Federal Court of Australia

BNM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1433

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the first respondent's costs of the appeal to be assessed by a registrar on a lump sum basis 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 appellant claims to be a refugee and has sought protection in Australia. It has been accepted that he is of Tamil ethnicity and came to Australia from Sri Lanka in late 2012. He was interviewed upon arrival in Australia in early 2013. At that time he claimed to have been a candidate in the parliamentary elections conducted in Sri Lanka in 2010. He made application for a protection visa which was refused. He sought review by the Immigration Assessment Authority. In 2017, the Authority affirmed the decision not to grant the appellant a protection visa.

2    The appellant sought judicial review of the Authority's decision in the Federal Circuit Court on the basis of alleged jurisdictional error. There was delay in hearing his application which came on for hearing in mid-2020. The appellant appeared on his own behalf. The grounds of his application were expressed in very general terms. The primary judge dealt with them in the terms in which they were expressed. They were properly described as being without particulars.

3    The primary judge also considered matters raised by way of written submissions provided by the appellant to the Circuit Court. Relevantly for present purposes, there were two matters raised and addressed. The first concerned whether the Authority failed to consider or take into account an aspect of the appellant's claim to protection to the effect that he had been detained by police. The second concerned the approach by the Authority to country information.

4    The primary judge dealt with other aspects of the submissions and having done so concluded that no jurisdictional error was made out by the grounds in the application or the matters raised by way of submissions.

5    The appellant now brings an appeal in this Court. The grounds are expressed as follows:

1.    The Federal Circuit Judge made an error in law and facts.

2.    The Federal [C]ircuit Judge erred in finding that the decision of the Immigration Assessment Authority (Second Respondent) was not vitiated by jurisdictional error.

6    Expressed in such general terms, neither matter specifies a ground of appeal. At the outset of the hearing, an attempt was made to explain to the appellant the need to identify an error in the decision by the Federal Circuit Court and that the appeal was not an opportunity to reargue the factual basis for the claim to protection.

7    The appellant provided a short written submission and was assisted by an interpreter in providing short oral submissions. The written and oral submissions dealt with the issue of detention of the appellant by the Sri Lankan police and the approach by the Authority to country information.

8    As to the Sri Lankan police, a complaint was made to the effect that the Authority failed to consider the relevant facts as to when the appellant was detained by police. In outlining the basis for the appellant's claims to protection, the Authority summarised his claim that he had been taken by Sri Lankan police and questioned about a gang fight and that the police had come to his house looking for him for every incident that happened in the area. The Authority also referred to his claim that he moved about to avoid harassment and harm and that he could not obtain protection because it was the police that were harassing him. The Authority addressed these claims (paras 23 and 24). It referred to the fact that the appellant had been asked at his arrival interview whether he had ever been arrested or detained by police and he answered in the negative. It reasoned that the appellant had not provided an explanation for this omission. The Authority accepted that in his interviews he was asked to be brief and he was not given an explanation as to what was relevant. However, the Authority did not accept that this explanation accounted for his failure to give an accurate account. However, the Authority went on to consider the contents of documents provided by the appellant concerning a Human Rights Commission complaint and the credibility of other claims that he had made. The Authority reviewer concluded as to the police detention claims as follows (para 26):

Although not without doubt, I am prepared to accept that the applicant was detained by police in 2010 as he claims in his evidence to the Department and that submitted to the [Authority].

9    Therefore, it is not the case that the claim concerning detention by the police was not considered.

10    As to country information, the appellant submitted that there was error by the primary judge in failing to consider a complaint by the appellant to the effect that the Authority acted on the basis of country information that was speculative and failed to consider the significance of other country information referred to the Authority concerning the abduction, torture and serious harassment of Tamil minorities in Sri Lanka. In oral submissions this was said to have been inconsistent with the Authority accepting some new information about the police and the Human Rights Commission complaint.

11    The precise nature of the appellant's contention concerning country information is somewhat obscure. It is the case that the Authority agreed to accept some new information about the credibility of the appellant's claims concerning the police. The Authority also received information provided by way of response to new country information identified by the Authority (see para 14). The Authority then addressed the state of that country information in its reasons. Therefore, this is not an instance where the Authority refused to accept country information. Having accepted the information it was a matter for the Authority to consider its significance for the factual conclusions it was required to reach. The submissions by the appellant to the effect that different conclusions should have been reached (by the Authority and the primary judge) by reference to that information concerning the circumstances in Sri Lanka do not amount to complaints of jurisdictional error. The specific claims about the effect of the change of government in Sri Lanka were considered by the Authority (paras 39 and 43). As the primary judge correctly found, the appellant was afforded an opportunity to consider the more recent country information to which it referred and to make submissions about that information so there was no procedural fairness in that regard.

12    To the extent that the submission amounted to a complaint that certain country information was not accepted by the Authority to be new information, that aspect is addressed separately below.

13    In oral submissions the appellant also made reference to the fact that the Authority doubted the authenticity of the information provided as part of the Human Rights Commission complaint. However, as to those materials, whilst expressing some doubt over the claims, they were accepted on the basis that there was nothing on the face of the documents to indicate that they were not genuine (para 26). Therefore, there is no basis for that complaint.

14    Although no complaint was raised by the appellant, in terms, as to whether there was compliance with the requirements of s 473DD of the Migration Act 1958 (Cth) in relation to country information which was provided to the Authority as new information, submissions were advanced by the Minister concerning the relevance of the decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494.

15    Section 473DD provides that the 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.

16    In AUS17 the plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) reasoned that s 473DD of the Migration Act imposes a duty on the Authority to assess new information that it has got against the specified criteria in s 473DD: at [6]. Their Honours then dealt with the way in which the Authority was required to approach 'such new information as it might obtain from the referred applicant': at [11]. They concluded that in such cases the logic and policy of the provision required the Authority to first consider whether one of the criteria in s 473DD(b) was satisfied. Then, if so satisfied, that state of satisfaction was required to be brought to account in determining whether there are exceptional circumstances. In other words, a conclusion that there are no exceptional circumstances could not be reached without addressing (and then bringing to account) the matters in s 473DD(b) that pertain in any particular case.

17    It was submitted for the Minister that it may be inferred from the reasons of the Authority in the present case that it adopted the correct approach in applying s 473DD.

18    Having advanced that submission in detailed written submissions, no complaint was raised by the appellant as to the manner in which the Authority dealt with the question whether certain matters raised by the appellant constituted new information to which the Authority was permitted to have regard. Nevertheless, as has been noted, a complaint was raised by the appellant as to the approach to country information being one of the aspects of information that the Authority concluded it could not consider.

19    The Authority concluded that in three respects the material advanced by the appellant was new information to which the Authority could not have regard. First, claims relating to his family's relocation and threats and attacks faced by his brother. Second, information concerning the appellant's health. Third, general country information not specific to the appellant.

20    In evaluating whether the Authority reasoned appropriately in concluding that the information was not new information of a kind to which the Authority was permitted to have regard, it must be borne in mind that the Authority is not obliged to provide reasons for the procedural decisions required to be made under the regime provided for by Part 7AA of the Migration Act: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [16]. Even so, in the present case, the Authority has provided reasons and they do not support the conclusion that the Authority was of the view that it could decline to form and bring to account its views as to the matters in s 473DD(b) in deciding whether there were exceptional circumstances.

21    As to each of the three categories of new information identified above, the Authority first considered whether the information could have been provided to the Minister at an earlier time or whether it was personal information previously known and expressed its reasons in terms from which it may be inferred that it brought that information to account in concluding that there were no exceptional circumstances (see paras 6-7 and 9). Significantly, as to the country information, the Authority reasoned as to certain of the information that it was satisfied that the appellant could not have provided the information to the Minister prior to the relevant decision and that there are exceptional circumstances (para 10). It also identified new country information and provided the appellant with an opportunity to make submissions concerning that information (paras 11-15).

22    In those circumstances, I am satisfied that no issue of jurisdictional error arises from the manner in which the Authority decided that certain of the information did not fall within the bounds of new information that it could consider.

23    Otherwise, having regard to the position of the appellant in advancing his application without legal assistance, I have followed the course outlined by McKerracher J in COS16 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] and examined the reasons to determine whether there is any self-evident error and have not identified any such error.

24    For those reasons, the appeal must be dismissed. There being no reason advanced as to why costs should not follow the event there should be a further order that the appellant pay the Minister's costs of the proceedings to be assessed by a registrar on a lump sum basis if not agreed.

Associate:

Dated:    18 November 2021