GQG18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 366

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GQG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 366

File number:	ADG 510 of 2018
Judgment of:	JUDGE YOUNG
Date of judgment:	19 April 2023
Catchwords:	MIGRATION – application for review of a decision of the Immigration Assessment Authority to deny the applicant a protection visa – where the Applicant is a citizen of Sri Lanka – where the applicant claims to fear harm from the LTTE – where the applicant claims the Authority mischaracterised information as new information – where the applicant alleges the Authority’s mischaracterisation of information led it to doubt the applicant’s credibility – where the court is satisfied the Authority was not incorrect in characterising the information as new information – where the court is satisfied the Authority was justified in doubting the credibility of the new information provided by the Applicant - the application is dismissed.
Legislation:	Migration Act 1958 (Cth) s 473DD
Division:	Division 2 Family Law
Number of paragraphs:	13
Date of hearing:	19 April 2023
Place:	Darwin
Counsel for the Applicant:	Mr Simmons
Solicitor for the Applicant:	MSM Legal
Counsel for the Respondent:	Ms Ellis
Solicitor for the Respondent:	Sparke Helmore

ORDERS

ADG 510 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	GQG18 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	19 APRIL 2023

THE COURT ORDERS THAT:

1.The Application filed 19 December 2018 be dismissed.

2.The Applicant pay the First Respondent’ costs fixed in the sum of $7,467.00.

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).

EX TEMPORE REASONS FOR JUDGMENT

Judge Young

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 12 December 2018 to affirm a decision of the Minister’s delegate to refuse the applicant a protection visa.

2. The applicant is a Sri Lankan citizen of Tamil ethnicity who left Sri Lanka and arrived in Australia in 2012.  His refugee claims, in summary, are that between 1993 and 2012 he was arbitrarily detained on several occasions by the Sri Lankan army, police or associated paramilitaries, beaten, threatened and subject to extortion because he was suspected of having provided material support to the Liberation Tigers of Tamil Eelam, that is, LTTE members, by selling them goods from the family shop.  He said, in addition, that two of his aunts were killed by unknown people because, in the case of one aunt, she would not disclose his whereabouts. 

3. The Authority accepted that the applicant had been detained briefly on one occasion in the 1990s in Sri Lanka but found that he was released shortly afterwards.  The Authority did not accept that the applicant was of ongoing interest to the Sri Lankan authorities.  The Authority accepted that members of the applicant’s family had been killed in the war but did not accept that this was related to any interest the authorities had in the applicant in relation to the claimed killing of the applicant’s aunt as was claimed by the applicant.  The Authority accepted that one aunt had been killed in 2004 and the second in 2006.  The Authority concluded that the applicant’s claims had largely been fabricated.  In his application to the Authority the applicant made submissions assisted by the Refugee Assistance Service of South Australia (RASSA), which also attached a statutory declaration.  That submission took issue with aspects of the delegate’s findings and anticipated some matters that might be considered adverse to his claims. 

4. The Authority had regard to this submission and the applicant’s statutory declaration and identified some matters in the statutory declaration that it considered to be new information. Applying section 473DD of the Migration Act, the Authority was not satisfied that there were exceptional circumstances to justify considering the new information.  In its reasons, the Authority described the new information in the following terms in four dot points:

   (1)That the applicant had to pay bribes to be released from several periods of detention. 

   (2)That late in 2012 the applicant was working in a town, Arayampathy, which was located 25 to 30 kilometres from his home, in order to avoid the interest of the authorities who were looking for him.

   (3)On the night his aunt was killed in 2004, unidentified men knocked on the door violently.  The applicant’s family refused to open the door.  And so the men fired shots wildly into the house killing his aunt.

   (4)The second aunt who had been killed in 2006 was shot in a paddy field while she was on her way home.

5. The single ground of review pressed by the applicant in his application to this Court was ground 1, which is in the following terms:

   The finding that there were no “exceptional circumstances” to allow the “new information” to be taken into account was taken in defiance of the law on assessing “exceptional circumstances” in the context of s473DD, with resulting jurisdictional error.

6. The applicant claimed that the Authority committed jurisdictional error in that the Authority did not properly reach a state of satisfaction when exercising its powers under section 473DD (a) and (b)(ii) of the Migration Act 1958 in that it did not properly consider or failed to give proper, genuine and realistic consideration to whether there existed exceptional circumstances to justify considering new information provided by the applicant’s representative, nor did it assess whether the new information was credible personal information not previously known to the Minister which, had it been known, may have affected the applicant’s claim. The particulars were said to be at paragraph 8 of the Authority’s decision. It determined that four bullet pointed matters constituted “new information” which were “new factual assertions”. The finding that there were no “Exceptional circumstances” to allow the “New information” to be taken into account was taken in defiance of the law on assessing ”Exceptional circumstances” in the context of section 473DD.

7. In oral argument Mr Churches, counsel for the applicant, departed without objection from this ground in a way which, in my view, constituted a new ground which, as I can best express it, is that the Authority committed a jurisdictional error in characterising the first, third and fourth dot points as new information and irrationally concluded that the failure to raise this information earlier raised a serious doubt about its credibility, and such was the seriousness of that error that the finding effected the Authority’s other deliberations. Mr Churches said that three of the four dot points had clearly been raised before and the Authority’s adverse finding on the credibility of the claims was wrong and irrational and by cascade effect this error was likely to have infected the balance of the Authority’s consideration of the applicant’s claims. Implicitly, at least, he conceded that the Authority’s treatment of the second dot point, which Mr Churches conceded had not been raised before, was open to it. In response, Mr Johnson, counsel for the Minister, submitted that on close examination there were new elements or new details in the three dot points which justified the Authority’s treatment of these new elements or details as new information for the purposes of section 473DD of the Act, and that its consideration of the new information was unexceptional.

8. In relation to the first dot point Mr Johnson said that the applicant’s claim to have paid bribes to obtain his release from detention was a new claim to the extent that the claim was that the bribe or bribes secured the applicant’s release from what would otherwise have been an extended period of detention.  The applicant first claimed to have paid money to the police or the Karuna Group, an associated paramilitary, in his statement of claims dated 6 June 2016.  He said he was detained at a Karuna camp in 2007.  He said he was asked for money which he paid.  He said he was then beaten and released apparently on the same day.  He also said in his statement of claims at that date that he was again detained in August 2012 by the police and the Karuna Group.  He said he was beaten and told to give his captors money or he would be shot.  He said he was held for four hours and then released to go home.  He said he told his brother what had happened, who suggested selling his auto-rickshaw and giving the money to the men who had threatened him. 

9. Mr Johnson submitted that while the applicant had made a claim of violent extortion previously, he had not previously said that he paid money to obtain his release from detention.  Mr Johnson said the significance of this is that the applicant, in his submission to the Authority, correctly anticipated that the Authority might conclude that the fact that each time the applicant was detained he was released a short time later on the same day, and this was inconsistent with the authorities having a continuing interest in him.  The claim that his release was dependent upon a bribe was intended to negate this anticipated point.  While I consider that the claims earlier raised by the applicant could easily be construed as encompassing the notion of payment of a bribe, I consider that the Authority was justified in treating the claim of the applicant having paid bribes to secure his release from what would otherwise have likely been indefinite detention as a new interpretation of the information, at least, and was justified in considering that this information was intended by the applicant to negate the suggestion that his immediate release was inconsistent with a continuing interest by the authorities or an adverse profile.  It was to that extent new information. 

10. In relation to the second dot point, where in 2012 the applicant claimed to be in hiding from the authorities away from his home town, Mr Churches conceded that this had not previously been raised.  It was new information.  No reason was advanced by the applicant for not raising it in his protection visa interview or his statement of claim, and the Authority was satisfied that the claim was not credible.  The Authority’s conclusion was open to it, in my view.  In relation to the third dot point, that the applicant’s aunt was killed in 2004, counsel for the Minister submitted that the new aspects of the claim were that the gunmen were “unidentified” and the applicant’s family had “refused” to open the door.  The earlier claim implied the gunmen were soldiers with the Sri Lankan army and the applicant previously said the door was “not open”. While there are differences, it seems to strain interpretation to describe the differences as new information.

11. In relation to the fourth dot point, concerning the shooting of the second aunt, counsel for the Minster submitted that the new information was that she had been shot in a paddy field on her way home.  Arguably the information about the place and circumstance of the shooting is new and had not been raised before but it is doubtful that the new information was of any real significance.  The Authority said at paragraph 9 of its decisions, “None of this information was before the delegate”.  Prima facie, this statement is erroneous.  However, counsel for the Minister said that it should be interpreted to mean that the Authority was referring only to the new information or the new elements or details of the earlier information.  The Minister said that the interpretation of this statement, that it was an incomprehensible and grave error of understanding, should be rejected and despite the infelicity of expression should be read consistently with the balance of the reasons in the way he suggested. 

12. There is support for the Minister’s interpretation in the balance of the Authority’s reasons.  At paragraph 11 the Authority referred to the applicant’s claims, the shooting of the two aunts in 2000 and 2006 respectively, and the extortion of money on two separate occasions in terms consistent with the applicant’s claims to the delegate.  In assessing which of these interpretations is more likely to be correct, I consider that the Minister’s interpretation is more likely.  I accept that the categorical statement by the Authority at paragraph 9 of its decision that none of the information was before the delegate is unhappily and confusingly expressed, but I am also satisfied that an expert tribunal would be unlikely to make the grave error of understanding that the applicant asserts and the balance of the text of the Authority’s decision indicates to me that it did not make such an error.  While I consider that the Authority’s language is infelicitous I am not satisfied it indicates an error of apprehension likely to have deflected it from a proper consideration of the applicant’s claims. 

13. The difference in dot points 1, 3 and 4 seem to be a relatively flimsy basis for an adverse credibility finding but the first dot point did involve a significant new interpretation by the applicant of previously raised claims and the second dot point was entirely new.  This provides at least some basis for doubting the credibility of the new information.  In relation to the third and fourth dot points concerning the shooting of the aunts, I consider the difference between the claims made to the delegate and the claims made to the Authority to be insignificant.  However, on balance there was at least some basis for the Authority’s conclusion, certainly in respect of dot points 1 and 2.  I note also that there were separate reasons for the Authority to reject the applicant’s narrative as credible.  I am not satisfied the Authority’s conclusion was legally unreasonable or lacking an evident and intelligible basis, or that the Authority failed to give proper, genuine or realistic consideration to the applicant’s claims.  The application is dismissed. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Young.

Associate:

Dated:       19 April 2023