AQC18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 379
•19 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQC18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 379
File number: MLG 332 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 19 March 2025 Catchwords: MIGRATION – protection visa – judicial review of a decision of the Immigration Assessment Authority – where invitation to attend Departmental interview did not comply with procedural requirements under the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) – where effect of non-compliance was that applicant had only one day’s notice of interview – where submissions provided to the Authority were prepared by the same migration agent whose conduct was the subject of Minister for Home Affairs v DUA16 – where submissions contained some information that did not obviously relate to the applicant - whether in those circumstances the failure of the Authority to exercise the power in s 473DC of the Act to invite the agent to provide further submissions was unreasonable – case analogous to DUA16 – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), Part 7AA, ss 5H, 5J, 36, 56, 58, 473DC, 473DD, 476
Migration Regulations 1994 (Cth), reg 2.15
Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
Minister for Home Affairs v DUA16/Minister for Home Affairs v CHK16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submissions: 5 March 2025 Date of hearing: 26 February 2025 Place: Melbourne Solicitor for the Applicant: The applicant represented himself Counsel for the First Respondent: Mr N Dour Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 332 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQC18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
19 MARCH 2025
THE COURT ORDERS THAT:
1.The application for judicial review filed on 12 February 2018 be dismissed.
2.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 12 February 2018, the applicant seeks review of a decision of the second respondent (Authority) made on 18 January 2018 affirming a decision of the first respondent (Minister) not to grant him a Safe Haven Enterprise (subclass 790) visa (visa). The Authority entered a submitting appearance save as to costs and did not participate in the proceedings.
BACKGROUND
The applicant is a citizen of Sri Lanka (Court Book (CB) 4) who arrived in Australia on 13 October 2012, as an unauthorised maritime arrival.
On 16 December 2016, the applicant made a valid application for the visa, attaching a statutory declaration dated 13 December 2016, a Sri Lankan driving licence, a national identity card, a birth certificate, and Sri Lankan country information (CB 25-101). The statutory declaration set out the applicant’s claims for protection which can be summarised as follows (CB 66-71):
·The applicant is a Sri Lankan citizen of Tamil ethnicity and was born in Jaffna, Northern Province. His family lived in the islands off the north of Sri Lanka which were under control of the Sri Lankan Army (SLA) and the Eelam People’s Democratic Party (EPDP).
·The applicant fears he will be interrogated, tortured, or killed by the Sri Lankan authorities due to being of Tamil ethnicity and for his imputed support of the Liberation Tigers of Tamil Eelam (LTTE). He also fears harm from the EPDP.
·The applicant was subject to random abuses and beatings by the SLA due to his Tamil ethnicity. In 1996, he was rounded up with a group of other young Tamil men and assaulted after being incorrectly identified as an LTTE member.
·In or around October 2006, police attended the applicant’s house, at which time they stole his sister’s jewellery and took him and his family to a police station. The applicant’s father was released but he and his brothers were detained. The applicant and his brothers were interrogated and assaulted at the police station and detained for nearly eleven days before being released.
·In October 2006, the applicant attempted to flee to the United Kingdom with the assistance of an agent from Colombo. However, when the applicant arrived in Kuwait, he was sent back to Sri Lanka for using a false passport.
·The applicant’s sister, H, moved to the Netherlands in 1999 due to an arranged marriage and was granted refugee status. The applicant’s other sister, P, moved to Norway and was granted refugee status due to her Tamil ethnicity, and one of his brothers, N, had moved to France and had applied for protection which claim had not yet been determined.
·In or around June 2007, the applicant organised to travel to France via India. After the applicant arrived in India, he was unable to travel to France as he lost his passport and contact with the agent who was assisting him. Six months later he returned to Sri Lanka on a boat with Sri Lankan fisherman.
·In 2011, army officers who were disguised in plain clothes and covered in “grease” attacked Navanthurai with knives. After this occurred, the SLA declared a curfew in the village of Navanthurai and continued to attack all the people who lived there. The applicant was threatened, harassed and beaten by the SLA and the EPDP in the streets. The applicant’s shoulder was injured as a result. On 22 August 2011, soldiers assaulted people who were trying to go to the temple in Jaffna. Following this, the SLA continued to search, harass, and torture the people living in Navanthurai.
·The applicant and his family have previously relocated within Sri Lanka, but he does not believe he could safely live anywhere in Sri Lanka, as Sri Lankan authorities exercise control throughout the country. He would also be easily located by the CID within Sri Lanka, as he is known to them.
·The applicant fears that if he is returned to Sri Lanka he will be imprisoned and suffer cruel treatment at the hands of the Sri Lankan authorities because he has sought asylum in a western country.
By letter sent on 21 April 2017, a delegate of the Minister requested the applicant to attend a visa interview on 27 April 2017, which he did (CB 112-114).
On 2 June 2017, the delegate made a decision not to grant the applicant the visa.
On 7 June 2017, the delegate’s decision was referred to the Authority for review (CB 176-177). The Authority was provided with the applicant’s Departmental file which included a statement in a foreign language by a member of parliament in the Batticaloa District, a sworn English translation of the statement, birth certificates, family identification cards, motor vehicle result sheet, a statement from a priest at the St Sebastian Church, a statement of a reverand from St Nicholas Church, and a receipt of arrest dated 31 October 2006 (CB 157-177).
On 14 June 2017, the Asylum Seeker Resource Centre (ASRC) emailed the Authority on the applicant’s behalf seeking an extension of time to provide a written submission (CB 186). The Authority approved this request and granted the applicant an extension of time until 12 July 2017 (CB 189).
On 28 June 2017, a migration agent submitted a written statement to the Authority on behalf of the applicant (CB 190-197) (Authority submissions). The Authority submissions set out a statement of the legal principles relevant to the applicant’s claim for protection and new claims which can be summarised as follows.
·The applicant’s sister was part of the LTTE, the applicant’s family was known as an LTTE family, and when the applicant was 10 years old, he had acted in an LTTE movie.
·The applicant had been sexually abused by the SLA.
·The applicant had insider information on the police force and their lack of human rights practices.
·The applicant’s brother with whom he had been arrested had been granted asylum in Canada.
On 3 July 2017, the migration agent provided the Authority with the UNHCR country information that was referred to in the Authority submissions. (CB 199-242).
THE DECISION OF THE AUTHORITY
On 18 January 2018, the Authority affirmed the decision of the delegate and produced a written statement of decision and reasons (R) (CB 249-264).
The Authority identified the applicant’s new claims contained within the Authority submissions that were not before the delegate (R, [5]). However, the Authority was not satisfied that there were exceptional circumstances which justified considering any of the new information pursuant to s 473DD(b) of the Act. The Authority noted that all of the new claims related to matters which predated the applicant’s arrival in Australia, and no explanation had been provided for the delay in their disclosure. At R [6]-[9] the Authority recorded the following:
6. In respect of his claims that his sister H was part of the LTTE, that his family is known as an LTTE family, and that he acted in an LTTE movie when he was 10 years old, the applicant has not previously mentioned any such LTTE links or association. Although the applicant stated in passing in his protection visa (PV) interview that his sister H was arrested sometime when the family was displaced during the war time in 1994 to 1996, he did not claim that she was part of the LTTE or explain why she had been arrested, other than saying his family was displaced and separated in the war time. I also note that although he claimed his father and brothers were arrested alongside him he has not previously claimed that his family is known as an LTTE family or that he acted in an LTTE movie when he was 10 years old. These new claims all relate to matters that predate the applicant’s arrival in Australia. No explanation has been provided for their recent disclosure. The fact they are now only being advanced in the submission gives rise to considerable doubt as to their veracity. The applicant has not satisfied me as to either of the matters in s.473DD(b). I am therefore unable to consider this new information. Furthermore, in all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering this new information.
7. In respect of the claim that he had and still has insider information on the police force and its human rights or rather lack of human rights practices, and his opposition to the Sri Lankan government, the applicant has not previously made any mention of having insider information. Nor does the IAA submission explain the nature of the information or how or when he obtained it. It does not elaborate on the claimed opposition to the Sri Lankan government. The applicant has not explained why he did not make these claims earlier, having been given every opportunity by the delegate to provide further information at his PV interview. There is no explanation of the basis for these claims or the their context. The applicant has not satisfied me that this new information, if true, could not have been provided to the delegate before the decision was made. Nor has he satisfied me that it is credible personal information that may have affected the consideration of the applicant’s claims. I am therefore unable to consider it. Furthermore, in all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering this new information.
8. In respect of his new claim of being persecuted by way of sexual abuse by the SLA, the applicant has not explained why he did not make this claim earlier, having been given every opportunity by the delegate to provide further information at his PV interview. Again there are no details provided on when this occurred or in what context. I note that claims of this nature are often withheld and that late disclosure does not necessarily mean that they are false; however in the absence of any further explanation or detail the applicant has not satisfied that it is credible personal information or that it could not have been provided to the delegate before the decision was made. Furthermore, I am not satisfied that there are exceptional circumstances to justify considering this new information.
9. In respect of the claim that the applicant’s brother was who arrested alongside him has successfully sought asylum in Canada, the applicant did not previously mention that either of his two brothers, who were arrested alongside him in an incident in October 2006, had applied for or obtained asylum in Canada, having stated in his written application that one of his brothers is living in France and has applied for protection based on his Tamil ethnicity but is waiting on the outcome. At no point previously did he indicate that any brother had travelled to Canada. There is no explanation in the IAA submission as to when the applicant’s brother’s travelled to Canada or applied for and obtained asylum in Canada, or which of his two brothers has so applied. There is no indication that this was a recent event, if it indeed has occurred. The applicant has not satisfied me as to either s.473DD(b)(i) or (ii). I am also not satisfied that there are exceptional circumstances to justify considering this new information.
The Authority identified the applicant’s original claims for protection before turning to the refugee assessment (R, [10]). The Authority accepted that the applicant was a person of Tamil ethnicity, Roman Catholic faith, and from the Jaffna district of the Northern Province of Sri Lanka (R, [13]).
The Authority accepted that the applicant was born and raised in the Northern Province of Sri Lanka where intense fighting between the SLA and the LTTE had occurred, that as a child he had experienced displacement from his home village and had moved a number of times to avoid the fighting. The Authority also accepted that as a young Tamil, the applicant would have experienced harassment, random abuse and beatings by the SLA (R, [14]).
The Authority accepted that in 1996 when the applicant was thirteen years old, he along with other young Tamil males was subjected to beatings by the SLA due to suspected LTTE connections (R, [15]).
The Authority noted that the SLA maintained checkpoints and control in the Northern Province, and therefore it was plausible, that as a young Tamil male, the applicant had experienced harassment and mistreatment by the SLA (R, [16]).
The Authority acknowledged the applicant’s claim that his sister was arrested but noted that he had provided no detail as to why. The Authority also referred to the applicant’s claim that the sister had been granted refugee status in the Netherlands but noted that the basis of having obtained this status was unknown. The Authority found that the applicant had not explained whether there was a connection between his sister’s departure and her alleged arrest. The Authority accepted that the applicant’s family was displaced between 1994 to 1996 due to the war. However, the Authority was not satisfied that the applicant’s sister was arrested at any time during that period, given that there were three male siblings in the family. The Authority also identified that the applicant had not claimed that any of his family members were involved in or connected with the LTTE (R, [17]).
The Authority accepted that in October 2006 the police arrested and detained him, his two brothers, and father due to their suspected LTTE involvement. The Authority found that it was plausible that after interrogating the applicant and his brothers for an 11-day period the police did not have any information or evidence to support that they were associated with or supported the LTTE (R, [18]).
The Authority identified the applicant’s claim that following the incident in October 2006, he decided to flee the country and that his parents organised an agent in Colombo for him to travel to the United Kingdom via Kuwait. However, the Authority questioned why his two other brothers did not also flee the country at that time (R, [19]).
The Authority referred to the applicant’s claim to have fled to India in June 2007 with the intention of going to France due to a fear of being arrested, and interrogated and beaten. The Authority noted that the applicant had not made any further claims to have experienced adverse attention after October 2006 and did not accept that the applicant fled to India as a result of any fear connected with that event (R, [20]).
The Authority referred to the applicant’s claim concerning the attack on the village by army officers in disguise, in which he was said to have suffered an injured shoulder. The Authority accepted that after the attack the SLA had declared a curfew on his village and would regularly harass and threaten the people who lived there. The Authority considered the country information before it and the two letters of support provided by the priest and reverend, and accepted that during the years preceding the war there was a strong military presence and accepted that it was likely the applicant experienced harassment and threatening situations from the SLA (R, [21])
Whilst the Authority accepted that the applicant experienced harm, it was not satisfied that he was singled out for such treatment, but rather it occurred in a general context during the post war period, when Tamils generally were subjected to such mistreatment (R, [22]).
The Authority acknowledged the applicant’s claim that he was at risk of being detained under the Prevention of Terrorism Act (PTA) and that Tamils could be detained at any time. However, the Authority did not accept that the applicant would have any perceived LTTE links and was not satisfied that the applicant faced a real chance of being detained under the PTA (R, [24]).
The Authority considered the country information before it and was not satisfied that harassment of Tamils occurred or that the applicant faced a real chance of harm on the basis of his Tamil ethnicity. The Authority also found that the applicant was not a person of adverse interest to the authorities when he departed Sri Lanka, and did not accept that he would be perceived as having any associations with the LTTE (R, [25]).
The Authority recorded aspects of the DFAT country information before it and by reference to this information was not satisfied that the applicant faced a real chance of any harm upon his return to Sri Lanka on the basis of his Tamil ethnicity. The Authority also found that the applicant was not a person of adverse interest to authorities when he departed Sri Lanka, and did not accept that he would be perceived as having any associations with the LTTE, or that the applicant’s profile fell under any category of persons identified in the UNHCR Guidelines (R, [25]-[26]).
The Authority went on to consider various pieces of country information and concluded that it was not satisfied that there was a real chance the applicant would suffer harm from the Sri Lankan authorities, the EPDP or any other paramilitary group because of his Tamil ethnicity, origin from the Northern Province, or because of his experiences during the war (R, [27]-[31]).
The Authority accepted that the applicant might be classified as a person who illegally departed Sri Lanka in 2012, but having regard to the country information, did not believe that the applicant would face serious harm on his return to Sri Lanka as a returning asylum seeker (R, [35]).
The Authority also considered the country information package that was submitted on behalf of the applicant and found that the information did not support the claim that Tamil asylum seekers faced a real chance of being tortured and jailed when returned to Sri Lanka (R, [38]).
The Authority did accept that the applicant would undergo identity and criminal record checks upon arrival at Colombo airport, and found there was no credible evidence that the applicant had any outstanding criminal matters, or that he was trying to conceal his identity due to any criminal or terrorist background (R, [40]).
The Authority noted that the applicant had departed Sri Lanka without a valid passport and would be identified as having illegally departed, and that the Immigrants and Emigrants Act recognised this as an offence which attracted penalties of imprisonment of up to five years and a fine (R, [44]). However, the Authority found, by reference to country information, that when a person pleads guilty, they are usually fined (which can be paid in instalments) and are free to go (R, [45]). The Authority accepted that it was likely the applicant would be charged with an offence, and if he was to plead guilty, he would be fined and then released (R, [47]).
In conclusion, the Authority found that the applicant would not face a real chance of persecution due to his illegal departure now or in the reasonably foreseeable future, if he returned to Sri Lanka, and subsequently concluded that he did not meet the requirements of the definition of refugee in s 5H(1) of the Act, nor did he meet s 36(2)(a) of the Act. The Authority also found that the applicant did not meet the criteria for complimentary protection under s 36(2)(aa) of the Act (R, [53]-[58]).
JUDICIAL REVIEW
On 17 September 2024, a Registrar of this Court made procedural orders including that the applicant file and serve on or before 17 October 2024, any amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions. The applicant did not produce any material responsive to these orders.
On 21 November 2024, the Registrar made further orders that granted the Minister an extension of time to file and serve any written submissions and affidavit evidence by 29 November 2024. The Minister filed written submissions on 27 November 2024, which he relied upon and referred to during the final hearing.
The application came before me for final hearing on 26 February 2024. The applicant represented himself and was assisted by an interpreter in the Tamil and English languages. The Minister was represented by Mr Dour of counsel.
At the outset, I established that the applicant and the interpreter understood one another, that the applicant had a copy of his application and the court book, and that he had received ahead of the hearing a copy of the Minister’s written submissions filed on 27 November 2024.
Grounds of review
The application for review identifies the following six “grounds of application”:
1. The IAA applied the wrong legal test.
2. The IAA did not afford me procedural fairness.
3. The IAA erred by not correctly considering my claims for protection under s 5J (1) of the Migration Act 1958 (Cth)
4. The IAA Erred in law by not correctly considering claims under s36(2A) of the Migration Act 1958 (Cth).
5. The IA erred in law by not correctly considering claims for complimentary protection under s36(2) (aa) of the Migration Act (Cth).
6. The IAA did not consider all of my claim, correctly and accurately. I will provide all the relevant details.
The applicant’s submissions
At the hearing the applicant was asked to expand upon the grounds of review identified above, including by providing examples of how he said the Authority had made an error in his case. The applicant told the Court that he had been given short notice of the protection visa interview which compromised his ability to prepare. He did however acknowledge that he attended the interview. In other respects, the matters raised by the applicant all involved a repetition of the claims that he had made before the Authority and an exhortation to this Court to provide him with justice.
The Minister’s submissions
Ground one
The Minister submits that ground one cannot succeed, as it lacks particulars which fail to make it meaningful. Furthermore, the Authority applied the relevant criteria to the applicant’s protection claims. The Authority correctly applied the test in s 473DD of the Act, in determining whether it could have regard to new information received (R, [4]-[9]), and considered whether the applicant met ss 36(2)(a) and 36(2)(aa) of the Act, with reference to ss 5H and 5J and s 36(2A) of the Act.
Ground two
In respect of ground two, the Minister submits there is no obvious basis in this matter for any argument relating to procedural fairness, and that the Authority met its procedural fairness obligations as set out in Part 7AA of the Act. The applicant was given the opportunity to provide written submissions to the Authority, and given those submissions raised new claims for protection, the Authority held that it could not consider those claims in accordance with s 473DD of the Act.
Insofar as the applicant’s reference to the Department interview might have contained an implicit submission that he had insufficient time to make claims or submissions to the Department and/or the Authority, the Minister submitted that if this opportunity to make submissions had been compromised in anyway, it was cured subsequently by the opportunity given to the applicant to provide written submissions to the Authority.
During the course of the hearing, I made the observation that the letter sent to the applicant by the Department that requested his attendance at an interview was sent by post to the applicant’s residential address on 21 April 2017. The letter identified a date of interview of 27 April 2017. It also recorded the following:
Receiving this letter
As this letter was mailed to an Australian address from Australia, you are taken to have received it seven working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.
The Minister’s counsel acknowledged that on an application of this deeming provision, the applicant had not been served with the interview letter until after the date of the interview. He sought an opportunity to file brief written submissions directed at the consequences (if any) of this procedural error which opportunity was granted. The applicant was given the opportunity to file any responsive submissions although he did not take this up.
On 6 March 2025 the Minister filed written submissions in which he repeated the arguments set out at [38] as well as making the following additional points:
First, the Minister observed that in the letter sent by the ASRC on the applicant’s behalf to the Authority on 14 June 2017 (see [8] above), it was stated that the applicant had received the invitation to hearing letter on 26 April 2017. The Minister submitted that in these circumstances the letter provided the applicant with two business days’ notice before the interview. This last submission cannot be correct. The applicant received one days’ notice at best, depending of course on the time that he took possession of the letter.
Second, the Minister observed that s 56 of the Act empowers a delegate of the Minister to request an interview from an applicant. Section 58(3)(b) of the Act requires the interview to take place within a prescribed period. The Migration Regulations 1994 (Cth) (Regulations) in force at the relevant time set out the prescribed period in which an interview was to take place, this being a period of 14 days after the applicant was notified of the invitation (reg 2.15(3)(b)(ii)). The Minister accepts that the interview did not take place within the prescribed period following the despatch of the letter as required by the Act and the Regulations.
The Minister submitted that despite this procedural defect, no jurisdictional error arose in respect of the decision of the Authority. This was for the following reasons:
First, the conceded procedural error was one made by a delegate of the Minister in relation to a primary decision. The court has no jurisdiction in respect of an error in relation to a primary decision that has been referred for review under Part 7AA of the Act (the combined effect of ss 476(2)(a) and 476(4)(c), in force as at the date of the Authority’s decision).
Second, to the extent that the applicant alleges a denial of procedural fairness related to a compromised ability to give evidence and submissions before the Authority, no error (or no material error) was identifiable.
This was because in its letter to the Authority dated 14 June 2017, the ASRC noted that the applicant had received the invitation letter on 26 April 2017 for an interview to be conducted on 27 April 2017 and sought an extension of time in these circumstances of three weeks for the applicant to make submissions to the Authority and to obtain legal representation. The Authority wrote to the applicant on 15 June 2017 and granted the applicant an extension of almost four weeks, until 12 July 2017, to obtain legal representation and provide written submissions.
The Minister submitted that the applicant had been given ample opportunity to obtain legal representation and to put forward all his claims and materials before the Authority in support of his visa application and in fact took advantage of this opportunity by obtaining legal representation and providing the Authority submissions within the extended period granted by the Authority.
Grounds three to six
To the extent that grounds three to six comprehend an argument that the Authority failed to consider the applicant’s new protection claims, the Minister submits the conclusion was open for the Authority to find that it could not consider those new protection claims pursuant to s 473DD of the Act. The Minister submits that the Authority clearly identified and applied the correct legal criteria, and there is nothing to suggest that the Authority did not or failed to appropriately consider the applicant’s claims.
DUA16 related claim
As a model litigant, the Minister raised for consideration the question of whether the Authority might have fallen into error in the manner described by the High Court in Minister for Home Affairs v DUA16/Minister for Home Affairs v CHK16 (2020) 271 CLR 550 (DUA16).
This was because the Authority submissions (see [8] above) had been prepared by Ms Rajakesaram, the migration agent whose conduct in preparing submissions for clients that were based on a pro forma and therefore included information that did not relate to their specific claims, formed the basis for the argument made in respect of both the individuals identified as DUA16 and CHK16 that the Authority had fallen into error by unreasonably failing to exercise its power under s 473DC of the Act to invite the agent to provide the correct submissions containing any new information.
In DUA16, the High Court found that the Authority had not fallen into error in its approach to the respondent DUA16 but that it had done so in the case of CHK16.
In this application, the Minister invited the Court to find that the applicant’s circumstances were more closely analogous to those of DUA16 and that accordingly, I should be satisfied that the Authority did not fall into error by failing to invite his comment in relation to the Authority submissions.
This submission involved the following considerations:
First, the Authority submissions contained an opening paragraph under the heading “submissions on behalf of the applicant as per his instructions” that accurately reflected his earlier articulated claims. The Authority submissions correctly identified the applicant’s claim with respect to being subjected to a roundup by the SLA in 1996, being detained by police in October 2006 with his two brothers, that he attempted to flee to the UK but had been sent to Sri Lanka during that journey, his trip to India in June 2007, the incident in August 2011 in Navanthurai, that the applicant arrived in Australia on 13 October 2012, and that he has a sister called H.
Second, the more generic or country information material in the Authority submissions while not unique to the situation of the applicant, was nonetheless relevant to his case.
Third, although the Authority submissions contained information that did not obviously relate to the applicant; for example, references to the applicant, his sister, and his family having LTTE links; that the applicant had “insider information” about the police force and its “lack of human rights practices”; claims based on the applicant being suspected of a crime, and of having been arrested and detained and sexually abused; and claims about the applicant’s brother having successfully sought asylum in Canada, the great majority of the Authority submissions was relevant to the applicant’s claims and did include material based specifically on his claims. It was not an “extreme” case like CHK17, in which none of the information provided in the submission related to him.
Furthermore, the Authority did not find that there was any mistake in the further submissions and instead approached them on the basis that they contained new claims that amounted to new information and evaluated them by reference to s 473DD of the Act. The Authority in DUA16 took a similar approach.
The Minister submitted that it was unremarkable that the Authority had not recognised the new claims as involving mistake, error or some kind of fraud. This was because there were several aspects of the new claims which the Authority could reasonably have considered to have plausibly related to the applicant. By way of example, the applicant’s original claims included reference to a sister, H, having been arrested and later having been granted refugee status in the Netherlands. The submission by Ms Rajasekaram included a new claim that H (who was expressly referred to) was part of the LTTE.
RESOLUTION
Having carefully reviewed the decision of the Authority I am not persuaded that it discloses any error of the kind described generally by the applicant in his application for judicial review. The decision is comprehensive and deals with each of the claims raised by the applicant and the material evidence that he provided in support of his application for the visa.
There is no evidence that the Authority misunderstood or misapplied the criteria for the grant of a protection visa, either by reference to s 36(2)(a) or s 36(2)(aa) of the Act, or that it misapplied any legal test in the performance of its review function.
In particular, I am satisfied that the Authority correctly applied s 473DD of the Act to the “new information” contained in the further submissions. The paragraphs extracted above at [6]-[9] reveal that the Authority assessed the new information first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) before expressing the inevitable conclusion (when neither of these criteria was satisfied) that there were not exceptional circumstances to justify the consideration of the new information (cf AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [11]-[12]).
I am also satisfied that the Authority did not act unreasonably in its approach to the further submissions.
As the High Court reiterated in DUA16, a requirement of legal reasonableness in the exercise of a decision-maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high.[1]
[1] DUA16 at [26].
The High Court also acknowledged that there is no general obligation on the Authority to advise referred applicants of their opportunity to present new information and neither is there any general obligation upon the Authority to get new information.[2] These are characteristics of the (now defunct) Part 7AA review that inform the question of reasonableness.
[2] DUA16 at [27].
It is clear from the reasoning in DUA16 that the situation of the respondent CHK16 stood in stark contrast to that of DUA16. In relation to the former, the submissions provided by Ms Rajasekaram concerned a different person and contained personal information that obviously did not relate to CHK16. The High Court considered these features to be significant in circumstances where the opportunity to provide written submissions in accordance with the practice direction in place at the time, was the only opportunity that CHK16 had to provide his own new information.
The High Court, drawing on principles articulated in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, found that a request from the Authority for the correct submissions would have been a very simple step for the Authority to take. Instead, and this sets the treatment of CHK16 apart from that of DUA16, the Authority filleted the generic and non-generic information from the submissions and took account of the former and disregarded the latter. The High Court found this approach to be unreasonable.[3]
[3] DUA16 at [28].
I accept the submission of the Minister that the content of the Authority submissions and the approach taken by the Authority in this case to their evaluation means that the situation of DUA16 provides a closer analogue. I further accept that these characteristics assessed within the framework of the Part 7AA review mean that the Authority did not act unreasonably in this case by failing to exercise the power in s 473DC of the Act.
As part of this analysis I have considered whether the defect in the procedure adopted by the delegate around the notification of the interview to the applicant might have altered the reasonableness of the Authority’s approach. However, I am ultimately satisfied that there was no material prejudice to the applicant by the short notice because he was given an opportunity to provide further submissions to the Authority. Furthermore, the court book contains a record of the questions asked of and answers given by the applicant during the protection visa interview (CB 132-141). The record discloses that the applicant gave responsive and fulsome answers to each of the questions asked of him.
In circumstances where the applicant’s application for review does not disclose jurisdictional error and where on an independent analysis, I am unable to discern jurisdictional error, the application filed by the applicant on 12 February 2018 must be dismissed.
Where the Minister has enjoyed success in resisting the application, he is entitled to his costs, which I fix in an amount commensurate with the scale set out in Part 2 of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 19 March 2025
0
3
2