ABG19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 780
•28 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABG19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 780
File number(s): ADG 6 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 28 August 2024 Catchwords: MIGRATION – Judicial review application – decision of the Immigration Assessment Authority – citizen of Sri Lanka of Tamil ethnicity – claims of persecution on basis of ethnicity, perceived support for Liberation Tigers of Tamil Eelam, Australian Government data breach and asylum seeker status - single unparticularised ground of review – whether jurisdictional error otherwise – whether material jurisdictional error
EVIDENCE – New evidence – evidence post-dated decision of Immigration Assessment Authority – evidence not indicative of jurisdictional error – evidence irrelevant –evidence inadmissible
Legislation: Evidence Act 1995 (Cth), s 56(2)
Migration Act 1958 (Cth), ss 5H, 5J, 36, 473CA, 474GB, 474 and 476
Cases cited: ALD15 v Minister for Immigration and Border Protection [2018] FCA 94
ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
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
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1
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
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164
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
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 M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZWAJ v Minister for Immigration and Border Protection [2016] FCA 1173
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 5 June 2024 Date of hearing: 5 June 2024 Place: Perth Applicant: In person with the assistance of an interpreter Counsel for the First Respondent: Ms M Pappas Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 6 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABG19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
28 AUGUST 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, ABG19, has made an application seeking judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively). The Authority Decision affirmed a decision of a delegate (“Delegate’s Decision” and Delegate” respectively) of the now Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) not to grant ABG19 a Safe Haven Enterprise (subclass 790) visa (“SHE Visa”).
The Authority Decision is in the Court Book (“CB”) at CB 208-226.
BACKGROUND
The background to this matter prior to the Authority Decision is as follows:
(a)ABG19 is a national of Sri Lanka of Tamil ethnicity and follows a Christian religion: CB 74 and 76;
(b)ABG19 arrived in Australia on 31 May 2013 by boat as an unauthorised maritime arrival, together with his father and older brother: CB 11, 81 and 154;
(c)in his entry interview on 7 June 2013 ABG19 was asked why he couldn’t live in Sri Lanka to which he responded “I don’t know – you have to ask my father”: CB 14;
(d)in February 2014 some of ABG19’s personal information was unintentionally released on an Australian Government website (“Data Breach”): CB 34;
(e)on 20 December 2016 ABG19 applied for a SHE Visa claiming fear of persecution based upon his:
(i)Tamil ethnicity;
(ii)perceived support for the former Liberation Tigers of Tamil Eelam (“LTTE”) based upon his father’s support for them; and
(iii)having sought asylum in Australia and the potential that his personal details were publicly available on the internet as a result of the Data Breach: CB 40;
(f)more specifically, ABG19 claimed that:
(i)his father was a fisherman who during the civil war in Sri Lanka was forced to assist the LTTE, and in 1986 was detained for two months and tortured by the Sri Lankan Army (“SLA”);
(ii)in 1990 his family fled to India, and ABG19 was later born in Tamil Nadu, India; and
(iii)Sri Lankan authorities are interested in his father and his relatives: CB 38-39; 107-109 and 156;
(g)on 23 January 2018 ABG19 attended an interview with the Delegate (“Delegate’s Interview”): CB 111 and 157;
(h)at the Delegate’s Interview ABG19 made the following additional claims:
(i)in 2007-2008 ABG19 and his older brother assisted their cousin SK, who was the head of the LTTE Sea Tigers, with transporting goods and weapons for the LTTE; and
(ii)in 2008 SK was captured by the Sri Lankan Government and killed. SK’s family were also killed. Before being killed, SK disclosed ABG19’s involvement with the LTTE: CB 157;
(i)on 22 June 2018 the Delegate refused to grant ABG19 a SHE Visa. In summary, the Delegate:
(i)accepted that ABG19 was a Tamil born in Tamil Nadu in India and that ABG19’s father assisted the LTTE before moving to Tamil Nadu in 1990; and
(ii)did not accept that ABG19 and his older brother were involved in transporting weapons or other goods for the LTTE, or that ABG19 had a cousin SK, and found these claims to be vague, lacking in detail and only raised for the first time at the Delegate’s Interview: CB 162-164;
(j)on 22 June 2018 a Delegate issued a certificate under s 473GB of the Migration Act (“473GB Certificate”) regarding documents and information relating to ABG19’s father and older brother: CB147-148; and
(k)on 27 June 2018 the Delegate’s Decision was referred to the Authority for review under s 473CA of the Migration Act: CB 178.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)had regard to written submissions provided to the Authority by ABG19 on 15 July 2018: CB 200-204, which addressed the Delegate’s Decision and did not contain any new information: CB 209 at [4];
(b)accepted that ABG19 was a Tamil born in Tamil Nadu, India: CB 210 at [7], and it determined that ABG19 had no right to enter and reside in India and was satisfied that Sri Lanka was the receiving country: CB 210 at [7];
(c)accepted that ABG19’s father was forced to assist the LTTE and was subsequently detained and mistreated by the SLA in 1986, and that when he was released was warned not to help the LTTE again: CB 211 at [11];
(d)found that ABG19’s father was subsequently questioned by the SLA about assisting the LTTE, but that he was not detained: CB 211 at [11];
(e)was satisfied that when ABG19’s father departed Sri Lanka with his family in 1990 he was no longer of any significant interest to the SLA: CB 211 at [11];
(f)did not accept that ABG19 and his older brother assisted their cousin SK with the transport of goods and weapons for the LTTE: CB 211-212 at [12], or that SK was the head of the LTTE Sea Tigers, principally because ABG19:
(i)did not raise the information before the Delegate’s Interview: CB 211-212 at [12]-[13];
(ii)could provide little information about his cousin SK’s role: CB 212 at [14]; and
(iii)found that ABG19 was inconsistent about how he assisted his cousin SK and that it was unlikely that the LTTE Sea Tigers would use a non-member for transportation of items: CB 213 at [16];
(g)did not accept that SK was detained, tortured and killed, or that he disclosed ABG19’s alleged involvement helping the LTTE: CB 213 at [17], especially as ABG19 was never questioned by the Sri Lankan authorities as a result: CB 214 at [20];
(h)found that, contrary to ABG19’s claims, although the disclosure of his personal details may have been accessed by Sri Lankan authorities due to the Data Breach, the reasons for his claims for protection were not published: CB 216 at [27];
(i)assessed the factual findings against the criteria for a refugee under ss 5H(1) and 5J of the Migration Act, and referred to country information as to the current situation in Sri Lanka for Tamils: CB 217-218 at [31]-[35];
(j)determined that Tamil ethnicity in itself does not give rise to a real chance of persecution: CB 218 at [35], and that whilst a person having a significant role with the LTTE may give rise to a greater risk of persecution, ABG19 was not such a person: CB 218-219 at [36], [39] and [41];
(k)accepted that ABG19 may be monitored on return to Sri Lanka and may experience social stigma as a returned asylum seeker, but was not satisfied that there was a real chance of serious harm for ABG19 by reason of being a returned asylum seeker: CB 220 at [44]-[48]; and
(l)concluded that ABG19 did not have a well-founded fear of persecution in Sri Lanka and did not meet the definition of a refugee under s 5H(1) of the Migration Act, nor meet s 36(2)(a) of the Migration Act: CB 221 at [50], and that for similar reasons ABG19 did not meet the complementary protection criteria under s 36(2)(aa) of the Migration Act: CB 222 at [57].
JUDICIAL REVIEW APPLICATION
Ground
There is a single unparticularised ground of review in the Judicial Review Application, namely, “that the IAA has made a jurisdictional error in my case.”
Litigation history in this Court
It is appropriate to set out the litigation history of the matter in this Court, 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 8 February 2019 the Minister filed a response seeking that the Judicial Review Application be dismissed on the basis that it did not establish any 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 orders to the following effect:
(i)that ABG19 have leave to file and serve any amended Judicial Review Application and such further material that he may rely upon at the hearing by 7 June 2019;
(ii)the Judicial Review Application be listed for a final hearing on a date to be advised; and
(iii)the matter be listed for a directions hearing on 12 June 2020;
(d)ABG19 did not file any documents pursuant to 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)nothing further occurred with the matter for more than three years until in February 2023 the matter was docketed to the presently presiding Judge, and a directions hearing was listed for 27 March 2023;
(g)at the 27 March 2023 directions hearing the Court:
(i)explained to ABG19 that he needed to establish material jurisdictional error in the Authority Decision, the nature of jurisdictional error, and that the Court was not re-hearing the merits of the SHE Visa application; and
(ii)made orders (“Court’s March 2023 Orders”) setting aside the Registrar’s March 2019 Orders, and making further orders, including orders:
(A)that ABG19 file and serve any amended Judicial Review Application, further affidavits, and an outline of submissions by 28 August 2023;
(B)that the Minister file and serve any amended response, affidavits in reply, and an outline of submissions by 26 September 2023; and
(C)listing the matter for final hearing on 23 October 2023;
(h)on 12 September 2023 the parties were advised that due to reasons associated with judicial hearing workloads and case management that the final hearing of the matter had been re-listed to 5 June 2024;
(i)the Minister filed an outline of submissions on 20 September 2023;
(j)the final hearing of the matter proceeded on 5 June 2024, and at the final hearing the Court:
(i)heard oral submissions from both ABG19 and the Minister;
(ii)referred to what had been said at the 27 March 2023 directions hearing that ABG19 needed to establish material jurisdictional error in the Authority Decision, and the nature of jurisdictional error, and that the Court was not re-hearing the merits of the SHE Visa application; and
(iii)told ABG19 that the final hearing was not an opportunity to re-run his merits case, or to run a new merits case based on new documents which he sought to tender (as to the new documents sought to be tendered and the Court’s consideration of them see [7] and [13]-[15] below).
Submissions
ABG19’s oral submissions
Tender of documents
At final hearing ABG19 sought to tender five documents, each of which was marked for identification (Transcript, pp 5-6), as follows:
(a)a letter of reference dated 6 July 2023 from ABG19’s current Australian employer, attesting to ABG19’s qualities as an employee (MFI-1);
(b)a letter dated 25 November 2022 from the Regional Co-ordinator of the Human Rights Commission of Sri Lanka (“HRCSL”) in ABG19’s locality to the officer-in-charge of the police station in the same locality, and its English translation, advising that a complaint had been made by a person, apparently ABG19’s father (MFI-2);
(c)a copy of the complaint dated 25 November 2022 made to the HRCSL (“HRCSL Complaint”), and its English translation (MFI-3);
(d)an acknowledgement from the HRCSL, in Sinhalese, Tamil and English, of the receipt of the HRCSL Complaint (MRI-4); and
(e)a Sri Lankan Police message form dated 22 August 2023 comprising a handwritten message on a pre-printed form inviting ABG19’s father to meet certain persons from the “Criminal Investigation Department” at a specified later date, and its English translation (MFI-5).
The admissibility of the above documents is dealt with below: see [13]-[15] below.
Oral submissions
In oral submissions at final hearing ABG19 (Transcript pp 3-4, 6-7 and 8-9) submitted that:
(a)ABG19’s father had returned to Sri Lanka because ABG19’s mother was unwell;
(b)ABG19’s father was arrested at the airport upon his return to Sri Lanka from Australia and detained for two days;
(c)after ABG19’s father returned to his home in Sri Lanka ABG19’s father was then “further arrested, mistreated and tortured”;
(d)“they” (in context a reference to the Sri Lankan authorities) had taken “all … relevant information” from ABG19’s father, including photos of ABG19 and ABG19’s father taken at Sydney Airport in 2014, and so if ABG19 were to return to Sri Lanka his life would be in danger;
(e)it was the Data Breach which caused the Sri Lankan authorities to receive information, including names and addresses, which resulted in the arrest of ABG19’s father upon his return to Sri Lanka, and that if ABG19 is returned he “will face the same fate”;
(f)ABG19’s older brother has been falsely implicated and imprisoned and the Sri Lankan authorities have obtained further information about “us” from ABG19’s older brother;
(g)there are “no guarantees to safety … or life” for ABG19 in Sri Lanka, and the Australian Government needs to provide him with protection; and
(h)ABG19 provided “the truth about our claims” to the Authority, but the Authority did not accept or understand them.
Minister’s submissions
In the Minister’s written and oral submissions (Transcript, pp 7-8) the Minister:
(a)objected to the new documents sought to be tendered by ABG19 because they:
(i)post-dated the Authority Decision, and therefore could not have been before the Authority or the Delegate;
(ii)did not disclose jurisdictional error in the Authority Decision, and
(iii)sought impermissible merits review of the Authority Decision;
(b)submitted that:
(i)ABG19 had:
(A)failed to identify any jurisdictional error in the Authority Decision;
(B)sought to put to the Court further facts (that is, facts post-dating the Authority Decision) which is impermissible;
(ii)the Authority’s finding as to the Data Breach – that it would not be of any consequence to ABG19 as a Tamil asylum seeker returning to Sri Lanka – was a finding open to be made by the Authority on the evidence and materials before it;
(iii)there were no adverse credibility findings in relation to ABG19, and therefore no unreasonable failure to invite ABG19 to an interview before the Authority;
(iv)the factual findings made by the Authority were open to be made by the Authority on the evidence and materials before it; and
(v)the Authority correctly understood and applied the relevant legislative principles.
Consideration
Material jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Authority 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 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the High Court said that:
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Not merits review
The Court’s role is not to review the merits of the Authority Decision: 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”). The “line between judicial review and merits review…must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and, as such, the Court does not undertake a fresh merits review of an applicant’s case. Further, the reasons of the Authority are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.
New evidence
In this matter ABG19 seeks to have the Court have regard to new evidence as set out at [7] above. The new evidence to which ABG19 seeks the Court to have regard post-dates the Authority Decision by between three years and eleven months and four years and eight months. Further, in relation to the employment reference (MFI-1) which relates to ABG19’s performance in his employment in Australia as an abrasive blaster and industrial spray painter since February 2021, that is irrelevant to any of the criteria for the grant of the SHE Visa.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164 at [28] per Beach, Thawley and Cheeseman JJ the Full Court of the Federal Court observed as follows:
The question whether the IAA’s decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision‐making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision‐making authority, is answered by reference to the circumstances as they existed at the time the decision‐making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision. This point was made by Steward J in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] HCA Trans 118:
In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision‐making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made
and by Mortimer J in Parker v Minister for Immigration & Border Protection [2016] FCAFC 185; (2016) 247 FCR 500 at [77] (see also at [60] per Griffiths and Perry JJ):
The appellant’s submission that the “outcome” of the Minister’s cancellation decision is, after the annulment, legally unreasonable misunderstands the Court’s function on judicial review. The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction, or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular cases), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister’s decision, that could not be the case.
This aspect of the decision in Parker was, unlike other aspects of the decision, not doubted by the High Court in Minister for Immigration & Border Protection v Makasa [2021] HCA 1; 95 ALJR 117; 386 ALR 200 , see in particular at [59].
In the circumstances the new evidence, all of which post-dates the Authority Decision, is irrelevant, and the employment reference (MFI-1) is otherwise irrelevant in any event. Irrelevant evidence is inadmissible: Evidence Act 1995 (Cth), s 56(2), and it follows that the new evidence sought to be relied on by ABG19 is inadmissible and the Court can have no regard to it.
No jurisdictional error alleged or particularised in single ground of review
It is well established that on the hearing of the Judicial Review Application ABG19 bore the onus of establishing jurisdictional error in the Authority Decision: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8 at [24] per French CJ, Bell, Keane and Gordon JJ; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [67] per Gummow J (Heydon J agreeing at [91] and Crennan J agreeing at [92]).
Having regard to the litigation history of the Judicial Review Application set out at [6] above it is evident that ABG19 had a number of opportunities to file material setting out an alleged jurisdictional error in the Authority Decision. The first opportunity was on the filing of the Jurisdictional Review Application, but that opportunity was not taken. The second opportunity was as a consequence of the Registrar’s March 2019 Orders which permitted ABG19 to file an amended Judicial Review Application and further material by 7 June 2019, but ABG19 did not do so. The third opportunity was as a consequence of the 27 March 2023 directions hearing, at which ABG19 appeared via CISCO Webex and had the assistance of an interpreter, and at which the Court’s March 2023 Orders were made allowing ABG19 to file an amended Judicial Review Application, any further affidavits and an outline of submissions. At the 27 March 2023 directions hearing the nature of, and requirement to establish, material jurisdictional error affecting the Authority Decision, was explained to ABG19, and ABG19 was told that the Court did not engage in merits review of the Authority Decision. ABG19 did not file any further documents as a result of the Court’s March 2023 Orders. At the final hearing, at which ABG19 appeared by video-link and again had the assistance of an interpreter, the Court referred to what it had said to ABG19 at the 27 March 2023 directions hearing about ABG19 needing to establish material jurisdictional error in the Authority Decision and that the Court was not re-hearing the merits of the SHE Visa application. In the circumstances, the Court is satisfied that ABG19 had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]-[9] per Colvin J; 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 ABG19 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 ground 1, is sufficient reason to warrant this Court dismissing ground 1 of the Judicial Review Application: 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); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW.
Jurisdictional error otherwise
The Court is cognisant that ABG19 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 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [26] per Judge Lucev.
The Authority’s reasons demonstrate a thorough and considered analysis of ABG19’s claims in that:
(a)the Authority accepted ABG19’s father was forced to assist the LTTE before leaving Sri Lanka in 1990, but was satisfied that by the time ABG19’s father left Sri Lanka in 1990 he was no longer of any significant interest to the SLA: CB 211 at [11];
(b)like the Delegate, the Authority had significant concerns in relation to:
(i)ABG19’s claim that he and his older brother assisted with the transport of goods and weapons for the LTTE in 2007-2008, a claim which was not raised until the Delegate’s Interview: CB 211-212 at [12]-[13]; and
(ii)inconsistencies in ABG19’s account as to how the assistance was provided: CB 213 at [16];
(c)claims relating to SK were also raised for the first time at the Delegate’s Interview, and the Authority found that it was implausible that SK was detained and tortured by the Sri Lankan authorities, that he disclosed ABG19’s involvement and identity, and that before he was killed ABG19’s aunty had visited SK in detention and he had told her that he had disclosed ABG19’s assistance provided to the LTTE to the Sri Lankan authorities: CB 213 at [17]; and
(d)having made these findings, which were open on the evidence and materials before the Authority, the Authority comprehensively considered country information in relation to the plight of Tamils in Sri Lanka, which the Authority found confirmed there was not a real chance of persecution of ABG19: CB 218 at [35]. The Authority also considered country information in relation to returning failed asylum seekers, finding that whilst it was possible that ABG19 might be monitored on return and experience social sigma, this would not expose ABG19 to a real chance of serious harm as a returned asylum seeker: CB 220 at [44].
In relation specifically to the Data Breach the fact of the Data Breach was accepted and not in dispute, and the consequences of the Data Breach, which only went to ABG19’s personal information and not to the reasons for or claims made in relation to refugee or complementary protection, were considered by the Authority, and found not to be of any consequence in the context of ABG19 being an asylum seeker returning to Sri Lanka: CB 216 at [27] and 220-221 at [48]. Given that the Authority considered the Data Breach and did so in the context of whether or not ABG19 might be of any interest, adverse or otherwise, to the Sri Lankan authorities and concluded that that would not be the case, for the Court to make a different factual finding would be to use a judicial review application to engage in impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Authority having set out and understood, and then considered, the particular circumstances of the Data Breach claim, and arrived at a conclusion which was open to it, is not, without more, indicative of jurisdictional error: SZWAJ v Minister for Immigration and Border Protection [2016] FCA 1173 at [32] per Griffiths J; ALD15 v Minister for Immigration and Border Protection [2018] FCA 94 at [51], [66] and [75] per Barker J.
It is thus evident that overall the Authority made a logical and considered decision and that the Authority engaged with the claims made by ABG19, 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 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. In the circumstances, the Authority Decision was one that was open to it 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. While ABG19 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 the Court cannot 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.
The Court notes that the Authority was not obliged to disclose the 473GB Certificate to ABG19, nor to provide reasons for the exercise or non-exercise of the power in s 473GB(3)(b) of the Migration Act: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [2] and [40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, and no jurisdictional error arises in this respect.
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 ORDERS
The Court has concluded that ABG19 has failed to establish material jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 28 August 2024
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