EXV17 v Minister for Immigration
[2018] FCCA 1259
•30 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EXV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1259 |
| Catchwords: MIGRATION – Judicial review – whether failure to properly consider all claims – whether denied an opportunity to comment on a claim – whether jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), Explanatory Memorandum |
| Cases cited: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 Plaintiff M174/2016 v Minister for Immigration & Border Protection & Anor [2018] HCA 16 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 | ||
| Applicant: | EXV17 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 601 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 16 May 2018 |
| Date of Last Submission: | 16 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 30 May 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr PJ Corbould |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 601 of 2017
| EXV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 9 November 2017 the applicant filed an application (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) made on 16 October 2017 in which the IAA affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Safe Haven Protection Visa (“Safe Haven Visa”).
The IAA Decision is found in the Court Book (“CB”) at 175-188. The Court Book was marked as Exhibit 1.
Background
The background to the applicant’s Judicial Review Application is as follows:
a)the applicant is a citizen of Sri Lanka, who left Sri Lanka for India in around 2008, and then left India on 18 October 2012 for Australia where he arrived as an unauthorised maritime arrival on 3 November 2012: CB 19-25 and CB 81-91;
b)on 9 December 2015 the Minister “lifted the bar” pursuant to s.46A of the Migration Act and invited the applicant to apply for a Safe Haven Visa: CB 32-37;
c)on 1 April 2016 the applicant lodged his Safe Haven Visa application (“Safe Haven Visa Application”) making the following claims:
i)the Sri Lankan Army (“SLA”) threatened to kill and harassed the applicant and his father in 2007 during the civil war if they provided food to the Liberation Tigers of Tamil Eelam (“LTTE”) who came to eat at their family restaurant, while the LTTE also threatened them about feeding the SLA, and as a result they had to close their family restaurant in 2007: CB 82;
ii)towards the end of 2006, a friend and his father working in the coconut and mango business in Jaffna were accused by the SLA of having connections with the LTTE, due to a bomb going off near their house, and a week later they went missing and they have never been seen again, and as the applicant and his family did similar types of business in the town it could also have happened to his family: CB 84;
iii)one day in 2007 the applicant and his father went to the market to sell vegetables, before “curfew” when they were suddenly forced to lie on the ground when fighting broke out between the LTTE and the SLA. After the fight disbanded the SLA dragged the applicant’s father away, pointed a gun at him and told them that if one of the SLA died, they would kill ten of them, and then they arrested the applicant’s father: CB 82;
iv)the applicant’s father was released after the applicant’s neighbour told them that the family were good people and that the applicant’s father was not an LTTE fighter as he was accused of being. The SLA kept a photo of the family and said that if a similar incident happened again they would kill his father so the family left Jaffna as they were certain his father would likely have been hurt or killed: CB 82-83;
v)while he was in India, his neighbours in Sri Lanka contacted him and told him that the SLA had visited them asking where he and his family were, thus he is unable to rely on the Sri Lankan government for protection from the SLA and the Sri Lankan police (“SLP”) because the Sri Lankan government controls the SLA and SLP: CB 83; and
vi)if returned he would be arrested “informally” as there is no formal case against him, thus instead of being imprisoned they will just take him away and kill him and he is unable to relocate to another area of Sri Lanka because the risk of harm extends throughout the whole country because even outside of Jaffna, the SLA and the police have his family photo so they will try to find him: CB 84-85;
d)the applicant attended an interview with the Delegate on 7 March 2017 and on 28 March 2017 the Delegate’s Decision was to refuse the applicant a Safe Haven Visa: CB 103 and CB 128-140;
e)the applicant’s case was automatically referred to the IAA and on 7 May 2017 the applicant’s representatives provided a five page written submission in support of the applicant’s Safe Haven Visa (“Applicant’s May 2017 Submissions”);
f)in the Applicant’s May 2017 Submissions the applicant raised a new claim that there is an ongoing investigation being conducted by the Sri Lankan authorities and that there is a real risk that he would suffer significant harm as a result of his sister's status as an asylum seeker: CB 169-174; and
g)on 16 October 2017 the IAA affirmed the Delegate’s Decision not to grant the applicant’s Safe Haven Visa Application: CB 175-188.
IAA Decision
In the IAA Decision the IAA:
a)confirmed it had regard to the material referred by the Delegate under s.473CB of the Migration Act: CB 176 at [3];
b)considered the Applicant’s May 2017 Submissions and:
i)found to the extent that those submissions responded to issues in the Delegate's Decision they would be considered and taken into account; and
ii)was not satisfied that the new claims, firstly, that the applicant was the subject of an ongoing investigation being conducted by the Sri Lankan authorities, and, secondly, that there is a real risk that the applicant would suffer significant harm as a result of his sister’s status as an asylum seeker, could not have been made before the Delegate's Decision was made, or that the new claims constituted credible personal information that if known may have affected consideration of the applicant's claims, or that exceptional circumstances existed to justify considering the new claim: CB 176 at [5];
c)summarised the applicant’s claims for protection and referred to evidence given and statements made by the applicant in his Safe Haven Visa Application and at the interview with the Delegate: CB 177 at [6];
d)identified the relevant legislative provision of the Migration Act to be applied to determine the Safe Haven Visa Application: CB 177-178 at [7]-[8], CB 183 at [31]-[32] and CB 185-188;
e)accepted that:
i)the applicant's father owned and operated a restaurant, and that he provided food to SLA and LTTE members;
ii)the applicant and his father may have experienced a level of harassment and discrimination on the basis of their Tamil ethnicity during the time of the conflict in Sri Lanka; and
iii)the applicant's father was threatened by the SLA for giving food to the LTTE: CB 178 at [10];
f)stated it was plausible, and thus accepted, that the applicant had friends that had gone missing in 2006, however, as the applicant had not provided any evidence to support the alleged reason they went missing, being that they were accused of being part of the LTTE, it was not prepared to speculate on the reason, nor was it satisfied that the applicant was targeted personally or suffered any harm as a result of his friend and his friend’s father going missing: CB 179 at [12];
g)referred to country information reports that the Sri Lankan authorities continued to have an interest in Tamils that left Sri Lanka for India and accepted that the applicant and his family leaving Sri Lanka suddenly in 2007 may have attracted the interest of the SLA and that the SLA made inquiries regarding the applicant and his family shortly after they left Sri Lanka in 2007: CB 179 at [15];
h)noted that in his entry interview the applicant said that he was arrested in India around 2011 as he was suspected by police in India of erecting posters around the time of the birthday of the LTTE leader Prabakaran, and accepted that he was detained for one day then released in the evening: CB 179 at [16];
i)found that the applicant had given a truthful account of his circumstances in Sri Lanka and in India: CB 179-180 at [17];
j)extensively discussed country information concerning the situation in Sri Lanka for Tamils, including those for whom there was evidence of a connection to or membership of the LTTE, and those returning from India, and noted that those Tamils most at risk of monitoring, arrest, detention or prosecution included the LTTE’s former leadership, or members of the LTTE suspected of committing terrorist or serious criminal acts during the conflict in Sri Lanka, or those thought to have provided weapons or explosives to the LTTE, but otherwise there was no evidence to suggest that individuals returning from India would be subject to official or societal discrimination upon their return: CB 180-181 at [19]-[20];
k)accepted that:
i)the applicant and his family had suffered discrimination and harassment on the basis of their Tamil ethnicity and for serving food to the LTTE;
ii)the applicant fled Sri Lanka for India with his family in 2007 because of his father being detained and accused of supporting the LTTE; and
iii)the applicant and his family had a subjective fear of being harmed by the Sri Lankan authorities as a result of this,
but noted the applicant's father was detained only once, briefly after the incident in 2007, was questioned and released without further incident after the applicant's neighbour spoke to the SLA and showed photos of the applicant's family and satisfied the SLA that the applicant's father was not part of the LTTE, and though the SLA took a photo of the applicant's family and threatened the applicant's father, they released him without any harm: CB 181 at [21];
l)was not satisfied that the applicant had previously had, or now has, a profile that would attract the attention of the Sri Lankan authorities or that he would be monitored on his return, as:
i)the applicant left Sri Lanka without incident on a genuine passport in 2007; and
ii)there was no evidence that he is now on a “stop” list at the airport, or that the Sri Lankan authorities have the applicant and his father's names listed as people who have supported the LTTE: CB 181-182 at [22];
m)on the evidence before it was not satisfied that the applicant would:
i)be imputed to hold pro-LTTE opinions on return some ten years after his departure from Sri Lanka, and
ii)now or in the reasonably foreseeable future be viewed as having been a member of, or been imputed to have been a supporter of, or to have any connections to the LTTE: CB 182 at [23];
n)concluded that the applicant does not face a real chance of serious harm from any Sri Lankan authority now or in the reasonably foreseeable future on the basis of:
i)being a young Tamil male from the Northern province of Sri Lanka or from an area formerly controlled by the LTTE;
ii)his experiences during the civil war;
iii)any perceived involvement, association or support of the LTTE;
iv)his father's imputed support for the LTTE;
v)having provided food to the LTTE; or
vi)having resided in India for an extended period of time: CB 182 at [23]-[24];
o)was satisfied that:
i)the applicant has no identity concerns, or criminal or security records that would raise the concern of the authorities;
ii)any altercations the applicant and his father had with the SLA in 2007 would not be known to the Sri Lankan authorities; and
iii)the applicant's activities in India would not raise a concern, or would not give him a profile as a pro-LTTE activist, a supporter of the LTTE diaspora or an activist for Tamil rights or separatism that would cause him to be of adverse interest to the Sri Lankan authorities on return: CB 182 at [26];
p)noted that at most the applicant may be asked about the whereabouts of his family members, who are among tens of thousands of refugees who remain in India, however, given the finding that the applicant has no relevant profile or actual or suspected links to the LTTE, or any record of pro-LTTE political activity, or for any other reason, was satisfied that he will not be at risk of harm during, or as a consequence of this routine investigation, nor would his profile raise suspicion about him that would result in his being followed up and subjected to serious harm “later”: CB 182 at [26];
q)accepted that on return the applicant may be detained for a short period during investigation to establish his identity considering his protracted absence from Sri Lanka and having lived in India and Australia, however, this treatment does not rise to the level of a threat to life or liberty, or to significant physical harassment or ill treatment, or otherwise amount to serious harm, therefore the applicant, as a Tamil asylum seeker with his history, was found not to face a real chance of any harm on that basis: CB 183 at [28];
r)considered whether the applicant would face significant harm based on the claims he has made, and noted that as the “real chance” and “real risk” elements have been found to have the same threshold, was satisfied that there is not a real risk that the applicant would face significant harm based on the claims he has made: CB 183-184 at [33];
s)accepted that the applicant may be questioned and briefly detained at the airport on return to Sri Lanka, but did not accept that there are any particular aspects of the applicant's profile that would result in his being detained for a longer period or subjected to more intensive interrogation that might give rise to significant harm, nor that there is a real risk that the applicant will be subject to the death penalty, arbitrarily deprived of his life, or intentionally inflicted with pain or suffering or extreme humiliation: CB 184 at [34];
t)was not satisfied that there is a real risk that the applicant will face torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, including as a result of conditions he may face during a short period in custody: CB 184 at [34];
u)held there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm: CB 183 at [35]; and
v)affirmed the Delegate’s Decision not to grant the Safe Haven Visa: CB 184.
Judicial Review Application
The Judicial Review Application contained two grounds of review:
1. The Assessor failed to properly consider all of my claims.
2. The Assessor didn’t give me a chance to comment on one aspect of my claim.
The applicant filed an affidavit affirmed on 9 November 2017 accompanying the Judicial Review Application, and annexing a copy of the IAA Decision.
On 8 December 2017, a Registrar of this Court made orders (“Registrar’s Orders”) enabling the applicant to file and serve:
a)an amended Judicial Review Application, giving complete particulars of each ground of review;
b)any further supporting affidavits; and
c)a written outline of submissions.
The applicant did not file any further materials pursuant to the Registrar’s Orders prior to the Judicial Review Application being heard on 16 May 2018.
At the hearing the applicant appeared with the assistance of an interpreter. Notwithstanding the applicant failing to file submissions in accordance with the Registrar’s Orders, the Court invited the applicant to make any oral submissions in support of the Judicial Review Application. The applicant’s oral submissions were as follows:
a)he had been attacked and harassed by the SLA because of a perceived involvement with the LTTE;
b)his older sister had been granted a Protection Visa but he had not been, and that they both submitted the same reasons, and both arrived by boat;
c)his parents still live in India;
d)if he goes back to Sri Lanka there will be problems, and he cannot go back to Sri Lanka as he fears for his life;
e)an assertion that after 2009 there was no discrimination in Sri Lanka was wrong and that underneath there were problems;
f)four of his cousins had been arrested and kept in detention for three years, and had been released after their three years detention, and were now living in France and Canada;
g)people who had already had problems with the Sri Lankan authorities would definitely have problems with them in the future;
h)if he had not had problems in Sri Lanka he would not have gone to India in the first instance and then come to Australia; and
i)he wants a safe place to live and he cannot not go back to Sri Lanka.
Minister’s Submissions
In accordance with the Registrar’s Orders the Minister filed written submissions (“Minister’s Submissions”) seeking the Judicial Review Application be dismissed with costs. The Minister’s Submissions can be summarised as follows:
a)no particulars have been provided in support of the applicant's grounds and the failure to particularise grounds of review is sufficient to warrant dismissal of the application: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760;
b)the assertion that the claims were not properly considered suggests that the applicant is inviting the Court to engage in impermissible merits review contrary to long-standing principle: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”);
c)the IAA considered the applicant’s claims and the Applicant’s May 2017 Submissions thoroughly, and made findings that were open to it on the available evidence, and there is an “evident, transparent and intelligible” justification for its decision: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181;
d)to the extent that this ground is based on the IAA's failure to consider the claims in the Applicant’s May 2017 Submissions that there was an ongoing investigation being conducted by the Sri Lankan authorities and that there was a real risk that the applicant would suffer significant harm as a result of his sister's status as an asylum seeker, there was no jurisdictional error in the IAA's approach as in reaching its conclusion, the IAA expressly considered s.473DD(a) and (b) of the Migration Act and did not fall into the error identified in BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [35]-[37] per White J (“BVZ16”);
e)the applicant was given the opportunity to comment on his claims in that he was invited by the IAA to provide a submission, and did so through his representative by way of the Applicant’s May 2017 Submissions; and
f)under the statutory scheme, the IAA was not required to give the applicant a chance to comment on his claims: EUQ17 v Minister for Immigration & Anor [2018] FCCA 696 at [24] per Judge Lucev (“EUQ17”); COR17 v Minister for Immigration & Anor [2018] FCCA 772 at [26] per Judge Wilson (“COR17”).
Consideration
Jurisdictional error
A decision by the IAA may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. The Court does not consider the merits of the applicant’s application for a Safe Haven Visa or determine if the applicant should be granted the Safe Haven Visa: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
No merits review
The grounds of review the applicant has raised have been considered by the Court in respect of a number of applications for review of migration decisions: EUQ17; COR17; CXZ16 v Minister for Immigration & Anor [2017] FCCA 264 (“CXZ16”). The Court notes in COR17 identical grounds of review were dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) as in the Court’s view the grounds failed to raise an arguable case. Each case must, however, be determined upon its own facts, and the Court must, where an applicant is a non-English speaking self-represented litigant, remain alert to the possibility of legal error in the IAA Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J.
Oral submissions
None of the matters raised in the applicant’s oral submissions allege any jurisdictional or non-factual error by the IAA, and amount to no more than factual assertions in relation to the applicant’s circumstances, rather than a claim of any jurisdictional error by the IAA. It is significant that the submissions related to factual claims (either already made, or in the case of the applicant’s cousins seemingly newly made), and that they did not address the assertions made in the two grounds of review in the Judicial Review Application. The oral submissions were, therefore, no more than a plea for impermissible merits review contrary to long-standing principle: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Lack of Particulars
The grounds of the Judicial Review Application are unparticularised, and the failure to particularise can itself be a sufficient basis to dismiss a Judicial Review Application: WZAVW at [35] per Gilmour J (and the cases there cited); AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; MZARG v Minister for Immigration & Border Protection [2018] FCA 624 at [25] per McKerracher J.
With respect to the identical grounds of review it was stated in COR17 at [19] per Judge Wilson:
Here, it was not possible to ascertain what, in fact or in law, the applicant said constituted the so-called jurisdictional error. No insight was given by the two grounds upon which he relied,
and in CXZ16 at [24] per Judge Driver:
The grounds of review advanced by the applicant convey no real meaning in the absence of particulars
The Court is of the same view, and for that reason considers the Judicial Review Application can be dismissed because of a lack of particulars. Nonetheless, the Court will address the two grounds of review in the Judicial Review Application so far as it is able to do so.
Ground 1
Ground 1 of the Judicial Review Application refers to the failure of the IAA to consider all of the applicant’s claims. It is accepted that the IAA will fall into error where it fails to consider an applicant’s claims to meet the criteria for the visa applied for, and their component integers, which are considerations mandatorily relevant under the Migration Act: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J.
The IAA was aware of the criteria the applicant was required to meet: it set out extracts from s.36(2)(a) and (aa) of the Migration Act: CB 183 at [30] and CB 184 at [35] and CB 187-188, explained in the IAA Decision what was required under s.5J of the Migration Act and the components of a “well-founded fear of persecution”: CB 178 at [8], and the definition of “refugee” in s.5H of the Migration Act: CB 178 at [7] and CB 185.
Without the applicant identifying the particular claims the IAA did not consider, the Court has analysed the materials bearing in mind the obligation not to do so overzealously in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Court observes as follows:
a)the summary of claims provided by the IAA at [6] reflects the summary given in the Delegate’s Decision: CB 129-130, and contains the substance of what the applicant stated in his “Statement of Protection Claims” filed with his Safe Haven Visa Application: CB 79-84;
b)the IAA expressly referenced what the applicant had stated in the interview with the Delegate: CB 176 at [4];
c)an examination of the claims and matters considered by the IAA (as set out at [4] above) indicates that the IAA considered each of the claims made by the applicant which were before the Delegate;
d)the IAA accepted that the applicant gave a credible and reliable account of his claims throughout the process, that he had responded to questions forthrightly and provided details to questions without hesitation at the Delegate’s interview, and that the information did not contain major discrepancies, and was consistent with country information, the result being that the IAA accepted that the claims and incidents referred to by the applicant had occurred: CB 179 at [17]; and
e)in the applicant’s representative’s submissions to the IAA it was not stated the Delegate had overlooked any aspect of the applicant’s claims and rather, save for the reference to the “ongoing investigation” and his sister’s status, it was put that the applicant faced a real chance of persecution and a significant risk of harm for reasons of:
his Tamil ethnicity; his imputed pro-LTTE political opinion; his ongoing investigation being conducted by the Sri Lankan authorities; and his imputed / actual anti-government opinions (as a result of his status as a failed asylum seeker, his sister's status as an asylum seeker, his time spent in India and Australia with the Tamil diaspora and because he attempted to seek asylum in Australia)
The IAA considered each of the applicant’s claims, and addressed the concerns raised by the applicant’s representative: see [4] above. Relevantly, in the Delegate’s Decision the credibility of the applicant was an issue and several claims were not accepted, however, the IAA found that the applicant was credible and accepted each of the applicant’s claims. The IAA’s consideration of the applicant’s claims and credibility shows that the IAA “engage[d] in an active intellectual process directed at that claim or criteria”: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [45]-[46] per Griffiths, White and Bromwich JJ.
The IAA, having accepted the applicant’s claims then considered if the claims amounted to a “real chance” of harm or posed a “real risk” of harm to the applicant if he were returned to Sri Lanka. When referring to country information and noting “…the evidence before me and taking into account the significant positive changes in country information since the applicant's departure from Sri Lanka in 2007”, the IAA found that the applicant did not suffer a real chance or a real risk of harm for the reasons he claimed, and did not face a real chance of persecution upon return to Sri Lanka: CB 182 at [28]-[29].
On the materials before the Court, and subject to what follows at [23]-[29] below, no claims required to be considered by the IAA were not considered by the IAA.
To the extent the applicant may be arguing the IAA failed to consider the claims of an investigation into “his ongoing investigation being conducted by the Sri Lankan authorities” and “his sister's status as an asylum seeker”, the Court refers to the IAA Decision at CB 176 at [5] where the IAA said:
The claim that there is an ongoing investigation being conducted by the Sri Lankan authorities and that there is a real risk that he would suffer significant harm as a result of his sister's status as an asylum seeker have not been raised previously. 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 [raised]. 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.
When introducing Pt.7AA of the Migration Act the Minister stated:
The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia’s protection obligations by the Department of Immigration and Border Protection.
See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), Explanatory Memorandum at page 9.
Sections 473DC and 473DD of the Migration Act provide as follows:
473DC (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 newinformation:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473 DD 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 newinformation 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.
In Plaintiff M174/2016 v Minister for Immigration & Border Protection & Anor [2018] HCA 16 (“Plaintiff M174/2016”) at [29]-[34] per Gageler, Keane and Nettle JJ the plurality in the High Court observed as follows:
29 The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.
30 Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
31 Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
32 The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. No explication of that circumstance is required in the present case.
33 The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “ known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of 'new information' that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's asylum claims by the Minister”. The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.
34 Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.
The test to be applied in determining whether to consider “new information” is a cumulative test, thus the IAA “must not consider” new information unless both of the conditions in s.473DD(a) and (b) of the Migration Act are satisfied: Plaintiff M174/2016 at [31] per Gageler, Keane and Nettle JJ; BVZ16 at [9] per White J. In this case the IAA considered the conditions in s.473DD(a) and (b) of the Migration Act, and concluded that none of the conditions there set out for the consideration of new information were met. That was a conclusion open to the IAA for the reasons it gave: CB 176 at [5].
As the requirements are cumulative and can overlap, it will be possible that the IAA's satisfaction that the new information could not have been provided to the Minister at the time of the decision may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information, hence the IAA should consider the matters in s.473DD(b) of the Migration Act when considering whether there are “exceptional circumstances.”: BVZ16 at [9] per White J. From the structure of the reasons in the IAA Decision it is evident that the IAA adopted this approach: CB 176 at [5].
Having regard to the reasons in the IAA Decision in refusing to consider the new information and claims, considering the purpose of Pt.7AA of the Migration Act, and applying the principle set out in BVZ16, the Court is of the view the IAA committed no jurisdictional error in its consideration of whether to have regard to new information.
In all of the above circumstances no jurisdictional error in the IAA Decision is established by ground 1.
Ground 2
The applicant submits that the IAA failed to give him an opportunity to comment on one aspect of his claims. This submission cannot be made out because:
a)pursuant to s.473DB of the Migration Act, the IAA is to conduct a review and make a decision on the papers, and without the need to provide any opportunity for the applicant to provide further information or to interview the applicant and provide an opportunity for comment: Migration Act ss.473DB(1)(a)-(b) and 473DC(2);
b)if the IAA does invite an applicant to provide new information, under s.473DC of the Migration Act the IAA must apply, and the new information must satisfy, the statutory criteria in s.473DD of the Migration Act in order for the IAA to consider the new information at all in making its decision;
c)the applicant’s representative provided the Applicant’s May 2017 Submissions which were said by the applicant’s representative not to contain “new information”, and which otherwise commented on the applicant’s claims and provided arguments in support of those claims imploring the IAA to take a different view of the Delegate; and
d)therefore, there was no obligation under the Migration Act for the IAA to allow the applicant to comment on “one aspect of his claim” and having invited the applicant to comment he did so, via his representative, and that information, to the extent it was considered admissible, was considered. Otherwise, to the extent that the IAA considered the Applicant’s May 2017 Submissions contained new information, that information was not considered because it did not meet the tests in s.473DD(a) and (b) of the Migration Act for consideration by the IAA: CB 176 at [5].
While the IAA Decision does not cure a defect in the Delegate’s Decision, the IAA nevertheless had the power to invite the applicant to a further hearing pursuant to s.473DF of the Migration Act to ask any comment it felt the Delegate may have overlooked and it wished to have new information upon. Relevantly, the applicant’s representative did not make any allegation in the written submissions that the Delegate did not provide the applicant a meaningful opportunity to address any claim, rather the submissions argued the way in which the Delegate addressed and considered those claims was unreasonable. In any event, in Plaintiff M174/2016 the High Court emphasised the IAA conducted a hearing “de novo” and states at [46] per Gageler, Keane and Nettle JJ:
Non-compliance with s 54, 55 or 56 in making the decision under review, the Minister correctly points out, could have no meaningful impact on the quality of review under Pt 7AA given that performance by the Authority of the central task of considering the application for a protection visa afresh must render moot any failure to consider information that may have occurred on the part of the Minister or delegate in making the decision under review.
The Court finds that ground 2 establishes no jurisdictional error in the IAA Decision.
Conclusion and Orders
The Court finds that there was no jurisdictional error in the IAA Decision, and therefore orders that the Judicial Review Application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 30 May 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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