FTR17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 32

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FTR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 32   

File number(s):

MLG 2867 of 2017

Judgment of:

JUDGE TAGLIERI

Date of judgment:

22 January 2024

Catchwords:

 MIGRATION – application for judicial review of decision of the Immigration Assessment Authority – safe haven enterprise visa – where the Applicant claims there was a constructive failure by the Authority to exercise review jurisdiction – where the Applicant claims there was a failure to consider an integer of the claim – jurisdictional error established – material error found - application for review allowed  

Legislation:

Migration Act 1958 (Cth) ss 473DC, 473DD, 476

Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620

FND17 v Minister for Immigration [2019] FCA 1369

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287

TTY167 v Republic of Nauru [2018] HCA 61

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of hearing:

11 September 2023

Place:

Hobart

Counsel for the Applicant:

Mr White

Solicitor for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Barrington

Solicitor for the First Respondent:

Australian Government Solicitor

Table of Corrections
21 August 2024	On the Orders page, the name of the Second Respondent has been changed from “Administrative Appeals Tribunal” to “Immigration Assessment Authority”

ORDERS

MLG 2867 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FTR17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	22 JANUARY 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration, Citizenship and Multicultural Affairs.

2.A writ of certiorari issue quashing the decision of the Second Respondent dated 12 December 2017.

3.A writ of mandamus issue directed directing the Second Respondent to determine the application for review according to law.

4.In the even that there is any application for costs, the Court will convene a date for submissions.

THE COURT NOTES THAT:

A.The name of the Second Respondent on the Orders page has been amended pursuant to rule 17.05(2)(g) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 21 August 2024.

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 Taglieri

1. By Amended Application filed on 14 August 2023, the Applicant seeks review of a decision of the Second Respondent, being the Immigration Assessment Authority (“the Authority”), dated 12 December 2017, whereby it affirmed the First Respondent’s decision not to grant a Safe Haven Enterprise Visa (“SHEV”) to the Applicant. The application invokes the Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).

   BACKGROUND AND PROCEDURAL HISTORY

2. The background and procedural history of this matter is not disputed and as follows:

   a)   The Applicant is a citizen of Sri Lanka. He arrived in Australia by boat on 24 November 2012.

   b)   On 2 August 2016, the Applicant applied for the SHEV, claiming fear harm from Sri Lankan authorities on the basis of his perceived association with the Liberation Tigers of Tamil Eelam (LTTE).

   c)    On 21 December 2016, the Applicant attended a protection interview before a delegate of the Minister.  Post-interview submissions were provided by the Applicant’s representative on 16 January 2017 and 9 February 2017.

   d)   On 27 February 2017, the delegate decided to refuse to grant the SHEV, because although it was accepted that the Applicant was investigated for LTTE links in 2009, it was not accepted that Sri Lankan authorities had detained and questioned him in October and November 2012.

   e)   Following a review by the Authority, on 12 December 2017, it affirmed the delegate’s decision to not grant the SHEV. Although, the Authority found the Applicant’s evidence to be generally consistent and credible, accepted the Applicant’s claims of past harm in Sri Lanka, including his claim to have been detained three times in October and November 2012, it did not accept that this was anything more than routine and opportunistic harassment and was not indicative of any ongoing profile with Sri Lankan authorities.

   COURT REVIEW

3. A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Authority. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] and many other authorities since.

4. The Amended Application was listed before the Court for hearing on 11 September 2023.  Both the Applicant and First Respondent were represented by counsel.

5. The Applicant asserts two grounds of jurisdictional error, which are set out in his Amended Application filed 14 August 2023.  He also relies on an Outline of Submissions filed on 14 August 2023.  In summary, the grounds of review assert that:

   ·Ground 1: The Authority constructively failed to exercise its jurisdiction by failing to properly or at all consider an integer of the Applicant’s claims.

   ·Ground 2: The Authority unreasonably failed to exercise or consider exercising its discretion pursuant to s 473DC of the Act.

6. A Court Book was filed by the First Respondent on 15 October 2018 and the parties agreed that it should be received in evidence.  The documents in the Court Book were marked as a single exhibit – Exhibit A-1 – and have been considered by the Court as they are relevant to the grounds of review.

7. The First Respondent relied on Written Submissions filed on 28 August 2023 and referred the Court to various authorities contained in a List of Authorities filed by them on 7 September 2023.

   CONTENTIONS OF THE PARTIES

   Ground 1

8. Counsel for the Applicant expanded on the Written Submissions previously filed.  He took the Court to various parts of the decision of the Authority and its reasons.[1]  The intended purpose of this was to demonstrate that although the Authority had recorded the Applicant’s claim that he and his family visited Prabhakaran House (the home of an LTTE leader) in 2012 and were intercepted by the Criminal Investigation Department (“CID”), questioned and then released, it did not appreciate the relevance of this in the chronology leading to him fleeing the country due to being a person of interest as a LTTE member.

   [1] Court Book, Decisions and Reasons of the Authority, beginning at p 251.

9. Counsel submitted that the Authority had stated in its reasons at [15] that there did “not appear to be any reason for the authorities to begin investigating him in October 2012”, which indicates a lack of appreciation that the visit to Prabhakaran House was the trigger for the CID and authorities then regarding the Applicant as a person of interest.  It was submitted that this was demonstrative of the Authority misunderstanding the claim and not considering it in the relevant sense, meaning it constructively failed to undertake its statutory task of review.

10. The First Respondent’s primary answer to the above contentions is that the Applicant had never claimed that the CID’s renewed interest in him in 2012 was because of the visit to Prabhakaran House.  Rather, it submits that the reason given for the renewed interest was that someone had reported him to the authorities.[2]

    [2] First Respondent’s Written Submissions filed 28 August 2023 at [15] and emphasised orally at the hearing.

11. In view of the claims described above, the First Respondent contended that there was no need for the Authority to appreciate any potential relevance of the visit.  Consequently, the First Respondent submits that there was no failure to consider an integer of the Applicant’s claims.

12. The First Respondent alternatively submits that if there was a relevant failure to appreciate the significance of the visit, such failure was not material.  It says this is because the Authority ultimately accepted that the Applicant had been questioned by CID on three occasions in October and November 2012, during which he was slapped, threatened with a gun, asked about weapons, and asked to sign a document acknowledging he had been a member of the LTTE.[3]  Despite this, it did not accept that he was a person of interest to authorities when he left Sri Lanka.[4]

    [3] Court Book, p 256, Decision and Reasons of the Authority, at [15].

    [4] Court Book, pp 256-258, Decision and Reasons of the Authority, at [16]-[23].

13. Concerning Ground 2, the parties were agreed about the relevant principles applying to the exercise of the power in s 473DC of the Act.[5]  In summary, the relevant principles are:

    ·It is an implied condition of the power that it be exercised reasonably;[6]

    ·There is a difference between the implied condition of reasonableness for exercise of the power and procedural fairness;[7]

    ·There is no obligation to exercise the power in every case of departure from the delegate’s findings;[8]

    ·Where the Authority is comparatively disadvantaged to the delegate, it may be unreasonable not to exercise the power without good reason;[9]

    ·Establishing that it was unreasonable not to exercise the power requires a demanding standard;[10]

    ·The Court should not lightly interfere with a decision about the exercise of the power as it involves discretion which resides within bounds of reasonableness;[11] and

    ·Did the Authority exercise its discretion as to the power devoid of plausible justification such that no reasonable person would have taken the course it did.[12]

    [5] First Respondent’s written submissions filed 28 August 2023 at [20]-[21] and Applicant’s written submissions filed 14 August 2023 at [18].

    [6] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 (“ABT17”) at [3], [18], [20], [61] and [80]. See also Minister for Immigrationand Border Protection v CRY16 [2017] FCAFC 210 at [82].

    [7] ABT17 at [18].

    [8] FND17 v Minister for Immigration [2019] FCA 1369 at [39], cited with approval in ABT17 at [22].

    [9] ABT17 at [22] and [25].

    [10] Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513, at [37] citing TTY167 v Republic of Nauru [2018] HCA 61.

    [11] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, at [11], [52], [58], [70], [97] and [135].

    [12] ABT17 at [19].

14. The Applicant contends that it was legally unreasonable for the Authority not to seek further information from him because of five circumstances, which are set out at [22] of the Written Submissions filed 14 August 2023.  During the hearing, counsel for the Applicant emphasised these circumstances.

15. The First Respondent, in answer to these contentions, submitted that there was no obligation to put the Applicant on notice of reservations about the reliability of the letter from the Terrorist Investigation Division (“TID”) dated 3 May 2017 (“the letter”).[13]  Further that the Authority apparently did not consider there was a deficiency in information it had or an evidentiary gap.

    [13] Court Book, pp 242-243.

16. Counsel for the First Respondent also submitted that the fourth circumstance relied upon by the Applicant[14] was plainly wrong, because the Authority did have concerns about the credibility of claims made and this was demonstrated by [18] to [23] of its reasons.

    [14] At [2] of the Written Submissions filed 14 August 2023, being that “[t]he Authority had otherwise found the Applicant to be a credible witness and accepted his claims of past harm in Sri Lanka.”

17. The First Respondent impressed that Ground 2 was analogous to the complaint made in FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 (“FBR18”) and that the Applicant’s complaint had no merit for the same reasons given by Farrell J in that case at [44]-[45].

    EVALUATION AND DETERMINATION

18. I have carefully considered the submissions made by the parties, the materials in the Court Book and the authorities to which I have been referred.  For the following reasons, I have arrived at the conclusion that ground 2 is not made out but ground 1 is.

19. Ground 2 relates to purported jurisdictional error due to the Authority unreasonably failing to obtain further information from the Applicant pursuant to s 473DC of the Act in relation to the letter (referred to at [15] of these reasons), which was new information.

20. The Authority gave detailed reasons for not being satisfied that the letter should be considered.[15]  The Applicant says that the Authority ought to have exercised its power to seek further information from him before deciding not to take the letter into account and its failure to do so was unreasonable.

    [15] Court Book, pp 252-253, Decision and Reasons of the Authority, at [5].

21. It is common ground that the Authority did not seek further information in relation to the letter and did not exercise its power under s 473DC of the Act. Disposition of this ground therefore involves a narrow issue of whether the failure to seek further information was legally unreasonable.

22. Not all the circumstances relied upon by the Applicant to persuade the Court that the failure to seek further information was unreasonable are sound.  I agree that it is wrong to say the Authority had otherwise found the Applicant to be credible, as some paragraphs of the Authority’s reasons demonstrate the contrary, particularly in relation to claims that he fled to his mother’s home in Vavuniya shortly before leaving the country on 10 November 2012.[16]

    [16] See, eg, Court Book, pp 256-257, Decision and Reasons of the Authority, at [18], [20] and [21].

23. Furthermore, the concerns about the reliability and relevance of the letter were not confined to the clerical error concerning the National Identity Card number.  The Authority rightly observed that there had never previously been a claim that the Applicant was subject to TID attention and it did not consider it plausible that a letter would be sent from TID five years after he left Sri Lanka, particularly as he claimed his wife had told the TID that he had left the country.[17]

    [17] Court Book, p 253, Decision and Reasons of the Authority, at [5].

24. Given the broad nature of the discretion and that the Authority’s reasons demonstrate it considered itself well placed to determine whether the letter should be considered pursuant to s 473DD of the Act, I am not persuaded that there was unreasonable failure to seek further information.

25. I agree that the circumstances of this matter have parallels with the sentiments of Farrell J in FBR18 and it is not to the point that another decision maker may have elected to seek further information before determining that the letter should not be taken into account.  The failure to request information was within the bounds of reasonableness given all the principles to which the Court has been referred and are noted above.

26. I also consider it wrong to say that the Applicant could not have foreseen potential concerns the Authority had with the letter.  For example, the clerical error in translation was capable of being detected by the Applicant and those advising him.  Other corrections to information had been made to other statements during the process.

27. I reject [24] of the Applicant’s Written Submissions as it is self-evident that the Authority had numerous and cumulative concerns about the letter.

28. Ground 1 will succeed for the following reasons.

29. At [7] of its reasons, the Authority summarised the Applicant’s claims.  No criticism is made of the summary.

30. At [11] to [15] of its reasons, the Authority addresses the Applicant’s claims based on fear of harm from authorities due to suspected LTTE involvement.  The reasoning at [12] explicitly states:

    His responses were also generally consistent with his written claims. I accept that he has provided a credible account of his experiences leading up to his decision to leave Sri Lanka and, other than as stated below, I accept his claims as stated in the SHEV application.

    (Emphasis added)

31. At [14] of the reasons the Authority states that the Applicant’s claims rest principally on three incidents in which he was questioned by the CID in October/November 2012.  The structure of the reasons that follow involve a discourse of concerns about some of these claims, but relevantly findings are made that the Authority was satisfied that the Applicant:

    ·Worked for the LTTE in a civilian capacity from early 2008 before the incident in 2009 when he was forcibly taken and injured in shelling;[18]

    ·Had been generally consistent in saying that he was subjected to three incidents of questioning by the CID in the weeks leading up to his departure from Sri Lanka;[19] and

    ·Was subjected to incidents of questioning by the CID on three occasions in October/November 2012 during which he was slapped, threatened with a gun, asked about weapons, and asked to sign a document acknowledging he had been a member of the LTTE.[20]

    [18] Court Book, pp 255-256, Decision and Reasons of the Authority, at [13].

    [19] Court Book, p 256, Decision and Reasons of the Authority, at [15].

    [20] Court Book, p 256, Decision and Reasons of the Authority, at [15].

32. From [17] onwards of its reasons, the Authority sets out the claims it took not to be credible, which related to:

    ·Whether the Applicant had to attend the CID camp the next day;[21]

    ·That the Applicant had fled to stay at his mother’s home in Vavuniya before he left Sri Lanka;[22] and

    ·Rejecting that the CID continued to attend the Applicant’s wife’s house over an extended period after she had told them he was no longer in Sri Lanka and that they also questioned other family members.[23]

    [21] Court Book, pp 256-257, Decision and Reasons of the Authority, at [18].

    [22] Court Book, p 257, Decision and Reasons of the Authority, at [20]-[21].

    [23] Court Book, p 257, Decision and Reasons of the Authority, at [22]-[23].

33. It can be understood from the content and structure of the Authority’s reasons discussed above, particularly [15] of those reasons, that its focus and consideration was on three incidents or occasions in October/November 2012 when the Applicant was questioned by CID during which he was slapped, threatened with a gun, asked about weapons and asked to sign a document acknowledging he had been a member of LTTE.

1. However, it can be seen from the Authority’s summary of claims at [7] of its reasons and [14] to [17] of the Applicant’s SHEV statement[24] that the claims actually involved four incidents of questioning by CID, the first of which was when the Applicant said he was questioned for an hour then released when visiting the Prabhakaran House.  This was the first claim relating to questioning by CID on suspicions of being a LTTE member or supporter.[25]  He did not claim to be beaten, threatened, tortured or required to sign a form at this time.

   [24] Court Book, p 117.

   [25] As opposed to the Sri Lankan Army.

2. I infer for the reasons given at [20] of its decision that the Authority accepted that the last, or third, incident of questioning of the Applicant was when he was questioned at the CID camp as he did claim to be hit, tortured and tried to be made to sign the form.[26] Accordingly, it logically and reasonably follows that when the Authority stated it accepted the three incidents of questioning when slapped, threatened with a gun, asked about weapons and asked to sign a document acknowledging he had been a member of LTTE, it was referring to the questioning when taken in a van as the second incident,[27] and the questioning at his home as the first.[28]

   [26] Court Book, p 117, claim described at [17] of Applicant’s statement.

   [27] Court Book, p 117, claim described at [16] of Applicant’s statement.

   [28] Court Book, p 117, claim described at [15] of Applicant’s statement.

3. No finding is made about whether the Authority accepted the claim concerning questioning at Prabhakaran House, so it is not surprising that the Authority stated on at least two occasions that there did not appear to be any reason for the authorities to begin investigating the Applicant in October 2012.[29]

   [29] Court Book, p 256, Decision and Reasons, at [14]-[15].

4. It appears that the Authority overlooked the claim and its potential to explain why the Applicant had become the subject of interest in October 2012.

5. I do not accept the submission by the First Respondent that a finding did not need to be made because the Applicant had never claimed that suspicion of him as a LTTE supporter was because of the visit to Prabhakaran House and questioning of him there.

6. It is patent that until the visit to Prabhakaran House, the Applicant claimed only to have been questioned by the Sri Lankan army.  That he claimed to have been stopped and questioned by CID for the first time was implicitly a material claim to be considered collectively with other claims and could have provided the reasoning for authorities to begin investigating him, which the Authority said was absent.[30]

   [30] Court Book, p 256, Decision and Reasons, at [14].

7. I agree with the overall contention that a relevant integer of the Applicant’s claims was not considered,[31] and it was sufficiently clear from the Applicant’s statement that he relied on the visit as the triggering event to the subsequent three incidents of questioning, and beating, torture and threats that the Authority accepted as credible.

   [31] See NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] and [95]; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at [18]-[21]; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [9]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [34] and [46]; and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42].

8. I reject the submission that the claim connecting the visit to Prabhakaran House and suspicion of the Applicant was not made but if it was not expressly made, it was certainly made implicitly and was sufficiently clear that it ought to have been considered in the sequence of incidents and events relied upon.

9. The First Respondent submitted that if there had been a failure by the Authority to consider a relevant aspect of the Applicant’s overall claims or if it had misunderstood the claims, that failure was not material and accordingly, the Court should not disturb the decision below.

10. The submission above at [42] initially had some attraction.  The Authority ultimately was unsatisfied that the Applicant met the criteria for protection because it rejected his evidence about events after the visit to the CID camp and on that basis that it did not accept he would continue to be a person of interest to authorities.  However, had the Authority appreciated the import of the Applicant’s case regarding the “trigger” for him being of interest to the CID and their subsequent investigating of him in accordance with the three incidents that were accepted as credible, its attitude to the claims and evidence after the visit to the camp conceivably and reasonably may have been different.

11. Put another way, the constructive failure to exercise jurisdiction because of the misunderstanding of the full components of the Applicant’s claim was pivotal in the Authority’s subsequent findings and I find that it tainted them.  That is, a fair, like-minded individual may have reached a different conclusion had the misunderstanding and lack of consideration of the Prabhakaran House incident event not occurred.  I am satisfied the error was material.

12. As the Authority’s constructive failure to exercise its review jurisdiction under the Act was material, the relief sought by the Applicant will be granted.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

Associate:

Dated:       22 January 2024