AMW18 v Minister for Home Affairs
[2024] FedCFamC2G 1186
•11 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMW18 v Minister for Home Affairs [2024] FedCFamC2G 1186
File number(s): MLG 274 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 11 November 2024 Catchwords: MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that applicant is not a person in respect of whom Australia has protection obligations – whether it was unreasonable for the Authority not to exercise the power in s 473DC of the Migration Act 1958 (Cth) – whether the Authority failed to assess “new information” against the criteria provided for in s 473DD - found the information provided by the applicant was not “new information” – found the Authority had regard to certain evidence provided by the applicant – whether finding’s made by the Authority were irrational or illogical - found that there was a proper and logical basis for the Authority’s findings – found no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2), 65, 473DA, 473CB, 473DB(1), 473DC, 473DD, 473GA, 473GB, 474, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Border Protection v CED (2020) 94 ALJR 706
Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Plaintiff M174/2016 v Minister for Immigration and Border Protection and Another [2018] HCA 16
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 9 September 2024 Place: Melbourne Counsel for the Applicant: Mr Overend Solicitor for the Applicant: WLW Migration Lawyers Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
MLG 274 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMW18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
11 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Amended Application filed on 13 August 2024 be dismissed.
3.The Applicant pay the First Respondent’s costs in an amount to be fixed, if not agreed.
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 J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 13 August 2024, in which the applicant seeks judicial review of a decision of the second respondent (Authority) dated 22 January 2018. By that decision, the Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (Visa).
CONTEXT
The applicant is a citizen of Sri Lanka.
On 13 October 2012 the applicant arrived in Australia by boat as an unauthorised maritime arrival.
On 23 December 2015, the Department of Immigration and Border Protection (Department) sent the applicant an invitation to apply for a Temporary Protection visa or a Safe Haven Enterprise visa.
On 13 October 2016, with the assistance of a migration agent, the applicant applied for the Visa. The applicant’s claims were set out in a Statutory Declaration dated 4 October 2016 attached to his Visa application (Statutory Declaration dated 4 October 2016). Relevantly, the applicant’s claims for protection can be summarised as follows:
(1)the applicant is a Hindu Tamil from Jaffna in the Northern Province;
(2)in January 2005, the applicant travelled to the Vanni to attend his sick uncle, returning in 2006;
(3)during that period, the applicant was forced by the Liberation Tigers of Tamil Eelam (LTTE) to join them and undertake weapons training. The applicant was detained for one day before escaping from the LTTE’s training facility and returning to Jaffna;
(4)in 2008, he was arrested, detained for a day and beaten by the Sri Lankan Army (SLA) on the basis of being a suspected LTTE member. The SLA questioned him about possible LTTE members and supporters. Following his release, he was made to report to the SLA for a period of four months;
(5)seeking to avoid further arrest and detention by the SLA, the applicant went into hiding for approximately one year at his aunt’s place, which was 25km away from his parents’ place;
(6)the applicant felt he could not continue to hide and fled the country to Malaysia where he was granted refugee status before coming to Australia; and
(7)the applicant’s family and friends have told him that the SLA and police force frequently go to their homes and ask about his whereabouts.
On 23 February 2017, the Department invited the applicant to attend an interview on 16 March 2017 to discuss his Visa application (Visa Interview). The applicant further expanded upon his claims at the Visa Interview.
On 13 April 2017 the Delegate refused to grant the applicant the Visa (Delegate’s Decision).
On 18 April 2017, the Delegate’s Decision was referred to the Authority for review.
On 8 May 2017, the applicant’s newly appointed migration agent emailed the Authority and provided a submission on behalf of the applicant (IAA Submission) and a further Statutory Declaration of the applicant dated 8 May 2017 (Further Statutory Declaration). The Further Statutory Declaration contained three new claims:
(1)the applicant worked for the LTTE intelligence unit and in January 2006 was posted to Jaffna to gather information on the movements of the SLA and civilians who were assisting the SLA;
(2)sometime in March 2008, the SLA apprehended the applicant. The SLA interrogated and severely beat him, and confiscated his identify documents. The applicant denied being an LTTE member; and
(3)the applicant hid at his aunt’s house until he found a smuggler who arranged his passport and travel from Sri Lanka to Malaysia.
On 22 January 2018, the Authority affirmed the Delegate’s Decision not to grant the applicant the Visa.
IMMMIGRATION ASSESSMENT AUTHORITY DECISION
The Authority issued its statement of decision and reasons on 22 January 2018 (Authority Decision).
Information considered by the Authority
At paragraph [2] of the Authority Decision, the Authority stated that it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act).
At paragraph [3], the Authority stated that it had received the IAA Submission and Further Statutory Declaration, noting that the Further Statutory Declaration made arguments in relation to issues before the Delegate. At paragraph [5] the Authority noted that the Further Statutory Declaration contained a statement by the applicant that he felt threatened and intimidated throughout the Visa Interview and notes that the applicant did not explain the relevance of this. After considering the evidence available to it, at paragraph [7] the Authority found that the delegate who conducted the Visa Interview did not appear overbearing or intimidating and was satisfied that the applicant was not prevented from presenting his case.
At paragraph [8], the Authority noted that the Further Statutory Declaration raised three new claims, as outlined above at paragraph [9] herein. The Authority noted that the applicant’s oral evidence as to why he did not raise these claims earlier was that he had received advice from interpreters and other asylum seekers in Australia who told him that admission of LTTE membership would prolong his detention and lead to the rejection of his Visa application. At paragraph [10] the Authority noted that the IAA Submission raised a further new claim, being that as a result of the applicant’s LTTE membership, he will be sent for rehabilitation upon return to Sri Lanka.
At paragraph [12] of the Authority Decision, the Authority noted that the applicant received assistance from a registered migration agent in preparing his Visa application. The Authority considered the applicant’s arguments as to why he did not provide the information earlier, but ultimately was not satisfied that the applicant could not have provided this information at the Visa Interview, particularly given the applicant had been residing in Australia for more than four years by the time he was interviewed. The Authority was not satisfied that the information was credible personal information that had it been known may have affected the consideration of his claims or that the information could not have been provided to the Delegate before a decision was made. Further, the Authority was not satisfied that exceptional circumstances existed to justify considering the new information.
At paragraph [14] of the Authority Decision, the Authority noted that the IAA Submission also included new information in the form of three new sources of country information. The Authority found that the three sources of country information all predated the Delegate’s Decision. The Authority noted that while the applicant was unrepresented at the Visa Interview, he had received legal assistance in the preparation of the Visa application and confirmed he had understood the importance of providing all relevant information in the first instance. Accordingly, the Authority was not satisfied that the IAA Submission could not have been provided before the Delegate’s Decision, nor was it satisfied that the general country information contained credible personal information that had it been known may have affected the consideration of his claims. Further, the Authority was not satisfied that exceptional circumstances existed to justify considering the new information.
Consideration of claims
At paragraph [15] of the Authority Decision, the Authority summarised the applicant’s claims for protection.
At paragraphs [19] – [22], the Authority made a number of findings accepting the applicant’s claims. The Authority accepted that that the applicant was born in Jaffna which was an LTTE active area during the civil war and that many Tamils reported being arrested and detained by security forces during this time. The Authority accepted that in 2005 the applicant travelled to the Vanni to care for his sick uncle and that in 2006 the LTTE tried to recruit him while he was in the Vanni. The Authority accepted that in early 2008 the SLA detained and interrogated the applicant regarding his suspected LTTE support, and that when he was unable to identify those in his community who supported the LTTE, he was beaten. However, the Authority considered the applicant’s release after one day indicated he was not a person of ongoing interest to the SLA at that time.
At paragraphs [23] – [33], the Authority identified significant concerns regarding the veracity of the applicant’s remaining claims.
At paragraph [23] the Authority summarised the applicant’s claim that in March 2008, informers told the SLA that the applicant had spent a year in the Vanni during which time he had joined the LTTE. The applicant claimed that as a result of this, the SLA required him to report to their camp every week, which then increased to three times a day and was ordered to stay in his house which prevented him from attending school. The Authority found the applicant’s claim inconsistent with his school attendance record.
At paragraph [25] the Authority summarised the applicant’s claim that in August 2008 he hid at his aunt’s house in Jaffna which prompted the SLA to ask his family and neighbours about his whereabouts due to his failure to report to the camp. The Tribunal referred to country information which indicated that the applicant’s home was approximately 13km from his aunt’s home, and given this “relatively short distance”, the Authority considered it highly improbable that the SLA would make no effort to locate him at his aunt’s house when he breached his reporting requirement.
At paragraph [27] – [31] the Authority considered the applicant’s claim that in order to leave Jaffna and travel to Colombo he paid a bribe of 25,000 rupees to a person who was involved in the issuance of SLA leave passes. Whilst the Authority was prepared to accept that the applicant may have paid a bribe, the Authority found that the applicant paid this money to have his pass expedited, not because he had a problem with the SLA. Upon consideration of country information, at paragraph [31] the Authority did not consider it credible that the applicant would have been able to depart Colombo airport without incident if the SLA were searching for him for breaching his reporting requirements, and because of his suspected involvement with the LTTE.
Accordingly, at paragraph [32], the Authority did not accept that the applicant was ever required to report to the SLA, that he was ever in hiding or that he was a person of interest to the SLA at the time of his departure.
At paragraphs [34] – [39] the Authority considered relevant country information relating to Tamil’s in Sri Lanka. At paragraph [39], the Authority was not satisfied that the applicant is, or will be, of interest to the SLA because of his status as a young Tamil male from the North, his previous interactions with the LTTE, or his previous interactions with the SLA. Based on the applicant’s personal circumstances and the greatly improved country information, the Authority found the applicant does not face a real chance of harm for any of these reasons should he return to Sri Lanka.
At paragraphs [40] – [42], the Authority considered the applicant’s claim to fear harm as a returning asylum seeker. The Authority noted the applicant departed Sri Lanka legally on his own passport but accepted that he may be returned involuntarily and such returnees are processed by different agencies which may take several hours. The Authority was satisfied that the process of questioning a person, checking law enforcement databases and contacting police and family in the person’s home area to corroborate identity, does not amount to serious harm. The Authority found there to be no credible evidence to suggest that the applicant would be imputed with LTTE involvement or with anti-Sri Lankan government political opinion as a person who has sought asylum in Australia.
Accordingly, the Authority was not satisfied that the applicant met the criteria in sections 36(2)(a) or (aa) of the Act and thereby affirmed the Delegate’s Decision.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Authority Decision on 5 February 2018. The applicant filed an Amended Application on 13 August 2024 which contains the following grounds for judicial review (without amendment):
1.In considering the Applicant’s claims about hiding at his aunt’s house whilst the SLA tried but failed to find him, the IAA (at [26]):
(a)Acted unreasonably in failing to exercise its discretion under section 473DC(3) to allow the Applicant to respond to Google Maps search information obtained by the delegate following the hearing,
(b)Failed to identify and or assess relevant new information per sections 473DC and 473DD, being information regarding the authorities searching for the Applicant at his aunt’s house provided in the statutory declaration dated 8 May 2017 (at CB 119, [5]), and thus failed to undertake its legislative task,
(c)Ignored, or unreasonably gave no weight to relevant evidence and or submissions, being again, the information regarding the authorities searching for the Applicant at his aunt’s house provided in the statutory declaration of 8 May 2017.
2.The IAA acted unreasonably, irrationally or made a finding without evidential basis in finding that:
(a)The Applicant had no “profile of any sort with the Sri Lankan authorities” (at [33]) and or
(b)That there was “no credible evidence before [it] that [the Applicant was] of interest to the Sri Lankan authorities” at [42], and or
(c)That the Applicant’s evidence suggested that he paid a bribe because he wanted his passport processing expedited and not because he was having trouble with the SLA (at [28]).
The applicant filed the following further material in support of the Amended Application:
(1)an affidavit annexing a copy of the Authority Decision filed on 5 February 2018;
(2)written submissions filed on 12 August 2024;
(3)an affidavit annexing a transcript of the applicant’s entry interview and Visa Interview filed on 12 August 2024; and
(4)a list of authorities filed on 30 August 2024.
The Minister filed a Response on 21 February 2018. The Response sought orders that the application be dismissed and orders as to costs on the ground that the Authority Decision is not affected by jurisdictional error.
The Minister also filed written submissions and an affidavit annexing a ‘Google Maps’ search on 26 August 2024.
The Hearing
The hearing took place on 9 September 2024.
The applicant was represented by Mr Overend of Counsel. The Minister was represented by Mr Barrington of Counsel.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
LEGISLATIVE CONTEXT
The Authority’s review was conducted under Part 7AA of the Act.
Part 7AA of the Act provides a fast track review process in relation to certain protection visa decisions. Under Part 7AA, the Authority must review a “fast track review decision” made by the Minister refusing under s 65 to grant a protection visa to a "fast track applicant”.
The presently relevant sections of Part 7AA are as follows.
Section 473DA provides as follows:
(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 a referred application any material that was before the Minister when the Minister made the decision under section 65.
Division 3 of Part 7AA (together with ss 473GA and 473GB) is therefore taken to be an exhaustive statement of the requirements of the natural justice rule in relation to a review conducted by the Authority: s 473DA(1).
Section 473DB(1) provides as follows
Immigration Assessment Authority to review decisions on the paper
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
Section 473DC provides as follows:
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 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;
(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.
In considering the exercise of the discretion to invite an applicant to give new information, especially at interview under s 473DC(3)(b), Kiefel CJ, Bell, Gageller and Keane JJ in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 stated at [3]:
The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.
(Footnotes omitted).
The correct approach to considering new information pursuant to s 473DD was set out in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (AUS17) where, at [11] – [12] the High Court said:
Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
(Footnotes omitted).
CONSIDERATION
Ground 1
By Ground 1 the applicant makes three related submissions with respect to the Authority’s use of a Google map (Map), which showed the relative locations of the applicant’s home with his parents in Chavakachcheri and his aunt’s home in Ariyalai. The Minister provided a copy of the Map annexed to the affidavit filed on 26 August 2024.
The applicant relies on Plaintiff M174/2016 v Minister for Immigration and Border Protection and Another [2018] HCA 16 (Plaintiff M174) in support of his submissions.
Ground 1(a)
Firstly, the applicant submits that the Authority acted unreasonably in not exercising the power in s 473DC of the Act to invite the applicant to comment on the Map given that the applicant had not been afforded the opportunity to review and/or comment on this information at any time prior to the Delegate or the Authority’s decision.
Ground 1(b)
Secondly, the applicant submits that the Authority failed to consider the evidence and explanation provided by the applicant about the Map in the Further Statutory Declaration. The applicant asserts that the Further Statutory Declaration provided “new information” about the Map and the difficulty that the military would have in locating him without specific information about his aunt’s house, which the Authority failed to assess against the criteria provided for in s 473DD. In so doing, it is submitted, the Authority failed to discharge its legislative task.
Ground 1(c)
Thirdly, in the alternative to Ground 1(b), if the evidence and explanation within the Further Statutory Declaration is not “new information”, the applicant submits that the Authority ignored or unreasonably failed to place any weight on the evidence and explanation provided by the applicant in the Further Statutory Declaration. The applicant submits that the Authority’s reasons at paragraphs [25] – [27] demonstrate this, particularly the Authority’s finding at paragraph [26] that the SLA made “no effort to locate him at a relative’s house when he breached his reporting requirements.”
Consideration
Ground 1(a)
Firstly, as to the applicant’s reliance on Plaintiff M174, at the hearing the applicant conceded that there had been no breach of s 57 of the Act by the Delegate. The applicant concedes that the Map was country information, being information of a general nature and not information specific to the applicant. The Delegate was therefore not required by s 57 of the Act to give particulars of the information to the applicant and invite comment on it. Accordingly, the Delegate was not in breach of any procedural requirement under the Act and the Authority was therefore not required to consider the exercise of the power under s 473DC to cure a breach of the Code of Procedure by the Delegate. The applicant’s reliance on Plaintiff M174 is consequently misplaced.
Secondly, for the reasons that follow, there was no unreasonableness in the Authority not exercising the power under s 473DC to invite comment on the Map. It is uncontested that the Delegate relied on the Map and that the Delegate did not put the Map to the applicant for comment. The Delegate’s Decision contains that following statement:
The applicant’s claim to be hiding from the SLA by staying in his aunt’s house in Ariyalai from August 2008 to August or September 2009, also in Jaffna District, is inconsistent with his claim the SLA were looking for him and came to his family home in Chavakachcheri, asking where the applicant’s relatives lived in order to find him. When put to the applicant, he claimed the SLA would not leave their own area to travel to Ariyalai. I note that Ariyalai is between Chavakachcheri and Jaffna Town and appears to share a municipal boundary with both towns…
The last sentence of the above paragraph has a footnote which provides: “CISEDB50AD3866: "Chavakachcheri and Ariyalai suburbs in Jaffna", Google Maps, 12 April 2017.”
The Delegate’s Decision then provides as follows:
…Given the efforts undertaken to find members of the LTTE in the final stages of the war and particularly in the months afterwards, I consider the claim the SLA would not travel from one neighbourhood to the next in search of a wanted suspect to be lacking in common sense and not plausible. As such, I do not consider it plausible the applicant could be in hiding in his aunt’s house, in the next suburb from his own, and not be found by the SLA when they had specifically sought out the applicant’s relatives in order to locate the relatives.
The applicant therefore knew of the Delegate’s reliance on the Map. Further, at paragraph [5] of the Further Statutory Declaration the applicant commented on this information saying:
The delegate questioned my hiding from the military by staying in my aunt's house in Ariyalai by claiming my family home Chavakchcheri and Ariyalai are adjoining neighbourhood and appears to share a municipal boundary with both towns. These two suburbs are not next to each other as claimed by the delegate and there are other suburbs such as Navatkuly, Kaithady, Nunavil, Chemmani wedged between them. It wouldn't be easy for the military to locate me unless they have specific information about my aunty.
In circumstances where the applicant was clearly aware of the information from the Map relied upon, had commented upon it and made submissions that there were in fact suburbs between Chavakachcheri and Ariyalai, I do not consider it was unreasonable for the Authority not to exercise the power in s 473DC of the Act.
Ground 1(b)
As to this ground, the Minister submits that the explanation provided by the applicant was not new information, rather it was a submission about the different suburbs that existed between Chavakachcheri and Ariyalai. It was therefore not required to be assessed pursuant to s 473DD of the Act. I accept that submission.
Sections 473DC and 473DD clearly confine the circumstances in which the Authority may be called upon to consider “new information”: Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 at [18]. In Plaintiff M174, Gageler, Keane and Nettle JJ observed at [24] that:
The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).
In Minister for Immigration and Border Protection v CED (2020) 94 ALJR 706 at [21] Gageler, Keane, Nettle and Gordon JJ, after referring to the above comments, said:
Adapting to the scheme of Pt 7AA the subsequent holding in SZMTA concerning the same terminology in Pt 7 of the Act, "[t]he term 'information' in the context of [Div 3] cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature (footnotes omitted).
As submitted by the Minister, applying the above, properly understood, the applicant was making a submission about an established pool of factual information. The applicant did not supply “knowledge of facts or circumstances relating to material or documentation of an evidentiary nature” which was not already before the Delegate. The Map and therefore the existence of the suburbs between Chavakachcheri and Ariyalai was known to the Delegate.
Ground 1(c)
As to Ground 1(c) I reject the applicant’s submission in the alternative that the Authority ignored or unreasonably failed to place any weight on the evidence and explanation provided by the applicant in the Further Statutory Declaration.
I accept that in its reasons the Authority did not expressly refer to the fact that there were suburbs between Chavakachcheri and Ariyalai. However, the Authority is not required to expressly refer to every submission made to it. At paragraph [3] of its decision the Authority notes that the applicant provided the IAA Submission on 8 May 2017 and at paragraph [4] that the Further Statutory Declaration was attached to the IAA Submission. Accordingly, the Authority was aware of the IAA Submission and the Further Statutory Declaration and says it has noted them. Further, at paragraph [26] the Authority said:
The applicant then added that each area in Jaffna had its own SLA camp, and that SLA personnel did not search for wanted individuals beyond their own distinct area of operations. Country information before the delegate indicates that the applicant's home in Chavakachcheri and his aunt’s home in Ariyalai are both located within Jaffna district, and are approximately 13 kilometres, or a 25 minute drive, apart. Given the relatively short distance, and the applicant's claim that the SLA had regularly asked for the details of his other relatives when they searched for him at his parents’ house, I consider his response in this regard lacks credibility. I also consider it highly improbably that the applicant would be of such interest to the SLA that they would require him to report three times a day, as claimed, yet make no effort to locate him at a relative’s house when he breached his reporting requirement.
(Court’s emphasis).
In light of the above and paragraphs [3] and [4] of the Authority’s decision, I consider that on a fair reading of the Authority’s decision it can be inferred that the Authority had regard to the evidence and explanation provided by the applicant in the Further Statutory Declaration. In contradistinction to the approach taken by the Delegate, the Authority did not rely on Chavakachcheri and Ariyalai being adjacent suburbs, but considered the distance between them in both kilometres and driving time. I consider this is responsive to the applicant’s submission that there are a number of suburbs between Chavakachcheri and Ariyalai.
Finally, as to the applicant’s reliance on the Authority’s finding at paragraph [26] that the SLA made “no effort to locate him at a relative’s house when he breached his reporting requirements”, that finding must be read in context and when done so does not, in my view, support a conclusion that the Authority overlooked the applicant’s submissions contained in the Further Statutory Declaration. At paragraph [25] the Authority said:
… The delegate asked the applicant if the SLA then came to his aunt’s house to look for him and he responded that they wouldn’t come that far.
Paragraph [26] is set out above.
Accordingly, the finding was based on the credibility of the applicant’s response, in light of the relatively short distance and the applicant’s claim that the SLA had regularly asked for the details of his other relative when searching for him at his parents’ house and the improbability that the SLA would not search a relative’s house when the applicant breached his reporting requirements when it required him to report three times a day. Contrary to the applicant’s submission, I consider this reasoning demonstrates an engagement with the applicant’s submissions. It engages with both the applicant’s submissions that the two suburbs are not next to each other and enquiries made in relation to the applicant’s relatives.
Accordingly, none of the grounds advanced under Ground 1disclose any jurisdictional error on the Authority’s behalf.
Ground 2
By Ground 2 the applicant submits firstly that the Authority’s findings at paragraph [33] of its decision that the applicant did not have “a profile of any sort with the Sri Lankan authorities” and at paragraph [42] that there was no credible evidence that the applicant was of interest to the Sri Lankan authorities, were irrational or unreasonable. The applicant submits that these findings by the Authority are inconsistent with the Authority’s earlier acceptance at paragraph [22] of its decision that in 2008 the applicant was previously detained, interrogated and beaten by the SLA and ordered to identify those in his community who supported the LTTE. Secondly, the applicant submits that there was insufficient evidence for the Authority to find at paragraph [28] of its decision that whilst it was “prepared to accept the applicant may have paid a bribe, his evidence suggested that this was because he wanted his pass expedited” and accordingly made this finding without evidential basis.
Consideration
The characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicant must do more than merely disagree with the reasoning or resulting finding: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ. Engaging in a process of reasoning that is illogical or irrational is taken to refer to “extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
As to the first submission in relation to the Authority’s findings at paragraphs [33] and [42], I accept the Minister’s submissions that the applicant seeks to isolate aspects of the Authority’s findings without proper context. The decision must be read as a whole and in context.
At paragraph [22] of its decision the Authority said:
I accept in early 2008, as the final stages of the war intensified, the SLA detained the applicant, along with many other civilians in Jaffna, for questioning. I accept the SLA interrogated the applicant regarding his suspected LTTE support, and he was ordered to identify those in his community who supported the LTTE. I accept that when the applicant was unable to do so, he was beaten. However, I consider the applicant's release after one day indicates he was not a person of ongoing interest to the SLA at that time.
Accordingly, whilst the Authority did find that the applicant had been detained, interrogated and beaten and ordered to identify those in his community who supported the LTTE it immediately then said, “I consider the applicant’s release after one day indicates he is not a person of ongoing interest to the SLA at that time.” The Authority then rejected the balance of the applicant’s remaining claims (including that he was ever in hiding). Further, at paragraph [27] the Authority noted that the applicant did not have any difficulty lodging his passport application. In addition, at paragraph [29] the Authority had regard to the fact that the applicant did not have any difficulties leaving Sri Lanka from Colombo airport, noting that country information before the Delegate indicates that airline passengers departing Colombo have their passports checked against a centralised Department of Immigration and Emigration database and that in the final months of the civil war the Sri Lankan authorities remained focused on finding and detaining LTTE cadres and sympathisers. At paragraph [31] and [32] of its decision the Authority said:
Overall I do not consider it credible that the applicant would have been able to depart from Colombo airport without incident if the SLA were searching for him for breaching his frequent reporting requirements, and because he was suspected of LTTE involvement.
Given the problematic nature of the applicant's evidence throughout the SHEV interview, I do not accept that he was ever required to report to the SLA, that he was ever in hiding, or that he was a person of interest to the Sri Lankan authorities at the time of his departure from Colombo airport in August 2009.
At paragraphs [40] – [42] the Authority considered whether the applicant would face a real chance of serious harm should he return to Sri Lanka. At paragraph [40] the Authority noted that the applicant departed Sri Lanka legally, using his own genuine passport. At paragraph [42] the Authority said:
With reference to the applicant's personal circumstances, there is no credible evidence before me that he is of interest to the Sri Lankan authorities. The applicant also confirmed to the delegate he never had any LTTE involvement, beyond his brief experience in the Vanni. There is no credible evidence before me to suggest he would now be imputed with such involvement, or with an anti-Sri Lankan government political opinion, including because he has sought asylum in Australia. Returnees are treated according to these standard procedures, regardless of their ethnicity and religion, and I am not satisfied that he would face greater questioning than other returnees. On the evidence before me I am not satisfied that returning Tamil asylum seekers face a real chance of serious harm.
I consider, when read in context and as a whole, the Authority found that as at August 2009, being the time the applicant left Sri Lanka, and as at the date of the decision, the applicant had no profile of any sort with the Sri Lankan authorities. I consider that the Authority’s findings disclose an evident and intelligible justification and were reasonably open to it on the material before it. Those findings disclose no irrationality or unreasonableness. Accordingly, I reject the applicant’s submissions as to this.
As to the second submission, the applicant advanced no specific submissions as to this ground, either in writing or orally at the hearing. The transcript of the applicant’s Visa Interview with the Delegate on 16 March 2017 was before the Court (Transcript). From page 14 to page 18 of the Transcript the applicant responds to questions from the delegate about the process of obtaining a passport and army clearance to go to Colombo and leave Sri Lanka. The relevant sections of the Transcript are set out in Annexure A to this judgment. I consider those sections provide a justifiable basis for the Authority’s conclusion that the applicant’s evidence suggests that the bribe was to expedite his army clearance and that he had no difficulties with attending government offices or the army. Accordingly, I reject the applicant’s submission that this finding was made without evidential basis and or was irrational or illogical.
Ground 2 also discloses no jurisdictional error on the Authority’s behalf.
DISPOSITION
It follows from the above that the application must be dismissed.
The Minister seeks that the applicant pay its costs. Accordingly, I shall order that costs by paid by the applicant in an amount to be fixed if not agreed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 11 November 2024
ANNEXURE A
Simon: And were there any problems trying to get to Malaysia?
Translator: No.
Simon: Did you have to apply to leave Jaffna to go to Colombo?
Translator: Yes.
Simon: Can you tell me about that?
Translator:Yeah. There are procedure at that time, you have to obtain a army clearance so there's no problem due to him. Must obtain a army clearance.
Simon: How long does that take?
Translator:Well, if there's no problem, no issues, you can go directly and apply. Usually, it takes one or two months to get the clearance but if you have contacts, if you are willing to pay through someone, you can get it much quicker, if you drive.
Simon: And how long did it take you?
Translator:It took a while for me because some guys wouldn't know that I had contacts, they would cheat me but it took a while for me to get the right person because I had issues with the army to work on that and get a clearance.
Simon:What I'm trying to understand is that if you were in hiding, the first place the army went to was your parents' house and there, they ask about relatives which is where you were.
Translator: Yes.
Simon:All right. And then, you applied for a passport so you went to the government office, you went to the Sri Lankan government and said, "Here I am," and applied for passport and there were no problems?
Translator: Yeah, there are no questions there.
Simon:And then you applied to leave Jaffna and then, have to check with the army and they let you leave Jaffna?
Speaker 3: Mm-hmm (affirmative).
Simon:And then, you went to Colombo and you left to Colombo through Sri Lanka's international airport. And in Colombo or at the airport, they have a stop and a watch list, so anyone who's a suspect, they can put on that list.
Translator: I don't know how my name come up in the list.
Simon:You were able to go to the government several times and the army, and it looks like they weren't looking for you.
Translator:No. It took a while to bribe the army or the right person, to find the person to make the connection and it took a while. And usually, the airport doesn't get such names. I mean army names.
Simon:So what did you have to do to bribe people in the army? Can you tell me about that?
Translator:Yeah, I paid 25,000 rupees as a bribe to the officer, was issuing this through an agent and I was able to get it.
Simon: All right. When was that?
Translator: In 2009, around that time.
Simon: All right. And what did that get you?
Translator: They gave me a clearance to leave that area.
Simon: To leave Jaffna?
Translator: Yes.
Simon: Okay. So, who did you pay the money to?
Translator: The people who issued the clearance.
Simon: All right. So how did that work? Can you tell me about that?
Translator:I didn't go out. My uncle [Nan 00:54:36], they knew some people through contacts who have good relationship with government, maybe some people who are the, you know, the paramilitary groups, ties with paramilitary groups who have contacts with the army. Through them if you go, offer up a bribe, like a known person, they will get, they will issue the clearance.
Simon:But you went yourself to get your passport. You went yourself to get to the office at Jaffna.
Translator:The passport, myself and father applied. I had no problem in going to the government office and applying. And it will be sent by post to home. That's not an issue. It's the clearance the problem.
Simon:Before when I asked you if you had any problems trying to leave to get to Malaysia, you said you didn't have any problems, and now, you're saying you had to pay bribes.
Translator:That's true, I didn't have any problem going to Malaysia because I went from Singapore, I didn't have any problem.
Simon: Did you have any other problems trying to go to Singapore? Leaving Sri Lanka.
Translator:Getting the clearance was the only problem. Once I have the clearance and the passport, I had no issue in going to Singapore.
0
10
1