FEDERAL COURT OF AUSTRALIA

CWP16 v Minister for Immigration and Border Protection [2018] FCAFC 28

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely on his amended notice of appeal.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from orders made by the Federal Circuit Court of Australia on 7 June 2017, dismissing the application to that Court for judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 9 September 2016. The Authority affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa. The decision of the delegate was made on 27 July 2016.

2    The appellant applied for a Safe Haven Enterprise (subclass 790) visa on 14 November 2015.

3    As found by the Authority, the appellant is a Tamil man originally from Jaffna in the Northern Province of Sri Lanka. He arrived in Australia by boat, undocumented, in September 2012.

4    It was common ground that the decision by the delegate to refuse the appellant’s application was a fast track reviewable decision and, therefore, automatically referred to the Authority for review of the delegate’s decision.

The course of decision-making

5    In light of the issues on appeal, it is necessary to review in some detail the course of decision-making. Those issues were described in the appellant’s written outline of submissions dated 9 February 2018 as, first, whether the Authority failed to conduct a “review” by failing to consider the delegate’s finding that the appellant may have transported goods for the Liberation Tigers of Tamil Eelam (LTTE) during the Sri Lankan civil war and, second, whether the Authority committed jurisdictional error by failing to consider a document entitled “Registration of Civilians Residing in ‘512’ Brigade Area - 2009” that had been provided to the Department with the appellant’s visa application.

6    The appellant stated in a Statutory Declaration summarising his claims for protection that he believed he would be seriously harmed and killed by the Sri Lankan army as he believed he had come to the adverse attention of the authorities who believed he was an LTTE member. The appellant also stated that he believed he was at risk of being harmed as he fled Sri Lanka illegally and claimed asylum in Australia, as the Sri Lankan authorities were of the view that Tamil asylum seekers were LTTE supporters. He stated that he feared being seriously harmed by the Sri Lankan authorities for these reasons.

7    In the same Statutory Declaration the appellant referred to a number of incidents in the period 1995 to 1997 and to a particular incident he said happened in August 2012. He said that during the period 2010 until he fled Sri Lanka in August 2012 he was working and residing in Colombo but travelled every now and then (once or twice a month) to visit his family in Jaffna. It was after an incident on 26 August 2012 that the appellant said he decided to flee Sri Lanka. The incident involved approximately ten Sri Lankan Army soldiers attached to the 512 Brigade coming to his house in search of him, taking him to the 512 Brigade army camp and telling him that he needed to confess that he was an LTTE member. One of the soldiers threatened to shoot the appellant by placing his gun inside the appellant’s mouth. The appellant was released the same day and told that he would need to report to the camp again and that he would need to confess and tell them the truth.

8    One of the documents the appellant provided to the Department was the “Registration of Civilians Residing in ‘512’ Brigade Area - 2009” showing the “Members of the Family Presently Occupation Year 2007” apparently dated 28 March 2009. However the appellant did not refer to this document in his Statutory Declaration.

9    The appellant was invited to attend an interview to discuss his visa application and his claims, that interview occurring on 23 March 2016.

10    The summary of the appellant’s claims in the delegate’s assessment also noted that the appellant claimed that his brother died recently and his brother’s death was relevant to his protection claims.

The delegate’s decision-making

11    The delegate found the following facts, so far as they are presently relevant. The delegate said, at [41], that although the appellant appeared to be credible on some aspects of his claims, namely his family, education and employment, the delegate had significant concerns regarding the appellant’s central claims in relation to the harm that he feared from the Sri Lankan authorities. The delegate considered that the appellant had embellished and exaggerated his claims in order to support his application for protection and the delegate had concerns about the appellant’s general credibility and motive for departing Sri Lanka in 2012. The delegate did not accept that the appellant was tortured by the authorities in 1995 for being an LTTE suspect; that the appellant was suspected to be a member of the LTTE and was pursued by the authorities in 2012; and that the appellant’s brother was interrogated by the authorities and the incident led to his death. Considered cumulatively, the delegate said the evidentiary concerns were evidence of lack of credibility. The delegate did not accept the appellant’s claims that he would be of interest to the Sri Lankan authorities if he were to return to Sri Lanka.

12    The delegate then assessed whether the appellant would face harm as a supporter or member of the LTTE as a Tamil if he were to return to Sri Lanka.

13    At [58], the delegate accepted that the appellant’s brother may have helped the LTTE in transporting goods but was satisfied that he was not associated with the LTTE in any other capacity. At [60], the delegate said the appellant had not presented any claims of being pursued by the authorities because of his brother’s association with the LTTE.

14    At [60], which gave rise to grounds 1 and 2 on the appeal, the delegate said that while the appellant may have transported some goods for the LTTE from Colombo, most people from the north-east of Sri Lanka were perceived to have had some kind of association with the LTTE during the conflict, however the war had been over for seven years and the LTTE defeated.

15    The delegate said that questioning by the Sri Lankan authorities did not rise to the level of serious harm nor did it give the appellant a profile above any other Tamil in the area. As the delegate was not satisfied that the appellant was pursued by the authorities as a supporter or a member of the LTTE before he left Sri Lanka, the delegate was not satisfied that the appellant would be pursued for the same reason if he were to return to Sri Lanka. The delegate was not satisfied that there was a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Migration Act in the receiving country.

16    The delegate then went on to consider the complementary protection criteria and found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed to Sri Lanka, was a real risk he would suffer significant harm.

17    The delegate did not refer to the “Registration of Civilians Residing in ‘512’ Brigade Area - 2009” document.

The Authority’s decision-making

18    By letter dated 28 July 2016, the Authority forwarded a letter to the appellant stating that the Department had provided the Authority with all documents the Department considered relevant to the appellant’s case and this included any material that the appellant provided to the departmental officer before the Department decided to refuse the appellant a protection visa. The same letter also attached an information sheet and a copy of the Authority’s Practice Direction.

19    The appellant’s then legal representative forwarded a submission to the Authority dated 8 August 2016.

20    That submission said, amongst other things:

He has a past record of transporting goods for the LTTE along with him being an ethnic Tamil from the North. He was perceived to have connections with the LTTE, and was questioned and harmed in Sri Lanka. The Sri Lankan security forces’ questioning means that they are likely to torture a detainee. This is supported by the country information on Sri Lanka. This record will be discovered on his arrival. This record itself is sufficient to harm him on his arrival in Colombo and this fact has been supported by the country information on Sri Lanka.

The submission did not refer to the “Registration of Civilians Residing in ‘512’ Brigade Area - 2009” document.

21    Section 473DC of the Migration Act provides:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

22    Section 473DD of the Migration Act provides:

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.

23    Relevant to grounds 1 and 2 of the amended notice of appeal, the Authority said, at [6] in relation to the submission I have set out at [20] above:

The submission states that the applicant has a past record of transporting goods for the LTTE. The applicant himself has never made this claim. When questioned at the entry interview and the SHEV interview about any involvement with the LTTE he stated unequivocally that he had no involvement with the organisation at all. This new claim is therefore new information, but I have not considered it. It is not apparent why the claim could not have been made before the Minister’s decision was made, and I consider that the applicant has had ample opportunity to provide all information relevant to his application. He was represented when he lodged his first invalid protection visa application, and when he lodged the SHEV application. As the applicant has never put forward this claim himself, and as it contradicts his clear statements that he had no involvement with the LTTE, I consider that this is not credible information. There are no exceptional circumstances which justify considering this information and I have not done so.

24    Relevant to grounds 3 and 4 of the amended notice of appeal, at [10] the Authority said:

The applicant also referred at the entry interview to having being detained for twenty four hours in 1997 by the 512 Brigade – this is the army brigade based in Jaffna that he later claimed arrested him in November 2012. I do not accept that the applicant was arrested by the 512 Brigade in 1997, as that Brigade was based in Jaffna and the applicant was living in Colombo 1997. He did not mention a lengthy detention in the Poothotam army camp at the entry interview.

At [18]-[19], the Authority said:

Leaving aside his claim about the 2012 arrest, he does not claim to have been subjected to any questioning, investigation, arrests or monitoring which would suggest that he was suspected of having any past links to the LTTE, or that he was of any ongoing interest of the Sri Lankan authorities, after 1997.

… On the basis of the applicant’s credible evidence about his own experiences,… I am not satisfied that he has been subjected to “monitoring” activity since the end of the war in 2009, or indeed, at any time since 1997.

Proceedings in the Federal Circuit Court

25    The application to the Federal Circuit Court contained two grounds, as follows:

Ground one-

The IAA has committed jurisdictional error in my case as it has accepted my claims of my past adverse experience at the hands of the Sri Lankan security forces but it declined its jurisdiction by failing to find that my fear of persecution is still well-founded. There is independent and reliable country information (E.g. DFAT Report) before the IAA that the circumstances in which I feared to live in Sri Lanka have not materially changed.

Ground-2

When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me for a hearing/invitation to comment on or respond to the adverse information on which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues raised including the issue of accepting that my older brother supported the LTTE and transported goods for them and that I did not claim to have experienced any adverse interest in connection with my brother and relied on this to refuse my protection visa in relation to my referred application with the IAA.

26    The primary judge noted the appellant’s submissions that there was an error in suggesting that he had been living in Colombo in 1997 and detained by the 512 Brigade. The Authority did not accept that the applicant was detained in 1997 by the 512 Brigade which was in Jaffna. The Authority found the appellant was in Colombo. The primary judge said, at [17], there was no error identified by reason of anything said by the appellant from the bar table and no error in the Authority’s understanding of the appellant’s claims and evidence.

27    The primary judge found, at [18], that there was no obligation on the Authority in the circumstances to expressly refer to a copy of a “Registration of Civilians residing in 512 Brigade area-2009” signed and dated in March 2009 referring to the appellant and his family. The primary judge said it was apparent on the face of the material that the Authority accepted the appellant’s evidence that he was living in Jaffna from 2001 until 2010.

28    The primary judge rejected ground 1 and said, at [20], “the Authority complied with the obligations of procedural fairness applicable to the conduct of the review under Pt 7AA by sending the applicant the letter dated 29 (sic) July 2016, by providing the applicant with an opportunity to put on submissions, and an opportunity to provide new information.”

29    At [21], the primary judge said the Authority identified and expressly took into account the submissions, with the exception of what the Authority found was excluded under s 473DD of the Migration Act. There was no error in the Authority’s approach to the appellant’s submissions in that regard.

30    As to Ground 2, the primary judge said there was no obligation upon the Authority under Pt 7AA to provide an opportunity for the appellant to attend a hearing. Nor was there any obligation, in the circumstances of the present case, on the Authority to invite the appellant to comment or respond to adverse findings that the Authority might make. The primary judge, at [22], accepted the Minister’s submission that the Authority was not under a duty to get, request or accept any information or to exercise its powers under s 473DC of the Migration Act in the circumstances of the present case.

31    The appellant was unrepresented before the Federal Circuit Court.

Proceedings in this Court

32    The appellant is now represented by counsel and seeks to rely on the following grounds in an amended notice of appeal:

1.    His Honour erred in finding at [21] that there was no error in the second respondent (Authority) finding that it was excluded under section 473DB of the Migration Act 1958 (Act) from considering whether the applicant had a past record of transporting goods for the LTTE.

2.    The delegate, whose decision the Authority was tasked with reviewing, had found at [60] that the appellant may in fact have transported goods for the LTTE and his Honour ought to have found the Authority’s refusal to consider that finding amounted to a failure to “review” that decision and therefore jurisdictional error.

3.    In the alternative, his Honour erred in finding at [18] that there was “no obligation … to expressly refer to the document” at AB 77 entitled “Registration of Civilians residing in “512” Brigade Area - 2009” and therefore, implicitly, that either the document was considered or that the failure to consider the document did not amount to jurisdictional error.

4.    His Honour ought to have found that the document was corroborative evidence to which the Authority was obliged, but failed, to consider.

33    The Minister filed a notice of contention, dated 10 October 2017, to the effect that the primary judge ought to have held that the Authority was under no obligation to send the appellant the letter dated 28 July 2016, providing the appellant with an opportunity to put on submissions and an opportunity to provide new information, contrary to what was stated at [20] of the judgment.

34    It does not appear from the Minister’s written submissions dated 16 February 2018 that he opposes the application to amend. In these circumstances, having regard to the grounds now sought to be raised, to the consideration that the appellant does not speak English and was self-represented before the FCCA, and to the great significance of the matter to the appellant, the Court granted leave to the appellant to rely on these grounds.

The parties’ submissions and consideration of those submissions

Ground 1 and 2

35    In relation to grounds 1 and 2, the appellant submitted that the Authority was in error in stating that the “information” that the appellant “has a past record of transporting goods for the LTTE” was “new information” in circumstances where the delegate had found, at [60], that the appellant may have transported goods for the LTTE.

36    The appellant submitted that even if the assertion in the written submissions that the appellant had “a past record of transporting goods for the LTTE” was “new information”, it did not change the fact that the delegate had already made a finding that the appellant “may have transported some goods for the LTTE”, which the Authority did not deal with in its decision.

37    The appellant also submitted that the delegate’s finding could not have been “new information”: it cannot be that, on the one hand, the core function of the Authority is to “review” fast track reviewable decisions referred to it, whilst, on the other hand, findings forming part of those decisions are only to be considered in “exceptional circumstances”. Nor, for that matter, were the delegate’s findings “given … to the Authority” by the appellant for the purposes of s 473DD(b) as the findings of the delegate were contained in the “review material” given to the Authority by the Secretary under s 473CB.

38    Finally on these grounds, the appellant submitted that the Authority proceeded in the present case upon the assumption that its function of review only required it to consider the appellant’s visa application afresh, without regard to the findings that had been made by the delegate. However this understanding of “review” under Pt 7AA was not accepted in BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 869. It could not be said that, had the Authority considered the issue of whether the appellant transported goods for the LTTE, it would have come to the same conclusion that he was not owed protection.

39    The Minister submitted that the gist of the appellant’s case was that the delegate had made a finding that the appellant had transported goods for the LTTE. The Minister submitted that the delegate’s statement did not constitute a conclusive finding for the purposes of the facts in issue on the review because the delegate went on to say that in light of the conflict having been over for some time, that would not lead the appellant to have a relevant profile for the purpose of a real risk of serious harm.

40    Further and independently, the phrase the appellant focused on could be read as meaning “even if it were the case that” the appellant had transported some goods for the LTTE, rather than “it is a fact that the appellant transported goods for the LTTE”. Or it was equally possible that the phrase was intended to refer to the appellant’s brother transporting some goods for the LTTE.

41    The Minister submitted that the claim made by the appellant’s advisor in the submission to the Authority dated 8 August 2016 was inconsistent with the claims that had actually been made by the appellant, as the Authority noted.

42    Further, the Authority was not required to consider a new claim that it lawfully excluded under s 473DD. The Minister submitted that the appellant’s reliance on BMB16 was misconceived.

43    The Minister submitted that no error could be found to flow from a finding by the Authority that, as the appellant had never claimed to have had any involvement with the LTTE, the statement by his advisor in a post-decision submission to the Authority constituted “new information”, notwithstanding what was said in the delegate’s reasons at [60]. Thus the statement was correctly not considered, not least because, as new information, it did not meet the criteria for the consideration of “new information” set out in s 473DD.

44    In my opinion, what the delegate said at [60] did not constitute a finding that the appellant has a past record of transporting goods for the LTTE as contained in the submission of the appellant’s legal representative in his letter of 8 August 2016 to the Authority or a finding of a possibility to that effect. This follows both from the conditional nature of what the delegate said and the absence of any such claim before the delegate on the part of the appellant. The information that the appellant “has a past record of transporting goods for the LTTE” was therefore, in my opinion, information that was not before the Minister within the meaning of s 473DC(1)(a). It follows that it was new information which the Authority was obliged not to consider unless the Authority was satisfied that there were exceptional circumstances to justify considering it and the appellant satisfied the Authority that the new information could not have been provided to the Minister before the Minister made the decision.

45    It also follows that, because the delegate did not make a finding that the appellant has a past record of transporting goods for the LTTE or a finding of a possibility to that effect, the Authority did not fail to complete its review by not further considering that material and I would distinguish BMB16, at [87] per Charlesworth J, on this basis. In any event I note what the Authority said as to the appellant’s evidence not suggesting he in fact had any connection with the LTTE: see particularly [24] and [33] of the Authority’s reasons.

46    It follows, in my view, that there was no jurisdictional error on the part of the Authority and no error in the conclusion of the primary judge at [21] that there was no error in the Authority’s approach to the appellant’s submissions, that is, in not taking into account what the Authority found was excluded under s 473DD. I accept the Minister’s submission that the Authority was not required to consider a new claim founded on information it lawfully excluded under s 473DD.

47    For completeness, I find there is no basis for any challenge to the Authority’s statement, at [6], that the appellant stated unequivocally that he had no involvement with the LTTE at all. This is because what the appellant said at the entry interview and the SHEV interview is not before the Court and because of the strong implication to the effect, that the appellant said he had no involvement with the LTTE at all, in the delegate’s reasons, especially at [24] and [33].

Grounds 3 and 4

48    In relation to grounds 3 and 4, the appellant submitted that it was an essential part of the Authority’s reasoning that the appellant did not have a raised profile such as to attract the adverse attention of the Sri Lankan authorities and that he had not been arrested in August 2012 by the 512 Brigade.

49    The Authority said, at [19], that it was not satisfied that the appellant had been subjected to “monitoring” activity since the end of the war in 2009, or indeed, at any time since 1997.

50    The appellant submitted that the “Registration of Civilians residing in ‘512’ Brigade Area - 2009” document was evidence that the appellant and his family had been required to register their details with the authorities and therefore that he was being “monitored” in 2009 and that he had come to the attention of the 512 Brigade prior to 2012. It was evidence which corroborated the appellant’s claim to have been arrested by the 512 Brigade in 2012 and, more generally, to have been monitored by the authorities after 1997. However, the appellant submitted, the Authority’s reasons made no reference to the document and it was unlikely in light of the Authority’s reasoning that, had the document been considered, it would not have been referred to and discussed. The appellant submitted that the “Registration of Civilians residing in ‘512’ Brigade Area - 2009” document was evidence to which the Authority, in reviewing the delegate’s decision, was obliged, but failed, to consider.

51    The appellant primarily relied on VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547 and Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34.

52    The Minister submitted that the Authority’s failure to refer to an item of evidence did not necessarily indicate that it had not been considered. As the primary judge noted, there was nothing on the face of the document that indicated that it corroborated the appellant’s claim to have been arrested by the 512 Brigade in 2012 and, more generally, to have been monitored by the authorities after the 1990s. In circumstances where the Authority accepted the appellant’s claims about his living arrangements, there was no basis for the Court to infer that the document, which on its face confirmed where he was living, was overlooked.

53    The Minister submitted that the authorities relied on by the appellant were distinguishable as, in each case, the omitted matter was considered central to the exercise of the Tribunal’s jurisdiction. In none of those cases did the Court find that a mere failure to have regard to relevant material constituted jurisdictional error: something more was always required. Here, on its face, the “Registration of Civilians residing in ‘512’ Brigade Area - 2009” document went no further than evidencing where the appellant and his family lived at the time it was issued. That matter was not in dispute. In the absence of some explanation as to the centrality of this document to the appellant’s case, no error could be established simply by a failure to refer to a piece of evidence that was not central to the findings of the Authority. For these reasons, it could not be inferred that the document was overlooked. In any event, the document was not of central importance to the findings of the Authority.

54    In my opinion, it is not clear for what purpose the “Registration of Civilians residing in ‘512’ Brigade Area - 2009” document was provided to the Department. It bears the date March 2009. It is not self-evidently related to the balance of the appellant’s Statutory Declaration. It was not referred to by the delegate. It was not referred to in the appellant’s legal representative’s submission to the Authority dated 8 August 2016. There is also an ambiguity about the meaning of “monitoring” in circumstances where it appears from the face of the document that civilians residing in the 512 Brigade area were registered but not, self-evidently, monitored. It does not appear from the face of the document that the registration of civilians was or was not limited to Tamils.

55    In these circumstances I am not persuaded that the absence of reference to this document by the Authority establishes jurisdictional error on its part. I do not accept the appellant’s submission that the document was evidence that the appellant was being “monitored” in 2009 or that he had relevantly come to the attention of the 512 Brigade prior to 2012. Further, I do not accept that it was evidence which corroborated the appellant’s claim to have been arrested by the 512 Brigade in 2012 and to have been monitored by the authorities after 1997. It was not put that way before the delegate or the Authority and I do not accept the appellant’s submission that the document self-evidently indicates, or tends to indicate, those matters.

Notice of contention

56    It is not necessary to deal with the Minister’s notice of contention which takes issue with an implication in the reasons of the primary judge at [20] that the Authority was under a duty to send to the appellant the letter dated 28 July 2016.

Conclusion and orders

57    I would dismiss the appeal, with costs.

Associate:

Dated:    23 February 2018

REASONS FOR JUDGMENT

(Revised from the transcript)

KERR J:

58    I agree with the reasons given by his Honour Robertson J and the orders he proposes.

Associate:

Dated:    23 February 2018

REASONS FOR JUDGMENT

WHITE J:

59    I agree with the orders proposed by Justice Robertson and with his reasons.

Associate:

Dated:    23 February 2018