FEZ17 v Minister for Immigration
[2018] FCCA 1216
•14 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FEZ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1216 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for an extension of time – whether the applicant had a satisfactory explanation for the delay – whether the Authority erred in determining that exceptional circumstances existed to justify the consideration of new information – whether the Authority failed to act in accordance with s.473DC(1)(b) of the Act – no sufficiently arguable case identified by proposed grounds to warrant an extension of time – application for an extension of time under s.477 of the Act is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 57, 473CB, 473DC, 473DD, 473DE, 476, 477 |
| Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 |
| Applicant: | FEZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3699 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 14 May 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges Hodges Legal |
| Solicitors for the Respondents: | Mr T Galvin MinterEllison |
ORDERS
Grant leave to the applicant to rely upon the amended application filed in Court initialled by me and dated today.
Grant leave to the applicant to file in Court the applicant’s outline of submissions.
Direct the applicant’s solicitor to file the amended application by 5:00pm today if it is has not already been processed.
The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3699 of 2017
| FEZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for an extension of time under s 477 of the Migration Act1958 (Cth) (“the Act”) in respect of proceedings commenced on 21 December 2017. These proceedings are seeking a Constitutional writ within the Court’s jurisdiction under s 476 of the Act in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 23 August 2017.
The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against the country. The applicant arrived in Australia on 28 September 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise Visa on 14 July 2016 and attended an interview on 23 November 2016. The applicant claimed to fear harm by the Sri Lankan authorities if he is returned to Sri Lanka on account of his Tamil ethnicity, his imputed association with the Liberation Tigers of Tamil Eelam (“LTTE”) and as a failed asylum seeker who sought refugee status in Australia.
The applicant identified particular events alleged to have occurred in 1995, 2000, 2001, 2006, information from the applicant’s wife, the applicant going into hiding in 2007, whilst living in Qatar his brother-in-law was abducted, returning to where his family had moved in 2009 until the CID came in 2010, and that he went in hiding again until 2011, and that it was alleged the CID would go to his wife’s house four times a month asking about him. The applicant claimed that as a result, the applicant decided to travel to Malaysia and then on to Australia. The applicant also alleged that in November/December 2015 two unknown men in civilian uniforms came to where his wife was living looking for him and she told them he had left for Australia. On 9 December 2016 the delegate found the applicant failed to meet the criteria for the grant of a protection visa.
The Authority
On 14 December 2016, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. No such documents were provided.
The Authority identified the applicant’s background to the visa application and had regard to the information provided under s 473CB of the Act, and noted that no further information was provided by the applicant. The Authority made express reference to s 473DC(1) of the Act in relation to having obtained an updated DFAT country information report dated 24 January 2017. An earlier country information report of 18 December 2015 was identified in the delegate’s decision relevantly referred to in footnotes 78, 83, and 85 of the delegate’s reasons.
The Authority identified that the new information related to treatment of Tamils and of persons who had departed Sri Lanka illegally and sought asylum overseas, as well as the current situation for Tamils in Sri Lanka under the new government. The Authority identified that the 2017 DFAT country information report was published after the date of the delegate’s decision. The Authority identified the principle that the DFAT country information report of 24 January 2017 was the most recent assessment of the situation in Sri Lanka and had been prepared specifically for the purpose of protection status determination. The Authority also made reference to the fact that the delegate had referred to earlier DFAT assessments, and in particular the 2015 country information report, was identified in the delegate’s reasons, as I have referred to. The Authority was satisfied there were exceptional circumstances to justify considering the new information under s 473DD of the Act.
The Authority proceeded to identify the applicant’s claims and summarised the relevant law. The Authority accepted the applicant was a Tamil Hindu and that he lived in a particular area where fighting intensified in 1995 and that he and his family were forced to hide in a bunker in that area for long periods of time and that his aunt was killed in that area in a bomb attack. The Authority found that other than the death of aunt, that the fighting in that area had now ongoing repercussions for the applicant.
The Authority found that in 2000 the applicant and his family moved to an area near Jaffna, and that they were registered in Jaffna, and that he married his wife in 2002. The Authority found that the applicant started working as a three-wheeler driver for fares in 2002 and that in 2006 he was required to display certain flags associated with the LTTE. The Authority found it was not credible that the applicant had to have been singled out on account of all auto drivers having to display LTTE flags and did not accept that this was an explanation for the interest he claimed the authorities displayed him in 2006.
The Authority did not accept as a result of its finding regarding when he started working that from 2002 until 2006 the applicant and his wife stayed indoors for their safety, that he only started working in 2006, and that he was stopped for the first time by the authorities in 2006. The Authority rejected as a fabrication the claim that the applicant was stopped by the SLA in 2006 with respect to the authorities coming to his home, interrogating his wife and mother about him, accusing him of being an LTTE member, accusing them of assisting to hide him, and telling them to bring him to the government camp the next day.
The Authority was not satisfied the applicant went to the SLA camp in 2006 with his family and that the CID told him he needed to return the following day himself. The Authority rejected as fabrications the applicant’s claims that he was in hiding in 2006 for three months and that, during this time, the CID came looking for him and threatened his wife that he would be killed.
The Authority did not accept the applicant was arrested, detained for six days, and beaten repeatedly with a view to him confessing he was a member of the LTTE. The Authority did not accept the applicant lived in hiding in Colombo whilst waiting to go to Qatar, and instead found that the applicant would have registered as a resident of the home where he had stayed in Colombo and that he lived as a registered resident in Colombo until he lawfully left to Qatar in August 2007. The Authority accepted the applicant’s brother-in-law was arrested and went missing in 2008, and that his family has been unable to locate him or find out what happened to him. The Authority did not accept that his brother-in-law was abducted because the authorities were looking for the applicant and took his brother-in-law instead.
The Authority found that if the Sri Lankan authorities were genuinely concerned about the applicant he would not have been permitted to depart Sri Lanka for Qatar in August 2007. The Authority was not satisfied that at that time or in 2012 when he was travelling lawfully to Malaysia on his own passport that the applicant was a person of interest to the authorities. The Authority did not accept that in 2010 the CID came to his house looking for him, that the applicant was in hiding at any time after his return from Qatar, or that the authorities visited his wife’s house inquiring after him four times a month after he went to live elsewhere in early 2013.
The Authority accepted Tamils have been imputed as LTTE supporters and targeted by authorities on that basis. The Authority, however, found on the basis of the country information the situation for Tamils has improved since the applicant’s departure and continues to do so. The Authority accepted the Sri Lanka Government remains sensitive to potential re-emergence of the LTTE and that there is evidence that persons viewed as sympathisers to the LTTE continue to be harassed and detained by authorities. The Authority however, found that the applicant does not fit this profile and instead, that there is no evidence to suggest that he has, or would be suspected to have engaged in such activities or that his name would be on a stop list. The Authority was not satisfied there is a real chance that the applicant would face serious harm on return to Sri Lanka because of his gender, Tamil ethnicity, imputed political pro-LTTE opinion, or geographical origins now or in the reasonably foreseeable future.
The Authority found the applicant departed Sri Lanka legally, and the Authority did not consider that he was at risk of prosecution for illegal departure. The Authority accepted the applicant may be identified as a person who claimed asylum in Australia, but did not accept the applicant would face harm for this reason. The Authority found the applicant left Sri Lanka legally using his own passport, and found there is not a real chance that he would be detained in prison for any length of time or otherwise subjected to harm. The Authority found the applicant did not meet the definition of “refugee” in s 5H(1) of the Act, and found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The application for a Constitutional writ in this Court was filed 63 days outside the time period provided under s 477 of the Act. The factors that the Court will take into account in considering whether to extend time have been identified in a number of cases and in summary, are the extent of the delay, the explanation for the delay, any prejudice the first respondent might have suffered because of the delay, and the merits of the proposed application.
The extent of the delay in the present case is 63 days, and the applicant has proffered an explanation that he did not receive the decision and was only informed of the decision on 26 October 2017, that he was not represented, that he had moved house, that he had checked with his housemates to see if they had received a letter but they said they had not, that he was not sure why he had not received the decision, and that he took steps once notified, to obtain a solicitor. The applicant claimed that he was advised by a solicitor that he did not have sufficient prospects for them to act and as a result, obtained assistance from a volunteer.
The first respondent submits that this was not a sufficient explanation for the delay. I accept the first respondent’s submission in that regard. On the material before the Court, the applicant was validly notified of the decision and acknowledges that he continued to reside at the same address to which the decision was sent. In accordance with the statutory regime, the applicant was taken to have received the decision and had 35 days to commence the proceedings in this Court. The applicant’s explanation for the delay is unsatisfactory.
No particular prejudice is said to have been suffered by the first respondent. The first respondent however, submits the merits of the application do not warrant an extension of time. In that regard, Mr Hodges, the solicitor on behalf of the applicant, was granted leave to file an amended application.
The amended application raised the following two proposed grounds:
Ground 1
The Authority fell into jurisdictional error in determining that exceptional circumstances existed to justify the consideration of new information.
PARTICULARS
a. At paragraph 3 of its decision, the Authority acknowledged that it had obtained the new Department of Foreign Affairs and Trade (DFAT) Country Information report dated 24 January 2017.
b. The report was considered to be new information since it published after the delegate's decision had been finalised and therefore was not before the delegate.
c. The Authority was satisfied that exceptional circumstances existed for the consideration of the new information on the basis that the DFAT report contained information which related to the situation in Sri Lanka and had been prepared specifically for the purpose of protection status determination.
d. In making this finding, the Authority adopted an unduly broad interpretation of the term 'exceptional circumstances'.
e. The amendment of a report, which includes information that is relevant to the applicant’s case only in a broad sense, is hardly exceptional.
Ground 2
The Authority committed jurisdictional error by failing to act in accordance with s 473DC(l)(b) of the Migration Act 1958 (Cth).
PARTICULARS
a. Section 473DC(l) of the Migration Act 1958 (Cth) provides that:
(1) ... 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.
b. In paragraph 3 of its decision, the Authority notes that it obtained the new DFAT report " in accordance with s 473DC(l)".
c. The Authority satisfies the first limb of the test outlined in s 473DC(l) by stating that the report was published after the date of the delegate's decision and therefore wasn't before the delegate.
d. However, the Authority does not turn its mind to considering whether the new information referred to it was relevant.
Ground 1
In support of proposed ground 1, Mr Hodges relied upon the recent decision in the High Court of Australia Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, referring to the provisions of Part 7AA and in particular, s 473DC, s 473DD, and s 473DE of the Act. That decision identified that there are circumstances where it will be legally unreasonable for the Authority to not exercise the discretionary power to receive new information or to provide the applicant with an opportunity to attend an interview in circumstances where for example, there is a new issue such as relocation that the applicant has not had an opportunity to meet. No such issue arises in the present case.
It is a legal principle applicable to this area of administrative law that the administrative decision-maker should take into account the most recent country information. Mr Hodges submitted in support of proposed ground 1 that the Authority had failed to identify the difference between the 2015 and 2017 DFAT country information reports and why the 2017 DFAT country information report could be said to be relevant in exercising the Authority’s power to find that there were exceptional circumstances to justify considering the new information. Mr Hodges submitted that it was not apparent why the DFAT country information report of 2017 could be said to be relevant, and that there was no express reference to the relevance of the same in the Authority’s reasons. The Authority’s reasons made clear the relevance of the 2017 DFAT country information report in paragraph 3 as referred to above where the Authority describes its significance in respect of Tamils and persons who have departed Sri Lanka illegally and sought asylum whilst overseas as well as the current situation for Tamils in Sri Lanka. Further, the Authority expressly identified in the Authority’s reasons, to the delegate’s earlier reliance upon DFAT assessments. That is clearly a reference to the 2015 country information report as well as other information.
Mr Hodges submitted that there being further country information is not something that is unusual or out of the ordinary and accordingly, the mere existence of updated country information could not of itself meet the requirement of exceptional circumstances without further identification of its significance. The Authority did identify its significance, and the Authority on its face properly exercised the power under s 473DC of the Act in holding that the 2017 DFAT country information report was new information. The exercise of the Authority’s power to receive the same on the basis of there being exceptional circumstances was open on the face of the Authority’s reasons and was not legally unreasonable. The Authority’s reasons are not to be read with a keen eye for error. The description of the significance of the 2017 DFAT country information report identifies its relevance and reflects the Authority properly considering the limbs of s 473DC of the Act. I do not accept that proposed ground 1 has a sufficiently arguable prospect on the merits to warrant an extension of time.
Ground 2
In relation to proposed ground 2, Mr Hodges referred to the significance of the relevance of the material and in particular, the requirements of s 473DC(1)(b) of the Act and referred to a definition of “relevant information” found in s 57 of the Act, and that the Authority had failed to consider the relevance of the 2017 DFAT country information report and failed to discern the material the subject of that report. Mr Hodges submitted that the Authority accordingly acted in contravention of Part 7AA in receiving the updated country information.
As I have just indicated in relation to ground 1, it is apparent that the Authority took into account the significance of the country information related to the applicant’s claim. It was open to the Authority to find that there were exceptional circumstances to receive the country information in the present case for reasons identified by the Authority. I do not accept that the Authority failed to take into account the relevance of the material. The material was patently relevant as a result of being updated country information that was not available at the time of the delegate’s decision, and being information of the same kind that the delegate had taken into account earlier. No sufficiently arguable case is identified by proposed ground 2 to warrant an extension of time.
Conclusion
The Court is not satisfied in the interests of the administration of justice, that it is necessary to extend time in the circumstances of the present case. The Court is not satisfied of the explanation for the delay and the merits have an insufficient prospect of success to warrant an extension of time under s 477 of the Act. Accordingly, the application for an extension of time under s 477 of the Act is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 2 July 2018
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