FEDERAL COURT OF AUSTRALIA FLM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 256 Appeal from: FLM17 v Minister for Immigration & Anor [2019] FCCA 261 File number: SAD 24 of 2019 Judge: RANGIAH J Date of judgment: 20 February 2020 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – decision of Immigration Assessment Authority – refusal of protection visa – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2), 473CC, 473DB, 473DC(3) and 473DD Cases cited: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 Date of hearing: 20 February 2020 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr DF O'Leary Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS SAD 24 of 2019 BETWEEN: FLM17 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 20 FEBRUARY 2020 THE COURT ORDERS THAT: 1. The name for the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. 2. The appeal is dismissed. 3. The appellant pay the first respondent's costs of the appeal fixed in the sum of $6,000.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (DELIVERED EX TEMPORE AND REVISED) RANGIAH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 21 January 2019. The judgment dismissed an application for judicial review of a decision of the second respondent (the Authority), which affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a Safe Haven Enterprise Visa. 2 The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia by boat on 17 August 2012. He lodged an invalid application for a protection visa in 2013, and then a valid application in 2015. 3 The appellant claimed that Sri Lankan authorities suspected him of involvement with the Liberation Tigers of Tamil Eelam (LTTE). He said his father had worked for the LTTE. The appellant claimed that from 2008, the Criminal Investigation Division (CID) and Sri Lankan Army would come to his home looking for him, and that he feared for his safety and went into hiding. Since arriving in Australia, the CID had continued to look for him. In 2016, two unidentified men went to his house in Sri Lanka and demanded money from his wife. He sold a property and paid the men. 4 On 4 May 2017, a delegate of the Minister refused the application on the basis that the appellant was not a person to whom Australia owed protection obligations. The appellant's application was then referred to the Authority. 5 On 22 November 2017, the Authority affirmed the delegate's decision. The Authority noted that the appellant had provided a submission which contained new information, including information about his father's involvement with the LTTE, details of how he was able to hide from the CID over an extended period and further details about the incident in which the men demanded money from his wife. The Authority was not satisfied that s 473DD of the Migration Act 1958 (Cth) (the Act) was satisfied in relation to the new information. The Authority considered that the appellant had plenty of opportunity to provide the information to the delegate. It did not accept that he did not disclose the information to the delegate because he was afraid of the Sri Lankan authorities. Further, the Authority considered that the information could have been provided to the delegate before the delegate made his decision and that it was information that was already known to the appellant. The Authority considered that the requirements of s 473DD of the Act were not met, and decided it could not consider the new information. 6 The Authority did not accept that the appellant's father or other family members were members of the LTTE or had worked for the LTTE. The Authority did not accept that the CID or Sri Lankan authorities or anyone else was looking for the appellant, or that he was wanted, or was of adverse interest to them. The Authority considered the appellant's account to lack consistency and credibility, setting out in detail its reasons for so finding. The Authority found that the appellant did not meet the criteria in ss 36(2)(a) or (aa) of the Act. 7 The appellant then applied to the Federal Circuit Court for review of the Authority's decision. He was represented by counsel in that proceeding. There were three grounds of review. 8 The first ground asserted that the Authority had failed to conduct a review as required under s 473CC of the Act because it failed to consider certain country information that was before it. That country information included information from organisations including the UNHCR, the US State Department and Amnesty International. The Federal Circuit Court was not satisfied that the material was ignored. Further, the primary judge did not consider that the country information pointed to by the appellant was relevant to the appellant's situation. 9 The first ground also asserted that the Authority had overlooked the appellant's son's birth certificate which gave his date of birth as May 2007. The date of birth was relevant to when the appellant was in a particular region of Sri Lanka. The Authority found that there were inconsistencies in the appellant's evidence as to when he was in that region. The Federal Circuit Court considered that the Authority had overlooked the birth certificate, but found that it was not an error of such gravity as to constitute jurisdictional error. The primary judge was not satisfied that the error had made any difference to the Authority's decision. 10 The second ground of the application alleged that the Authority ought to have invited the appellant to clarify inconsistencies between the statement he made in his 2013 application and information in his 2015 application. The primary judge noted that the appellant had himself drawn attention to the inconsistencies and sought to explain them. His Honour concluded that it was not unreasonable for the Authority to not exercise its power under s 473DC(3) to seek new information from the appellant to address the inconsistencies. 11 The third ground of review alleged that the Authority had misapplied ss 473DB and 473DD of the Act. The argument was that the Authority had erroneously failed to accept the new information provided by the appellant. The appellant relied upon BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 where White J held that the Authority had erred in considering the criteria in s 473DD(b) decisive as to whether or not there were exceptional circumstances under s 473DD(a). However the primary judge held that the Authority had not conflated the two provisions. The primary judge held that none of the grounds of review had been made out and dismissed the application. 12 The appellant has not appeared at the hearing. The hearing was stood down for 30 minutes after the time it was due to commence in case the appellant appeared late, but he had still not appeared after that time. 13 The appellant has not filed any written submissions. His grounds of appeal stated in the notice of appeal are essentially the same as those relied upon before the Federal Circuit Court. I am unable to discern any error on the part of the Federal Circuit Court in dealing with the appellant's grounds. In these circumstances, the appeal must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 4 March 2020