FEDERAL COURT OF AUSTRALIA

AOV18 v Minister for Home Affairs [2018] FCA 1871

Appeal from:

AOV18 v Minister for Home Affairs [2018] FCCA 1528

File number:

NSD 1326 of 2018

Judge:

COLVIN J

Date of judgment:

29 November 2018

Catchwords:

MIGRATION - appeal from refusal by the Federal Circuit Court of application to review decision of the Immigration Assessment Authority - whether the Authority misconstrued s 473DD of the Migration Act 1958 (Cth) and failed to take into consideration country information that post-dated the delegate's decision - where Authority made adverse credibility finding concerning appellant's evidence on basis of implausibility - no jurisdictional error - appeal dismissed

Legislation:

Migration Act 1958 (Cth) s 473DD

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388

BPC16 v Minister for Immigration and Border Protection [2018] FCA 920

BZV16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221

DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

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

W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679

Date of hearing:

23 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

41

Counsel for the Appellant:

Mr A Silva

Counsel for the First Respondent:

Mr G Johnson

Solicitor for the First Respondent:

DLA Piper Australia

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1326 of 2018

BETWEEN:

AOV18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

29 NOVEMBER 2018

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The appellant do pay the costs of the first respondent to be assessed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The Federal Circuit Court dismissed the appellant's application to review a decision by the Immigration Assessment Authority. The Authority had affirmed the decision of the Minister's delegate to refuse to grant him a protection visa. The appellant brings an appeal in which five grounds are raised. For the following reasons, the appeal should be dismissed.

2    The Authority accepted the appellant's account that before he left Sri Lanka he was detained, interrogated and had money extorted from him by the Sri Lankan authorities and the Karuna group. However, the Authority did not accept that he was extorted again after opening his business in 2008 or that he closed down his jewellery shop or went into hiding at any time prior to his 2012 departure by boat to Australia. The Authority found that the country information had improved since the appellant's departure and he did not face a real chance of harm 'because of his status as a Hindu Tamil male from a formerly LTTE-active area, his previous interactions with the LTTE, his status as a wealthy jeweller and business owner, or the previous payment he made to them' (para 42).

3    As to the country information, the Authority found that 'the security situation has greatly improved in Sri Lanka - paramilitaries, such as the Karuna Group, as well as the LTTE, are no longer operational in Sri Lanka'. Much of the appeal focussed upon alleged jurisdictional errors associated with that finding.

Ground 1: New information

4    Ground 1 alleges error by the primary judge in failing to find error by the Authority in not considering certain new information, being country information that post-dated the decision by the delegate of the Minister that was the subject of review by the Authority. Section 473DD of the Migration Act 1958 (Cth) enacts a prohibition upon the Authority considering new information unless certain requirements are met. I dealt with those requirements in DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782 at [2], [6]-[14]. Relevantly for present purposes, I note:

(1)    There are two requirements. First, the Authority must be satisfied that there are exceptional circumstances to justify considering the new information: 473DD(a). Second, the applicant before the Authority must satisfy the Authority that the new information either (i) was not and could not have been provided to the Minister before the decision on the visa application; or (ii) is credible personal information not previously known and had it been might have affected the consideration of the applicant's claims: s 473DD(b).

(2)    The two requirements are separately stated. The section does not require a judgment to be formed taking into account both requirements or by balancing them. They are cumulative requirements: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13].

(3)    If one requirement is not met, then the new information must not be considered. There is no need to go on and consider whether the other requirement is met: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [26] and BPC16 v Minister for Immigration and Border Protection [2018] FCA 920 at [98].

(4)    In Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [51], it was said that matters relevant to the second requirement will usually form part of the consideration of all relevant circumstances required for the purposes of forming the state of satisfaction as to whether there are exceptional circumstances for the purposes of the first requirement. Even so, 'it is a misconception that the factors in s 473DD(b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether 'exceptional circumstances' exist as s 473DD(b) does not codify what constitutes 'exceptional circumstances': AQU17 at [14].

(5)    The statement by White J in BZV16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 at [9] that the two requirements 'are cumulative but may nevertheless overlap' (approved and applied in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]) is to be understood in that context. It is not the case that in considering whether there are exceptional circumstances it is necessary to consider all aspects of the second requirement. It depends upon the nature of the new information as to the significance of particular matters.

(6)    In forming a view whether it is satisfied that there are exceptional circumstances the Authority undertakes an evaluative judgment: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [75]. To be exceptional 'a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered': Plaintiff M174/2016 at [30]. Plainly, whether that is so depends upon the particular circumstances and the evaluation of those circumstances is entrusted to the Authority by the requirement that it be satisfied as to the exceptional character of the circumstances.

5    The final point is important because s 473DD conditions the exception to the prohibition in s 473DD upon the state of satisfaction of the Authority, not the view of the Court or the application of an objective standard.

6    The question for the primary judge was whether there was jurisdictional error in the manner in which the Authority dealt with the new information. In undertaking that task it was not for the primary judge to consider whether the reasoning process of the Authority was one which would satisfy the court. The question was whether the reasoning process displayed a misunderstanding of the nature and extent of the prohibition and the task of the Authority in forming the required state of satisfaction for the purposes of each of the two requirements that had to be met for the exception to apply such that there was no prohibition on considering the new information.

7    Much of the argument advanced in support of ground 1 failed to recognise the importance of the above distinction.

8    The Authority's reasoning was as follows (at paras 10-12):

Attached to the IAA submission are a number of sources of country information which were not before the delegate and are new information. Most of these sources appear to pre-date the delegate's decision, or are undated. The IAA submission does not satisfy me that these sources could not have been provided before the delegate's decision; nor does it explain how, as general country information, they constitute personal, credible information. As noted above, while the applicant was unrepresented at his TPV interview, he had legal assistance to prepare his TPV application and confirmed he understood the importance of providing all relevant information in the first instance. Overall I am not satisfied exceptional circumstances exist to justify consideration of those sources which are undated or predate the delegate's decision. Nor has the applicant satisfied me as to either of the matters in s.473DD(b).

Two of the sources of new country information attached to the IAA submission postdate the delegate's decision and for that reason I am satisfied they could not have been provided any earlier. The first of these articles discusses the situation for the relatives of those who have gone missing in Sri Lanka. The article claims the CID have photographed these people in a threatening manner and the government has ignored their situation. The applicant has not explained how this article is relevant to his own situation, and I note he has not claimed to have any relatives who are missing in Sri Lanka.

The second of these two articles discusses the situation of a Tamil person from Jaffna, who returned there for 'personal reasons' after living in Australia for a long time. Two weeks after his arrival in Sri Lanka he was kidnapped, along with two of his brothers, tortured and questioned about his LTTE association. The person and his brothers were only released when another relative paid money to the kidnappers. The applicant has not explained how this article is relevant to his situation and makes very specific, but unsubstantiated, allegations regarding the mistreatment of the Tamil person in question. I also note the article refers to the kidnappers as from the 'army intelligence unit', but also as 'unknown persons'. There is no evidence before me that the person in question was a returning asylum seeker or that the military were in fact responsible. I also note that neither of the articles are about the applicant or any person he purports to have links with, and while they deal with issues that broadly relate to the applicant's claims, being the mistreatment of Tamils, overall I am not satisfied that exceptional circumstances exist to justify their consideration.

9    The reference to LTTE is to the Liberation Tigers of Tamil Ealam, an organisation that had been involved in civil war in Sri Lanka.

10    The oral argument focussed upon the second article referred to in the quoted passage above. It was submitted that the reasoning process demonstrated that the Authority had acted on an incorrect understanding of s 473DD in forming the states of satisfaction required for the purposes of the exceptions to the prohibition on the Authority receiving new information.

11    The second article was in the following terms:

Translated from Tamil

New Tamils

A TAMIL PERSON WHO CAME TO JAFFNA FROM AUSTRALIA SEXUALLY TORTURED BY DETECTIVES

2017-04-26

Army intelligence unit personnel have abducted in white van and tortured a Tamil person from Jaffna who came recently to Sri Lanka from Australia.

The particular person who has been adversely affected has informed this to an Australian media organisation. That media organisation has referred to him as Kumar without mentioning his name.

A Jaffna Tamil person who had lived in Australia for many years was abducted and tortured when he went to Sri Lanka for personal reasons.

I was abducted within two weeks after reaching Sri Lanka. Kumar has mentioned: I and two of my siblings were abducted by unknown persons who came in a white van. Unknown persons who tied Kumar and his two brothers up and dragged them locked Kumar up in a room stained with blood.

They locked me up in a room naked. No one can properly sleep in that room. I slept like a dog on the floor, said Kumar to an Australian media organisation.

Thereafter army intelligence unite persons have questioned Kumar about the contacts with the Liberation Tiger movement. They came back and attacked me with stick on head and back. Kumar said that because of this he has been suffering from back-bone condition.

They subjected me to sexual torture. Later they bashed my body with heated iron. I thought that I was going to die at that time, Kumar said.

Kumar said: later I passed out. A relative of mine paid money to those who detained me and got me released.

12    It can be seen that the report in the article is of a Tamil person who went to Sri Lanka for personal reasons being abducted in a white van. It refers explicitly to the involvement of army intelligence questioning the person about contacts with LTTE. It describes the payment of money to secure the person's release.

13    The first contention raised by the appellant concerned the statement by the Authority that the appellant (then applicant) had not explained how the article was relevant. Reference was made to the article having been provided under cover of a letter from the appellant that said:

There are incidents still taking place in Sri Lanka which illustrate the fact that if I return [my] life will be in danger too. I have attached some country information.

14    However, the statement that the applicant had not explained the relevance of the article did not indicate a misunderstanding of what s 473DD required. In considering whether there were exceptional circumstances it was appropriate to consider the relevance of the material. In considering that issue, the Authority was entitled to form the view that the statement in the letter was not an explanation as to how the article was relevant to the appellant's own situation. It is to be noted that later the Authority refers to the letter dealing with issues 'that broadly relate to the applicant's claims'. This confirms that the Authority is focussing upon the fact that the matters in the letter do not have a specific or direct link to the type of claim that the appellant makes and is identifying points of distinction between the matters in the latter and the appellant. This is a process of reasoning open to the Authority and not one that displays a misunderstanding of the requirements of s 473DD.

15    The Authority then expressed some concerns about the reliability of the information. Again, this is consistent with a proper application of473DD which requires the Authority in forming the required state of satisfaction as to whether there are exceptional circumstances to consider whether the information was 'credible personal information'. A wider inquiry about the reliability was also relevant. The Authority was not confining its consideration to whether the information was personal to the appellant contrary to the view of the High Court in Plaintiff M174/2016 at [34]. There is later reference to the fact that 'neither of the articles are about the applicant or any person he purports to have links with' (emphasis added).

16    The appellant also took issue with a conclusion by the primary judge at [22] about whether, in the course of its substantive reasons, the Authority made a statement that was inconsistent with the information that the Authority did not accept as new information. The premise of the contention was that the Authority made a finding that 'white-vanning' (referring to the regular abduction of certain groups of people in white vans) no longer occurs in Sri Lanka. However, the finding by the Authority was that paramilitaries are no longer operational in Sri Lanka. Therefore, the premise for the submission is not made out.

17    For those reasons, error has not been demonstrated in the conclusion by the primary judge that there was no jurisdictional error arising from the manner in which the Authority dealt with new information.

Ground 2: Alleged error concerning finding about jewellery store

18    The primary judge rejected a claim that there was jurisdictional error by the Authority in making an adverse credibility finding concerning the appellant's evidence that he had opened a jewellery store in a particular place in Sri Lanka.

19    The reviewer stated 'I consider it implausible that after this incident [an abduction by a paramilitary group when the appellant was beaten and had to pay a ransom to be released] he would then open a jewellery store there [the place where he was abducted]' (para 25).

20    It was said that the use of the word implausible had significance because it indicated a finding that it was an event beyond human experience when that was not the case. Reliance was placed upon the reasoning of Lee J in W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 at [37] where his Honour observed as follows:

If material not inherently improbable is dismissed by a decision-maker, who relies upon no more than an assertion that the material is 'implausible' or 'not credible', such an act by the decision-maker may attract judicial review under the Act. That is to say, in some cases a bare statement by a decision-maker that a claimed circumstance is 'not credible' or is 'implausible' may cloak the failure of the decision-maker to address and resolve a material question of fact and thereby fail to take into account a relevant consideration; of suggest that the decision-making power was exercised arbitrarily or capriciously; or that a finding on a material question of fact was irrational, not being supported by probative material or logical grounds; any of which may demonstrate 'jurisdictional error' and a failure to perform the decision-making function reposed in the decision-maker by the Act.

21    As his Honour makes clear, the use of the term implausible must be seen in context in determining whether it is a cloak for a failure to undertake the consideration of the evidence that is required. In this instance, the Authority dealt with the credibility of the appellant's account about opening a jewellery store in considerable detail (paras 25-32). The Authority has not made an error of the kind described by Lee J. The Authority is relying upon more than a characterisation of what occurred as being beyond all experience. The submission made adopts too keen an eye for error and fails to read the finding in context.

22    No error has been demonstrated in the rejection by the primary judge of this ground of review.

Ground 3: Alleged error in making adverse credibility findings

23    Before the primary judge it was argued that there was jurisdictional error by the Authority because it misapprehended the appellant's evidence and made adverse credibility findings which were unsupported by the evidence.

24    The complaint focussed upon whether the Authority mischaracterised the appellant's evidence when it described the evidence (at para 28) as stating that the appellant closed down his jewellery business and went into hiding.

25    The primary judge reasoned that the Authority had not mischaracterised the evidence.

26    It is not necessary to decide whether the primary judge was correct. The ground advanced was a challenge to within jurisdiction fact-finding by the Authority. The ground did not raise a matter that would give rise to jurisdictional error even if it was demonstrated that the court may be inclined to have approached the matter in a different way. It did not rise above an allegation of factual error.

Ground 4: Finding concerning paramilitary groups

27    The Authority found (at para 38) that the country information 'indicates that the security situation has greatly improved in Sri Lanka - paramilitaries, such as the Karuna group, as well as the LTTE, are no longer operational in Sri Lanka'. Reliance was place upon a press report concerning 'white-vanning' dated 13 August 2016 and a DFAT Country Information Report - Sri Lanka, dated 24 January 2017.

28    It was alleged that the finding was made without evidence and was unreasonable.

29    The primary judge referred to the matters stated in the cited material. His Honour concluded that there was information in the material on which the Authority may have reached the conclusion that it did.

30    As to the LTTE, the DFAT Information says in terms (para 3.31) that 'LTTE no longer exists as an organised force in Sri Lanka'.

31    As to the Karuna group, the press report identifies the Karuna faction as having been involved in 'white vanning' abductions. It stated that the 'white vanning culture' has virtually ceased in recent times and gave a description of what had occurred in the past tense. The description was detailed and identified a number of parties who had been involved in 'white vanning'. They included the Karuna group. Also, as to the Karuna group, the Authority found separately that the former head of the group had been arrested on fraud charges. There is no complaint about that finding. It was open to the Authority to conclude from these matters that content of the press report that the Karuna group is no longer operational.

32    The question of the accuracy and reliability of country information is a matter for assessment by the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].

33    There was material to support the findings by the Authority. Further, it is a specialist decision-maker dealing with matters concerning country information regularly.

34    There was no argument advanced as to why the finding was unreasonable for reasons other than the claim that it was unsupported by evidence.

35    No error has been demonstrated in the decision of the primary judge concerning the finding about paramilitary groups.

Ground 5: Unreasonable finding concerning possibility of extortion

36    The Authority reviewer found (para 39):

I am not satisfied that there is a real chance the Sri Lankan authorities, the Karuna Group, or any other paramilitary, would extort the applicant, a wealthy goldsmith, for money if he returned to Sri Lanka.

37    Before the primary judge it was claimed that the finding was unreasonable or illogical because it rested only on a finding that the Government had taken active measures to combat official corruption including by establishing several anti-corruption bodies. It was also said to be contrary to country information to the effect that there was still a risk of torture.

38    The primary judge was correct to reject the ground of review.

39    First, the finding by the Authority does not rest solely on the establishment of anticorruption bodies. It also rests on earlier findings that the security situation has greatly improved and paramilitaries are no longer operational in Sri Lanka. This is evident from the use of the word 'Further' to introduce the reference to anticorruption bodies before making the finding quoted above.

40    Second, the finding is not about torture if arrested. It is a finding about abduction in order to extort money. The finding is supported by the earlier material considered by the Authority concerning the improved security situation.

Conclusion

41    For those reasons, no error has been demonstrated in the decision by the primary judge to dismiss the application for judicial review. It was accepted that costs should follow the event. Therefore, the appeal should be dismissed with costs.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Associate:

Dated:    29 November 2018