Asm21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 280
•29 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASM21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 280
File number(s): PEG 54 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 29 November 2021 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – Class XE Subclass 790 Safe Haven Enterprise visa – citizen of Sri Lanka of Tamil ethnicity – unauthorised maritime arrival – whether applicant would face imprisonment on return as a paying passenger of a people-smuggling venture – where no grounds of application – whether claims considered – where new information used – whether procedural fairness afforded – whether jurisdictional error. Legislation: Migration Act 1958 (Cth), Pt 7AA, Div 3, ss 5H, 36, 473DC, 473DD, 474, 476 Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
DCU18 v Minister for Home Affairs [2019] FCCA 1458
DCU18 v Minister for Home Affairs [2020] FCA 1817
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of last submission/s: 10 November 2021 Date of hearing: 10 November 2021 Place: Perth The Applicant: Appeared in person with the assistance of a Tamil interpreter Counsel for the First Respondent: Mr A. Gerrard Solicitor for the First Respondent: Australian Government Solicitor For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 54 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASM21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
29 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The originating application filed 18 March 2021 be dismissed.
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 LUCEV
INTRODUCTION
On 18 March 2021 the applicant, ASM21, lodged in the Perth Registry of this Court an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks judicial review of a 26 February 2021 decision of the Immigration Assessment Authority (“2021 Authority Decision” and “Authority” respectively) that affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant ASM21 a Class XE Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
The Judicial Review Application does not contain any grounds of review.
The following materials are before the Court:
(a)a Court Book (“CB”) of 517 pages (“Exhibit 1”);
(b)the affidavit of ASM21 affirmed on 10 March 2021 annexing the Authority Decision which was taken as read without objection; and
(c)the Minister’s written submissions filed 27 October 2021 (“Minister’s Written Submissions”).
JUDICIAL REVIEW APPLICATION
Background
The relevant background to the Judicial Review Application is as follows:
(a)ASM21 is a citizen of Sri Lanka and arrived in Australia as an unauthorised maritime arrival on 14 October 2012: CB 178;
(b)on 24 November 2016 ASM21 lodged an application for the SHE Visa: CB 41-96.
(c)ASM21 claimed to be owed protection by Australia by reason of his Tamil ethnicity, his imputed pro-LTTE beliefs on account of his father being a former member of the LTTE, his illegal departure from Sri Lanka, and as a failed asylum seeker: CB 136-140;
(d)on 31 January 2018 the Delegate refused to grant ASM21 the SHE Visa: CB 173-197;
(e)the Delegate’s Decision was referred to the Authority on 5 February 2018: CB 198;
(f)on 11 May 2018 the Authority notified ASM21 that the Delegate’s Decision had been affirmed (“2018 Authority Decision”): CB 212;
(g)ASM21 sought judicial review of the 2018 Authority Decision in the then Federal Circuit Court of Australia (“FCCA”), and on 29 May 2019 the FCCA made orders dismissing that judicial review application: DCU18 v Minister for Home Affairs [2019] FCCA 1458 (“DCU18 – FCCA”). DCU18 – FCCA was appealed to the Federal Court of Australia (“FCA”), and on 21 December 2020 the FCA allowed the appeal and remitted the matter to the Authority for determination according to law: CB 231-232; DCU18 v Minister for Home Affairs [2020] FCA 1817 (“DCU18 - Appeal”);
(h)on 28 January 2021 the Authority invited ASM21 to attend an interview on 3 February 2021 to provide further information: CB 249 (“First Invitation Letter”). The First Invitation Letter informed ASM21 that:
(i)the Authority had obtained new country information, which was annexed to the First Invitation Letter, and invited ASM21 to comment on this information at the interview: CB 249-250; and
(ii)based on the new country information, and subject to his comments, advised ASM21 that the Authority may conclude that there is not a real chance of serious harm or a real risk of significant harm upon return to Sri Lanka: CB 249-250;
(i)there is no record of the interview on 3 February 2021 taking place;
(j)on 9 February 2021 the Authority invited ASM21 to attend an interview (“Second Invitation Letter”) on 17 February 2021 (“February 2021 Interview”), and provided therewith additional country information, and made comments in the same terms as are outlined at (h)(ii) above: CB 485-487;
(k)on 17 February 2021 a lawyer who had represented ASM21 in the FCA proceedings emailed the Authority (“17 February 2021 Email”) advising that while the lawyer’s firm was not currently listed as ASM21’s representatives before the Authority, they intended to attend the February 2021 Interview with ASM21 with a view to considering putting on further submissions after the February 2021 Interview, if required: CB 488-489;
(l)the Authority responded to the 17 February 2021 Email on the same day and noted that:
(i)“the Authority generally allows appointed representatives to attend interviews. If you intend to represent [ASM21], you will be required to provide a completed Form F2”; and
(ii)“the purpose of the interview is to obtain information about specific matters. It is not an invitation to resubmit claims or make submissions”: CB 488;
(m)ASM21’s lawyer responded to the Authority noting that “if attendance is limited to representatives then I confirm we will not attend the interview”: CB 488;
(n)it can be inferred from the 2021 Authority Decision that ASM21 attended the February 2021 Interview and made submissions and provided new information: CB 495 at [6]; and
(o)on 26 February 2021 the 2021 Authority Decision affirmed the Delegate’s Decision: CB 491-517.
2021 Authority Decision
In the 2021 Authority Decision, the Authority:
(a)outlined ASM21’s claims and the relevant procedural history concerning those claims: CB 495 at [1]-[3];
(b)noted it had had regard to new information, being country information and information on the treatment of people in ASM21’s situation in Sri Lanka, and that there were exceptional circumstances for doing so: CB 495 at [5];
(c)noted that it had regard to new information from ASM21 arising from the February 2021 Interview, being information concerning ASM21’s father’s LTTE activities and related events in Sri Lanka: CB 495 at [6]-[7];
(d)set out new information provided by ASM21 at the February 2021 Interview about an alleged false accusation made against ASM21 to the Department. After considering information relevant to s 473DD(b)(ii) of the Migration Act, the Authority determined that there were no exceptional circumstances to justify considering this new evidence: CB 496 at [9]-[12];
(e)set out a summary of ASM21’s claims for protection: CB 497 at [14];
(f)had regard to ASM21’s written claims and evidence in a written statement dated 24 November 2016, his oral evidence at an interview with a delegate on 20 October 2017, written submissions dated 3 November 2017, and interviews with the Department on 26 November and 8 December 2012. This evidence was in addition to the evidence ASM21 gave to the Authority at the February 2021 Interview: CB 496 at [6] and 499 at [19];
(g)found the evidence of ASM21 concerning the events in Sri Lanka in 2011 and 2012 to be problematic, and set out several inconsistencies in ASM21’s evidence: CB 499-502 at [20]-[31];
(h)set out the evidence that it accepted from ASM21 which included evidence that:
(i)ASM21’s family relocated between 2000 and 2002 due to shelling: CB 502 at [32];
(ii)ASM21 faced harassment and threats from the Sri Lankan Army (“SLA”) when travelling to and from school in 2011: CB 503 at [33];
(iii)ASM21’s sister was harassed by the SLA and asked about ASM21’s father’s whereabouts: CB 503 at [33]; and
(iv)ASM21 left school and started working in a mill in 2011 due to the harassment he faced and to help his father who was sick: CB 503 at [34];
(i)was not satisfied:
(i)on the basis of inconsistent evidence from ASM21, that ASM21’s father was an LTTE member in any capacity: CB 504 at [36]; and
(ii)that ASM21 was a person of adverse interest to the Sri Lankan authorities when he travelled to Colombo in 2012: CB 504 at [37];
(j)set out the evidence it accepted regarding the treatment of Tamil people in Sri Lanka and concluded that the evidence did not support that being Tamil in Sri Lanka gave rise to a real chance of persecution, or that ASM21 would face any real chance of monitoring or adverse attention from the state on the basis of being Tamil: CB 508 at [50], and was also not satisfied that there is a real chance of ASM21 being harmed by the Sri Lankan authorities by virtue of him being a Tamil asylum seeker: CB 508 at [53];
(k)set out country information relating to the consequences of ASM21 returning to Sri Lanka after having departed illegally, and determined that the penalties and social consequences that ASM21 may face do not constitute persecution for the purposes of the Migration Act: CB 508-511 at [54]-[66];
(l)concluded that ASM21 did not meet the requirements of the definition of a refugee in s 5H(1) of the Migration Act, and did not meet s 36(2)(a) of the Migration Act: CB 511 at [67]; and
(m)concluded there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk that ASM21 will suffer significant harm; and therefore ASM21 did not meet s 36(2)(aa) of the Migration Act: CB 511-512 at [68]-[75].
ASM21’s Submissions
ASM21 failed to file written submissions in accordance with Order 4 of the orders of a Registrar of the then FCCA made on 6 May 2021 (“Registrar’s Orders”).
At hearing ASM21 made the following submissions:
(a)he is frustrated by the length of his migration proceedings and the expense it has cost him;
(b)he was confused by the questions in respect of the country information that the Authority relied upon at the February 2021 Interview;
(c)during the February 2021 Interview he was nervous and the questions asked made him panic, and it affected his mental health;
(d)that members of the Tamil community have been answering his phone calls and informing the government that ASM21 does not have any problems in Sri Lanka; and
(e)that if he had the assistance of a lawyer, they would have gone through the Authority Decision and found errors, but in the absence of a lawyer he is unable to identify them himself.
Minister’s submissions
The Minister made the following submissions:
(a)the 2021 Authority Decision correctly summarised the legislative framework: CB 497-498 at [15]-[16];
(b)the 2021 Authority Decision accurately and comprehensively summarised and addressed each of ASM21’s claims for protection: CB 497, 498-511 at [14], [18]-[66];
(c)the 2021 Authority Decision gave substantial consideration to country information and careful application of ASM21’s claims against that background;
(d)the Authority acted reasonably in using its discretion provided under ss 473DC and 473DD of the Migration Act to obtain new information;
(e)the 2021 Authority Decision clearly did not fall into the same errors identified by the FCA in the 2018 Authority Decision; and
(f)the 2021 Authority Decision is a careful, considered and comprehensive application of the applicable principles to ASM21’s claims, and discloses no jurisdictional error;
(g)in relation to ASM21’s claim that false allegations had been made about him to the government, that:
(i)the Authority found ASM21’s statements in respect of this somewhat confusing, but it considered it, nevertheless, in the appropriate way. It considered whether or not it could have been raised with the Delegate previously, and then it considered whether or not it constituted personal credible information; and
(ii)there was nothing before the Authority that indicated that false allegations were being made and it was not required to go on and consider ASM21’s concerns that such allegations had been made where there was no indication in the material before it that any false allegations had been made to the Department; and
(h)in relation to ASM21’s claim that the interview questions had caused him to panic, that the Authority had regard to the specific situation and vulnerabilities and expressed concerns of ASM21, including that he was under stress or felt that he was under stress at the February 2021 interview.
Consideration
Jurisdictional Error Required
This Court may set aside the 2021 Authority Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Authority identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in such a way that the Authority’s exercise or purported exercise of power is thus affected, resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Authority under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as may unreasonableness: as to which see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon ASM21 to establish jurisdictional error in the 2021 Authority Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the 2021 Authority Decision, or determine ASM21’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
No grounds in Judicial Review Application
The Judicial Review Application contains no grounds upon which it is said that the Authority committed jurisdictional error, or at all.
Submissions at hearing
Despite ASM21 failing to provide any grounds in the Judicial Review Application, and also failing to comply with the Registrar’s Orders requiring written submissions to be filed, the Court gave ASM21 an opportunity at hearing to orally explain what he considered the Authority had done wrong: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J. ASM21’s submissions at hearing are summarised at [7] above.
The Court has sympathy in respect of the ASM21’s frustration as to the length and expense of the proceedings, however, the Court observes that this matter has been brought on for hearing eight months after the Judicial Review Application was first filed. In the broader context of the backlog of migration judicial review proceedings nationally in this Court, many of which were filed four or more years ago (see, for example, Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550; Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556; AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688), a delay of eight months between first filing and final hearing is minimal and, in any event, is irrelevant to whether the 2021 Authority Decision is effected by jurisdictional error.
In respect of ASM21’s submission that he was confused by questions in respect of country information at the February 2021 Interview, the Court observes that the Authority has acted in compliance with s 473DE of the Migration Act which stipulates that:
473DE Certain new information must be given to referred applicant
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
At the February 2021 Interview country information was put to ASM21, to which he was given the opportunity to respond, and those responses were recorded: CB 501 at [29], 502 at [30], 505 at [41] and 506 at [43]. The Authority expressly considered AMS21’s responses to the country information, however was ultimately unpersuaded by ASM21’s evidence when balanced against the weight of the country information: see, for example, CB 508 at [50] and [53]. Therefore, this submission does not raise any issue of jurisdiction error.
In regards to ASM21’s submission that he was nervous and the questions caused him to panic, the Court notes that the Authority expressly considered this in the Authority Decision: CB 504 at [38]:
38. …
I accept the applicant may have been stressed at the IAA interview, including in connection with the money he has spent on his case, and I have taken this into account. However, even accepting this to be the case and considering his responses and the evidence overall, it does not overcome my concerns. Nor am I satisfied his evidence has been affected by any mental health issues.
Therefore, this submission does not identify any jurisdictional error.
In respect of ASM21’s claim that false accusations have been made against him to the government, this too is something expressly considered in the Authority Decision: CB 496 at [10]-[12]. The Authority Decision ultimately found that:
12.Insofar as this information appears in part to relate to events that pre-date the delegate’s decision, the applicant provided no cogent reason as to why he was unable to provide it to the Minister. In all the circumstances, I am not satisfied the information could not have been provided to the Minister. Insofar as the new information may relate to events that post-date the delegate’s decision, I accept it could not have been provided it (sic) to the Minister. Aside from the applicant’s assertion, there is no evidence before me to indicate a report/complaint has been made to the Department about him. Further, when I consider his lack of clarity as to how he knew his information had been stolen, how he knew the false accusation had been made, what the complaint/report said, or when these events occurred, I am not satisfied that the new information is credible. Having regard to all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering it.
As such, this submission does not identify any jurisdictional error.
In relation to ASM21’s submission that he has not had the assistance of a lawyer to prepare his case, the Court observes that there is no right to legal representation in migration proceedings in this Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev. The Court has nevertheless remained alert, given that ASM21 is self-represented and does not speak English sufficiently well to conduct his case without an interpreter, to the possibility that there may be a jurisdictional error in the 2021 Authority Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J, but has found none. As such, this submission does not raise any issue of jurisdictional error in the 2021 Authority Decision.
2021 Authority Decision
In the 2021 Authority Decision, the Authority:
(a)correctly summarised the legislative framework: CB 497-498 at [15]-[16];
(b)accurately and comprehensively summarised and addressed each of ASM21’s claims for protection, considered ASM21’s claims and the evidence that ASM21 had provided in support of his claims for protection: CB 497 at [14] and CB 498-522 at [18]-[66];
(c)thoroughly assessed the claims and evidence, and the Authority’s rationale in relation to the assessments made was open to it on the evidence and for the reasons it gave;
(d)acted reasonably in using its discretion provided under ss 473DC and 473DD of the Migration Act to obtain new information: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 at [21] per Gageler, Keane and Nettle JJ, which included additional country information and information provided by ASM21 at the February 2021 Interview: CB 505, 506 at [41], [43]; and
(e)accepted some of ASM21’s additional evidence, but did not accept as credible his additional evidence regarding claims about false accusations being made to the Department against him: CB 496 at [11].
The Authority correctly identified and considered ASM21’s claims to fear harm if returned to Sri Lanka due to:
(a)his Tamil ethnicity: CB 497 at [14] and 498 at [17], 508 at [50];
(b)his place of origin: CB 497 at [14] and 498 at [17], 508 at [50];
(c)his imputed LTTE links and involvement in post-war separatism: CB 497 at [14] and 504-505 at [36]-[39], and [42];
(d)his illegal departure from Sri Lanka: CB 497 at [14] and 510-511 at [59]-[65];
(e)his residence in a western country: CB 497 at [14] and 508-509 at [51]-[58]; and
(f)his profile as a failed asylum seeker: CB 497 at [14] and 508-509 at [51]-[58].
Ultimately, the Authority’s findings were made on the basis of country information and its concerns as to the credibility of the claims. These findings were open to the Authority on the material before it and no error, let alone jurisdictional error, is revealed.
Procedural fairness
The procedural fairness obligations imposed upon the Authority are narrower than what is commonly provided in other forms of merits review.
Part 7AA Division 3 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: ss 473DA, 473GA, 473GB of the Migration Act. These provisions codify the Authority’s procedural fairness obligations: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196; ALJR at [33] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon JJ.
Pursuant to s 473DB(1) of the Migration Act, the Authority must review the Delegate’s Decision on the papers, by considering the review material provided to it under s 473CB, without accepting or requesting new information and without interviewing an applicant, unless the Authority exercises its discretion under s 473DC(3) to request such information.
Section 473DD of the Migration Act provides that the Authority must not consider any new information unless:
(a)it is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the applicant satisfies the Authority that the new information:
(i)was not, and could not have been provided to the delegate before the delegate made their decision; or
(ii)is credible personal information which was not previously known and, had it been known and, had it been known, may have affected the consideration of the applicant’s claims.
Following the remittal of the proceedings from the FCA, the Authority invited ASM21 to attend the February 2021 Interview and to provide further information. Where the Authority had concerns with aspects of ASM21’s claims, those concerns were put him at the February 2021 Interview and he was given an opportunity to comment on those concerns: see, for example, CB 501 at [26]. The Authority, therefore, provided ASM21 with procedural fairness.
DCU18 – Appeal matters
The appeal in DCU18 - Appeal was upheld by the FCA on three of the four grounds raised by ASM21: DCU18 – Appeal at [107] per Mortimer J, and a further ground identified by the FCA: DCU18 – Appeal at [109] per Mortimer J. The errors found by the FCA are addressed below.
The FCA found that the Authority erred in the 2018 Authority Decision when it relied on inconsistencies between ASM21’s entry and age determination interviews in making a determination that ASM21 did not withdraw from his studies due to events involving the SLA: DCU18 – Appeal at [91] per Mortimer J. For the following reasons the 2021 Authority Decision does not make the same error:
(a)first, the Authority’s factual findings are different, with the Authority finding that ASM21 left school and started working at a mill because of the harassment he faced from the SLA and because of his father’s illness: CB 503 at [33]; and
(b)second, although the IAA had concerns about inconsistencies in the ASM21’s evidence, including the evidence at the entry and age determination interviews, these inconsistencies were squarely put to ASM21 at the February 2021 Interview, and ASM21’s responses at the February 2021 Interview were taken into account: CB 499, 500 at [20], [22].
The FCA also found that the Authority erred in the 2018 Authority Decision in making an adverse credibility finding against ASM21 on the basis of inconsistencies between his written submissions and other interview evidence: DCU18 – Appeal at [93]-[100] per Mortimer J. The Authority had relied on the adverse credibility finding to make a determination about the nature of ASM21’s father’s treatment by the SLA at the family rice mill: DCU18 – Appeal at [87] per Mortimer J. On remittal, the issue of the treatment of ASM21’s father at the family rice mill was put to ASM21 at the February 2021 Interview: CB 499-500 at [20]-[21], and included the Authority raising the inconsistencies in ASM21’s evidence on this issue with him: CB 499-500 at [21] and 501 at [26]. In the 2021 Authority Decision, the Authority again made adverse credibility findings on the basis of inconsistencies in ASM21’s evidence given at various times and determined that ASM21’s father had not been involved with the LTTE: CB 504 at [36]. In so finding the Authority noted that the inconsistencies had been put to ASM21 at the February 2021 Interview, and it had regard to ASM21’s responses in making its finding concerning the involvement of ASM21’s father with the LTTE.
The FCA further found that the conclusion reached in the 2018 Authority Decision, that the SLA did not regard ASM21 as a threat, was unreasonable, being based on an incomplete and narrow focus on the evidence: DCU18 – Appeal at [101]-[102] per Mortimer J, and that there was no probative evidence for the further conclusion reached in the 2018 Authority Decision that it was only Tamils who were “generally suspected” or “seen as a threat” who were at risk of serious harm from the SLA: DCU18 – Appeal at [103] per Mortimer J. In the 2021 Authority Decision, the Authority did not make the same finding. Where the Authority made findings regarding the risks faced by ASM21 on his potential return to Sri Lanka, those findings were supported by evidence, including additional country information and evidence given by ASM21 at the February 2021 Interview: CB 505 at [41] and 508 at [50].
A separate issue raised by the FCA in DCU18 – Appeal was whether it was unreasonable for the Authority to make adverse credibility findings regarding ASM21’s claim that he only learned of his father’s involvement with the LTTE after his arrival in Australia, and that he did not ask his mother for further details about this involvement: DCU18 – Appeal at [108] per Mortimer J. This finding was in support of the Authority’s determination that it did not accept that ASM21’s father was a member of the LTTE: CB 504 at [36]. The FCA found that those findings were unreasonable, because they relied on an expectation that the appellant accumulate substantiating information to assist his claims, without any legal or migration assistance, as a minor and as a non-English speaking person, in circumstances where he could not have reasonably been expected to anticipate for himself what kind or level of information might be required: DCU18 – Appeal at [110] per Mortimer J:
“It would make a mockery of the visa consideration process, including provision for qualified assistance (which includes migration and legal advice), for there to be a presumption that material which is sought and presented during this process, on an ongoing basis, should pre-emptively be characterised as false.”:
The Authority came to the same conclusion as the 2018 Authority Decision in the 2021 Authority Decision but did so following, and with the benefit of, the February 2021 Interview with ASM21 where these matters were put to him: CB 502 at [30]. By interviewing ASM21 and taking into account his evidence in reaching a finding on this issue, the Authority cured the concern identified by the FCA.
For the reasons set out at [29]-[34] above the Authority did not commit the same errors in the 2021 Authority Decision as those identified by the FCA in DCU18 – Appeal in respect of the 2018 Authority Decision.
Consideration – conclusion
The Court is satisfied that the 2021 Authority Decision:
(a)properly and appropriately considered the evidence before the Authority, and made determinations about, and findings based upon, that evidence according to law;
(b)carefully and comprehensively applies the applicable law and relevant principles to ASM21’s claims; and
(c)is therefore not affected by jurisdictional error.
CONCLUSION AND ORDERS
The Court has concluded that the 2021 Authority Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 29 November 2021
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