FSJ17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 966
•3 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FSJ17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 966
File number(s): SYG 4023 of 2017 Judgment of: JUDGE LAING Date of judgment: 3 October 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA misapplied s 473DD of the Migration Act 1958 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) ss 36 & 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494
BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 17 September 2024 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Mr A Westenberg of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 4023 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FSJ17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
3 OCTOBER 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 LAING:
The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA). By that decision, the IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Sri Lanka who arrived in Australia in 2012 as an unauthorised maritime arrival.
On 1 August 2016, the applicant applied for the protection visa that is the subject of the current proceedings.
The Delegate refused the application on 17 February 2017. The matter was referred to the IAA for review.
On 8 December 2017, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA summarised the background to the matter and the material before it at [1]-[6] of its decision. The IAA observed at [5]-[6] that it had found that certain information contained in submissions and a copy of a news article submitted by the applicant did not meet the requirements for consideration under s 473DD of the Migration Act 1958 (Cth) (Act). The IAA’s reasoning for finding this is the subject of further consideration below.
The IAA accepted that the applicant was a Malay Muslim, who lived in a predominantly Malay Muslim village in an otherwise majority Sinhalese area (at [12]). The IAA accepted that the applicant worked as a fisherman (at [13]).
The IAA made the following findings (at [14]-[18]):
(a)the IAA accepted that the applicant was involved in a fight in 1999 as a result of ethnic and/or religious tensions, however the IAA was not satisfied that the incident would cause the applicant a real chance of serious harm in the foreseeable future (at [14]);
(b)the IAA accepted that in 2004 there was a riot over fishing rights in the harbour between Sinhalese persons and Malay Muslims. The IAA accepted that the incident was a serious one resulting from ethnic and religious tensions. However, given the intervention by the police and the resolution reached, the IAA was satisfied that it did not lead to the applicant facing a real chance of serious harm (at [15]);
(c)the IAA accepted that in 2004 there was inter-ethnic and/or religious tension over the burning of a bus. However, the IAA was not satisfied that this incident gave rise to a real chance of harm in relation to the applicant (at [16]);
(d)the IAA accepted that Bodu Bala Sena opposed the building of another mosque in his village and that some Sinhalese villagers vandalised mosques. The IAA considered, however, that there was no evidence to suggest that the applicant was prevented from attending mosques, practising his faith or celebrating cultural and religious events (at [17]); and
(e)the IAA accepted that Malay Muslim fishermen had been discriminated against by the Sri Lankan Navy. However, the IAA did not accept that this constituted or would constitute serious harm (at [18]).
The IAA considered the applicant’s claim about being assaulted by a group of Sinhalese men in 2012 when he slaughtered an animal in preparation for a feast during a religious celebration. The IAA found that inconsistencies in the evidence the applicant had given in relation to this claim, combined with the hesitant manner in which evidence was given, gave rise to concerns about its veracity. In this regard, the IAA:
(a)noted some inconsistencies in the applicant’s evidence regarding how he escaped the attack, the injuries he sustained and how they were treated (at [21]-[22]);
(b)noted further inconsistencies between what the applicant had said had happened in his Arrival Entry Interview and his later claims (at [23]);
(c)questioned the plausibility of the applicant’s responses at the SHEV interview, particularly regarding how his two brothers, unarmed, were capable of fending off ten attackers who were armed and wanted to kill the applicant (at [25]);
(d)found it difficult to accept that the applicant had been the only person who had slaughtered an animal for the festival and considered that he had provided an “opportunistic response” in this regard when questioned by the Delegate (at [26]);
(e)did not accept a belated claim by the applicant about a previous history with a politically connected person (Leader) the applicant claimed had wanted to kill him (at [26]);
(f)noted that the applicant did not claim that his family had been harassed in relation to the Hajj festival celebrations or for any other reason (at [27]); and
(g)did not accept that the applicant was attacked by a gang of ten men led by the Leader after slaughtering an animal for the Hajj festival celebrations (at [28]).
The IAA considered country information regarding ethnic and religious tensions in Sri Lanka. The IAA accepted that the applicant had faced some harassment by Sinhalese men around the time of the religious festival, including in October 2012 (at [29]).
However, the IAA did not accept that the applicant had been seriously harmed in the past as a result of celebrating the religious festival (at [30]). Based upon available country information, the IAA found that the chance of the applicant facing serious harm because he is a Malay Muslim, and would continue to slaughter an animal for the religious festival, to be remote (at [31]-[44]).
The IAA found that the chance of the applicant facing harm in the foreseeable future due to his brother’s previous candidature for a political party, or his own or his community’s support for the party, to be remote (at [45]-[47]).
The IAA accepted that the applicant may be questioned and charged on account of his illegal departure. This may result in him being detained for a limited period as well as a fine. The IAA considered that these processes would be pursuant to a law of general application. The IAA did not accept that they would result in a real chance of harm amounting to serious harm (at [48]-[62]).
Having regard to the foregoing, the IAA similarly did not accept that the applicant would face a real risk of significant harm in Sri Lanka (at [57]-[62]).
On the basis of the above, the IAA found that ss 36(2)(a) and 36(2)(aa) of the Act could not be met and affirmed the Delegate’s decision (at [55]-[62]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 22 December 2017, relying upon the following ground:
1.The IAA adopted an unduly narrow construction of s473DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the IAA Practice Direction No. 1 and in so doing, misconstrued its statutory task and constructively failed to exercise jurisdiction under s473DD.
Particulars
(a)At paragraph 5 the IAA reasoned that the reference to being a “wealthy Muslim” could have been provided before the decision was made and the re-framing of his claims in this light would not have affected the delegate’s consideration of the applicant’s claims was determinative of the matters under s477DD and in doing so, the IAA constructively failed to exercise jurisdiction under s473DD;
(b)At paragraph 6 the IAA reasoned that the failure to provide an explanation as to why the news article in the Colombo Telegraph was not provided before the delegate’s decision was made was determinative of the matters under s473DD and in doing so, the IAA constructively failed to exercise jurisdiction under s473DD;
(c)In determining whether the new information as identified by the IAA could be considered by it, s473DD required the IAA to determine whether there were exceptional circumstances to justify its consideration of the new information as well as determining whether it is satisfied as to why the new information was not and could not have been provided to the Minister before the Minister made its decision, OR 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.
Section 473DD of the Act provided:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (AUS17), it was stated at [10]-[11] per Kiefel CJ, Gageler J (as his Honour was), Keane and Gordon JJ (footnotes omitted):
10.Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
The IAA reasoned as follows at [4]-[6] of its decision:
4.On 14 March 2017 the applicant provided the IAA with additional material. In making my decision on the review application, by law (s.473DD), I must not consider any new information unless, in summary, I am satisfied there are exceptional circumstances to justify its consideration; and the new information was not, and could not have been provided before the delegate's decision was made; or 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. In considering the additional material provided by the applicant and applying the law I make the following findings.
5.The additional material consists of a brief submission essentially re-stating the applicant's claims and a copy of a news article. In assessing whether or not I am able to consider the new information I note that the submission re-frames the applicant's claim by stating that he fears harm as a wealthy Muslim who performs a ritual called Uduhiyyah. The applicant has consistently stated that he was attacked previously when performing this ritual and he fears harm in the future from these attackers therefore there is nothing new in this aspect of the submission. I consider that the applicant could have referred to himself as a "wealthy Muslim" before the delegate's decision was made if this is a ground for his fearing harm however he did not do so. I am not satisfied that the reference to his being a "wealthy Muslim" could not have been provided before the decision was made and I am not satisfied that re-framing his claims in this light would have affected the delegate's consideration of the applicant's claims. As such I am not satisfied that there are exceptional circumstances which justify the consideration of the applicant's claim that he is a "wealthy Muslim" who performs the Uduhiyyah ritual: s.473DD.
6.The additional material includes a news article in the Colombo Telegraph titled "Sri Lankan Muslims At The Cross Roads -Animal Sacrifice And Other Issues" by lzeth Hussain. The article was published on 10 October 2014 as such it pre-dates the delegate's decision. It was not provided before the delegate's decision was made and there is no information before me to indicate why the article could not have been provided before the delegate's decision was made. As such I am not satisfied that this article could not have been provided before the delegate's decision was made. I note that the referred material includes numerous reports regarding anti-Muslim sentiment in Sri Lanka. This particular article is about Sinhalese-Muslim relations in Sri Lanka and is not credible personal information about the applicant. I am unable to consider the article under s.473DD.
From the above, it does not appear that the IAA confined its determination to whether or not the applicant provided an explanation in accordance with IAA Practice Direction No. 1. Rather, the IAA appears to have decided whether the requirements of s 473DD were met based upon the information that was before it more generally. This is indicated, for example, by the IAA’s references to the material before it that went beyond the concise submission that had been provided by the applicant, as well as the IAA’s reference to whether information before it “indicate[d]” a criterion was met (rather than simply relying upon a lack of direct explanation).
In relation to [5] of the IAA’s decision, particulars to the ground contended that the IAA constructively failed to exercise jurisdiction. From considering the particulars to the ground as a whole, I understood the applicant to be submitting that the IAA erred by not considering whether the information about him being a “wealthy Muslim” was “credible personal information”. This is in circumstances where the IAA appears to have given reasons for finding that s 473DD(b)(i) was not met and no relevant error has been contended (let alone demonstrated) in relation to that reasoning. The applicant agreed with this understanding when asked at the hearing before the Court.
I accept that the IAA did not directly address the question of whether the information was “credible personal information”. However, the requirements in s 473DD(b)(ii) are expressed cumulatively. Based upon the wording of the provision, it is not apparent that the IAA would necessarily err in finding it was not met on the basis that the IAA was not satisfied that the information, “had it been known, may have affected the consideration of the referred applicant's claims.” No authority to the contrary has been drawn to my attention.
In any event, as the Minister submitted, the IAA’s reasons must be read in a context where the IAA was not required to give reasons for the exercise of its discretion: see BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 (BDF17) at [68] (Kenny J). I consider the most likely interpretation of the IAA’s reasons at [5] as being that, although the IAA did not doubt that the information could be considered “credible personal information”, the IAA did not find that s 473DD(b)(ii) was met because the IAA was not satisfied that the information, if known, may have affected the consideration of the applicant’s claims.
I note that the language used by the IAA at [5] was that: “I am not satisfied that the reference to his being a "wealthy Muslim" could not have been provided before the decision was made and I am not satisfied that re-framing his claims in this light would have affected the delegate's consideration of the applicant's claims” (emphasis added). Taken strictly, such wording may have indicated misapplication of the relevant test. Section 473DD(b)(ii) only required that the information may have affected the consideration of the applicant’s claims, not that it would have done so. However, that the IAA understood this is indicated by the immediately preceding paragraph at [4] of the IAA’s reasons. There, the IAA observed that the relevant question was whether the information “may” have affected consideration of the applicant’s claims. Taking this into account, on balance, I accept the Minister’s submission that the IAA’s use of the word “would” in [5] reflected a looseness of language rather than a misunderstanding or misapplication of the relevant test.
The IAA therefore appears to have considered s 473DD(b)(i) and (ii), before making a determination under (a). The IAA’s approach in this regard appears to have been consistent with the requirements of AUS17.
Further, even if some error were apparent in relation to [5], I accept the Minister’s submission that materiality has not been demonstrated: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [2] per Bell J, Gageler J (as his Honour then was) and Keane J. In circumstances where no further content was given to the claim that the applicant was a “wealthy Muslim” (beyond its relevance to his participation in an activity both the Delegate and the IAA accepted had occurred), it is difficult to see how consideration of that information could have possibly resulted in a different outcome.
In relation to [6] of the IAA’s decision, I accept that the IAA’s reasons for not accepting that the article provided contained “credible personal information” were somewhat limited in nature. Although the IAA found that the article did not contain such information “about the applicant”, this would not necessarily determine the question. However, as the Minister submitted, the IAA also appears to have considered that the article was concerned generally with Sinhalese-Muslim relations in Sri Lanka, and to have found that it was not “credible personal information” on this basis. I accept that this approach was open to the IAA, in circumstances where the applicant does not appear to have suggested otherwise in his submission to the IAA: cf BDF17 at [76]-[81]. While the IAA did not expressly determine the question of exceptional circumstances, I accept the Minister’s submission that it was not required to do so, given its finding that s 473DD(b) had not been met: AUS17 at [11].
Further issues
At the hearing before the Court, a number of further issues were raised by the applicant.
The first was that certain documents in the Court Book (at CB 21, 23, 25, 27, 29, 31, 33, 35, 37 and 38) were not documents that he had provided. The documents in question largely consisted of untranslated identity documents such as birth certificates and marriage certificates. They also included correspondence addressed to another person regarding scuba diving, and a swimming certificate in the name of the other person. The applicant stated that the documents belonged to his friends. There is also a fisherman’s identity card and some examination results bearing the name of another person (at CB 37 and 38).
The Minister observed that these documents appeared to have been before the Delegate and the IAA, which was why they were included in the Court Book. The Minister submitted that it was unclear whether the applicant had provided these to the Department some time ago, or whether some kind of error had occurred. The Minister’s representative indicated that this was being considered by, and would be further discussed with, the Department.
In any event, the applicant did not contend that the documents were considered by the IAA in any manner that was adverse to him. It is not apparent how the documents in question could be said to demonstrate any relevant, material error on the part of the IAA.
During the hearing before the Court, the applicant also suggested at one point that he did not provide the submissions to the IAA located at CB 174.Those submissions appear to have been provided by one email address, and then forwarded to the IAA by a second email address. The applicant accepted that the second email address was an email address that he had used. Upon further consideration, the applicant accepted that he may have provided the material to the IAA although he did not remember doing so.
The applicant relatedly suggested, at one point during the hearing, that he did not claim to be a “wealthy Muslim”. In response, it was observed that this claim was made in the submissions he accepted he may have forwarded to the IAA (even if they may have been prepared by another person). It was also explained that the applicant’s ground of review contended that the IAA had erred in finding that this information was unable to be considered. The applicant was asked if he still relied upon this aspect of the written ground, or if he was suggesting some other ground. The applicant indicated that he still wished to rely upon the pleaded ground, but did not wish to be heard further in relation to it.
The applicant submitted that a further issue he had with the IAA’s decision was that the IAA did not believe him, although he was facing “a life threat”. I accept that the applicant may be disappointed in the IAA’s decision and may disagree with it. However, as I explained to him at the hearing of this matter, this Court’s powers in proceedings of this nature are limited. This Court is not able to overturn the IAA’s decision based upon disagreement alone. The only question for this Court is whether the IAA made some legally relevant, material error, based upon the material that was before it. The applicant informed the Court that he understood this. As it has not been suggested, let alone demonstrated, that the IAA’s reasoning was logically unavailable to it, the applicant’s disagreement with the decision does not provide a basis for overturning it.
CONCLUSION
For the reasons given above, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 3 October 2024
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