AML18 v Minister for Immigration
[2020] FCCA 525
•13 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AML18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 525 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether IAA erred when considering new information – whether IAA was biased – whether IAA asked a wrong question – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 473CA, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB |
| Cases cited: CNY17 v Minister for Immigration & Border Protection [2019] HCA 50 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | AML18 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 62 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 10 March 2020 |
| Date of Last Submission: | 10 March 2020 |
| Delivered at: | Perth |
| Delivered on: | 13 March 2020 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the First Respondent: | Ms J Tran |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 62 of 2018
| AML18 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 8 January 2018.
The IAA affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise visa (the “visa”).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
Before the Court is the applicant’s judicial review application filed 1 February 2018, an affidavit of the applicant affirmed 1 February 2018, an affidavit of the applicant affirmed 13 May 2018, an affidavit of the applicant affirmed 6 March 2020, a Court Book (“CB”) numbering 256 pages (marked as Exhibit 1) and an outline of written submissions from the Minister dated 18 February 2020.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Background
The applicant is a citizen of Sri Lanka. He is of Tamil ethnicity (CB 1-24). The applicant arrived in Australia as an unauthorised maritime arrival on 10 June 2013 (CB 137).
On 19 July 2016, the Minister lifted the bar under s.46A of the Act and invited the applicant to apply for the visa (CB 25-26).
On 14 March 2017, the applicant lodged his visa application (CB 31-84). In his statement of claims the applicant summarised his claims for protection as follows:
In summary, I fear harm throughout the whole of Sri Lanka including constant harassment, physical abuse and murder at the hands of the EPDP and CID on the basis of my ethnicity and suspected involvement with the political group LTTE during the Sri lankan civil war. I have personally been subject to physical abuse and received countless death threats by my feared persecutors. I cannot rely on the protection of the Sri lankan state and cannot safely relocate anywhere else in Sri Lanka
On 16 May 2017, the applicant attended an interview with a Ministerial delegate (CB 140). The applicant raised a further claim that he was harassed by the Angeyan group, who had asked him to assist them in their criminal activities.
On 24 May 2017, the applicant provided two further submissions and supporting documents to the delegate (CB 120-136).
On 31 May 2017, the delegate refused to grant the applicant the visa (CB 137-153). The decision was then referred to the IAA (CB 154-157).
On 20 June 2017, the applicant’s representative forwarded written submissions and a number of supporting documents to the IAA (CB 178-189). As discussed below, these documents constituted “new information”. The representative made submissions as to why this information should be considered.
On 3 August 2017, the IAA affirmed the decision not to grant the applicant the visa (CB 193-205).
A review of that IAA’s decision was sought in this Court and the Court made orders, by consent, on 15 November 2017 remitting the matter to the IAA for reconsideration (CB 211). The orders provided the following note:
The first respondent concedes that the decision of the second respondent is affected by jurisdictional error of the kind identified in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [46]-[47] and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [112] by misconstruing or misapplying the term ‘exceptional circumstances’ in s.473DD of the Migration Act 1958 (Cth).
On 28 December 2017, the applicant’s representative provided a further submission to the IAA. The submission addressed why the new information should be considered and attached further new country information concerning the updated security situation in Sri Lanka (CB 224-227).
On 8 January 2018, the IAA affirmed the decision not to grant the applicant the visa (CB 229-244). It is this decision which is the subject of review in this Court.
IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act and limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a 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 IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in 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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.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 IAA.
The IAA’s decision in this matter is 16 pages long and comprises 44 paragraphs. The Minister’s submissions at [21]-[26] accurately summarise the IAA’s decision. The Court adopts that summary as its own, with some additions, as follows.
The IAA confirmed that it had had regard to the material referred to it pursuant to s.473CB of the Act (save for a document that was provided in error) (at [3]).
In relation to the submissions provided by the applicant’s representative on 21 June 2017 and 29 December 2017 (including the new information), the IAA found as follows:
a)to the extent that the submissions address the delegate’s decision and findings and the Federal Circuit Court order, the IAA had regard to them as they were not “new information” (at [4]);
b)the copy of the applicant’s National Identity Card provided in the submission dated 21 June 2017 was before the delegate and not new information (at [5]);
c)at [6]-[9], the IAA found that the statutory declaration provided with the submissions dated 21 June 2017 contained two new claims. The IAA was not satisfied that these claims could not have been made to the delegate and was also not satisfied that they were credible or there were exceptional circumstances which warranted their consideration. The new claims were not considered;
d)the IAA did not consider the Confirmation of Learning document and the 2012 United Nations High Commissioner for Refugees (UNHCR) Guidelines met the requirements of s.473DD. The IAA found both of these documents could have been provided to the delegate and they could not have affected the assessment of the applicant’s claims (as the applicant’s area of residence was not in dispute)(at [10]);
e)at [11], the IAA accepted that the fact that the applicant had a severed finger was before the delegate as the applicant showed the delegate his finger. The IAA was not, however, satisfied that the photo of the severed finger that was provided with the June 2017 submissions met either limb of s.473DD of the Act;
f)at [13]-[15], the IAA found that the reference in the December 2017 submissions (such as the address by the UNHCR and Human Rights Watch and Amnesty International reports) met the requirements of s.473DD and were therefore considered; and
g)the reports and citations in the June 2017 submissions all pre-dated the delegate’s decisions and there was nothing to indicate that they were credible personal information. They were not, accordingly, considered by the IAA.
At [17], the IAA summarised the applicant’s claims.
The IAA accepted that the applicant was a Tamil Sri Lankan from the Northern Province, that he was displaced between 1995 and 2002 and lived in an area controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) and that he travelled to Qatar in 2007 (at [20]-[22]).
The IAA placed significant weight on the applicant’s ability to travel to and from Sri Lanka in 2007/2008 and to depart Colombo in 2013. This indicated to the IAA that the applicant did not have a profile that attracted the adverse attention of authorities. The IAA accepted that it was plausible that the applicant was questioned about whether he had an LTTE connection and that he was taunted by the Criminal Investigation Department (“CID”) with threats of detention. However, the IAA placed significant weight on the applicant’s account that the threats of detention did not eventuate. It noted that the applicant was able to live and work openly in 2002 and that after returning from abroad in 2008 he was able to open a business. For these reasons the IAA was not satisfied that the applicant was imputed with an LTTE profile (at [23]).
The IAA accepted that the applicant was the subject of extortion demands that commenced in mid-2012. However, the IAA was not convinced that the applicant was being visited every day at his shop and threatened. The applicant continued to live at home and open his shop for several months until he left in May 2013. The IAA accepted that it was plausible that the CID and Eelam People’s Democratic Party (“EPDP”) passed the shop regularly (on a daily basis) and made demands. However, the IAA was not satisfied that this harassment was due to any suspicion of the applicant’s connection to the LTTE (at [24]).
The IAA had concerns about the applicant’s claim that he was harassed by the Angeyan Group. However, the IAA found that, even if the claim was accepted, the applicant did not come to harm as a result of refusing to assist the group (at [25]).
The IAA accepted that the applicant’s experiences in 2012 would have been disturbing. However, the IAA took into consideration a wide range of country information that demonstrated that the security situation has improved significantly since the applicant’s departure and the change in government in 2015 (at [26]-[31]).
The IAA referred to country information regarding human rights abuses in 2015 against LTTE sympathisers and the continued use of the Prevention of Terrorism Act. The IAA was not satisfied that the applicant had a profile of a LTTE sympathiser or a profile that would attract adverse attention (at [29]).
The country information demonstrated that there had been a demise in the EPDP. It also indicated that the Angeyan Group was aligned with the former government which is no longer in power. The IAA, having accepted that the applicant may have been visited by the CID and EPDP, found that this was not because the applicant was of adverse interest. Rather, this evidenced routine monitoring at the time. The IAA was thus not satisfied that the applicant would face harm in the foreseeable future from these groups (at [32]–[34]).
The IAA found that, even if the applicant’s shop had closed, he could choose to reopen his shop (at [35]). The IAA also considered whether there was any risk of harm as a result of the applicant having to return on temporary travel documents (as he no longer had a passport). The IAA found that any processing that the applicant was required to undertake would not cause him any harm (at [36]).
Referring to country information, the IAA found that there was no evidence that the applicant would attract adverse attention in Sri Lanka for being a failed asylum seeker (at [37]). The risk of mistreatment for returnees was seen as low. Hence, it was concluded that the applicant did not face a real risk of being subjected to mistreatment as a returnee (at [43]).
Taking into account its various findings, the IAA was not satisfied that the applicant engaged Australia’s protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act (at [39] and [44]).
Proceedings in this Court
The application for judicial review contains three grounds as follows:
1. Jurisdictional error
2. Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3. Identifying a wrong issue on a wrong question.
(Without alteration)
The affidavit of the applicant affirmed 1 February 2018 relevantly states:
…
2. In an order given by Judge Lucev, dated the 15th of November 2017 a writ of mandamus stated specifically with reference to judgments given that my case was not examined within the term “exceptional circumstances” as stated in the Migration Act 1958 sections 437 DD. The case number was DTI17, and the file number PEG450/2017.
3. I submit that this direction was not properly examined in the decision handed down by the Immigration Assessment Authority handed down on the 8th of January 2018.
4. I have a well-founded fear to return to Sri Lanka due to my ethnicity, social grouping as coming from the fishing caste and my perceived connections with the LTTE.
(Without alteration)
The affidavit of the applicant affirmed 13 May 2018 contained as follows:
2. I present my case without the assistance of a lawyer. .
3. I am a Tamil whose home is situated within the Northern Province of Sri Lanka where there was a civil war lead by the LTTE for an independent Sri Lankan Tamil State.
4. As seen in the records my family and I were subject to harassment by the Sri Lankan armed forces on the grounds that we had connections with the LTTE.
5. The armed forces of Sri Lanka have tremendous power under the Prevention of Terrorism and I am sure that if I return to Sri Lanka I will be arrested, detained by the armed forces without an immediate recourse to the courts of law.
6.The UNHCR is presently investigating allegations of human rights abuses caused by the Sri Lankan armed forces on Sri Lankan Tamils perceived to have had connections with the LTTE.
7.I have therefore a well-founded fear of retuning to Sri Lanka and seek protection in Australia under the Migration Act 1958.
(Without alteration)
The applicant filed a further affidavit on 6 March 2020. While filed without leave of the Court, the Court will address this affidavit in the consideration below.
The Court recognises (as the applicant states at [2] of his second affidavit) that he has not had the benefit of legal assistance. In this context, the Court has remained alert to any identifiable error in the IAA’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Further, noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained to him what this Court can and cannot do. The Court explained that its task is limited to assessing whether the IAA fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the IAA’s decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court asked the applicant to explain what he thought the IAA “did wrong”. In effect, the applicant told the Court that Tamils in Sri Lanka are still treated with suspicion. He showed the Court his severed finger and explained that it attracted the attention of the authorities. He said he was telling the truth and if he returns to Sri Lanka, the same thing will happen to him.
Regrettably, the applicant’s oral submissions were directed at the merits of the IAA’s decision. The Court cannot consider the applicant’s claims afresh. Each of the matters that the applicant’s raised in his oral submissions was specifically addressed by the IAA. The applicant’s submissions simply invite the Court to engage in impermissible merits review.
Consideration
Ground 1
Jurisdictional Error
Ground 1, without particulars, makes it difficult for the Court (and the Minister) to gage what the applicant is alleging the IAA “did wrong”.
The Court (and the Minister) have considered the applicant’s affidavit affirmed 1 February 2018 as providing the necessary particulars to this ground of review.
The applicant appears to suggest (at [2]-[3] of his first affidavit) that the IAA erred in the same way as it did in relation to the previous IAA decision dated 3 August 2017. That is, the IAA erred when considering whether exceptional circumstances existed to consider the new information.
The applicant’s concerns here relate to the IAA’s consideration of the new information. Section 473DD of the Act prescribes the circumstances in which the IAA is allowed to have regard to new information. This section must be applied before the IAA can consider any new information.
Here, the following information was identified by the IAA as being “new”:
a)a statutory declaration of the applicant;
b)Confirmation of Learning documents and UNHCR guidelines;
c)a photograph of the applicant’s severed finger; and
d)general country information about the human rights situation in Sri Lanka.
The Court is satisfied that the IAA did not fall into the same error as it did in relation to its previous decision. Here, the IAA’s consideration of each of the new pieces of information was detailed and reflected a clear understanding of the requirements of s.473DD of the Act.
In relation to the statutory declaration, the IAA found that it (or the information within it) could have been provided to the delegate and that it was not credible personal information. In circumstances where the information in the statutory declaration did not meet either limb of s.473DD(b) (noting that the IAA’s reasons as to why it did not were sound), any error in the consideration of “exceptional circumstances” is not material. The requirements are cumulative.
In relation to the Confirmation of Learning documents and UNHCR guidelines, again the IAA found that the information did not satisfy the requirements of s.473DD(b). The IAA found that the information could have been provided to the delegate. It accepted that the information was credible personal information. However, it was not credible personal information that could have affected the delegate’s consideration of the applicant’s claims (as the information which these documents provided was not in dispute before the delegate). As such, the requirements of s.473DD(b) were not met and the IAA could not consider the information. The IAA went on to state that, for the same reasons, it was not satisfied that there were exceptional circumstances to consider the information. It is open to the IAA to take into account the matters in s.473DD(b) when determining if s.473DD(a) is met. Here, there was no error in doing so.
In relation to the photograph of the applicant’s severed finger, in CVV16 v Minister for Home Affairs [2019] FCA 1890, the Court held that “showing” the delegate something amounts to it being “before the Minister”. The IAA expressly noted that the applicant had shown the delegate his severed finger. The Court has some reservations about whether the photograph was “new information” when it was, in effect, shown to the delegate and simply captured what was shown. However, even if there was an error in considering the photograph as “new information”, this was not material. The IAA accepted that the applicant had a severed finger (see [23] and [38]). Hence, any error in this regard was not material.
Finally, in relation to the country information it is noted that the IAA did consider the more recent country information that was provided as it was satisfied that exceptional circumstances existed for it to do so. The country information that was not considered was information that pre-dated the delegate’s decision and country information, by its nature, is not generally credible personal information. Hence, the requirements of s.473DD(b) were not met. Further, the IAA went on to reference the sources of the documents and the age of the information when finding that exceptional circumstances did not exist. Here, the IAA took into account all of the circumstances to determine if the information met s.473DD(a). The IAA’s assessment of this “new information” was without error.
The Court is not satisfied that the IAA erred in the same manner as it was found to have done in the IAA’s previous decision, that is, the IAA’s decision dated 3 August 2017.
As for [4] of the applicant’s first affidavit, it is noted that the IAA addressed the applicant’s fear of harm on the basis of his ethnicity and perceived connection to the LTTE. It was not satisfied that the applicant would face any harm for those reasons (at [38]). That finding was open to it.
As for the claim regarding the applicant coming from a fishing caste, this was found to be new information and the IAA was not satisfied that the information met the criteria. Hence, the IAA was not required (or allowed) to consider this information.
Ground 1, accordingly, is dismissed.
Ground 2
Bias based on conscious or unconscious prejudice by ignoring relevant materials.
It is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the IAA, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the IAA, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Here, there is nothing from which a fair minded lay observer would apprehend that the IAA did not bring an independent mind to the decision or had pre-determined the application. The IAA carefully considered the applicant’s claims and evidence, it gave the applicant the benefit of the doubt (see [24]) and it referred to independent sources of country information.
The Court notes the more recent discussion in CNY17 v Minister for Immigration & Border Protection [2019] HCA 50 which specifically refers to bias in matters before the IAA. The Court notes that the IAA made reference to the materials provided pursuant to s.473CB and that some materials had been provided in “error” (as they related to another person). The IAA stated that it did not have regard to these documents. On that basis, the IAA cannot be said to have had regard to irrelevant materials. Further, there is nothing in the materials before the Court that suggest that the IAA could consciously or subconsciously be prejudicially influenced against the applicant.
Insofar as ground 2 alleges bias, it must be dismissed.
As for the claim that the IAA ignored relevant material, the IAA had regard to each of the applicant’s claims (as it was required to do). The IAA referred (in detail) to the applicant’s evidence and the written submissions before it. As already noted, the IAA did not consider the new information and there is no error in this regard. Hence, any failure to have regard to matters that arose in the new information does not disclose any error.
Ground 2, accordingly, is dismissed.
Ground 3
Identifying a wrong issue on a wrong question.
Again, without particulars it is difficult to identify what “wrong issue” or “wrong question” was addressed.
The Court is satisfied that the IAA considered and determined the applicant’s visa application in accordance with the relevant legislative provisions and legal principles. The IAA correctly summarised the criterion for the grant of the visa and demonstrated a sound understanding of those provisions (see [26]).
Ground 3, accordingly, is dismissed.
Applicant’s second affidavit
The applicant’s second affidavit affirmed 15 May 2018 repeats the applicant’s circumstances and why he fears harm in Sri Lanka.
Most of the matters raised in the applicant’s affidavit (at [3], [4] and [7]) invite the Court to engage in impermissible merits review. The applicant appears to be expressing disagreement with the IAA’s decision by repeating his circumstances and saying that he will suffer harm. They do not identify any jurisdictional error on the part of the IAA. The IAA actively considered and analysed these matters.
To the extent that the applicant refers to the Prevention of Terrorism Act, the IAA acknowledged the country information that expressed concern with this legislation. However, the IAA ultimately found that the applicant did not have a profile of a kind that would attract the adverse attention of the authorities (at [29]). Therefore, to the extent that [5] of the applicant’s second affidavit can be taken to be a claim that the IAA failed to consider the Prevention of Terrorism Act, the Court does not agree.
In relation to [6] (wherein the applicant refers to the UNHCR “presently investigating”) this is irrelevant to the Court’s task on judicial review. In effect, it asks the Court to disagree with the IAA’s findings as a result of current investigations. There was nothing in the materials before the IAA that referred to a current investigation by the UNHCR and the Court cannot address that issue here.
The applicant’s second affidavit fails to identify any jurisdictional error.
Applicant’s third affidavit
While filed without leave, the affidavit of the applicant affirmed 6 March 2020 contained 4 Annexures.
Annexure I states as follows:
2. There was jurisdictional error when the provisions of the Prevention of Terrorism Act and regulations framed under the Public Security Act of Sri Lanka was not examined in depth as it relates to the protection at present and in the past of Tamils like me living in the North of Sri Lanka.
3. The LTTE is banned in Sri Lanka as a terrorist group and persons perceived to have and had connections with them are arrested and detained by the arm forces acting under the provisions of the Prevention of Terrorism Act.
4. As I fall into this category I have a fear that I will be arrested and detained if I return to Sri Lanka.
5. The current President of Sri Lanka has had a bad record of committing human right abuses against the Tamils of Sri Lanka living in the North and East of the country.
6. I therefore have a well founded fear of returning to Sri Lanka.
(Annexure I, Without alteration)
In relation to [2]-[4], the Court considers that the IAA’s finding at [29] expressly addressed these matters. The IAA stated as follows:
The US Department of State continued to report human rights abuses in 2015 and noted cases of harassment, arbitrary arrest, detention and torture of civil society activists, journalists, and LTTE sympathisers. Reports from Amnesty International and other agencies express concern at the continued use of the Prevention of Terrorism Act, however I am not satisfied that the applicant would be viewed as an LTTE sympathiser or otherwise has a profile that would attract the adverse attention of the CID, or security agencies, or others in Sri Lanka.
The IAA expressly found that the applicant would not be a person who was suspected of assisting the LTTE or would be perceived as having actual or imputed LTTE links. It was unnecessary for the IAA to examine in depth the Prevention of Terrorism Act in circumstances where the information the applicant provided indicated that the Prevention of Terrorism Act was being used against LTTE sympathisers and those with suspected links (CB 225). The applicant was found not to fit that profile.
In relation to [5] and [6], these matters concern the merits of the IAA’s decision and the applicant’s pleas for meeting the criteria. They do not identify any jurisdictional error.
Annexures II appears to contain an article published in the Tamil Guardian in 2015. There is no indication that this was in the materials that were before the delegate or the IAA.
Annexures III and IV are news articles which postdate the IAA’s decision. These articles clearly were not before the IAA.
The Court ought not to take into consideration materials which post-date the IAA’s decision: WZATI v Minister for Immigration & Border Protection [2015] FCA 923. It is also apparent that the purpose of providing these materials was to invite the Court to disagree with the IAA’s decisions and findings of fact: Tesic v Minister for Immigration [2017] FCAFC 93 at [55]. Were the Court to do so, it would be engaging in impermissible merits review.
The applicant’s third affidavit fails to identify any jurisdictional error.
Conclusion
The application for judicial review and the applicant’s affidavits fail to identify any jurisdictional error in the IAA’s decision. The Court is otherwise satisfied that no error arises in the IAA’s decision.
The application, accordingly, is dismissed.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 13 March 2020
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