EXA17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 820

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EXA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 820  

File number:

MLG 2390 of 2017

Judgment of:

JUDGE CHAMPION

Date of judgment:

6 September 2024

Catchwords:

MIGRATION – Safe Haven Enterprise Visa – Fast track reviewable decision – Whether the Authority complied with its obligations under s. 473DC and 473DD of the Act – No error – Application dismissed

Legislation:

Migration Act 1958 (Cth) ss. 5J, 36, 473DC, 473DD, 476

Cases cited:

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146

EMX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 548

FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57

LPDT v Minister for Immigration citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12

Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33

Division:

Division 2 General Federal Law

Number of paragraphs:

56

Date of last submissions:

18 July 2024

Date of hearing:

18 July 2024

Place:

Melbourne

Applicant:

In person

Solicitor for the First Respondent:

Mr Orchard of Sparke Helmore

Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 2390 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EXA17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	6 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The Application is dismissed.

2.The Applicant pay the First Respondent's costs fixed in the sum of $8,371.30.

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 CHAMPION:

WHAT ARE THE ISSUES?

1. The Applicant seeks judicial review of a decision of the Immigration Assessment Authority refusing to grant him a SHEV visa.

2. There are four grounds of judicial review. None of the grounds is particularised.

3. Grounds 1 and 4 are that the Authority misdirected itself as to the law. I have found no error as to Ground 1 or Ground 4.

4. Grounds 2 and 3 are relevancy grounds. Ground 2 is that that the Authority did not take into account relevant information and Ground 3 is that the Authority ignored relevant material. As to Grounds 2 and 3, although the Applicant provided no particulars of the alleged error, the First Respondent, pursuant to its model litigant obligations, raised with the Court an issue as to whether the Authority had complied with its statutory obligations as to considering “new information” under s. 473DD of the Migration Act 1958 (Cth). I have not found any error in the Authority’s approach under s. 473DD.

5. I will dismiss the application. My reasons follow.

   WHAT IS THE RELEVANT BACKGROUND?

6. The Applicant is a citizen of Sri Lanka. He is a Hindu Tamil from the Jaffna District.

7. On 23 January 2017 the delegate refused to grant the Applicant the visa. The application was referred to the Authority under Part 7AA of the Act.

8. The Applicant said that in 1997 the Sri Lankan Army (SLA) took him to a camp for questioning and held him for 13 days. He was tortured on suspicion of being a member of the Liberation Tigers of Tamil Eelam (LTTE). Subsequently, he relocated within Sri Lanka and worked as a driver for the LTTE from 1997 to 2001.

9. The Applicant said that in 2004 he was again taken by the SLA. He said that he was held for two months and again tortured on suspicion of an association with the LTTE. He was released on payment of a bribe.

10. In October 2012 the Applicant arrived in Australia as an unauthorised maritime arrival.

11. Between October 2015 and February 2016, after he arrived in Australia, he claimed that on three occasions, unknown persons in civilian clothing visited his wife in Sri Lanka searching for him.

12. The Authority did not believe significant elements of the Applicant’s narrative of events. Due to inconsistencies between his entry interview, his visa application, and in his oral interview with the delegate, the Authority did not accept that the SLA detained and tortured him in 1997.

13. As to those inconsistencies in statements made at different stages of the visa assessment process as to his detention by the SLA in 1997, the Authority found that the Applicant did not disclose his torture claim in his entry interview. Inconsistently, so the Authority found, in a written statement the Applicant made in support of his visa application he said he had been tortured. In his oral SHEV Interview the Applicant said he had been detained in a camp and then he was released. The Authority noted that the Applicant did not refer to a claim that he was tortured so badly he had to undergo surgery on his leg which it regarded as an omission so significant that it adversely affected his credit.

14. The Authority did not accept that the Applicant worked as a driver for the LTTE between 1997 and 2001. In part, a reason for the Authority’s disbelief was that the Applicant had written “painter” as his occupation in his 2003 passport application and not “driver” (Reasons, [19]).

15. The Authority also did not believe that the SLA had taken the Applicant in 2004, detained, interrogated and tortured him or that he had received his facial scars as a result of events in 2004. In his entry interview, the Applicant made no claim that he had been detained and tortured in 2004 (Reasons, [21]). The Authority did not believe this claim because the Applicant only first made it in his SHEV interview and not at the first opportunity.

16. The Authority was not satisfied that the Applicant was subjected to threats between 2004 and 2012 in Sri Lanka and found his evidence as to what happened between 2004 and 2012 “vague and unpersonalised” (Reasons, [24]).

17. The Authority did not accept that unknown persons had visited the Applicant’s wife in 2015 and 2016. The Authority noted that “no independent evidence has been provided” in support of that claim (at [25]). The Authority continued at [25] that:

    I do not consider it plausible that after three years with no evidence of any interest in the intervening period, unknown people would come looking for the applicant and make threats to his wife.

18. The Authority concluded that this claim was a “fabrication designed to enhance the Applicant’s claims for protection” (Reasons, [25]).

19. At [42] of its Reasons, the Authority said the following:

    I have rejected the applicant’s claims to be a person of interest to the Sri Lankan authorities. I have not accepted that he worked for the LTTE or that he was twice detained and tortured by the authorities on the basis of his suspected links to the LTTE. I accept that he was questioned and on one occasion detained for two days sometime in the period 2004 to 2012. However, he was not harmed in any of these interactions and I have found, in any case, that his later detention was unrelated to his claims for protection. For these reasons I have found that there is not a real chance of harm to the applicant from the SLA or Sri Lankan authorities on his return.

    …

    THE APPLICANT MAKES NO CLAIM OF ANY JURISDICTIONAL ERROR AS TO THE AUTHORITY’S ADVERSE ASSESSMENT OF HIS CREDIBILITY

20. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146, in a discussion at [37]–[42], a Full Court noted that adverse credibility findings may be amenable to judicial review. Adverse credibility findings may be challenged on the basis that there is no logical or probative basis for the adverse finding, or on the basis that the findings are illogical or irrational so as to be characterised as legally unreasonable or that the findings were based on a misunderstanding of the relevant material.

21. In oral submissions before me, the Applicant expressed some concern that he had not been granted a visa because the Authority thought he was a painter, not a driver for the LTTE. Further, in a supplementary written submission filed with leave after trial he wrote that he could not mention that he was an LTTE driver in his passport because it “could have risked my life.” There was a possible inconsistency between the Applicant’s 2003 Sri Lankan passport which records his occupation as “painter”, and his application in support of his visa, in which the Applicant claimed to be a “driver” between 1997 and 2001 for the LTTE. The Authority set out that it did not find the Applicant’s explanation as to this apparent discrepancy to be “persuasive” (Reasons, [19]). It was for the Authority to assess the persuasiveness of the Applicant’s explanation. There was no jurisdictional error in the Authority taking the fact that the Applicant had given apparently divergent accounts of his occupation in his passport and his visa application as one relevant factor (among others) in an adverse assessment of the Applicant’s credibility.

22. Before turning to the Applicant’s four grounds, I note that the Applicant does not, in any event,  allege jurisdictional error on the basis that the Authority’s credibility findings were made in error in any of the ways discussed in CQG15.

    WHAT ARE THE APPLICANT’S GROUNDS?

23. The judicial review application contains four unparticularised grounds. The Applicant did not provide any written submissions in support of them.

    Did the First Respondent err by not applying the real chance test correctly?

24. Ground 1 is that the First Respondent erred by not applying the “real chance” test correctly, a reference to a “real chance” test under s. 5J(1)(b) of the Act that “there is a real chance that, if the person returned to the receiving country, the person would be persecuted” for reasons of race, religion, nationality, membership of a particular social group or political opinion.

25. As written, Ground 1 challenges the delegate’s decision, not the Authority’s decision. This Court has no jurisdiction under s. 476(2)(a) to review a “primary decision” as defined in s. 476(4) being a decision of the delegate because it was referred for merits review under Part 7AA. It is the Authority’s decision, not the delegate’s decision, which is the proper subject of judicial review in this court. If the Authority’s decision is not flawed it cures any defects and irregularities in the delegate’s decision (Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314).

26. If, under Ground 1, the Applicant intended to challenge the Authority’s decision (not the delegate’s decision), he did not explain how the Authority erred in its application of the real chance test. The Authority correctly identified the “real chance” test under s. 5J of the Act at [15] of its Reasons. The Applicant has not proved that the Authority misdirected itself as to the law. Ground 1 has not been made out.

    Did the Authority not take into account relevant information or ignore relevant material (Grounds 2 and 3)?

27. Ground 2 is that the Authority “erred in law by making a decision not taking into [account] relevant information”. Ground 3 is that the Authority “ignored relevant material in a way that affected its exercise of power”. I treat Grounds 2 and 3 together as relevancy grounds.

28. The Applicant has provided no particulars as to what information he alleges the Authority failed to take into account (Ground 2) or what relevant material the Authority ignored (Ground 3). Without these details it is not possible to engage meaningfully with these grounds.

    Did the Authority comply with section 473DD?

29. As noted, the First Respondent, pursuant to its model litigant obligations, addressed me further on whether the Authority had complied with its obligations under s. 473DD of the Act.

30. As the as the plurality of the High Court explained in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 at [2] under Part 7AA the Authority performs its review function by:

    “considering" the "review material" provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral "without accepting or requesting new information" save to the extent that the Authority "gets" new information from the referred applicant or some other person under s 473DC and goes on to "consider" that new information under s 473DD.

    [Footnotes omitted]

31. Accordingly, ss. 473DC and 473DD govern how the Authority “gets” and “considers” new information.

32. A matter conceivably within the broad and unparticularised scope of Grounds 2 and 3 is that the Authority erred because it had not taken into account certain “new information” the Applicant, via his representative, provided to the Authority under ss. 473DC and 473DD.

33. The First Respondent addressed me on whether the Authority’s approach as to this new information complied with the requirements of s. 473DD as explained by the plurality in AUS17. In AUS17 at [11] the plurality said that the Authority will fail to take into account a mandatory relevant consideration if it concludes under s. 473DD(a) that it is satisfied that there are not “exceptional circumstances to justify considering the new information” without first assessing the new information against the criteria specified in both s. 473DD(b)(i) and (ii).

34. There were three categories of “new information” which the Applicant provided to the Authority after the delegate’s decision and to which the Authority referred in its Reasons. The categories were as follows:

    (1)four media articles;

    (2)extracts from country information reports and sources; and

    (3)a submission that the SLA killed the Applicant’s father.

35. I will deal with each of these matters in turn.

36. As to the first category of information, the four media articles, on 13 February 2017, the Applicant’s representative provided four media articles to the Authority, three of which post-dated the delegate’s decision. The substance of the Authority’s Reasons at [4] disclose that the Authority assessed the media articles against the criterion in s. 473DD(b)(i) (noting that because three of the articles post-dated the delegate’s decision, they “could not have been” provided to delegate). The Authority also noted at [4] of its Reasons that the articles provided commentary on the political and security situation in Sri Lanka. The Authority said “the information is country information and does not relate to the applicant personally” which was an assessment of the information against the criterion in s. 473DD(b)(ii). Having noted that there was other information available from a range of “authoritative credible sources”, the Authority was not satisfied that there were “exceptional circumstances” under s. 473DD(a) to justify a consideration of new information as to the four media articles. The Authority assessed the media articles against the criteria in s. 473DD(b)(i) and (ii). There was no error as to the Authority’s approach under s. 473DD as to the four media articles.

37. As to the second category of information, as to the extracts from country information reports and sources, at [8] of its Reasons, the Authority observed that all the country information predated the delegate’s decision. Also, the Authority observed that the country information related to “general country conditions” (Reasons, [8]). Because the Authority referred to the fact that the country information predated the delegate’s decision (see s. 473DD(b)(i)) and referred to the fact that it was not “personal information” (see s. 473DD(b)(ii)), it can be inferred from the Authority’s Reasons that the relevant assessment of the country information as against the s. 473DD(b)(i) and (ii) criteria occurred. As O’Callaghan J said in FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57 at [28]:

    The IAA did not need to engage in a “formulaic consideration” of s 473DD(b), and there is no error if it can be inferred from the IAA’s reasons that the relevant assessment against the s 473DD criteria occurred.

38. As to the third category of information, in submissions to the Authority made on 25 February 2017 the Applicant’s representative had written that: “it must also be noted that the applicant’s father was killed by the army”.

39. It was understandable that the Minister in his oral submissions described this submission of the applicant’s representative as an “errant” submission.  For a matter which was presumably very important to the Applicant, it appeared in an apparently random way in the Applicant’s representative’s document dated 25 February 2017­ – without introduction or context or explanation in the course of a discussion about country information and without any elaboration of its significance for the Applicant’s visa claim. It was unclear as to whether this submission was intentionally made. The information appeared in the context of country information in a report on Sri Lanka published by the Committee Against Torture (CAT) as follows:

    On basis of paragraph 11 of the recent CAT report it is submitted that the applicant faces a real chance of Convention related persecutory treatment as in the past the applicant has been imputed with LTTE involvement / support, it must also be noted that the applicant’s father was killed by the army. It would be unreasonable to give more weight to the 18 December 2015 DFAT report and not consider contents in the more recent CAT report which is reflective of the current situation in Sri Lanka which has been published by a reliable source.

    [Emphasis added]

40. The Authority identified this submission about the Applicant’s father at [9] of its Reasons:

    The submission also makes the claim that the applicant’s father was killed by the army. This claim has not previously been made by the applicant. There is no suggestion in the information presented to the Department that the applicant’s father was killed by the army. The applicant in fact stated in his SHEV application that his father continues to reside in [place name omitted] . This claim appears to have no relevance to the applicant’s claims. I am not satisfied that the requirements of s.473DD are met in relation to this material and I have not considered it.

    [Emphasis added]

41. As the Authority noted, in his written visa application received on 18 March 2016, the Applicant had recorded that his father was living in Sri Lanka.  

42. In AUS17, the plurality said at [3] that under s. 473DC information will amount to “new information” if it meets two conditions:

    The first is that the information was not before the Minister  at the time of making the referred decision. The second is that the Authority considers that the information might be "relevant" to the review, meaning that the Authority thinks that the information might be capable of rationally affecting its assessment of the probability of the existence of some fact about which it might be required to make a finding in its decision on the review.

    [Footnotes omitted; emphasis added]

43. As a result, under s. 473DC(1), before it goes on to consider s. 473DD, the Authority must consider the information “may be relevant” under s. 473DC(1)(b).

44. As to the Applicant’s claim that his father had been killed by the army, the Authority held at [9] of its Reasons that: “This claim appears to have no relevance to the Applicant’s claims”. The Authority was not satisfied that the information was relevant under s. 473DC(1)(b). Because it was not satisfied that the information was relevant, it was not required to go on and consider whether there were exceptional circumstances under s. 473DD(a) and assess the information against the s. 473DD(b)(i) and (ii) criteria and for considering the information because the Authority was not satisfied the information had crossed the threshold that it “may be relevant”.

1. In support of this construction of the statute, the Minister referred me to EMX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 548 where Jackson J held at [61]:

   The Authority thus engaged with the question of whether the information could be relevant, and the state of mind that it reached was that it did not consider (think) that the information may be relevant. It is difficult to see what more was required of the Authority.

2. The Applicant pressed only relevancy grounds. The Applicant did not submit that the Authority’s conclusion that the information about his father was not relevant was a conclusion reached outside the bounds of legal reasonableness.

3. In conclusion, as to the Applicant’s submission that the army had killed his father, there was no error in the Authority not considering that information and not assessing it by reference to the criteria in s. 473DD(b)(i) and (ii) once it had concluded that it was not relevant under s. 473DC(1)(b).

4. If I am wrong, the Minister conceded the Authority did not assess the information about the army having killed the Applicant’s father against the criteria in s. 473DD(b)(i) or (ii).

5. On the scenario that I am wrong, there has been an error because the Authority did not assess the information against the criteria in s. 473DD(b)(i) or (ii).

6. Again, on that scenario, as the High Court said in LPDT v Minister for Immigration citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12 at [9]: “there are two questions: has an error occurred; and, if so, was that error material”.

7. As to whether the postulated error was material, in LPDT at [14], the High Court framed the relevant question as follows: “whether the decision that was in fact made could, not would, “realistically” have been different had there been no error”. I have before me the Authority’s actual treatment of the information about the fact that the army killed the Applicant’s father. The Authority said it was not relevant. Further, an error will not be material if “there is identified a basis on which it can be “affirmatively concluded that the outcome would inevitably have been the same had the error not been made” (LPDT, [16]). In this case, the Authority concluded at [30]:

   The applicant does not have any kind of profile that country information suggests may place him at risk of being imputed as a supporter of a separate Tamil state. I have not accepted that he performed work for the LTTE in the [place name omitted] and have rejected his claims to have been twice detained and tortured by the authorities on suspicion of LTTE involvement or affiliation. I am not satisfied that there is a real chance of serious harm to the applicant if he is returned to Sri Lanka on the basis of his ethnicity, imputed political opinion, his gender, or the fact that he is from an area that was formerly under the control of the LTTE.

8. Even if the Authority had considered the information that the SLA killed the Applicant’s father, in the absence of any material as to how his father’s death heightened the Applicant’s profile with the authorities, the Applicant has not persuaded me that any error was material. Inevitably, the result would have been the same having regard to the Authority’s conclusion set out in the preceding paragraph (at [30] of its Reasons) that without further material that supported a finding that the Applicant’s profile was heightened with the authorities because of his father’s killing, the Applicant did not have a profile that placed him at risk with the authorities.

   Did the Authority fail to apply the complementary protection provision correctly?

9. Ground 4 is that the Second Respondent failed to apply the complementary protection criteria correctly. Ground 4 sits alongside Ground 1 as a claim that the Authority misdirected itself as to the law.

10. The Applicant has not developed any argument as to how he submits that there was error in the Authority misdirecting itself as to the law. In its Reasons at [41], the Authority correctly identified the meaning of “significant harm” set out in s. 36(2A) of the Act. At [42] of its Reasons, the Authority correctly identified that the “real chance” test under the Refugees Convention criterion and the “real risk” test under the complementary protection criterion involved the “same standard” and referred to the leading authority of Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33) (see: Gordon and Lander JJ, [246]). I find no error.

11. Ground 4

    has not been made out.

    
    

    WHAT IS MY CONCLUSION?

12. I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate: IE

Dated:       6 September 2024