EXV17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

EXV17 v Minister for Home Affairs [2018] FCA 1780

Appeal from: EXV17 v Minister for Immigration & Anor [2018] FCCA 1259
File number(s): WAD 250 of 2018
Judge(s): DERRINGTON J
Date of judgment: 21 November 2018
Catchwords: MIGRATION – Judicial review – whether failure to properly consider all claims – whether denied an opportunity to comment on a claim – whether jurisdictional error
Legislation: Migration Act 1958 (Cth)
Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

GBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16

SZKMS v Minister for Immigration and Border Protection [2008] FCA 499

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 16 November 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 56
Counsel for the Appellant: Mr D Godwin
Solicitor for the Appellant: Stephen Hodges Solicitor
Counsel for the Respondents: Mr T Reilly
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

WAD 250 of 2018
BETWEEN:

EXV17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

DERRINGTON J

DATE OF ORDER:

21 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application for leave to amend the Notice of Appeal is refused.

2.The appeal is dismissed.

3.The appellant is to pay the first respondent’s costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

  1. This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (FCC), delivered on 30 May 2018 which dismissed an application for judicial review of a determination of the Immigration Assessment Authority (IAA) to affirm the decision of a delegate of the Minister for Immigration and Border Protection. The decision of the delegate was to not grant the appellant a Safe Haven Enterprise visa (SHEV) because it was not satisfied that Australia owed the appellant protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

  2. On 7 June 2018, the appellant filed a Notice of Appeal from the decision of the FCC. The notice was drafted by the appellant.

    Background

  3. The appellant is a citizen of Sri Lanka, he left Sri Lanka in 2008 and went to India until 18 October 2012, when he left for Australia.  He arrived here as an unauthorised maritime arrival on 3 November 2012.  On 1 April 2012, he lodged an application for a…

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Details
Case
[2018] FCA 1780
Decision Date

CaseChat Overview and Summary

EXV17 v Minister for Home Affairs concerned a citizen of Sri Lanka who sought to appeal the decision of the Immigration and Asylum Reviewer (IAA) to uphold the delegate's refusal of his application for a Subclass 866 Special Humanitarian Visa (SHEV). The appellant claimed that he faced persecution in Sri Lanka due to threats from the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE), as well as concerns about his family's safety. The IAA reviewed the decision, considering whether it was appropriate to consider new information presented by the appellant's representative, which included claims of an ongoing investigation by the Sri Lankan authorities and fears related to his sister's asylum status in Australia. The IAA decided not to consider the new information, as it did not meet the criteria for being deemed "new" under the Migration Act.

The central legal issue was whether the IAA erred in failing to properly consider the appellant's claims and whether the appellant was denied an opportunity to comment on a new claim. Additionally, the court examined whether there was a jurisdictional error in the IAA's decision not to consider the new information presented by the appellant's representative. The court needed to determine whether the IAA's decision was lawful, reasonable, and based on the correct application of the law concerning the consideration of new information.

The court found that the IAA appropriately exercised its discretion in deciding not to consider the new information presented by the appellant's representative. The IAA correctly identified that the new claims were not supported by credible personal information that, if known, may have affected the consideration of the appellant's claims. Furthermore, the IAA was not satisfied that exceptional circumstances existed to justify considering the new information. The court held that the IAA's decision was lawful and based on a proper consideration of the relevant legal principles and statutory provisions.

In conclusion, the appeal was dismissed, and the decision of the IAA was upheld. The appellant was ordered to pay the costs of the appeal. This decision underscores the importance of timely and credible information in visa applications and the IAA's discretion in considering new information in such cases.

Orders

Orders of the court

1. The application for leave to amend the Notice of Appeal is refused.

2. The appeal is dismissed.

3. The appellant is to pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

On 7 June 2018, the appellant filed a Notice of Appeal from the decision of the FCC. The notice was drafted by the appellant.Background The appellant is a citizen of Sri Lanka, he left Sri Lanka in 2008 and went to India until 18 October 2012, when he left for Australia. He arrived here as an unauthorised maritime arrival on 3 November 2012. On 1 April 2012, he lodged an application for a SHEV. In support of that application, he made claims to the following effect:(a)That in 2007 the Sri Lankan Army (SLA) threatened to kill him and harassed him and his father on the basis that the father had provided food to members of the Liberation Tigers of Tamil Eelam (LTTE) when they ate at the family restaurant. He also claimed that, in turn, the LTTE threatened them for providing food to the SLA at the restaurant. Consequently, they had to close their restaurant in 2008.(b)A friend and his father went missing after being accused by the SLA of being connected to the LTTE because a bomb exploded near their house. The suggestion was that the friend was abducted by the SLA and, perhaps, killed. The friend and his father had worked in the coconut and mango business. It was put that because the appellant and his family did similar work, they might also be abducted.(c)In 2007, the appellant and his father visited a market to sell vegetables and were forced to lie on the ground after fighting broke out between the LTTE and SLA. The appellant’s father was dragged away, a gun was pointed at him and he was arrested. The captor said that if one of the SLA died, they would kill 10 of the local people. (d)The appellant’s father was released after a neighbour told the SLA they were good people and that the father was not a LTTE fighter. The SLA, allegedly, kept a photo of the family and said that if anything similar happened they would kill the father. For this reason, the family left Jaffna and migrated to India.(e)While in India, his neighbours in Sri Lanka told him the LSA was looking for the appellant and his family. The appellant is unable to rely upon the protection of the Sri Lankan police because it is controlled by the government, which also controls the SLA.(f)If he returns to Sri Lanka, the appellant will be arrested ‘informally’ because there is no proper case against him. So, rather than being imprisoned, they will just take him away and kill him. The appellant is unable to relocate to another part of Sri Lanka because the SLA will find him because they have his family photo. On 7 March 2017, the appellant attended an interview with the delegate and on 28 March, the delegate made the decision to refuse the application. That decision was automatically referred to the IAA. On 8 May 2017, the appellant’s representative provided written submissions in which a new claim was raised, being that there was a real risk the appellant would suffer significant harm because of his sister’s status as an asylum seeker. Consideration by the IAA In a letter dated 31 March 2017, the IAA acknowledged that the matter had been referred to it and noted that the Department had provided all the relevant documents. It was also noted that the IAA would proceed to make a decision on the basis of the information sent to it by the Department, unless it decided to consider new information. The letter stated that the IAA only considered new information in limited circumstances, which were explained in the factsheet and Practice Direction attached.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 28 April 2017, the appellant’s representative sent to the IAA a request that the appellant’s SHEV application and audio recording of his interview be provided. On 1 May 2017, the IAA provided those documents to the appellant’s representative. A week later, on 8 May 2017, the IAA received a cover letter and written submissions from the appellant’s representative. The IAA’s decision At the commencement of its reasons, the IAA outlined the information which it had regarded in making its decision, including the material given to it by the Department. It also noted the IAA received a written submission on 8 May 2017, which stated that all information provided was based on material which had been before the delegate and that no “new information” within the meaning of s 473FB, was included. The IAA considered the contents of the submissions for the purposes of ascertaining whether they contained “new information” within the meaning of s 473DC(1) of the Act. It classified parts of the submission as being arguments responding to issues in the delegate’s decision and, as such, not information which might be regarded as “new”. It had regard to those parts in making its decision. The IAA then identified that claims not previously raised were included in the submissions. Specifically, it identified the claim that there was an ongoing investigation being conducted by the Sri Lankan authorities into the appellant and, secondly, the claim that there was a real risk that he would suffer significant harm as a result of his sister’s status as an asylum seeker. In relation to these matters the IAA said:There was no information before the Minister that there is an ongoing investigation being conducted by the Sri Lankan authorities in relation [to] the applicant. Although there was information before the Minister that the applicant’s sister has sought asylum in Australia, the claim that the applicant feared harm because of that was not. There is no explanation in the submission as to why these claims are only being made now. I am not satisfied that the information could not have been provided before the delegate’s decision was made or that it is credible personal information that if known may have affected consideration of the applicant’s claims. Nor am I satisfied that exceptional circumstances exist to justify considering this new information.The decision then went on to consider the substance of the matter. The decision summarised the appellant’s claims and then considered whether the appellant was a refugee, in accordance with s 5H(1) of the Act. It was noted that the appellant’s claims had been presented “quite consistently at all stages” with the result that many parts of them were accepted. The IAA considered the available Country Information, including that which supported the finding that a person being of Tamil ethnicity would not, of itself, warrant international protection. It also considered Country Information relating to the return of Tamils to Sri Lanka from India. The information derived from the Department of Foreign Affairs and Trade noted that while the process of returning from Tamil Nadu to Sri Lanka can involve some administrative and lifestyle difficulties, there is no evidence to suggest that individuals would experience office or societal discrimination upon their return.

Ratio Decidendi

Legal Principle Established

On 7 March 2017, the appellant attended an interview with the delegate and on 28 March, the delegate made the decision to refuse the application. That decision was automatically referred to the IAA. On 8 May 2017, the appellant’s representative provided written submissions in which a new claim was raised, being that there was a real risk the appellant would suffer significant harm because of his sister’s status as an asylum seeker. Consideration by the IAA In a letter dated 31 March 2017, the IAA acknowledged that the matter had been referred to it and noted that the Department had provided all the relevant documents. It was also noted that the IAA would proceed to make a decision on the basis of the information sent to it by the Department, unless it decided to consider new information. The letter stated that the IAA only considered new information in limited circumstances, which were explained in the factsheet and Practice Direction attached. That Practice Direction indicated that new information, or a submission as to why the applicant disagrees with the decision of the Department or any claim or matter presented to the Department that was overlooked, must be provided within 21 days of the referral. On 14 April 2017, the appellant wrote to the IAA by email and requested a 14 day extension of the deadline by which he was to submit further documents to the IAA. He claimed that in the Protection Visa interview the interpreter did not accurately translate his statements and that led to his being refused a visa. On 18 April 2017, the IAA responded to that request saying that an extension would not be granted, but no decision would be made before 28 April 2017 and any submission received before then may be considered. On 28 April 2017, the appellant’s representative sent to the IAA a request that the appellant’s SHEV application and audio recording of his interview be provided. On 1 May 2017, the IAA provided those documents to the appellant’s representative. A week later, on 8 May 2017, the IAA received a cover letter and written submissions from the appellant’s representative. The IAA’s decision At the commencement of its reasons, the IAA outlined the information which it had regarded in making its decision, including the material given to it by the Department. It also noted the IAA received a written submission on 8 May 2017, which stated that all information provided was based on material which had been before the delegate and that no “new information” within the meaning of s 473FB, was included. The IAA considered the contents of the submissions for the purposes of ascertaining whether they contained “new information” within the meaning of s 473DC(1) of the Act. It classified parts of the submission as being arguments responding to issues in the delegate’s decision and, as such, not information which might be regarded as “new”. It had regard to those parts in making its decision. The IAA then identified that claims not previously raised were included in the submissions. Specifically, it identified the claim that there was an ongoing investigation being conducted by the Sri Lankan authorities into the appellant and, secondly, the claim that there was a real risk that he would suffer significant harm as a result of his sister’s status as an asylum seeker. In relation to these matters the IAA said:There was no information before the Minister that there is an ongoing investigation being conducted by the Sri Lankan authorities in relation [to] the applicant. Although there was information before the Minister that the applicant’s sister has sought asylum in Australia, the claim that the applicant feared harm because of that was not. There is no explanation in the submission as to why these claims are only being made now. I am not satisfied that the information could not have been provided before the delegate’s decision was made or that it is credible personal information that if known may have affected consideration of the applicant’s claims. Nor am I satisfied that exceptional circumstances exist to justify considering this new information.The decision then went on to consider the substance of the matter.