ANL17 v Minister for Immigration & Anor
[2020] FCCA 637
•27 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANL17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 637 |
| Catchwords: MIGRATION – PRACTICE AND PROCEDURE – Application for leave to rely on two additional grounds – whether proposed grounds sufficiently arguable to merit the granting of leave – one of the two grounds sufficiently arguable – leave granted to rely on one of the two additional grounds – directions made for the filing of further submissions. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 5AAA(4), 5H, 36(2)(aa), 65, 473CB, 473DC, 473DD, 476, Pt 7AA Privacy Act 1988 (Cth), s.6 |
| Cases cited: AMV17 v Minister for Immigration and Border Protection [2019] FCCA 2012 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 |
| Applicant: | ANL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 378 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 29 January & 10 March 2020 |
| Date of Last Submission: | 10 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher |
| Counsel for the First Respondent: | Ms R Graycar |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The applicant have leave to rely on ground 5, but not on ground 6, of the amended application filed on 18 February 2020.
By 15 April 2020 the first respondent file and serve written submissions that address the merits of grounds 1, 2, and 5 of the amended application and the question of costs.
By 24 April 2020 the applicant file written submissions in response.
By 1 May 2020 the parties by email inform the associate to Judge Manousaridis whether the parties require a further hearing in relation to the matters addressed in the written submissions filed pursuant to orders 2 and 3, or whether they instead consent to Judge Manousaridis being at liberty to give judgment on the basis of the written submissions without further hearing.
The parties have liberty to apply on such notice as the circumstances warrant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 378 of 2017
| ANL17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Sri Lanka, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
The applicant arrived in Australia on 20 September 2012 as an unlawful maritime arrival. On 2 October 2015 the applicant lodged an application for a SHEV, and the delegate interviewed the applicant on 14 April 2016 (SHEV interview). The delegate refused the application on 9 September 2016. The delegate’s decision, together with other documents, were then referred to the Authority for review under Part 7AA of the Act. The Authority made its decision on 20 January 2017.
Course of proceeding and issues
The matter came for hearing before me on 29 January 2020. The Minister appeared by counsel, and the applicant appeared on his own behalf with the assistance of an interpreter. After I explained to the applicant the purpose of the hearing and the procedure to be followed, I admitted into evidence the court book, and heard submissions from the applicant and from counsel for the Minister.
In his written submissions the Minister adverted to the possibility that material that was before the delegate had not been referred to the Authority, as required by s.473CB of the Act. The Minister submitted, however, that any failure to refer such material was not material to the Authority’s decision.[1] Counsel for the Minister repeated the effect of the Minister’s written submissions in address, but counsel submitted the Minister was not in a position to say whether there were in fact any documents that were before the delegate that had not been referred to the Authority.
[1] Outline of Submissions for First Respondent, [26]-[30], relying on EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20, and Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40
I explained to the applicant the effect of the Minister’s submissions on the possibility that not all of the documents that were before the delegate had been referred to the Authority, and also the Minister’s being unable to say with any certainty whether there were any such documents. I also explained to the applicant the potential relevance of documents that were before the delegate not having been referred to the Authority. I said that the onus was on the applicant to prove that documents that were before the delegate had not been referred to the Authority, and, if he were able to prove that much, the applicant also had to prove that had such documents been referred to the Authority the Authority could have made a decision in favour of the applicant.
I granted the applicant leave to file an affidavit annexing all of the documents the applicant believes his representative provided to the Department of Immigration and Border Protection (Department). I also made directions permitting the Minister to file an affidavit in response, and adjourned the hearing to 10 March 2020. I informed the applicant that the purpose of the hearing would be for me to hear submissions on whether documents that were before the delegate had not been referred to the Authority and, if that were the case, on whether the failure to refer such documents was material to the Authority’s decision.
On 17 February 2020 Ms Warner Knight, the lawyer for the Minister, sent an email to my chambers (copied to counsel whom the applicant retained after the hearing on 29 January 2020) in which she stated as follows:[2]
We have further reviewed the material on the Department and IAA files. I am able to confirm that there is no longer any dispute about what the applicant provided to the Department. The submissions of the applicant’s representative and the documents attached to that submission were provided to the Department and are reproduced in the Court Book at CB 161-268.
I also confirm that the 24 page submissions dated 26 April 2016 (ie, CB 161-184) was referred by the Department to the IAA, but the attachments (ie, CB 185-268) were not provided by the Department to the IAA.
[2] This email was not tendered in evidence. I have in chambers marked the email “MFI1”, and it has been uploaded to the Court’s electronic court file.
On 18 February 2020 the applicant filed an affidavit in which he identified the material his representative sent to the Department. Consistently with what Ms Warner Knight stated in her email, the material the applicant identified is already contained in the Court Book that was tendered at the hearing before me. In addition, however, the applicant annexed to his affidavit a draft amended application which he separately filed on 18 February 2020. This came about because, by this time, the applicant retained the services of a barrister, Ms Okereke-Fisher.
Also on 18 February 2020 Ms Okereke-Fisher sent an email to my chambers (copied to Ms Warner Knight, the lawyer for the Minister) stating that the applicant had retained her to review the matter, and that the applicant intended to apply for leave to file an amended application in the form annexed to the applicant’s affidavit. On 27 February 2020 the applicant filed written submissions prepared by Ms Okereke-Fisher in support of the applicant’s application for leave to amend.
When the matter came before me again on 10 March 2020 I heard submissions on two subjects. The first was whether the admitted failure by the Secretary of the Department to send documents to the Authority had the consequence of invalidating the Authority’s decision. Counsel for both parties accepted that the determination of that question turned on the materiality of the information contained in the documents that were not referred to the Authority (Omitted Information). Counsel for the applicant submitted the failure to refer the Omitted Information was material, and counsel for the Minister submitted the failure was not material.
The second question on which counsel for the parties made submissions is whether I should grant the applicant leave to file an amended application in the form annexed to the applicant’s affidavit filed on 18 February 2020. (Given the amended application was filed without leave being granted to the applicant to rely on the proposed grounds contained in the documents, the question is whether leave should be granted to the applicant to rely on additional grounds 5 and 6 contained in the amended application.) The Minister submitted I should not grant the applicant leave because the proposed grounds do not have merit or sufficient merit. The Minister submitted, however, and I agreed, that if I were satisfied that the applicant should be granted leave to amend the application, the Minister should have an opportunity to make further submissions in relation to the amended application.
In these reasons for judgment, therefore, I address the following matters:
a)The grounds of application contained in the application, as originally filed.
b)Whether, as the applicant submits, the Secretary’s failure to provide to the Authority the Omitted Information was material to the Authority’s decision.
c)Whether I should grant the applicant leave to rely on grounds 5 and 6 of the amended application that was filed on 18 February 2020.
To be in a position to consider these matters, it will be necessary to set out the applicant’s claims for protection, the course of proceeding before the delegate and the delegate’s decision, and the course of the proceeding before the Authority and the Authority’s reasons for decision.
Claims for protection
The applicant stated his claims for protection on a number of occasions. These included the applicant’s “Irregular Maritime Arrival Entry Interview” on 8 January 2013,[3] a statutory declaration made on 27 August 2013 that formed part of the application for a SHEV,[4] and at the SHEV interview held on 14 April 2016.[5] It would be convenient to set out the applicant’s claims as stated in his statutory declaration; and they are as follows:
[3] CB12-28
[4] CB92-97
[5] CB275, [12]
a)The applicant is a Tamil and a Hindu. He was born in the Batticaloa District, Eastern Province.
b)The applicant’s brother operated an audio recording and lighting business. The applicant, who was working as a driver, supported his brother in his business. The applicant and his brother rented out the sound system to persons in the neighbourhood; and they would install the sound system for private and government functions.
c)Given that the applicant’s brother’s business involved the renting out of sound and lighting systems to private individuals, companies, churches, schools, the Sri Lankan Army (SLA), and other authorities, it is likely the applicant’s brother may have had dealings, either knowingly or unknowingly, with persons who were members or supporters of the Liberation Tigers of Tamil Eelam (LTTE); and that is because the LTTE also organised events, especially during the ceasefire period.
d)The applicant assigned some of the staff to handle the audio/PA systems during important LTTE events; and the SLA also used to hire the sound systems for their special events.
e)In 2004 the applicant’s brother left his house for work, but he did not return home. He remains missing. It is believed the applicant’s brother was abducted and killed by persons who were working closely with the Sri Lankan government, such as members of the Karuna group, the SLA, or the CID (that is, the Criminal Investigation Department); and the applicant’s brother was abducted because of his perceived involvement in assisting the LTTE during LTTE events. The applicant’s brother’s business closed down after his disappearance.
f)In 2010 members of the Karuna group together with the SLA went to the applicant’s mother’s “ancestral home” from where they forcibly removed the sound, lighting, and audio equipment that had been used in the business which the applicant had arranged to store there when the business was operating.
g)Sometime in 2011 the applicant fled to Qatar on a work visa because he was deeply affected after his brother’s disappearance, and he feared the authorities would target him as well. The applicant was forced to return to Sri Lanka in January 2012 “due to a heart condition (blocked arteries)”.
h)While working in Qatar the applicant sent money to his brother’s family and, after he returned from Qatar, the applicant became close to the applicant’s brother’s family. The applicant looked after the applicant’s brother’s children, and he frequently visited his brother’s house.
i)Sometime in August 2012, when he was at home, the applicant received a call on his fixed line. The caller, speaking Tamil, did not identify himself, and asked if the applicant remembered what happened to his brother. The caller threatened that the applicant “would suffer the same fate and cautioned” the applicant. The caller also asked the applicant what he was doing at the applicant’s brother’s house, and the caller told the applicant that if he was seen around the applicant’s brother’s house, the applicant would suffer the same fate as his brother.
j)A few days later, at approximately 10 to 10.30 pm, the applicant heard his dog bark. The applicant sensed danger because it was unusual for his dog to bark at that time. The applicant immediately fled his house by jumping over a nearby wall, and reached his wife’s relative’s house. While at that house the applicant learnt that unknown persons had come to his house searching for him. The applicant believes it was people working with the government. For this reason the applicant fled Sri Lanka in September 2012.
k)The applicant claimed he risked being harmed and possibly killed by Sri Lankan authorities, including members of the Tamil paramilitary group Karuna, because they believe the applicant and his brother assisted the LTTE by providing lighting, sound systems, and audio equipment for LTTE events. The applicant also claimed he was at risk of harm for having left Sri Lanka illegally, and for having claimed asylum in Australia because the Sri Lankan authorities believe that Tamils who seek asylum are LTTE supporters. The applicant believed that the fact he “was previously arrested detained and tortured in the 80s while held” at a particular jail “would exacerbate the risk” of him being harmed on his return to Sri Lanka.
In support of his claims the applicant provided a number of documents, including the following:
a)Medical records showing, among other things, that the applicant underwent coronary artery bypass graft surgery.[6]
[6] CB98-102
b)A letter dated 11 December 2012 purportedly from a member of parliament confirming that the applicant’s brother was abducted by unknown persons on a date in July 2004; that the applicant “was tortured by unknown persons”, so “he went to [sic] Middle East for his safety of life”, and that after the applicant returned “he received number of threatens [sic] by the unknown persons”.[7]
[7] CB103
c)A document that purports to be an English translation of a death certificate of the applicant’s brother.[8] That document contains information that includes the following (errors in original):
[8] CB108
07. Cause of Death and place Of burial or oremation
Believed that Expired Since More than One Year Lapsep from the day Disappeared
08. Information full name Residence, and capacity for Giving information
Mrs. . . . . Wife.
09. Information’s signature
Registered Under the Registration of Daeths (Temporary Provisions)ACT.No.19 of 2010.
10. Date of Registration
. . . 2012 (Two thousand Twelfth) year
d)A letter with a date in 2009 purportedly from the “Head Quarter Inspector Police Station” recording a complaint made by the applicant’s brother’s wife in June 2009 that the applicant’s brother left his house on a date in 2004 and has “not returned home yet”.[9] The letter states a report has been submitted “to Magistrate court”. The letter further states “no any [sic] suspects arested [sic] in this regard”, “[c]ontinuous inquiries [sic] are made”, and “[t]his document is issued on the request of the applicant”.
e)A document titled “Summary of Psychological Treatment” for the applicant.[10]
[9] CB107
[10] CB149
Before the delegate
The applicant gave evidence before the delegate that included the following:
a)The applicant provided some sound equipment and carried out electrical work for the LTTE in a business capacity. He would stay at his mother’s house for a week doing work related to sound systems, and he would spend the other week working as a driver between Colombo and Kaluwanchikudy.[11]
b)The applicant was in a particular jail from 1986 to 1988, and, while in jail, he witnessed Tamils being killed and tortured. The applicant said he and his brother were arrested because they were suspected of helping the LTTE. The authorities informed the applicant’s mother that either the applicant or his brother had to go to jail, and the applicant’s mother chose the applicant. The applicant was released when the Indian Peace Keeping Force arrived, and an agreement was made that led to his release.[12]
c)When the people came to his house in 2012 they asked the applicant’s wife about the applicant’s whereabouts.[13]
d)The applicant was on a “wanted list”, and that people on such list were secretly being killed.[14]
[11] CB281, [53]
[12] CB281, [55]
[13] CB282, [60]
[14] CB283, [64]
It also appears that before the delegate the applicant also claimed that, following his departure from Sri Lanka, around the time he was released from detention in Australia, someone visited his home looking for him and subsequently threatened his wife and himself over the phone after enquiring again; and the applicant’s wife then disconnected the landline from the wall.[15]
[15] CB359, second last dot point
After the SHEV interview the applicant’s representative provided to the delegate a letter dated 26 April 2016 containing submissions and referring to documents that accompanied the submissions.[16] The submissions addressed a number of subjects, two of which are relevant. One relates to the applicant’s claim that he was jailed in 1986 to 1988. The representative referred to and enclosed a purported letter dated 27 April 2016 from Mr A stating that he was detained in the prison from 1986 to 1988 with the applicant, and that the applicant was detained because of his suspected links with the LTTE. The letter further stated the applicant was tortured while under interrogation during his time at the prison.[17] The second subject the representative addressed was country information.
[16] CB161-268
[17] CB165-166; CB185
Delegate’s decision
The delegate:
a)accepted the applicant fears that he may be harmed because of his Tamil ethnicity;[18]
b)accepted the applicant assisted his brother in his brother’s sound and lighting business, although the delegate found that, given the business had closed down when the applicant’s brother disappeared, the applicant last assisted in the business twelve years ago;[19]
c)accepted the applicant was in jail in 1986 to 1988 for suspected LTTE links, but noted this occurred about 30 years ago;[20]
d)did not accept the applicant received a telephone call from an anonymous person while at his home, or that he heard someone come to his home at night; and the delegate found the applicant fabricated his claim to enhance his claims for protection;[21]
e)found the applicant fabricated his claim that his name had been placed on a “wanted list”;[22]
f)did not accept that the sound and lighting equipment was confiscated in 2010 by the Sri Lankan authorities or by the Karuna group;[23]
g)did not accept the applicant was of any adverse interest to the Sri Lankan authorities or the Karuna group or any other paramilitary group after the applicant’s brother disappeared;[24]
h)accepted the applicant’s brother was abducted, and possibly killed, but not because of the applicant’s brother having any perceived LTTE connections;[25] and
i)if returned to Sri Lanka, the applicant would do so as a failed asylum seeker.[26]
[18] CB281, [49]
[19] CB281, [54]
[20] CB282, [56]
[21] CB283, [61]
[22] CB283, [66]
[23] CB284, [71]
[24] CB284, [71]
[25] CB285, [74]
[26] CB285, [80]
Proceeding before the Authority
On 20 October 2016, after the delegate’s decision was referred to the Authority, the applicant’s representative provided submissions to the Authority, and with it information the representative described as “new information”. This included two items. The first is information contained in a letter dated 15 October 2016 purportedly from a member of parliament (the purported MP letter). It relevantly is as follows (errors in original):[27]
[Name and address] and her family are known to me as Tamil National devotees. Her brothers [name of applicant] and [name of applicant’s brother] both had been running a business named . . . . . They supplied Sound services to LTTE as their business, and due to this Sri Lankan Army arrested them in 1985 and tortured and detained them. The family affected badly due to this incident.
During this time, [name of applicant’s brother] was released from the Prison, [name of applicant] was not released and taken into custody and detained in the . . . Camp for a long time, and he has been released and lived in hiding places. Subsequently, some unknown person with Army uniform, abducted [name of applicant’s brother], on 2004 . . . , and we came to know that he had been killed. But the Army and Intelligent Group showed much anger with [name of applicant’s brother]’s family. They were been often threatened by the army. In the meantime, [name of applicant]’s son was abducted by unknown persons on . . . 2007. Then he escaped from them. Subsequently, [applicant’s given name] and his family faced continuous threats, [applicant’s given name] escaped to one of the countries that gives asylum. His sister [name] told me that, the Army still searching for them, and his children are compelled to hide and live in their relations’ house.
When searching this matter, I understand that there have been threats to [name of applicant] and his family and his life is in danger. They have to take action to protect their life is very essential.
[27] CB351
The applicant’s representative submitted the letter is dated 15 October 2016 and “on that basis, could not have been provided to the delegate”. The representative then made submissions in relation to the information contained in the letter.
The second item of information was a claim that the applicant’s son was “threatened recently while he was on the way from his A Level Class and unknown persons inquired [sic] about the whereabouts of the applicant”; that when the son refused to give information, he was pushed down, and beaten by the people. In support of that claim, the applicant’s representative provided what the representative claimed was a letter from a named person from the Human Rights Commission (purported HRC letter). That letter states as follows (errors in original):[28]
[28] CB315
TO WHOM IT MAY CONCERN
Mrs. [name and address provided] has come to my office and complained me, regarding the old threats which is going on still.
Two unknown persons has stopped [applicant’s given name] son while he returns from A/L class and they threatened that their son Mr. [two names] where about. When Mr. [name]’s son refused and he was pushed down and beaten by unknown persons.
The above statement is true as I have inquired from the neighbours and I cannot investigate the above complaint to the Police as I do not know the persons who involved In this case.
The text of the letter appears to have been accompanied by a pro forma document with hand writing (purported HRC pro forma). That document relevantly is as follows:[29]
[29] CB314
Human Rights Commission of Sri Lanka
Regional Office
[Purported Address, and telephone and fax numbers]
Complaint No: HRC/BCO/. . . / . . . / . . .
Received Date: [Two dates, one in 2007; one in July 2016]
Complaint By: Mrs. [one name] & [initial followed by name]
Category: Missing & Threat – [Name]
The applicant’s representative submitted that the “above document was not provided to the delegate because the incident happened after the SHEV interview”. The representative further submitted that “this is an exceptional circumstance especially when a person’s life is at risk”; and that, “[h]ad this information been known by the delegate, it may have affected the consideration of the referred applicant’s claims”.[30]
[30] CB312
On 21 October 2016 the applicant’s representative sent an email to the Authority.[31] The representative referred to the written submissions and supporting documents the representative had submitted on 20 October 2016, and stated that “[t]his morning I have been given another supporting letter from the applicant to be forwarded to the IAA”. The email attached a document that appears to be written in Tamil and what purports to be an English translation.[32] The letter purports to be from one of the applicant’s sisters to the “Regional Co-Ordinator, Human Rights Commission of Sri Lanka, Batticaloa” (purported sister’s HRC letter). The letter relevantly is as follows (errors in original):
[31] CB342
[32] CB344
TRUE COMPLAIN OF [two names]
A business named . . . . had been run by both [applicant’s name] and [name of applicant’s brother]. They provided services to Public, LTTE and Other military groups. All Electrical accessories, and Electrical works of LTTE were done by the above two persons.
[Applicant’s name] and [name of applicant’s brother] had been rounded up by Sri Lanka Army and other groups, detained at . . . Army Camp and they had been assaulted and tortured.
During this period, The Army broken our house situated at . . . . and looted all belongings of us. We have been hiding in various places due to this.
After that [name of applicant’s brother] was released from prison. [Applicant’s name] was taken into custody and detained in the . . . Camp. In the meantime, [given name of applicant’s brother] was abducted on … 2004 by the persons with Army uniform. We made complain regarding this to Human Rights commission and many other places.
Then they shot [name of applicant’s brother]. A Death certificate has been issued by the Government with regard to the death of [given name of applicant’s brother]. [Applicant’s given name]’s Son also abducted by unknown persons on . . . 2007 and I have registered a complaint with you regarding this matter under reference No: [being the same numbers as those recorded in the purported HRC pro forma with the omission, however, of the last two letters] on … 2007. presently [applicant’s given name]’s son has been threatened on … 2016 while he was on the way from the class at 8.30 p.m. My brother and his children have been facing continuous life threats, and if my brother returns to Srilanka, there are possibilities of losing his life by these threats and I made this complaint for our security.
Sgd. Illegibly
[Applicant’s family name and name not otherwise recorded in SHEV application]
I received this complaint on [date that is the same date as the letter and the date of the purported HRC pro forma] under Ref: No: [being the same numbers as those recorded in the purported HRC pro forma].
Sgd. Illegibly
. . . .
In the email to which this purported letter was attached, the applicant’s representative submitted that the attached letter was dated 15 July 2016 “and on that basis, could not have been provided to the delegate”. The representative further submitted that had this information been known by the delegate, it may have affected the consideration of the applicant’s claims.
Authority’s reasons
The Authority first identified the information before it.
New information
The Authority referred to receiving a “submission”, noting that it provides reasons the applicant disagreed with the delegate’s decision, and inferring that aspects of the applicant’s claims had been overlooked.[33] The Authority found that the submissions did not contain new information to the extent it “contains arguments responding to the delegate’s decision and reasserts claims that were before the delegate”.[34]
[33] CB357, [4]
[34] CB357, [4]
The Authority then noted the submission contained “new claims that the applicant’s son was abducted in 2007 by unknown persons and that he subsequently escaped, that the applicant subsequently faced continuous threats and that his son was threatened by unknown persons who asked about the applicant in” a particular month “and that the children now live in hiding with relatives”. The Authority identified the documents on which the new claims are based.[35]
[35] CB357, [5]
The Authority then made the following findings and observations:
a)The Authority noted that the three documents relating to the complaint to the Human Rights Commission “all pre-date the delegate’s decision”, and, although the purported letter from the member of parliament “postdates the decision”, it “refers to events which purportedly were experienced by the applicant before he came to Australia”.[36]
b)The Authority says it has been submitted that it was due to the applicant’s mental health issues that he failed to inform the delegate about his son’s abduction, and that the second event relating to the applicant’s son occurred after the SHEV interview.[37]
c)The Authority accepted the applicant has mental health problems, and problems with his memory; but the Authority has taken that factor into account by taking “a liberal view of the applicant’s evidence in assessing his protection claims and accounting for details he omitted at earlier stages of his immigration processing”. The Authority, however, did not consider the applicant’s mental health as an explanation for his not having previously mentioned that his son had been abducted, that he has been continuously threatened after that, or that the applicant’s son had been abducted earlier in 2016. The Authority noted the applicant had provided details of other incidents, and he had taken the opportunity to provide information that had been omitted from his arrival interview. The Authority also referred to the applicant’s having been represented; to his having specifically been asked at the SHEV interview about whether family members had been harmed, and the applicant not having mentioned that his son had been abducted or suffered any particular problems.[38]
d)The Authority referred to the submission that the 2016 event occurred after the SHEV interview, but found that the delegate’s decision was not made until September 2016, and the applicant was represented.[39]
[36] CB357, [6]
[37] CB357, [6]
[38] CB357-358, [7]
[39] CB358, [7]
The Authority concluded that in “this particular circumstance” it was “not satisfied there are exceptional circumstances to justify considering the new information being the new claims and the documentary evidence discussed above”.[40]
[40] CB358, [7]
The Authority next considered the country information referred to in the submissions, and made the following findings:[41]
The submission does not address why the reports could not have been provided before that time, or why they may be considered credible personal information. On the basis of the information before me, I am not satisfied that the information falls within s.473DD(b)(i) or s.473DD(b)(ii), nor am I satisfied there are exceptional reasons to justify considering the information. I have not considered the information in those reports.
[41] CB358, [8]
Authority’s findings of fact
The Authority:
a)accepted the applicant is a Tamil, and a Hindu who originated from Batticaloa District;[42]
[42] CB360, [12]
b)accepted “from the applicant’s generally consistent and plausible claims” that in the 1980s the applicant and his brother ran a sound and light system business and that, in that capacity, they sometimes performed work for the LTTE, including for LTTE festivals;[43]
[43] CB360, [13]
c)accepted that, although the applicant’s and his brother’s involvement with the LTTE was limited to business activities, the applicant and his brother were arrested for assisting the LTTE; the applicant’s brother was released, but the applicant himself was detained in a prison from 1986 to 1988 until he was released during the occupation by the Indian Peace Keeping Force; and he was tortured while detained, but, on his release, he was not subjected to any post-release conditions, such as reporting requirements;[44]
[44] CB360, [13]
d)accepted the applicant’s brother disappeared in 2004, and is presumed dead, and accepted the applicant failed to disclose this before he applied for a SHEV because he was too scared to discuss it;[45]
[45] CB360, [14]
e)did not accept it had been established that the applicant’s brother was killed, that he was taken by the authorities or paramilitary groups linked to the authorities, or that he was targeted because of his electrical and repair works for the LTTE; but the Authority was prepared to accept that the applicant’s brother would have been so targeted;[46]
f)accepted that the business belonged to the applicant’s brother, and that it had dealings with the LTTE, but the Authority was satisfied the applicant’s involvement with the business was low-level,[47] and the applicant did not take on the business, and he did not do any work to assist the LTTE after 2004;
g)did not accept the military or police or any other group searched for the applicant after the applicant’s brother disappeared;[48]
h)accepted the incident in 2010, as the applicant claimed, did occur;[49] but it was not satisfied the motivation for the incident was to target the applicant or his family because of the applicant’s or the applicant’s brother’s earlier assistance to the LTTE; instead the goods were taken for the use of the Karuna group;[50]
i)accepted that before he came to Australia the applicant was threatened by an unknown caller over the phone, and some unknown men subsequently visited his house enquiring about him, then called the applicant’s wife and threatened her when she again said she did not know the applicant’s whereabouts;[51]
j)accepted that, after arriving in Australia, some unknown men visited his house enquiring about him, then called his wife and threatened her when she again did not know the applicant’s whereabouts, but no further enquiries or efforts to locate the applicant were made beyond asking the applicant’s wife, and no authoritative action was taken by the authorities;[52]
k)accepted the applicant believes he received threats in 2012 because people in the area who knew he visited his brother’s family would have informed on him to the CID, but the Authority was satisfied that had the CID or other authorities been interested in the applicant, they would have taken other actions showing such interest in the preceding years;[53]
l)accepted that although, as a driver, the applicant was regularly detained and interrogated at checkpoints, he was not subject to serious harm on those occasions;[54]
m)was satisfied that, “on the evidence”, neither the authorities, nor others, made any further attempt to arrest, abduct, or detain the applicant for questioning, rehabilitation, punishment or otherwise, before he departed for Australia in relation to his suspected LTTE activities and imprisonment in the 1980s, or about the applicant’s brother’s activities in the 2000’s; the applicant was not targeted or sought after his 1988 release, or after the applicant’s brother’s disappeared in 2004; and the applicant’s family had no further problems with the Karuna group after they took the equipment;[55] and
n)was not satisfied that, even accepting the telephone calls and home visits in 2012-2013 were made, there were any ongoing suspicion or concerns from the authorities, or their associated paramilitary groups, about the applicant’s or his brother’s previous assistance or involvement with the LTTE; the Authority considered that if there were any suspicions or concerns the applicant “would have been subject to more intensive and focussed investigation than his evidence suggests”.[56]
[46] CB360, [16]
[47] CB361, [17]
[48] CB361, [18]
[49] CB361, [20]
[50] CB361-362, [21]
[51] CB362, [23]
[52] CB362, [23]
[53] CB362, [24]
[54] CB362, [24]
[55] CB362, [25]
[56] CB362-363, [25]
Relying in part on the findings it had already made, the Authority said as follows:[57]
As for the enquiries and threats from the unknown men, I am not satisfied on the evidence that they were members of the authorities, nor any paramilitary group working with the government. The applicant does not claim and the referred material does not indicate that his wife or any other family member has been visited, questioned or threatened subsequent to 2013 or that the unknown men have taken any steps to carry out any of their threats against his wife, nor against any other member of the family. There is no indication that any family members have been threatened again, or been forced to relocate away from their locality to avoid these men. The information before me does not suggest that the threats continued after the February 2013 visits. I am not satisfied that the applicant or his family have been targeted by any groups or individuals since February 2013. I am not satisfied the unknown men maintained an interest in the applicant or his family after February 2013.
[57] CB363, [27]
Having made these findings the Authority considered, first, whether the applicant was a “refugee” within the meaning of s.5H of the Act and, second, whether the applicant met the complementary protection criterion prescribed by s.36(2)(aa) of the Act.
Assessment of protection claims
Given the findings it made, the Authority was not satisfied the applicant was a “refugee” because it was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future: from the men who had threatened the applicant and his wife;[58] or because the applicant may be perceived to be wealthy;[59] or because of the applicant’s Tamil “race”, his origins from the East, his gender, his previous assistance to the LTTE or his imprisonment for LTTE reasons, or “for his cumulative profile on the basis of these factors”;[60] or because the applicant experienced and witnessed torture and mistreatment of other people, including Tamils, while he was detained in prison between 1986 and 1988;[61] or because the applicant will return to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally;[62] or because the applicant is a Tamil male from a wealthy family in the Batticaloa District in the Eastern Province who provided low-level assistance through his brother’s sound and lighting business to the LTTE, and was arrested and imprisoned from 1986 to 1988 during which time he witnessed torture and mistreatment.[63]Relying on substantially the same findings, the Authority was also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm and, for that reason, the Authority was not satisfied the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act.
[58] CB364, [31]
[59] CB364, [32]
[60] CB366, [38]
[61] CB366, [39]
[62] CB367-368, [41]-[45]
[63] CB369, [53]
Grounds 1 and 2 of application
Grounds 1 and 2 of the application are related, and it would be convenient that I deal with them together. Ground 1 is as follows (errors in original):
IAA failed to consider or take into account the Member Parliament’s Batticaloa letter (confirmation of Insecurity).
Particulars.
a)IAA failed to consider and decide a letter dated 15/10/2017 from Mr [name of member of parliament who purported to sign letter dated 15 October 2016]
b)He stated that my family was under threat and my life is in danger.
c)He stated the army and Intelligent group showed much anger with my family
d)IAA committed jurisdictional error.
Ground 2 is as follows:
IAA failed to give consideration to or take into account that my son was threatened recently by unknown persons.
a)Failure to address a letter provided to IAA from Mr . . . Human Rights Commission Sri Lanka.
b)Failure to consider that my children are hiding currently.
In his written submissions the Minister noted it is apparent that grounds 1 and 2 deal with the issue of whether the Authority ought to have considered “new information” as defined in s.473DC.[64] The Minister then set out “a summary of some of the principles that have been established in relation to “new information” and in particular, s 473DD of the Act”.[65] The Minister submitted that the Authority’s consideration of the “new information” before it, and in particular that which grounds 1 and 2 identify, was consistent with those principles. Thus the Minister, in his written submissions, recognised that grounds 1 and 2 in substance raised the question whether, when assessing whether it should have regard to the “new information” referred to in grounds 1 and 2, the Authority properly considered that which s.473DD of the Act required it to consider.
[64] Outline of Submissions for First Respondent, [18]
[65] Outline of Submissions for First Respondent, [19]
At the hearing on 29 January 2020 the applicant, who then was not legally represented, but was assisted by an interpreter, made no submissions in relation to the principles that govern the exercise of the discretion conferred by s.473DD of the Act. At the hearing on 10 March 2020, however, the applicant’s newly retained counsel did make submissions in relation to those principles; but counsel made them in support of the applicant’s application for leave to rely on ground 5 of the amended application. That ground claims the Authority did not apply s.473DD of the Act consistently with principles that have been held to apply to the exercise of that section.
Although the applicant’s counsel’s submissions were made in support of the proposed ground 5, the submissions fall within the scope of the existing grounds 1 and 2. So much is apparent in the heading of the proposed ground 5, which states that ground 5 is “[s]ubstantially, a reiteration of Grounds 1 and 2 above”. It would be convenient, therefore, to consider the submissions counsel for the applicant made in connection with the proposed ground 5 in relation to grounds 1 and 2. I propose, however, to do so in a qualified way, and that is by considering whether the submissions counsel for the applicant made are reasonably arguable. I propose to deal with counsel’s submissions in this way because the applicant, through his counsel, filed the submissions without my leave. The only matter on which, at the end of the hearing on 29 January 2020, I granted the applicant leave to file written submissions related to the Omitted Information. If I find reasonably arguable counsel’s submissions, and I am not satisfied the applicant succeeds on any of his other existing grounds, I will give the Minister an opportunity to file written submissions and, if the parties request, to hold a further hearing.
Before I consider the parties’ submissions, it will be useful to set out some principles.
Principles[66]
[66] I repeat here much of what I set out in AMV17 v Minister for Immigration and Border Protection [2019] FCCA 2012, at [25]-[36]. The Federal Court of Australia set aside my orders, but no criticism was made of my summary of the principles – AMV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 262 (Davies J)
I begin with the notion of “new information”. It is defined in s.473DC(1) as information that was “not before the Minister when the Minister made the decision under section 65” and which “the Authority considers may be relevant”. The significance of information being “new information” is that s.473DD of the Act prohibits the Authority “for the purposes of making a decision in relation to a fast track reviewable decision” from considering such 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.
Section 473DD of the Act has been considered by the Full Federal Court on a number of occasions, including in Minister for Immigration and Border Protection v CQW17.[67] The effect of what the Full Federal Court said in CQW17 is that before the Authority can consider “new information” it must be satisfied of the matters stated in both s.473DD(a) and of either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act.[68] In other words, the requirements of s.473DD(a) and either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act are cumulative.
[67] [2018] FCAFC 110
[68] See also the judgment of Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [31]: “Cumulatively upon the precondition set out in s 473DD(a) . . . s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).”
Paragraph (a) of s.473DD requires the Authority be satisfied there are “exceptional circumstances to justify considering the new information”. The meaning of “exceptional circumstances” in the context of s.473DD was considered by Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[69]
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
[69] [2018] HCA 16, at [30] and [31] (footnote omitted)
Then there is s.473DD(b)(i) of the Act, which requires that the information “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65”. The text of that paragraph suggests it covers both information that did not exist before the Minister made his decision under s.65 of the Act, and existing information an applicant did not know existed but which, for whatever reason, could not have been provided to the Minister by the time the Minister made his or her decision.
Next there is s.473DD(b)(ii) of the Act, which requires that the information be “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 expression “credible personal information” is not defined in the Act. Subsection 5(1) of the Act, however, provides that “personal information” has the same meaning as in the Privacy Act 1988 (Cth). Section 6 of that Act defines “personal information” as “information or an opinion about an identified individual, or an individual who is reasonably identifiable . . . whether the information or opinion is true or not”, and “whether the information or opinion is recorded in a material form or not”.
In Plaintiff M174/2016 Gageler, Keane, and Nettle JJ proceeded on the footing that “personal information” as defined in s.5(1) of the Act was the meaning to be assigned to “personal information” contained in s.473DD(b)(ii).[70] After considering the meaning of “not previously known”, their Honours concluded as follows:[71]
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.
[70] [2018] HCA 16, at [33]: “In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”.
[71] [2018] HCA 16, at [34]
The next matter to note is that although paragraphs (a) and (b) of s.473DD are cumulative that does not imply the Authority must consider them sequentially – first paragraph (a) then either one of paragraphs (b)(i) or (b)(ii). That is because matters that are relevant to assessing whether paragraph (a) is satisfied may also be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) is satisfied, and matters that may be relevant to assessing whether either of paragraph (b)(i) or (b)(ii) is satisfied may be relevant to assessing whether (a) is satisfied. This point was made by White J in BVZ16[72] in a passage that has been approved by the Full Federal Court on a number of occasions:[73]
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
[72] [2017] FCA 958, at [9]
[73] This passage was set out with approval by the Full Federal Court in CQW17 at [48] after which the Court noted: “His Honour’s view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).”
In BVZ16 White J held that the Authority had confined “its consideration of whether there were exceptional circumstances to the evaluation of the” review applicant’s “explanation for not having provided the information earlier”; and by doing so the Authority “had applied an unduly narrow interpretation of the term “exceptional circumstances””.[74]
[74] [2017] FCA 958, at [46]
When considering these authorities it is also necessary to bear in mind what the Full Federal Court said in AQU17 v Minister for Immigration and Border Protection.[75] In that case it was submitted the Authority had taken too narrow a view of what constitutes exceptional circumstances. The Full Federal Court noted, however, that the review applicant “was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration”.[76] That implies that before it can be found the Authority has taken too narrow a view of what constitutes exceptional circumstances, it is necessary to identify some fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration.
[75] [2018] FCAFC 111
[76] [2018] FCAFC 111, at [17]
It is also necessary to bear in mind the principles that must be applied when determining whether the Authority in the circumstances of a particular case has undertaken the tasks s.473DD requires it to undertake, as explained by White J in BVZ16. Those principles were recently stated by the Full Federal Court in DLB17 v Minister for Home Affairs:[77]
In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.
[77] DLB17 v Minister for Home Affairs [2018] FCAFC 230, at [22]
Parties’ submissions
It would be convenient if I begin with the submissions made by counsel for the applicant. Although she made detailed submissions, counsel’s core submission is that the Authority made an error of the sort Davies J found the Authority made in AMV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[78] which, in turn, is an error of the sort White J found the Authority made in BVZ16. That is, counsel submitted that, when considering whether there were exceptional circumstances to justify its considering the new information contained in what I have described as the purported sister’s HRC letter, and the purported MP letter, the Authority did not consider in relation to that information the matters prescribed by s.473DD(b)(ii).[79]
[78] AMV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 262
[79] AMV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 262, at [15]
At the hearing on 10 March 2020 counsel for the Minister submitted it is not arguable that the Authority made an error of the sort the Authority in AMV17 and BVZ16 was held to have made. First, counsel submitted that the applicant’s submissions in effect assume the Authority is obliged to give reasons, or detailed reasons for deciding that s.473DD is not satisfied. Counsel submitted that is incorrect, and she relied on the following passage from the judgment of the plurality in BVD17 v Minister for Immigration and Border Protection:[80]
The appellant’s contention before the Full Court that the Authority failed to consider the exercise of the discretion conferred by s 473GB(3)(b) was based solely on an inference sought to be drawn from the fact that the Authority's statement of its reasons for decision contains no reference to the discretion. The Full Court did not err in rejecting that contention.
[80] BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, at [39]
This appears to be a reference to the following passage from the Full Federal Court’s judgment in BVD17 v Minister for Immigration and Border Protection:[81]
The appellant bears the onus of establishing the basis for drawing the inference necessary to make out the alleged jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] per Gummow J. It follows that he bears the onus of establishing the factual foundation from which it can be inferred that the Authority failed to consider the exercise of its discretion under s 473GB(3)(b). The Minister does not need to establish that the Authority had indeed considered the exercise of the discretion.
[81] BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114, at [41]
Counsel for the Minister also relied on the Full Federal Court’s judgment in DLB17 to which I have already referred.
Reasonably arguable that Authority made error in the application of s.473DD?
It may be accepted that the Authority’s not expressly referring to an aspect of s.473DD of the Act cannot by itself ground the inference the Authority did not consider that aspect of the section. That the Authority, therefore, did not, when considering whether there were any exceptional circumstances to justify considering the new information, and in particular, the purported sister’s HRC letter and the purported MP letter, expressly consider whether that information, had it been known to the delegate, may have affected the consideration of the applicant’s claims, does not by itself mean the Authority failed to consider that question. There are circumstances before me, however, that, in my opinion, raise a reasonably arguable case the Authority did fail to consider that question.
First, the Authority gave reasons, and detailed reasons, for concluding it was not satisfied s.473DD of the Act applied to the new information. That affords some basis for inferring that, having decided to give reasons in relation to one aspect on s.473DD, but not on another, the Authority proceeded on the basis that the matter it did not consider was not relevant to the matters it did consider.
Second, the Authority referred to some of the submissions the applicant’s representative made in his written submission, and it addressed the submissions to which the Authority referred. The applicant’s representative, however, submitted in relation to both the purported HRC letter, and the purported sister’s HRC letter, that, had “this information been known by the delegate, it may have affected the consideration of the referred applicant’s claims”.[82] The Authority did not address this submission in its reasons when considering whether there were exceptional circumstances or whether s.473DD applied at all. That affords a reasonable basis for inferring that the Authority did not consider the representative’s submission that, had the information contained in the purported HRC letter and the purported sister’s HRC letter been known by the delegate, that may have affected the consideration of the applicant’s claims. That, in turn, affords a reasonable basis for inferring that the Authority did not consider the representative’s submission because it was of the view that whether the information could have affected the delegate’s consideration of the applicant’s claim was irrelevant to whether exceptional circumstances existed justifying the Authority’s consideration of that information.
[82] CB312; CB342
Third, it is reasonably arguable that the nature of the new information, if accepted, would have been highly relevant to the Authority’s assessment of the applicant’s claims, given the findings the Authority made. The Authority accepted most of the critical factual premises of the applicant’s claims – the applicant’s being imprisoned from 1986 to 1988; the abduction of the applicant’s brother and the brother’s assumed death; in 2010 the Karuna group’s forcibly breaking into the applicant’s mother’s house and removing sound, lighting, and audio equipment; the applicant receiving an anonymous phone call in 2012; and the applicant, and the applicant’s wife receiving calls after the applicant arrived in Australia. One matter on which the Authority relied for concluding that, notwithstanding the matters it accepted, the applicant did not face a real chance of harm from the authorities is the applicant did not claim, and the evidence did “not indicate that his wife or any other family member has been visited, questioned or threatened subsequent to 2013 or that the unknown men have taken any steps to carry out any of their threats against his wife, nor against any other member of the family”.[83] It would not have been open to the Authority to rely on this finding had the Authority accepted the new information. Given the Authority accepted most of the central factual premises of the applicant’s claims, it is reasonably arguable that there would have been a real prospect the Authority would have accepted the new information, and would have removed one of the principal matters on which the Authority relied for not accepting the applicant’s claims that he faced a real risk of serious harm by the Sri Lankan authorities, including members of the Karuna group, because the authorities believe the applicant and his brother assisted the LTTE by providing lighting, sound systems, and audio equipment at LTTE events.[84]
[83] CB363, [27]
[84] CB95, [25]
Conclusion
I am satisfied it is reasonably arguable that when determining whether there were exceptional circumstances to justify the Authority considering the new information the applicant’s representative provided to the Authority, the Authority did not consider whether the new information, had it been known to the delegate, may have affected the consideration of the applicant’s claims; and, for that reason, it is reasonably arguable the Authority made an error of the sort White J in BVZ16, and Davies J in AMV17, found the Authority made.
Ground 3
Ground 3 is as follows (errors in original):
The IAA admitted that I witnessed torture and witnessed Human Rights violations committed by Sri Lankan Authorities. Fell into error when no protection given to me.
a)I should be given temporary refugee protection
a)I witnessed these violations while I was detained in . . . Jail.
b)IAA accepts that I witnessed the torture.
This ground claims that, given the Authority accepted the applicant had witnessed torture and human rights violations, the Authority ought to have concluded the applicant is a refugee. I take this to be a claim that, given the Authority accepted these matters, it was bound to find the applicant was a refugee. I do not accept that claim. Whether the applicant is a refugee is a matter the Authority was required to determine having regard to all of the evidence before it and the findings the Authority made on the evidence that was before it.
Ground 4
Ground 4 is as follows (errors in original):
IAA failure to identified that I was a person with imputed-political opinion (LTTE) and considered wrong issues.
a)I was involved in assisting the LTTE.
b)I was previously detained under the Prevention of Terrorism Act between 1986-1988 – for supporting LTTE.
c)Former Tamil detainees are also monitored.
d)I have been abroad and Sri Lankan government perception of [illegible] supporter.
e)I was detained and tortured in the past.
f)My brother was shot by military for LTTE suspicion. He had links with LTTE.
g)The IAA speculative that the 2010 incident was not motivated due to my brother’s earlier LTTE assistance. The IAA did not provide evidence to support it.
h)The IAA also decided that no further enquiries or efforts to locate me beyond asking my wife and no authoritative action was taken by the authorities. I am abroad what action they can take. Only when I returned to Sri Lanka I will be arrested, detained and tortured. The IAA arrived at the wrong conclusion.
In his written submissions counsel for the Minister submits that ground 4 does no more than express the applicant’s disagreement with the Authority’s determination that he is not entitled to Australia’s protection.[85] The Minister further submits that paragraphs (g) and (h) of the particulars to ground 4 claim the Authority was obliged to provide evidence to support its non-acceptance of claims the applicant made. The Minister submits this discloses no jurisdictional error, first, because s.5AAA(4) of the Act confirms the Minister does not have responsibility or obligation to, among other things, “establish, or assist in establishing, the claim”,[86] and, secondly, an administrative decision-maker does not need to have rebutting evidence before it can find that a particular fact asserted by an applicant is not established.[87]
[85] Outline of Submissions for First Respondent, [23]
[86] Outline of Submissions for First Respondent, [23]
[87] Outline of Submissions for First Respondent, [24], referring to Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105, at [7]
I accept the Minister’s submission that ground 4 discloses no jurisdictional error to the extent it claims the Authority was required to have rebutting evidence before it could not accept the applicant’s claims. I do not, however, accept the Minister’s submissions that ground 4 otherwise goes no further than expressing disagreement with the Authority’s decision. On a fair reading ground 4 makes three related claims.
a)One is that, given the matters stated in the particulars to ground 4, the only conclusion that a rational decision-maker could reasonably have made is that the applicant was and would be imputed with having assisted the LTTE and, for that reason, faced a real risk of harm from Sri Lankan government authorities and paramilitary groups. It is true that the matters stated in the particulars are in the form of assertions of fact, and, for that reason, appear to engage with the merits of the Authority’s decision. Most of the asserted facts, however, reflect facts the Authority accepted. The Authority accepted the facts asserted in paragraph (a) (the applicant was involved in assisting the LTTE), paragraph (b) (to the extent it asserts the applicant was imprisoned from 1986 to 1988), paragraph (e) (the applicant was detained and tortured in the past), paragraph (f) (to the extent it asserts the applicant’s brother was abducted and is presumed to be dead because of his electrical and repair work for the LTTE), paragraph (g) (to the extent it asserts the Karuna group was responsible for taking from the applicant’s mother’s home sound, audio, and lighting equipment), and paragraph (h). More broadly, I take ground 4 to claim that, given the facts the Authority had accepted, it was not reasonably open to the Authority not to be satisfied the applicant was and would be imputed with having assisted the LTTE and, for that reason, faced a real risk of harm from Sri Lankan government authorities and paramilitary groups.
b)A second, and more particular claim ground 4 makes, is directed to the Authority’s accepting that the Karuna group was responsible for taking from the applicant’s mother’s home sound, audio, and lighting equipment, but finding the Karuna group did so, not to target the applicant or his family due to his brother’s earlier LTTE assistance, but because “the goods were taken for the use of the Karuna group”.[88] The applicant in effect claims this finding (which is a positive finding, not a finding of non-acceptance) is irrational or unreasonable because it is not supported by any evidence.
c)A third claim is directed to the Authority’s accepting that after arriving in Australia, some unknown men visited the applicant’s house enquiring about him, then called his wife and threatened her when she again did not know the applicant’s whereabouts, yet noting that no further enquiries or efforts to locate the applicant were made beyond asking the applicant’s wife, and no authoritative action was taken by the authorities.[89] The applicant claims the Authority acted irrationally or unreasonably in relying on this observation because, being abroad, the applicant could not have been the subject of any action by the authorities.
[88] CB361-362, [21]
[89] CB362, [23]
The question that arises, therefore, is whether the Authority’s decision was irrational in any of the ways I have taken the applicant to claim in ground 4.
Principles
I have elsewhere set out the relevant principles governing the circumstances in which a court may conclude an administrative decision-maker has acted irrationally, and I do not propose to repeat here what I there said, apart from setting out two of the passages I there set out.[90] The first is from the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS:[91]
[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[90] Springs v Minister for Immigration & Anor [2020] FCCA 371, at [49]-[58]
[91] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, at [131]
The second is the following passage from the judgment of the Full Federal Court in Fattah v Minister for Home Affairs:[92]
To discern illogicality (or irrationality) one must demonstrate that there is only one conclusion open on the evidence or that there is no logical connection between the evidence and the inferences drawn . . . .
[92] Fattah v Minister for Home Affairs [2019] FCAFC 31, at [45]
First claim
I turn to what I have identified as the first claim ground 4 makes; and the question that claim raises is whether it was reasonably open to the Authority not to accept the applicant’s claim that he faced a real risk of serious harm by the Sri Lankan authorities, including members of the Karuna group, because the authorities believe the applicant and his brother assisted the LTTE by providing lighting, sound systems, and audio equipment at LTTE events (applicant’s imputed LTTE association claim).[93] The determination of that question turns on two matters: the findings the Authority made that support the applicant’s imputed LTTE association claim; and the findings the Authority made which are relevant to not accepting that claim, and the reasons on which it relied for making those findings.
[93] CB95, [25]
The findings the Authority made that are in favour of the applicant’s imputed LTTE claim are: the applicant and his brother were arrested in 1986 because he and his brother were in a business that dealt with the LTTE; the applicant was imprisoned from 1986 to 1988 because of his perceived links with the LTTE; the applicant suffered torture while in prison; the applicant’s brother disappeared in 2004 because of his electrical and repair works for the LTTE, and is presumed dead; in 2010 the Karuna group broke into the applicant’s mother’s house and took electrical and other goods the applicant and his brother used in the business that had ceased some six years before; in 2012, before he came to Australia, the applicant was threatened by an unknown caller over the phone, and some unknown men subsequently visited his house enquiring about him, then called the applicant’s wife and threatened her when she again said she did not know the applicant’s whereabouts; and after arriving in Australia, some unknown men visited his house enquiring about him, then called his wife and threatened her when she again did not know the applicant’s whereabouts.
If these were the only findings the Authority made, it would have been difficult to conclude it would have been reasonably open to the Authority not to accept the applicant’s imputed LTTE claim. These, however, are not the only findings the Authority made that are relevant to the claim. Three other findings are also relevant.
a)The first is the Authority’s finding that the purpose of the Karuna group’s breaking into the applicant’s mother’s house in 2010 was not to target the applicant or his family, but to take for its members’ own use the equipment that was stored at the applicant’s mother’s house. The Authority relied on a number of matters for this finding: on the applicant’s evidence no person was hurt or threatened during the incident; the assailants did not ask for the applicant, and did not mention the applicant’s brother’s work in assisting the LTTE; there was a six year delay between the disappearance of the applicant’s brother and the incident; and the LTTE was defeated in 2009.[94] It was reasonably open to the Authority to make the finding for the reasons it gave.
b)The Authority’s second finding is it was not satisfied there was any particular ongoing suspicion or concerns from the authorities or their associated paramilitary groups about the applicant’s, or the applicant’s brother’s, previous assistance or involvement with the LTTE, or about the applicant’s prolonged periods of residence abroad.[95] The Authority relied on the authorities having made no attempt after 1988 to arrest, abduct, or detain the applicant for questioning, rehabilitation, punishment, or otherwise, before he departed for Australia in relation to his suspected LTTE activities, or in relation to the applicant’s brother’s activities in the 2000s; the Authority’s finding that the 2010 incident was not directed to the applicant or his family; the applicant’s family not having any further problem with the Karuna group after they took the equipment; and the Authority’s observation that, had the applicant been the subject of any such suspicions or concerns, “he would have been subject to more intensive and focussed investigation than his evidence suggests”.[96] This last observation may be unreasonable to the extent it is based on a generalisation about how state agencies and paramilitary groups behave when they have an interest in or concern with a particular person. This by itself, however, does not render the finding the Authority made as one it was not reasonably open to it to make. Stated differently, assuming it was not reasonably open to the Authority to rely on a generalisation about how state agencies and paramilitary groups behave when they have an interest in or concern with a particular person, I am not satisfied this would have been material to the Authority’s decision.
c)The Authority’s third finding is it was not satisfied that the unknown men who had threatened the applicant and his wife were members of the authorities, or of any paramilitary group working with the government.[97] The Authority relied on the applicant not claiming, and the material before it not indicating, that the applicant’s wife or any other family member has been visited, questioned, or threatened after February 2013, or that the unknown men have taken any steps to carry out any of their threats against his wife, nor against any other member of the family, and there was no indication that any family members have been threatened again, or been forced to relocate away from their locality to avoid these men. The information before me does not suggest that the threats continued after the February 2013 visits. It was reasonably open to the Authority to make the third finding for the reason it gave.
[94] CB361-362, [21]
[95] CB362-363, [25]
[96] CB363, [25]
[97] CB363, [27]
Second claim
The second claim ground 4 makes is that the Authority acted irrationally in finding that, in breaking into the applicant’s mother’s house in 2010, the Karuna group did not target the applicant or his family due to his brother’s LTTE assistance, but because “the goods were taken for the use of the Karuna group”. I have already found it was reasonably open to the Authority to make these findings for the reasons it gave.
Third claim
The third claim is that, given the findings it made, the Authority acted irrationally by relying on its observation that no further enquiries or efforts to locate the applicant were made beyond asking the applicant’s wife of his whereabouts, and no authoritative action was taken by the authorities; and it did so because, being abroad, the applicant could not have been the subject of any action by the authorities. This claim goes no further than expressing disagreement with this part of the Authority’s reasons. It was reasonably open to the Authority to rely on the generalisation that authorities and paramilitary groups who had an interest in a person would continue efforts to direct action against the person of interest and, to put pressure on that person, to direct attention to that person’s family.
Conclusion
For these reasons, the applicant does not succeed on ground 4.
Materiality of failure to send Omitted Information
This question can be dealt with briefly. There is no question that the submission dated 26 April 2016 the applicant’s representative sent to the delegate on 28 April 2016 was referred to the Authority. What was not referred was the documents containing country information attached to the submission. The submission, however, identified each item of country information, identified the particular statement or statements on which the applicant intended to rely and, in some cases, made submissions in relation to that information.
The applicant does not submit the Authority did not consider the submissions contained in the applicant’s representative’s submissions and, therefore, the country information the representative identified in the submission. In those circumstances I am not satisfied that the Authority’s not being provided with the country information attached to the submissions was material to the Authority’s decision.
There is one document that is not country information that was before the delegate that was not referred to the Authority; and that is a letter to which I have already referred, being a letter dated 27 April 2016 from Mr A claiming he was detained in the same jail as the applicant from 1986 to 1988, and that the applicant was detained because of his suspected links and support for the LTTE.[98] The failure to refer this document to the Authority was not material to the Authority’s decision because, as counsel for the Minister submitted, the Authority accepted the applicant was arrested and imprisoned from 1986 to 1988 because of his perceived links with the LTTE.
[98] CB186
Proposed ground 5
Proposed ground 5 is as follows (emphasis in original):
The IAA made jurisdictional error by (i) adopting a duly [sic] narrow and erroneous construction of s473DD and (ii) failing to consider reasons and explanation advanced by the Applicant for the purpose of establishing exceptional circumstances, leading to a constructive failure to exercise jurisdiction under s473DD.
Particulars
a)The Applicant’s Representative provided a submission to the Authority, dated 20 October 2016. The Submission included new information and documents. The new documents included (i) A letter (dated 15 July 2016) written by the Applicant’s sister and addressed to the Human Rights Commission of Sri Lanka(“HRCSL”) (the “Family Letter”) [CB344]; (ii) a copy of a HRCSL complaint card confirming complaints were lodged in September 2007 regarding a missing person [CB314]; and a letter from . . . Member of Parliament . . . dated 15 October 2016 (“MP Letter”) [CB351]
b)The Family Letter: The Authority failed to consider the explanations given by the Applicant for the purpose of establishing exceptional circumstance [sic]. The Authority adopted a duly [sic] narrow and erroneous approach in construing s 473DD
c)The MP Letter: The Authority adopted a duly [sic] narrow and erroneous construction of s473DD and failed to consider the explanations given by the Applicant for the purpose of establishing exceptional circumstance [sic].
I have already found that it is reasonably arguable that, when determining whether there were exceptional circumstances to justify the Authority considering the new information the applicant’s representative provided to the Authority, the Authority did not consider whether the new information, had it been known to the delegate, may have affected the consideration of the applicant’s claims; and, for that reason, it is reasonably arguable the Authority made an error of the sort White J in BVZ16, and Davies J in AMV17 found the Authority made. I propose, therefore, to make an order granting the applicant leave to rely on ground 5 of the amended application.
Proposed ground 6
Proposed ground 6 in effect claims there was before the Authority a claim based on the applicant’s heart condition, and mental health problems. The proposed ground claims the Authority failed to consider whether, given these conditions, there was a real risk the applicant would suffer significant harm flowing from a combination of the applicant’s health conditions, the contemplated period of brief detention, and other matters.
This proposed ground is not sufficiently arguable to warrant my granting the applicant leave to rely on it. The proposed ground is premised on the applicant’s medical condition. There is nothing in the material that was before the Authority, however, that could reasonably have suggested that the applicant claimed he would be unable to obtain medical assistance for his conditions if he returns to Sri Lanka, or, to the extent he will be unable to do so, his inability would be due to the intentional actions of some person or organisation. Nor was there before the Authority any material that could reasonably suggest the applicant claimed he would face death from his medical condition on his return to Sri Lanka.
Conclusions and further conduct
I have concluded that grounds 1 and 2 of the application as originally filed, and ground 5 of the amended application, are reasonably arguable, but not ground 6 of the amended application. I propose to order, therefore, that the applicant have leave to rely on ground 5, but not ground 6, of the amended application.
Consistently with what I indicated at the hearing I also propose to make the following orders:
a)By 15 April 2020 the first respondent file and serve written submissions that address the merits of grounds 1, 2, and 5 of the amended application, and the costs order the first respondent seeks.
b)By 24 April 2020 the applicant file written submissions in response.
c)By 1 May 2020 the parties by email inform my associate whether the parties require a further hearing in relation to the matters addressed in the written submissions that will be filed, or whether they consent to my being at liberty to give judgment on the basis of the written submissions without further hearing.
d)The parties have liberty to apply on such notice as the circumstances warrant.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 27 March 2020
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