Federal Court of Australia

FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the first respondent’s costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dated 16 April 2021. The judge below dismissed an application for judicial review of a decision of the second respondent (the IAA) affirming a decision of a delegate (the delegate) of the first respondent (the Minister) to refuse the appellants’ applications for Safe Haven Enterprise visas.

Background

2    The appellants are citizens of Sri Lanka. The first appellant (the appellant) and second appellant are married. The third appellant is their child who arrived with them at Christmas Island from Sri Lanka, and the fourth appellant is their child who was later born in Australia.

3    The success of the second, third and fourth appellants’ visa applications depend upon the appellant’s claims. The applications are based upon the appellant’s claims to fear serious or significant harm because of his involvement in the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka.

4    The appellants applied for the visas on 23 May 2013. The first and second appellants attended an interview with the delegate on 25 January 2018.

5    On 12 July 2018, the delegate refused to grant the visas. The next day, the matter was referred to the IAA for review under Part 7AA of the Migration Act 1958 (Cth) (the Act). As part of the IAA’s review, the appellants’ representative provided it with a range of further information, including a statutory declaration from the appellant dated 17 August 2018.

6    On 5 September 2018, the IAA affirmed the delegate’s decision.

7    By an originating application dated 8 October 2018, the appellants applied for judicial review of the IAA’s decision in the Federal Circuit Court of Australia. On 16 April 2021, the primary judge dismissed that application.

The appellants’ claims

8    The appellants’ claims for protection may be summarised as follows:

(1)    The appellant lived in Trincomalee, Sri Lanka. In 1993, he was recruited by the LTTE, undertook combat training in Mathuvil, and was transferred to Thoundarmanoaru, where he participated in an attack on an army base. Afterwards, the appellant returned to Mathuvil to finish basic training, and was then sent to Thanangkelippu for further training and education.

(2)    In 1995, the Sri Lankan Criminal Investigation Department had information about the appellant and offered a reward for him to be killed. Two attempts were made on his life.

(3)    The appellant left the LTTE service in 1996, but continued to work as required and was not permitted to resign.

(4)    In 1999, the appellant was sent on an LTTE mission in Thailaiaddai. Afterwards, he returned to Trincomalee and lived with his mother.

(5)    In 2000, the appellant was arrested in Trincomalee. He was detained for 15 days, tortured, and accused of LTTE involvement. He confessed to knowing some LTTE members, but not to his own involvement. The appellant’s mother secured his release.

(6)    The appellant left Sri Lanka in the same year, and lived in Saudi Arabia until 2008. During this time, he returned to Sri Lanka three times, including to get married in 2007. The appellant claimed he used an agent to travel in and out of Sri Lanka, who accompanied him and paid necessary bribes to immigration officers.

(7)    During a visit to Trincomalee beach, the appellant was arrested. He was detained for four days.

(8)    In 2008, the appellant returned to Sri Lanka to live. During the interview with the delegate, the appellant claimed that when he returned in 2008, he “worked as part of the LTTE intelligence command as an informant”.

(9)    The appellant travelled to Africa in 2011 for medical treatment, returning to Sri Lanka in mid-2012.

(10)    In September 2012, a person (“M”) told the appellant that another person with whom he had been detained in 2000 had been arrested and had given the appellant’s name to Sri Lankan authorities. Sri Lankan authorities made inquiries about the appellant at his mother’s house. M later told the appellant’s mother that another person had disclosed the appellant’s activities to the authorities. Accordingly, the first and second appellants left Sri Lanka.

(11)    The second appellant had limited knowledge about the appellant’s LTTE involvement. She claimed that the authorities came to look for the appellant at her home while he was in Saudi Arabia. She claimed the appellant told her in 2012 they needed to leave Sri Lanka, but he did not provide any further information because he did not want to scare her.

The decision of the IAA

9    The single ground of appeal in this court concerns new information provided to the IAA.

10    The consideration of new information by the IAA (that is, information that was not before the Minister) is governed by s 473DD of the Act, which provided:

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.

11    The relevant “new information” was contained within a statutory declaration of the appellant dated 17 August 2018, which is set out in the primary judge’s reasons at [10]. The statutory declaration responded to two key reasons for the delegate’s rejection of the appellant’s claims of involvement with the LTTE.

12    First, the delegate considered that there was no credible evidence to suggest the appellant was wanted by authorities, including because if the appellant had been a person of interest as he claimed, then he should have been identified as such when he was arrested in 2000 and 2007, instead of being released following short periods of detention. In his statutory declaration, the appellant said that when he was arrested, the authorities could not prove his involvement with the LTTE because they did not know of his original name with the LTTE. He also said that he was later identified as a former LTTE member and that his name was given to authorities in 2012, which is why he left Sri Lanka. The appellant also referred to naming conventions within the LTTE, including that he was given a name upon joining which was later changed, and that he referred to other LTTE members by title rather than name.

13    Secondly, the delegate found that the second appellant’s inability to provide details regarding the appellant’s claimed involvement with the LTTE, and her “unpersuasive explanation” as to why this was so, supported a finding that the appellant was not involved with the LTTE. In his statutory declaration, the appellant explained that he only disclosed the full extent of his involvement to his wife once he felt it was safe to do so in Australia, as he previously did not want her to worry in case she lost her baby and her mental health declined, and for fear of being overheard by informants. The appellant also deposed that he had been trained to keep his LTTE involvement secret.

14    The IAA found that s 473DD had not been satisfied and declined to consider the new information, reasoning as follows (emphasis added and errors in original):

New information – [appellant’s] 2018 statement

8.    In summary the new information in the statement was [the appellant] helped the LTTE by transferring weapons into army controlled area; he was released in 2000 because they did not have enough evidence to convict him under the PTA; the army did not know his original LTTE name and he had been working in a different area and this is why they never gave him a release certificate. [The appellant] argued that the delegate’s adverse finding that he did not tell his wife about LTTE was unreasonable. The new information was his wife did know that he had been arrested and harmed in Sri Lanka due to his injuries and assumed it was because he was suspected LTTE. She knew he had some involvement, as a lot of Tamil men did. However he was worried to tell her in case she lost the baby and her mental health declined. He feared the information may be overheard by Government informants, so only disclosed the LTTE involvement to her in Australia when he felt safe. The delegate misunderstood the naming conventions in the LTTE. In 2004 when he returned to Sri Lanka the first time from Saudi Arabia it was peacetime, there were no checkpoints so was easy to travel back. In 2007 the agent told him to bring liquor and foreign money and he accompanied the [appellant] to his house. He returned to Saudi Arabia via the same process. One of the men ([name omitted]) arrested with him in 2000 was an LTTE member and he has recently been granted protection in the UK and he will be providing evidence of that and he can attest to his LTTE role.

9.    In the statement the [appellant] stated if he had known he needed to provide more details about his LTTE involvement he would have. He believed the delegate accepted he was fearful to provide LTTE names but made adverse findings and this was unfair. He requested an IAA interview to ask him questions about the LTTE and his LTTE intelligence work. He stated he could not have provided the information previously because he did not know the delegate did not accept he was a LTTE member until she made the decision.

Should I consider the new information in [the appellant’s] 2018 statement?

10.    While the statement was dated after the delegate’s decision, I do not accept that the information could not have been provided earlier as the information related to claimed past events, known to [the appellant]. The [appellant] was informed and well aware of the need to provide all information. He was asked a number of times if he had anything further to add. He was given a number of adjournments in the protection interview, including to discuss with his representative and to provide further information. Towards the end of the interview [the appellant] provided new claims that he had been an LTTE informer until 2009. He was asked a number of questions about that information. I do not accept that he was not on notice about credibility issues. The delegate clearly raised concerns that if he had such an LTTE role that it would be expected he would have come to the attention of authorities before 2012. Further, the [appellant’s] lawyer noted at the end of the interview that the delegate had raised plausibility of a number of events and would address that in submissions. At interview, the [appellant] was given a number of opportunities to provide more information. He confirmed he had provided all his information. Further, the [appellant] was informed he could provide further information and submissions within 14 days and any information received prior to the decision would be considered. He was legally represented throughout. His legal representative provided detailed submissions and summary of the [appellant’s] claims post interview. None of this new information was raised.

11.    Further, the [appellant] was well aware that his LTTE claims were the heart of his claims. Further, at interview he raised new information about being an LTTE informant which was discussed and considered. It is odd that he would not have provided the new and complete LTTE information then. I consider that [the appellant] was provided with plenty of opportunity to discuss the informer claims at the protection interview. I consider that he has raised new claims again so late, leads me to doubt the genuineness of the new information. Further, while the [appellant] claimed he was trained not to disclose LTTE information, this is at odds with the fact that he did disclose his LTTE involvement in his statement and interview. I do not accept this explanation.

12.    Further, at the protection interview credibility concerns about the [appellant’s] ability to travel in and out of Sri Lanka was discussed. The [appellant’s] bribery claims were discussed at length at interview. That he did not mention such a key detail that the smuggler travelled with him to the house and back each time leads me to doubt the genuineness of his claim. At the protection interview he mentioned bribery with money, but did not mention liquor. I do not consider the means of bribery in that regard is of any significance or that it would or might have affected the consideration of the [appellant’s] claims.

13.    I do not consider the [appellant’s] mental or physical health amount to exceptional circumstances to justify considering the information. [The appellant] claimed the back injuries and mental issues stemmed from his beating in 2000. [The appellant] has lived and worked in Sri Lanka and overseas since then with these conditions. He travelled overseas for his back operation in 2011. I do not consider his condition prevented him from articulating his claims. Further, having listened to the interviews, I consider the [appellant] had a meaningful opportunity to provide information. He had legal representation throughout. He provided a lengthy statement to the department and had two interviews with many breaks to stretch his back and he had post interview submissions. It is not unusual that applicants have mental health and physical issues. I do not consider the [appellants’] conditions are exceptional or prevented them from providing information. I am not satisfied there are exceptional circumstances to justify considering the information.

14.    I have not considered the information.

15    The IAA also assessed other new information that is not the subject of this appeal, including what is referred to as a “Starrs report” dated 14 August 2018, country information and witness statements provided on 27 August 2018, and country information provided with submissions made in August 2018.

16    The IAA then made findings under the heading “factual findings” regarding the substance of the appellants’ claims. These findings were detailed, spanning over 50 paragraphs. Generally, the IAA found the first and second appellants’ evidence to be vague, inconsistent, and not credible. By way of example only, it considered that certain events had been “added” to strengthen the appellants’ claims ([63]) and that in one instance, the second appellant “was making up her responses as she went along” ([65]). Accordingly, the IAA did not accept the appellant’s claims of involvement in the LTTE, or that he was of adverse interest to or wanted by any person.

Application for review in the Federal Circuit Court

17    By an application filed on 4 March 2021, the appellants applied to the Federal Circuit Court for review of the IAA’s decision.

18    The appellants’ further amended application for review set out a single ground of review. This ground differed slightly from the ground advanced before this court (see [23] below) in that it identified additional new information in the declaration that the appellants contended the IAA did not correctly assess. Nothing turns on that.

19    The primary judge considered [11]–[13] of the IAA’s reasons at J [16]–[17]. His Honour held that the IAA’s finding at [11] that “because the [appellant] had raised such new claims at a late stage in the visa application process, [he] lacked credibility” was open to the IAA on the evidence before it. His Honour also found that the IAA was entitled to conclude, at [13], that there were no exceptional circumstances.

20    His Honour then referred to passages set out under the heading “factual findings” in the IAA’s reasons. He found that:

(1)    the IAA acted reasonably in finding that the evidence of the appellant about his wife’s lack of knowledge of his LTTE involvement was implausible (J [18]–[19]);

(2)    the IAA was entitled to make adverse credibility findings (J [20]); and

(3)    the IAA had not failed to exercise properly its jurisdiction, having “carefully and extensively considered all of the [appellants’] claims for protection and complimentary protection” (J [22]).

21    His Honour concluded at J [23] that the IAA did not err in failing to consider the new information, having “appropriately assessed” the information against the s 473DD criteria.

22    The primary judge upheld the IAA’s decision and dismissed the application.

The appeal

23    The single ground contained in the amended notice of appeal is as follows:

1.    The learned Primary Judge erred in failing to find that the Second Respondent’s decision was affected by jurisdictional error because it failed to complete its statutory task and/or failed to consider a mandatory consideration by failing to consider if new information in the First Appellant’s statutory declaration given to the Second Respondent on 17 August 2018, satisfied s[ ]473DD(b)(ii) of the Act.

Particulars

a.    The Second Respondent has a statutory duty to consider if new information provided by a referred First Appellant satisfies s 473DD(b) and s 473DD(a) and – if the information satisfies both criteria – to consider the information: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 94 ALJR 1007, [3] [6], [11] – [12] …

b.    The First Appellant submitted a statutory declaration containing new information by e-mail on 17 August 2018.

c.    The statutory declaration relevantly included inter alia new information that:

i.    [Deleted.]

ii.    the First Appellant was released in 2000 because the authorities did not have enough evidence to convict him;

iii.    the Sri Lankan army did not know the First Appellant’s original LTTE name as he had been working in a different area and this is why he had never been released; and

iv.    a further explanation for why the First Appellant had not told his wife the Second Appellant details regarding his LTTE involvement.

(the “new information”)

d.    The new information was capable of satisfying s 473DD(b)(ii) and (a)[.]

e.    The Second Respondent failed to consider or make a finding as to whether the information contained in the statutory declaration, and specifically the new information detailed at particular (c) above satisfied s 473DD(b)(ii).

f.    The Second Respondent’s failure to consider the new information was material to the outcome of the review, as the Second Respondent could have found the new information satisfied s 473DD(b)(ii) and therefore s 473DD(a) and it was capable of affecting the Second Respondent’s finding that the First Appellant did not have a profile as an LTTE member.

g.    The Federal Circuit Court erred in concluding at [23] – [24] of the reasons for Judgment that the Second Respondent had performed its statutory duty to make a finding as to whether new information satisfied s 473DD(b)(ii), specifically by:

i.    finding that the Second Respondent had made a finding that the appellant “lacked credibility” in consideration of the new information and therefore made a finding in relation to s 473DD(b)(ii); and/or

ii.    inferring that the Second Respondent had found the new information was not “credible”, because the Second Respondent had ultimately found the First Appellant was not a [witness] of credit.

24    The appellants did not challenge the IAA’s s 473DD(b)(i) finding that the new information could have been provided to the Minister at an earlier stage. Rather, the appellants’ contention was that the IAA failed to engage with the criterion under s 473DD(b)(ii) in assessing whether or not to consider the new information.

25    The key paragraphs of the IAA’s reasons are [11] and [12] (set out at [14] above). They are the passages which engage with the question of credibility (s 473DD(b)(ii)), and [10] and [13] engage with the criteria contained in ss 473DD(b)(i) and 473DD(a), respectively.

26    The appellants’ primary contention on appeal was that, by expressing “doubts” as to the genuineness of the new information, the IAA did not properly assess whether the information was “credible”, that is, whether the information was “capable of being believed”. See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 171 ALD 477 at 493 [75] (Mortimer and Jackson JJ). The appellants submitted that the expression of doubts did not amount to a finding that the new information was not capable of being believed.

27    I am unable to accept that contention. It seems to me that it posits a distinction without a material difference. But in any event, it is well established that administrative decisions are not to be “scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. A court should not be concerned with “looseness in the language” or “unhappy phrasing” of a decision maker, and reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

28    The IAA did not need to engage in a “formulaic consideration” of s 473DD(b), and there is no error if it can be inferred from the IAA’s reasons that the relevant assessment against the s 473DD criteria occurred. See APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] (Markovic J). The IAA was not obliged to use the precise words of the Act or legal tests, and in my view, its expression of “doubts” about the genuineness of the information was a finding that the information was not credible under s 473DD(b)(ii).

29    The appellants’ submissions also raised other textual reasons why its reading of the IAA’s decision should be preferred, namely:

(1)    if the IAA had considered and found s 473DD(b)(ii) was not satisfied, then it was unnecessary to make a finding that exceptional circumstances did not exist at [13];

(2)    the IAA gave detailed reasons in relation to other new information, and it could therefore be inferred from the absence of a finding on s 473DD(b)(ii) in relation to the declaration that no finding was made;

(3)    the IAA knew of and applied the correct test in respect of other new information (for example, at [19] it decided to consider other new information, including because it was “capable of being believed” and “may have affected the decision”), and it could therefore be inferred that the IAA made no s 473DD(b)(ii) finding in respect of the new information because it did not refer to the correct test at [11]; and

(4)    the IAA’s statement that it doubted the “genuineness” of the appellant’s claims at [11]–‍[12] was not directed to the whole of the declaration, and only considered the appellant’s claims of having assisted LTTE intelligence to transport weapons at [11] and information regarding the appellant’s travel in and out of Sri Lanka at [12].

30    The first three of these submissions are self-evidently without merit.

31    As to the fourth submission, which in his oral address, counsel put as a complaint that [11] “says nothing about what the [IAA] thought about the appellant’s new information about … what the authorities knew about his work for the LTTE and why his wife did not know”, that is not so. It is clear that the IAA considered the declaration as a whole. While [11] did refer to the appellant raising new information regarding his role as an informant, the IAA did so in the context of questioning why, having discussed these informant claims, the appellant did not then provide “the new and complete LTTE information then”, that is, at the point in time that he raised the informant claims. That “new and complete” information is obviously a reference to all the information contained in the declaration.

32    Further, the IAA summarised the declaration at [8]–[9] of its reasons, which included a description of the appellant’s explanation of “what the authorities knew about his work for the LTTE and why his wife did not know”. As counsel for the Minister submitted, and I accept, it cannot be that having summarised the whole of the declaration, the IAA was then only addressing some of it when it referred to “the new and complete LTTE information” in [11].

33    The appellants also submitted that, as the IAA chose to provide detailed reasons regarding whether or not to consider the new information, inferences could be drawn from the matters included and omitted from those reasons (citing Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at 165 [71]–[72] (Kenny, Flick and Griffiths JJ) and DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901 at [22] (Colvin J)). As I understand it, it was contended that the alleged “omission” was the fact that the IAA did not explicitly refer to the statutory language or the “capable of being believed” test in [11].

34    But, as I have explained, it was not necessary for the IAA to do so. It is clear that the IAA did consider and make a finding in respect of s 473DD(b)(ii), and the primary judge did not err in coming to that conclusion.

35    The appellants also contended that the primary judge appeared to find that because the IAA found the witnesses were not credible, it must also have found that the new information was not credible personal information under s 473DD(b)(ii) (see paragraph (g)(ii) of the particulars to the amended notice of appeal). The appellants submitted that this approach was erroneous because the assessment of credibility under s 473DD(b)(ii) is a distinct step from substantive consideration of a visa applicant’s claims, and the fact that a visa applicant is not ultimately believed by the IAA does not indicate that the IAA considered if new information was “credible” under s 473DD(b)(ii).

36    The fact that the primary judge referred to other factual findings of the IAA about the appellant’s credibility had no bearing on his Honour’s assessment of the IAA’s findings in respect of the new information. The primary judge clearly considered that the IAA’s findings regarding the new information were open to it at J [16]–[17], and concluded that it had appropriately assessed the information against the s 473DD criteria (J [23]). He was correct so to conclude.

Disposition

37    For the above reasons, I would dismiss the appeal, with costs.

Associate:

Dated:    4 February 2022

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