Federal Court of Australia

AGE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1486

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA), dismissing the appellant’s application for judicial review of a decision of the second respondent (IAA), which affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a temporary protection visa.

2    The appellant is a Sri Lankan Hindu Tamil male from the Batticaloa district in the Eastern Province of Sri Lanka. His claims for protection are summarised in the FCCA judgment at [3] to [12].

3    The appellant’s notice of appeal states a single ground of appeal being, that the FCCA judge erred in failing to find that the IAA failed to apply s 473DD of the Migration Act 1958 (Cth) to photographs provided by the appellant as evidence of his claims.

4    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.

The photographs giving rise to appeal

5    In refusing the appellant’s visa application, the delegate noted that one of his protection claims was that the appellant is suspected of having a link to the Liberation Tigers of Tamil Eelam (LTTE) through his uncles and maybe even his father. The delegate recorded, relevantly:

I note that the applicant has provided photos of civilian men next to a shrine and armed men carrying the shrine. In one of the two photos, an older gentleman (indicated as the applicant’s grandfather) and another gentleman (indicated as the applicant’s father) stand beside the shrine with an image of the LTTE symbol. The younger gentleman standing by the shrine bears a likeness which resembles the applicant’s father, when checking against departmental systems.

6    After further analysis of the appellant’s claims, the delegate made the following findings:

I acknowledge that the applicant has provided photos in support of his application; however, taken in isolation I do not consider them to be persuasive evidence and cannot verify their authenticity. I also acknowledge consistency with respect of the applicant’s claim of attack in his Arrival Interview and TPV application. However, the applicant was unable or unwilling to explain how his uncle was affiliated with the LTTE, how this affiliation has been identified by the Sri Lankan authorities and how it has drawn adverse interest from authorities. I therefore find that the applicant is not of ongoing interest to Sri Lankan authorities due to his uncle’s real or perceived affiliation with the LTTE, or for his father’s affiliation with the TNA or for any other reason.

7    By email sent on 14 October 2016, the appellant’s agent provided a submission to the IAA, including a statutory declaration made by the appellant. The agent also stated:

I am hoping to submit further evidence consisting of a letter of verification from the applicant’s mother plus a couple of photographs of his uncle and father.

8    The appellant’s statutory declaration included the following:

7. The CID think that I am associated with the LTTE because of my family connections.

8. The letter I provided to the Department of Immigration from the CID is genuine.

9. The photograph I provided to the Department of Immigration showing my father together with a framed photograph of my “martyr” uncle is genuine.

10. I will endeavour to provide Immigration with photographs of my father and uncle to provide they are the same people as depicted in the photo they have received.

9    By a second email sent on 14 October 2016, the appellant’s agent sent the IAA two photographs with the following message:

Following please find additional evidence from applicant’s mother. Photographs of applicant’s father and uncle verifying photos submitted at PV interview of father and uncle at uncle’s LTTE memorial are genuine. The assessor doubted their veracity.

10    The two photographs comprised:

(1)    A photograph apparently depicting two males with a female in the background and a shaded face in the top right foreground.

(2)    A photograph of a young male in a uniform.

11    On 15 October 2016, the appellant’s agent sent more legible copies of the two photographs with the following message:

The attached documents and photos accompany our initial submission.

The letters verify the statement [the appellant] made in his interview with the Department.

The photographs verify [the appellant’s] father and uncle are the same people depicted in the photographs given to the Department that showed the [appellant’s] father at the “martyrs” memorial service for his uncle who was a member of the LTTE.

IAA decision

12    The IAA referred to the two photographs in the following passage of para 5 of its decision record:

The submission also included a statutory declaration signed by the applicant on 14 October 2016. The information in the declaration is not new information; it restates in short form the applicant’s claims and responds to some of the delegate’s findings. On the same date, the applicant’s representative sent to the IAA additional material provided by the applicant’s mother…Also attached are what appears to be two family photos. I consider the information provided by the applicant’s mother to be new information….In relation to the photos, no information has been provided which would assist me to understand who is represented in the photos or how the photos are relevant to the applicant’s claim. No explanation has been provided regarding why the new information provided by the delegate’s mother was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant’s claims. I am not satisfied in relation to the matters set out in s.473(DD)(b) of the Act.

13    The IAA addressed the appellant’s claims of family LTTE connections at paras 10 to 19 of its decision record, ultimately concluding that it was “not satisfied the applicant is suspected of having a link to the LTTE through his uncles and maybe even his father or that he is, as a result, at any risk of harm from the Sri Lankan authorities on the basis of those imputed family connections to the LTTE”.

14    At para 14, the IAA referred to three photographs provided by the appellant to the Minister’s delegate in support of the appellant’s claim. The IAA referred to the delegate’s note that, in the photo said to depict the appellant’s father and grandfather at the shrine of the appellant’s uncle, with an LTTE symbol, the younger man bears a likeness which resembles the appellant’s father when checked against departmental systems. The IAA then said:

Assessing the applicant’s claims of imputed LTEE association or support on the basis of family links, even if I accept that the photographs are as the applicant asserts, the applicant seems to suggest that it was these photos that led to the family house being targeted by masked stone throwers one evening and then being broken into the next evening and his father being assaulted. There is, however, nothing to persuade me that the two are linked. Leaving aside the applicant’s evidence that the incident at the house occurred 2 or 3 years after his father went to the LTTE office to enquire about his uncle (or, on the basis of the caption on the photos, 5 years), I agree with the delegate that it does not make sense that the Sri Lankan authorities would target the family home by throwing stones at it, the following day break in and beat up his father then depart, and then some three months later send a letter requiring the application to come in for questioning.

The applicant has been consistent throughout the protection process that the family home was targeted by masked stone throwers and that it was also broken into and his father assaulted. In his interview he provided further credible detail about the incident and on the strength of that and the consistency with which he has advanced this claim, I accept that the family home was targeted in the way described in May 2012. I am also prepared to accept that this incident was the catalyst for the applicant’s father sending the applicant’s brother away to Saudi Arabia and himself leaving Sri Lanka for Australia. I am not, however, satisfied that the incident at the family home was in any way connected with the applicant’s family’s purported LTTE affiliations. Not only has the applicant been unable to provide any details about his uncle’s LTTE membership, work or affiliations, he has not provided evidence of any other interactions with the authorities, either his own or other family members, that would suggest the family was under suspicion of LTTE or separatist involvement or sympathies or how the photos have drawn any kind of adverse attention at all from the authorities or why, after five years, the applicant’s family has been targeted for attention by the authorities. DFAT advises that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country and there are also reports that former members have been under pressure to act as informants for the authorities.

FCCA judgment

15    The FCCA judge rejected the appellant’s contention that the IAA overlooked the contents of the two emails set out at [9] and [11] above for the following reasons:

a.    First, the Authority referred to the applicant’s legal representative’s having sent to the Authority on 14 October 2016 letters from the mother and “what appear to be two family photos”. Given these documents had been provided to the Authority by email, it is difficult to infer the Authority did not acquaint itself with the contents of the email by which the photographs had been sent to the Authority.

b.    Second, the Authority described the photographs as appearing to be “two family photos”. There is no writing on the photographs that would identify them as family photographs; the only other information that could have suggested the photographs were family photographs is what the applicant’s legal representative stated in her emails, namely, that they are photographs of the applicant’s father and uncle. This suggests the Authority at the very least read the second 14 October 2016 email.

c.    Third, the Authority did not say that no information was provided to it about who is represented in the two photographs, or how the photographs are relevant to the applicant’s claims; what the Authority said is that no information was provided to it that “would assist” the Authority “to understand” who is represented in the photographs, or how they are relevant to the applicant’s claims. That statement appears to be directed, not to the absence of any information about what the two photographs represent and their relevance, but to what the applicant’s representative said about those matters in the second 14 October 2016 email and the second 15 October 2016 email. What the representative there said were bald assertions to the effect that the photographs verified the applicant’s father and uncle are the same persons depicted in the photographs the applicant gave to the Department. The representative did not make any submission about how the photographs provided such verification, or about how the photographs could otherwise be relevant to the applicant’s claims. It would have been reasonably open to the Authority to characterise the representative’s bald assertions as information that did not assist the Authority “to understand” who is represented in the photographs or how they are relevant to the applicant’s claims; and, in my opinion, that is what the Authority intended to convey when it said that “no information has been provided which would assist me to understand who is represented in the photos or how the photos are relevant to the applicant’s claims”.

Although I am not satisfied the Authority did not read or consider the contents of the second 14 October 2016 email or the second 15 October 2016 email, I will consider at the end of these reasons what, if anything, turns on the correctness of the Minister’s submission that the Authority overlooked the submissions the applicant’s representative made in the second 14 October 2016 email and in the second 15 October 2016 email.

16    At [67] of his Honour’s reasons, the FCCA judge concluded that any error by the IAA to consider the contents of the two relevant emails was not material because the IAA considered the appellant’s claims on the assumption that the three photographs provided to the delegate were authentic.

Submissions on appeal

17    The appellant submitted that, if the IAA considered the appellant’s claims on the assumption that the three photographs provided to the delegate were authentic, then its point of departure must have been that the appellant’s father and family had direct links to the LTTE.

18    The IAA apparently understood the appellant’s claim to be that, in 2012, his family home was targeted (by persons who threw stones, broke into the appellant’s house and assaulted the appellant’s father) as a result of the family’s LTTE links (the existence of those links being corroborated by the photographs). This appears from para 15 of the IAA’s decision record, set out above. The IAA’s understanding of the appellant’s claim is consistent with the statement, at para 12 of the IAA’s decision record, that “[w]hen asked what gave him the impression that he was suspected of having links to the LTTE because of family connections, the applicant stated it was because people broke into their home and beat up his father and broke his nose and when they shouted the people ran away”.

19    The appellant did not contest this aspect of the IAA’s reasoning.

20    The IAA was not satisfied of a relevant connection between the 2012 incident and any family connections with the LTTE, noting an absence of evidence about the following matters:

(a)    Details of the uncle’s LTTE membership, work or affiliation;

(b)    Other interactions with the authorities, either on the part of the appellant or other family members, that would suggest the family was under suspicion of LTTE or separatist involvement or sympathies;

(c)    How the photos have drawn any kind of adverse attention at all from the authorities;

(d)    Why, after five years, the appellant’s family has been targeted for attention by the authorities.

21    As to (c), the IAA’s language obscures whether the IAA was concerned with an absence of evidence about adverse attention arising from publication or possession of the photographs, or from the events depicted in the photographs. Either way, there was no evidence.

22    As to (d), the relevant five years is the time elapsed between the date on the captions of the three photographs depicting family links to the LTTE (2007) and the 2012 assault on the appellant’s family home.

23    On a fair reading of its decision record, the IAA assumed in the appellant’s favour the existence of family links to the LTTE as depicted in the three photographs, but was not satisfied that the appellant was suspected of a link to the LTTE (whether through his uncles or his father) or that he is at risk of harm on the basis of those imputed family connections to the LTTE.

24    It follows that, even if the IAA had had regard to the two photographs submitted to it, they would not have assisted the appellant’s claims because the two photographs do nothing more than support the claim of family LTTE connections. The IAA’s reasons assumed the existence of those connections in the appellant’s favour.

25    Accordingly, any error on the part of the IAA in failing to apply s 473DD to the photographs is immaterial because the photographs could not have advanced the appellant’s claims for protection: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30].

26    Further, the material that the appellant claims was overlooked was not information that was capable of satisfying the IAA that the two photographs were “credible personal information which was not previously known” because:

(1)    If the relevant knowledge was the identity of the persons depicted in the photographs submitted earlier to the delegate, that knowledge was plainly previously known to the appellant; and

(2)    If the relevant knowledge was the existence of the two photographs, there was no evidence that this knowledge was not previously known to the appellant.

27    It follows that any error on the part of the IAA in failing to apply s 473DD to the photographs is also immaterial because there was no evidence before the IAA from which it could conclude that the IAA was required to consider the two photographs.

Conclusion

28    The appeal fails. Costs should follow the event.

Associate:

Dated:    15 October 2020