ABC17 v Minister for Immigration and Border Protection

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an appeal from the orders made by a judge of the Federal Circuit Court of Australia dismissing an amended application for judicial review of a decision of the Immigration Assessment Authority. 2 The appeal is in relation to a Safe Haven Enterprise (Subclass 790) visa. The appellant's application had previously been refused by a delegate of the Minister. 3 The appellant had claimed that in Sri Lanka he had been threatened by murderers of his cousin to deter him from giving evidence against them in court. His claim was that he departed illegally for Australia prior to his court appearance. The appellant is a fisherman, as were his cousin and the two men said to be responsible for stabbing his cousin. The appellant claimed that, on their release on bail, the men threatened to kill him if he testified against them. The appellant claimed that he was afraid to testify, but also afraid of not doing so as he could be accused of presenting false evidence by the police. He said, therefore, he elected to flee. He claims that he could not return because he was afraid of being subjected to a custodial sentence for failure to testify or for being failed asylum seeker who left Sri Lanka unlawfully. 4 The delegate of the Minister had concerns in relation to inconsistencies in the appellant's evidence in respect of the threats. Although the two men were released on bail in late 2009, the appellant started his own fishing business in October 2010 and remained in his home town until October 2012. He attended three court hearings during this time. 5 The delegate was not satisfied that the appellant was a person in respect of whom Australia had protection obligations because there was no real risk that he would suffer significant harm if he returned to Sri Lanka. 6 In December 2016, the Immigration Assessment Authority affirmed the decision not to grant a visa. The review took place under Part 7AA of the Migration Act 1958 (Cth). Under s 473DD, the Authority was required not to consider any new information unless (inter alia) it was satisfied that there were exceptional circumstances to justify considering the new information. The Authority refused to admit certain information which was sought to be placed before it on the basis that it was no satisfied that there were exceptional circumstances to justify considering any new information. The appellant had submitted two purported extracts from the information book at a police station showing complaints in relation to threats made against, and physical assaults of, the appellant's wife and family. These were dated as occurring some weeks before the delegate's decision. The Authority expressed itself as follows in [4] of its reasons as to why it did not consider there were exceptional circumstances: On 15 September 2016 the IAA received new information in the form of two documents purporting to be extracts from the Information Book of the Weligama Police Station. Both were provided as evidence of complaints lodged by the applicant's wife with the Weligama police station alleging that she, her brother and the applicant's children had been repeatedly threatened and physically assaulted by persons looking for the applicant. While I note the extracts were issued on 7 September 2016 and therefore postdate the delegate's decision, the complaints themselves were lodged on 30 June 2016 and 7 July 2016, approximately seven and eight weeks respectively before the decision was made. No explanation has been provided as to why this information was not previously provided and while I accept it may be credible personal information, the applicant was represented, he provided a detailed written statement and he has been questioned about the nature of the threats against him, the dates such threats were made, the reason he believed the feared perpetrators would still target him upon return and about his family's wellbeing in Sri Lanka. Of his own volition at a separate point in the interview, the applicant also stated that (at that time) his family had not been threatened since his departure from Sri Lanka and I am satisfied the applicant understood that such information may be relevant to his case. The delegate told the applicant at that interview that any information provided before a decision was made may be considered. I am satisfied that the applicant had ample opportunity to raise that people were threatening his family in their search for him in the seven and eight weeks before the delegate made her decision. I am not satisfied that there are exceptional circumstances in this case to justify considering this new information. 7 Thus, not only was there no explanation provided as to why this information had not previously been provided, but it also was, to a degree, inconsistent with what the appellant had previously put to the delegate. 8 The circumstances of the delivery of these records and information to the Authority should also be noted. A solicitor acting on behalf of the appellant had simply sent them to the registry of the Authority with the single sentence: "The above review applicant has requested that I forward the attached additional/new information to be considered by the IAA." 9 There was no explanation whatsoever of the importance of the document. Nor, importantly, was there any other explanation about the reason why the documents were important. 10 It should be noted that in the Practice Direction for Applicants, Representatives and Authorised Recipients, which was attached to the letter to the appellant acknowledging the referral of the matter to the Authority, the Authority stated the following: [23] If you want to give us new information, you must also provide an explanation as to why: • the information could not have been given to the Department before the decision was made, or • the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known. 11 The Authority also commented upon another document which was before it. An Attorney at Law and Notary Public in Sri Lanka had certified facts in two lines as follows: I certify that (name of appellant) is a witness for the prosecution in case number 1203 of the High Court of Natara and the case stands laid by due to Non-Availability of this witness. 12 In [17] of its reasons, the Authority said the following about this document and the subject it concerned: As to whether the matter is still open before the court, I note information from DFAT which states that legal procedures in Sri Lanka are lengthy and that due to the large numbers of detainees and limited police, prosecutors and judges, there can be long delays before a suspect's case is brought to trial. However, even taking this into account I have concerns that the court case would still be ongoing in 2016, six years after proceedings commenced in 2010. I note the 'Certification of Facts' document the applicant has provided from a Sri Lankan attorney attesting on 11 May 2016 that the applicant "…is a witness for the prosecution in Case No. 1203 of the High Court of Matara and that the case stands laid by due to the non-availability of this witness." However, there is no indication that this attorney is involved in the case himself, nor is there any other evidence, official or otherwise, in the referred material to support the applicant's claim that the matter is still before the courts. I note the applicant stated in his SHEV interview that the matter was escalated to the High Court to get a fast solution and having regard to this, I consider it implausible that it would be stalled for over three and a half years due to the non-availability of the applicant as a witness. I am not satisfied that the case is still an open matter before the courts of Sri Lanka and I give the Certification of Facts document no weight. 13 I have referred to these matters in the Authority's reasons because they form the basis of the complaints about the primary judge's decision. The primary judge expressed the view in [26] of his reasons that the Authority had taken into account all the circumstances in determining whether or not there were exceptional circumstances. The primary judge said the following at [24], [26] and [27]: [24] Mr Hodges sought to argue that the Authority had failed to take into account the nature of the information said to be new information. A fair reading of the Authority's reasons reflects that the Authority clearly addressed and took into account the nature of the information said to be new information. It was a matter for the Authority to determine whether or not the circumstances constituted exceptional circumstances. … [26] Mr Hodges sought to argue that the Authority had not taken into account all the circumstances in determining whether or not there were exceptional circumstances. The Authority's reasons reflect a genuine and meaningful engagement with the applicant's submissions and the consideration of whether the criteria under s 473DD of the Act was met. The adverse finding was that the new information did not satisfy as a requirement of exceptional circumstances, was open to the Authority [sic] and cannot be said to be irrational, illogical or unreasonable. No jurisdictional error as alleged in ground 1 is made out. [27] Ground 3 is in substance raising the same issue, albeit Mr Hodges sought to rely upon the decision in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [57] as assisting the finding of error in the present case. I accept the first respondent's submissions that the reasons of the Authority indicated that it considered the nature of the material, the applicant's circumstances and claims, and the absence of explanation as to why the claims concerning his family members being threatened and assaulted by persons looking for the applicant had not been made previously to the delegate. The Authority's reasons do not support a narrow meaning being given to "exceptional circumstances" and the reasons support the Authority taking into account the whole of the provision of s 473DD of the Act. I accept the first respondent's submission that BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 is accordingly distinguishable. No jurisdictional error as alleged in ground 3 is made out. 14 The appellant sought in his submissions to rely upon three grounds of appeal that replaced the existing notice of appeal. I indicated at the hearing of the appeal that I would grant leave to rely upon the written submissions without the formality of an amended notice of appeal. 15 The first two grounds concern this question of exceptional circumstances. 16 It was said that the primary judge erred in concluding that there was a legitimate attendance to the notion of exceptional circumstances. 17 Though the primary judge's reasons are brief in this respect, I do not discern any error. The reasons of the Authority do not disclose any misapprehension as to the meaning of "exceptional circumstances". Given the nature of the material submitted, the appellant's claims and circumstances, the absence of any explanation as to why the claims concerning his family members being threatened and assaulted had not been made previously to the delegate, and the inconsistency with some aspects of how the hearing was conducted by the appellant before the delegate and the Authority, there is a satisfactory basis for the Authority's view that there were no exceptional circumstances. 18 On appeal, the appellant from the Bar Table indicated that: When I was supposed to submit the documents after my immigration interview I submitted all those documents which were …asked by them…see, they had…started giving problems to my family after the interview and they didn't tell me any of these things,…before the interview, thinking I would get upset, and they were afraid of that believing that I should have gone back to Sri Lanka at the time. When I was informed about this, after that only I actually submitted these documents…and after that, these things affected very badly, …to my whole family, and my wife was in the hospital and she was paralysed, and she was psychologically very badly affected by all these incidents and problems. 19 None of these matters was put to the Authority by his solicitor. 20 I see no error by the primary judge in his conclusion that the Authority did not commit jurisdictional error in misunderstanding exceptional circumstances or in rendering its evaluation. 21 The third ground of the appeal contained in the submissions of the appellant focused upon an asserted legal error by the primary judge in [29] of his reasons. In [29] of his reasons, the primary judge dealt with the certificate of facts. His Honour stated the following: In relation to ground 5, Mr Hodges submitted that the certificate of facts was a document that should not have been given no weight by the Authority, as the Authority identified in its reasons. The weight to be given to a document is a matter for the Authority. The Authority provided cogent, rational and logical reasons for giving the document little weight. It is apparent that the Authority properly engaged with a real and meaningful consideration of the certificate and actually set out the contents of the same and identified reasons in support of giving the document no weight. Those reasons were not unreasonable. No jurisdictional error is made out by ground 5. 22 I cannot discern any legal unreasonableness in [17] of the reasons of the Authority, which addresses the certificate of facts. Effectively, the Authority has decided, for various reasons, to give little weight to the annexure containing the certificate of facts. As the Authority indicated in its reasons, there was no basis to understand whether the attorney was involved in the case himself. 23 Thus, I do not consider that either grounds 1 and 2 or 3 reveal jurisdictional error by the Authority. The reasons of the Authority were lengthy and careful. They are described generally by the primary judge from [4] through to [20] of his reasons. The complaints on appeal are limited to the two matters to which I have referred. Neither displays jurisdictional error, in my view. 24 For the above reasons, the appeal should be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.