AIZ19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 715

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AIZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 715

File number(s):

ADG 38 of 2019

Judgment of:

JUDGE LUCEV

Date of judgment:

8 August 2024

Catchwords:

MIGRATION – Judicial review application - citizen of Sri Lanka – single unparticularised ground of review – whether any jurisdictional error in new information findings – whether any jurisdictional error in refugee and complementary protection findings – whether impermissible merits review – whether jurisdictional error otherwise – whether material jurisdictional error

Legislation:

Migration Act 1958 (Cth) ss 5H, 36, 46A, 473DD, 474, 476

Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka)

Cases cited:

APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23

ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196

BCJ16 v Minister for Immigration and Anor [2017] FCCA 2943

BCJ16 v Minister for Immigration and Border Protection [2018] FCA 658

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

DBE16 v Minister for Immigration and Border Protection [2017] FCA 942

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551

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

FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144

FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383

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 SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

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; (2021) 177 ALD 464

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

36

Date of last submission/s:

11 June 2024

Date of hearing:

11 June 2024

Place:

Perth

Applicant:

In person with the assistance of an interpreter

Counsel for the First Respondent:

Ms C Oppel

Solicitor for the Applicant:

Australian Government Solicitor

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 38 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AIZ19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	8 AUGUST 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read “Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts”.

2.The originating application filed on 31 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

1. By an originating application filed on 31 January 2019 (“Judicial Review Application”) under s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”) the applicant, AIZ19, seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively). The Authority Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”). The Delegate’s Decision was to refuse to grant AIZ19 a subclass XE-790 Safe Haven Enterprise visa (“SHE Visa”).

2. The Authority Decision appears in the Court Book (“CB”) at CB 472-493.

   BACKGROUND

   Generally

3. The general background to this matter is as follows:

   (a)AIZ19 is a national of Sri Lanka: CB 51 and 56;

   (b)AIZ19 departed Sri Lanka illegally by boat on 15 September 2012 travelling to India and then to Australia arriving as an unauthorised maritime arrival on 5 November 2012: CB 71 and 195;

   (c)AIZ19 participated in an entry interview with an officer of the Minister’s Department on 31 January 2013: CB 10-25;

   (d)

   AIZ19 was in immigration detention from 5 November 2012 until 26 July 2014:

   
   

   CB 75;

   (e)on 12 March 2014 the Secretary of the Minister’s Department notified AIZ19 that some of his personal information, including possibly his name, date of birth, nationality and gender, may have been accessed when a routine report was unintentionally released on the Department’s website in February 2014 (“Data Breach”): CB 37; and

   (f)on 21 December 2015 AIZ19 was invited to apply for the SHE Visa under the fast track assessment process after the Minister lifted the application bar in s 46A(1) of the Migration Act: CB 38.

   SHE Visa application claims made by AIZ19

4. The SHE Visa application was made on 24 June 2016 accompanied by a statutory declaration (“Statement of Claims”) dated 22 June 2016 in which AIZ19 claimed that:

   (a)he left Sri Lanka due to political and race problems: CB 89;

   (b)in 1997 he was detained for 4 days and tortured by Sri Lankan Army Intelligence (“CID”) as a suspected Liberation Tigers of Tamil Elam (“LTTE”) supporter: CB 89. He received support from the Human Rights Commission following this: CB 90;

   (c)in 1998 he and other young people from his village were detained by police and beaten after a nearby army camp was bombed: CB 90;

   (d)on 11 August 1999 he was taken by the CID to an army camp and sexually abused, tortured and interrogated about suspected LTTE involvement, and he was then imprisoned until his case was discharged by a Magistrates Court: CB 90-91;

   (e)from 1999 to 2012 he played an active role in the Tamil Alliance Party (“TNA”), which he had joined in 1998: CB 90 and 91. He carried on activities despite threats from the CID. An election was held in the latter part of July 2012 in which the TNA were successful in winning seats in his locality: CB 91;

   (f)on 30 August 2012 the CID came looking for him and he fled to his wife’s parent’s home in Jaffna and then to India: CB 91;

   (g)the CID sought him at his wife’s home in 2012 and at his mother’s home in 2012 and in 2015: CB 91; and

   (h)

   he fears being arrested at the airport by the CID and killed if returned to Sri Lanka:

   
   

   CB 92.

5. AIZ19 provided documents in support of the Statement of Claims as follows:

   (a)a document from a local Magistrate’s Court dated 11 August 1999: CB 105;

   (b)a Home for Human Rights letter/note (undated): CB 107;

   (c)a letter from a member of Parliament dated 15 December 2012: CB 108;

   (d)a letter from a principal of a school dated 16 January 2001: CB 100; and

   (e)a letter from a member of the Northern Provincial Council (“Council”) dated 26 February 2017: CB 160 and 199.

6. The Delegate interviewed AIZ19 on 27 March 2018 (“Delegate’s Interview”). AIZ19 was represented at the Delegate’s Interview by Refugee Advocacy Services of South Australia (“RASSA”). At the Delegate’s Interview AIZ19 claimed that:

   (a)his parents were strong supporters of the TNA: CB 199; and

   (b)he was involved in protests organised by the TNA: CB 199.

7. On 16 April 2018 AIZ19, through a registered migration agent at RASSA, sent a written submission “to provide current country information” to the Delegate: CB 162.

   DELEGATE’S DECISION

8. The Delegate’s Decision made on 24 July 2018 was to refuse to grant AIZ19 the SHE Visa. In the Delegate’s Decision the Delegate:

   (a)accepted AIZ19 was a Tamil and Catholic: CB 197 and 200;

   (b)accepted AIZ19 received assistance from the Home for Human Rights, but not that he lodged a complaint with them: CB 198 and 201;

   (c)accepted AIZ19 was detained and mistreated by the CID in 1997 and 1998 and that he was arrested and imprisoned in 1999: CB 198 and 201;

   (d)accepted AIZ19’s parents supported the TNA and that he had a low-level involvement with the TNA elections in 2011, but not in 2012;

   (e)

   did not accept that AIZ19 organised TNA meetings or was involved in protests:

   
   

   CB 199-201;

   (f)did not accept that the CID searched for AIZ19 in 2012 or after he departed Sri Lanka: CB 200-201;

   (g)accepted AIZ19 departed Sri Lanka unlawfully: CB 200-201;

   (h)accepted that “some personal information” relating to AIZ19 was released in the Data Breach by the Minister’s Department in February 2014: CB 200-201; and

   (i)found that:

   (i)AIZ19’s fears that he would face serious harm due to any link to the LTTE, Tamil ethnicity, involvement with the TNA, or from being a Tamil from a former LTTE-controlled area were not well-founded: CB 203-206; and

   (ii)there was no real chance of serious harm arising from fears associated with the Data Breach or being a failed Tamil asylum seeker who departed Sri Lanka illegally: CB 208-210.

   REFERRAL TO THE AUTHORITY

   Referral

9. AIZ19’s case was referred to the Authority for fast-track review on 27 July 2018: CB 218.

   Further information provided

10. On 17 August 2018 AIZ19 provided to the Authority, through RASSA, the following:

    (a)written submissions: CB 236-242;

    (b)a statutory declaration made by AIZ19 dated 15 August 2018 (“AIZ19’s August 2018 Statutory Declaration”): CB 243-244;

    (c)extracts from the information book of a police station dated 5 October 2012: CB 245-246, 1 December 2012: CB 247-248 and 10 August 2015 (“Police Information Book Extracts”): CB 249-250;

    (d)a letter from the member of the Council (the same member who wrote the 26 February 2016 letter referred to at [5(e)] above) dated 10 August 2018 (“Council Member’s August 2018 Letter”): CB 251-252;

    (e)an undated letter from AIZ19’s mother (“Mother’s Letter”): CB 253-254; and

    (f)country information: CB 256-468.

    New information

11. The Authority found that the Police Information Book Extracts, the Council Member’s August 2018 Letter and the Mother’s Letter were new information: CB 473 at [4], and was not satisfied that these documents satisfied s 473DD of the Migration Act because:

    (a)in relation to the Police Information Book Extracts the Authority:

    (i)was not satisfied (assuming that they had existed earlier) that they could not have been provided to the Delegate before the Delegate’s Decision;

    (ii)noted that AIZ19 had previously provided documentary evidence to support his claim, and found it very unlikely that AIZ19’s mother would have informed AIZ19 of the police visits but withheld the Police Information Book Extracts from AIZ19;

    (iii)did not accept that AIZ19’s parents did not tell AIZ19 about the Police Information Book Extracts because they did not want to worry AIZ19;

    (iv)found that the matters referred to at (i)-(iii) above gave rise to serious questions as to the reliability of the Police Information Book Extracts, and the Authority was not satisfied that the Police Information Book Extracts were credible, in the sense of capable of being believed; and

    (v)

    noted that exceptional circumstances of some other kind were not apparent:

    
    

    CB 474 at [8];

    (b)in relation to the Mother’s Letter the Authority:

    (i)considered that whilst it could not have been provided to the Delegate, the Mother’s Letter did not have any probative value, because, amongst other things it contained merely vague assertions that AIZ19’s mother witnessed the distress and torture to which AIZ19 was subject; and

    (ii)given “the circumstances overall” and its concerns about the genuineness of the Police Information Book Extracts (see (a) above) to which the Mother’s Letter referred, the Authority was not satisfied there were exceptional circumstances to justify considering the Mother’s Letter: CB 474-475 at [9];

    (c)in relation to the Council Member’s August 2018 Letter the Authority:

    (i)found that Council Member’s August 2018 Letter could not have been provided to the Delegate;

    (ii)found that the Council Member’s August 2018 Letter sought to corroborate AIZ19’s and AIZ19’s mother’s claims that AIZ19’s mother had previously withheld the Police Information Book Extracts from AIZ19; and

    (iii)was not satisfied there were exceptional circumstances to justify considering the  Council Member’s August 2018 Letter, given:

    (A)the Authority’s concerns regarding the Police Information Book Extracts (see (a) above); and

    (B)the Authority already had credible reporting about how the TNA was regarded: CB 475 at [10].

12. To the extent that parts of AIZ19’s August 2018 Statutory Declaration contained new information about members of the TNA having established the Tamil National People’s Front (“TNPF”), the Authority found that it lacked any meaningful detail, had little probative value and added little to the information that was already before the Authority: CB 475 at [11].

13. In relation to the country information provided by AIZ19, which had all been published prior to the Delegate’s Decision, the Authority:

    (a)was not satisfied that the country information could not have been provided to the Delegate in circumstances where AIZ19 had a representative from RASSA attend the Delegate’s Interview; and

    (b)found that it already had similar information before it from credible sources, and AIZ19 did not claim to have had any personal involvement in any of the specific incidents not already covered in the reporting before the Authority: CB 475 at [12].

    Claims and factual findings

14. The Authority set out AIZ19’s Statement of Claims: CB 476.

15. The Authority accepted that AIZ19:

    (a)was a Tamil of Catholic religion, from his specified locality and a national of Sri Lanka: CB 477 at [16];

    (b)was arrested and detained for a number of days in 1997 by the CID, during which time, he was severely beaten and was released after the head of the village, a priest and his parents spoke for him: CB 477 at [17];

    (c)made contact with Home for Human Rights after he was released in 1997 and was given support by that organisation, but that he did not face any difficulty because of that engagement: CB 477 at [18];

    (d)was arrested and detained for two days in 1998 and released after his mother signed a document in Sinhalese: CB 478 at [19]; and

    (e)was arrested, detained and physically abused in 1999, but was ultimately released following a concession in court by the CID that he had no involvement in the LTTE: CB 478 at [20].

16. Otherwise, the Authority:

    (a)was not satisfied that AIZ19 was ever a member of the TNA, ever involved in the TNA or in any political activities including participation in any protest in Sri Lanka, or that he was ever threatened or investigated for campaigning for the TNA: CB 481 at [29]. This conclusion was reached considering the evidence overall, including:

    (i)AIZ19’s claimed involvement in the TNA being strongly undermined by AIZ19’s consistent and unequivocal claim that he was actively involved in a local election in 2012 which did not take place. Given the number of significant events that occurred to him in 2012 (including his marriage and his running away for his life), the Authority considered it very unlikely that AIZ19 would have consistently referred to the local election as occurring in 2012, had he actually been involved in the local election which took place in 2011: CB 479-480 at [22]-[23];

    (ii)AIZ19 stating in his entry interview about 3 months after his arrival that he was involved in the local election in 2012 and that he was arrested but not detained in 2012, whereas in the SHE Visa application and Delegate’s Interview he stated that the Sri Lankan authorities came to his house looking for him but he was not there: CB 480 at [24];

    (iii)the vagueness of AIZ19’s claimed involvement in protests: CB 480 at [26]; and

    (iv)

    the lack of real corroborative value in various letters provided by AIZ19:

    
    

    CB 480-481 at [27] and [28];

    (b)did not accept that AIZ19’s parents were involved in the TNA or were activists in Sri Lanka due to inconsistent statements by AIZ19 about this at the Delegate’s Interview and his failure to provide meaningful details about their involvement: CB 482 at [30];

    (c)found that AIZ19 and his family had no involvement in the LTTE given, when asked at the Delegate’s Interview about such involvement, he stated his parents supported the TNA and were therefore also considered LTTE supporters, and that, although he claimed his uncle was taken into custody with him in 1999, he gave no indication that his uncle or any other relatives were involved in the LTTE: CB 482 at [31];

    (d)did not accept AIZ19 was threatened or sought by the Sri Lankan authorities or anyone else because of his or his parent’s support for the TNA: CB 482 at [32];

    (e)did not accept that AIZ19 was sought out by the Sri Lankan authorities or faced any difficulties after his release from prison in 1999: CB 482 at [32]; and

    (f)found that AIZ19 was not of adverse interest to the Sri Lankan authorities or anyone else when he left Sri Lanka in 2012: CB 482 at [32].

    Refugee and Complementary Protection Findings

17. In relation to refugee and complementary protection findings the Authority:

    (a)was not satisfied there was a real chance AIZ19 would face any harm by reason of his involvement in any political activities, including involvement in the TNA or any protests: CB 483 at [38];

    (b)was not satisfied that if AIZ19 were to return to Sri Lanka in the reasonably foreseeable future, that he would face a real chance of coming to the adverse attention of the Sri Lankan authorities or of being arrested or otherwise harmed because of his Tamil ethnicity, his religion or past history: CB 486 at [44];

    (c)was not satisfied that AIZ19’s profile, in conjunction with him being a returning Tamil asylum seeker who departed Sri Lanka illegally and who was subject to the Data Breach in Australia, would give rise to a real chance of persecution. In particular, it was not satisfied that the questioning, temporary detention, imposition of a fine or any other costs associated with possible bail or court appearances, if they arose, and any other treatment he may experience as a result of illegal departure would constitute serious harm or persecution: CB 486-488 at [45]-[53];

    (d)found that AIZ19 did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act and therefore did not meet s 36(2)(a) of the Migration Act: CB 488 at [54]; and

    (e)was not satisfied that AIZ19’s likely subjection upon return to Sri Lanka to questioning, checks, and possibly a brief period of detention at the airport, and costs as a result of his illegal departure would amount to significant harm: CB 499 at [57]; and

    (f)found that as real chance and real risk involve the same threshold, it was not satisfied that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country (Sri Lanka), there was a real risk that AIZ19 would suffer harm, including significant harm, and that accordingly AIZ19 did not meet s 36(2)(aa) of the Migration Act: CB 489 at [57]-[59].

    JUDICIAL REVIEW APPLICATION

    Ground of review

1. AIZ19’s sole ground of review in the Judicial Review Application filed on 31 January 2019 is as follows:

   The Immigration Assessment Authority made a jurisdictional error in the determination of my case.

   Litigation history

2. 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 31 January 2019 in the Adelaide Registry of the Court (then the Federal Circuit Court);

   (b)on 14 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 29 March 2019 a Registrar of the Court made consent orders (“Registrar’s March 2019 Orders”) that included orders to the following effect:

   (i)that AIZ19 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 at 9:30am;

   (d)AIZ19 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 made orders (“Court’s March 2023 Orders”) setting aside the Registrar’s March 2019 Orders, and making further orders including an order that AIZ19 file and serve any amended Judicial Review Application, further affidavits, and an outline of submissions by 29 August 2023 and listing the matter for hearing on 24 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 11 June 2024;

   (i)on 27 September 2023 the Court made consent orders (“Court’s September 2023 Orders”) including an order that AIZ19 file and serve any amended Judicial Review Application, further affidavits, and an outline of submissions by 28 days before the final hearing; and

   (j)the final hearing of the matter proceeded on 11 June 2024, and at the final hearing the Court:

   (i)noted that AIZ19 had not filed any materials pursuant to the Court’s March and September 2023 Orders;

   (ii)reiterated what had been said at the 27 March 2023 directions hearing that AIZ19 needed to establish material jurisdictional error in the Authority Decision and that the Court was not re-hearing the merits of the SHE Visa application; and

   (iii)heard oral submissions from both AIZ19 and the Minister. Albeit that AIZ19 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 unparticularised 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; see too 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.

   Submissions

   AIZ19’s oral submissions

3. In AIZ19’s oral submissions at final hearing (Transcript, pp 3-4 and 9-10) AIZ19 said that:

   (a)he had “previously submitted everything clearly”;

   (b)after he came to Australia the Sri Lankan authorities went to his house in Sri Lanka;

   (c)the Sri Lankan authorities sent the Police Information Book Extracts to his house in Sri Lanka saying that he had left Sri Lanka illegally, and that he would be arrested under the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) (“POT Act”), and “there were charges laid” under the POT Act;

   (d)his name was in the Police Information Book Extracts sent to his house in Sri Lanka, and that is why there is a threat to his life;

   (e)he did not know about the Police Information Book Extracts until after the Delegate’s Decision, and after his mother took them to an “MP” the MP advised his mother to send the letters “immediately” to AIZ19, and the MP also wrote a letter at AIZ19’s request;

   (f)if he goes back to Sri Lanka he has “no safety for [his] life”;

   (g)his “free lawyer” told him that submitting a statutory declaration from his mother “was sufficient enough”;

   (h)his information was released in the Data Breach; and

   (i)he was confused about the election dates and got the year wrong.

   Minister’s submissions

4. The Minister submitted that:

   (a)no jurisdictional error was asserted and none was sufficiently particularised to be the subject of a meaningful response, and that that was a sufficient basis for the single ground of review to be dismissed; and

   (b)the Authority’s findings, including its new information findings and substantive findings, were rational and reasonable and in accordance with established legal principle, and that no error had been demonstrated or was otherwise apparent.

   Consideration

   Material jurisdictional error

5. 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; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 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; (2024) WL 1521994 (“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

6. 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 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.

   No jurisdictional error alleged or particularised in single ground of review

7. The Court notes that AIZ19 had a number of opportunities prior to the final hearing to file material setting out or particularising any alleged jurisdictional error in the Authority Decision. The first opportunity which was not taken was upon the filing the Judicial Review Application in January 2019. The second opportunity was upon the making of the Registrar’s March 2019 Orders, which were made by consent, which permitted AIZ19 to file an amended Judicial Review Application and further material by 7 June 2019, but he did not do so. The third opportunity was upon the making of the Court’s March 2023 Orders which allowed AIZ19 to file an amended Judicial Review Application, any further affidavits and an outline of submissions by 29 August 2023. Also, at the 27 March 2023 directions hearing (conducted with the assistance of an interpreter) the nature of, and requirement to establish, material jurisdictional error affecting the Authority Decision, was explained to AIZ19, and AIZ19 was told that the Court did not engage in merits review of the Authority Decision. AIZ19 did not file any further documents following the Court’s March 2023 Orders. The fourth opportunity was upon the making of the Court’s September 2023 Orders which allowed AIZ19 to file an amended Judicial Review Application, any further affidavits and an outline of submissions by 28 days before the final hearing (which had by then been re-listed for hearing on 11 June 2024). AIZ19 did not file any further documents following the Court’s September 2023 Orders.

8. At the final hearing (also conducted with the assistance of an interpreter) 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 reiterated to AIZ19, but AIZ19’s oral submissions (as to which see [20] above) did not specifically assert any alleged jurisdictional error. In the circumstances, the Court is satisfied that AIZ19 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.

9. A “bare assertion of jurisdictional error on the part of an administrative decision-maker (here the Authority) cannot lead to a finding of jurisdictional error”: BCJ16 v Minister for Immigration and Anor [2017] FCCA 2943 at [13] per Judge Lucev (from which an appeal by the applicant was dismissed in BCJ16 v Minister for Immigration and Border Protection [2018] FCA 658). Having given both explanation and opportunity to AIZ19 to explain what jurisdictional error he alleged affected the Authority Decision, the failure to go beyond the bare assertion of jurisdictional error in the single ground of review, and the failure to particularise the ground 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.

   No jurisdictional error otherwise

   Self-represented litigant

10. The Court is cognisant that AIZ19 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 at [26] per Judge Lucev.

    New information findings

11. As to the new information findings, the Authority declined to consider AIZ19’s new information for the reasons set out at [11]-[13] above. It is clear that there was implicit consideration of both limbs of s 473DD(b) of the Migration Act by the Authority in relation to the new information. In particular the Authority:

    (a)was not satisfied that the Police Information Book Extracts:

    (i)could not have been provided to the Delegate: s 473DD(b)(i) of the Migration Act; or

    (ii)were credible: s 473DD(b)(ii) of the Migration Act,

    for the reasons set out at [11(a)] above;

    (b)considered the Mother’s Letters and the Council Member’s August 2018 Letter could not have been provided to the Delegate: s 473DD(b)(i) of the Migration Act, but it is sufficiently clear that it did not consider s 473DD(b)(ii) of the Migration Act was satisfied for the reasons set out at [11(b)] and [11(c)] above, and as they related to its findings about the Police Information Book Extracts;

    (c)considered those parts of AIZ19’s August 2018 Statutory Declaration that contained new information, and it is sufficiently clear that it considered s 473DD(b)(ii) of the Migration Act not satisfied for the reasons set out at [12] above; and

    (d)considered s 473DD(b)(i) of the Migration Act in relation to the country information, and considered it was not satisfied for the reasons set out at [13] above. (The Court notes that the Authority was not required to consider s 473DD(b)(ii) of the Migration Act in relation to country information: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (“APH17”) at [80]-[85] per Markovic J.)

12. The Authority’s reasoning in relation to new information as set out above was coherent, logical and substantially in compliance with the principles concerning the application of s 473DD of the Migration Act as set out in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196; see also APH17 at [79] per Markovic J.

    Refugee and complementary protection findings

13. In relation to its refugee and complementary protection findings the Authority found that AIZ19 did not meet s 36(2)(a) or (aa) of the Migration Act because his claims were not credible, plausible or supported by evidence. In making findings about AIZ19’s claims (including the Data Breach) the Court is satisfied that the Authority applied the correct statutory provisions and had regard to relevant country information reports and AIZ19’s evidence. Overall, the Authority’s conclusions were rational, reasonable and open to it for the reasons it gave, and fell within the remit of a decision that another reasonable decision-maker might have made based on the same evidence: 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 at [130], [131] and [135] per Crennan and Bell JJ.

14. The Court notes that the Authority differed from the Delegate in finding that it was not satisfied that AIZ19 or his parents were ever involved in the TNA. No jurisdictional error arises from the mere fact that the Authority made different findings to those findings made by the Minister’s Delegate: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59] per Barker J. As was pointed out by the Full Court of the Federal Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [70]-[72] per Reeves, Robertson and Rangiah JJ, the Authority is not required “to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the Delegate”. In any event, there was no difference between the Delegate’s and the Authority’s findings on material claims. Neither the Delegate nor the Authority were satisfied that AIZ19 was involved in elections in 2012, participated in protests, was a person of interest to the Sri Lankan authorities prior to his departure from Sri Lanka or was sought by the Sri Lankan authorities after his departure from Sri Lanka: CB 200-201 and 482 at [32]. Although the Delegate accepted that AIZ19’s parents were involved in the TNA there is no evidence that the Delegate considered that this increased AIZ19’s risk profile:

    
    

    CB 199.

    Impermissible merits review

15. In this case AIZ19 did not identify or particularise any jurisdictional error in the Authority Decision, and it is evident when regard is had to AIZ19’s oral submissions to the Court at final hearing that what AIZ19 seeks to have the Court do is to conduct an impermissible merits review of the Authority Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

    Conclusion – jurisdictional error otherwise

16. 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

17. AIZ19 has failed to establish any material jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.

18. There will also be an order that the name of the first respondent be amended to read “Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts”.

19. The Court will hear the parties as to costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       9 August 2024