that the authorities came in search of him. These new claims [which] were not before the delegate relate to events that pre-date the delegate’s decision. The IAA submission does not explain why this information could not have been provided to the delegate or why it may be considered credible personal information. In the interview with the delegate of 1 March 2017 (SHEV interview), the applicant indicated that he occasionally transported ‘goods’ (unspecified) for the LTTE if requested to do so. He also stated that on one occasion in April 2004 he was falsely accused of transporting goods to the LTTE. At no time did the applicant claim that he transported or provided arms to the LTTE, or that the Sri Lankan authorities were aware that he transported or provided arms (or any goods) to the LTTE, including in his SHEV application, at the SHEV interview, or in the post-SHEV interview submission of 7 March 2017. Further, at no time did the applicant indicate that it was for this reason that he had come to the adverse attention of the Sri Lankan authorities. In the circumstances, I am not satisfied that these new claims represent credible personal information or could not have been provided before the delegate’s decision was made. Neither am I satisfied that there are exceptional circumstances to warrant consideration of these claims.
[19] CB 308
In my view, the Authority in that paragraph did not limit itself to the temporal consideration of the failure to expand upon the claims before the delegate, but also took into account that the new information was an expansion or elaboration of claims already put which was unexplained, save to assert that the applicant had not been asked for the additional details. That went both to the assessment of whether the information was credible personal information and also whether there were exceptional circumstances.
I otherwise agree with the Minister’s submissions in relation to these grounds.
The first three grounds concern what is said to be a failure by the Authority to exercise its jurisdiction by reference to its application of s.473DD to information referred to at [9] of the Authority’s decision record. The applicant submits that the Authority made an error at [9] of the same kind as that identified by the Federal Court in BVZ16. He contends that the Authority determined that the applicant’s information about his having transported arms and equipment for the LTTE was not to be considered pursuant to s.473DD based only on the fact that the information related to events before the delegate’s decision that was not brought forward earlier and for which no explanation had been given.
The applicant’s argument cannot be accepted. First, the Authority did not confine its consideration as to the existence of exceptional circumstances only to the fact that the events described in the new claims occurred prior to the delegate’s decision with no explanation as to why the claims could not have been advanced earlier. The Authority engaged in an analysis of the applicant’s earlier claims and noted that his earlier claim had been simply that he had transported goods for the LTTE. The Authority observed that the claim relating to transporting arms had not been made in his SHEV application, in the delegate’s interview, or in post-interview submissions. What was plainly significant in the Authority’s view was not just the fact that the new claims had not earlier been raised, but that the applicant had made claims concerning the transporting of “goods” for the LTTE without having mentioned that those goods might have been arms and equipment. It is apparent that the Authority’s concerns regarding the escalation of this claim contributed to its finding under s.473DD(b) that the information was not credible personal information.
Further, the applicant does not identify what was exceptional about the applicant’s circumstances which the Authority failed to identify, notwithstanding the applicant’s failure to identify any such circumstances.[20]
[20] AQU17 v Minister for Immigration [2018] FCAFC 111 at [17]
This matter can be distinguished from the authorities referred to in the applicant’s submissions. The grounds fail to establish jurisdictional error by the Authority.
Ground 4 – did the Authority unreasonably fail to consider exercising its power under s.473DC?
The applicant submitted to the Authority that he “could have given more details as to the goods” he transported for the LTTE but that he was not given an opportunity by the delegate to elaborate.[21] The thrust of the applicant’s submission is that he was not given a chance to explain the extent of his work for the LTTE, including providing specific details about the transporting of arms and equipment.
[21] CB 278
Section 473DC of the Migration Act provides:
(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.
In particular circumstances, it may be legally unreasonable for the Authority to fail to exercise the power in s.473DC of the Migration Act.[22]
[22] see Minister for Immigration v CRY16 [2017] FCAFC 210
The circumstances facing the Authority were that it was provided with the Arms Information, together with a submission that the applicant had not been given an opportunity to provide further details about that information by the delegate. The Authority knew that it did not have any further information related to the Arms Information and that the applicant had indicated that he could provide such further information. The Arms Information was not encountered by, and therefore not dealt with by, the delegate. The applicant identified it as the “main reason” he was being pursued by the Sri Lankan authorities at that time. Against this background, and given the Authority had not been satisfied as to whether the Arms Information was credible, the applicant contends that unless the Authority obtained the further information, the Authority was not able to properly assess the applicant’s claims to which the Arms Information was relevant.
By failing to consider whether it should get further information related to the Arms Information from the applicant in these circumstances pursuant to s.473DC of the Migration Act, the Authority is said to have acted unreasonably.
I reject these contentions by the applicant. In short, the applicant having failed to establish fault in the consideration of exceptional circumstances under s.473DD, s.473DC has no work to do. Even if I were wrong in that view, however, and there was a live issue of unreasonableness to consider, in my view it has not been established.
Accepting that there is an implied requirement that the statutory powers in Part 7AA be exercised reasonably, and that there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s.473DC,[23] no such error arose in the present case.
[23] CCQ17 v Minister for Immigration [2018] FCA 1641 at [42]
The Full Federal Court in DGZ16 v Minister for Immigration[24] emphasised that having regard to s.473DA the starting point for the analysis in a case such as this which raises a ground of legal unreasonableness is not through a “natural justice lens”[25] but is to be approached by reference to the Migration Act, in particular the terms of Part 7AA.[26]
[24] (2018) 258 FCR 551
[25] DGZ16 at [69] and [72]-[73]
[26] See also Minister for Immigration v SZVFW (2018) 92 ALJR 713, at [54] (Gageler J), [79] (Nettle and Gordon JJ), and [135] (Edelman J)
Further, the applicant bears the onus of establishing the factual foundation for the conclusion that there was a failure to consider exercise of the discretion and that this was a jurisdictional error.[27] The applicant has not established that there has been such a failure by the Authority. The Court would not infer in the present case that the Authority failed to consider exercising its powers under s.473DC(3). Relevantly, s.473EA(1) does not require the Authority’s statement of decision to include a statement as to the exercise of a procedural decision (which includes whether to exercise a discretion).[28]
[27] see VAAD v Minister for Immigration [2005] FCAFC 117 at [45]; Minister for Immigration v SZGUR (2011) 241 CLR 594 at [67]; ABT17 v Minister for Immigration [2019] FCA 613 at [25]
[28] BCQ16 v Minister for Immigration [2018] FCA 365 at [45], [49]-[50]; DYK16 v Minister for Immigration [2018] FCAFC 222 at [65]; CVS16 v Minister for Immigration [2018] FCA 951 at [29]–[30]; BVD17 v Minister for Immigration [2018] FCAFC 114 at [42], [47]
In the present case, the difficulty for the applicant was that his claims concerning LTTE involvement escalated over time, and the Authority was not satisfied the applicant had given any explanation as to why he could not have told the delegate that he had been asked by the LTTE to transport arms, rather than simply “goods” as he had previously claimed. It was not a matter for the Authority to make out the applicant’s case for him or to invite the applicant to an interview in order to allow the applicant a further opportunity to explain why his new claims concerning having transported arms for the LTTE should be taken into account as new information. This is not a case where the Authority’s “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 [on that appeal] was likely to have, information on his particular circumstances”.[29]
[29] cf CRY16 at [82]
The ground fails to make out any error by the Authority.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 28 June 2019
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