Fir17 v Minister for Immigration
[2019] FCCA 1678
•14 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FIR17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1678 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s claims of past harm substantially rejected and his fears of future harm found not to be well-founded – whether the Authority erred in deciding whether to accept new information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CA, 473DC, 473DD, 473DE |
| Cases cited: AQU17 v Minister for Immigration [2018] FCAFC 111 DYS16 v Minister for Immigration (2018) 260 FCR 260; [2018] FCAFC 33 Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600; [2018] HCA 16 R v Kelly [1999] UKHL 4; [2000] QB 198 |
| Applicant: | FIR17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3773 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application as amended by leave granted on 18 June 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3773 of 2017
| FIR17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 7 November 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who came to Australia in 2012 and on 10 March 2016 applied for a SHEV.[1] The applicant’s claims for protection are summarised in the Authority’s decision record at [21].[2]
[1] Safe Haven Enterprise Visa; Court Book (CB) 1, 90
[2] CB 716-718
The matter before the delegate
In a statement attached to the SHEV application[3] the applicant claimed that he had lived in the area of Batticoloa in the east of Sri Lanka. The history that he gave can be relevantly summarised as follows:
a)in 2006 he was appointed by Nestle Sri Lanka as a sales representative with a territory including Batticaloa town and nearby places;
b)in 2007 he was abducted by the LTTE,[4] threatened and told to distribute goods to them through a local Muslim trader and cooperatives run by the LTTE. He agreed and was released. He did as the LTTE told him to do. The LTTE did not, at least on one occasion, pay for the goods delivered to them;
c)when Sri Lankan government forces took over the Eastern province with the assistance of Tamil militias they started looking for people who had assisted the LTTE;
d)in August 2011 the applicant was abducted, handcuffed, forced into a van, beaten, taken to a place of torture and accused of sending goods to the LTTE. He was forced to agree to supply goods to outlets run by Tamil militia groups and was released on that basis;
e)once more he complied with his intimidators, but they did not pay him. This made it difficult for him to continue with his work with Nestle. He was also the victim of extortion at the hands of the TMVP,[5] a Tamil political party operated by the Pillaiyan group, one of the Tamil militias;
f)to avoid further extortion he moved to a friend’s place and kept his head low. Whilst he was away the TMVP went to his family home to attempt further extortion. It was after that he resigned from Nestle and his family made arrangements for him to leave the country; and
g)after being released from immigration detention in Australia he started attending Tamil diaspora events in Australia in support of Tamil nationalism. He claimed that he had been unable to express his views in Sri Lanka because of fear of reprisals.
[3] CB 39-42
[4] Liberation Tigers of Tamil Eelam
[5] Tamil Makkal Viduthalai Pulikal
The applicant claimed that he feared persecution because of his ethnicity, his political opinion, including his perceived support of the LTTE, and his illegal departure from Sri Lanka.[6]
[6] CB 41-42 [18]
Despite having a detailed submission from the applicant,[7] the delegate rejected the applicant’s claims.[8] The delegate found, based on inconsistencies between the applicant’s claims in his “enhanced screening interview”,[9] his irregular maritime entry interview,[10] his statement of claims and information given at his SHEV interview, that the applicant was not detained and harmed by the LTTE.[11] Similarly, the delegate found[12] that he had not been harmed by Tamil militias, and because of inconsistencies between his written claims and information given at the SHEV interview, and did not accept that he had been involved in diaspora activities in Australia to the extent that he claimed.[13]
[7] CB 44-84
[8] CB 120-135
[9] CB 146-152
[10] CB 155ff
[11] at CB 125-6
[12] at CB 126-7
[13] CB 127-129
Turning to the situation in Sri Lanka, the delegate referred to changes in the country situation, and information about the treatment of returnees before rejecting the application.
On 6 January 2017 the delegate refused to grant the applicant a visa.[14]
[14] CB 318
The reference to the Authority
The application for protection was referred to the Authority pursuant to s.473CA of the Migration Act 1958 (Cth) (Migration Act).
On 15 February 2017 the applicant’s representative sent a 10 page submission, accompanied by the applicant’s additional statutory declaration to the Authority, and requesting that the Authority waive the five page limit stated in its Practice Direction.[15] This was returned to the representative on 17 February 2017 for failure to comply with the 5 page limitation on submissions.[16] Additional information and submissions were made on 8 May 2017[17] in compliance with the Practice Direction, and also on 3 August 2017.[18]
[15] CB 421-435
[16] CB 439
[17] CB 466-469
[18] CB 487-496
On 11 October 2017 the Authority wrote to the representative attaching a DFAT[19] report dated 24 January 2017 and inviting comment.[20] The representative responded with, among other things, an updated copy of his submission of 3 August 2017 (with the same date[21]) with country information and a copy of his statutory declaration of 15 February 2017.[22] That was followed by two further submissions both dated 25 October 2017.[23] Included in the documents forwarded was a “Submission of the Human Rights Commission of Sri Lanka to the Third Universal Periodic Review of Sri Lanka” dated 30 March 2017[24] and an article about military supervision and investigation of Tamil cultural and political events,[25] and allegations of criminal activity perpetrated by military personnel against Tamil civilians,[26] religious repression and terrorisation of Tamil populations.[27]
[19] Department of Foreign Affairs and Trade
[20] CB 499-538
[21] CB 580-604
[22] CB 630-632
[23] CB 635-641; 642-666
[24] CB 674-682
[25] CB 691
[26] CB 692-3
[27] CB 694-705
The 3 August 2017 submission[28] quoted from a statement by the UN Special Rapporteur on human rights and counter terrorism dated July 2017. The Special Rapporteur referred to provisions of the Sri Lankan Prevention of Terrorism Act which permit uncorroborated confessions made to police officers as the sole basis for convictions, and said that this fostered, “an endemic and systematic use of torture”, and that:[29]
Entire communities have been stigmatised and targeted for harassment and arbitrary arrest and detention, and any person suspected of association, however indirect, with the LTTE remains at immediate risk of detention and torture.
[28] at CB 487ff
[29] CB 489
The Special Rapporteur went on to discuss the use of torture being endemic and routine and the brutality of the methods used, and the impunity of the perpetrators.[30]
[30] CB 489-90
The submission also quoted from an ITJP[31] report dated 14 July 2017 alleging that torture continued, and that nine Tamils had been abducted after participating in low level work for local Tamil MPs. The extract stated that:[32]
What emerges from witness testimony is the continued use of informants and plain clothes intelligence officers, often with cameras, to surveil the Tamil population of the north and east and around the globe at diaspora events.
[31] International Truth and Justice Project
[32] CB 492
There was further information about the targeting of people who engaged in protests and diaspora activities abroad, and terrorisation of Tamil populations.[33]
[33] CB 493-5
An additional submission was sent on 7 November 2017 attaching information about the military occupation of the North and East of Sri Lanka and the terrorising of Tamil populations.[34]
[34] CB 685-705
Authority’s decision
On 7 November 2017 the Authority affirmed the decision under review.[35]
[35] CB 711
From [3]-[20][36] the Authority considered whether it could take into account various items of new information provided to it by the applicant and new information which it itself procured.
[36] CB 712-716
The Authority accepted the applicant was of Tamil ethnicity and of the Hindu religion.[37] However, for reasons it gave, it was not satisfied the applicant had protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Migration Act.
[37] CB 718 [24]
The Authority began by considering whether the “new information” (in terms of s.473DC(1)) was admissible pursuant to s.473DD of the Migration Act. It first found that certain information in or attached to the submission of 17 February 2017 did not meet s.473DD.[38]
[38] CB 712-713 [6]
It then[39] dealt with the statutory declaration of 15 February 2017 which it called the applicant’s “additional statement”.[40] It characterised the assertions therein that Hindus face significant discrimination, and that the applicant would be seen as wealthy in Sri Lanka and subject to extortion, as “new information”. The Authority was not satisfied that exceptional circumstances existed to justify considering that new information but it did consider the parts of the statutory declaration which addressed aspects of the delegate’s decision and reiterated his claims.
[39] at CB 713 [8]
[40] CB 432-434
After discussing other “new information” submitted by the applicant’s representative, the Authority turned to the submission of 3 August 2017.[41] It accepted that the extracted parts of reports therein post dated the delegate’s decision and so could not have been before the delegate. However, it found that the information was not “credible personal information”. It also found that no explanation had been provided about the application of the information to the applicant’s personal circumstances and was not satisfied that there were exceptional circumstances to justify consideration of the new information.
[41] CB 715 [14]
The Authority then referred to and accepted as satisfying the requirements of s.473DD the DFAT information that it obtained for itself, and also accepted the applicant’s representative’s responses thereto.[42]
[42] CB 715 [15]-[17]
It did not, however, accept the documents attached to the submission of 7 November 2017 because they were country information, and not credible personal information which, had it been known, may have affected consideration of the applicant’s claims.[43]
[43] CB 716 [20]
So far as the applicant’s personal claims were concerned:
a)the Authority accepted that the applicant supplied Nestle products to the LTTE for a short period in 2007, but it did not accept that he was abducted by the LTTE. It commented that he had not claimed that the authorities were aware of this and was satisfied that he is not at risk of harm because of it;[44]
b)the Authority also accepted that the applicant supplied goods to the Tamil militias, but not that he was threatened to do so. Nor did it accept that he had been subjected to harm by the TMVP or any other Tamil group;[45]
c)the Authority accepted that the applicant, along with hundreds of others, attended commemorative events in Australia but did not accept that this was indicative of a strongly pro-separatist political opinion.[46] It did not accept that his activities were anything more than occasional, low level involvement or that this would raise his profile upon return. It was not satisfied that he would come to harm should he engage in such activities upon return to Sri Lanka. It noted that the government had sanctioned memorial events in the north and east;[47]
d)at [46][48] the Authority did not accept that despite the change of government, Tamils continue to come to harm in Sri Lanka or that the human rights situation was worsening. It cited a submission which it did not identify, to the effect that there was evidence of extra-judicial killings, disappearance, torture, mistreatment and other abuses, and accepted that such reports continued and that there were differing views on the extent of reform since the election of the Sirisena government, it placed greater weight on DFAT’s 2017 assessment;[49] and
e)it then[50] dealt with DFAT information about returned asylum seekers.
[44] CB 719-20 [28]-[29]
[45] CB 721-722 [34]-[37]
[46] CB 722 [40]
[47] CB 723-4 [43]
[48] CB 724
[49] CB 724-5 [47]-[48]
[50] at CB 726-7
The current proceedings
These proceedings began with a show cause application lodged on 4 December 2017. At the trial of this matter on 18 June 2019 I granted leave to the applicant to file and rely upon an amended application upon which his submissions were based. The grounds in that application as amended are:
1.The second respondent misconstrued the meaning of the term, “new information” in s.473DC(1) of the Migration Act.
Particulars
(a)Error in construing or characterising a claim – that is a reason why the applicant feared harm on return to Sri Lanka – as “new information”.
2.It was legally unreasonable for the IAA to exclude information in the applicant’s representative’s submission of 3 August 2017 from its consideration, pursuant to s 473DD of the Migration Act.
Particulars
(a)The information in the submission was directly responsive and relevant to the veracity of information in a DFAT report on which the IAA relied.
(b)There was, contrary to the IAA’s finding, an explanation as to why the new information should be considered.
(c)The finding that there were no exceptional circumstances to justify considering the new information relied lacked an evident and intelligible justification.
3.It was legally unreasonable for the IAA to exclude information attached to or sent with the applicant’s representative’s communication of 7 November 2017 from its consideration, pursuant to s 473DD of the Migration Act.
Particulars
(a)The information in the submission was country information directly responsive and relevant to the veracity of information in a DFAT report on which the IAA relied.
(b)There was no … evident or intelligible reason to exclude country information from the class of information admissible under s.473DD.
(c)The finding that there were no exceptional circumstances to justify considering the new information relied [upon] lacked an evident and intelligible justification.
The first ground was not pressed.
I have before me as evidence the court book filed on 22 March 2018.
Both the applicant and the Minister filed pre-hearing written submissions and also made oral submissions through their counsel at the trial.
Consideration
Grounds 2 and 3 – was it legally unreasonable for the Authority to exclude information furnished by the applicant’s representative on 3 August 2017 and 7 November 2017?
The issues between the parties relate to the interpretation and application of s.473DD of the Migration Act, which states:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The definition of “new information” may be found at s.473DC(1) as:
…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.
The first point to note is that the plurality of the High Court, in Plaintiff M174/2016 v Minister for Immigration[51] stated at [24]:
The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).
[51] (2018) 353 ALR 600; [2018] HCA 16
The second point to note is that in Plaintiff M174/2016 all members of the Court held that an Authority decision is subject to the requirements of legal reasonableness.[52]
[52] the plurality at [21]; Gordon J at [86] and Edelman J, agreeing with the plurality, at [100]
The applicant’s second ground (the first having been abandoned) impugns [14] of the Authority’s decision[53] where it states:
On 3 August 2017 the applicant's representative provided a further submission to the IAA in support of the applicant's claims for protection. The information consists of a number of extracts from, and links to, country information reports and media articles which were not before the delegate and which is new information. The extracts are from reports which post date the date of the delegate's decision and on that basis I accept the information could not have been provided to the Minister before the decision was made. The extracts are country information; it is not credible personal information which was not previously known and had it been known, may have affected consideration of the applicant's claims. No explanation has been provided about the application of the new information to the applicant's circumstances. I am not satisfied that exceptional circumstances exist to justify considering the new information.
[53] CB 715
The applicant notes that the Authority got its own new information, in the form of the DFAT country report on 24 January 2017.[54]
[54] CB 715 [15]; the report is at CB 502-538
It is common ground that the Authority relied upon the updated DFAT report. The applicant contends that in these circumstances it was unreasonable for the Authority to decline to consider the information contained in the submission of 3 August 2017 which “contradicted” and was at least in part more recent than the information in the DFAT report.
A similar submission is made in relation to Ground 3 which impugns [20] of the Authority’s reasons[55] where it states:
On 7 November 2017 the applicant's representative provided a further submission to the IAA attaching two articles - one about persecution of religious minority groups in Sri Lanka and the other regarding pressure brought to bear by military intelligence on civil organisations to inform on participants in their activities. Neither article was before the delegate and is new information. On the basis of the date of the Tamilnet article, I accept that it could not have been provided to the delegate before the date of the decision. However, the article is country information; it is not credible personal information which was not previously known and had it been known, may have affected consideration of the applicant's claims. In relation to the article titled 'Violence against religious minorities in Sri Lanka' it is undated and there is no indication in the covering email of its date of publication. Even if I accept that it was published after the date of the delegate's decision, it is country information not credible personal information which was not previously known and had it been known, may have affected consideration of the applicant's claims. The applicant has not satisfied me in relation to s.473DD(b). No explanation has been provided about the application of the new information to the applicant's circumstances and I am not satisfied that exceptional circumstances exist to justify its consideration.
[55] CB 716
This case concerns the contest of ideas relating to the circumstances of Hindu Tamils in Sri Lanka. The applicant provided the Authority with a wealth of information seeking to point out difficulties confronting persons of his ethnicity and religion. The Authority saw sufficient significance in the information contained in the DFAT report that it purported to invite the applicant to comment on that new information. That invitation was not required by the terms of s.473DE(3) but it was not an error for the Authority to go beyond the strict terms of that provision. The Authority received a response from the applicant’s representative and decided that there were exceptional circumstances to justify considering new information proffered on behalf of the applicant in response to the invitation.[56]
[56] See the decision at CB 715 [17]
The applicant’s basic point is that if there were exceptional circumstances to justify considering the new information proffered in response to the invitation there were likewise exceptional circumstances to justify considering the other new information provided on behalf of the applicant on 3 August 2017 and on 7 November 2017. That may be so but, in my opinion, that amounts to no more than a disagreement over the merits of the Authority’s view of what were exceptional circumstances. It was, in my opinion, within the range of possible decisions that could have been made by the Authority that information provided in express response to the invitation to comment should be considered on the basis of exceptional circumstances but that other information volunteered and wholly or substantially unexplained at different times did not give rise to exceptional circumstances justifying the consideration of that information.
Further, I agree with the Minister’s submissions concerning these grounds.
First, the applicant submits that the Authority erred in its approach to s.473DD by reference to its reasoning at [14] in that it was mistaken that “no explanation ha[d] been provided”. The applicant submits that such an explanation as to how the documents would affect the applicant was provided at CB 495-496. However, that section of the submission does not give any explanation about the application of the new information; rather it provides a summary of the content of the information.
Further, the applicant gave no explanation in the 3 August 2017 submission as to what exceptional circumstances existed that would justify consideration of the new information sought to be advanced. To the extent that there was some attempt by the applicant’s representative to “link” the content of the country information reports to the applicant’s circumstances, this does not point to exceptional circumstances. As the plurality of the High Court stated in Plaintiff M174/2016 at [30], “what will amount to exceptional circumstances is inherently incapable of exhaustive statement”. Further, whilst incapable of exhaustive statement, exceptional circumstances are such “as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon” or is not “regularly, or routinely, or normally encountered”.[57] The Full Federal Court has described s.473DD(a) as requiring an “evaluative judgment” rather than satisfaction of the existence of particular facts.[58]
[57] see R v Kelly [1999] UKHL 4; [2000] QB 198 at [51], cited by White J in BVZ16 v Minister for Immigration (2017) 254 FCR 221; [2017] FCA 958 and Plaintiff M174/2016 at footnote 25
[58] DYS16 v Minister for Immigration (2018) 260 FCR 260; [2018] FCAFC 33 at [17]
The applicant submits further that the Authority did not explain why “special circumstances would not exist” to consider the new information where that information was relevant to the human rights situation in Sri Lanka affecting persons such as the applicant, and where the information was “entirely inconsistent” with the DFAT report which the Authority took into account at [15], being the 24 January 2017 report. Two points may be made in respect of that submission.
First, for the applicant to submit that the Authority erred in its approach to its satisfaction of the existence of exceptional circumstances merely by reference to the fact that the new information under consideration was “relevant” to the applicant’s claims does not identify any error in the Authority’s approach. To the contrary, Part 7AA plainly envisages that to be considered, new information will be not merely relevant to an applicant’s claims, or capable of affecting consideration of an applicant’s claims, but that exceptional circumstances will exist justifying consideration of the new information. The applicant does not identify what was exceptional about the new information provided in the 7 November 2017 submission.[59]
[59] AQU17 v Minister for Immigration [2018] FCAFC 111 at [17]
Secondly, the applicant’s representative did not advance in the 3 August 2017 submission any argument that exceptional circumstances existed because the new information sought to be provided contradicted, or answered, the DFAT report. It was on 11 October 2017 that the Authority sent the 24 January 2017 DFAT report to the applicant for comment.[60] The applicant cannot identify jurisdictional error in the Authority’s approach by reference to its failure to consider submissions that were never advanced to it.
[60] CB 499
Third ground
In the third ground the applicant contends that it was legally unreasonable for the Authority to exclude from its consideration information in the applicant’s representative’s submission dated 7 November 2017 pursuant to s.473DD. The submission by which the applicant provided the information appears from CB 689. At [20][61] the Authority found that the applicant had not satisfied it under s.473DD(b) and that no explanation had been provided about the application of the new information to the applicant’s circumstances. The Authority was not satisfied, in addition, that there were exceptional circumstances justifying consideration of the new information under s.473DD(a).
[61] CB 716
The applicant submits that the Authority erred in that the information, comprising in essence country information, was “directly relevant to the human rights situation affecting Tamils in Sri Lanka, which the applicant feared would affect him.”[62] Even accepting this to be the case, the question for the Authority was whether it was satisfied exceptional circumstances existed justifying consideration of the new information.
[62] applicant’s submissions at [30]
In circumstances where a wealth of country information is made available to the Authority, s.473DD(a) envisages that something out of the ordinary should be present to justify the consideration of that country information. Particular items of country information may themselves be out of the ordinary. The circumstances of the provision of the country information might be out of the ordinary, such as information provided in response to a specific invitation from the Authority. But the Authority’s view about what does and what does not amount to an exceptional circumstance does not become unreasonable simply because, after the event, an analysis of particular country information raises the possibility that the information may have had value to the Authority in its consideration of the applicant’s claims.
Conclusion
The applicant has not established that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 14 August 2019
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