ANW19 v Minister for Immigration
[2020] FCCA 2085
•3 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANW19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2085 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed – whether the Authority made an unreasonable decision or erred in considering new information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CB, 473DC, 473DD |
| Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620 AUH17 v Minister for Immigration [2018] FCA 388 BRA16 v Minister for Immigration [2018] FCA 127 BVZ16 v Minister for Immigration [2017] FCA 958 DLB17 v Minister for Home Affairs [2018] FCAFC 230 DZU17 v Minister for Immigration & Anor [2019] FCCA 491 Minister for Immigration v CED16 [2020] HCA 24 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZMTA (2019) 264 CLR 421 |
| Applicant: | ANW19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 321 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Foster |
| Solicitors for the Applicant: | Sentil Solicitors |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed on 10 October 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 321 of 2019
| ANW19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 25 January 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 15 July 2020.
The applicant is a citizen of Sri Lanka born in April 1984.[1] He first arrived in Australia on 6 September 2012 as an unauthorised maritime arrival.[2] On 2 September 2016, he applied for the visa.[3]
[1] Court Book (CB) 49
[2] CB 110
[3] CB 36-72
In support of his application for the visa, the applicant raised, among other things, the following:[4]
a)he was forced to work with the LTTE[5] from 2003-2004 (as an administrative assistant) and 2005-2006 (as a tea maker). His brother, R, worked for the LTTE as a video editor and photographer from 2003-2006. Due to this, R was targeted by the CID[6] and paramilitary groups;[7]
b)in 2006, the CID attempted to take the applicant from his home but his mother and sister convinced them not to. The applicant feared for his life and departed Sri Lanka. The applicant returned in 2009;[8]
c)his brother R had been held by the CID in a rehabilitation centre, but was released. In August 2011, the CID visited the applicant’s home looking for R. The CID required the applicant to attend their office, which he did. He was interrogated about the LTTE, beaten and threatened.[9] The applicant did not return home and instead went into hiding, as did his brother R. The CID visited the family home looking for the applicant and R and threatened to kill them;[10]
d)the CID later found the applicant, took him to an unknown location and threatened and tortured him. The CID’s visits to the family home continued. The applicant and R decided to flee Sri Lanka, and did so in August 2012;[11]
e)in October 2012, the applicant’s sister, K, received a phone call in which threats to kill the applicant and R were made unless they presented themselves to the CID.[12]
[4] CB 73-77
[5] Liberation Tigers of Tamil Eelam
[6] Criminal Investigation Department
[7] CB 73-74
[8] CB 74
[9] CB 74
[10] CB 74
[11] CB 75
[12] CB 75
The applicant claimed to fear harm because of his Tamil ethnicity, his and R’s prior work for the LTTE, for being perceived as supporting the LTTE and being against the Sri Lankan government, and for being a failed asylum seeker.[13]
[13] CB 75-76
On 3 August 2018, the delegate refused to grant the applicant the visa.[14] On 8 August 2018, the delegate’s decision was referred to the Authority for review.[15] On 29 August 2018, the applicant’s migration agent provided a submission to the Authority in relation to the review.[16] On 1 October 2018, the Applicant’s brother, R, sent to the Authority documents (in relation to the present review) that he had already provided to it in relation to its review of a decision not to grant him (ie. R) a protection visa.[17] That included a statement of R, dated 21 September 2018,[18] a submission prepared by RACS,[19] and photographs of R with other persons.[20]
[14] CB 107-132
[15] CB 137-138
[16] CB 152-157
[17] CB 158-173
[18] CB 162
[19] Refugee Advice and Casework Service; CB 163-170
[20] CB 170-172
As noted above, on 25 January 2019, the Authority affirmed the delegate’s decision.
The Authority’s decision
The Authority had regard to the review material provided to it under s.473CB of the Migration Act 1958 (Cth) (Migration Act).[21] It also had regard to the submissions provided on the applicant’s behalf.[22] The Authority was satisfied that there were exceptional circumstances to justify considering “new information” provided by the applicant that he was the subject of the 2014 Data Breach.[23] The Authority also referred, at [6]-[8] of its reasons, to the new information provided to it by R (and the applicant’s own letter to the Authority in relation to R’s materials). The Authority was not satisfied, at [8], that there were exceptional circumstances to justify considering this new information.
[21] CB 178 [3]
[22] CB 178 [4]
[23] CB 178 [5]
The Authority did not accept that the applicant was forced to work for the LTTE as an administrative assistant (in 2003-2004) or as a tea maker (in 2005-2006), or that he lived in a town under LTTE control.[24] The Authority did accept that R worked for the LTTE as a video-editor and photographer, and that R was detained for rehabilitation for two years at the end of the war and was released in 2011. The Authority was also satisfied that when R was released from rehabilitation in 2011, his involvement in the LTTE was known by the Sri Lankan Authorities.[25] The Authority further observed that, on the basis of a police clearance certificate that had been provided by the applicant, the police were aware in August 2010 that R was suspected of being involved with the LTTE.[26]
[24] CB 180-181 [13]
[25] CB 181 [14]; 188 [40]
[26] CB 182 [18]
The Authority did not accept any of the applicant’s claims involving himself, the CID and the Karuna Group[27] and was not satisfied that the applicant experienced the particular events he claimed occurred.[28] The Authority thus did not accept that in 2006 the CID visited the applicant’s house and attempted to take him away because of his involvement in the LTTE. It was not satisfied that the police or CID were interested in the applicant at all at this time.[29] The Authority also considered that the applicant being able to depart Sri Lanka in 2006 and return in 2010 using his own passport indicated that he was not of any interest to the CID in connection with the LTTE.[30]
[27] CB 181 [15]
[28] CB 182 [17]
[29] CB 182 [19]
[30] CB 183 [20]
The Authority found the applicant’s claims as to what occurred to him in 2011 not to be credible and did not accept that the CID had located him, took him to an unknown location, and tortured him.[31] The Authority also did not accept that in August 2011 members of the CID came searching for R, or that they asked the applicant to attend their office, or that they interrogated the applicant.[32] The Authority thus did not accept that the applicant or R went into hiding, or that the CID or Karuna Group visited the family home looking for the applicant or R.[33] The Authority was not satisfied that, in August 2012 (when the applicant and R departed Sri Lanka), the CID was interested in the applicant in connection with the LTTE or because of R.[34]
[31] CB 183 [21]
[32] CB 183-185 [23]-[26]
[33] CB 185 [28]
[34] CB 185 [29]-[31]; 188 [43]
The Authority was thus not satisfied that there was a real chance that the applicant would be targeted for any harm in connection with the LTTE by the Sri Lankan authorities, the CID or Karuna Group, or because he is a Tamil, has links or perceived support of the LTTE, including because of his brother R.[35]
[35] CB 188 [43]
The Authority was not satisfied that the applicant faced a real chance of serious harm as a returned asylum seeker[36] or that the applicant would suffer serious harm as a result of having departed Sri Lanka illegally and being charged under the Immigrants & Emigrants Act.[37]
[36] CB 189 [46]
[37] CB 189-190 [47]-[51]
The Authority thus was not satisfied that the applicant met s.36(2)(a) of the Migration Act.[38] For similar reasons, it was also not satisfied that the applicant met s.36(2)(aa) of the Migration Act.[39] The Authority thus affirmed the delegate’s decision.
[38] CB 190 [53]
[39] CB 190-191 [54]-[59]
The current proceedings
These proceedings began with a show cause application filed on 15 February 2019. An amended application was filed on 2 October 2019. On 15 October 2019 I vacated earlier orders and dispensed with the need for a show cause hearing. A further version of the amended application had been filed on 10 October 2019 containing four grounds:
1.Ground 1: The IAA erred in finding that 'I am not satisfied the applicant could not have given it before the delegate made the decision' [8]
Particulars
There was no material before the IAA to suggest either document could have been provided before the delegate made the decision. The evidence all pointed the other way. Accordingly the IAA's finding [8] cannot be correct, is unreasonable, and/or based on no evidence.
Paragraphs 6 - 8
2.Ground 2:The IAA erred in failing to properly consider and/ or misunderstanding what is meant by 'new information' in S 473DD
Particulars
The IAA conflated 2 documents by treating them as the only piece of new information, or alternatively considered 1 document only and ignored the other document. Accordingly the IAA misunderstood the nature of its functions and the law, and misunderstood the material before it.
Paragraphs 6 - 8
3.The IAA erred in misunderstanding the meaning of the words 'new information' in S 473DD, which in the context of this case referred to the documents and not to the content of the documents.
Particulars
The IAA considered that the words 'new information' in S 473DD meant the content of documents when it meant the document provided to the IAA. Accordingly the IAA misunderstood the nature of its functions and the law, and misunderstood the material before it.
Paragraphs 6 – 8
In each of the above, the IAA committed jurisdictional error.
New Ground 4
The IAA erred in not considering the new information. [8]-[9]
Particulars
IAA did not consider the credibility of the new information, apart from the fact that the new information conflicted with the applicant's earlier evidence.
The IAA did not focus on the matters raised in the brother's new information.
At the trial on 29 July 2020, only Grounds 1 and 4 were pressed.
The only evidence I have before me is the court book filed on 13 March 2019.
Consideration
Applicant’s contentions
Ground 1
The Authority made its determination on 25 January 2019 affirming the decision of the delegate (3 August 2018) refusing to grant a protection visa to the applicant.
On 4 October 2018, the Authority received new information consisting of a letter from the applicant[40] and new information from his brother R.
[40] CB 175
The new information from his brother R, in turn, consisted of a letter addressed to “Dear Honorable Reviewer” and is undated,[41] along with a one page statement dated 21 September[42] and a 10 page RACS submission dated 20 September.[43] The 10 page submission includes three photographs, two of which[44] show the applicant in LTTE uniform[45] along with the leader of the LTTE.
[41] CB 173
[42] CB 162
[43] CB 163-172
[44] CB 170-171
[45] CB 162 [10]
The Authority dealt with the new information at [6]-[9] [46]. When dealing with the new information, the Authority noted the applicant “was afraid in the past that his brother would be detained in an Australian immigration detention centre for a long period if he revealed he was LTTE” and “heard that Tamils who disclosed they were members of the LTTE were detained in Australian immigration detention centres for years”.
[46] CB 178-179
The applicant confirmed he knows about R’s profile and had seen the photograph and identified his brother R wearing the uniform, at [7].
At [8],[47] the Authority was not satisfied the applicant could not have given it before the delegate made the decision. This was a reference no doubt to s.473DD(b)(i) of the Migration Act, which states:
[47] CB 179
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:
…
(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 …
The non-satisfaction by the Authority of (b)(i) has the effect that, if the Authority is also not satisfied of (b)(ii), the new information may not be considered.
The applicant read and agreed with R’s statement and submissions, and confirmed “I know about my brother’s profile”, and, “I have seen the photograph and identified my brother wearing the uniform”.[48]
[48] CB 175
The applicant submits, however, that it cannot be concluded he could have given the photograph before the delegate made the decision, as, while it is clear the applicant did “know about my brother’s profile”, this is not the same thing as saying he could have provided the photographs to the Minister before the Minister made the decision under s.65 of the Migration Act.
The photographs are said to have been most relevant to the applicant’s claims that he will be harmed and mistreated by members of the CID and Karuna group. This is because, among other things, he previously worked, as did his brother R, for the LTTE[49] since the photographs showed his brother R wearing the uniform alongside the leader of the LTTE. The RACS submissions make specific comment as follows:
a)the photographs are significant in respect of the Authority’s consideration of the case, and would be of interest to paramilitary groups and the Sri Lankan authorities, as they demonstrate the applicant’s membership within the LTTE;[50]
b)the photographs show the brother in LTTE fatigues which, as RACS were instructed, is the uniform given to members of the LTTE rather than employees;[51]
c)in 2012, the UNHCR[52] identified a range of people with real or perceived links to the LTTE including, former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media;[53]
d)the UN Committee Against Torture noted information it had received showing that:[54]
Numerous individuals suspected of having a link, even remote, with the LTTE have been abducted and then subjected to brutal torture, often including sexual violence and rape of men and women. According to the information received, such practices are carried out by both military and police in unacknowledged places of detention, which have included law enforcement headquarters, army, and IDP camps, and ‘rehabilitation camps’.
[49] CB 75
[50] CB 168
[51] CB 168
[52] United Nations High Commissioner for Refugees
[53] CB 163
[54] CB 166
The applicant submits that, accordingly, the Authority had no basis upon which it rationally could “not [be] satisfied the Applicant could not have given [the photographs] before the delegate made the decision”, and made a decision which was unreasonable, thereby making a jurisdictional error.
The applicant also submits that the Authority accordingly failed to consider the photographs when considering whether limb (b)(i) applied, and failing to consider whether there were exceptional circumstances to consider the photographs.
Ground 4
The applicant repeats the submissions above, and further states that Ground 4 relates to all the new information and not just the photographs.
When dealing with the new information at [8],[55] the Authority:
a)was not satisfied the applicant could not have given it before the delegate made the decision (this point is dealt with in Ground 1 above in respect of the photographs);
b)noted the applicant had been asked about R’s role in the LTTE but did not give the new information;
c)noted the applicant was assisted by solicitors and given ample opportunity to raise new claims;
d)noted that the new information is brief and does not provide significant corroborative evidence;
e)considered the applicant’s failure to raise the new information “calls into question the credibility of the new information”.
[55] CB179
At [9], the Authority did not consider the photographs were significant or credible, but gave no reasons as to either point. The Authority did not, for example, consider the submissions of RACS concerning the importance of the photographs, and apparently dismissed the new information because they were not raised earlier when given the opportunity.
The above analysis is said to reveal the focus by the Authority merely on the opportunities the applicant had to state the new information, an approach said to as amount to jurisdictional error as an adoption of an unduly narrow approach to the construction of unreasonable circumstances when applying s.473DD of the Migration Act.[56]
[56] see eg, BVZ16 v Minister for Immigration [2017] FCA 958
The above analysis is also said to reveal a total failure by the Authority to consider the credibility of the new claims themselves. In DZU17 v Minister for Immigration & Anor,[57] the applicant provided new information previously withheld to the Authority, which included claims that the applicant had worked for the LTTE for 17 years; had witnessed a massacre at Mullikaival; was later tortured and has extensive scarring after registering as an LTTE member with the Sri Lankan Army. In DZU17, I found, among other things,[58] which is said to be the situation in this case:
the Authority limited its credibility assessment to the proffered reasons why the new claims had not been advanced earlier.’ and stated ‘Nowhere do I find any consideration of the credibility of the new claims themselves.
[57] [2019] FCCA 491
[58] see at [51]
The applicant submits that a consideration only of the opportunities the applicant had to advance the information and a failure to consider whether the new information, had it been known earlier, could have affected the consideration of the applicant’s claims, could impact upon the consideration of exceptional circumstances, the more so as here the new claims are serious.[59] The applicant submits the Authority needed to consider the credibility of the claims for the purposes of considering “exceptional circumstances” and did not do so which constitutes a jurisdictional error.[60]
[59] see DZU17 at [54]
[60] see DZU17 at [54]
Resolution
The argument in these proceedings centres upon the protection claims of the applicant’s brother, R, and photographs of him. The relevant photographs are reproduced at CB 170-172. The argument further focuses upon the manner in which the Authority dealt with proffered new information. The Authority deals with the circumstances in its reasons at [4]-[9]:
On 29 August 2018, the IAA received a submission from the applicant. The majority of the submission addresses the delegate's decision and findings. It is not new information, and I have had regard to it.
On 29 August 2018, the IAA received the following new information from the applicant. The data breach by the Immigration Department may have brought to the attention of the Sri Lankan authorities the applicant's presence in Australia. The applicant claimed that this may be a factor to trigger close and lengthy questioning of the applicant on his arrival and to identify that he and his brother are related and the family's suspected LTTE profile within Sri Lanka. While the applicant did not raise this claim previously, it is clear he raised it in response to the delegate's decision that in early 2014, the department inadvertently published a document on its website that tabulated details regarding a number of people in immigration detention on 31 January 2014, and the delegate noted that departmental records confirm the applicant was one of those persons affected by the website disclosure. The delegate did not put this information to the applicant and it is significant. I am satisfied there are exceptional circumstances to justify considering this new information from the applicant. I am satisfied that s.4730D(a) is met.
On 4 October 2018, the IAA received new information from the applicant, and new information was received by the IAA on the applicant's behalf but it was submitted by his brother, R, who made a separate protection visa application. The new information is: a signed letter from the applicant dated 4 October 2018; and the new information received by the IAA from R.
The letter from the applicant states he was told his brother sent his updated statement and submission to his IAA file. He read a copy of his statement and submissions and agrees with them. He was afraid in the past that his brother would be detained in an Australian immigration detention centre for a long period if he revealed he was LTTE. He heard that Tamils who disclosed they were members of the LTTE were detained in Australian immigration detention centres for years. He knows about R's profile. He has seen the photograph and identified his brother wearing the uniform. R decided to tell himself that he is an LTTE cadre as his case was refused and he would be sent back and harmed in Sri Lanka.
The applicant and R have separate applications for protection however, their claims are inter-related. The applicant previously claimed R worked for the LTTE as a video editor and photographer, but he claimed R was not LTTE. While I note the applicant's explanation for not giving this new information sooner, I am not satisfied the applicant could not have given it before the delegate made the decision. The applicant was specifically asked about his brother's role in the LTTE during the TPV interview, and he did not give this information. The applicant was assisted in making his claims for protection by solicitors, he was advised not to provide false information, and was given ample opportunity in his TPV interview on 13 July 2018 to raise any new claims and to discuss his claims for protection. The new information from the applicant himself is brief and does not provide significant corroborative evidence, it refers to evidence from R provided to the IAA on his behalf about him being an LTTE cadre. The fact the applicant did not raise the new information about his brother R and the photograph of his brother wearing the uniform before the decision was made, and when he was questioned about his brother and his role in the LTTE by the delegate, calls into question the credibility of the new information.
Given the applicant previously claimed his brother R worked for the LTTE as a video editor, doing acting and voice dubbing, and was detained at the end of the war for rehabilitation and released in July 2011, I am not satisfied the new claim that R was an LTTE cadre and that he has seen the photograph and identified his brother wearing the uniform is significant, or credible. I am not satisfied there are exceptional circumstances to justify considering this new information from the applicant and on behalf of the applicant. I am not satisfied that s.473DD(a) is met.
At the trial, I enquired of the applicant’s representative as to the current status of R’s protection claims. His instructions were not entirely clear but I understand that R has been refused protection and is seeking judicial review.
As to the photographs, there appears to be no argument over the image reproduced at CB 172. That shows the applicant’s brother R as a young man holding a video camera, apparently used in the performance of his duties for the LTTE. The other photographs reproduced at CB 170-171 are contentious in that they show the applicant’s brother R looking rather older, in a uniform said to be a Tamil Tiger uniform. In both photographs, there is a gentleman also in uniform who is represented to be the former Tamil Tiger leader, the now deceased Velupillai Prabhakaran. There is a third unidentified person in the second of those photographs at CB 171. The authenticity of the images has not been tested. The person represented to be the former Tamil Tiger leader (who died in 2009) looks rather different to most public representations of the former leader, who is normally depicted with a moustache and with a Tamil Tiger insignia on his cap. It is, however, neither necessary nor appropriate that I pass any concluded view as to the authenticity of the photographs.
I accept the Minister’s submissions concerning the grounds of review advanced.
Ground 1 alleges that the Authority erred, at [8] of its reasons, in stating that “I am not satisfied the Applicant could not have given it before the delegate made the decision”. It is further alleged that there was no material before the Authority to suggest that the applicant could have provided the “new information” before the delegate made her decision and “the evidence all pointed the other way”. No error by the Authority is established. This ground simply seeks merits review of the Authority’s findings.
As is explained above, when the matter was before the Authority, the applicant’s brother, R, provided to the Authority materials he had provided in support of his own (separate) application before the Authority. That included a statement (in which R claimed to have been an LTTE cadre),[61] a submission prepared by RACS,[62] and photographs of R wearing a LTTE uniform.[63] R also provided a short letter to the Authority in the present applicant’s case, asking that the material be taken into account.[64] The applicant himself provided a short letter to the Authority,[65] stating that he had a copy of R’s materials “which I agree with”, that he “know[s] about his brother’s profile. I have seen the photograph and identified my brother wearing the uniform”, and further stated that he was afraid, in the past, that R would be detained “for a long period” if the applicant had revealed that R was an LTTE member.
[61] CB 162
[62] CB 163-172
[63] CB 170-172
[64] CB 173
[65] CB 175
This material was plainly “new information”, as defined in s.473DC(1) of the Migration Act, because none of it was before the delegate at the time of her decision.[66] The Authority dealt with this “new information” at [6]-[9] of its reasons.[67] At [7], the Authority referred to the explanation offered by the applicant as to why he could not have provided the “new information” sooner, namely, as noted immediately above, because he was afraid R would be detained “for a long period”.[68]
[66] cf. Minister for Immigration v CED16 [2020] HCA 24 at [16]
[67] CB 178-179
[68] see also CB 175
At [8], the Authority referred again to this explanation, but stated that it was “not satisfied the Applicant could not have given [the new information] before the delegate made the decision”. The Authority explained (still at [8]) that the applicant had been specifically asked about R’s role in the LTTE during the interview with the delegate and did not give this information. Moreover, he was assisted by solicitors, was advised not to provide false information, and was given the opportunity in the delegate’s interview to raise new claims. In these circumstances, there is nothing erroneous about the Authority’s non-satisfaction, and a rational and logical Authority could also have not been so satisfied.[69] The Authority was not obliged to accept the explanation actually offered by the applicant. The suggestion in this ground that the “the evidence all pointed the other way” is without any substance, and simply invites merits review.
[69] cf. Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131]-[135]
The applicant alleges that it “cannot be concluded that the Applicant could have given the photographs before the delegate made the decision”. This, too, ultimately seeks merits review of the Authority’s finding. It is for the applicant to advance an explanation for why the “new information” should be taken into account, so as to “satisfy” the Authority of the matters in s.473DD, including as to why the “new information” was not provided earlier.[70] Here, as noted above, the Authority plainly did address the explanation that was proffered, but was not satisfied by it. Notably, the applicant did not claim, for example, that he could not have given the “new information” (including the photographs) to the delegate at all because he simply did not know about it or because he did not have access to parts of it (eg. the photographs).
[70] cf. AUH17 v Minister for Immigration [2018] FCA 388 at [33]
The suggestion that the Authority failed to consider the photographs when making its s.473DD assessment is plainly untenable. They are expressly referred to in each of [7], [8] and [9] of its reasons.
Further, the applicant also appears to allege error by the Authority in its application of s.473DD(b)(i) of the Migration Act. However, the reason that the Authority did not accept the “new information” was because there were no “exceptional circumstances”, such that s.473DD(a) was not met. That is a different requirement to s.473DD(b), and any error in the application of s.473DD(b) would not necessarily affect the Authority’s conclusion about s.473DD(a), and hence would not generally be material to the decision.[71]
[71] cf. BRA16 v Minister for Immigration [2018] FCA 127 at [26]
Furthermore, even if I was satisfied that the Authority erred in its application of s.473DD of the Migration Act (as a whole), that error would also not be material to the Authority’s decision, in the sense that there was no “realistic possibility” that the Authority’s decision could have been different (had the “new information” been taken into account).[72] The substance of the “new information” was that R was an LTTE cadre (rather than just an employee of the LTTE who was a video-editor and photographer). However, the applicant did not claim to the Authority that he faced a greater risk of harm because R was an LTTE cadre (rather than a video-editor and photographer). Additionally, the Authority was plainly not satisfied at [9] that the new claim about R’s role with the LTTE was “credible”.[73] Moreover, as explained above, the Authority was satisfied that the Sri Lankan authorities were aware, in 2010 and also in 2011 when R was released from rehabilitation, of R’s involvement in the LTTE.[74] Notwithstanding that the Sri Lankan authorities had that knowledge, the Authority was not satisfied that the authorities had any adverse interest in the applicant, including on account of R.[75] Also, the country information referred to by the Authority[76] did not indicate that R being an LTTE cadre placed the applicant at any increased risk of harm. In these circumstances, it is not apparent how the new claim that R was an LTTE cadre could have led to any different decision being reached.
[72] cf. Minister for Immigration v SZMTA (2019) 264 CLR 421
[73] cf. DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22]; ABH18 v Minister for Home Affairs [2020] FCA 620 at [44]-[45]
[74] CB 181-182 [15], [18]
[75] CB 185 [29]-[31]; 188 [43]
[76] CB 188
Ground 4
This ground alleges that the Authority erred, at [8]-[9] of its reasons, by failing to consider “the credibility of the new information”. It is alleged that the Authority focused “merely on the opportunities the Applicant had to state the new information”, and thus adopted an unduly narrow approach of “exceptional circumstances”.
This argument is untenable. The Authority plainly did consider the “credibility” of the new claim (that R was an LTTE cadre), at [8]-[9] of its reasons. The Authority stated at [9] that, in circumstances where the claim was raised late (especially given the earlier opportunities in which it could have been raised) and where the applicant had previously made different claims about R’s role with the LTTE, it was not satisfied that the “new claim” was “significant, or credible”. A fair reading of [8]-[9] of the Authority’s reasons also shows that it did not, as alleged, only focus, when considering whether there were “exceptional circumstances”, on the applicant’s opportunity to raise the claim earlier. The Authority plainly turned its mind to the credibility of the new claim, as well as expressing a view that the new claim was not “significant” to the review before it.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 September 2020
0
9
2