APX18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 829
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
APX18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 829
File number: MLG 472 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 5 September 2024 Catchwords: MIGRATION – application for judicial review – decision of Immigration Assessment Authority – whether Authority misapplied or unreasonably failed to exercise the power in s 473DD of the Migration Act 1958 (Cth) – whether Authority failed to consider all relevant country information concerning conditions for returnees in Sri Lanka – whether the Authority failed to correctly apply the real chance test – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36, 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
BWE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1087
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of last submissions: 3 September 2024 Date of hearing: 3 September 2024 Place: Melbourne Solicitor for the Applicant: Mr S Bandara, Mendis & Gibson Lawyers Solicitor for the Respondents: Ms S Moxey, Sparke Helmore ORDERS
MLG 472 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: APX18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for judicial review filed on 23 February 2018 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 23 February 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 31 January 2018. The Authority affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa). The Minister opposes the application. The Authority enters a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicant is a Sri Lankan citizen of Tamil ethnicity, who arrived in Australia as an irregular maritime arrival on 20 September 2012 (Court Book (CB) 23).
On 22 December 2015, the applicant was invited by the (then) Department of Immigration and Border Protection (Department) to apply for a Temporary Protection (subclass 785) visa or the visa (CB 25-29).
On 13 July 2016, the applicant made a valid application for the visa with the assistance of a migration agent (CB 48-84). The applicant’s claims for protection were set out in his statutory declaration attached to the visa application, which was prepared with the assistance of an interpreter in the Tamil language. These can be summarised as follows (CB 85-91):
·In late 2003, the applicant was coerced by the Liberation Tigers of Tamil Eelam (LTTE) into working for the Rural Bank. The applicant was told he would be killed if he did not commence employment with the Rural Bank.
·In March 2004, the Karuna Group split from the LTTE. The Karuna Group took control of the Rural Bank, and the applicant took the opportunity to leave his employment.
·On 7 April 2004, the applicant was captured by members of the Karuna Group and was taken to the Karuna Group base camp, Vepabettuvan. At Vepabettuvan, the applicant was interrogated about whether he was a member of the LTTE.
·The Karuna Group members believed that the applicant was an LTTE member because he had left the Rural Bank when it became under the Karuna Group’s control. The applicant was subsequently tortured at the base camp.
·The applicant was threatened and tortured for seven days. After seven days, the applicant was transferred to a different location and detained for approximately a further 21 days.
·In late May 2004, the applicant escaped and fled to his aunt’s house in Chenkaladi. The applicant received a phone call from his grandfather informing him that members of the Karuna Group, the army, the Criminal Investigation Department (CID), and the Eelam People’s Democratic Party had visited the applicant’s family home in Chenkaladi, demanding to know his whereabouts.
·The applicant returned to his home in Karadinyanuru because Chenkaladi was in an army-controlled area. The applicant hid in Karadinyanuru and was able to avoid detection because it was under LTTE control.
·In 2006 the LTTE commenced compulsory military training. The applicant fled to Iraq because he did not agree with the LTTE and did not want to fight for them. However, the applicant returned to Sri Lanka after three months because of the war in Iraq.
·The applicant and his family moved into a displaced persons camp in Kudiyiruppu due to the Sri Lankan army advancing in Karadinyanaru and his family home being shelled.
·At the beginning of 2007, the applicant fled the displaced persons camp, due to being spotted by a group of CID, Special Task Force (STF) and Pillayan’s staff members. After this, the applicant lived in Kudiyiruppu colony with his mother. In February 2007, the applicant fled the colony to his aunt’s house in Chenkaladi because a group of men had approached his neighbour asking his whereabouts.
·The applicant moved between different family members’ houses in Chenkaladi for two years. During this time, the applicant was informed that a group of men were asking of his whereabouts.
·In 2009 the applicant worked in Qatar and returned to Sri Lanka in late 2010 due to the poor performance of his employer’s business.
·In 2012 the applicant assisted the Tamil National Alliance (TNA) in their election campaign in return for protection from the persecution he was facing.
·On 15 August 2012, members from pro-government forces visited the applicant’s home, threatened to kill his wife and told her that the applicant must surrender. After this occurred, the applicant did not return home and made arrangements to flee to Australia.
·The applicant fears the serious risk of being detained and tortured by authorities if he returns to Sri Lanka.
On 15 November 2016, the applicant was invited to attend an interview with a delegate of the Minister on 27 March 2017 (SHEV interview) (CB 157-159).
On 27 March 2017, the applicant attended the SHEV interview, during which information, including the following, was gathered and discussed (CB 165-166):
·It was put to the applicant that the Department had received two letters from the applicant’s wife in August and September 2015, requesting that the Department return the applicant to Sri Lanka as the situation was returning to normalcy, and his daughters’ mental health was being affected by his absence.
·The applicant claimed that if he was an Australian citizen he could return to Sri Lanka without being harmed.
·It was put to the applicant that he had provided inconsistent information regarding the period of detention in 2004 as between his entry interview and his statement of claim. The applicant said that the second statement provided the correct account.
·The applicant claimed that his assistance and support to the TNA during the 2012 election was a “big issue” for the CID. The applicant made further claims that the Karuna Group went to his home and threatened his family.
·It was put to the applicant that because he had remained in Sri Lanka between 2004 and 2012, albeit he departed the country on three occasions for a total of about two years, this might suggest that there was still a lot of time that the applicant was in Sri Lanka without being harmed.
On the 20 April 2017, a delegate of the Minister refused to grant the applicant the visa (CB 160-178).
REFERRAL TO THE AUTHORITY
On 24 April 2017, the decision of the Minister’s delegate was referred to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (Act) (CB 179-188).
On 25 June 2017, the applicant wrote to the Authority by email and requested an extension of time to seek legal advice (CB 201). The Authority informed the applicant that no decision would be made by the Authority before 5 July 2017 and that any submission made before this date may be considered (CB 202).
On 5 July 2017, the applicant’s newly appointed lawyer provided the Authority with a cover letter, written submissions, a letter from the Bishop of Batticaloa Diocese, a YouTube link to a video described as a “recent interview by the Chief Minister of the Northern Province” (Youtube link), as well as the following four documents (CB 207-268):
·Extracts from “Tamils of Sri Lanka – The quest for human dignity”.
·Statement by Transnational Government of Tamil Eelam (TGTE) on the joint Declaration by Australia and Sri Lanka.
·The statement by Movement for Equal Rights.
·A report from International Crisis Group (ICG).
DECISION OF THE AUTHORITY
On 31 January 2018, the Authority affirmed the delegate’s decision and produced a written statement of decision and reasons (Reasons) (CB 274-292).
The Authority decided not to consider three of the four items of country information provided by the applicant’s representative on 5 July 2017. It dealt with two sources – “Tamils of Sri Lanka: The quest for human dignity” and the statement by Movement for Equal Rights – at [4] of its Reasons:
Attached to the IAA submission are four sources of country information which were not before the delegate and are new information. One of these sources predates the delegate’s decision, and one is undated. The applicant was represented at his SHEV interview, and confirmed to the delegate he understood the importance of providing all relevant information in the first instance. At the end of the SHEV interview the applicant’s former representative made an oral submission for the delegate’s consideration. The applicant has not explained why these two sources could not have been provided before the delegate’s decision; nor has he explained how, as general country information, they constitute personal, credible information. I am not satisfied exceptional circumstances exist to justify consideration of these two sources. Nor has the applicant has not satisfied me as to either of the matters in s.473DD(b).
The Authority dealt with the other two sources of country information – the report from the ICG and the TGTE Joint Declaration – at Reasons, [5]-[6]:
Two of the sources of new country information attached to the IAA submission postdate the delegate’s decision, and for that reason I am satisfied they could not have been provided to the delegate. The first of these is from the International Crisis Group (ICG), “Sri Lanka’s Transition to Nowhere”. I accept that this ICG report, which is from a reputable and well known source, provides an update on events in Sri Lanka since the delegate’s decision, and I am satisfied that exceptional circumstances exist to justify its consideration.
The second is from the Transnational Government of Tamil Eelam (TGTE), “Joint Declaration – Australia Keeps Mum on Human Rights in Sri Lanka”. The TGTE, which appears to present itself as an alternative government for Tamils in Sri Lanka, makes a series of statements without sources or detail, and it is difficult to evaluate its reliability. There are a range of other sources from independent, credible organisations already before me, and overall I am not satisfied exceptional circumstances exist to justify consideration of the TGTE source.
The Authority identified what it described as a number of “significant discrepancies” between the applicant’s evidence and the reverend’s letter of support. The Authority acknowledged, based on the date of the letter, that it could not have been provided any earlier, but noted that there was no explanation provided as to why the applicant had not obtained such a letter prior to the delegate’s decision. The Authority was not satisfied that the letter was corroborative of the applicant’s claims or a reliable account of events and was not satisfied that exceptional circumstances existed to justify its consideration (Reasons, [8]-[9]).
The Authority referred to the Youtube link and noted that it was posted to Youtube after the delegate’s decision, although there was no indication when the actual video had been recorded. The Authority made reference to the content of the video but in circumstances where the IAA submission had not explained how the video was relevant to the applicant’s claims, the Authority was not satisfied that exceptional circumstances existed to justify its consideration (Reasons, [10]).
At Reasons, [11], the Authority summarised the applicant’s claims in a manner that is not challenged in this proceeding.
At Reasons, [15], the Authority accepted that the applicant might have mental health issues which might impact on his ability to recall past events precisely, but noted that this did not overcome its concerns regarding the “inherent lack of credibility” of his claim that the Karuna Group and Sri Lankan authorities had been searching for him since 2004.
By reference to the letters sent to the Department by the applicant’s wife and the explanation offered by the applicant, the Authority accepted that the applicant and his wife had been separated since 2013 and were no longer in contact. The Authority accepted that the applicant’s wife had sent the letters to the Department without his knowledge, but considered his evidence of her doing this because she was tired of being questioned by individuals who were pursuing the applicant to be speculative (Reasons, [16]).
The Authority accepted that the applicant was born in Batticaloa, where the LTTE were active during the civil war. The Authority accepted that historically, Tamils, particularly those from the north and east of Sri Lanka, reported being monitored, harassed, arrested and detained by security forces under the former Rajapaksa government (Reasons, [17]).
Even though the applicant provided conflicting information regarding the detail of his employment with the bank, the Authority accepted the applicant’s evidence that in 2003 his home village of Karadinyanaru was under LTTE control, that the LTTE ordered him to begin working in their bank in a low-level role, and when the bank fell under Karuna Group control the applicant took the opportunity to leave his employment (Reasons, [18]-[20]).
The Authority accepted that the applicant had been detained by the Karuna Group in their camp in April 2004, had been interrogated and accused of supporting the LTTE and had been seriously mistreated, including to the point that it had left the applicant with physical scars. The Authority accepted that after one month and during fighting between the LTTE and the Karuna Group, the applicant had been able to escape from the camp (Reasons, [21]).
However, the Authority had serious concerns with the applicant’s claims regarding the ongoing efforts of the Karuna Group, and Sri Lankan Authorities to find him. The Authority had difficulty accepting the applicant’s claim that the Karuna Group would have been motivated after his escape to pursue him, let alone to involve the authorities (the SLA, CID and EPDP) in their efforts to do so (Reasons, [23]).
The Authority accepted that the applicant had eventually returned to his home in Karadinyanaru, but when the LTTE began to forcibly recruit villagers in 2006, he made the decision to leave. The Authority accepted that the applicant had then travelled to Iraq to work but returned to Sri Lanka after only three months due to the insecurity there. The Authority also accepted that when the applicant returned, the fighting between the Sri Lankan authorities and LTTE was ongoing, and that he and his family were displaced and went to live in a government IDP camp (Reasons, [24]-[25]).
However, the Authority did not accept that in early 2007 a group of CID, STF and Pillayan’s staff members spotted the applicant as they walked through the camp. The Authority considered this claim to be far-fetched given that the applicant’s own written SHEV statement indicated that the camp was crowded, and that three years had passed since the applicant had been in the Karuna Group’s custody. The Authority had no evidence suggesting that the applicant had any prior interactions with the CID or STF and found the claim that they searched for him at his family home in 2004 not to be credible (Reasons, [26]).
The Authority was prepared to accept that the applicant had begun residing outside of the camp but rejected the applicant’s claims that a group of men from the authorities (in 2007) or the SLA, CID and Karuna Group (2008) had been looking for him (Reasons, [27]-28]).
The Authority accepted that the applicant had worked in Qatar in 2009, and that in late 2010 he was forced to return to Sri Lanka because his employer had gone out of business. However, the Authority did not accept that the applicant’s evidence about the circumstances of his departure, adequately explained how he was able to depart Sri Lanka and return in 2006 and 2009/2010 if he was a person of interest to the Sri Lankan authorities (Reasons, [29]).
The Authority rejected the applicant’s claim to have left his employment at Union Insurance, purportedly because he feared his colleague had passed information about him to the Karuna Group. Given that the applicant was engaged in public roles as an insurance salesman, and a proprietor of a food store, the Authority did not accept that the applicant was fearful of the Karuna Group during this period (Reasons, [30]).
The Authority was prepared to accept that the applicant provided basic logistical support to the TNA in the lead up to the 2012 elections but found the applicant’s evidence that he was the subject of “continuous threats” by an “unidentified armed group” during the election period and that he was a “vigorous TNA supporter” to be unconvincing. The Authority noted that the applicant’s evidence given at the SHEV interview regarding his election activities was extremely vague and lacked detail (Reasons, [32]-[33]).
The Authority found significant contradictions between the applicant’s written SHEV statement, his supporting documentation, and his evidence to the delegate, regarding the events that prompted him to depart Sri Lanka by boat in August 2012 (Reason, [36]). In the same context, the Authority noted that the delegate had put to the applicant that it was difficult to accept that it took the Karuna Group and government forces eight years to take action against him, while in the meantime he was able to depart and re-enter Sri Lanka on two occasions, get married and work in several occupations (Reasons, [40]).
The Authority was prepared to accept that the Karuna Group had abducted the applicant in 2004, because he had left his position at the Rural Bank and because they may have believed he was an LTTE supporter or had information regarding donations to the LTTE. However, the Authority did not accept that the Karuna Group maintained an interest in him after his escape from their camp, or that the SLA and CID developed an interest in him as a result. The Authority did not accept that the applicant had a profile of any sort with the Karuna Group or Sri Lankan authorities at the time of departure from Sri Lanka by boat and did not accept that the CID had questioned his mother about his whereabouts since then (Reasons, [41]) The Authority did not accept that the Sri Lankan authorities had spoken to his wife, as claimed, either (Reasons, [42]).
The Authority referred to the 2012 United Nations High Commissioner for Refugees (UNHCR) Guidelines and noted that in the five years since their publication, the country information before the Authority indicated that the situation in the north and east of Sri Lanka, although fragile, had continued to improve and that while there was evidence of continued military interference, the Sirisena government had replaced the military governor of the Northern Province with a civilian administration as a confidence-building measure to address the grievances of the Tamil community, and the monitoring of individual citizens in the north and east of the country, while still occurring, had reduced (Reasons, [46]).
The Authority referred to country information to the effect that a person being of Tamil ethnicity would not itself warrant international protection and found that the evidence before it did not suggest that a young Tamil male from the east, who briefly worked for the LTTE, was sufficient [to warrant protection] (Reasons, [47]).
The Authority was not satisfied, including because the Karuna Group was no longer operational in Sri Lanka, that the applicant would be of interest to the Sri Lankan authorities, or any person associated with the former Karuna Group paramilitary, because of his status as a young Tamil male from the east with scarring, his low level work for the LTTE, his previous interactions with the Karuna Group or his basic TNA involvement. Based on the applicant’s personal circumstances and the greatly improved country information, the Authority found that the applicant did not face a real chance of harm for any of these reasons, should he return to Sri Lanka (Reasons, [49]).
The Authority accepted that in August 2012 the applicant had departed from Sri Lanka illegally, without a passport, to seek asylum in Australia but based on DFAT country information and its finding about the applicant’s profile, was not satisfied that the applicant faced a real chance of harm on account his having sought asylum in Australia (Reasons, [50]).
The Authority acknowledged that the applicant would have the status of an illegal departee upon return to Sri Lanka and be subject to the Immigrants and Emigrants Act (the I&E Act), but found that while there was a real chance the applicant would be questioned, fined, and held briefly as part of the re-entry process, he would not face greater scrutiny or penalty upon return than other illegal departees and that any routine questioning at the airport upon return, would not amount to serious harm (Reasons, [52]-[54]).
The Authority was not satisfied that the payment of a fine or being held in detention for a period of up to 24 hours at the airport, or possibly a nearby prison for a brief period, cumulatively would amount to serious harm. The Authority was not satisfied that prison conditions, although poor, would of themselves, constitute serious harm as defined by the Act (Reasons, [55]).
The Authority noted that if the applicant was to plead not guilty, he would be released on his own surety or, if a family member was required to act as a guarantor, there was not evidence before the Authority to suggest that a family member would not be available to go to Colombo, or act as guarantor, if required. The Authority was not satisfied on the evidence that even if the applicant was to plead not guilty, there was a real chance he would be detained any longer than a brief period (Reasons, [56]-[57]).
The Authority also recorded a finding that the country information indicated that the I&E Act applied to all Sri Lankan citizens and was not discriminatory on its face or in its application. The Authority found that the treatment the applicant would face as a consequence of the application of the I&E Act was not persecution within the meaning of s 5J(4) of the Act (Reasons, [58]-[59]). The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) and did not meet s 36(2)(a) (Reasons, [60]).
By transposition of its findings made in relation to s 36(2)(a), the Authority found that there was not a real risk that the applicant would suffer significant harm arising from his low level involvement with the LTTE, his detention by the Karuna Group, his basic support to the TNA or because his marriage had broken down (Reasons, [63]),
The Authority referred again to the prospect that the applicant might be required to spend up to 24 hours in police custody, or possibly a nearby jail, to resolve his offences under the I&E Act, but found that neither this, nor the imposition of a fine, would amount to or involve significant harm. The Authority did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm and concluded that the applicant did not meet s 36(2)(aa) (Reasons, [64]-[67]).
APPLICATION FOR JUDICIAL REVIEW
On 23 February 2018, the applicant made an application to this Court for judicial review of the Authority’s decision. The application was heard on 3 September 2024 on which occasion the applicant was represented by solicitor advocate, Mr Bandara and the Minister was represented by solicitor advocate, Ms Moxey.
The application raises three grounds of review.
Ground One
Ground one reads:
1.The Second Respondent fell into jurisdictional error when considering its obligations under s437DD of the Migration Act 1958 by failing to consider the new information before it and or/adopted a narrow and incorrect interpretation of the term “exceptional circumstances”. The Second Respondent therefore failed to consider all the circumstances of the appellant, and the country conditions as relied and interpreted by the delegate in a balanced perspective to decide whether the circumstances were exceptional and the Second Respondent erred in determining that there were no exceptional circumstances in existence to justify considering of new information or that it was not credible personal information.
The applicant’s submissions
The applicant submits that the Authority erred by failing to consider three of the four items of country information that were provided by him following the referral of his matter to the Authority.
The applicant submits that all four items of country information discussed crimes committed by the Sri Lankan state and the historical background of the ethnic crisis in Sri Lanka, and the Authority erred when it refused to consider two of these sources “solely on the grounds that they are either undated or predated the relevant period”.[1] The applicant submits that the subsequent conclusion that no exceptional circumstances exist to justify their consideration was not justified. The essence of the applicant’s argument was that the Authority should have treated each item of country information uniformly with its treatment of the item of country information that it found satisfied s 473DD, being the report from the ICG.
[1] Applicant’s written submissions at [10].
The applicant submits that the Authority should have understood the significance of the items of country information to the applicant’s case from the following passages appearing in the cover letter to the Authority dated 5 July 2017 (CB 207).
The applicant feels that a form of cursory consideration of his claims for refugee status has been made with foreign policy or immigration control consideration implications in mind, without any objective content to international protection.
In arriving at such opinion, the government’s view in forming a judgment about conditions in Sri Lanka by DFAT has been principally relied upon and what is quoted in corroboration is also reports from similar states who are faced with immigration control about asylum seekers including Tamils from Sri Lanka. All such reports are motivated by foreign policy considerations, or in dealing with onshore protection claims with less inclination and opportunity for attempting to weight the balance between its own and the applicant’s interest in favour of its own. Although by Ministerial Directions No. 56 of 21 June 2013, the delegates must take into account, where relevant, a DFAT assessment, the delegate is not precluded from considering other relevant information. The assessment cannot be objective, if a balance from the independent information is not sought or information corroborative to DFAT assessment only is weighted, and no articulation is expressed for a preference.
The Minister’s submissions
The Minister joins issue with the applicant’s description of the Authority’s reasons for refusing to consider the first two items of country information. The Minister submits instead that while the dates ascribed (or not) to the country information formed part of the Authority’s reasoning, it also considered that the applicant was represented at his SHEV interview, and he understood the importance of providing all relevant information in the first instance and that the applicant’s submissions did not explain why the country information met the new information criteria.
The Minister submits that in these circumstances, the Authority’s finding did not lack any “intelligible justification” including because both limbs of s 473DD(b) were considered before the Authority found that exceptional circumstances did not exist (engaging s 473DD(a)).
The Minister submits that in circumstances where the burden was on the applicant to satisfy the Authority of the matters in ss 473DD(b)(i) and (ii), it was sufficient for the Authority to deal with that aspect of its consideration by referring to the absence of any explanation provided by the applicant in his submissions and without making its own inquiries into such matters. This approach finds support in the decision of BWE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1087 at [30] (per McKerracher J).
As far as the third item of country information is concerned, the Minister submits that there is no discernible error in the application of s 473DD to this information because the Authority’s Reasons at [6] reveal that it was not satisfied that the information satisfied s 473DD(b)(ii), which finding informed the Authority’s ultimate conclusion that there were not exceptional circumstances to justify its consideration.
Consideration of ground one
Legal framework and principles
Ground one is concerned with the Authority’s exercise of the discretion contained in s 473DD of the Act which provides:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible, personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
As a statement of principle, the following paragraphs taken from the plurality judgment in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 identify the framework against which the approach taken by the Authority should be assessed.
11. Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12. The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if its determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
I am not persuaded that the Authority has erred in the manner alleged by the applicant. It seems to me that the Authority’s application of s 473DD was legally correct and reflected the requirement to first consider whether the new information satisfied either or both of the two limbs in s 473DD(b) before assessing the new information against s 473DD(a).
In the case of the first two items of country information considered by the Authority, the second evaluation was strictly unnecessary given that the new information did not satisfy either of the s 473DD(b) criterion. In this regard, I accept that it was open to the Authority to make this evaluation based on the failure of the applicant to offer an explanation as to why the new information satisfied this criterion, including in circumstances where the new information, being country information, was unlikely to possess the character of “credible, personal information”, a matter that the Authority in its Reasons acknowledged. Relatedly, I do not accept that the paragraphs relied upon by the applicant (reproduced at [46] above) contained an explanation as to why the items of country information were capable of satisfying s 473DD(b)(ii). The statement involved an exhortation in general terms to the Authority to cast the net wider in its consideration of country information but did not engage with any of the items of country information that were put before the Authority.
In the case of the third item of country information, while the Authority found that it satisfied s 473DD(b)(i) this did not compel a finding that there were exceptional circumstances to justify its consideration. Neither did the fact that it had resolved to consider the ICG report demand a positive response. The Authority was required to apply the criteria in s 473DD to each item of country information and to make an assessment based on the characteristics that the country information possessed. I see no evidence that in undertaking these individual assessments, the Authority failed to properly form its procedural duty.
Ground one is without merit.
Ground two
Ground two reads:
2. The decision of the Second [respondent] failed to apply the ‘Real Chance’ test correctly as enunciated in Chan v MIEA and followed by a series of decisions by not considering, or giving weight to the substantial and clearly plausible claims and their impact on the fear of the applicant, to return to the current conditions in the country.
The applicant’s submissions
The applicant submits under this ground that the Authority failed to apply the “real chance” test as it was enunciated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 because it failed to give weight to the “substantial and clearly plausible claims and their impact on the fear of him to return to his home country in the current conditions of the country”.[2]
[2] Applicant’s submissions at [14].
The applicant submits that this conclusion follows from the failure of the Authority to find that the claims that it accepted – namely, that the applicant had been harassed, seriously mistreated and detained by the Karuna Group in their camp, interrogated and accused of supporting the LTTE – would have a real chance of reoccurring. The applicant submits – without explication – that the Authority’s reasons for rejecting these claims could not be supported on any reasonable basis.
At hearing, when pressed to identify a precise foundation for the assertion of error, the applicant’s lawyer told the Court that the ground was concerned with the alleged failure of the Authority to consider that the applicant had been wanted by authorities because he was in possession of sensitive information.
The Minister’s submissions
The Minister submits that the reasons of the Authority, operating on the claims that it accepted, demonstrate that there was a logical and probative basis for its finding that there was not a real chance that the applicant would suffer relevant harm on his return to Sri Lanka.
The Reasons record that the Authority accepted the applicant’s claim that in April 2004 the Karuna Group detained him at their camp, interrogated him regarding his knowledge of who had made donations to the LTTE, accused him of supporting the LTTE because he had left the bank when the Karuna Group took over, and seriously mistreated him. The Authority also found that the applicant’s role at the bank was low level and considered the applicant had exaggerated his evidence in this regard. The Authority accepted that after one month, during fighting between the LTTE and the Karuna Group, the applicant was able to escape from the camp (Reasons, [21]).
The Minister submits that the Authority also had regard to the problematic nature of the applicant’s evidence throughout the SHEV interview and did not accept that the Karuna Group maintained an interest in him after his escape from their camp during a period of fighting, or that the SLA and CID had developed an interest in him as a result. The Authority did not accept that the applicant had a profile of any sort with the Karuna Group or Sri Lankan authorities at the time of his departure from Sri Lanka by boat (Reasons, [41]).
The Minister submits that the Authority dealt with those aspects of the applicant’s claim that had survived its adverse credit findings by considering country information before it, which indicated that the security situation in Sri Lanka had greatly improved and there was no country information before it that made any reference to people with scarring now being more likely to be the subject of attention from Sri Lankan authorities (Reasons, [48]).
On the exacting standard required for a finding of legal unreasonableness, illogicality, or irrationality (refer, for example, Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33]-[34]) it could not be said that the Authority had erred in the manner alleged in ground two.
Consideration of ground two
I am not persuaded that the Authority has erred in its application of the “real chance” test or in the way that it has evaluated the objective element of the applicant’s claims to fear harm on return to Sri Lanka.
The Authority, in comprehensive and careful reasons evaluated the extant aspects of the applicant’s claims against country information and other aspects of the applicant’s evidence that it ultimately rejected, and found that in combination, these did not create a risk profile for the applicant that would, upon return to Sri Lanka, coalesce in a real chance of harm for any of the surviving reasons.
Contrary to the submission made on the applicant’s behalf at hearing, the Authority did consider the applicant’s claim that he was interrogated by members of the Karuna Group who were interested in obtaining from him information about the LTTE. The Authority accepted this claim. However, the Authority did not accept that this discrete interaction in 2004 produced ongoing consequences for the applicant and did not accept that the applicant had a profile of any sort with the Karuna Group or Sri Lankan authorities at the time of his departure from Sri Lanka by boat. The applicant has not explained why these subsequent findings are liable to be aside for unreasonableness, or on any other species of jurisdictional error.
The applicant’s attack involves an invitation to revisit the merits, rather than a genuine engagement with the pathway of reasoning adopted by the Authority.
There is nothing in the Reasons that suggests that the Authority misunderstood the concept of “real chance” including by imposing an impermissibly high standard of risk.
Ground two is without merit.
Ground three
Ground three reads:
3.The decision of the Second Respondent is affected by an error of law, by failing to take relevant considerations or the reality of the foreseeable developments into account in the exercise of its power.
Particulars
a. The Second Respondent accepted the applicant’s claim in substance of his fears, but concluded that the situation in the North and East of Sri Lanka, although fragile, has continued to improve and made conclusions in suppositions on aspects of the claims of the applicant and the conditions of the country in the foreseeable future for his conclusions.
The applicant’s submissions
It is submitted by the applicant that in the context of dealing with the treatment of returnees and where country information provided by DFAT confirmed that penalties applied for leaving Sri Lanka (including imprisonment and fines), the Authority failed to consider the “reality of the foreseeable developments in the receiving country”, including as they operated on its positive findings that the applicant was harassed and detained for his connections with the LTTE. The applicant also alleges that when the Authority undertook a cumulative assessment of his claims, it failed to take into account his accepted history of connection to the LTTE.
The Minister’s submissions
The Minister submits that the Reasons demonstrate that the Authority took a more nuanced view of the applicant’s claims and did not simply find that he had an accepted history of connection to the LTTE or that any past connection would translate to prospective harm.
Instead, the Authority accepted that the Karuna Group detained the applicant in 2004 and he was mistreated ([22]) but found that he was of no adverse interest after his release. The Authority also accept that the applicant had worked for the TNA in the lead up to the 2012 elections ([33]) but did not accept that he would be of adverse interest to the authorities on return for these reasons, also noting country information setting out the improved conditions in Sri Lanka in relation to the TNA and for Tamils (see, [45] and [49]).
The Minister submits that the Authority expressly considered the applicant’s accepted history of his connection with the LTTE in considering his claims cumulatively. This was said to arise from Reasons, [54] “with reference to the applicant’s particular circumstances”, read together with Reasons, [55]. Further, at [63] “I accept in 2003/2004 the applicant was a low level LTTE employee and that the Karuna Group later detained and seriously mistreated him in connection with this employment”.
The Minister submits that the Authority’s findings that the applicant would not face serious or significant harm as an illegal departee on return to Sri Lanka were open to the Authority for the reasons it gave.
Consideration of ground three
Much like ground two, the applicant’s argument directed at ground three fails to engage with the actual findings recorded by the Authority and instead takes issue with the conclusions drawn by the Authority without any clear articulation of a legal error.
The Authority recorded a finding that the applicant was not of interest to the Karuna Group or the authorities at the time of his departure from Sri Lanka (Reasons, [41]). This finding was not the subject of direct challenge in this proceeding. This finding was central to the way in which the Authority approached the question of whether the applicant would suffer relevant harm as a returnee subject to the I&E Act.
The Authority approached this question in an unexceptional and unobjectionable fashion when it considered the applicant’s circumstances in the context of authoritative DFAT country information that was to the effect that a returnee with this profile would not face greater scrutiny or penalty upon return than other illegal departees (Reasons, [54]).
The Authority’s decision demonstrates, at several points, that it remained cognisant of the surviving elements of the applicant’s claims, including as they operated together to create a combined picture of the applicant’s circumstances (see for example, Reasons at [48]-[49] and [63]) and that it considered whether the applicant might suffer relevant harm as a result. I therefore reject the contention that the Authority failed to take into account the applicant’s accepted history of connection to the LTTE when it undertook a cumulative assessment of his claims.
The Authority expressly acknowledged the applicant’s “low level work for the LTTE” when it found that the applicant would not face a real chance of harm on return to Sri Lanka. That finding of historic connection to the LTTE was ultimately absorbed by the Authority’s later finding that the connection did not translate to an ongoing or contemporary risk profile, which finding I accept was one that was open to the Authority having regard both to country information and the Authority’s evaluation of the applicant’s evidence concerning later events and interactions with authorities.
Ground three is without merit.
ORDERS
The applicant has not established jurisdictional error in the decision of the Authority. It follows that his application seeking judicial review should be dismissed and an order made that the applicant pay the Minister’s costs in the amount of $8,371.30.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 5 September 2024
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