ABF19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 588
•1 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 588
File number(s): ADG 5 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 1 July 2024 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka – alleged involvement with Liberation Tigers of Tamil Eelam – single unparticularised ground of review – where error in consideration of new information conceded – whether material jurisdictional error
EVIDENCE – relevance – whether material post-dating decision of Immigration Assessment Authority relevant and admissible
Legislation: Evidence Act 1995 (Cth) s 56
Migration Act 1958 (Cth) ss 5H, 36, 473DC, 473DD, 474, 476
Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
AIB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1017
AUS17 v Minister for Immigration and Border Protection & Anor [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144
FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZARG v Minister for Immigration and Border Protection [2018] FCA 624
NABE v Minister for Immigration & Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Zentai v O'Connor & Ors (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 4 June 2024 Date of hearing: 4 June 2024 Place: Perth (by video-link) Applicant: In person (with the assistance of an interpreter) Counsel for the First Respondent: Ms J Battiste Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 5 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABF19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
1 JULY 2024
THE COURT ORDERS THAT:
1.The originating application filed on 7 January 2019 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
The applicant, ABF19, has filed an application for judicial review (“Judicial Review Application”) in this Court under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant ABF19 a Safe Haven Enterprise (subclass 790) visa (“SHE Visa”).
BACKGROUND
General background
The general background to this matter is as follows:
(a)ABF19 is a male Catholic Tamil born in Sri Lanka and formerly residing in a refugee camp in Tamil Nadu in India: CB 61;
(b)ABF19 arrived in Australia on 31 May 2013 as an unauthorised maritime arrival, together with his father and younger brother: CB 229;
(c)on 20 December 2016 ABF19 applied for the SHE Visa: CB 94;
(d)ABF19 attended an interview with the Delegate on 23 January 2018 (“Delegate’s Interview”): CB 231;
(e)on 29 June 2018 the Delegate refused to grant the SHE Visa: CB 229;
(f)the matter was referred to the Authority on 29 June 2018; and
(g)on 5 December 2018 the Authority affirmed the Delegate’s Decision: CB 289.
Protection claims
In relation to his protection claims ABF19 initially made no claims that engaged the Refugee Convention, resulting in a “negative hand-down decision” on 9 October 2013: CB 37.
On 14 October 2013 ABF19 made a claim based on atrocities experienced by his extended family in 1989 and 1990 due to fighting between the Liberation Tigers of Tamils of Eelam (“LTTE”) Tamil Tigers and the Sri Lankan Army (“SLA”), and the deaths of other family members in 2009: CB 37.
On 18 October 2013 ABF19 further claimed his father’s wife’s sister had two children – a son and a daughter – who were in the LTTE and ABF19 believed it was unsafe to return to Sri Lanka due to that association and a warning to that effect from his aunt who passed away in 2009: CB 44.
On 12 March 2014 ABF19 (represented by a migration agent with effect from 9 January 2014) made a further claim regarding an Australian data breach: CB 64.
On 4 August 2014, during the Unauthorised Maritime Arrival and Induction Interview: CB 70, with respect to why the family left Sri Lanka, ABF19 essentially repeated his claims regarding his father. With respect to why he left India, he referred to mistreatment in the refugee camp and also described being detained and being assaulted for two to three days in 2012 by the Q Police after they found out he had tried to leave India.
ABF19’s written claims for protection in his SHE Visa application were said to essentially arise through an association with his father and thereby being seen as an LTTE sympathiser: CB 171. ABF19 claimed that:
(a)before 1990, during the war, ABF19’s father was a fisherman and forced to assist the LTTE with smuggling on his boat;
(b)subsequently, he was caught and tortured by the SLA;
(c)the family fled to India in 1990 and stayed in a refugee camp; and
(d)the SLA Intelligence Unit had threatened his relatives and stated no matter how many years passed, they could not guarantee the lives of ABF19’s father’s children.
ABF19 also relied on an Australian data breach disclosing certain information about ABF19: CB 64 and 298.
In the Delegate’s Interview ABF19 repeated the claim about his father, but also made substantial new claims for protection, substantially on the basis that ABF19 had directly assisted the LTTE, and that this was known to the Sri Lankan authorities. During the Delegate’s Interview ABF19 claimed that:
(a)through his mother’s sister, ABF19 had a cousin “SK” who held a high position in the LTTE Sea Tigers: CB 235 and CB 240;
(b)in 2007 and 2008, SK arranged for ABF19 and his younger brother to assist the LTTE by smuggling packages containing goods and weapons from India to Sri Lanka. ABF19’s role was to load the packages from a house into an ambulance together with his younger brother and SK’s brother, travel with the ambulance, and unload the packages onto a boat: CB 235-236;
(c)SK had a copy of ABF19’s refugee ID card which he used to obtain benefits: CB 236 and CB 240;
(d)SK was arrested in Sri Lanka by Sri Lankan authorities along with three collaborators while smuggling weapons and tortured. SK revealed ABF19’s assistance to the authorities, a fact disclosed by SK when visited by ABF19’s aunt. SK was shot by Sri Lankan authorities at the end of 2008: CB 236 and 240;
(e)Sri Lankan authorities visited ABF19’s aunt to question her about ABF19’s whereabouts and showed her they had a copy of ABF19’s refugee ID card: CB 237-238;
(f)in 2013 ABF19 was held overnight and interrogated by Indian authorities when he first attempted to escape to Australia and asked about his involvement with the LTTE: CB 231-235;
(g)ABF19 provided two photographs of a male in LTTE uniform, which he claimed were both photographs of SK: CB 240-241;
(h)ABF19 claimed it would be difficult to obtain evidence that he was related to the person in the photographs because death certificates were destroyed in the war and family members were all killed, and that any death certificate for SK’s collaborators would say something to the effect of an accidental death in war as the Sri Lankan government would not record the deceased as having been tortured and killed: CB 241; and
(i)ABF19 said that he had not disclosed his personal involvement with the LTTE to Australian authorities sooner because the LTTE had previously been classed as a terrorist organisation: CB 236 and 239.
Delegate’s Decision
The Delegate’s Decision was that ABF19 did not meet the refugee or complementary protection criteria under the Migration Act: CB 250-252.
AUTHORITY DECISION
After the Delegate’s Decision the matter was referred to the Authority for review: CB 258-259, ABF19 filed a submission in support together with new information: CB 275-283. The details of that submission and the new information appear sufficiently from what follows in these Reasons for Judgment.
In the Authority Decision the Authority:
(a)was not satisfied that the new information met the requirements of s 473DD of the Migration Act to allow it to be considered by the Authority: CB 290-291 at [6]-[7];
(b)accepted that ABF19 was a Sri Lankan born Catholic Tamil who had spent 23 years in a refugee camp in India: CB 292 at [9]-[10];
(c)accepted ABF19 claims regarding his father’s involvement with the LTTE: CB 293 at [13];
(d)did not accept that:
(i)by the time the family left for India in 1990 ABF19’s father was of any significant interest to the SLA because of his involvement in the LTTE: CB 293 at [13]; and
(ii)ABF19’s relatives had been visited by the SLA Intelligence Unit and that threats were made with respect to his father, ABF19 and his brothers: CB 296-7 at [24];
(e)accepted that ABF19 had been questioned by Indian police and asked about his involvement with the LTTE but found that he had not been mistreated and he was released as he was no longer of any interest to them: CB 296 at [23];
(f)based on ABF19’s profile, including:
(i)his association with his father;
(ii)his being a Christian Tamil from northern Sri Lanka;
(iii)his being a returnee asylum seeker;
(iv)the release of some information on ABF19 in the Australian data breach; and
(v)country information,
the Authority was not satisfied that ABF19 met the requirements of a refugee under ss 5H(1) and 36(2)(a) of the Migration Act and, for similar reasons, did not meet the requirements for complementary protection under s 36(2)(aa) of the Migration Act: CB 302 at [53] and 304 at [60];
(g)when considering ABF19’s claims regarding the smuggling operation and his relationship to SK, the Authority:
(i)did not accept the claims made at the Delegate’s Interview regarding ABF19:
(A)being involved in smuggling operations for the LTTE Sea Tigers: CB 295 at [20] and 296 at [22]; and
(B)having a cousin SK who held a high position in the LTTE and was caught, tortured and shot by the SLA and made disclosures about ABF19 to the SLA: CB 293-294 at [15], 295 at [18] and 298 at [28];
(ii)did not accept the explanation given for not raising the claims earlier, noting ABF19 had already disclosed his father’s involvement with the LTTE: CB 293;
(iii)found ABF19’s claims about his own involvement with the LTTE improbable and not credible, based on his evidence and country information: CB 293, 295-296 and 298 at [28];
(iv)did not appear to either reject or accept that ABF19 did have a cousin SK;
(v)did not accept that SK held a high position within the LTTE Sea Tigers, not giving weight to the evidence of the photographs and finding the other evidence to be brief and not convincing: CB 293-294 at [15];
(vi)did not accept that SK was caught, detained, tortured, and killed towards the end of 2008, or disclosed information about ABF19 to the SLA, given the improbability that if this had occurred of ABF19’s aunt being able to speak to SK before he was killed, and consequently did not accept the SLA had ABF19’s refugee ID card: CB 294-295 at [17]-[18];
(vii)did not accept the claim that SK’s collaborators were caught, imprisoned and killed, as were their families, because it was vague and not convincing: CB 294-295 at [17];
(viii)did not accept a claim (not referred to by the Delegate) that SK’s wife was killed as this evidence was not convincing: CB 295 at [19];
(ix)the Authority (nor the Delegate) did not expressly include as part of their reasons for not accepting ABF19 smuggled for the LTTE, their rejection of the claim that he had a cousin in the LTTE. The Authority did refer to ABF19’s claim that his aunt was questioned by the SLA Intelligence Unit after SK’s death about SK, ABF19 and his brother, but this appears to have been rejected because ABF19 was not subsequently investigated and questioned by Indian authorities once this connection was known, rather than because of the rejection of any claims regarding SK: CB 297-298; and
(x)was satisfied that there may have been an unintentional data breach by the Department in publishing ABF19’s personal details on the Department’s website, but was not satisfied that details of the ABF19’s, or his father’s or his brother’s, claims for protection had been published: CB 298 at [30].
JUDICIAL REVIEW APPLICATION
Single ground of review
The single ground of review in this matter is as follows:
The IAA has made a jurisdictional error in my case.
Litigation history in this court
Given that it is more than five years since the Judicial Review Application was filed it is appropriate to set out the litigation history of the matter, which is as follows:
(a)the Judicial Review Application and a supporting affidavit were filed on 7 January 2019 in the Adelaide Registry of the Court (then the Federal Circuit Court);
(b)on 13 February 2019 the Minister filed a response seeking that the Judicial Review Application be dismissed on the basis that it did not establish jurisdictional error in the Authority Decision;
(c)on 1 March 2019 a Registrar of the Court made orders (“Registrar’s March 2019 Orders”) that included the following:
2 The applicant has leave to file and serve any amended application by 2 May 2019.
3 The applicant has leave to file and serve such further material that they may rely upon at the hearing by 2 May 2019.
4 The first respondent has leave to file and serve any affidavit evidence that they wish to rely on by 16 May 2019.
5 The application be listed for a final hearing on a date to be advised.
6 The Applicant file and serve an outline of submissions 14 days prior to the final hearing.
7 The First Respondent file and serve an outline of submissions 7 days prior to the final hearing.
8 The matter be listed for a directions hearing on 12 June 2020 at 9:30 am.
(d)ABF19 did not file any documents pursuant to Orders 2 and 3 of the Registrar’s March 2019 Orders;
(e)on 31 December 2019 the Adelaide Registry of the Court advised the parties that the 12 June 2020 directions hearing had been vacated and adjourned to a date to be fixed. No reason was given for the adjournment;
(f)apart from a request in October 2020 from JusticeNet SA to be advised of any Court dates listed, to which the Adelaide Registry of the Court responded advising that the matter was “[a]waiting final hearing date to be advised”, nothing further occurred in relation to the matter until early February 2023 when the matter was docketed to the presently presiding Judge and a directions hearing was listed for 27 March 2023;
(g)at the directions hearing on 27 March 2023 the Court:
(i)explained to ABF19 that he needed to establish material jurisdictional error in the Authority Decision, and that a failure to specify or particularise jurisdictional error may result in the dismissal of the Judicial Review Application and liability for costs;
(ii)made orders (“Court’s March 2023 Orders”), which included the following:
2. Orders 2-9 of Registrar Parkyn’s orders of 1 March 2019 be set aside, and in lieu thereof order that:
a) the applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 28 August 2023;
b) the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 26 September 2023; and
c) the matter be listed for final hearing by video link on 23 October 2023 at 10.00am AWST/12.30pm ACDT before Judge Lucev.
(h)ABF19 did not file any documents pursuant to Order 2(a) of the Court’s March 2023 Orders;
(i)the Minister filed an outline of submissions on 25 September 2023 (“Minister’s Submissions”) in accordance with the Court’s March 2023 Orders;
(j)on 12 September 2023 the parties were advised by the Chambers of the presently presiding Judge that due to reasons associated with judicial hearing workloads and case management the final hearing of this matter had been relisted to 4 June 2024;
(k)the final hearing proceeded on 4 June 2024, and at the final hearing the Court:
(i)noted that ABF19 had not filed any materials pursuant to the Court’s May 2023 Orders;
(ii)reiterated to ABF19 that he needed to establish material jurisdictional error in the Authority Decision;
(iii)told ABF19 that the Minister:
(A)had conceded that there was a jurisdictional error in the Authority Decision, and the nature of the error that was conceded, namely that it related to the submission of new information, a death certificate in July 2018 (“Death Certificate”), the Death Certificate being two documents: one in the original Tamil, and one in English translation, and that the Authority had failed to consider whether that new information met one or other of certain criteria before the Authority considered whether exceptional circumstances warranted it considering the new information;
(B)submitted that that error conceded was not a material jurisdictional error, because ABF19 could not discharge the burden of showing that there is a realistic possibility that a different decision could have been made with respect to ABF19’s SHE Visa application if the Authority had considered that new information, and that the reasons for that contention were set out in more detail in the Minister’s Submissions; and
(C)maintained that the Judicial Review Application ought to be dismissed;
(iv)adjourned the final hearing for more than an hour shortly after it commenced to allow ABF19 to forward documents to the Court which he said were submissions and which he said he had filed with the Court three months previously;
(v)upon receipt of the documents (which were marked for identification) determined that the documents were not admissible; and
(vi)heard oral submissions from both ABF19 and the Minister. Albeit that ABF19 did not file any materials he was permitted to make oral submissions, consistent with Federal Court authority to the effect that even where there are un-particularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J. In this respect DQQ17 is regularly applied by this Court. Two recent examples are FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383 at [8(j)] per Judge Lucev and FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144 at [25]-[26] per Judge Ladhams.
ABF19’s documents and submissions
ABF19’s documents
The Court having adjourned the final hearing on 4 June 2024 to allow ABF19 to forward the documents which he said were submissions and “important material”, ABF19 sought to tender the documents (which the Court marked for identification). The documents sought to be tendered were as follows:
(a)ABF19’s registration for the Federal Court’s e-Lodgment service (which is used by this Court for its general federal law matters) (“e-Lodgment registration”);
(b)a complaint lodged with the Human Rights Commission of Sri Lanka (“HRC”) on 25 November 2022 by ABF19’s father (who had returned to Sri Lanka in April 2022):
(i)alleging that the Sri Lankan Criminal Investigation Division (“CID”) had deactivated his passport and had threatened him by asking about ABF19’s whereabouts; and
(ii)informing the HRC that if ABF19 returned to Sri Lanka “his life will be in danger”,
and an attached letter from the HRC forwarding the complaint to a police station asking for a report in relation to the matters alleged in the complaint (“HRC Complaint”); and
(c)a notification from a lawyer for the CID’s Division of Marine Industries dated 22 August 2023 requesting that ABF19’s father attend at a nominated CID building “in regard to obtaining a statement relating to the investigation conducted by the Intelligence Department” concerning a particular case, identified by number but not otherwise particularised (“CID Notification”).
The documents were ruled inadmissible in brief oral reasons given at the final hearing, and when doing so the Court indicated it would provide more detailed written reasons in these Reasons for Judgment.
The e-Lodgment registration is simply a record of ABF19’s registration with the portal used to file documents in proceedings such as these, and therefore has no relevance at all to the substantive issues to be determined by the Court, and is therefore inadmissible: Evidence Act 1995 (Cth) (“Evidence Act”), s 56(2).
These are judicial review proceedings reviewing a specific decision, the Authority Decision. The HRC Complaint and the CID Notification post-date the Authority Decision by almost four and more than four and a half years respectively, and they cannot establish jurisdictional error in the Authority Decision because they relate to events which have occurred several years after the Authority Decision, and the information within them is not sufficiently clear to make it apparent what relevance, if any, the documents may otherwise have to the claims which were before the Authority. Neither the HRC Complaint nor the CID Notification are therefore admissible: Evidence Act, s 56(2). Further, even if it were possible to discern from the HRC Complaint and the CID Notification precisely what claim they might seek to make, there is no jurisdictional error in the Authority failing to consider a claim if the claim was one not made to it: NABE v Minister for Immigration & Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [60]-[61] per Black CJ, French and Selway JJ. The HRC Complaint and the CID Notification are further inadmissible because it appears that the only purpose for admitting them would be for ABF19 to seek to have this Court have regard to them as a basis for impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai v O'Connor & Ors (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 (“Zentai (No 3)”) at [367] per McKerracher J.
ABF19’s oral submissions
In ABF19’s oral submissions ABF19 said that:
(a)there was a factual error in the description of one of ABF19’s maternal cousins as his mother’s son; and
(b)otherwise, he had no legal errors or anything to point out in relation to the Authority Decision, but wanted to say that there was no safety for him if he were to return Sri Lanka.
Minister’s submissions
The Minister:
(a)submitted that ABF19 had provided no particulars, submissions or evidence to substantiate the single unparticularised ground of the Judicial Review Application, and in those circumstances that ground did not demonstrate any jurisdictional error in the Authority Decision;
(b)in relation to the factual error alleged by ABF19, said it was clear that the Authority understood it was dealing with ABF19’s cousin and not his brother, citing the Authority Decision at CB 290-291 at [7], and that if there was an error the error was factual not jurisdictional;
(c)conceded that there was an error in the Authority Decision in relation to the submission of new information, namely the Death Certificate, and that the Authority had failed to consider whether that new information met either of the two criteria set out in s 473DD(b) of the Migration Act before the Authority considered whether there were exceptional circumstances under s 473DD(a) of the Migration Act which warranted it considering the new information, but submitted that the conceded error was not a material jurisdictional error because ABF19 could not discharge the burden of showing that there was a realistic possibility that a different decision could have been made with respect to ABF19’s SHE Visa application if the Authority had considered that new information; and
(d)save for the conceded error set out above, the Authority Decision:
(i)demonstrated a detailed analysis of ABF19’s claims;
(ii)was based on a thoughtful and engaged consideration with ABF19’s evidence and the country information; and
(iii)was logical and comprehensible.
Consideration
Material jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Authority Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Not merits review
The Court’s role is to conduct a judicial review, and not to review the merits of the Authority Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai (No 3) at [367] per McKerracher J.
Alleged identification error
ABF19 alleged in his oral submissions that there was a factual error in the description by the Authority of one of ABF19’s maternal cousins as his mother’s son (that is, ABF19’s brother). That allegation is not supported by the Authority Decision wherein the Authority refers to ABF19’s claim that “SK is the son of his mother’s oldest sister”, and then, based on the details in the Death Certificate, the Authority concludes that it is not satisfied that the Death Certificate “provides significant corroborative evidence in support of … [ABF19’s] claims involving his familial relationship to SK through his mother’s oldest sister”: CB 290-291 at [7] (set out at [34] below). It is thus evident that the Authority understood ABF19’s claim that SK was his cousin, but concluded that the Death Certificate did not provide support for that claim. There was no factual finding in the Authority Decision that anyone claimed by ABF19 to be his cousin was ABF19’s brother.
The Court notes that this issue was addressed in the Delegate’s Decision at CB 240 where it is made clear that at the Delegate’s Interview ABF19 initially said that his “brother” held a high ranking position with the LTTE Sea Tigers, but when clarification of the “familial relationship” was sought by the Delegate ABF19 “responded that the LTTE Sea Tiger was the son of his mother’s sister, a cousin not a brother”.
The Court is not satisfied that the Authority made the factual error alleged by ABF19, but even if the Authority did make the factual error alleged the nature of the error would not have been likely to give rise to a jurisdictional error in the Authority Decision.
No jurisdictional error alleged or particularised in single ground of review
The Court notes that ABF19 had three formal opportunities prior to the final hearing to file material setting out an alleged jurisdictional error in the Authority Decision. The first opportunity was upon the filing the Judicial Review Application. The second opportunity was upon the making of the Registrar’s March 2019 Orders, which were made by consent, which permitted ABF19 to file an amended Judicial Review Application and further material by 2 May 2019, but he did not do so. The third opportunity was upon the making of the Court’s March 2023 Orders which allowed ABF19 to file an amended Judicial Review Application, any further affidavits and an outline of submissions by 28 August 2023. Also at the March 2023 Directions Hearing the nature of, and requirement to establish, material jurisdictional error affecting the Authority Decision, was explained to ABF19, and ABF19 was told that the Court did not engage in merits review of the Authority Decision. ABF19 did not file any further documents as a result of the Court’s March 2023 Orders.
At the final hearing the requirement to establish material jurisdictional error in the Authority Decision, and that the Court did not engage in merits review of the Authority Decision, were reiteratd to ABF19, but ABF19’s oral submissions (as to which see [20] above) did not assert any alleged jurisdictional error. In the circumstances, the Court is satisfied that ABF19 had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: DQQ17 at [8]-[9] per Colvin J; see also BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J.
Having given both explanation and opportunity to ABF19 to explain what jurisdictional error he alleged affected the Authority Decision, the failure to go beyond the bare assertion of jurisdictional error in ground 1, and the failure to particularise the grounds of review, is sufficient reason to warrant this Court dismissing that ground: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25] per McKerracher J, citing WZAVW (amongst other cases); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW.
The Authority Decision otherwise (and apart from the conceded error)
In the Authority Decision the Authority undertook a detailed analysis of ABF19’s claims, and dealt with all the claims raised by ABF19 (as to which see [3]-[10] and [13] above), but in summary the Authority:
(a)accepted ABF19’s claims of:
(i)ABF19’s father’s involvement in the LTTE; and
(ii)ABF19’s further profile of being a Christian Tamil from northern Sri Lanka who would be a returnee asylum seeker with some information released in an Australian data breach,
and the Authority assessed this profile against country information to conclude that ABF19 did not meet the criteria for a refugee or complementary protection; and
(b)did not accept ABF19’s claims of:
(i)any ongoing interest in ABF19’s father and ABF19’s family for the father’s past involvement in the LTTE;
(ii)ABF19’s involvement in LTTE smuggling operations; and
(iii)ABF19’s close connection with a high-ranking LTTE member,
and the Authority assessed the evidence in support of these claims together with the relevant country information.
Setting apart the error conceded by the Minister it is otherwise evident from a review of the Authority Decision that:
(a)the Authority engaged with the claims made by ABF19, and considered country information in relation to those claims, as it was required to do: as to claims, see, for example Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ and Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [47]-[50] per Judge Lucev, and as to country information, see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ and Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 at [27] per Rares and Jagot JJ; and
(b)the Authority Decision was one that was open to the Authority on the evidence before it, for the reasons that it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248. Whilst ABF19 might not agree with the Authority Decision, that is not indicative of jurisdictional error, and the weight to be afforded to the material before the Authority was a matter for the Authority, and it is not for the Court to engage in a general review of the merits of the Authority Decision: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai (No 3) at [367] per McKerracher J.
The Authority Decision was therefore unaffected by error, save for the error conceded by the Minister.
The new information error conceded by the Minister
Factual context
On 15 July 2018 ABF19 provided the Death Certificate to the Authority. ABF19 did so without providing any relevant context within the submission provided at the same time by his then migration agent representative. Based on the name appearing in the Death Certificates it appears to have been provided on the basis that it related to SK: CB 240 and 282. The Death Certificate was not before the Delegate and was therefore “new information” for the purposes of s 473DD of the Migration Act: Migration Act, s 473DC(1).
The Authority treated the Death Certificate provided by ABF19 as follows:
[6]On 15 July 2018, the IAA also received from the applicant two documents, which are new information. One document is a purported Sri Lankan death certificate in the Tamil language; and the other is an English translation of the death certificate. The applicant did not explain why these documents were not given before the delegate made her decision, or make any reference to them in his submission. The applicant gave copies of five other death certificates, not translated into English, while he was in Immigration detention in Australia, and this was not one of them. The new death certificate appears to be evidence in support of the applicant's claim about the death of his cousin, SK. The delegate asked the applicant in the SHEV interview if he had any evidence he was related to SK, and the applicant said he did not but if he found some he would pass it on. He also said to get proof will be very difficult; even the death certificate and everything was destroyed in the fire and the war – they have killed every member of their family so it is very difficult to collect the information. The applicant has not explained how he since managed to obtain this death certificate.
[7]I am not satisfied there are exceptional circumstances to justify considering this new information. The applicant claimed in his SHEV interview that SK is the son of his mother’s oldest sister. The applicant did not name SK’s mother. The name of the mother for SK listed on the death certificate does not have the same maiden name as the applicant’s mother. The month and year of death is recorded as February 2009, and the cause of death is recorded as injury from shell attack. This information differs to what the applicant said in his SHEV interview about SK’s death. I am not satisfied that the death certificate provides significant corroborative evidence in support of the applicant’s claims involving his familial relationship to SK through his mother’s oldest sister, nor SK’s cause of death. I am not satisfied that s.473DD(a) is met.
The law - AUS17
In AUS17 v Minister for Immigration and Border Protection & Anor [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”) the High Court clarified that s 473DD of the Migration Act requires the Authority to assess new information against the criteria in both ss 473DD(b)(i) and (ii) of the Migration Act, and then, providing that at least one of those criteria are met, take that assessment into account in its consideration of whether there are exceptional circumstances under s 473DD(a) of the Migration Act, before concluding that it is prohibited from considering the new information: see also AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 (“AZT22”) at [85] per Banks-Smith and Jackson JJ.
Was it a material jurisdictional error?
The Court notes that:
(a)the Authority Decision was made before the High Court judgment in AUS17 was delivered; and
(b)the Minister accepts that the Authority did not expressly refer to s 473DD(b)(i) or (ii) of the Migration Act before considering s 473DD(a) of the Migration Act, and therefore made an error with respect to its consideration of s 473DD of the Migration Act, but submits that this error was not a material error, and therefore not a jurisdictional error.
In CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47 at [47] per Kiefel CJ and Gageler J it was observed that the determination of materiality involved:
…a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation:
In MZAPC at [28] per Kiefel CJ, Gageler, Keane and Gleeson JJ the majority plurality in the High Court stated that whether the decision in fact made could have been different if the statutory condition had been complied with, “falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities”. Their Honours then stated that:
[39]Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
The Minister does not contend that ABF19 could not discharge the burden of showing that there was a realistic possibility that the Authority could have made a different decision with respect to s 473DD of the Migration Act had it approached its task under s 473DD of the Migration Act in compliance with the requirements set out in AUS17, but rather that ABF19 cannot discharge the burden of showing that there was a realistic possibility that the Authority could have made a different decision with respect to the SHE Visa application had it considered the new information.
The issue is whether a proper consideration of the new information, and in particular the Death Certificate, based on the requirements in AUS17, could have affected the Authority’s consideration of ABF19’s claims to have assisted the LTTE in its smuggling operations and his association with SK, allegedly a close relative who was a high-ranking member of the LTTE.
In relation to the Death Certificate:
(a)it does not contain information corroborating evidence given by ABF19 that was rejected by the Authority;
(b)the Authority’s reasons as to its non-acceptance of ABF19’s evidence about having a cousin SK in in the LTTE a high ranking role, and of ABF19’s alleged involvement in any smuggling operations:
(i)were considered; and
(ii)did not turn on whether ABF19 had a cousin called SK (as opposed to whether he had a cousin in the LTTE) or whether that cousin was now dead at all (as opposed to the manner of his death);
(c)the nature of the consideration that the Death Certificate might have required the Authority to engage in, if satisfied that it could consider the Death Certificate, were in effect made by the Authority in its consideration of exceptional circumstances or as part of the ultimate outcome of its review: AZT22 at [80]-[81] per Banks-Smith and Jackson JJ; ABH18 v Minister for Home Affairs [2020] FCA 620 at [45] per Charlesworth J; AIB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1017 at [24] per Judge Egan; and
(d)the Authority’s observations concerning the Death Certificate are sustainable given that there is nothing in the Death Certificates which supports:
(i)a claim that SK and ABF19 were cousins (the Authority appearing to have left open whether ABF19 did have a cousin called SK: see [13(g)(i)(B), (iv) and (ix)] above); and
(ii)ABF19’s contentions:
(A)about how and when SK died; and
(B)that SK was a member of the LTTE.
In the circumstances set out above the Court is satisfied that the error conceded by the Minister, namely that the Authority had failed to consider whether the Death Certificate met either of the two criteria set out in s 473DD(b) of the Migration Act before the Authority considered whether there were exceptional circumstances under s 473DD(a) of the Migration Act which warranted it considering the new information, was not a material one, and therefore there was no jurisdictional error in this respect.
Jurisdictional error otherwise
The Court is cognisant that ABF19 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.
CONCLUSION AND ORDER
The Court has concluded that ABF19 has failed to establish jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 1 July 2024
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