FEDERAL COURT OF AUSTRALIA

BCQ17 v Minister for Home Affairs [2019] FCA 889

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Authority): see BCQ17 v Minister for Immigration [2018] FCCA 3196 (BCQ17). The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa (Visa).

2    For the reasons that follow the appeal should be dismissed.

background

3    The appellant is a citizen of Sri Lanka and is of Hindu faith and Tamil ethnicity.

4    In March 2016 the appellant applied for the Visa. In the written statement included with his application the appellant made the following claims:

(1)    two of his uncles were killed because they were suspected of having links to the Liberation Tigers of Tamil Eelam (LTTE);

(2)    he was forcibly taken by and ordered to work for the LTTE for one week in 1997;

(3)    after he returned he was arrested by the Special Task Force (STF) and taken to a camp where he was detained for three days, interrogated and mistreated. After three days he was forced to sign a piece of paper without knowing its content;

(4)    he was then taken to another camp and detained for a further three months before being transferred to several prisons until he was released in December 1999;

(5)    after his return home the STF came to his home and questioned him again. The appellant was fearful so he went to Aaladivembu where he stayed for several months. While he was away the army went to his parents’ home and, as he was not there, they damaged the house and left. The appellant then moved to Colombo where he stayed with his sister;

(6)    in 2006, when there were signs of war, the appellant registered his residency in Colombo with the police. Soon afterwards the police came looking for him at his sister’s house;

(7)    after that he did not return to his sister’s house and stayed in another house until he left for Malaysia;

(8)    he remained in Malaysia where he said he was accepted as a refugee by the United Nations High Commissioner for Refugees and was waiting to be resettled. However, as there was no sign of his resettlement proceeding he came to Australia; and

(9)    he fears that if he returns to Sri Lanka he will be branded as a member or supporter of the LTTE, tortured and killed.

5    On 7 September 2016 a delegate of the Minister refused to grant the Visa to the appellant. On 12 September 2016 the Minister’s decision to refuse the appellant the Visa was referred to the Authority for review.

6    On 7 and 11 October 2016 respectively the appellant’s migration agent provided a submission and a statutory declaration declared by the appellant on 11 October 2016 to the Authority.

7    On 20 February 2017 the Authority affirmed the decision not to grant the Visa to the appellant.

the authority’s decision

8    Given the issues raised on appeal it is only necessary to set out the detail of Authority’s decision to the extent the Authority determined that it should have regard to certain “new information” and, in turn, the way in which it considered that new information in the context of the appellant’s claim that he had difficulties living in Colombo after he registered his residency.

9    Commencing at [3] of its decision record (DR), the Authority set out the information that was before it. Relevantly, at [8] it referred to new information to which it had regard concerning the requirement that Sri Lankans of Tamil ethnicity living in Colombo register with the police (New Information). In relation to the New Information it said:

… I considered it necessary to obtain that new information in order to determine this issue and in my view, there is insufficient information before me regarding the registration requirement for me to be able to properly assess the claim. For these reasons, I am satisfied there are exceptional circumstances to justify my considering that new information under s.473DD. Further, I consider that new information is not specifically about the applicant and is just about a class of persons of which the applicant is a member, namely Tamils living in Colombo who were required to register with the police, for the purpose of s.473DE(3)(a).

10    At DR [21]-[22] the Authority noted that the appellant claimed that he had no difficulties living in Colombo until he registered with the police in 2006. The Authority set out the appellant’s evidence given to the delegate in relation to his registration with the police and the events that followed and the appellant’s evidence given at his enhanced screening interview in relation to these events, noting that he provided a different account at that interview.

11    At DR [23] the authority said:

As noted above, I have considered new information in relation to the requirement for Tamils living in Colombo to register with the police. That information states that in June 2006 the Sri Lankan government announced there was a new requirement for Tamils living in Colombo to register with the police. Country information in the referred materials states that the Sri Lankan authorities first detailed the registration procedures for Tamils in a press conference on 30 June 2006.

(footnotes omitted.)

12    In relation to DR [23]:

(1)    the “new information” referred to by the Authority is referenced in footnote 3 as “Immigration and Refugee Board of Canada, ‘Sri Lanka: Treatment of Tamils in Colombo by members of the Sri Lankan security forces and police (2005)-(2006)’, 11 December 2006, CISBE8E6BE735”; and

(2)    the country information referred by the Authority is referenced at footnote 4 as “Guardian (Unlimited) (UK), ‘Tamils must register with Police’, 12 July 2006, CX160440”.

13    Ultimately the Authority was not satisfied that the appellant registered with the police in Colombo as he claimed: DR [25].

FEDERAL CIRCUIT COURT PROCEEDING

14    The appellant commenced proceedings for judicial review of the Authority’s decision in the Federal Circuit Court. He relied on a further amended application filed on 6 November 2018. The further amended application included three grounds of review but the appellant only relied on ground 1 which was in the following terms:

GROUND 1

1.    The IAA erred in making adverse findings of credit against the applicant when it purportedly relied upon country information, said country information not being disclosed in the decision except by way of footnote, and which were accordingly unable to be verified; and/or by taking into account irrelevant considerations or failing to take into account relevant considerations; and/or by failing to give adequate and/or proper reasons for the adverse findings pursuant to S 25D of the Act Interpretation Act and or S 473EA (1); and/or by making irrational or illogical findings and/or by making adverse findings amounting to unreasonableness; such errors together or separately amounting to jurisdictional error.

(particulars omitted.)

15    The primary judge noted that the “heart” of the appellant’s contention was that the Authority gave imprecise reasoning in dealing with new information that it found to be exceptional and to which it had regard and that the appellant did not challenge the Authority’s decision to identify that new information. Rather, it was “the re-identification of that new information and the way in which it was used by the Authority which [was] challenged by the [appellant]”: BCQ17 at [6] and [9].

16    Her Honour observed that, in light of s 473DE(3)(a) of the Migration Act 1958 (Cth) (Act), the Authority was not required to give the New Information to the appellant for comment as it was not specifically about the appellant but was about a class of persons of whom the appellant was a member, namely Tamils living in Colombo who were required to register with the police: BCQ17 at [10].

17    The primary judge summarised the Authority’s findings in relation to the appellant’s claim that he had no difficulties living in Colombo until he registered with the police in 2006. At DR [19] her Honour found that the Authority’s reasoning made clear that the information it regarded as critical was the New Information.

18    The primary judge identified the material question of fact for the Authority to be whether the appellant had registered with the police in 2006 while living in Colombo as he claimed and that the information to which the Authority had regard was relevant to that claim and was information to which it was entitled to have regard. Her Honour noted that the Authority had stated in its reasons that it was necessary for it to obtain the New Information because there was insufficient information before it about the registration requirement for it to properly assess the appellant’s claim in that regard and, because the information was not specifically about the appellant but about a class of persons of which the appellant was a member, it was not information which the Authority was required to give to the appellant: BCQ17 at [21], [23]-[24].

19    The primary judge held that ultimately the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave. This included its adverse credibility findings and the finding that there was nothing in the Authority’s reasons in exercising its discretion to have regard to the New Information to suggest that its decision was made other than in accordance with law. Its reasons for exercising its discretion to have regard to the New Information were not arbitrary, capricious or unreasonable: BCQ17 at [26]-[27].

the appeal

20    In his notice of appeal filed on 6 December 2018 the appellant raises one unparticularised ground of appeal as follows:

The Federal Circuit Court erred in finding there was no jurisdictional error in the IAA decision and also Judge erred in dismissing my Court Application. I will file the Particulars of the grounds in my Amended Notice of Appeal/Court Submissions upon receiving a copy of the Transcript of his Honours reasoning.

21    The appellant did not file an amended notice of appeal providing further particulars nor did he file any written submissions in accordance with the orders made by the Court or as foreshadowed in his notice of appeal.

22    However, at the hearing the appellant provided the Court with written submissions which he said set out the basis of his appeal and the submissions he wished to make to the Court. The Minister did not object to the appellant relying on those submissions.

23    The appellant first takes issue with the Authority’s finding at DR [8] in relation to the New Information. It is convenient to set out the appellant’s submissions in that regard, which appear at [5]-[8] of his written submissions, in full:

5.    ‘New Information’: The Authority considered it was entitled to obtain new information being ‘specific information on the requirement of Sri Lankans of Tamil ethnicity living on Colombo to register with the Police.’ [8] The Authority said it was ‘necessary to obtain that new information in order to determine this issue and, in my view, there is insufficient information before me regarding the registration requirement for me to be able to properly assess the claim.’ [8].

6.    The Authority continued: ‘For these reasons I am satisfied there are exceptional circumstances to justify my considering that new information under S 473DD.’ The IAA did not refer to S 473DD (b). As stated by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [8] “As can be seen, s 473DD provides that the IAA “must not consider” new information unless both of the two conditions are satisfied.” The two conditions are Ss (a) (exceptional circumstances) and (b ): there are 2 limbs in the alternative to Ss (b), being (b)(i) ‘was not, and could not have been, provided to the Minister before the Minister made the decision under S 65’, and (b)(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.’

7.    The ‘new information’ mentioned in [8] was not clearly identified, but at [23] the Tribunal referred to new information and footnoted 2 references - #3 being Immigration and Refugee Board of Canada (2005-2006) and #4 being Guardian (Unlimited) UK 12 July 2006. At [CB97] the Delegate had referenced #4, and so it would appear in respect of #4 the test in 473DD (b)(i) was not met. In any event, there is no given reason by the IAA as to why either documents could not have been ‘provided to the Minister before the Minister made the decision’. Clearly s 473DD (b)(i) could not have been made out in respect of#3 or #4, being documents over 10 years old.

8.    Further, being country information, the reports could not amount to ‘credible personal information’, and so s 473DD(b)(ii) could not have been satisfied. The IAA considered that the basis for it to have obtained the new information was because there was ‘insufficient information’ regarding the registration requirement. While the IAA is entitled to get new information (S 473DC), the IAA cannot consider it unless it satisfied the cumulative conditions under S 473DD: in this case the new information did not satisfy either Ss (b)(i) or (b)(ii), and so the IAA consider irrelevant matters when it considered the new information.

(emphasis in original.)

24    The appellant’s submissions are misconceived. In order to explain why that is so it is necessary to set out the relevant statutory regime which applies to the Authority’s consideration of “new information”.

25    Section 473DC of the Act provides that the Authority may in relation to a fast track decision get any documents or information, defined as “new information”, that was not before the Minister when the decision under s 65 of the Act was made and which the Authority considers may be relevant.

26    Section 473DD provides:

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

(emphasis added.)

27    Also of relevance is s 473DE(1) of the Act which provides that the Authority must give a referred applicant the particulars of any new information where the new information has been or is to be considered by the Authority under s 473DD and it would be the reason or part of the reason for affirming the fast track reviewable decision; explain to the referred applicant why the new information is relevant; and invite the referred applicant to comment on the new information, either in writing or at an interview. However, s 473DE(3)(a) provides that subs (1) does not apply to new information that is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member.

28    The Authority explained at DR [8] that it considered that it was necessary to obtain the New Information in order to determine the issue of the requirement that Sri Lankans of Tamil ethnicity living in Colombo register with the police because there was insufficient information before the Authority in relation to the registration requirement to enable it to properly assess the appellant’s claim. Accordingly the Authority was satisfied that there were exceptional circumstances to justify it considering the New Information pursuant to s 473DD.

29    The New Information was not information which was “given or proposed to be given to the Authority by the [appellant]”. It was “new information” which the Authority sourced itself. Accordingly s 473DD(b) was not engaged and, contrary to the appellant’s submission, there was no requirement for the Authority to be satisfied of either of the matters in s 473DD(b).

30    As to the second document referred to by the appellant, as explained at [35] below, that was not “new information” but formed part of the material provided by the Secretary to the Authority. Thus s 473DD did not apply to it.

31    The second part of the appellant’s submissions raises the fact that the delegate accepted that the appellant registered with the police, contrary to the finding made by the Authority. After referring to the Authority’s findings which led it to conclude that it was not satisfied that the appellant registered with the police in 2006, the appellant submitted that the “Federal Circuit Court committed jurisdictional error in not finding the [Authority] took into account irrelevant considerations – being the 2 publications which it was not entitled to do”. Once again, this submission does not establish any error on the part of the primary judge.

32    First, that the delegate accepted that the appellant registered with the police, while the Authority did not, does not affect the Authority’s decision. In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72] a Full Court of this Court (Reeves, Robertson and Rangiah JJ) said:

In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

33    Secondly, the two documents referred to by the appellant were, contrary to his submission, documents to which the Authority was entitled to have regard and were not irrelevant considerations. Those documents were referenced at footnotes 3 and 4 in DR [23] and are described at [12] above.

34    The first document was the New Information in relation to which the Authority was satisfied that there were exceptional circumstances to consider it pursuant to s 473DD(a) of the Act. No error has been shown in its finding in that regard. The Authority was also satisfied that it did not need to provide particulars of the New Information to the appellant or give him an opportunity to comment on it because it was not specifically about the appellant but was about a class of persons of which the appellant was a member, namely Tamils living in Colombo. The appellant does not challenge that finding but, in any event, as the primary judge found, it was properly made.

35    The second document was country information which was part of the material referred to the Authority by the Secretary under s 473CB of the Act. That that is so is evident from the fact that the delegate referred to that same document in its decision at footnotes 8 and 12. Indeed, so much is acknowledged by the appellant at [7] of his submissions (see [23] above).

36    The appellant has not established any error in the reasons of the primary judge.

conclusion

37    For those reasons, the appeal should be dismissed with costs. I will make orders accordingly.

Associate:

Dated:    12 June 2019