FEDERAL COURT OF AUSTRALIA

AVN16 v Minister for Immigration and Border Protection [2018] FCA 231

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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

GRIFFITHS J:

1    This appeal is from a decision of the Federal Circuit Court of Australia (FCCA) which is reported as AVN16 v Minister for Immigration and Border Protection [2016] FCCA 2878. The primary judge dismissed the appellant’s judicial review application concerning a decision dated 18 March 2016 of the Immigration Assessment Authority (IAA). The decision, which was purportedly made under Pt 7AA of the Migration Act 1958 (Cth) (the Act), affirmed a decision dated 5 February 2016 of the Minister’s delegate, which rejected the appellant’s application for a Safe Haven Entry visa.

2    For the reasons which appear below, the appeal should be dismissed, with costs.

Summary of background facts

3    The appellant is a Sri Lankan citizen, who arrived in Australia on 17 August 2012 as an unauthorised maritime arrival. On 17 September 2015 he applied for a Safe Haven Entry visa. He provided a supporting statement dated 9 September 2015 which set out his claims for protection. In his statement, the appellant claimed to be an ethnic Tamil of Hindu religion. He said that in 2010 he was appointed Acting Secretary of the Local Village Council. He said that the Chairman of the Council was a member of a political party known as Tamil Makkal Viduthalai Pulikal (TMVP), which proposed to award various Council development projects to TMVP contractors instead of calling for tenders. He said he was told by the Chairman and another Council member, who also belonged to the TMVP, to award a particular contract to a TMVP contractor. He said that he informed a higher official that the correct tender process had not been followed and that, after investigation, a new tender was called and the contract was awarded to a non-TMVP contractor. He claimed that the Chairman and the other Council member threatened that he will face consequences if he interfered in future funding projects.

4    He claimed that in 2011 he was again threatened with harm by the Chairman of the Council because he did not support a request for funding in relation to another project with a TMVP purpose. He further claimed that the other Council member refused his request that the member not attend Council meetings because his presence affected the participation of individual members of the public. He said that the same Council member threatened to shoot him if he did not make a speech supporting the member’s candidacy in an upcoming election. He claimed that he feared that he would be killed by the TMVP if he returned to Sri Lanka because he had refused to comply with the wishes of the Chairman and the other Council member, and that he would be targeted by the TMVP.

5    The delegate proceeded on the basis that the appellant implicitly claimed that he feared harm because he left Sri Lanka illegally and would be viewed on his return as a failed asylum seeker. The delegate noted that the appellant claimed that he would be harmed on account of his Tamil ethnicity and his Hindu religion.

6    On 23 December 2015, the delegate contacted the appellant by telephone and asked him various questions concerning his visa application. During the course of the conversation the appellant claimed to fear harm on the basis of his Hindu religious beliefs. He said that his Hindu faith “may pose a problem for him if he is returned to Sri Lanka” because “his attackers will use his Hindu faith as another reason to harm him”. It was noted that the appellant reiterated that he had had no problems in the past being a Hindu in Sri Lanka.

7    The delegate rejected the appellant’s claims to fear persecution on the basis of his Tamil ethnicity, Hindu religion, membership of a particular social group comprising failed asylum seekers, or his imputed anti-TMVP political opinion.

8    In accordance with the requirements of Pt 7AA of the Act, the delegate’s decision was referred to the IAA. On 18 February 2016, the IAA wrote to the appellant and invited him to provide “the following information in writing”:

    details as to why you claim to fear harm in Sri Lanka on the basis of your Hindu faith;

    why you did not previously raise this claim in your application for a Safe Haven Enterprise visa or during the interview with the DIBP delegate on 17 December 2015.

The letter informed the appellant that the IAA could only consider any “new information” he provided if there were “exceptional circumstances”. He was told that, when providing the information, he should also provide “a written statement” explaining:

    why the information could not have been given to the Department before the primary decision was made; or

    why the information is credible personal information which was not previously known and, had it been known, may have affected the consideration of his claims.

9    The appellant provided a written response on 14 March 2016. He said that because he was a Hindu he feared “more serious consequences” because, as a Hindu, he was part of a minority. He feared that the authorities would treat him “more harshly in detention because I am part of a minority in Sri Lanka”. He also claimed, for the first time, that in about 2003 he had been targeted by members of the Sri Lankan Army (SLA) when he was returning to his home after a special Hindu festival. He said that the soldiers demanded that he wipe off the holy white ash and red power from his forehead, and he obeyed because he was afraid of them. He said he had not previously provided this information to the Department “because I was unsure about its significance”.

10    In addition, in his written response dated 14 March 2016, the appellant provided what he himself described as “new information” relating to two additional matters: first, his response to a Facebook friend request from the leader of the TMVP, and second, his fears that this TMVP leader will inform the authorities of his involvement with organising an event known as “Heroes Day”. The appellant claimed he feared the authorities will harm him because “Heroes Day” commemorated TMVP fighters who died in the civil war and promoted the Tamil separatist cause.

The IAA’s reasons for decision summarised

11    As noted above, the IAA affirmed the delegate’s decision. The appellant was provided with a detailed set of reasons for the IAA’s decision. The reasons total 18 pages and comprise 66 separate paragraphs. The IAA explained why it did not accept the appellant’s claims to be a refugee, or that he was entitled to a protection visa under complementary protection provisions in the Act. Although the IAA accepted that the appellant had had several disputes with the Chairman and the other member of the Council, and that those two people were also members of the TMVP, the IAA found that despite the threats made against the appellant in the period between 2010 and 2012, he was not physically harmed by either of those two people. For various stated reasons, the IAA found that these two people were not interested in harming the appellant.

12    The IAA also explained why it rejected the appellant’s claims based on his Tamil ethnicity and his Hindu faith. On the latter issue, the IAA relied on country information to support its findings, including its rejection of the appellant’s claims that he would be “differentially targeted by the Sri Lankan police, the CID and the Army on the basis of his Hindu religion”. The IAA also noted that the appellant had initially stated that he had not experienced any harm in the past as a result of his Hindu faith. It did not accept that the appellant’s Hindu faith would be used by the authorities as another reason to harm him because the IAA did not accept the premise that the appellant was otherwise at risk of harm for the other reasons advanced by him.

13    The IAA rejected the appellant’s claims relating to his feared harm for returning as a failed asylum seeker, and for having illegally departed Sri Lanka. In particular, the IAA expressly found that although the appellant might be detained in prison for a short time on his return to Sri Lanka, and that prison conditions were poor, there was “no intention to inflict pain or suffering or extreme humiliation”, which meant that those conditions did not of themselves constitute significant harm for the purposes of ss 5 and 36(2A) of the Act.

14    In reaching these findings, the AAT found that the appellant’s response letter dated 14 March 2016 (which it described as “the IAA submission”) included new claims which were not previously before the Minister and which constituted new information for the purposes of s 473DC of the Act. At [7] of its reasons for decision, the IAA summarised those new claims concerning the alleged harassment by the SLA in 2003 involving the holy ash on the appellant’s forehead, and the claims concerning the TMVP leader and the appellant’s role in organising “Heroes Day”. The IAA noted at [7] that the appellant claimed that he had not previously provided this information because he was unaware of its significance.

15    At [8] the IAA noted that the “new information” contradicted the appellant’s evidence to the delegate in that:

(a)    the appellant had previously stated that he was never harmed in the past on the basis of his religion;

(b)    at his Departmental interview, the appellant said that he did not fear harm from the TMVP more broadly, and only feared harm from the Chairman of the Council and other Council member; and

(c)    he had given evidence to the Department which indicated that he was not involved in organising events to honour TMVP heroes.

16    The IAA concluded at [9] that it did not accept that the appellant was not aware that these three new claims would be potentially relevant to his protection visa application.

17    The IAA’s ultimate conclusion in relation to this material is reflected at [10] of its reasons for decision (emphasis added):

10.    Taking the above matters into account, I am not satisfied there are exceptional reasons to justify considering this new information for the purpose of s.473DD(a). In addition, the applicant has not satisfied me that the information could not have been provided to the delegate before he made his decision or that that it is credible personal information, which was not previously known and if it had been known may have affected consideration of the applicant’s claims for the purpose of s.473DD(b). I am prevented from considering this new information under s.473DD of the Act.

On a fair reading, the reference to the above matters is a reference to the contents of [7] to [9] of the IAA’s reasons, in which the IAA analysed the appellant’s 14 March 2016 letter.

The judicial review proceedings below

18    The appellant was represented below by counsel. Three grounds were raised in an amended application for a judicial review. Each ground was rejected by the primary judge for reasons which may be summarised as follows.

19    In relation to ground 1, which claimed that the Tribunal (sic) asked the wrong questions in relation to the TMVP, the primary judge found that this claim was based on too narrow a reading of the IAA’s reasons. In particular, her Honour found that the IAA’s rejection of this claim was not based solely on the IAA’s reasons that the two TMVP members of the Council were no longer members of the Council. Rather, the IAA relied on other additional matters for rejecting the claim, including that the two men did not harm the appellant notwithstanding that they knew where to find him when he was in Sri Lanka, and the absence of any evidence that they made inquiries about the appellant since he left Sri Lanka in 2012. Accordingly, the IAA reasoned that the two TMVP members had no ongoing interest in harming the appellant.

20    The primary judge found at [21] that these findings were open to be made by the IAA on the evidence and information before it.

21    The second judicial review ground challenged the IAA’s finding that it was precluded by s 473DD from having regard to the new information provided by the appellant in his response letter dated 14 March 2016. The appellant alleged that the IAA had fallen into jurisdictional error “in failing to properly exercise its jurisdiction in respect of information submitted to the Authority”.

22    The primary judge approached ground 2 on the basis that it involved a challenge to the IAA’s findings that there were no exceptional reasons to justify considering the new information, as well as challenging the IAA’s findings that it was not satisfied that the new information could not have been provided prior to the delegate’s decision, or that it was credible personal information not previously known.

23    It is desirable to set out the terms of s 473DD:

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.

24    The primary judge found that the IAA explained why it rejected the appellant’s claim that he was unaware of the significance of his additional claim concerning his Hindu faith. Her Honour said that it was open to the IAA to not accept the appellant’s explanation, and to make the findings that it did concerning the application of s 473DD.

25    The third judicial review ground below related to the IAA’s rejection of the appellant’s claims concerning the likelihood of his detention under Sri Lankan legislation concerning illegal departures. Ground 3 was not clearly expressed, however, her Honour dealt with it on the basis that it appeared to challenge the IAA’s finding that the relevant claim should be dismissed because the Sri Lankan authorities did not intend to inflict pain, suffering or extreme humiliation as a result of poor prison conditions. Her Honour concluded that the appellant’s contention was inconsistent with the Full Court’s decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, which was binding upon her.

The appeal

26    The appellant represented himself. His notice of appeal contained three grounds, which substantially reflect the three grounds of the amended judicial review application below. It is desirable to set out the terms of the appeal grounds (without alteration):

GROUND 1

Her Honour fell into error (AVN16 v Minister for Immigration & Border Protection [2016] FCCA 2878 at [18] - [22]) in finding that the Authority had properly assessed the claims regarding TMVP members. Her Honour should have found that the Authority failed to ask correct questions or incorrect questions in relation to TMVP.

Particulars

1.1    Her Honour erred in not finding that the Authority did not consider the local councillors who posed the Applicant risks weer not on politics for long term issue of intention on part of the authorities which was intentional.

1.2    Her Honour should have found that the Authority erred in that the risk of harm from TMVP to the Applicant from the re-grouping for criminal activities.

1.3    Her Honour should have found that the Authority failed to assess the future role of TMVP Party and the councillors and politicians.

1.4    Her Honour should have found that the Authority to address the future position of TMVP and likely consequences to the Applicant.

GROUND 2

Her Honour fell into error in consideration of whether the Authority had properly considered all the material and the issue of exceptional circumstances (AVN16 v Minister for Immigration & Border Protection [2016] FCCA 2878 at [23]-[25]). Her Honour should have found that the Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [7] - [10]).

Particulars

2.1    Her Honour should have found that the Authority ignored the information.

2.2    Her Honour should have found that the Authority failed to take into account the information.

2.3    Her Honour should have found that the Authority failed to properly classify that the information was new information;

2.4    Her Honour should have found that the Authority failed to consider whether the section s 473DD was applicable in the circumstances.

2.5    Her Honour should have found that the Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).

2.6    Her Honour should have found that the Authority committed jurisdictional error.

GROUND 3

Her Honour fell into error in consideration of construction and detention of the Appellant under I & E Act (AVN16 v Minister for Immigration & Border Protection [2016] FCCA 2878 at [26] - [29]). Her Honour should have found that the Authority fell into jurisdictional error in dealing with the construction and of the intention when the Applicant's would be charged under I & E Act for illegal departure and be detained.

Particulars

a.    Direction 56 provides that "[i]n performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department ... to the extent they are relevant to the decision under consideration.

b.    The Authority misconstrued whether the Applicant would be subject to intentional harm.

c.    The Authority did not consider the issue of intention on part of the authorities which was intentional.

d.    The Authority committed jurisdictional error.

27    The appellant failed to provide a written outline of his submissions. His oral contentions in support of his appeal may be summarised as follows. As to ground 1, the appellant submitted that the TVMP was both a paramilitary group and a political party. He said that he had more recent information about the TVMP arising from recent elections in Sri Lanka. He said that he had the material on his mobile phone. He said that he had not notified the first respondent of any intention to rely upon this material, which he acknowledged had not been put into evidence before the FCCA. He did not make a formal application to tender the material. The appellant did not add anything of substance to grounds 2 and 3.

28    It is unnecessary to summarise the Minister’s contentions because they are substantially reflected in my reasons below for rejecting the appeal.

Disposition of the appeal

29    As to the first ground of appeal, I accept the Minister’s submission that it fails for the reasons given by the primary judge at [18]-[21]. On a fair reading of the IAA’s reasons for decision, the IAA found that the appellant did not face harm from the TMVP for any reason.

30    Ground 2 of the appeal must also be rejected, essentially for the reasons given by the primary judge at [23] to [24]. The IAA found that neither s 473DD(a) or (b) of the Act was satisfied in respect of the relevant new information. Accordingly, it was not taken into account by the IAA for the purposes of its decision dated 18 March 2016. In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, the Full Court at [104] (per Kenny, Tracey and Griffiths JJ) approved White J’s view in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (BVZ16) that the phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or not there are “exceptional circumstances” (at [104]). The Full Court held there that the IAA had made a similar error to that identified in BVZ16, in that instead of addressing all matters which were potentially relevant to the issue of “exceptional circumstances” which it should have done, the IAA focussed only on the adequacy of the applicant’s explanation as to why the new information could not have been provided earlier.

31    Having regard to [10] of the IAA’s reasons for decision (see [17] above), I am not persuaded that the IAA committed a similar error in this case.

32    As to the ground 3, as I pointed out to the appellant, this ground is unsustainable having regard to the High Court’s recent decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [10]-[29].

Conclusion

33    For these reasons, the appeal should be dismissed, with costs.

Associate:

Dated:    6 March 2018