AGE17 v Minister for Immigration
[2019] FCCA 2887
•11 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGE17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2887 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) of a decision made by Immigration Assessment Authority (Authority) affirming decision not to grant Temporary Protection visa – whether Authority erred in concluding certain information provided to it after delegate’s decision was “new information” – whether Authority acted unreasonably in not considering to invite or not inviting applicant to comment on finding the Authority made or proposed to make that certain information was “new information” – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J(1), 36(1)(aa), 65, 473DC, 473DD, 476 Migration Regulations 1994 (Cth), Schedule 1, Part 3 |
| Cases cited: ANO16 v Minister for Immigration and Border Protection [2019] FCA 59 DHV16 v Minister for Immigration and Border Protection [2018] FCCA 349 EKW17 v Minister for Immigration and Border Protection [2018] FCA 1366 |
| Applicant: | AGE17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 137 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 26 September 2019 |
| Date of Last Submission: | 26 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers |
| Counsel for the First Respondent: | Ms K Hooper |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 137 of 2017
| AGE17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Sri Lanka, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV). The grounds on which the applicant relies relate to the Authority’s consideration of photographs the applicant’s representative provided to the Authority after the delegate made his decision not to grant the applicant a TPV.
To be in a position to consider the applicant’s claims, it will be necessary to set out the claims for protection the applicant made in his application for a TPV and before the delegate, the delegate’s reasons for not granting the applicant a TPV, and the information the applicant, through his representative, presented to the Authority after the delegate made his decision.
Claims for Protection
The applicant stated his claims for protection in his application for a TPV.[1] He there claimed he is a Tamil, and a citizen of Sri Lanka from the Batticaloa district in the Eastern Province. When he was in year 9 people would throw stones at the family home while his family were sleeping. On one occasion a group of armed people with face coverings broke down the door and assaulted the applicant’s father. His father always had problems with the army and police. The applicant’s father’s brother was shot and killed by the army. The applicant’s father supported the Tamil National Alliance (TNA). He sent the applicant’s brother to Saudi Arabia. The applicant’s father then left Sri Lanka for Australia illegally by boat. That occurred in 2012. The applicant was scared to live in Sri Lanka. His uncle arranged for the applicant to join his father in Australia.
[1] CB46-48
The applicant claimed that if he returns to Sri Lanka, he will be held in Negombo remand unit for up to two weeks and convicted of leaving Sri Lanka illegally. He will be interrogated about how he left illegally, about the boat journey to Australia, his associates and activities in Australia, and about his father. The applicant fears he will be treated in a cruel, inhuman, and degrading manner because he is a Tamil, and because two of his uncles were killed during the war as they were suspected of being Liberation Tigers of Tamil Eelam (LTTE).
The applicant also claimed that the Department of Immigration and Border Protection (Department) disclosed his name, personal details, and reasons for detention on its website from 10 to 19 February 2014 (Data Breach).
Claims before the delegate
The delegate interviewed the applicant on 24 June 2016 (TPV interview). According to the delegate’s decision record, the applicant was unable to provide “crucial information”.[2] When asked how his uncles were involved with the LTTE the applicant said he did not know much about his uncles. When asked about how he knew the applicant’s uncles were involved with the LTTE, the applicant said his father went to the LTTE office to find out whether his uncle (the applicant’s mother’s brother) was alive or dead, and while there photographs were taken with members of the LTTE.
[2] CB155
The applicant informed the delegate that his mother’s brother had two names; one, his actual name, and the other, his LTTE name. The applicant said he knew his uncle’s LTTE name because his father told him. The applicant said he did not ask his father much about his uncle. The applicant said he saw the photo and the applicant’s father said: “this is your uncle”.[3] The applicant also claimed at the TPV interview that another uncle – his father’s brother – was rounded up by the SLA and taken away, and that he later died in a bomb explosion.
[3] CB155
In answer to the delegate’s question about how the applicant believed he is suspected of having links to the LTTE, the applicant said people had broken into their home, and beat the applicant’s father. The applicant said it was this incident that led to his father sending the applicant’s older brother to Saudi Arabia.[4]
[4] CB156
The applicant also claimed at the TPV interview that his mother spoke to the applicant’s uncle about sending the applicant away after the applicant’s mother received a letter from the Criminal Investigation Department (CID) requesting the applicant to come in for questioning. The applicant said the CID handed the letter to the next-door neighbours who brought it to where his mother was.[5] The applicant provided to the delegate at the TPV interview a letter dated 12 August 2012 purportedly from the Sri Lanka Police, and a translation of that letter.[6] The letter sates:
We received information that . . . of . . . joined with his wife’s brother . . . Member of Tamil Liberation Tiger and granted full support to them, Now . . . lives in hideout as such Criminal Investigation Department has requested his son . . . NIC Number . . . . come for an inquiry on 2012.08.15 to the Police Station . . .
[5] CB156
[6] CB123-124
After the TPV interview the applicant provided to the delegate three photographs and a statutory declaration in which the applicant declared that the “photographs attached show that my uncle was an LTTE fighter”.[7] There is handwriting under each photograph. Under one photograph there is written: “Applicant’s grandfather & father at uncle’s shrine, 2007 with Tamil Tiger symbol above”. Under another photograph there is written: “LTTE fighters carrying uncle’s shrine in Bshmadu, Batticaloa, 2007 (in front of LTTE Camp’s [sic]) Martyrs Memorial Hall”. There is an arrow above the word “uncle’s” pointing towards a shrine held by two men. Above the writing there is written “Applicant’s father” above which there is an arrow pointing towards a man. Under the third photograph there is written: “Applicant’s aunt and mother preparing uncle’s shrine with an LTTE fighter in background, 2007”.
[7] CB141, 143
After the TPV interview the applicant also provided a psychological assessment report in relation to his father.[8] The report concluded the applicant’s father is experiencing symptoms reflective of post-traumatic stress disorder and major depressive disorder.
[8] CB119-122
Delegate’s decision
The delegate found the applicant not to be a credible witness “in this regard”, namely, in his claims that people had forced their way into the family home, broke his father’s nose, and that his mother received a letter from the CID seeking to question the applicant. The delegate accepted it was possible that strangers broke into the applicant’s home and attacked his family, but the delegate considered there was insufficient evidence to find these individuals were Sri Lankan authorities, and that that incident arose from his uncle’s purported affiliation with the LTTE. Although the delegate accepted the applicant would have been young at the time of this incident, and that his father is mentally unwell, and, for that reason, may be unable to provide information, the delegate did not accept the applicant “would fail to garner information through other connections, such as his mother (whose brother is claimed to have been in the LTTE)”.[9]
[9] CB156
The delegate did not consider the photographs to be persuasive evidence, and the delegate could not verify their authenticity. Although the delegate acknowledged the applicant’s claim of attack he made before the delegate was consistent with what he claimed at his arrival interview, the delegate found the “applicant was unable or unwilling to explain how his uncle was affiliated with the LTTE, how this affiliation has been identified by Sri Lankan authorities and how it has drawn adverse interest from authorities”. The delegate, therefore, was not satisfied the applicant was of ongoing interest to Sri Lankan authorities due to his uncles’ real or perceived affiliation with the LTTE, or for his father’s affiliation with the TNA, or for any other reason.[10]
[10] CB156
Before the Authority
By letter dated 30 September 2016 the Authority provided to the applicant a number of documents, including one headed “Practice Direction for Applicants, Representatives and Authorised Recipients”. The Practice Direction stated the applicant may provide a written submission on why he disagreed with the decision under review, and on whether the decision-maker overlooked any claim or matter the applicant presented in support of his claim. The Practice Direction further stated that the Authority can only consider new information (which the Practice Direction explained was “information that was not before the Department”) in the “very limited circumstances set out in s.473DD of the” Act, and set out what those circumstances are.
By email sent to the Authority on 14 October 2016 the applicant’s representative provided a letter dated 14 October 2016 which contained submissions on country information, and a statutory declaration by the applicant.[11] In that statutory declaration the applicant claimed he left Sri Lanka because he feared he would be tortured and killed by the CID; the applicant’s mother will provide a letter to demonstrate that she continues to be harassed by the CID; after the applicant left Sri Lanka the CID have been visiting the applicant’s mother’s house twice a month searching for the applicant and his father; the applicant continues to be of interest to the CID “because of the association of my uncle who was a member of the LTTE and my uncle who was killed”; the letter from the CID he had provided is genuine; and the “photograph I provided to the Department of Immigration showing my father together with a framed photograph of my “martyr” uncle is genuine”, and that he “will endeavour to provide Immigration with photographs of my father and uncle to prove they are the same people as depicted in the photo they have received”. In her email to the Authority, the applicant’s legal representative said she was hoping “to submit further evidence consisting of a letter of verification from the applicant’s mother plus a couple of photographs of his uncle and father”.
[11] CB194-199
By further email sent to the Authority on 14 October 2016 (second 14 October 2016 email) the applicant’s legal representative attached “additional evidence from applicant’s mother”.[12] The legal representative stated:
Photographs of applicant’s father and uncle verifying photos submitted at PV interview of father and uncle at uncle’s LTTE memorial are genuine. The assessor doubted their veracity.
[12] CB200
By email sent half an hour later the Authority informed the applicant’s legal representative that the documents the applicant’s legal representative had attached to her earlier email were too small to view and illegible, and enquired whether the legal representative would be able to provide the Authority with a legible copy.[13] The applicant’s legal representative responded by email sent on 15 October 2016 in which she stated that she would endeavour to scan the document.[14] A half an hour later the applicant’s legal representative sent an email (second 15 October 2016 email) which included the following statements:[15]
[13] CB200
[14] CB204
[15] CB204
The attached documents and photos accompany our initial submission.
The letters verify the statement [the applicant] made in his interview with the Department.
The photographs verify [the applicant’s] father and uncle are the same people depicted in the photographs given to the Department that showed the applicant’s father at the ‘martyrs’ memorial service for his uncle who was a member of the LTTE.
The second 15 October 2016 email attached two letters, each purportedly from the applicant’s mother.[16] The email also attached two photographs. One photograph depicts two males and one female.[17] The two males have posed for the photograph. One appears to be a middle-aged adult, and the other an adolescent. The other photograph captures one young male adult who has posed for the photograph.[18] The young adult is in a uniform, and is wearing a cap.
[16] CB205, 206
[17] CB207
[18] CB208
Authority’s reasons – new information
The Authority first identified the information that was before it, and, in particular, information it considered to be “new information” within the meaning of s.473DC of the Act.[19] The Tribunal undertook these tasks because of s.473DD of the Act, which provides:
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.
[19] Subsection 473DC(1) of the Act defines “new information” as any documents or information that, in relation to a “fast track decision”, “were not before the Minister when the Minister made the decision under section 65”, and which “the Authority may consider to be relevant”.
“New information” is defined in s.473DC of the Act as any documents or information that, in relation to a “fast track decision”, “were not before the Minister when the Minister made the decision under section 65”, and which “the Authority may consider to be relevant”.
The Authority identified and considered whether the following information was new information and, if so, whether, having regard to s.473DD of the Act, it should have regard to the following information:
a)The submissions the applicant’s representative made in her letter dated 14 October 2016. The Authority considered this not to be new information, but submissions.
b)Country information referred to in submissions referred to in (a) that was not before the Tribunal. The Authority considered this was “new information”, and was not satisfied the s.473DD(b) of the Act applied to that information.
c)The applicant’s statutory declaration made on 14 October 2016. The Authority did not consider the statutory declaration to be new information because it restated in short form the applicant’s claims, and responded to some of the delegate’s findings.
d)The information provided by the applicant’s mother. The Authority considered this to be new information and the Authority was not satisfied s.473DD of the Act applied to this information.
The applicant does not claim the Authority made any jurisdictional error in the manner in which it dealt with this information and, for that reason, nothing turns on the Authority’s treatment of that information. The applicant, however, submits the Authority made a jurisdictional error or errors in the manner in which it dealt with the photographs. Relevant to the applicant’s grounds is the following passage from the Authority’s reasons:[20]
In relation to the photos, no information has been provided which would assist me to understand who is represented in the photos or how the photos are relevant to the applicant’s claims. No explanation has been provided regarding why the new information provided by the delegate’s [sic – should read “applicant’s”] mother was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant’s claims. I am not satisfied in relation to the matters set out in s.473(DD)(b) [sic] of the Act.
[20] CB215, [5]
It is convenient to note at this point that the Minister submits the Authority overlooked the submissions the applicant’s representative made in the second 14 October 2016 email and the second 15 October 2016 email, and “that was an error by the Authority in its application of s 473DD of the photographs”.[21]
[21] First Respondent’s Written Outline Submissions, [16]
I am not satisfied the Authority overlooked the contents of the second 14 October 2016 email or of the second 15 October 2016 email and, for that reason, made an error.
a)First, the Authority referred to the applicant’s legal representative’s having sent to the Authority on 14 October 2016 letters from the mother and “what appear to be two family photos”. Given these documents had been provided to the Authority by email, it is difficult to infer the Authority did not acquaint itself with the contents of the email by which the photographs had been sent to the Authority.
b)Second, the Authority described the photographs as appearing to be “two family photos”. There is no writing on the photographs that would identify them as family photographs; the only other information that could have suggested the photographs were family photographs is what the applicant’s legal representative stated in her emails, namely, that they are photographs of the applicant’s father and uncle. This suggests the Authority at the very least read the second 14 October 2016 email.
c)Third, the Authority did not say that no information was provided to it about who is represented in the two photographs, or how the photographs are relevant to the applicant’s claims; what the Authority said is that no information was provided to it that “would assist” the Authority “to understand” who is represented in the photographs, or how they are relevant to the applicant’s claims. That statement appears to be directed, not to the absence of any information about what the two photographs represent and their relevance, but to what the applicant’s representative said about those matters in the second 14 October 2016 email and the second 15 October 2016 email. What the representative there said were bald assertions to the effect that the photographs verified the applicant’s father and uncle are the same persons depicted in the photographs the applicant gave to the Department. The representative did not make any submission about how the photographs provided such verification, or about how the photographs could otherwise be relevant to the applicant’s claims. It would have been reasonably open to the Authority to characterise the representative’s bald assertions as information that did not assist the Authority “to understand” who is represented in the photographs or how they are relevant to the applicant’s claims; and, in my opinion, that is what the Authority intended to convey when it said that “no information has been provided which would assist me to understand who is represented in the photos or how the photos are relevant to the applicant’s claims”.
Although I am not satisfied the Authority did not read or consider the contents of the second 14 October 2016 email or the second 15 October 2016 email, I will consider at the end of these reasons what, if anything, turns on the correctness of the Minister’s submission that the Authority overlooked the submissions the applicant’s representative made in the second 14 October 2016 email and in the second 15 October 2016 email.
Authority’s reasons – applicant’s claims for protection
The Authority first considered whether the applicant was a “refugee” within the meaning of s.5H(1) of the Act which, in turn, led it to consider whether the applicant had a “well-founded fear of persecution” within the meaning of s.5J(1) of the Act. The Authority considered the applicant claimed he had a well-founded fear of persecution because:
a)the applicant’s family had connections with, or the applicant’s family might be perceived to have connections with, the LTTE;
b)the applicant was a Tamil;
c)the applicant’s father supported the TNA;
d)the Data Breach;
e)the applicant left Sri Lanka illegally, and, if required to return to Sri Lanka, will return as a failed asylum seeker.
The Authority was not satisfied the applicant had a well-founded fear of persecution for any of these reasons; and largely on the basis of findings it made in concluding the applicant is not a “refugee”, the Authority was also not satisfied the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. It is unnecessary to set out the Authority’s reasons other than those that relate to the Authority’s not accepting the applicant had a well-founded fear of persecution because his family was or might be perceived to have been connected to the LTTE. In relation to that claim, the Authority concluded as follows:[22]
. . . . I am not satisfied the applicant is suspected of having a link to the LTTE through his uncles and maybe even his father or that he is, as a result, at any risk of harm from the Sri Lankan authorities on the basis of those imputed family connections to the LTTE.
[22] CB220, [19]
The Authority relied on the following findings and matters:
a)Although the Authority accepted the applicant’s family home was targeted in the way described in May 2012; and it was prepared to accept that this incident was the catalyst for the applicant’s father sending the applicant’s brother to Saudi Arabia, and the applicant leaving Sri Lanka for Australia, it was not satisfied that the incident at the applicant’s family home was in any way connected with the applicant’s family’s purported LTTE affiliations.[23] The Authority relied on the applicant’s being unable to provide any details about his uncle’s LTTE membership, work, or affiliation; on the applicant’s not providing evidence of any other interactions with the authorities, either by him or by other family members, that would suggest the family was under suspicion of LTTE or separatist involvement or sympathies; and the applicant’s not having provided any evidence about “how the photos have drawn any kind of adverse attention at all from the authorities or why, after five years, the applicant’s family has been targeted for attention by the authorities”, noting that country information showed that Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country.[24]
b)The Authority did not accept the CID sent a letter requesting the applicant to present himself for questioning, or that the CID followed that up with a visit to the family home to find out why the applicant had not presented himself for questioning, or that the CID continued to visit the family home as recently as May 2016. The Authority relied on what it considered to be the implausibility of the applicant’s claim that the CID sought to contact the applicant to make himself available for questioning by leaving a letter with the neighbours on the off-chance that the applicant’s mother would at some stage visit the family home and receive the letter in time for the applicant to present himself for questioning three days after the date of the letter.[25]
c)The Authority was not satisfied the applicant’s father always had problems with the army and the police. The Authority relied on the evidence the applicant gave at the TPV interview that the only problem the applicant could there identify the applicant’s father had with the authorities was the family home’s being targeted in May 2012.[26]
d)Although the Authority accepted it is plausible that during the war the applicant’s mother’s brother was killed “on suspicion of being LTTE” [sic], noting this was “a matter about which he [that is, the applicant] has not been able to provide any evidence”, the Authority was not satisfied the “applicant has been identified by the CID on the basis of that family connection and that he would be of adverse interest to the authorities should he return”.[27]
e)The Authority accepted that the applicant’s evidence that his father’s brother was rounded up by the army might suggest a suspicion that he was affiliated with the LTTE, but it did not consider this is necessarily evidence that he was affiliated with the LTTE and killed by the army for that reason.[28]
[23] CB219, [16]
[24] CB219,[16]
[25] CB219, [17]
[26] CB219, [18]
[27] CB219, [18]
[28] CB220, [19]
Grounds of application
The amended application on which the applicant relies contains three grounds.
Ground 1
Ground 1 is as follows:
The IAA erred in findings [sic] that submissions and documents submitted to the IAA were new information.
Particulars
(a)Paragraph 20 of the IAA Practice Direction 1 (May 2016) allows the applicant to provide a written submission addressing why the applicant disagrees with the decision of the Department;
(b)On 14 October 2016 the applicant provided written submission attaching documents; and
(c)The submissions and documents were in response to the departmental findings and as such are not new information.
This ground, and the written submissions made in support of it, relate to all of the documents attached to the second 14 October 2016 email. At the hearing before me, however, counsel for the applicant said this ground, and the other two grounds, were limited to the photographs that were attached to that email (and, by implication, to the photographs attached to the second 15 October 2016 email).
The applicant submits the photographs were not “new information” because the applicant provided the photographs “plainly as a result of the decision of the delegate”. That is, the applicant provided the photographs to address concerns the delegate raised about the authenticity of the photographs. The applicant relies on the judgment of Judge Driver in DHV16 v Minister for Immigration and Border Protection, particularly the following passage:[29]
Secondly, it was also self-evident that the new information, particularly the result of the DNA test, was, on its face, credible personal information which may have affected the consideration of the applicant’s claims had it been known. As I stated in DVF16 at [25]-[26], an applicant does not have to explain the blindingly obvious to the Authority, where the explanation for the provision of the new information plainly stems from the decision of the delegate and inheres in the information itself. In any event, the applicant’s representative, in her letter dated 5 September 2016, put the Authority on notice that a DNA test was being proposed to prove that the applicant and N are siblings.
[29] [2018] FCCA 349, at [93]
The applicant’s submissions is premised on the view that “new information” is to be defined in causal terms: information is “new information” if an applicant’s providing it to the Authority is not due to the delegate’s decision. There is no support for such view in the text of s.473DC of the Act. That section defines “new information” in relation to a “fast track decision” as “any documents or information” that “were not before the Minister when the Minister made the decision under” s.65 of the Act. The photographs the applicant’s representative attached to the second 14 October 2016 email and to the second 15 October 2016 email were not before the delegate and, for that reason, they did constitute “new information” within the meaning of s.473DC.
Judge Driver in DHV16, and in particular in the passage from his Honour’s reasons on which the applicant relies, does not say otherwise. The passage from his Honour’s judgment on which the applicant relies deals with information his Honour considered or assumed was “new information”. The question his Honour considered was whether the Authority correctly applied s.473DD to the “new information”.
In his written submissions the applicant advances a distinct ground, namely, that the Tribunal acted unreasonably in its consideration of the photographs the applicant’s representative provided to the Authority. The applicant submits the Authority’s consideration was “opaque and unintelligible”.[30] The basis of this submission is the contention that it is not clear to what photographs the Authority was referring in paragraph 16 of its reasons. I do not accept the applicant’s submission. The photographs to which the Authority referred in paragraph 16 are the photographs the Authority identified in paragraph 14, these being the three photographs the applicant provided to the delegate.
[30] Applicant’s Outline Submissions, [41]
Ground 1 of the amended application, therefore, fails.
Ground 2
Ground 2 is as follows:
The IAA erred in acting unreasonably in failing to put to the applicant for comment its finding that the documents he submitted were new information.
Particulars
(a)The documents were part of the submissions addressing the department’s adverse findings;
(b)At paragraph 16 in relation to the photos submitted by the applicant “have drawn any kind of adverse attention at all from the authorities” and
(c)The IAA acted unreasonably in failing to exercise its discretion under section 473DC(3) and invite the applicant to give new information in writing or at an interview.
This ground is directed to an omission – the Authority’s failing to put to the applicant for comment its finding that the documents the applicant provided, including the two photographs, were new information. The applicant may also be taken to claim that the Authority ought reasonably to have considered whether it should put to the applicant for his comment it proposed to find that the two photographs were “new information”.
In his written submissions the applicant relies on a number of matters. The applicant did not have to explain to the Authority the “blindly obvious”;[31] although the Authority has no duty requiring it to exercise the discretion to obtain further information the Authority “can interview the applicant in order to obtain the new information and address some of the concerns raised in the” Authority’s decision;[32] it would have been reasonable to exercise the discretion because the applicant was a minor when the relevant events occurred, his father has a mental illness, the applicant’s claims “were considered to be consistent”, and the “delegate had considered that the photos provided to him of his father in fact bore a likeness to his father”.[33]
[31] Applicant’s Outline Submissions, [44]
[32] Applicant’s Outline Submissions, [45]
[33] Applicant’s Outline Submissions, [46]
The Minister submits that a materially indistinguishable ground of review was considered and rejected by Bromwich J in EKW17 v Minister for Immigration and Border Protection,[34] and the ground is in any event inconsistent with the judgment of Charlesworth J in ANO16 v Minister for Immigration and Border Protection.[35]
[34] EKW17 v Minister for Immigration and Border Protection [2018] FCA 1366, at [21]-[25]
[35] ANO16 v Minister for Immigration and Border Protection [2019] FCA 59, at [35]]
As Charlesworth J said in ANO16,[36] it may be accepted there may be circumstances in which it is legally unreasonable for the Authority not to consider the exercise of the discretionary power in s.473DC(3) of the Act to get new information. The matters on which the applicant relies, however, for submitting the Authority acted unreasonably in not exercising, or not considering whether to exercise the power under s.473DC(3), do not disclose circumstances in which it could even arguably be said the Authority acted unreasonably.
a)The applicant does not identify the additional information the Authority ought reasonably to have considered the applicant would have been able to give, had the Authority invited him to comment on its finding or proposed finding that the photographs were “new information”. On the contrary, some of the matters on which the applicant relies for submitting the Authority acted unreasonably – the applicant’s being a minor at the time of the relevant events, and the applicant’s father’s suffering from mental illness – are matters that ought reasonably to have indicated to the Authority that the applicant would not have been in a position to provide any information.
b)The applicant was represented, and the Authority had provided to the applicant the Practice Direction, which explained with clarity what information the Authority could consider, and, where information was “new information”, the circumstances in which the Authority could consider the new information.
c)Perhaps most significantly, the Authority considered the applicant’s claims on the assumption that the three photographs the applicant had provided to the delegate were authentic. That is particularly apparent in paragraph 15 of its reasons where the Authority found that, even if it accepted that “the photographs are as the applicant asserts”, it was not satisfied there was a link between the photographs and the applicant’s family home being broken into and the applicant’s father being assaulted. It is also apparent in paragraph 16 of its reasons where the Authority said the applicant gave no evidence about “how the photos have drawn any kind of adverse attention at all from the authorities”.
[36] ANO16 v Minister for Immigration and Border Protection [2019] FCA 59, at [35]
Ground 2 of the amended application, therefore, also fails.
Ground 3
Ground 3 is as follows:
The IAA erred in acting unreasonably.
Particulars
(a)At paragraph 37 the IAA acknowledges that the applicant was a minor when he came to Australia and that his father has suffered a serious mental health issue;
(b)At paragraph 10 the IAA relies on evidence given at the departmental interview about the applicant’s uncle and whether “the applicant asked his father (with whom he lived in Australia) had told him anything more recently about his uncle; the applicant said no”;
(c)At paragraph 16 the IAA found as follows:
“Not only has the applicant been unable to provide any details about his uncle’s LTTE membership, work or affiliation, he has not provided any evidence of any other interactions with the authorities, either his own or other family members, that would suggest the family was under suspicion of LTTE or separatist involvement or sympathies or how the photos have drawn any kind of adverse attention at all from the authorities, or why after five years the applicant’s family has been targeted from attention by the authorities; and [sic]
In his written submissions the applicant says that the substance of ground 3 has been dealt with in grounds 1 and 2. In other words, the applicant does not rely on ground 3 as an independent ground. That is not surprising. As originally filed, the particulars to ground 3 contained the following paragraph (d):
The IAA was aware that the applicant could not provide this information in such detail due to his youth and his father’s serious mental health issue, thereby acting unreasonably and not giving the applicant a fair hearing as required by s473DA.
This indicates that, as originally filed, ground 3 intended to claim that the Authority acted unreasonably because it assessed the evidence the applicant gave to the delegate knowing that because of his youth and his father’s mental health issues the applicant could not have provided the information the Authority identified in paragraph 16 of its reasons the applicant had not given. By amending the application to remove paragraph (d) of the particulars to ground 3, the applicant abandoned ground 3 because without it ground 3 does not identify the grounds on which it is claimed the Authority acted unreasonably. It is unclear why the applicant did not amend its application by removing ground 3 in its entirety but instead amended the application by removing paragraph (d), which rendered that which remained meaningless.
In any event, ground 3 fails for the same reasons I have concluded grounds 1 and 2 fail.
The Authority’s “error”
It remains for me to consider whether there is any significance to what both parties agree, but which I have accepted, was an error by the Authority, namely, its not having considered the contents of the second 14 October 2016 email and the second 15 October 2016 email. The Minister submitted that the error was not material because the Authority considered the applicant’s claims on the assumption that the photographs the applicant provided to the delegate – which it was the purpose of the two photographs the applicant’s representative provided to the Authority by the 14 October 2016 email and the second 15 October 2016 email to verify – were authentic. I agree. As I have already concluded, the Authority did consider the applicant’s claims on the assumption that the photographs he provided to the delegate were authentic.
Conclusion and disposition
The applicant has not succeeded on any of the grounds or submissions on which he relies. I propose, therefore, to order that the application be dismissed.
Counsel for the parties agreed that costs should follow the event, and that the costs should reflect the relevant amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as that schedule applied at the time the applicant filed his application with this Court. That amount is $7,206. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $7,206.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 11 October 2019
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