FCCA Decision
7 Before the primary judge, the Appellant relied on a single ground of review that took issue with the IAA's reasons for having rejected new information submitted by the Appellant by his 18 September 2017 submissions. That ground as advanced before the primary judge is set out at [24] of the primary judge's reasons as follows (unaltered):
1. The IAA adopted an unduly narrow construction of s473DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction 1. At [6] - [8] the IAA reasoned that s failure to provide an explanation was determinative of the matters set out in s473DD. In doing so, it constructively failed to exercise its jurisdiction under s473DD.
2. Particulars
a. On 11 January 2017 the delegate refused the applicant's protection visa application;
b. On 29 May 2017 the first IAA affirmed the delegate's decision;
c. The applicant sought judicial review of the IAA decision and on 24 August 2017, by consent, the Court quashed the decision of the first IAA and remitted the matter for redetermination according to law;
d. The applicant provided a submission dated 18 January 2017 to the second IAA;
e. The 18 January 2017 submissions contained new information that:
i. On 25 December 2016 the applicant's nephew's motorbike was broken and he was beaten by the CID;
ii. During the attack the applicant's nephew was told that member of "their family" should not be doing business;
iii. The CID also asked the applicant's whereabouts;
iv. The CID had also approached the applicant's wife and demanded that she pay them money. She did not do so and the applicant believes that was why his nephew was attacked;
v. A Tamil man who was returned to Si Lankan from Australia was goaled for 5 days and the CID has demanded 10 Lakhs for his release;
vi. No explanation why the applicant could not have provided to the delegate before the decision;
f. There were only 18 days (over the Christmas/New Year break) between the nephew being attacked on 25 December 2016 and the delegate making the decision on 11 January 2017. The submission dated 18 January 2017 reveals the applicant's intention to give the new information to the delegate but the delegate made the decision first. This reasoning by the IAA is also legally unreasonable.
8 In her Honour's judgment, the legislative framework is set out as follows:
9. Part 7AA provides for review of "fast track reviewable decisions" by the Authority. Under s.473CB, the Secretary of the Department of Immigration and Border Protection must give the Authority specified "review material" in respect of each fast track reviewable decision referred by the Minister, including "material provided by the referred applicant to the person making the decision before the decision was made".
10. The Authority is limited in its use of new information in undertaking its review. Section 473DB of the Act requires the Authority to review the Delegate's decision by considering the "review material" without accepting or requesting new information, and without interviewing the applicant. However, under s.473DC(1) of the Act, the Authority may get any new information. "New information" is defined in s.473DC(1) as information that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
11. Section 473DD of the Act sets out the circumstances in which the Authority may consider "new information" as follows:
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.
12. The requirements in s.473DD(a) and (b) are cumulative, that is, the Authority cannot consider new information unless the requirements of both paragraphs (a) and (b) are met. The matters prescribed in s.473DD may inform the Authority's consideration of whether exceptional circumstances exist. As summarised by the written submissions of the Minister, AQU17 v the Minister for Immigration and Border Protection [2018] FCAFC 111 at [17] held that to make good a contention of jurisdictional error, where the argument is that the Authority took too narrow a view of what constitutes exceptional circumstances, an applicant must point to some:
Fact or matter materially bearing upon the Authority's consideration as to whether it was satisfied of the requirement under s.473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration.
9 The primary judge then set out the new information that the Appellant had provided in his 18 January 2017 submissions as follows:
14. As I have said, the Applicant made a submission to the Authority dated 18 January 2017. In that submission, the Applicant made claims which had not been made previously. They had not been raised in his arrival interview, his SHEV application or at the Delegate's interview. The letter stated, under the heading "New Personal Information to be Considered":
On the 25 December 2016 my nephew's motorbike was broken and he was beaten by the Criminal Investigations Department (CID) in Sri Lanka. My nephew tells me that members of the CID who attacked him said that our family should not being doing business. The CID also demanded my nephew tell them my whereabouts. My nephew lied and said that I was in Qatar. Prior to this the CID had also approached my wife and demanded she pay them 1 Lak. The CID threatened her and said if she did not pay she would be in trouble and she could not tell anyone. My wife has not paid the money and I believe this is why the CID attacked my nephew.
My relatives have also recently told me that a Tamil man who was returned from Australia was jailed for 5 days. The CID said that he had to pay 10 Laks to be released, which he did. My family has not told me if he was tortured, or if he is still alive now as they would not want to upset me with these details.
15. The remainder of the letter provided country information, claiming it was new information published in December 2016, and made submissions in relation to torture and abduction practices against Tamils in Sri Lanka. The Applicant did not in the letter say why the information could not have been provided to the Delegate, whether the information was credible personal information, or whether there were exceptional circumstances that justified the Authority considering the information.
10 The primary judge then referred to the relevant parts of the IAA's decision as follows:
16. The Applicant's ground of review focuses on [6], [7] and [8] of the Authority's reasons. The Authority at [6] summarised the extract from the letter I have already referred to [set out in her Honour's reasons at [14]-[15]], and then, in [7] and [8], said as follows:
[7] The alleged attack on the [A]pplicant's nephew and the threat to the [A]pplicant's wife occurred before the [D]elegate's decision was made on 11 January 2017. Even though the attack on the nephew, at least, occurred not long before the finalisation of the decision, the [A]pplicant has not provided any reason why the information could not have been provided to the [D]elegate before the decision was made, and he has not satisfied me that this is the case. The [A]pplicant has also not satisfied me that the information is credible personal information that may have affected consideration of his claims. The information provided in the submission is quite vague and lacking in detail or context; the relevance to the [A]pplicant's circumstances of the comment that the family should not be doing business is not apparent, given that he is, in fact, no longer doing business in Sri Lanka. It is not apparent why the [A]pplicant believes the attack on his nephew was connected with the threat to his wife. Nor does it seem particularly credible that this apparently new demand and threat would occur so long after the [A]pplicant's departure, given the evidence of little subsequent interest in him or his family, apart from the incidents he told the [D]elegate about which occurred in late 2012 and possibly around early 2016, which did not involve the CID. Overall, and given the limited probative value of the new information, I am also not satisfied that there are exceptional circumstances to justify considering it.
[8] The [A]pplicant also provided new information that his relatives had recently told him that a Tamil man who was returned to Sri Lanka from Australia was gaoled for five days and the CID had demanded ten lakhs for his release. The [A]pplicant's family had not told him anything more about the fate of this man. It is not clear when this incident occurred and the [A]pplicant has not satisfied me that the information could not have been given to the [D]elegate before the decision was made. Nor has he satisfied me that it is credible personal information which may have affected consideration of his claims, as there is nothing to suggest that the circumstances of this man - apart from the fact that he was a Tamil man returned from Australia - are similar to those of the [A]pplicant. Given that the information is of limited relevance or assistance in assessing the [A]pplicant's claims, and given that the [D]elegate considered other information about the treatment of Tamils returning to Sri Lanka from other countries including Australia, I am also not satisfied that there are exceptional circumstances to justify considering it.
17. The Authority otherwise accepted a number of claims made by the Applicant, in terms of the Applicant's explanations and chronology. The Authority accepted the following, and limited its findings as follows:
(a) that the Applicant's father was killed in appalling circumstances in 2001 by the Sri Lanka Navy, and that his wife and members of her family also suffered during the war as the Applicant claimed in his statement. The Authority considered, however, that "these events occurred in the specific context of the civil war and have no bearing on the future risk of harm faced by the [A]pplicant" (at [14]);
(b) that the Applicant was approached by TELO. On the basis of independent country information, the Authority accepted that the claim that the Applicant had trained with the LTTE was "broadly plausible", and that he was "forced to do training with a Tamil militant organisation". The Authority found that the training "lasted for only a brief time and occurred prior to 1991" (at [16], [20]);
(c) although the Authority accepted that the Applicant had been accused of being with the LTTE, it appeared to the Authority that this was an "accusation made purely on the basis of his Tamil ethnicity and place of residence and in the context of wartime security operations, rather than because of any specific information that the authorities had about his activities" (at [16]);
(d) that, in 1990, the Applicant had been detained with 70 others by the SLA on suspicion of being with the LTTE and had managed to escape;
(e) that the Applicant had been targeted for extortion as a "Tamil who was perceived to have money", but the credible evidence did not support a conclusion that the Applicant was targeted specifically because of his past suspected support for the LTTE. The Authority noted the Applicant's claim that, after this 1990 incident, he went to Saudi Arabia to work and remained in the Middle East and Singapore for most of the next 20 years, until 2009 when he returned to Sri Lanka (at [17]). The Authority noted that the Applicant was able to travel in and out of Sri Lanka on several occasions over that period without difficulty, and the Authority was satisfied that he was of no adverse interest to the authorities at that time;
(f) the Authority accepted that he was questioned by officers of the Sri Lankan Navy during a visit home in 1996, but was satisfied, on the basis of his account, that this was a routine incident in which the Applicant was targeted because he was a Tamil, and not because he had done anything in particular to bring him to the adverse attention of the authorities. Whilst country information indicates that, during the war, Tamils were routinely subjected to cordon and search operations, the Applicant does not claim to have had any similar experiences since the war ended in 2009 (at [18]);
(g) the Authority, in relation to his wife, accepted that the police questioned his wife about his whereabouts in December 2012, but did not accept that this was because of his past support for the LTTE, rather, the Authority considered it more likely that the police were enquiring about the Applicant either because they intended to demand money from him, or because they suspected that he may have departed illegally. The Authority was not satisfied that these enquiries indicated there was any real chance that the Applicant faced harm on return for any reason (at [30]).
(h) the Authority found that, on the basis of the Applicant's evidence about his past activity and experiences, and, given the changed security conditions in Sri Lanka indicating a different focus on the part of the authorities as to who might be of adverse interest in relation to LTTE connections or activity, it was satisfied there is no real chance that the Applicant would be subjected to harm now, or on return to Sri Lanka, in the reasonably foreseeable future, because of actual or suspected LTTE connections;
(i) the Authority records the Applicant's claim that, when he returned from the Middle East, he bought a shop in Trincomalee and a lorry, which he drove around northern and eastern Sri Lanka, buying vegetables for resale. The Authority noted his evidence indicated he had another vehicle, which he used to courier parcels from Colombo to Trincomalee. The Authority was prepared to accept the Applicant's account that he was, at various times, stopped at check-outs, and that the police tried to provoke him, and that they would come to his shop every day and demand soft drinks, cigarettes and money. Sometimes they were drunk;
(j) the Authority observed that the Applicant had provided slightly different details of these events at various times, however the overall account was broadly consistent and the Authority was prepared to accept that the events happened broadly as he described, and that his account of being targeted for extortion as a Tamil who was perceived to have money was also consistent with country information considered by the Delegate.
18. The credible evidence, however, in the Authority's view, did not support a conclusion that the Applicant was targeted specifically because of his past suspected support for the LTTE. Given his limited connection with any armed group and the length of time since it occurred, the Authority was not satisfied that this played any part in the mistreatment of the Applicant after 2009, some 20 years later. The Authority recited the evidence of the Applicant regarding his businesses, and that he made good money from his businesses, and that the shop continued to operate under his brother after the Applicant left Sri Lanka until his brother died in 2015.
19. On balance, the Authority considered that the Applicant's evidence was that, when he sold the shop after his brother's death, he made a loss, but the Authority was not satisfied that this was to do with the extortion. The fact that the shop continued to operate from 2009 until 2015 indicated, in the Authority's view, that the demands of the police for soft drinks, cash and cigarettes did not threaten the capacity of the Applicant to earn a livelihood from the shop (at [25]).
20. The Authority concluded that, whilst demonstrating a disturbing level of corruption on the part of the police, the credible evidence does not indicate that this extortion reached the threshold for serious harm. It did not support a finding that the financial consequences of having to provide goods and cash threatened the Applicant's capacity to earn a livelihood or to subsist (at [26]).
21. The Authority considered the reasonably foreseeable future and did not accept, on the evidence, that the Applicant would be killed by the police if he returns to Sri Lanka. The Authority observed at [27]:
It is not clear why the [A]pplicant thinks that this might happen. I'm not satisfied that there is any evidence to indicate that his life was in danger prior to his departure, or that the police would wish to kill him, because of anything that happened prior to his departure. The evidence indicates and suggests that, if the police thought they could continue to obtain benefits from the [A]pplicant, there is no reason why they would wish to kill him. I note, in any case, that the [A]pplicant sold his vehicle to fund his travel to Australia. His shop was operated by his brother until 2015, when his brother, sadly, died. The shop, too, has now been sold. How the [A]pplicant might make a living on return to Sri Lanka is a matter for speculation, although I am satisfied that, given his history, he will be able to do so. However, as it seems doubtful that the [A]pplicant would have the particular businesses that he did before coming to Australia, I am not satisfied that he would continue to be a target for extortion if he were to return to Sri Lanka. I consider that the [A]pplicant's claim that he would be targeted, because he would be perceived to be wealthy, having returned from Australia, to be highly speculative and it appears that any such suspicion would most likely not be borne out by the [A]pplicant's actual circumstances on return.
22. At [28], the Authority considered country information and stated that the information no longer refers to criminal activity, such as extortion, being a major problem in eastern Sri Lanka. The Authority concluded at [29]:
Overall, considering his past experiences, his likely circumstances on return, and the country information indicating that there is likely to be less corrupt activity and more capacity to seek redress if the [A]pplicant returns to Sri Lanka now or in the reasonably foreseeable future, I am not satisfied that there is a real chance that he would face extortion, or consequent threats to his life or safety, such as to amount to serious harm if he returns.
23. The Authority then considered the inquiry since the Applicant's departure, but was not satisfied that these claims demonstrated a real chance of harm to the Applicant (at [30]-[32]). The Authority was not satisfied that the Applicant faced a real chance of persecution on return to Sri Lanka as a Tamil male who sought asylum for leaving Sri Lanka illegally (at [33]-[40]), and the Authority, in conclusion, was not satisfied that the Applicant satisfied either the refugee protection criterion or the complementary protection criterion for the grant of a SHEV (at [41], [49], respectively).
11 The Appellant had been self-represented and had appeared with the assistance of an interpreter before the primary judge. The Appellant had made oral submissions to the effect that he had had assistance in the preparation of the letter but did not make submissions regarding its content. Her Honour's consideration of this ground appears at [30]-[36]:
30. As I have said, the Applicant's ground focuses on [6], [7] and [8] of the Authority's reasons which I have referred to above. It is only necessary that one of the findings of the Authority, in those paragraphs, be sustained. Because the requirements of s.473DD are cumulative, even if one of the findings is affected by error, so long as the other finding is not, then whatever error the Authority might have made could not be jurisdictional (see BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]).
31. Whilst the Applicant's use of the expression "unduly narrow" in his grounds invokes the language of BVZ16 v Minister for Immigration and Border Protection [2018] FCA 127, I do not consider there is any foundation for a similar conclusion in this case, having regard to the Authority's findings at [7] and [8]. The Authority has demonstrated an engagement with the substance of paragraph (b) of s.473DD, because the Authority found that, first, the information provided in the 18 January 2017 letter was "quite vague and lacking in detail or context", and secondly, the relevance to the Applicant's circumstances of the comment that the family should not be doing business is not apparent, given that he is, in fact, no longer doing business in Sri Lanka (and I note that the Authority dealt with the Applicant's business history at [22], [23], [25], [27], as I have identified above).
32. The Authority also found that the timing of the attack on the Applicant's nephew did not seem "particularly credible", as it occurred so long after the Applicant's departure, given the evidence that the Applicant or his family had been of little subsequent interest, apart from the incidents he had told the Delegate about in late 2012 and, possibly, around early 2016, which did not involve the CID (which group the submission identified as related to the attack). The Authority considered that the information was of "limited probative value".
33. In my view, the Authority's consideration tells positively against a conclusion that the Authority adopted an unduly narrow construction of exceptional circumstances, or, indeed, a narrow construction of the circumstances.
34. Further, the Applicant did not advance any reasons in support of a contention that there were exceptional circumstances to justify considering the new information. I have referred previously to AQU17 at [17]. The Authority, at [8] to [10], considered the other new information that the Applicant had provided in the letter of 18 January 2017, and was not satisfied, for the reasons it gave, that there were exceptional circumstances to justify it. For the reasons the Authority gave, I find that the Authority did not err.
35. Particular (f) of the ground of review is to the effect that there were only 18 days between the Applicant's nephew being attacked and the Delegate making her decision, and that the letter of 18 January 2017 reveals the Applicant's intention to give the new information to the Delegate. The Applicant's particular asserts that the reasoning by the Authority is also legally unreasonable. Why this is so, is not made clear. No other particulars are provided. If the Applicant contends that the Authority ought to have taken into account the short period of time between the attack on the Applicant's nephew and the date of the Delegate's decision, the Authority expressly took that matter into account at [7], when it said:
Even though the attack on the nephew, at least, occurred not long before the finalisation of the decision (the [D]elegate's decision), the [A]pplicant has not provided any reason why the information could not have been provided to the [D]elegate before the decision was made, and he has not satisfied me that this is the case".
36. The Authority's assessment of the "new information" was orthodox and considered. There is no error apparent on the part of the Authority.
12 The primary judge concluded that the IAA did not fall into jurisdictional error and dismissed the application for judicial review.