FNY17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 758
•20 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FNY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 758
File number(s): SYG 3917 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 20 August 2024 Catchwords: MIGRATION – Protection Visa – Refusal – Review of Immigration Assessment Authority (“IAA”) decision – Criteria for considering “new information” under s 473DD of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 473DD, 474 Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150
Division: General Number of paragraphs: 20 Date of hearing: 9 August 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms S. Lloyd, MinterEllison Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3917 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FNY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
20 AUGUST 2024
THE COURT ORDERS THAT:
1.The application be 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 CAMERON
INTRODUCTION
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 17 April 2013. On 10 August 2016, he lodged an application for a subclass 790 Safe Haven Enterprise Visa (SHEV) with what is now the Department of Home Affairs (Department) alleging that he feared persecution in Sri Lanka because he had worked as a tailor and in “distribution” for the Liberation Tigers of Tamil Eelam (LTTE) and became a person of interest to the Sri Lankan authorities. During the SHEV interview, the applicant further claimed that he had been involved in pro-Tamil separatist diaspora activities in Australia. On 16 February 2017, a delegate (Delegate) of the first respondent (Minister) refused the applicant’s application following which the matter was referred to the second respondent (IAA) for review. He was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
…
(b) the persecution must involve serious harm to the person; and
…
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
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.
BACKGROUND FACTS
In its decision the IAA summarised the facts alleged in support of the applicant’s claim for protection as follows:
•He worked for the LTTE's distribution unit in the Mullaitivu district as a tailor between 2006 and 2009. He worked there 4 days per week. Due to the nature of his work, he sometimes interacted with LTTE cadres.
•During the final phase of the war his brother, S, was seriously injured by pieces of shrapnel piercing his leg.
•He and his family were captured by the Sri Lankan army (SLA) and detained at [an] IDP camp at the end of the war from 2009 until approximately 2011.
•While he was detained, on one occasion Criminal Investigation Department (CID) officers came to the tent they were staying in to ask for S. They left after seeing S was injured and very young. The applicant believes the CID officers were actually looking for him.
•Approximately 10-15 days after his release, CID officers visited his home. They gathered information on the residents. They asked about the applicant and his siblings.
•The CID officers visited the tailor shop he was working at and questioned him. After that, he was instructed to report to the CID camp. At the CID camp, he was questioned on the first occasion and thereafter, the CID began interrogating him. He was required to report twice a month at the CID camp.
•The questioning became more intense overtime. The CID officers accused him of having been a member of the LTTE and being a combatant. They threatened to imprison the applicant as they believed him to be a member of the LTTE and that he was concealing information. The applicant had disclosed that he was a tailor for the LTTE but the CID officers did not believe him.
•After coming to Australia, the applicant attended a Martyrs day celebration on 27 November 2016 and has posted photos on his Facebook account of important people who were involved in the LTTE.
The applicant also supplied new information to the IAA to the effect that in 2007 he had been forcibly conscripted by the LTTE, taken, given weapons training and had served in the LTTE for a year before escaping, rejoining his family and surrendering to the army in mid-2009. The information was contained in a new statement and other documents including:
a letter dated 3 March 2017 purportedly from a member of the Sri Lankan Parliament stating the applicant's family are known to her and that the applicant, according to her investigation, was forced to join the LTTE in 2007.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2) of the Act. The IAA’s findings and reasons were summarised by the Minister in his written submissions in the following terms, which I adopt:
8. The Authority considered the applicant's claim to be a member of the LTTE and the statement setting out this claim to be new information. The Authority found that all of the information regarding the applicant's LTTE membership predated the delegate's decision and the new information directly contradicted his earlier evidence, leading the Authority to doubt its credibility. The Authority was not satisfied that the new information regarding the applicant's membership of the LTTE was credible personal information or that it could not have been provided before the Minister made the decision. The Authority was further not satisfied that there were exceptional circumstances to justify considering this new information. In respect of the letter which post-dated the delegate's decision, the Authority was not satisfied it was credible personal information due to discrepancies contained within the letter and was not satisfied there were exceptional circumstances to justify consideration of the letter.
9. The Authority accepted that the applicant and his family lived in the LTTE controlled Vanni until it was captured by the Sri Lankan Army, that the applicant worked as a tailor in the LTTE's distribution unit, that his brother was seriously injured by shelling in the final stages of the war, and that he and his family were detained at [an] IDP complex at the end of the war until 2011. The Authority did not accept that his work for the LTTE was known to the Sri Lankan authorities while he was detained in the IDP camp or that he was a person of interest because of that work. The Authority accepted the applicant was questioned about his work for the LTTE once he was released from the IDP camp; however, found that the applicant had exaggerated the frequency of his interactions with the Sri Lankan authorities. The Authority was satisfied that at the time the applicant departed Sri Lanka, he was not a person of interest to the authorities.
10. The Authority considered that any interest displayed in the applicant was attributable to the type of routine monitoring and harassment to which many Tamils were subject, and overall it was not satisfied that the applicant was at risk of serious harm if he returned to Sri Lanka on the basis of being a young Tamil male from the North, who did some work for the LTTE, who spent time in an IDP camp, and who has had past interactions with the Sri Lankan authorities, or on the basis of his imputed political opinion. The Authority was not satisfied that the applicant's activities in Australia would be viewed as the applicant playing a significant role in pro-Tamil separatist diaspora activities or that these activities are capable of raising his profile with the Sri Lankan authorities. The Authority was not satisfied the applicant would be at risk of harm from the Sri Lankan authorities due to his activities while he has been in Australia or if he continues such activities in Sri Lanka. The Authority did not accept the applicant's activities in Australia would bring the applicant to the attention of the authorities as a failed asylum seeker and was not satisfied any treatment he would face as a[n] illegal departee [sic] would constitute serious harm.
11. Turning to complementary protection, the Authority was not satisfied that any treatment the applicant would face as a failed asylum seeker or illegal departee [sic] would amount to significant harm. The Authority was otherwise not satisfied the applicant would face significant harm on the basis of his work for the LTTE or his activities outside of Sri Lanka for the reasons set out above.
(references omitted)
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant alleged:
Ground 1
IAA made a jurisdictional error by failing to discern a Convention reason.
Particulars
IAA failed to discern a Convention nexus as Applicant, as a tailor.
Ground 2
IAA made a jurisdictional error in that it failed to take into account torture prevalent in Sri Lanka.
Particulars
IAA referred to improvements in Applicant's home country.
Nevertheless there was information of ongoing torture.
At the hearing of this application the applicant also submitted that his new information had not been considered by the IAA. He submitted that affirming the Delegate’s decision without taking those matters into account was “illegal”.
Ground 1
The first ground of the application alleged that the IAA had failed to consider that the applicant might have a well-founded fear of persecution because he was a tailor. That allegation cannot be made out because the applicant did not suggest that circumstance as a basis of his claim for protection and a claim of that sort does not emerge with the necessary clarity from the material before the IAA. The applicant’s claim to fear persecution in Sri Lanka arose out of his connection with the LTTE, albeit as a tailor, but it was his association with the LTTE, not his occupation as tailor, that he said potentially imperilled him.
Ground 2
The allegation in the second ground of the application, that the IAA had failed to consider the risk or prevalence of torture in Sri Lanka, cannot be made out on the facts. It was specifically considered by the IAA in the following paragraphs of its reasons: [27], [41], [51] and [52].
Failure to consider “new information”
The information that the IAA declined under s.437DD of the Act to consider was identified earlier in these reasons. The process by which the IAA must apply when considering whether to consider “new information” was described by the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at 502 [12]:
… the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
(references omitted)
Section 473DD was quoted earlier.
The IAA’s reasoning for disregarding the new information concerning the applicant having been an LTTE fighter was summarised earlier in these reasons and comprised a number of elements:
(a)although aware that his claim to LTTE involvement was relevant to the assessment of his claims for protection, the applicant had provided no credible explanation for not proffering the information before learning of the Delegate's decision;
(b)the information directly contradicted the applicant’s earlier evidence and led the IAA to doubt his credibility;
(c)the applicant did not provide the information in departmental interviews despite being asked specific questions relating to his prior involvement with the LTTE;
(d)the applicant had been advised at the start of his interview with the Delegate that he might not have another opportunity to provide information about his claims and replied, when asked whether there was anything in his statement he wished to add to or change, that there was not;
(e)the information in question was not included in the supplementary information that the applicant’s representative supplied to the Delegate after the Delegate’s interview and was not provided in the two week period between that submission and the Delegate’s decision when the applicant had had the opportunity to further discuss his claims with his representative; and
(f)no explanation had been provided as to why the letter of 3 March 2017 had not been obtained earlier than it was and in any event its authenticity was questionable because it manifested obvious errors.
Referring to those matters, the IAA stated that it was not satisfied that the information in question was credible personal information or that it could not have been provided before the Delegate made her decision. It went on to say:
nor am I satisfied that there are exceptional circumstances to justify considering the
new information or the letter.
I find that the IAA stepped through the process prescribed by s.473DD and that the only remaining question of significance is whether it applied the prescribed test correctly, specifically the s.473DD(b)(ii) criteria of credibility.
In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 Bromberg J said:
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).
(at [41])In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 at 165 [62] his Honour’s construction of s.473DD(b)(ii) was held by the Full Court of the Federal Court to.be correct.
In this matter, the IAA gave clear reasons, not apparently affected by error, why it was not prepared to accept the new information in question as accurate or truthful. Having done so it further concluded, again not apparently erroneously, that there were no exceptional circumstances justifying the consideration of the new information existed.
The IAA did not err in deciding to consider the new information in question.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 20 August 2024
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