AQK17 v Minister for Immigration

[2018] FCCA 3584

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3584

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s claims accepted in part but his fear found not to be well-founded – whether the Authority failed to make a forward looking assessment of the risk of harm and whether the Authority unreasonably failed to exercise its power under s.473DC of the Migration Act 1958 (Cth) considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 425, 473DC

Cases cited:

CSO15 v Minister for Immigration [2018] FCAFC 14

DGZ16 v Minister for Immigration [2018] FCAFC 12

Minister for Immigration v CRY16 [2017] FCAFC 210

Minister for Immigration v DZU16 (2018) 253 FCR 526

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16

SZATV v Minister for Immigration [2007] HCA 40; (2007) 233 CLR 18

Applicant: AQK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 456 of 2017

Judgment of: Judge Driver

Hearing date: 19 November 2018

Delivered at: Sydney

Delivered on: 21 December 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the Respondents: Mr M Cleary

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application as amended on 27 March 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 456 of 2017

AQK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 19 January 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a male citizen of Sri Lanka who claimed to be a Tamil and a Roman Catholic from the Northern Province.[1] He arrived in Australia at Christmas Island on 3 November 2012 as an unauthorised maritime arrival and participated in an Irregular Maritime Arrival Entry Interview on 12 January 2013.[2]

   [1] Court Book (CB) 63 at [4]

   [2] CB 1-18

4. Between November 2012 and May 2013 the applicant was in detention centres, following which he was granted a temporary visa and released into the community on the Australian mainland.[3]

   [3] CB 51

5. The applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) on 17 February 2016.[4] In support, he provided a statutory declaration dated 2 February 2016[5] and a copy of his National ID card.[6] He also appointed a migration agent to assist and advise him.[7]

   [4] CB 19-68

   [5] CB 63-66

   [6] CB 67-68

   [7] CB 19-23

6. The applicant outlined his written claims in his statutory declaration attached to his SHEV application and attended a SHEV interview before the delegate on 19 July 2016. His representative also provided a submission on 29 July 2016 (the post-interview submission).[8]

   [8] CB 116-140.  A further submission was also provided to the Authority on 4 October 2016 (CB 170-174)

7. In his statutory declaration, the applicant claimed that from 1999 until 2006 he worked for the Pesalai Fishermen Co-op Society (the Co-op Society) supplying fuel and fishing needs to fishermen.[9]  He stated that between 2002 and 2005 during the civil war ceasefire, the Liberation Tigers of Tamil Eelam (LTTE) bought and took fuel from the Co-op Society. He also claimed that fishermen sold fuel to the LTTE to make money and the Criminal Investigation Department (CID) came to the office of the Co-op Society and told them to stop giving fuel and other assistance to LTTE members.[10]  The applicant claimed the Sri Lankan Army (SLA) suspected him of financially supporting the LTTE and supplying them with fuel.[11]

   [9] CB 63 at [12]

   [10] CB 64 at [14]

   [11] CB 64 at [16]

8. The applicant also claimed that in 2006, an army officer was killed outside his shop and he was arrested along with 20 to 30 people and held for a day.[12]  The next day there was a fight at sea between the Sri Lankan Navy (SNA) and the LTTE which killed many Navy officers and five Co-op Society members.[13]  Men in uniform subsequently burnt 40 to 50 boats at the Co-op Society[14] and a local Catholic church was bombed and members of the congregation had shots fired at them.[15]

   [12] CB 64 at [19]

   [13] CB 64 at [20]

   [14] CB 64 at [22]

   [15] CB 64 at [24]

9. The applicant made additional claims. In 2007, his cousin disappeared and was later found dead.[16]  In 2008, four of his friends were abducted and never found and his friend in the LTTE also passed away.[17]  The applicant also claimed the military came looking for him as they suspected him of “some kind” of involvement.[18]

   [16] CB 64 at [25]

   [17] CB 64 at [27] and CB 184 at [21]

   [18] CB 64 at [28]

10. Further, in 2010, the applicant’s friend, who shared the same name as the applicant, was mistakenly arrested instead of the applicant and detained for one year.[19]  In 2012, the applicant’s business partner was arrested, physically and sexually abused, tortured and following his release was required to report monthly to the authorities and report on the applicant’s whereabouts.[20]  The applicant claimed to fear harm from the SLA as they believed he had connections with the LTTE.[21]

    [19] CB 65 at [29]

    [20] CB 65 at [32]

    [21] CB 65 at [35]-[37]

11. At his SHEV interview, the applicant claimed that in 2006, he fled to India with his family where he remained until 2010.[22]  He also claimed that he had campaigned on behalf of the Tamil National Alliance (TNA) during the 2010 and 2012 elections, which included doorknocking.[23]

    [22] CB 149.7

    [23] CB 149.8

12. In his submission to the Authority, the applicant further claimed that in 2003, he participated in a demonstration organised by the Co-op Society on behalf of the LTTE that was filmed.[24]

    [24] CB 170-174

The delegate

1. As noted above, the applicant attended an interview before the delegate on 19 July 2016[25] and provided copies of various identity documents[26] and other supporting documents.[27]

   [25] CB 98-102, 149

   [26] CB 103-104

   [27] CB 105-111

2. In a decision dated 22 September 2016, the delegate refused the applicant a SHEV[28] essentially on the basis of adverse credibility findings and an assessment of relevant country information. The delegate identified several factors that undermined the applicant’s claims to fear harm from the Sri Lankan authorities,[29] and was not satisfied that the applicant would face a real chance of serious harm on the basis of his Tamil race;[30] as a Tamil from the North who lived in a former LTTE controlled area;[31] his political opinion;[32] or as a failed asylum seeker.[33] The delegate was not satisfied the applicant met the refugee or complementary protection criteria for the grant of a SHEV.[34]

   [28] CB 145-159

   [29] CB 151.6

   [30] CB 152-155

   [31] CB 155

   [32] CB 155-156

   [33] CB 156-157

   [34] CB 158‑159

The Authority

1. On 28 September 2016, the matter was referred to the Authority.[35]  On 4 October 2016, the applicant provided a submission to the Authority that contained hyperlinks to news articles and videos and screenshots that purportedly showed the applicant at a pro-Tamil demonstration.[36]

   [35] CB 161-169

   [36] CB 170-174

2. On 19 January 2017, the Authority affirmed the delegate’s decision.[37]

   [37] CB 175-194

3. The Authority considered the submission made to it and found it partially referred to uncited information about a pro-Tamil demonstration held on 25 September 2016, a related article from a non-English website published on 28 September 2016 and an uncited article that the applicant had read on a Tamil news website about the kidnapping of a former LTTE member and his wife by men in a white van in August 2016.[38]  It found this was new information as it was not before the delegate but also found it already had recent information before it about the situation for Tamils in 2016; that LTTE members continued to be targeted by the authorities; and that Tamils still sought to have considerable concerns addressed by the government since the end of the civil war. Further, as the applicant had not identified the sources for two of the articles or translations of them, the Authority was unable to confirm the subject matter of the articles and was not satisfied there were exceptional circumstances for considering this information.[39]

   [38] CB 179 at [3]-[5]

   [39] CB 179 at [4]

4. The Authority also found the applicant had claimed he had come into possession of video footage on YouTube that visibly showed him participating in a pro-Tamil demonstration held on 15 October 2003. It found that the applicant had (in part) already claimed at the SHEV interview that he participated in an event organised by the LTTE in 2003 that was filmed and in the media but he had not claimed previously that the Sri Lankan government started hunting people down who were involved in the demonstration or that he was the leader of the “Fisherman Committee” at the time and that he did not provide the video footage to the delegate. The Authority found these aspects of his claims and evidence were new information but noted the video footage was uploaded on 17 September 2011 and the applicant had not indicated when he came into possession of the video, why it could not have been provided earlier and why he did not elaborate further on his claim at the SHEV interview or in his submissions to the delegate. Accordingly, the Authority was not satisfied there were exceptional circumstances for considering the information.[40]

   [40] CB 179 at [5]

5. The Authority summarised the applicant’s claims[41] and accepted that he was a Sri Lankan citizen; was born in Pesalai, Mannar District in the Northern Province; and was a Tamil and a Roman Catholic.[42]  It also accepted that he spent periods of time in India as a refugee and returned voluntarily to Sri Lanka in 2010.[43]

   [41] CB 180 at [6]

   [42] CB 181 at [9]

   [43] CB 181 at [10]

6. The Authority also accepted that the applicant worked as a sales manager for the Co-op Society from 1999-2006 and supplied fuel to local fishermen; the LTTE bought and took fuel from the Co-op Society during the ceasefire between 2002 and 2005; fishermen sold fuel on the black market to the LTTE; and the CID came to the Co-op Society and told them to stop giving fuel and assistance to the LTTE. However, the Authority did not accept the applicant’s claim in his SHEV application that the CID looked for him a number of times but he escaped because, although he had later claimed he was arrested and detained for one day because an army officer was killed outside his shop, he did not claim that it was in relation to (or that he was questioned about) his role at the Co-op Society. As such, the Authority also did not accept that during this period the CID suspected the applicant of providing financial assistance or fuel to the LTTE or were looking for him for any of the reasons he claimed.[44]

   [44] CB 181-182 at [11]

7. The Authority accepted that the applicant was arrested with others in 2006 after an army officer was killed outside his shop but did not accept this was related to the fact that he previously sold fuel to the LTTE. Despite claiming at the entry interview that he escaped after being arrested, the Authority did not accept this claim given his evidence that he returned to his workplace the next day and did not repeat the claim in his SHEV application or at the interview. The Authority was satisfied that the applicant was released after one day of detention and was therefore not satisfied he was of any “further” interest to the authorities or that he faced a real chance of harm because of this incident.[45]

   [45] CB 182 at [12]

8. The Authority accepted as plausible the applicant’s evidence that the day after his arrest there was a sea battle between the SNA and the LTTE and the SNA subsequently took an adverse interest in the Co-op Society and its employees, including the applicant, as they were known to have provided fuel to the LTTE during the ceasefire. It also accepted that the applicant fled to India in July 2006 as he feared being implicated in these events and that he returned to Sri Lanka with his family in May 2010.[46] In addition, the Authority accepted the applicant’s evidence that during 2010 to 2012 he participated in campaigns and doorknocking for the TNA.[47]

   [46] CB 182 at [13]-[14]

   [47] CB 182 at [15]

9. However, the Authority found this claim and his claim to have been involved in coaching a local football team from 2010 to 2011 were “implausible and inconsistent” with his claim to have been in hiding in a church compound between 2010 and 2012. The Authority did not accept the applicant’s explanation for the inconsistency and rejected his claim that he was in hiding between 2010 and 2012.  It did accept the applicant might have been questioned by the authorities on his return from India as this was consistent with the independent country information but noted he had not claimed he had been further detained and was therefore not satisfied that he was of any further adverse interest to the authorities due to his former role at the Co-op Society or for any perceived link to the LTTE. It also did not accept his claim that his friend who had the same name was mistakenly arrested in his place in 2010.[48]

   [48] CB 182-183 at [15]

10. The Authority considered a letter provided in support of the applicant’s claims but was not satisfied it outweighed the concerns it had with his evidence.[49] The Authority had regard to the applicant’s claim made at the SHEV interview that he was filmed participating in a demonstration organised by the Co-op Society in 2003, but found he had not claimed to have suffered any harm or to have been of any adverse interest to the authorities as a result of this event and did not accept he faced a real chance of harm for this reason.[50]

    [49] CB 183 at [16]

    [50] CB 183 at [17]

11. The Authority was not satisfied the applicant faced a real chance of harm from any group for supporting and campaigning for the TNA in 2010 and 2012 because he had not claimed to have experienced any harm for this reason and the independent country information indicated that the TNA was well-represented in the current Parliament; no official laws and policies discriminated on the basis of political opinion; and (despite one report that lacked detailed information) TNA supporters and campaigners were not subject to systematic targeting.[51]

    [51] CB 183-184 at [18]

12. The Authority was also not satisfied the applicant faced a real chance of harm from any group because his former business partner was arrested in 2012. As it had not accepted the applicant was of adverse interest to the authorities due to his former role at the Co-op Society or for any other reason, the Authority did not accept his business partner was questioned about him or that his arrest had anything to do with the applicant.[52]

    [52] CB 184 at [19]

13. Whilst accepting his cousin was killed in 2007 and four friends disappeared after being abducted in 2008, the Authority was not satisfied on the available information that these incidents were related in any way to the applicant and did not accept he faced a real chance of harm for these reasons.[53] Whilst it also accepted his claim that one of his friends was in the LTTE but died in 2008, the Authority found the applicant had not claimed to have experienced any harm due to this friendship and also did not accept he faced a real chance of harm for this reason.[54]

    [53] CB 184 at [20]

    [54] CB 184 at [21]

14. Not having accepted that the applicant was of any further interest to the authorities for any reason after he was questioned on his return from India in 2010, the Authority was not satisfied he faced a real chance of harm as an imputed LTTE member or supporter or because he lived or was from a former LTTE-controlled area.[55]

    [55] CB 184 at [22]

15. The Authority found the independent country information indicated there was no longer a presumption of eligibility for protection for Sri Lankan Tamils from the north and the security situation in the north had greatly improved and there was a decrease in monitoring. The Authority was not satisfied the applicant was of any interest to the authorities when he returned in 2010 or that he had a profile that would cause him to be of interest to the authorities or be subject to harassment by security forces. It was not satisfied he faced a real chance of harm as a young Tamil male from the north.[56] Whilst accepting Tamils were likely to complain of ongoing systematic discrimination, the Authority relied on a 2015 DFAT report and was not satisfied the applicant faced a real chance of being subjected to discrimination as a Tamil sufficient to amount to serious harm in relation to employment, language, basic services or his dealings with Sinhalese people, the police and other authorities.[57]

    [56] CB 185 at [23]

    [57] CB 185 at [24]

16. The Authority did not accept the applicant faced a real chance of harm as a Roman Catholic Christian as he had not raised any claims to fear harm for reasons of his religion, the 2015 DFAT report indicated there was little discrimination on the basis of religion and the applicant had not claimed he would engage in activities that might expose him to an increased risk of harassment or violence.[58]

    [58] CB 186 at [25]

17. As the Authority did not accept the applicant’s claims that he experienced problems when he departed Sri Lanka through Colombo airport and had to bribe an agent, it found he had no issues departing and had departed legally on a genuine passport.[59] Whilst it accepted the applicant would be identified as a failed asylum seeker from Australia on his return,[60] it was not satisfied he would be arrested on his return at the airport or in his home area for any reason because it had found he was of no adverse interest for any reason to the authorities after he returned in 2010 and when he left in 2012.[61]  As it found the applicant departed legally on a valid passport, the Authority found he would not be charged for illegal departure on his return.[62]

    [59] CB 186 at [26]

    [60] CB 186 at [27]

    [61] CB 186 at [28]

    [62] CB 186-187 at [29]

18. The Authority accepted the applicant no longer had his passport and would be subject to investigative processes and questioning at the airport on his return.[63]  However, it relied on the 2015 DFAT report to find all returnees were treated according to standard procedures regardless of ethnicity and religion and was not satisfied the applicant would be viewed as an LTTE member/sympathiser/supporter for having sought asylum abroad and/or as a result of his Tamil ethnicity.[64]

    [63] CB 187 at [30]

    [64] CB 187 at [31]

19. The Authority accepted the applicant would be subject to questioning on his return but relied on DFAT’s assessment that returnees faced a low risk of torture or mistreatment. Given its previous findings about the lack of adverse interest in the applicant, the Authority was not satisfied he faced a real chance of harm whilst being questioned by the authorities on his return and did not accept that such questioning constituted serious harm.[65] Even when the applicant’s various claims were considered cumulatively, the Authority was not satisfied he faced a real chance of serious harm.[66] The Authority concluded the applicant did not meet the definition of refugee in s.5H(1) or the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[67]

    [65] CB 187 at [32]

    [66] CB 187 at [33]

    [67] CB 188 at [34]

20. The Authority referred to its previous findings that the applicant did not face a real chance of harm because: of his Tamil ethnicity; he was a young Tamil male from the north in a former LTTE-controlled area; he worked for the Co-op Society that provided fuel to the LTTE and was implicated in a sea battle in 2006; he was arrested after an army officer was killed outside his shop in 2006; he participated in a demonstration in 2003; his business partner was arrested in 2012; his cousin was killed in 2007 and friends disappeared; his friend was in the LTTE; he supported and campaigned for the TNA; and he was a Roman Catholic. The Authority relied on these findings and, because “real chance” was the same test as “real risk”, was also not satisfied the applicant faced a real risk of significant harm for these reasons.[68]

    [68] CB 188 at [37]

1. Having considered the applicant’s circumstances, the Authority did not accept there was a real risk he would be subjected to discrimination as a Tamil that amounted to the categories of significant harm.[69]  It accepted there was a real risk the applicant would be questioned at the airport to determine his identity but was not satisfied such questioning was “intended to cause physical and/or mental pain or suffering or extreme humiliation which is unreasonable”.[70]

   [69] CB 188 at [38]

   [70] CB 188 at [39]

2. The Authority did not accept the applicant faced a real risk of significant harm as a failed asylum seeker from Australia on the basis of the independent country information cited earlier and the applicant’s particular circumstances. Having found the applicant departed legally on a genuine passport, it did not accept he would be charged with illegal departure on return.[71]  Even when the applicant’s various claims were considered cumulatively, the Authority was not satisfied he faced a real risk of significant harm.[72] The Authority was not satisfied the applicant met the criterion in s.36(2)(aa) of the Migration Act.[73]

   [71] CB 188-189 at [40]

   [72] CB 189 at [41]

   [73] CB 189 at [42]

The present proceedings

1. These proceedings began with a show cause application lodged on 16 February 2017.  The applicant now relies upon an amended application filed on 27 March 2017.  There are two grounds in that application:

   1.Whether an applicant has a well-founded fear of persecution if returned to their receiving country requires the decision-maker to consider the situation for the applicant into the reasonably foreseeable future. The applicant claimed, expressly or by implication, that the security and human rights situation for Tamils in Sri Lanka was deteriorating. This claim required the decision-maker to consider the situation for the applicant into the reasonably foreseeable future. However, the Immigration Assessment Authority ("the Authority") did not consider the situation for the applicant into the reasonably foreseeable future. This was a jurisdictional error by the Authority.

   2. The Authority made adverse findings against the applicant about matters which were never put to the applicant prior to the decision of the Authority such that the applicant never had an opportunity to comment on them. An example is the finding in the last two sentences of paragraph 11 of the Authority’s decision. Where the Authority is considering affirming the delegate's decision on grounds different than the delegate. the Authority must give the applicant an opportunity to comment on the new grounds via its power under s 473DC of the Migration Act 1958 (Cth) to get new information. To fail to do so results in jurisdictional error in the Authority’s decision- either because the Authority unreasonably declined to exercise its power under s 473DC to out the new grounds to the applicant and invite him to provide information in reply, or because the Authority denied the applicant procedural fairness by not so exercising its power under s 473DC. The Authority’s decision was infected by jurisdictional error for the above reasons.

2. The only evidence I have before me is the court book filed on 17 July 2017.  An affidavit made by the applicant on 27 March 2017 was not read.

3. Both the applicant and the Minister filed pre-hearing submissions and made oral submissions through their representatives at the trial of the matter on 19 November 2018.

Consideration

Ground 1 – did the Authority fail to make a forward looking assessment of the risk facing the applicant?

1. I accept that whether an applicant has a well-founded fear of persecution (or significant harm) on return to their receiving country requires a decision maker to consider the situation into the reasonably foreseeable future.[74]  It is, however, unnecessary for a decision maker to specifically refer to the reasonably foreseeable future in making that forward looking assessment.  The real question is, has there been a forward looking assessment?

   [74] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

2. I prefer the submissions of the Minister on this issue.

3. Recently in CSO15 v Minister for Immigration,[75] the Full Federal Court held that:

   …Both the refugee and complementary protection criteria, insofar as they require a focus on risk of harm (whether for specific reasons or not), require the decision-maker to engage in a predictive and therefore somewhat speculative task about what is likely to happen to a person in the reasonably foreseeable future on return to her or his country of nationality: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 277-279 (Brennan CJ, Toohey, McHugh and Gummow JJ); NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13](Gray, Tamberlin and Lander JJ); Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [27] (Heerey, Moore, Goldberg JJ); SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292; (2012) 134 ALD 495 at [7] (Flick J). These authorities were considered in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [59]-[60].

   [75] [2018] FCAFC 14 at [23]

4. In other words, when assessing whether the applicant has a well-founded fear of persecution, the Authority must clearly engage in a prospective assessment of the applicant’s risk of harm should he return to his country of nationality.

5. The Authority made itself very clear, by its language and expression, in a number of places in its decision, that it engaged in a prospective assessment of the applicant’s risk of harm should he return to Sri Lanka.[76]  The decision read as a whole shows that the Authority evinced an intention to engage in a prospective assessment of the risk of harm should the applicant return to Sri Lanka.

   [76] see [7], [8], [18], [19], [20], [21], [22], [25], [27], [28], [32] and [37] of the Authority’s decision

6. In particular, the Authority was not satisfied the applicant “faces” or “will face” a real chance of harm for the reasons he advanced.[77]  This and other language shows the Authority engaged in a prospective assessment of the applicant’s risk of harm and an orthodox application of the real chance test.

   [77] CB 186-187 at [25], [32], [33]

7. On an ordinary reading of the Authority’s decision, it has complied with what the High Court required of decision makers when determining whether an applicant had a well-founded fear of persecution under the Migration Act.[78]

Ground 2 – did the Authority unreasonably fail to exercise its power under s.473DC of the Migration Act?

[78] see Wu Shan Liang at 278-279

1. Section 473DC of the Migration Act provides:

   (1)  Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information) that:

   (a)  were not before the Minister when the Minister made the decision under section 65; and

   (b)  the Authority considers may be relevant.

   (2)  The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)  in writing; or

(b)  at an interview, whether conducted in person, by telephone or in any other way.

1. From about 1999 to 2006 the applicant worked as a sales manager at the Co-op Society.  The applicant claimed that between 2002 and 2005 the LTTE purchased fuel from the Co-op Society.[79]  The applicant continued:[80]

   I was in charge of the fuel supply in Pesalai … The Army suspected that I was helping the LTTE group by supplying fuel to them. They also suspected that I was financially supporting the LTTE.

   [79] CB 64 at [14]

   [80] CB 64 at [15]-[16]

2. The delegate found at CB 149.5:

   The applicant has outlined the issues he experienced from 1999 - 2006 in his statement of claims points 11-29. These were discussed in detail during the interview … I accept prior to his departure to India the applicant and his fishing cooperative society were accused by the CID that they were illegally supplying fuel to the LTTE …

   (emphasis added)

3. In contrast, the Authority found at [11]:[81]

   I accept that, from approximately 1999 until 2006, the applicant worked as a sales manager at the Pesalai Fishermen Co-op Society and that one of his main roles was to supply fuel to local fishermen.  I accept that, during the ceasefire between 2002 and 2005, the LTTE would buy and take fuel from the Co-op Society. … I accept that the CID came to the office of the Co-op Society and told them to stop giving fuel and other assistance to the LTTE.  The applicant claims that the army suspected that he was helping the LTTE by supplying fuel to them as he was in charge of fuel provision … I do not accept that, during this period, the CID suspected the applicant … was helping the LTTE by providing fuel to them …

   (emphasis added)

   [81] CB 181

4. It follows that the Authority took a somewhat different view of the circumstances leading to the applicant’s departure for India than did the delegate.  On either of those approaches, however, there were good reasons for the applicant to choose to leave Sri Lanka for India at that time.

5. In my opinion, there was no unreasonable failure on the part of the Authority to fail to consider the exercise of its power under s.473DC.

6. To the extent that there were any differences between the Authority’s findings and the delegate’s findings, Part 7AA of the Migration Act contemplates that the Authority will evaluate for itself the material considered by the delegate and it does not require the Authority to notify the applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. Further, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it.[82]

   [82] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 at [17]

7. In DGZ16 v Minister for Immigration,[83] the Full Federal Court held that:

   In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate.  We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

   [83] [2018] FCAFC 12 at [72]

8. Accordingly, the Authority was not, in the present case, required to inform the applicant of any specific reservations it had or may have had about his case and to provide him with an opportunity to respond.[84] This is because there is no requirement in Part 7AA, equivalent to s.425 of the Migration Act, which requires the Tribunal (under Part 7 of the Migration Act) to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.[85]

   [84] DGZ16 op cit at [72]

   [85] DGZ16 op cit at [75]

9. The Authority did not accept that during the period 1999 to 2006 the CID suspected the applicant of financially assisting the LTTE or helping them by providing fuel or because other fishermen had sold fuel to them on the black market or were actively looking for the applicant for these reasons.[86]  While the delegate did accept that prior to his departure to India in 2006, the applicant and his fishing cooperative society were accused by the CID that they were illegally supplying fuel to the LTTE,[87] it found that it was implausible that the CID remained interested in the applicant when he returned in 2010.[88]

   [86] CB 181-182 at [11]

   [87] CB 149.6

   [88] CB 150-151

10. Whilst there is some difference in the findings made by the delegate and the Authority, both decision-makers rejected the applicant’s claims to have had continuing issues with the CID and the Sri Lankan authorities. Both decision makers were also not satisfied the applicant faced a real chance of any harm for the reasons he advanced on the basis of adverse credibility findings and assessing country information. Accordingly, there were no “new issues” arising on the review and the Authority’s reasoning did not materially “depart” from that of the delegate.  As the Full Federal Court held in DGZ16, “the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond”.[89] This statement of principle about how Part 7AA operates is applicable to the argument being advanced by the applicant in this ground of review.

    [89] at [72]

11. This case can be distinguished from Minister for Immigration v CRY16[90] and Minister for Immigration v DZU16.[91]  In both these cases, the Authority made its decision based on the issue of “relocation”, in circumstances where the delegate’s decision was not based on that issue.  As the Full Federal Court in those decisions pointed out, the issue of whether in a particular case “relocation” is reasonable is very specific to the particular circumstances of the applicant, and only the applicant himself or herself can properly address such an issue.[92] The Full Federal Court held that by failing to consider exercising the discretionary power under s.473DC to get information from the applicant on the issue of “relocation”, the decisions of the Authority were legally unreasonable and infected by jurisdictional error.

    [90] [2017] FCAFC 210

    [91] (2018) 253 FCR 526

    [92] see SZATV v Minister for Immigration [2007] HCA 40; (2007) 233 CLR 18

12. No issue of “relocation” arises in the present case. I do not rule out the possibility of a new issue other than relocation enlivening the Authority’s discretion under s.473DC in circumstances where a failure to consider exercising the discretion would be unreasonable, but this is not such a case.

Conclusion

1. I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  21 December 2018