FOF17 v Minister for Immigration

[2018] FCCA 1326

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1326

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misconstrued its statutory task and constructively failed to exercise jurisdiction under s 473DD of the Act – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CB, 473DD, 476

Cases cited:

CSR16 v the Minister for Immigrationand Border Protection [2018] FCA 474

Applicant: FOF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3924 of 2017

Judgment of: Judge Street

Hearing date: 23 May 2018

Date of Last Submission: 23 May 2018

Delivered at: Sydney

Delivered on: 23 May 2018

REPRESENTATION

Counsel for the Applicant: Ms F McNeil

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3924 of 2017

FOF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 30 November 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 13 October 2012 and on 6 June 2016 the applicant applied for a Safe Haven Enterprise visa. 

3. The applicant claimed to fear harm in summary from the Sri Lankan authorities and associated paramilitary groups, as he is a young Tamil male from a formerly Liberation Tigers of Tamil Eelam (LTTE) controlled area and by reason of his previous encounters with them and as he sought asylum in Australia, being a Western country. On 29 March 2017 the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

4. On 3 April 2017, the Authority wrote to the applicant identifying that the application for a protection visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant to put on new information and submissions. The applicant did so.

Before this Court

1. The grounds in the amended application in the present case are as follows:

   Ground 1

   The Immigration Assessment Authority (IAA) adopted an unduly narrow construction of s.473DD at paragraph [7] of the IAA decision by confining its determination of whether to consider new information provided by the applicant (being four letters in support referred to in the IAA decision at paragraph [7], CB 322, copies of which appear at CB 243, CB 245, CB 247 and CB 251) to whether the applicant had provided an explanation as to why that new information not been sought earlier. In so doing the IAA misconstrued its statutory task and constructively failed to exercise jurisdiction under s.473DD.

   Particulars

   (a) At paragraph [7] CB 322, the IAA reasoned that: "All four letters post-date the delegate's decision and for that reason I am satisfied they could not have been provided any earlier". Accordingly, s.473DD(b)(i) was satisfied.

   (b) The IAA then commented that there was no explanation as to why such letters were not sought earlier.

   (c) The IAA did not comment on whether the letters constitute credible personal information, did not specifically refer to s.473DD(b)(ii), and expressed no finding as to whether s.473DD(b)(ii) had also been satisfied.

   (d) At paragraph [7] CB 323, the IAA concluded that: "Overall I am not satisfied exceptional circumstances exist to justify their consideration". The IAA applied an unduly narrow interpretation of the te1m "exceptional circumstances" in that the IAA appears to have reasoned that its finding that the appellant had not explained why such letters were not sought earlier was decisive of the requirement that the circumstances be “exceptional circumstances”. This approach is inconsistent with the principles expressed in BVZ16 v Minister for Immigration & Anor [2017] FCA 958 at [9].

   Ground 2

   The IAA adopted an unduly narrow construction of s.473DD at paragraph [12] of the IAA decision in relation to the question of whether to consider new information provided by the applicant (being translations referred to in the IAA decision at paragraph [12], CB 323, copies of which appear at CB 284 (document dated 15 April 2017) and CB 288 (undated)) in that the IAA confined its consideration to whether the applicant had complied with the Practice Direction. In so doing the IAA misconstrued its statutory task and constructively failed to exercise jurisdiction under s.473DD.

   Particulars

   (a) At paragraph [12] CB 323, the IAA reasoned that: "Contrary to the IAA's 'Practice Direction', two of the translations do not specify the source of the information". The IAA concluded in relation to those translations (together with two other translations), "For the reasons as given above, I am not satisfied exceptional circumstances exist to justify consideration of these four sources, nor has the applicant has not satisfied me [sic] as to either of the matters in s.473DD(b)".

   (b) However, there is no indication that the IAA member did in fact consider either of the matters in s.473DD(b) in relation to the translations that are at CB 284 and CB 288.

   (c) The document dated 15 April 2017 post-dates the delegate's decision and therefore on its face appears to satisfy the requirements of s.473DD(b)(i).

   (d) In relation to the translations that are at CB 284 and CB 288 (described in paragraph [12] as being the translations that "do not specify the source of the information"), the IAA erred by conflating the requirements of s.473DD(b) with the requirements of the Practice Direction made under s.473FB of the Migration Act. This is despite the fact that there is nothing in s.473DD(b) which renders non-compliance with the Practice Direction a relevant consideration (see DHVJ6 v Minister for Immigration and Anor [2018] FCCA at [96]).

Ground 1

1. In relation to the first ground, Ms McNeil of counsel submitted that the Authority had failed to complete its statutory task in considering the new information under s 473DD of the Act in respect of four letters identified in paragraph 7 of the Authority’s reasons. Ms McNeil focused on the fact that there was no reference in that paragraph, unlike other paragraphs in the Authority’s reasons, to the consideration expressly of whether the documents were credible personal information. Ms McNeil also took the Court to the more recent decision of the learned Bromberg J in CSR16 v the Minister for Immigrationand Border Protection [2018] FCA 474 and in particular at, [37] – [43].

2. Ms McNeil took the Court to the four letters and identified how the respective letters might be said to support the applicant’s claims. Ms McNeil submitted that the reference to the four letters as noted in [6] above was not one formulated in the same way as identified in paragraph 12 and submitted that the Court should not infer by reference to the words as noted above, that the Authority has taken into account both limbs of s 473DD of the Act in determining whether or not there were exceptional circumstances to justify considering the four letters. Ms McNeil took the Court both orally and in her submissions to the structure of Part 7AA as well as the authorities supporting a constructive failure by the Authority in circumstances where it has failed to take into account both limbs of s 473DD of the Act in determining whether there are exceptional circumstances. 

3. The Authority’s reasons in the present case identify, after having referred to the material to which the Authority had regard under s 473CB of the Act, the receipt of a submission dated 29 April 2017 which the Authority correctly identified engages with the delegate’s reasons and issues that were before the delegate and on a fair reading of the Authority’s reasons, the Authority had regard. The Authority identified that the submission contained new country information dated March 2017, which did not identify a particular date. The Authority found the submission did not satisfy the Authority that the source could not have been provided to the delegate before the delegate’s decision, nor does it explain how, as general country information, it constitutes personal, credible information. The Authority expressly referred to the applicant being represented at the Safe Haven Enterprise visa interview and that the applicant had legal representation to prepare his Safe Haven Enterprise visa application. The Authority also referred to the delegate spending some time explaining how the applicant’s protection obligations would be assessed, and the importance of providing all relevant information in the first instance, which the applicant then indicated he understood. It was in those circumstances that the Authority in that regard was not satisfied there were exceptional circumstances existing to justify consideration of the new country information referred to, and the Authority expressly referred to the applicant not having satisfied the Authority as to either of the matters in s 473DD(b) of the Act. This reasoning of the Authority reflects an accurate understanding of the requirements of s 473DD of the Act in taking into account both limbs of s 473DD of the Act in determining whether there are exceptional circumstances that existed to justify considering new information. 

4. The Authority then referred to the submission that the applicant has mental confusion and memory loss which would lead to the authorities thinking he was with the LTTE. The Authority noted that there was no explanation why this claim had not been raised prior to the delegate’s decision and referred to the explanation that the applicant had been given at the time of the Safe Haven Enterprise visa interview, and the importance of providing all his claims in the first instance. The Authority then expanded upon what occurred during the Safe Haven Enterprise visa interview where the delegate and the applicant discussed the applicant’s mental health and that the delegate gave express consideration to that in the course of the delegate’s decision.

5. The Authority referred to taking into account the applicant’s mental health and was not satisfied the applicant could not have provided this specific new claim before the delegate’s decision. The Authority found there was no other evidence to indicate that the Sri Lankan authorities would impute the applicant to have an LTTE association on the basis of any mental health condition. In the absence of supporting information, the Authority did not consider this claim constitutes credible personal information and the Authority was not satisfied there were exceptional circumstances that existed to justify consideration of this particular claim. The Authority’s reasoning in relation to this new claim again reflects a correct understanding of both limbs of s 473DD of the Act. 

6. The critical paragraph in the Authority’s reasons the subject of ground 1 is as follows:

   7. On 29 April 2017 the IAA also received four letters of support for the applicant. Two of the letters are from Sri Lankan members of parliament, one is from the Bishop of Trincomalee, and one is from a justice of the peace. All four letters post-date the delegate’s decision and for that reason I am satisfied they could not have been provided any earlier. All four letters, in a general sense, reiterate the applicant’s claims which were before the delegate, although I note in some instances they are inconsistent with the applicant’s own evidence. There is no explanation before me why such letters, if relevant to the applicant’s situation, were not sought earlier. As noted above, the delegate explained to the applicant the importance of providing all relevant information in the first instance. Overall I am not satisfied exceptional circumstances exist to justify their consideration.

7. The Authority proceeded after paragraph 7 to deal with other material and, in particular, new claims raised in a further submission dated 8 May 2017. The Authority found the further submission did not explain why these new claims are only now being provided or how they constitute credible, personal information and referred to the reasons given above, and was not satisfied exceptional circumstance exist to justify consideration of the new claims and expressly referred to the applicant not having satisfied the Authority as to either of the matters under s 473DD of the Act. The Authority’s reasons in relation to this material clearly reflect a proper understanding of the requirement to take into account both limbs of s 473DD of the Act.

8. The Authority then addressed four translations in paragraph 12 which is as follows:

   12. The second IAA submission is accompanied by what it identifies as English translations of the “latest country information”. Contrary to the IAA’s ‘Practice Direction’, two of the translations do not specify the source of the information. Another two of the translations pre-date the delegate’s decision, and as there is no explanation before me as to why they were not provided earlier, or how as general country information, they constitute credible personal information. For the reasons as given above, I am not satisfied exceptional circumstances exist to justify consideration of these four sources, nor has the applicant has not satisfied me as to either of the matters in s.473DD(b).

9. The Court will return to paragraph 12 of the Authority’s reasons in relation to ground 2. Suffice to say that paragraph 12 expressly refers to either of the matters under s 473DD(b) of the Act which again reflects a correct understanding of the requirements of s 473DD of the Act. A correct understanding is also reflected in paragraph 13 of the Authority’s reasons as well as in paragraph 16.

10. Ms McNeil sought to place weight on the fact that there was a reference to both limbs in the consideration of other new material in support of arguing ground 1and submitted it should be inferred that the Authority had failed to have regard to the consideration of whether the information is credible personal information. The Authority’s reasons are not to be read with a keen eye for error. I do not accept that the absence of reference expressly to credible personal information warrants in the circumstance of this case, the Court inferring that the Authority did not have regard to both limbs of s 473DD of the Act in determining whether the four letters were ones in respect of which the Authority should be satisfied exceptional circumstances exist to justify their consideration. The Authority’s reasons as a whole support the Court concluding that the Authority took into account both limbs of s 473DD of the Act in relation to the new information the subject of challenge in ground 1. The Court finds that the Authority correctly understood and applied s 473DD of the Act in relation to the new information the subject of ground 1.

11. I do not accept that the Authority adopted an erroneously narrow meaning of exceptional circumstances or failed to take into account both limbs of s 473DD of the Act in holding that the four letters were not ones in respect of which the Authority was satisfied there were exceptional circumstances to justify the consideration. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, Ms McNeil of counsel submitted that the Authority had taken into account an irrelevant consideration, being the Practice Direction that required the identification of the source of information being provided to the Authority. It was a relevant consideration for the Authority to take into account under s473DD of the Act, the noncompliance by the applicant with the Practice Direction in relation to country information. I do not accept that the Authority conflated the task under s 473DD of the Act by taking into account the failure to identify the source of the information. That was a relevant consideration in relation to the matters under s 473DD of the Act. 

2. I do not accept the argument developed by Ms McNeil in her written submissions and orally that the Authority had determined the question of s 473DD(b) of the Act by reference to the Practice Direction. The Authority’s reasons, on a fair reading, do not support that contention. The Authority expressly referred to a consideration of whether the material was in existence before the delegate’s decision. In that regard it is apparent that there is an error in relation to the reference to two translations pre-dating the delegate’s decision. I do not regard that error as material or giving rise to any jurisdictional error in a determination under s 473DD of the Act. That is because it is apparent that the Authority was identifying the want of an explanation in respect of the material and that the Authority did take into account both limbs of s 473DD of the Act and the significance of the material in determining whether there were exceptional circumstances to justify consideration of the same. 

3. Notwithstanding the succinct and skilful argument of Ms McNeil, the Court finds the Authority did not confine its consideration to whether the applicant had complied with the Practice Direction and that the Authority did not misconstrue or fail to properly exercise its jurisdiction under s 473DD of the Act in relation to consideration and determination of whether the four translations met the requirements of s 473DD of the Act. No jurisdictional error as alleged in ground 2 is made out. 

Conclusion

1. As the amended application fails to make out any jurisdictional error, accordingly, the amended application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  2 July 2018