FKJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 630
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FKJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 630
File number: MLG 2708 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 18 July 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority affirming a decision to refuse to grant a protection visa to the applicant – whether the Authority unreasonably failed to exercise or consider the exercise of the discretion in s 473DC of the Migration Act 1958 (Cth) – whether the Authority made unreasonable, illogical or irrational findings with regard to s 473DD of the Migration Act – whether the Authority made findings based on no evidence – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 65, 473CA, 473DC, 473DD, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Sunchen Pty Ltd v Commissioner of Taxation (2010) 114 ALD 49; [2010] FCA 21
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of hearing: 14 March 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr G Foster Solicitor for the Applicant: Sentil Solicitor Counsel for the First Respondent: Ms K McInnes Second Respondent: Submitting appearance, save as to costs. Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2708 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FKJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on 17 November 2017. The applicant seeks judicial review of the Authority decision under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on three grounds of application, which all relate to the Authority’s treatment of new information the applicant provided about harm that his wife faced in Sri Lanka.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error and I therefore dismiss the judicial review application.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant entered Australia by sea in late 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant applied for a protection visa on 21 March 2016. In a statement that accompanied his visa application, the applicant claimed that he would be abducted, tortured or killed by the Sri Lankan authorities as a young Tamil male from the Northern Province, as a suspected supporter of the Liberation Tigers of Tamil Eelam (LTTE) and as a person who sought asylum in Australia after illegally departing Sri Lanka.
On 13 January 2017 the applicant attended an interview with an officer of the Department to discuss his claims for protection.
A delegate of the Minister refused to grant the applicant a protection visa on 18 July 2017. The matter was then referred to the Authority for review pursuant to s 473CA of the Migration Act.
On 11 August 2017 the applicant, by his legal representative, provided to the Authority a submission, along with a number of evidentiary documents.
On 17 November 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. The Authority was not satisfied that the requirements of s 473DD of the Migration Act were met in relation to the new information provided by the applicant. The Authority’s findings in this regard, where relevant to the grounds of application, are discussed in detail below. The Authority considered the applicant’s claims for protection (other than new claims excluded from consideration by the operation of s 473DD) and was not satisfied that the applicant met the criteria for a protection visa in s 36(2)(a) or (aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his judicial review application on 12 December 2017 and the application was therefore made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant filed an amended application on 4 December 2023, which raises the following grounds:
4.The Authority fell into jurisdictional error in that it did not exercise its powers lawfully.
PARTICULARS
(a)The Authority failed to make inquiries, and in particular failed to invite or to take evidence from the Applicant’s wife about the claims she had been sexually assaulted. (Authority’s Decision and Reasons [8])
5.The Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material.
PARTICULARS
(a)The Authority was unreasonable in rejecting without further investigation or considerations the claim that the Applicant’s wife had been sexually assaulted, (Authority Decision and reasons [9]-[11])
(b)The Applicant refers to and repeats the Particulars to the other Grounds herein.
Proposed Ground 6
The IAA erred when it referred to new information concerning his wife’s departure and Officials questioning relatives and villagers, and was not satisfied the applicant satisfied the Tribunal the new information could not have been provided to the Minister before the Minister made his decision under S 65 of the Act or that it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. The IAA was also not satisfied that there are any exceptional circumstances to now justify considering the new information.
Particulars
i. [9][CB205]-[11][CB206];
ii.The Applicant forwarded several documents post-Delegate’s decision, which discussed the above. These documents were:
a. Statement [CB163]-[164];
b. Submissions from agent Ambi Associates [CB160]-[162]
c. Untranslated Swiss documents [CB168]-[181];
d. Letter from MP [redacted] [CB182];
e. Letter from cousin [CB185];
f.Letter from [redacted] {CB186]-[187] (interpreter [CB90]).
iii.In coming to the finding above, the IAA commented on the new information at [8][CB205]. In considering the documents the IAA stated: “The applicant stated in his submissions that he learned of his wife’s departure and the full reasons for it when she arrived in Italy. She arrived in Italy on [redacted] April 2017.” [9][CB205];
iv.The Applicant had actually stated: “It is only when they arrived in Italy and made contact with me that I understood they had left the country. When I asked my wife as to why she made such a treacherous decision, it is only then that she cried in agony and told me the entire story of what she had gone through when I was in here fearing for my life back in Sri Lanka ....” [CB163]
v.There is accordingly no definitive date as to what information the Applicant actually received from the wife, and when:
a.The applicant stated he understood ‘they’ left (Sri Lanka) ‘only when they arrived in Italy’; and
b.the Delegate recorded [CB118] the migration agent advised the Applicant’s wife and two children had fled Sri Lanka on [redacted] April 2017, due to harassment from the Sri Lankan authorities, and they were currently seeking asylum in Switzerland.
vi.The phrase ‘only when they arrived in Italy’ does not specify when he was advised of the matters concerning his wife;
vii.It is accordingly unclear when the information concerning *why she left Sri Lanka, *why she went to [redacted], *her being threatened, *the purchase of fake passports, *attempts to locate her in Switzerland, and *other villagers being questioned (new information), was disclosed to and received by the Applicant;
viii.The Applicant further stated he was advised to disclose ‘all these details to the department, which I accepted to do.’ [CB163] The IAA erred when it found against the Applicant and stated the Applicant ‘did not do so’. [9][CB205] when there was no satisfactory evidence he did not do so;
ix.The IAA further erred when it found implausible that the Applicant would not have notified the delegate of the information concerning his wife prior to a decision on his case, as he claims he was advised by his migration agent to do, had it occurred.
x.The IAA failed to consider the possibility that the Applicant did advise the Department of what he knew at relevant times, as he stated he would;
xi.In doing so, the Applicant did not engage in intellectual process and made unreasonable conclusions by not considering the possibility the Applicant may have received the information contained in his statement pertaining to his wife at various times, some of which was received before the Delegate’s decision and other received afterwards, and did advise the Department (and later the IAA) of the state of his knowledge at those particular times;
xii. The IAA failed to properly consider S 473DD (1)(b)(i);
xiii.As the IAA failed to properly consider S 473DD (1)(b)(i), it failed to properly consider S 473DD (i)(a) and constructively failed to exercise its jurisdiction;
xiv. The information concerning the wife was material to his claims;
xv. The IAA committed jurisdictional error as a result of the foregoing.
The evidence before the Court comprises the court book (exhibit 1) filed by the Minister and a copy of the Department’s record of the Irregular Maritime Arrival Entry Interview (entry interview) that the applicant attended with an officer of the Department on 24 January 2013. The record of the entry interview was provided to the Court after the hearing at my request, as it appeared to me that it was a document before the Authority that was omitted from the court book, and I marked it as exhibit 2. Neither party sought any opportunity to raise new issues following the provision of exhibit 2.
RELEVANT LEGISLATION
The applicant’s grounds allege error in the Authority’s approach to ss 473DC and 473DD of the Migration Act. These sections provide:
473DC Getting new information
(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 new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
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.
As can be seen from these provisions, the Authority has a discretion in s 473DC to get new information, either on its own initiative or from a review applicant. The discretion in s 473DC of the Migration Act must be exercised reasonably: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21] (Gageler, Keane and Nettle JJ), at [86] (Gordon J); ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3] (Kiefel CJ, Bell , Gageler and Keane JJ), at [61] (Nettle J), at [80] (Gordon J).
However, the Authority can only consider any new information it gets or is given if the requirements of s 473DD are met.
THE NEW INFORMATION AND RELEVANT PARTS OF THE AUTHORITY DECISION
Each of the three grounds pressed by the applicant relates to the Authority’s consideration of whether new information regarding alleged sexual assaults against the applicant’s wife and the subsequent relocation of the applicant’s wife and children to Europe met the requirements of s 473DD of the Migration Act.
The applicant provided this new information in a statement to the Authority on 11 August 2017, where he said:
… even after I left Sri Lanka and came to Australia seeking refuge, many times, the [Criminal Investigation Department (CID)] had visited my home and interrogated my family members questioning my whereabouts. They searched my home and took away my passport and ID cards. I cannot understand the reasoning behind these interrogations and for the CID to take my wife away to be questioned. Thereafter my wife had sought the help of some known members through whom they received fake passports and left Sri Lanka. It is only when they arrived in Italy and made contact with me that I understood they had left the country.
When I asked my wife as to why she made such a treacherous decision, it is only then that she cried in agony and told me the entire story of what she had gone through when I was in here fearing for my life back in Sri Lanka. She disclosed that she was raped four times by the army and CID while she was taken away to be interrogated. She did not know how to inform this to me, who was already fearful of my safety. She had taken treatment for the sexual assault in [redacted] Hospital. She further informed that even when she was under treatment, the Sri Lankan army visited in Casuals and threatened her to not disclose these details to anyone. She was threatened that if in any way she does try to disclose these details to anyone, she, along with her two children will be shot dead.
It is then she had decided what use is money and wealth. Therefore she sold all our belongings, what that she could sell in order to save up money. Received fake passports through agents and arranged her trip out of the country. It is following her informing me about all that had taken place for her, I sought advice from my former Migration Agent who informed me to disclose all these details to the Department, which I accepted to do so.
This new information was addressed at [8]-[11] of the Authority’s reasons, where the Authority said:
8.The applicant’s written statement introduced new information not previously raised, namely that after he left Sri Lanka harassment of his wife had continued and involved her being detained for interrogations by the Sri Lankan Army (“SLA”) and Police CID, at which she was sexually assaulted several times; that the reason for her moving to [redacted] was for medical treatment for the sexual assault; that in [redacted] hospital authorities threatened to kill her if she reported it to anyone and that she then decided to sell up her belongings and leave Sri Lanka, which she did through an agent after purchasing fake passports. He claims that the Sri Lankan authorities tried to locate her in Switzerland with a fake message ostensibly from her cousin (He invites the IAA to confirm this with the Swiss authorities). He claims that after his departure, and later his wife’s, many of his relatives and villages have been questioned by authorities looking for him, and now his wife. He claims that he only discovered all of this after his wife reached Europe. He also claims that he was an LTTE cadre who, additionally, served the LTTE in [redacted] during the 2009 fights, in the entire final battle. He did so because most Tamils were relying on Tamil militias to fight the atrocities of the SLA.
The applicant’s wife’s departure and Officials questioning relatives and villagers:
9.The applicant stated in his submissions that he learned of his wife’s departure and the full reasons for it when she arrived in Italy. She arrived in Italy on [redacted] April 2017. After he discovered this information from his wife he was advised by his former migration agent to disclose all the details to the Department. He did not do so. The delegate’s decision was made on 13 July 2017. At the conclusion of his written statement he states in a general way, not pertaining to any particular aspect of the various new information given, that he had not previously given his full story due to “fear, shyness and Tamil male cultural difficulty”. Whilst I accept that public discussion of rape or sexual assault might be difficult in the applicant’s culture I do not accept this as explanation for the total lack of any advice of, or detail about, the alleged repeated interrogations of his wife when taken away to CID headquarters; that she was assaulted in any manner at all; that she and the children were later threatened with death by the SLA whilst in hospital. Such ongoing and recent threats of, and perpetration of, violence arising because of official adverse interest in the applicant is what he claims to fear would continue if he returned - I find it implausible that he would not have notified the delegate of it prior to a decision on his case, as he claims he was advised by his migration agent to do, had it occurred.
10.The applicant also now claims that the authorities and SLA continued to regularly question his relatives about him and his family after their respective departures. I do not find it credible or plausible that he would not have notified the delegate of this. Even when specifically asked in the TPV interview about whether his wife had told him anything about what was happening since he had left and why the authorities would be interested in him, he raised none of this new information.
11.The applicant has not satisfied me that this new information could not have been provided to the Minister before the Minister made his decision under s.65 of the Act or that it is credible personal information which was not previously known and, had it been known, may have affected the considerations of the applicant’s claims. I am also not satisfied that there are any exceptional circumstances to now justify considering that information.
SUBMISSIONS OF THE PARTIES
There is significant overlap between the grounds and some of the submissions made by the parties were relevant to more than one ground. It is therefore convenient to summarise the submissions of the parties on all three grounds before addressing the grounds separately below.
The applicant’s written submissions
In addressing ground 4, the applicant submitted that the finding of the Authority at [9] of its reasons that it was implausible that the applicant would not have notified the delegate prior to a decision on his case, as he claims he was advised by his migration agent to do, had it occurred, amounted to a finding that the Authority was not satisfied that the claimed sexual assaults of his wife had occurred.
The applicant further submitted that the Authority implicitly assumed that, even if the events had occurred, the applicant was aware of them prior to the delegate’s decision. The applicant submitted that this assumption had no basis in evidence because:
(a)the Authority stated in its reasons that the applicant said he learned of his wife’s departure from Sri Lanka and the full reasons for it when she arrived in Italy, which was in April 2017;
(b)the applicant has actually stated, ‘It is only when they arrived in Italy and made contact with me that I understood that they had left the country. When I asked my wife as to why she made such a treacherous decision, it is only then that she cried in agony and told me the entire story of what she had gone through when I was here fearing for my life back in Sri Lanka’;
(c)there is no definitive date as to what information the applicant actually received from his wife and when;
(d)the applicant stated that he understood his wife and children left Sri Lanka only when they arrived in Italy, which does not specify when he was advised of the matters concerning his wife;
(e)it is unclear when various information was received by the applicant, including information regarding when the applicant’s wife left Sri Lanka, why she went to another area within Sri Lanka, her being threatened, the purchase of fake passports, attempts to locate her in Switzerland and other villagers being questioned; and
(f)the applicant further stated he was advised to disclose all these details to the Department which he accepted to do, but the Authority found against the applicant and found he did not do so, when there was no evidence he did not do so.
The applicant submitted that the Authority failed to get new information pursuant to s 473DC of the Migration Act concerning the claims asserted to have been made by his wife, whether the claims had occurred and were genuine and when the wife first told the applicant about them.
In addressing ground 5, the applicant largely relied on the same submissions advanced in relation to ground 4. The applicant further submitted that the Authority made unreasonable findings of implausibility at [9] and [10] of its reasons. The applicant also submitted that the Authority was unreasonable in not being satisfied that:
(a)the new information could not have been provided to the Minister before the Minister made his decision under s 65 of the Migration Act;
(b)the new information is credible personal information which was not previously known and, had it been known may have affected the consideration of the applicant’s claims; and/or
(c)there were exceptional circumstances to justify considering the new information.
In relation to ground 6, the applicant submitted that the information before the Authority was imprecise as to when the applicant was provided with the new information. The applicant submitted that the phrase ‘only when they arrived in Italy’ does not carry with it any particular date, noting that the applicant’s wife arrived in Italy in April 2017 but remained there while applying for Swiss asylum. The limited details in the applicant’s notification to the Department on 12 May 2017 that the applicant’s wife and two children had fled Sri Lanka due to harassment from the Sri Lankan authorities and were seeking asylum in Switzerland was said to clearly suggest that the applicant was not aware of further details at that time. Further, the applicant submitted that his indication that he would abide by the advice of the agent, which he accepted to do, is again suggestive of a lack of knowledge prior to, or at the time of the protection visa interview. The applicant submitted that the evidence suggests that he was given information piecemeal and that the applicant received information after the delegate’s decision. The particular error that the applicant submits the Authority made by ground 6 is failing to properly engage in an intellectual process in failing to properly consider s 473DD of the Migration Act.
The applicant’s oral submissions
In relation to ground 4, Counsel for the applicant submitted the critical questions were when the applicant became aware of the new information regarding the alleged sexual assault of his wife and related matters and whether the Authority was correct in forming a view that the applicant became aware of the information prior to the delegate’s decision and did not disclose it.
Counsel for the applicant construed the Authority’s reasons as amounting to a finding that the applicant became aware of the information the date in April 2017 that the applicant’s wife and children arrived in Italy, but there is no direct evidence of the date that she disclosed the sexual assault claim. Counsel for the applicant submitted that there is no evidence of the timing of the disclosure of various information to the applicant, and no indication as to whether information was disclosed on the same day or over various days.
Counsel for the applicant submitted that the Authority should have recognised that there was a lack of evidence about timing, and that the information about what had happened to the applicant’s wife was important, and should have considered exercising its discretion under s 473DC of the Migration Act to clarify from the applicant or his wife when the applicant received the new information. There was a window of approximately one month between the date of the delegate’s decision and when the new information was provided to the Authority, and it is possible that the applicant first became aware of the information during this window, but, despite the lack of direct evidence, the Authority formed its own view of the time line and found that the requirement in s 473DD(b)(i) of the Migration Act was not met. Counsel submitted that this finding was incorrect because the Authority misunderstood the evidence. Counsel for the applicant continued to press this submission even after the Court raised questions relating to the evidence that suggested that the ‘window’ might be smaller than the month asserted by the applicant because the applicant said that he was told by his previous migration agent to disclose the information to the Department and the applicant’s new representative advised the Authority that they represented the applicant only two days after the delegate’s decision.
Counsel for the applicant submitted that ground 5 effectively runs off ground 4 and goes a little further. Counsel for the applicant submitted that, if there was no basis for the Authority to have found, as it did, that that the applicant failed the first limb of s 473DD, based on the error regarding the timeline, then the implausibility finding at [9] of the Authority’s reasons, the finding at [10] that the new information was not credible or it was not plausible that the applicant would not have known it earlier and the finding that the requirements of s 473DD(b)(i) of the Migration Act were not met were all unreasonable findings.
Counsel for the applicant submitted that ground 6 adds another nuance to the treatment by the Authority of the timing issue, by pleading that the Authority effectively failed to engage in an intellectual process and thereby failed to exercise its jurisdiction. Counsel for the applicant submitted that in [10] of its reasons the Authority failed to consider the possibility that the applicant actually did advise the Department of what he knew at relevant times. Counsel for the applicant submitted that, if it were the case that the information was received by the applicant after 18 July 2017, and then provided to the Department by the applicant’s new solicitor in August, that would amount to the applicant doing what he said he would do and there is no evidence to suggest that he did not do that. Counsel for the applicant conceded in response to a question from the Court that there was no evidence that the applicant did disclose the information to the Department. Counsel for the applicant submitted that if it is accepted that the Authority’s finding that the applicant did not inform the Department of the sexual assault claims of his wife is not founded in evidence, it follows that s 473DD(b)(ii) of the Migration Act would have been met.
The Minister’s written submissions
The Minister submitted that ground 4 fails at the outset because the sexual assault claim was not a claim that was formally before the Authority for its consideration. Given that the Authority had not accepted that the information satisfied the requirements of s 473DD of the Migration Act, there was no sexual assault claim to be considered by the Authority and therefore no obligation arose to consider inviting the applicant’s wife to give evidence about that claim.
The Minister further noted that the applicant’s written submissions in support of ground 4 were aimed at a different ground to that articulated in the pleading, with the submissions focused on whether the Authority could have reached a different decision about whether the sexual assault claim satisfied s 473DD of the Migration Act had the Authority exercised its power under s 473DC to get new information from the applicant’s wife. The Minister submitted that it is entirely unclear why the Authority is said to have been obliged to consider getting new information to assist in assessing whether to consider other new information. The Minister submitted that it was not unreasonable for the Authority not to get new information just because the applicant had not provided evidence that was sufficient to satisfy the requirements of s 473DD(b)(i) of the Migration Act and there might have been other evidence available. It was for the applicant to satisfy the Authority of the matters set out in s 473DD(b) of the Migration Act and his failure to do so did not give rise to any obligation on the part of the Authority to consider getting further information that might assist the applicant’s case.
In relation to ground 5, the Minister identified that the applicant’s submissions suggest that he is really asserting the following three errors:
(a)there was no evidence or logically probative basis for the Authority to find that the applicant was aware of the sexual assault claim before the delegate’s decision;
(b)there was no evidence or logically probative basis for the Authority to find that the applicant did not disclose all details of his claims to the Department; and
(c)it was unreasonable for the Authority to find the applicant’s submissions to be implausible.
The Minister submitted that insofar as the ground is advanced as a no evidence ground, the no evidence ground can only succeed where there is not a skerrick of evidence to support a finding. There was ample basis for the Authority not to be satisfied that the applicant only became aware of the sexual assault claim after the delegate made the decision, including:
(a)an email from the applicant’s representative that predated the delegate’s decision indicating that the applicant’s wife and two children had fled Sri Lanka due to mistreatment by the authorities;
(b)it was open to the Authority to infer from the applicant’s statement to the Authority that it was only after his wife and children arrived in Italy that he understood they had left Sri Lanka that, if the conversation about his wife being sexually assaulted occurred, it was the same conversation that the applicant had with his wife about why she left Sri Lanka which preceded the email to the delegate; and
(c)the applicant’s statement that he had not previously disclosed the claims due to fear, shyness and Tamil male cultural difficulty supports an inference that the applicant had previously known of the sexual assault claim but elected not to provide the information to the delegate.
The Minister also submitted that the Authority did not need direct evidence of the date the applicant became aware of the sexual assault claim and could draw inferences from the statements. The Minister further submitted that there was nothing illogical or irrational about the Authority interpreting the applicant’s vague evidence as to when he became aware of his wife’s sexual assault claims in the manner that it did, noting that a finding of illogicality or irrationality is a high bar and requires more than emphatic disagreement with the Authority’s decision.
The Minister submitted that it was open to the Authority to find that the applicant did not disclose the sexual assault claim to the delegate, noting that there is nothing in the court book to show that the applicant did disclose the sexual assault claim to the delegate.
The Minister further submitted that there is nothing illogical or irrational, and no unwarranted assumptions were made, in the Authority considering it implausible that the applicant would not have notified the delegate of recent events that he knew of before the delegate made the decision.
In relation to ground 6, the Minister submitted that the Authority did not err in the manner alleged by the applicant. The Minister acknowledged that in considering s 473DD(b)(ii) of the Migration Act, the Authority was required to consider whether the new information was capable of being accepted by the Authority as truthful, accurate or genuine. The Minister submitted that the Authority’s reasons, when read fairly and in context, showed that it found the new claims were evidently not credible in circumstances where the new claims were raised late and where the Authority did not accept the applicant’s explanation as to why he did not raise the claims at an earlier stage.
The Minister’s oral submissions
Counsel for the Minister addressed grounds 4 and 5 together. She submitted that the information in the applicant’s submission to the Authority about his wife being the victim of sexual assault was new information that had to satisfy the requirements of s 473DD of the Migration Act before the Authority was permitted to consider it as a substantive issue in the review. Section 473DD turns on the Authority’s state of satisfaction and s 473DD(b) requires the applicant to satisfy the Authority of the matters in s 473DD(b)(i) or (ii). To the extent that the applicant approached the question as being whether the Authority was right to form the view that the applicant became aware of the new information before the delegate’s decision and did not disclose it, the submission addresses the merits of the Authority decision and does not demonstrate jurisdictional error.
Counsel for the Minister submitted that no obligation arose in the circumstances of the present case for the Authority to get more information about the timing from the applicant’s wife for two reasons:
(a)There was nothing in the circumstances of this matter to engage any obligation on the Authority to get new information, noting that the obligation to consider exercising the power in s 473DC of the Migration Act only arises in limited circumstances. The applicant’s submission that the Authority should have considered exercising the power to obtain new information because there could have been more information that the applicant could have provided rises no higher than an assertion that there is something more the applicant might have said, therefore the Authority should have considered exercising its power to get new information. Counsel for the Minister submitted that the mere possibility that the applicant could provide further information does not oblige the Authority to consider whether to get such information.
(b)The Authority did not need new information about the timing of the new claim because, based on the evidence before it, it was open to find that the applicant’s wife had disclosed her sexual assault to the applicant prior to the delegate’s decision. In advancing this submission, Counsel for the Minister referred to various evidence in the court book regarding the timing of the applicant’s claims, including:
(i)there was a claim advanced with the applicant’s protection visa application that his wife was still living in Sri Lanka at that time and was being harassed, but no claim of sexual assault at that point;
(ii)the first information that the applicant’s wife and children had left Sri Lanka is in an email sent to the Department by the applicant’s migration agent on 12 May 2017, indicating that the applicant’s wife and children had fled Sri Lanka in April 2017 due to harassment from the Sri Lankan authorities, but without mentioning any claim of sexual assault. The email states that the applicant is willing to provide further information about his family’s current situation. Counsel for the Minister submitted that the Authority could take four things from this email: (1) the applicant’s wife had left Sri Lanka before the delegate’s decision; (2) the applicant and his wife must have had some sort of discussion or exchange of information about her leaving Sri Lanka; (3) the applicant and his agent must have had some sort of discussion about a change in circumstances to spur the email being sent; and (4) the applicant could have provided further information about his family’s circumstances, although it is unclear from the email exactly what further information the applicant could provide;
(iii)there is nothing in the court book to suggest that, at the time of the delegate’s decision, a claim that the applicant’s wife had been sexually assaulted had ever been conveyed to the Department; and
(iv)the first mention of any claim that the applicant’s wife was sexually assaulted was in the applicant’s submission and further statement to the Authority. While there was no particular date indicating when the applicant’s wife told the applicant she had been sexually assaulted, it was still open to the Authority to make findings about when the conversation occurred, and there is no real ambiguity in the statement about when the conversation occurred. In the second paragraph of the statement, the applicant stated that it was only when his wife and children arrived in Italy and made contact with him that he understood they had left Sri Lanka. The third paragraph contains the substance of the new information. The fourth paragraph refers to the applicant seeking advice from his migration agent, who told him to disclose this to the Department. Then the final two paragraphs on the page recount events that happened later in time, in June 2017 and August 2017 respectively. Reading the sequence as a whole, it appears that the conversation took place sometime between the wife arriving in Italy and the applicant informing his agent, who told him to disclose the details to the Department. The conversation with the agent must have taken place before the delegate’s decision, not only in circumstances where there was a new agent on the record only two days after the delegate’s decision, but also because any competent migration agent informing their client to disclose all the details to the Department would only have done so before the delegate’s decision.
Counsel for the Minister submitted that the Authority did not purport to find that the conversation happened on a particular date, but rather the finding was that the Authority was not satisfied that the new information could not have been provided to the delegate. This finding was open to the Authority on the evidence before it. Direct evidence was unnecessary because inferences could be drawn from the way in which the information was presented to the Department and to the Authority. Counsel for the Minister submitted that the high threshold for a finding of illogicality or irrationality was not met.
In relation to ground 6, Counsel for the Minister reiterated that the state of satisfaction that the Authority needed to reach for the purposes of s 473DD(b)(i) of the Migration Act was exactly that – a state of satisfaction – and it is for the applicant to put forward material sufficient for the Authority to reach the requisite state of satisfaction. The Authority was not obliged to consider alternative possibilities about dates and to explore these with the applicant to find out whether the applicant might have more favourably articulated his case in his statement. Nor does the Authority’s failure to refer to this in its reasons indicate that it did not give proper consideration to the dates. It simply indicates that on a plain reading of the information, it was not satisfied that the relevant conversation took place only after the delegate’s decision.
CONSIDERATION OF THE APPLICANT’S GROUNDS
The question of whether it was open to the Authority to find that the applicant became aware of the new information from his wife prior to the delegate’s decision permeates all three grounds. I therefore address that issue first.
It is implicit in the Authority’s lack of satisfaction that the new information could not have been provided to the Department prior to the delegate’s decision under s 65 of the Migration Act that the Authority considered that the applicant was informed by his wife of her relevant claims prior to the delegate’s decision (or, at the very least, was not satisfied that the applicant was not informed by his wife of her sexual assault claims until after the delegate’s decision).
It appears that the applicant is relying before this Court on the fact that the applicant did not give explicit evidence to the Authority as to precisely when he was informed by his wife about her claims and trying to use that to create confusion about whether the applicant was informed of his wife’s sexual assault claims before or after the delegate’s decision and impugn the Authority decision on this basis.
It is not appropriate for the Court on judicial review to form its own assessment as to whether the requirements of s 473DD of the Migration Act were met. The Court may, however, consider whether the Authority’s findings were unreasonable, illogical or irrational. In the present case, it was open to the Authority, on the evidence before it, to find that the applicant was aware of his wife’s sexual assault claims prior to the delegate’s decision, or to not be satisfied that he was not aware of the claims until after the decision.
Much of the evidence before the Authority to support a finding that the applicant was aware of his wife’s sexual assault claims prior to the delegate’s decision was identified by the Minister’s Counsel in the submissions advanced on behalf of the Minister.
I accept that the email sent by the applicant’s representative to the Department on 12 May 2017 shows that the applicant had received some communication about his wife’s circumstances prior to the delegate’s decision. I further accept that it was open to infer from the comment in the email that the ‘applicant is willing to provide more information about his family’s current situation’ that the applicant was aware of more information that he did not disclose at that time.
I acknowledge that that email is not of itself determinative of whether or not the applicant’s wife had disclosed to the applicant prior to 12 May 2017 that she had been sexually assaulted. However, that evidence needs to be viewed together with other evidence before the Authority, which includes the statement that the applicant provided to the Authority on 11 August 2017.
I accept the Minister’s submission that the structure of that statement supports an inference that the applicant’s wife informed him of the sexual assault prior to the delegate’s decision. The relevant structure can be described as follows:
(a)The second paragraph of the statement refers to the applicant’s wife being interrogated and taken away for questioning by the CID, and her and the children obtaining fake passports and leaving Sri Lanka. It is at the end of that paragraph that the applicant says it is only when they arrived in Italy and made contact with him that he understood they had left Sri Lanka.
(b)In the third paragraph the applicant refers to asking his wife as to why she made that decision and then she disclosed to the applicant that she had been sexually assaulted and threatened whilst in hospital.
(c)The fourth paragraph refers to the wife’s decision to leave Sri Lanka and the steps that she took to make that happen. The applicant then notes that after being informed by his wife of everything that happened to her, he sought advice from his former migration agent who informed him to disclose all the details to the Department, which the applicant accepted to do.
(d)The fifth paragraph refers to questioning of the applicant’s former neighbours after his family left Sri Lanka.
(e)The six paragraph refers to an event in June 2017 and the seventh paragraph refers to an event in August 2017.
This structure supports an inference that the applicant’s wife told the applicant of the sexual assaults at the time she told him she left Sri Lanka or shortly thereafter and before the next relevant event referred to in June 2017.
It is also relevant to note that the applicant speaks of seeking advice, after learning this information from his wife, from his ‘former Migration Agent’ who advised him to disclose the relevant details to the Department. The applicant’s migration agent at the time the statement was provided advised the Authority on 21 July 2017 that they were acting for the applicant and included an appointment of authorised recipient and appointment of representative that indicates it was signed by the applicant on 20 July 2017. The delegate’s decision was made just two days earlier on 18 July 2017. While the applicant refers to there being a period of time between the delegate’s decision and the new information about the wife’s sexual assaults being provided to the Authority, and speculates that the applicant may have learned of his wife’s sexual assault claims within that window of time, when read with the applicant’s statement that upon learning of the disclosure he sought advice from his former representative, that relevant window would appear to be just two days.
It is also relevant that the applicant provided a general reason in his statement to the Authority for not providing new information sooner. That explanation, which appears at the end of the applicant’s statement, is (emphasis added):
This being my last opportunity to explain to the DIBP and IAA, I have given my full story, although some of which were not completely given because of previous fear, shyness and Tamil male cultural difficulty.
The Authority referred to this explanation in its reasons and accepted that public discussion of rape or sexual assault might be difficult in the applicant’s culture, but did not accept that the applicant’s explanation explained the total lack of advice of, or detail about, the alleged repeated interrogations of his wife when taken away to CID headquarters, that she was assaulted in any manner at all and that she and the children were threatened with death by the authorities while his wife was in hospital. It is implicit in the explanation offered by the applicant for not providing the information earlier that he was aware of the new information prior to the delegate’s decision.
While no individual piece of evidence conclusively shows precisely when the applicant was informed by his wife of her claims relating to sexual assaults, the evidence when viewed collectively supports an inference that the applicant was aware of his wife’s claims prior to the delegate’s decision. It cannot be said that no logical or rational decision-maker could have drawn the inference that the applicant was aware of his wife’s sexual assault claims before the delegate’s decision on the materials before the Authority. There is no unreasonableness, irrationality or illogicity in the Authority not being satisfied that the applicant did not become aware of his wife’s sexual assault claims until after the delegate’s decision, or any implicit finding that he was advised of his wife’s sexual assault claims prior to the delegate’s decision.
Another issue which, although referred to in the particulars to ground 6, was addressed in submissions relating to all grounds was whether there was an evidentiary basis for the Authority’s finding at [9] that the applicant did not disclose the information about his wife’s sexual assault claims to the Department. There is no evidence in the court book that the applicant disclosed to the Department any information that his wife had been sexually assaulted and Counsel for the applicant did not identify any such evidence. In my view, there was an evidentiary basis for the Authority to find that the applicant did not provide the information to the Department. As Basten JA said in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34], a ‘decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view’.
Taking into account the above observations, I then turn to address the grounds in the application.
Ground 4
The ground as pleaded asserts that the Authority erred by failing to make inquiries, and in particular by failing to invite or take evidence from the applicant’s wife about her claims that she had been sexually assaulted.
Insofar as the applicant relies on the ground as pleaded, I accept the Minister’s submission that, having found that the requirements of s 473DD of the Migration Act were not met in relation to the new information about the applicant’s wife’s claimed sexual assault, there was no relevant claim that the wife had been sexually assaulted before the Authority for the purposes of its substantive review. I accept that, since there was no sexual assault claim to be considered by the Authority in its substantive review, no obligation arose to consider inviting the applicant’s wife to give evidence about that claim.
The applicant in his submissions has addressed the claim on a much broader basis than that set out in the application.
To the extent that the applicant asserts that the Authority’s implicit finding that the applicant was aware of his wife’s claims to have been sexually assaulted prior to the delegate’s decision has no basis in the evidence, I have addressed that question above and found that the finding was reasonably open to the Authority on the evidence before it.
The applicant has also asserted that the Authority ‘failed to’ exercise the discretion in s 473DC of the Migration Act to get new information about the timing of when the applicant was advised of his wife’s claims to have been sexually assaulted and that the Authority ‘should have’ considered exercising the discretion. I will interpret this generously as an assertion that the Authority unreasonably failed to exercise, or to consider the exercise of, its discretion in s 473DC of the Migration Act to get new information about the timing of when the applicant was advised by his wife that she was sexually assaulted.
It should be noted that, in this aspect of the applicant’s ground, the applicant is not asserting that the Authority unreasonably failed to get new information in relation to a substantive issue in the review, but rather, that the Authority unreasonably failed to get, or consider getting, new information to assist it to determine whether other new information provided by the applicant met the requirements of s 473DD of the Migration Act. Neither party was able to refer me to any case where the courts have considered whether the Authority can ever be obligated to consider exercising the discretion in s 473DC for the purpose of determining whether the requirements of s 473DD are met in respect of other new information. While the applicant referred to one case about the interrelationship between ss 473DC and 473DD, namely, EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462, that case was directed to a different issue and does not address the issue raised in the present matter.
It is not, however, necessary to consider in this case whether it can ever be unreasonable for the Authority to fail to exercise, or consider exercising, its discretion in s 473DC of the Migration Act to get new information for the purpose of determining whether other new information meets the requirements of s 473DD. That is because I am satisfied in the present case that the Authority did not unreasonably fail to exercise, or consider exercising, the discretion in s 473DC.
As submitted by the Minister, the applicant has not properly explained the basis upon which he says the Authority’s failure to exercise or to consider exercising the discretion was unreasonable. At its highest, the applicant’s submission is that the applicant did not clearly explain to the Authority when he received the new information, and there might have been more information that the applicant could have provided had the Authority asked him. This does not make it unreasonable for the Authority not to get new information from the applicant about when his wife informed him that she was sexually assaulted. Under s 473DD(b) of the Migration Act, it is for the applicant to satisfy the Authority that the requirements of the subsection are met. The applicant was provided with a copy of the Authority’s Practice Direction which informed him of this. That an applicant provides insufficient information to satisfy the Authority of the requirements in s 473DD(b), and could possibly provide more information, does not make it unreasonable for the Authority not to consider getting or to get further new information.
Further, in the present case, for the reasons already explained above there was ample evidence before the Authority from which the Authority could reasonably conclude that the applicant was informed of his wife’s allegations of sexual assault prior to the delegate’s decision. As discussed above, it was logical and rational to interpret the applicant’s evidence in a way that led to an inference that he was aware of his wife’s claims to have been sexually assaulted before the delegate’s decision. This was, in my view, by far the strongest inference that one could draw from the evidence before the Authority. The mere possibility that the applicant’s vague evidence left open an alternative interpretation, namely, that he first became aware of his wife’s claims to have been sexually assaulted in the two-day window between the delegate’s decision and the applicant appointing a new representative for the review before the Authority, noting that in his submission he indicated that he disclosed the claim to his former migration agent, did not make it unreasonable for the Authority not to consider inviting, or to invite, the applicant to provide further information to confirm or deny this unlikely possibility.
The matters raised by the applicant in ground 4, and his more extensive submissions relating to ground 4, do not establish jurisdictional error.
Ground 5
By ground 5 as pleaded, the applicant asserts that the Authority made a jurisdictional error by making unreasonable findings or making findings without logically probative material by rejecting the claim that the applicant’s wife had been sexually assaulted without further investigation.
In his submissions, the applicant submitted that the following findings of the Authority were illogical, irrational or unreasonable:
(a)the Authority’s finding at [9] that it was implausible that the applicant would not have notified the delegate of the new information regarding his wife’s sexual assaults and related claims prior to the delegate’s decision, had it occurred;
(b)the Authority’s finding at [10] that it was not credible or plausible that the applicant would not have advised the delegate that the authorities and the SLA continued to regularly question his relatives about him and his family after their respective departures;
(c)the Authority’s lack of satisfaction that the new information could not have been provided prior to the delegate’s decision;
(d)the Authority’s lack of satisfaction that the new information was credible personal information, which was not previously known, and had it been known may have affected the consideration of the applicant’s claims; and
(e)the Authority’s lack of satisfaction that there were any exceptional circumstances to justify considering the new information.
The findings of the Authority that it was implausible that the applicant would not have disclosed new information to the delegate had the events occurred were open to it on the evidence before it. The new information that the applicant provided to the Authority was presented as information that was critical to the applicant’s claims. The applicant’s assertion was that the sexual assault of his wife took place during interrogations by the Sri Lankan authorities about the applicant because it was the applicant, according to him, who was of interest to the authorities. Given the importance of this claim to the applicant’s overall claims, it was open to the Authority to find that it was implausible that the applicant did not raise it earlier if it happened. In reaching its findings of implausibility, the Authority was cognisant of the difficulties that some people may have raising allegations of sexual assault but, as indicated above, considered that this did not explain the applicant’s failure to provide any of the new information, and in particular that which could be provided without disclosing the sexual assault, prior to the delegate’s decision.
The Authority’s lack of satisfaction that the requirements of s 473DD(b)(i) of the Migration Act were met turned on its finding that the applicant was aware of his wife’s claim to have been sexually assaulted prior to the delegate’s decision. As explained above this finding was open to the Authority. It follows that it was also open to the Authority to conclude that it was not satisfied that the requirements of s 473DD(b)(i) were met.
The applicant has described a finding that the Authority rejected the applicant’s claim that his wife had been sexually assaulted. It is important to recall that the Authority did not consider this claim in its substantive review having found, at the anterior stage of its review, that the requirements of s 473DD of the Migration Act were not met. In considering the applicant’s assertions of illogicality, irrationality and unreasonableness insofar as they relate to whether or not his wife was sexually assaulted, it is appropriate to consider in the context of the Authority’s lack of satisfaction that the new information was credible personal information. In considering whether the new information is credible personal information for the purposes of s 473DD(b)(ii), the Authority was not required to assess whether the information is truthful, but rather was required to assess whether the information is capable of being believed: see CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[42]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [75]. The applicant has not provided any reason as to why he says it was unreasonable, illogical or irrational for the Authority not to be satisfied that the new information about his wife’s claims to have been sexually assaulted was credible personal information, beyond his concern that the Authority may have misunderstood the applicant’s evidence about the timing of when his wife informed him of the alleged sexual assault. For reasons I have already explained, I am satisfied that the Authority’s findings regarding the timing of when the applicant was advised of the alleged sexual assaults were open to it on the evidence before it. In circumstances where this is the only reason given by the applicant for asserting that the Authority’s lack of satisfaction in relation to s 473DD(b)(ii) of the Migration Act was unreasonable, illogical or irrational, it follows that the applicant has not established any jurisdictional error in relation to the Authority’s finding for the purposes of s 473DD(b)(ii).
Likewise, the applicant has not identified any reason why the Authority’s finding that there were not exceptional circumstances to justify considering the new information was illogical, irrational or unreasonable, beyond his concerns with the timeframe of when he was informed of his wife’s claims of sexual assault. Again, the applicant has not established that the Authority made any jurisdictional error in its finding for the purposes of s 473DD(a) of the Migration Act.
The ground as pleaded is also referred to as a no evidence ground and the applicant’s Counsel confirmed at the hearing that they press this ground as a no evidence ground as well. To the extent that this ground turns on the Authority’s implicit finding as to when the delegate became aware of his wife’s claim to have been sexually assaulted, I have explained in detail the evidentiary foundation for that finding above. There is clearly more than a skerrick of evidence to support the finding. Further, although not raised by the parties, I note that the no evidence ground of judicial review is only available in relation to positive findings, and not findings that the Authority was not satisfied that something had occurred: Sunchen Pty Ltd v Commissioner of Taxation (2010) 114 ALD 49; [2010] FCA 21 at [43]-[45]. The applicant has not established that the Authority made any positive finding that did not have a proper evidentiary foundation.
Ground 5 does not establish jurisdictional error.
Ground 6
Ground 6 relates to the same concerns that the applicant has about the Authority’s finding as to when he became aware of his wife’s claims to have been sexually assaulted. The applicant asserted that the Authority did not engage in an active intellectual process and failed to consider the possibility that the applicant may have received information from his wife at various times.
There is no basis on the material before the Court to find that the Authority did not engage in an active intellectual process when considering whether the requirements of s 473DD of the Migration Act were met. I accept the Minister’s submission that, in circumstances where the Authority was required to consider whether or not the applicant had satisfied it of the matters referred to in s 473DD of the Migration Act, the Authority was not obliged to consider alternative possibilities about dates and to explore these with the applicant to ascertain whether the applicant may have articulated his case in a more favourable manner. I further accept that the Authority’s failure to refer to this in its reasons does not indicate that it failed to give proper, genuine and realistic consideration to whether the applicant became aware of his wife’s claims before or after the delegate’s decision.
The ground otherwise overlaps with other grounds and is already addressed above. The applicant has not established jurisdictional error by ground 6.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error and therefore his application for judicial review must be dismissed.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 18 July 2024
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