ALJ17 v Minister for Immigration
[2018] FCCA 2411
•29 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALJ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2411 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority failed to consider new information – whether Immigration Assessment Authority erred in its identification and assessment of new information – whether Immigration Assessment Authority erred in its application of s.473DC – whether Immigration Assessment Authority erred in its application of s.473DD – no jurisdictional error – application dismissed. |
| Legislation: 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474. Migration Regulations 1994 (Cth), reg.2.01, sch.1. Treaties: Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967). |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 |
| Applicant: | ALJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | IMMIGRATION ASSSESSMENT AUTHORITY |
| File Number: | SYG 318 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 29 August 2018 |
| Date of Last Submission: | 29 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ashok Kumar |
| Counsel for the Respondents: | Mr Greg Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 318 of 2017
| ALJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 11 January 2017 (“the Authority”), dismissing a review by the Authority of a decision of a delegate of the first respondent (“the Delegate”) made on 25 November 2016 refusing the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHEV Visa”).
The applicant is a citizen of Sri Lanka and of Tamil ethnicity, who fears harm from Sri Lankan authorities and Tamil paramilitaries in Sri Lanka.
The background and a summary of the applicant’s claims and the Authority’s decision are accurately set out in the written submissions of the first respondent as follows:
“BACKGROUND AND CLAIMS
2. The applicant is a citizen of Sri Lanka. On 11 May 2016 he made an application for a SHEV in which he claimed to fear harm due to having been imputed with a profile of association with the Liberation Tigers of Tamil Eelam (LTTE). He feared harm from the Sri Lankan authorities and Tamil paramilitaries. In particular, the applicant claimed that his older brother was an LTTE fighter from 1985 to 1992, which caused problems for their family. He claimed initially that the brother had been rehabilitated and was living in Mannar, but ultimately asserted (to the Authority) that the brother was killed in 2010 by the army. The applicant claimed that when he was a student he was required to join the LTTE student organisation and to promote awareness and recruit others. The applicant lived and worked in Saudi Arabia from 2001 to 2007 and travelled back to Sri Lanka on four occasions for holidays during this period.
3. The applicant claimed that when he resettled in Sri Lanka he opened a grocery store and was harassed by army soldiers who would take items without paying for them. They assaulted and threatened him. He was beaten in one incident in 2010 after a poster of the President outside his shop was torn and damaged. The applicant further claimed to be a supporter of the Tamil National Alliance (TNA), through which he claimed to have encountered harm from political enemies in the Tamil Makkal Viduthalai Pulikal (TMVP). He claimed that he was subjected to various threats and harassment in particular in August 2012, September 2012 and mid-September 2012. The applicant claimed that since his departure the TMVP have visited his shop and house, and that his brother-in-law's efforts to keep the grocery store running failed in light of the TMVP harassment. The applicant claimed that the Pillayan group were making enquiries of him of his friends.
4. On 25 November 2016 a delegate of the Minister refused to grant the applicant a visa: CB 203. On 30 November 2016 the applicant's matter was referred to the Authority for review: CB 234. On 14 December 2016 the applicant, through his representative, sent a submission to the Authority: CB 236-245.
AUTHORITY'S DECISION
5. On 11 January 2017 the Authority affirmed the decision under review: CB 251.
6. The Authority accepted a number of the applicant's claims to have suffered harm in the past. For instance, it accepted that army soldiers regularly took items form his shop without paying for them, and that he was assaulted and threatened: [18]; CB 255. It accepted that the applicant was beaten by the army in 2010 resulting in scarring: [19]; CB 255. It accepted parts of the applicant's political history, for instance that he had supported the TNA and was involved in the 2012 elections, and that he had received adverse attention from political adversaries in 2012. The Authority referred to country information that supported aspects of the applicant's claims: [20]; CB 255. However, the Authority was not satisfied that the TMVP or Pillayan group had harassed the applicant's brother-in-law at the shop after the applicant's departure, as country information did not support ongoing harassment of people who had provided low level political support beyond the election period: [21], [23]; CB 256.
7. The Authority did not accept that the applicant's wife lodged a complaint with the Presidential Commission in 2016 about her brother's disappearance and has subsequently been threatened: [24]-[26]; CB 256-257. The Authority found the letter in support of this claim had been written in an attempt to enhance the applicant's protection claims: [27]; CB 257.
8. The Authority determined that the applicant did not have a real or imputed LTTE profile or that there was a real chance that he would come to the adverse attention of the Sri Lankan authorities or associated groups on return to Sri Lanka as a result of family links to his brother or brother-in-law who had disappeared in 1986, or because of his past activities in Jaffna: [32]; CB 258. The Authority also referred to country information that indicated an improvement in the general security situation, and greater political cooperation, in Sri Lanka since the commencement of the Sirisena government: [34]; CB 259. The Authority further considered, but was not satisfied, that the applicant would face relevant harm if he returned to Sri Lanka as a person who had illegally departed: [38]-[46]; CB 260-262.
9. The Authority was not satisfied that the applicant had protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Act.”
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a SHEV Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
Section 473DD of the Act provides as follows:
“Considering new information in exceptional circumstances
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.”
The proceeding before this Court
The applicant was represented before this Court by Ashok Kumar, of counsel.
Mr Kumar confirmed that the applicant relied on the grounds contained in an Application filed on 3 February 2017 as follows:
“Ground 1
The Authority committed jurisdictional error when it rejected or failed to assess the claims against the latest country information and thereby fell into error.
Particulars
(a) The Authority did not consider the information provided (HRC report dated 01 November 2016) (AAT at [11].
(b) The Authority considered dated information.
(c) The Authority committed jurisdictional error when it ignored latest country information.
Ground 2
The Authority failed to give consideration to and / or took into account irrelevant considerations. The Authority committed jurisdictional error.
Particulars
(a) The Authority failed to consider and decide a letter dated 13/12/2016, from MP S. Yoheswaran who stated that "the applicant actively participated in the non- violent struggle launched by the TNA for liberation of Tamil people in Sri Lanka ... ".
(b) The Authority thereby committed jurisdictional error.
Ground 3
The Authority fell into error by rejecting the Applicant's claim regarding [the applicant’s wife’s older brother (“Mr AG”)]
Particulars
(a) The Authority confused the "claims" as "new information" and did not consider the Applicant's claim that [Mr AG] (involved in LTTE and was shot dead by the army)
(b) The Authority fell into error in refusing to consider the account.
(c) The Authority thereby committed jurisdictional error.
Ground 4
The Authority did not give proper consideration to the Applicant's scar and consider it with all other claims in assessing whether the applicant was in need of protection. The Authority committed jurisdictional error when it failed to deal with this.
Particulars
(a) The Applicant claimed that he had scar that would expose him to risk.
(b) The Authority concluded that it was not satisfied that that the Applicant would be exposed to risk.
(c) Failed to give realistic consideration to explanations (35).
(d) The Authority did not consider all the cumulative considerations and also did set out its findings and reasons that the risk to the Applicant was heightened risk owing to suspicion of previous LTTE involvement and / or desertion. The Authority fell into error and thereby committed jurisdictional error.
Ground 5
The Authority committed jurisdictional error when it failed to assess the risk to the Applicant in respect of TMVP / Pillayan (IAA at [23]) and the risk to the Applicant from criminal activities and / or risk of the claims of imputed political opinions.
Particulars
The Authority did not consider the risks that arose from the group's military activities. The Authority did not consider the various imputed political opinion that arose from the Applicant's family relationship including his brother.
Ground 6
The Authority erred on question of the Applicant's detention and bail (that family member would act as guarantor (AAT at [41]). The Authority failed to put these matters to the Applicant and denied the Applicant procedural; fairness and thereby fell into error.
Particulars
(a) The Authority did not consider explore the bail issue with the Applicant.
(b) The Authority limited it consideration that the detention for illegal (detention for questioning etc and prior to being granted bail) as law of general application.
(c) The Authority did not consider the intentional aspects of the detention (limiting it as such that the law applied without discrimination it was not required to consider intentions of the players carrying out detention.
Ground 7
The Authority erred in failing in consider of HRC letter and was irrational / illogical and failed to give the claim rational I realistic considerations and thereby committed jurisdictional error.
Particulars
(a) The Authority did not consider fully engage with the Applicant's claim / information regarding HRC letter.
(b) Presumed that lay persons write letters in legal format (which is illogical / irrational).
(c) The Authority thereby committed jurisdictional error.
Ground 8
The Authority erred on question of intention in respect of the Applicant's detention and thereby committed jurisdictional error.
Particulars
(a) The Authority did not consider the issue of intention and whether in carrying out the duties there intention to inflict serious or significant harm.
(b) The Authority erroneously limited it consideration that the detention for illegal (detention for questioning etc and prior to being granted bail) as law of general application.
(c) The Authority did not consider the intentional aspects of the detention (limiting it as such that the law applied without discrimination it was not required to consider intentions of the players carrying out detention.
Ground 9
The Authority fell into error when it failed to consider a clearly articulated claims that the Applicant was risk owing to his own role as activist. The Authority erred in failing to assess the applicant's claim and / or giving meaningful consideration of the Applicant's claims.
Particulars
(a) The Applicant had claimed fear owing to his association with the sports club.
(b) The position clearly established the ability to influence elections results (as claimed in the Applicant's statement of claims).
(c) The Authority fell into error in carrying out proper review and thereby committed jurisdictional error.
Ground 10
The Authority committed jurisdictional error when it failed to take into account that the Applicant's detention in poor prison conditions (IAA at [57]) would constitute persecution complementary protection provisions and thereby applied the wrong test in relation to s 5 and s 36(2A) of the Migration Act 1958 and/ or failed to address an integer/ claim regarding the detention claim.
Particulars
(a) The Authority found that the Applicant would suffer detention but would not constitute serious or significant harm.
(b) The Applicant would be detained for leaving country illegally.
(c) This was a relevant consideration in assessment of whether the Applicant's fear was well founded upon return to Sri Lanka.
(d) The Authority addressed and made findings regarding the claims on prison conditions harsh/ poor) (IAA at [47] and not address this integer/ claim and whether the conditions breached the relevant statutes and domestic law.
(e) Erred in not addressing that there was intention or not asking the correct question regarding detention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment on the applicant.
(f) Applied wrong test or asked itself wrong questions when it found that the Applicant would not suffer significant harm.”
Prior to today’s hearing, the applicant withdrew Grounds 8, 9 and 10 of that application. During the course of submissions this morning Mr Kumar withdrew reliance on Grounds 1, 4, 5, 6 and 7.
Mr Kumar pressed only Grounds 2 and 3 on behalf of the applicant.
Ground 2
Ground 2 asserts that the Authority failed to give consideration to a letter dated 13 December 2016 from an MP, who stated that, “The applicant actively participated in the non-violent struggle launched by the TNA for liberation of Tamil people in Sri Lanka”.
In relation to that document the Authority stated as follows:
“12. The applicant has provided a letter of support from Member of Parliament (MP) Seenithamby Yoheswaran with the IAA submission. The letter is dated 13 December 2016 and on that basis I am satisfied that this document could not have been provided to the Minister. However, the events discussed in the letter relate to the applicant's experience in Sri Lanka in 2012. The MP's letter advised that the applicant was an ardent supporter of the TNA and was an active participant in the 2012 elections and discussed the level of support the applicant provided and that he was threatened by visitors at his shop who took goods from the shop and the MP expresses his concern for the applicant's safety in Sri Lanka. The contents of the letter are largely consistent with the applicant's account. The delegate accepted that the applicant had a shop, supported the TNA in the 2012 election and was harassed and threatened by people who also took goods from his shop in 2012. As part of his SHEV application, the applicant has provided letters of support from Sri Lankan Provincial Council Members attesting to his TNA activities. I am not satisfied that any exceptional circumstances exist that justify considering this letter.”
The Authority correctly pointed out that the letter post-dated the decision of the Delegate and was satisfied on that basis that it could not have been provided to the Delegate.
The Authority had regard to the events discussed in the letter and identified them as relating to the applicant’s experience in Sri Lanka in 2012. The Authority noted that the letter advised that the applicant was an ardent supporter of the TNA and was an active participant in 2012 elections. The Authority discussed the level of support the applicant provided and that he was threatened by visitors at his shop who took goods from his shop and that the MP, the author of the letter, expressed his concern for the applicant’s safety in Sri Lanka.
The Authority found that the contents of the letter were largely consistent with the applicant’s account and noted that the Delegate had accepted that the applicant had a shop, supported the TNA in the 2012 election and was harassed and threatened by people who took goods from his shop in 2012. The Authority referred to other letters of support provided by the applicant from the Sri Lankan Provincial Council members attesting to his TNA activities.
In the circumstances, the Authority was not satisfied that any exceptional circumstances existed to justify considering this letter.
Short of the bare assertion that the Authority failed to give consideration to that letter, Mr Kumar otherwise made no relevant or cogent submission in support of Ground 2.
The Authority accepted that the letter was new information; considered what that information was; satisfied itself that it was largely consistent with the applicant’s claims; and, satisfied itself that the Delegate had essentially accepted those claims in terms similar to those referred to by the author of the letter.
The Authority also noted that the applicant had provided other letters of support attesting to his TNA activities. The Authority accepted that the applicant had supported the TNA and was involved in the 2012 elections and was harassed and threatened by members of the opposing party at that time, who demanded money from him.
The Authority also accepted that the applicant was beaten in 2012 by the army who blamed him for the damage to a pro-government poster; that he had residual scarring from that beating; and, that army soldiers regularly took items from his shop without paying for them and assaulted and threatened him when asked to pay.
In the circumstances, the Authority found that exceptional circumstances did not exist to justify considering the letter from the Member of Parliament any further. That finding was open to it on the evidence and material before it and for the reasons it gave. The Authority’s finding was based on rational grounds and arrived at after considering those factors that were logically probative of whether exceptional circumstances existed.
In summary, for the reasons above, the Authority’s findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis, or unreasonableness and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 asserts that the Authority fell into error by rejecting the applicant’s claim regarding a Mr AG.
Ground 3 arises from the following paragraph in the Authority’s decision record:
“10. A new claim has been advanced that the applicant's wife's older brother, [Mr AG], was involved with the L TTE and was shot dead by the army. A copy of his death certificate dated 15 February 1992, stating "death caused due to gun shoot injury ... as informed by wife", has been provided with the IAA submission. The representative advanced that the death certificate had not been provided to the Minister as the applicant only recently thought it may be important and requested a copy from [Mr AG’s] widow. In the SHEV application reference is made to the applicant's wife lodging a missing person complaint in regard to her brother and the accompanying documents name this brother as Paskaran. No claims regarding a second brother named [Mr AG] were made in the SHEV application or at the SHEV interview. Accordingly I find the claim regarding [Mr AG] is new information. There is no indication that the applicant was not aware of this information at the time of submitting his SHEV application. The applicant included claims about his other brother-in-law Paskaran in his SHEV application and supported his claims with supporting documents, indicating his awareness of putting forward claims that relate to extended family members and how this may affect him on return to Sri Lanka. I am not satisfied that there are exceptional circumstances for considering this new information. Accordingly, I have not had regard to the claims regarding [Mr AG] and the accompanying death certificate.”
The Authority found that the applicant’s claim that his wife’s older brother, Mr AG, was involved with LTTE and shot dead by the army was a new claim supported by a copy of a death certificate dated 15 February 1992. The Authority noted the applicant’s representative’s submission that the death certificate had not been provided to the Minister as the applicant only recently thought it may be important and requested a copy from Mr AG’s widow.
The Authority noted that in his SHEV Visa application reference was made by the applicant to his wife lodging a missing person complaint in regards to her brother and accompanying documents named this brother as, “Mr P”. The Authority noted that there was no claim regarding a second brother named Mr AG in the SHEV Visa application or at the SHEV Visa interview.
In those circumstances, the Authority found that the claim regarding Mr AG was new information and that there was no indication that the applicant was not aware of this information at the time of submitting his SHEV Visa application. The Authority noted that the applicant had included claims about the other brother-in-law, Mr P, in his SHEV Visa application, which the Authority found indicated an awareness of putting forward claims that related to extended family members and how that may affect him on his return to Sri Lanka.
Ultimately, the Authority was not satisfied that there were exceptional circumstances for considering that new information and, accordingly, did not have regard to the claims regarding Mr AG and the accompanying death certificate.
Again, Mr Kumar made no relevant or cogent submission in support of that ground. It was certainly open to the Authority to find that that information was new information being advanced before it. The Authority considered in detail the nature and effect of that information. In particular, the Authority noted that there was no indication that the applicant was not aware of that information at the time of submitting the SHEV Visa application. Having been satisfied that there were not exceptional circumstances for considering it in accordance with the statutory regime, the Authority had no further regard to it. Again, there is no error in the way in which the Authority considered that information.
Again, the Authority’s findings were open to it. They were based on rational grounds and arrived at after considering factors that were logically probative of the relevant issue to be considered by the Authority, namely, was it new information that could not have been provided to the Delegate and did exceptional circumstances exist such that the Authority should have regard to it?
The Authority’s findings were neither legally unreasonable nor without an intelligible foundation. They were findings that were open to the Authority on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 3 is not made out.
During the course of Mr Kumar’s submissions I raised with him that these grounds did not appear to be arguable. It is of concern to the Court that grounds with so little prospect of success would be advanced by an officer of the Court.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 17 October 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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