FJD17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 141
Federal Circuit and Family Court of Australia
(DIVISION 2)
FJD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 141
File number(s): SYG 3795 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 28 February 2023 Catchwords: MIGRATION – Where delegate drew inferences about the applicant’s evidence – failure of Immigration Assessment Authority to give proper, genuine and realistic consideration to new information relating to the subject matter of those inferences – failure of Immigration Assessment Authority to properly consider and apply s 473DD – failure to consider whether information was credible personal information Legislation: Migration Act 1958 (Cth) ss 65, 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
EBP19 v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCA 332
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 9 August 2022 Place: Sydney Counsel for the Applicant: Mr S Lawrence Solicitor for the Applicant: Michaela Byers Solicitors Counsel for the Respondents: Ms A Carr Solicitor for the Respondents: Mills Oakley ORDERS
SYG 3795 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FJD17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
28 February 2023
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 23 November 2017 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue requiring the Immigration Assessment Authority to re-determine, according to law, the review referred to it.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) dated 23 November 2017 which affirmed a decision of a delegate of the first respondent (delegate) not to grant the applicant a Safe Haven Enterprise Visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
background
The following statement of background facts is derived from the submissions of the first respondent, but does not appear to be in dispute.
The applicant is a citizen of Sri Lanka who arrived in Australia on 18 April 2013 as an unauthorised maritime arrival (Court Book (CB) 7 to 25 and 53).
On 24 March 2017, the applicant applied for the visa (CB 33 to 69) and set out his claims for protection in a separate statement attached to the application, which included news articles (CB 70 to 145).
The applicant claimed that he was born in Tamil Nadu, India, to Sri Lankan citizen parents and that he remained in India until his departure for Australia. The applicant claimed that his parents divorced when he was a baby and that his father did not accept the applicant was his child. The applicant claimed that if he was returned to Sri Lanka, his father would not permit him to live there.
The applicant also claimed that he feared the “Q branch” of the Indian police while living in a refugee camp in Tamil Nadu as the Q branch took the applicant away for interrogation regarding involvement with the Liberation Tigers of Tamil Eelam (LTTE) and released the applicant upon a bribe being paid by the applicant’s family members. The applicant claimed that the Q Branch threatened the applicant if he did not identify former LTTE members. The applicant claimed if returned to Sri Lanka he would be recognised as a former LTTE member.
On 30 May 2017, the delegate refused to grant the applicant the visa (CB 172 to 192). On 2 June 2017, the delegate’s decision was referred to the Authority (CB 195 to 204). On 23 June 2017, the applicant provided a submission to the Authority (CB 255 to 260) and on 23 November 2017, the Authority affirmed the delegate’s decision (CB 262 to 277).
Authority decision
The Authority noted that the applicant’s submission dated 23 June 2017 sought to introduce new information about the applicant’s uncles, claiming that they held senior positions in the LTTE and had been involved in combat until they were killed at the end of the war (CB 266 at [5]). The Authority was not satisfied that the new information could not have been provided to the delegate, that it was credible personal information which was not previously known, or that there were exceptional circumstances to justify considering it (CB 266 at [5]).
The Authority accepted that the applicant was born in India after his parents moved to Tamil Nadu (CB 268 at [13]). The Authority accepted that it was likely that as a young Tamil man living as a refugee in India, the applicant would have been questioned from time to time by the Indian police, but this was no more than generalised harassment of Tamil youths and not the result of his father’s interference (CB 269 at [17]).
The Authority noted that the first time the applicant claimed to have been taken into detention by the Indian police in November 2012 and held for 2 weeks for questioning with 20 other Tamil youths was in his visa application (CB 269 at [18]). The Authority did not accept the applicant’s explanation for not raising this claim earlier at an interview and, consequently, found that the claim had been made to enhance the applicant’s claims for protection (CB 269 at [19] to [20]). The Authority therefore did not accept that the applicant was released from detention to identify LTTE members or that officers returned to demand that the applicant identify LTTE members (CB 269 at [20]).
The Authority accepted that the applicant had a family link to the LTTE, through his uncles who were killed in Sri Lanka, but did not accept that the applicant would be imputed to have links to the LTTE on the basis of that relationship (CB 270 at [21] to [22]). The Authority also did not accept that the applicant would be imputed with an LTTE profile on the basis of him being a Tamil male refugee or a young Tamil male refugee, who was born in India (CB 270 at [24]).
The Authority accepted that the applicant was estranged from his father, but not that there was a real chance that his father would harm him if he were to return to Sri Lanka (CB 271 at [28]).
The Authority also accepted that, upon return to Sri Lanka, the applicant would hold a temporary travel document and would therefore be subjected to scrutiny as part of routine immigration processing on arrival. However, the Authority was not satisfied that such questioning would amount to serious harm (CB 272 at [31]). The Authority was also not satisfied that the applicant would face serious harm for returning as a failed asylum seeker (CB 272 at [33]).
Overall, the Authority was not satisfied that the applicant would face significant harm if returned to Sri Lanka and, therefore, found he was not a person to whom complementary protection was owed (CB 273 at [37] to [40]).
Application to the Court
These proceedings were commenced by an application to show cause filed on 7 December 2017 (originating application), at which time the applicant was unrepresented. The originating application contained six particularised grounds.
The matter was initially listed for a first Court date before a Registrar of the Court on 22 January 2018. The applicant appeared in person with the assistance of an interpreter in the Tamil language. The Registrar made orders providing, inter alia, for the applicant to file and serve any amended application by 16 April 2018 and listing the matter for a callover on 13 September 2018. The applicant did not file an amended application pursuant to the Registrar’s orders but did attend the callover on 13 September 2018, again with the assistance of a Tamil interpreter. On that occasion a Registrar made an order listing the matter for mention at a further callover on a date to be advised administratively.
On 31 January 2019 the applicant’s present solicitor filed a Notice of Address for Service and a proposed amended application.
On 6 June 2022 matter was docketed to me and the parties were informed that the matter was listed for hearing before me on 9 August 2022. On 15 June 2022, I made procedural orders in Chambers by consent. Written submissions were subsequently filed pursuant to those orders. The parties were each respectively represented by Counsel at hearing. I have been assisted by all the submissions made for the parties in writing and at the hearing.
At the hearing I granted leave to the applicant to file and rely upon his proposed Amended Application. By the Amended Application, the applicant abandoned the first two grounds of the originating application, and refined ground 3.
Accordingly the sole remaining ground of review is as follows:
Ground 3 – The IAA adopted an unduly narrow construction of s473DD. In doing so, it constructively failed to exercise jurisdiction under s473DD.
The question for the Court involves the resolution of two issues. The first is whether the Authority misconstrued s 473DD(b)(ii) of the Act, and the second is whether there was a failure by the Authority to give proper, genuine and realistic consideration to the proposed new information for the purposes of s 473DD(b)(ii).
The applicant says that among the claims made in his visa application, was an expressly made claim (CB 83) that:
I would definitely be recognized as a former LTTE cadre and even my father if he is alive would not permit me to live in Sri Lanka.
Next, the applicant draws attention to the delegate’s finding (CB 179) that:
The applicant advised he had two uncles who were affiliated with the LTTE who were killed during the Sri Lanka civil war although no other members of his extended family have had an association with the LTTE. The applicant also stated he has never been involved in political activities.
To the extent that the delegate made reference to the applicant’s uncles, the applicant says that the delegate did not question him about his uncles in any depth, in the sense that he was not questioned specifically about the relative seniority (or otherwise) within the LTTE of the uncles. The applicant says that he did not make a claim that the uncles were senior, which is reflected by the delegate (CB 185) under a heading “LTTE Association” where they found:
However, people do not face a real chance of being seriously harmed by Sri Lankan authorities if a member of their extended family was associated with the LTTE; unless the family member was a senior cadre, and the applicant does not claim, nor is there any evidence which indicates that his uncles were senior LTTE cadres.
The applicant says that in assessing his claimed imputed political opinion to his detriment, the delegate did so by inference about the lack of evidence, about which deficiency he was not questioned. Rather, the delegate is said to have simply assumed that the uncles were not senior.
Next the applicant relies on his written submission to the Authority (at CB 259 to 260) by which he engaged with the finding of the delegate extracted at [23] above. The applicant submitted (errors in original):
This particular finding of the officer is baseless as the officer failed to question me in detail as to my uncle’s specific involvement in the LTTE so that I could have replied.
Please note that both my uncle’s joined the LTTE when I was very young and my mother had repeatedly told me my uncle’s held senior positions in the LTTE and were involved in combat with the Sri Lankan army for a long time up until the end of the war when they were killed. Please note that I failed to give this information voluntarily on my arrival to the Department as many refugees arriving on illegal boat were deported back to Sri Lanka and after the Department unintentionally released my personal information on its website. Please note that I have arrived here as a refugee without having any legal advice or understanding of the procedure because of the mental agony and the fear that I experienced in India before I fled.
I could have given more information relevant to my claims if I had only given the opportunity by the Department on my arrival to have access to Tamil speaking legal officers.
Lastly, the applicant relies on [5] of the Authority’s reasons for decision (CB 266) where it stated as follows:
In addition, the submission seeks to introduce new information about the applicant's two uncles who he claims were associated with the LTTE and were killed during the Sri Lankan civil war. The submission states that his mother had informed him that his uncles both held "senior positions in the LTTE and were involved in combat with the Sri Lankan army for a long time up until the end of the war when they were killed". The submission notes that the applicant told the delegate about his uncles at the SHEV interview and comments that "(this) finding of the officer is baseless as the officer failed to question me in detail as to my uncle's (sic) specific involvement in the LTTE so that I could have replied." At his SHEV interview the applicant was asked by the delegate about his uncles. He did not provide the further information that he now seeks to introduce. The applicant has not satisfied me that the further information could not have been provided to the delegate before he made his decision or that it is credible personal information that was not previously known and, had it been known, may have affected consideration of the applicant's claims. Furthermore, I am also not satisfied that there are exceptional circumstances to justify considering this information.
The applicant says that by the first two sentences of [5], the Authority describes the nature of the proposed new information, followed by a reference to the applicant’s submission about the finding being baseless (see [26] above). The applicant says that while the Authority correctly observed that he did not provide the information about the seniority of his uncles, being “the information he now seeks to introduce”, that the Authority had access to the SHEV interview recording and therefore would have known what the applicant was (and was not) asked. The applicant characterises the balance of [5] as being a paraphrasing of s 473DD (specifically in order s 473DD(b)(i), then s 473DD(b)(ii), then s 473DD(a)). However, the applicant says that the Authority’s finding as to the credibility of the information was conclusory, and lacked a substantive intellectual engagement.
The first respondent observes that the Authority noted the applicant had been asked by the delegate about his uncles at the SHEV interview, and yet he did not provide the information which he sought to introduce. The first respondent says that in order to consider whether the new information was credible personal information for the purposes of s 473DD, the Authority was only required to determine whether the new information was capable of being believed: see CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [41] to [42] per Bromberg J and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477 at [76] to [77] per Mortimer and Jackson JJ.
Accordingly, the first respondent says that because the topic of the applicant’s uncles was traversed at the SHEV interview, and the applicant did not provide the information at that opportunity, the Authority should be taken as having found that the new information was not capable of being believed. As a result, the first respondent says that, in the absence of the applicant satisfying s 473DD(b)(ii), it was open to the Authority to conclude as it did. Specifically, it was not satisfied that the new information was credible personal information that was not previously known and, had it been known, may have affected consideration of the applicant’s claims.
Consideration
The issues arising from the now refined ground of review are narrow. The parties’ distillate submissions and representation by practitioners experienced in this jurisdiction, has enabled the Court to be equally succinct.
In respect of the two questions for resolution, in alleging there has been a misconstruction of
s 473DD of the Act by the Authority, the applicant relies solely on the decision of
EBP19 v Minister for Immigration, Citizenship and Multicultural Affairs[2021] FCA 332 (EPB19).
In respect of the second question, namely whether there was a failure by the Authority to give proper, genuine and realistic consideration to the proposed new information for the purposes of s 473DD(b)(ii), the applicant relies primarily on the decision of Minister for Home Affairs v Omar (2019) 272 FCR 589.
Section 473DD of the Act relevantly provides:
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
In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17) at [11] to [12], [16] and [18], Kiefel CJ, Gageler, Keane and Gordon JJ found that the Authority must assess:
(a)first, whether new information obtained from a referred applicant met one or both criteria in s 473DD(b)(i) and (ii); and
(b)thereafter, whether there were exceptional circumstances under 473DD(a).
In AUS17 the High Court found that if either (or both) of the s 473DD(b)(i) or s 473DD(b)(ii) criteria are met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a).
In EPB19 (supra), White J summarised the aforementioned two-stage test from AUS17, before setting out the following principles. Given the applicant’s reliance on EPB19, the following extract being [19] to [21] (while lengthy), warrants being set out in full:
Other settled matters concerning the application of s 473DD include:
(a) the term “exceptional circumstances” in subpara (a) is to be given a broad meaning and requires that consideration be given to all the relevant circumstances: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, (2017) 257 FCR 111 at [104]; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, (2018) 264 FCR 249 at [51]. What is required is a contextual evaluation having regard to all the circumstances of the case: BDY18 at [25];
(b) the matters which will amount to “exceptional circumstances” justifying consideration of the new information for the purposes of subpara (a) are not capable of exhaustive statement. They need not be unique, unprecedented or very rare but cannot be circumstances which are regularly, routinely or normally encountered: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30];
(c) the exceptional circumstances may comprise a single factor or be found in a number of matters considered collectively: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 at [13]. Even though no one factor may be exceptional, the circumstances in combination may be such as reasonably to be regarded as exceptional: AQU17 at [7] [8];
(d) the IAA’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision may contribute to its satisfaction that there are exceptional circumstances justifying consideration of the new information: CQW17 at [48]; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192, (2017) 257 FCR 148 at [17] [18], DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33, (2018) 260 FCR 260 at [31] [33]; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [91];
(e) subparagraphs (b)(i) and (ii) involve different considerations. The former requires a factual enquiry as to whether or not the new information could have been presented to the Minister, whereas the later requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally: BBS16 at [105];
(f) the “personal” information to which subpara (b)(ii) refers is information about the referred applicant which was not previously known to the Minister, even if known to the referred applicant: Plaintiff M174 at [33]. The plurality in Plaintiff M174 (Gageler, Keane and Nettle JJ) continued by saying that all that the IAA needs to be satisfied about in order that the subpara (b)(ii) criterion be met in respect of new information 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”, at [34];
(g) an error in the formation of the state of satisfaction as to one precondition may affect the other: BDY18 at [26];
(h) it is the satisfaction of the IAA which is required by both subparas (a) and (b). Accordingly, it is for the IAA, and not the Court on review, to form the required state of satisfaction: BDY18 at [28]; and
(i) although the plurality in AUS17 said at [11] that logic and policy demand that the IAA assess new information obtained from a referred applicant before considering the subpara (a) criterion, this does not require a formulaic approach. The compliance or otherwise by the IAA with its duty is to be determined as a matter of substance (APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]); AQU17 at [16]) and the evidence of the compliance may be implicit in its reasons (CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 at [112]).
The requirement that the personal information to which subpara (b)(ii) refers be “credible” has been considered in a number of the authorities. In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Bromberg J said:
“[41] In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” ... that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.”
(Citation omitted)
This understanding of the requirement that the personal information be credible appears to have been endorsed by the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [17]. As the reasons of Mortimer J in ALJ18 v Minister for Home Affairs [2020] FCA 491 at [24] [25] indicate, the Minister has in other appeals to this Court challenged the correctness of CSR16. However, a majority in a Full Court (Mortimer and Jackson JJ) has held that CSR16 was correctly decided: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [62]. In this case, no submission was made by the Minister to the effect that the approach in CSR16 set out above was wrong and should not be followed. I note that the two stage approach suggested in CSR16 is consistent with the general approach stated by the plurality in AUS17 at [6].
The applicant’s essential allegation in respect of the Authority’s misconstruction of
s 473DD(b)(ii) is that the task of considering whether something is credible, personal information includes whether that information could have been provided to the Minister. The applicant says that s 473DD(b)(ii) clearly envisages that information could pre-date the delegate’s decision, and this is not precluded even by the fact the applicant knew the information. This latter proposition is now well-established: see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111at [104] to [106] per Kenny, Tracey and Griffiths JJ, citing BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [39] to [41] per White J.
In the context of the present case, proper assessment of the circumstances which informed the s 473DD(b)(ii) consideration by the Authority required it to engage with the applicant’s explanation for why it was that he had not provided information about the seniority of his uncles. The delegate’s own decision makes plain that the applicant volunteered some basic information, namely, the existence of the uncles, and the delegate (having not asked anything further) went on to make findings about them nonetheless, based on inferences which it drew. The applicant fully contextualised the omission by the submission in which he sought to advance the new information to the Authority.
The task required the Authority to undertake a factual enquiry as to whether or not the information could have been presented to the delegate: see EPB19 at [19(e)]. This required more than a reformulation of the language of the statute in making the bare finding that the applicant had not satisfied the Authority that the further information could not have been provided to the delegate. In making such a conclusory statement, without any analysis of the contextual material which explained why it had not previously been given, the Authority failed to undertake a substantive intellectual engagement with the material before it, and thereby misapplied the requirements of the section.
Equally, the Authority did not engage with any concept as to why the information was not credible personal information. Given the low threshold for this at an anterior stage (see CSR16 at [41] per Bromberg J), there is nothing other than the bare recitation of the language of s 473DD(b)(ii), to explain why the applicant had not satisfied the Authority.
Accordingly, I am of the view that the Authority erred in its consideration and application of
s 473DD of the Act.
The first respondent says that even if the Authority were found to not have properly applied or considered s 473DD, in any event the applicant was not deprived of a successful outcome because the new information could not have resulted in a different decision having been made. This is said to be because, on the basis that at [21] to [22] of its decision, the Authority accepted that the applicant had a family link to the LTTE through his uncles, but noted that the applicant had not made a claim to have met the uncles or to have had a personal relationship with them, and so it did not accept that the applicant would be imputed to have links to the LTTE because of the uncles.
The applicant says that the Authority’s findings at [22] must be seen within the context that the Authority had rejected the new information pertaining to the uncles and that, accordingly, its assessment of the risk of harm to the applicant was made without that information. Had the Authority not erred in the manner that it did, it may have received the new information. This could realistically have resulted in a different decision and, in the interim, different processes having been followed including the Authority obtaining additional information from the applicant in respect of the uncles.
In the present case it is not possible to extricate the error from the ultimate reasoning in order to conclude that, based on that very reasoning, the error was immaterial. In my view had the Authority not so erred, this could have resulted in a different decision being reached. Accordingly, I find the error to be material.
Accordingly, the applicant having established a jurisdictional error, the relief sought should be granted and I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 28 February 2023
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