ASY19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 606
•15 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASY19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 606
File number(s): ADG 69 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 15 July 2024 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – stateless person born in India to Sri Lankan parents – single unparticularised ground of review - consideration of treatment of new information – whether material jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5H, 36, 46A, 473CA, 474CB, 474DB, 473DC, 473DD, 474, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407
APH17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 23
ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203; (2019) 274 FCR 477
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FGI18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 57
FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144
FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (224) 98 ALJR 610
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZARG v Minister for Immigration and Border Protection [2018] FCA 624
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
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
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 2 July 2024 Date of hearing: 2 July 2024 Place: Perth Applicant: Appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr A Chan Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 69 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASY19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
15 JULY 2024
THE COURT ORDERS THAT:
1.The originating application filed on 26 February 2019 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
By application filed pursuant to s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”), the applicant, ASY19, seeks judicial review (“Judicial Review Application”) of a decision made by the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) on 8 February 2019, which affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister not to grant him a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHE Visa”).
BACKGROUND
The background to the Judicial Review Application is as follows:
(a)ASY19 is a citizen of Sri Lanka who arrived in Australia at Christmas Island on 25 April 2013 as an unauthorised maritime arrival: Court Book (“CB”) 46 and 124;
(b)on 9 May 2016 the Department advised ASY19 that the Minister had exercised the power under s 46A(2) of the Migration Act to lift the bar in s 46A(1) of the Migration Act which had, until that time, prevented ASY19 from applying for a SHE Visa: CB 22-23;
(c)on 1 August 2016 ASY19 applied for a SHE Visa: CB 24-72;
(d)on 14 March 2018 ASY19 attended an interview with the Delegate (“Delegate’s Interview”): CB 82-84.
(e)following the Delegate’s Interview, ASY19’s migration agent representative provided further documentation and written submissions to the Delegate: CB 85-116;
(f)on 19 March 2018 ASY19’s representative provided a further submission: CB 117-120;
(g)ASY19’s claims to the Delegate as expressed in his SHE Visa application, the Delegate’s Interview and subsequent submissions were as follows:
(i)he was an Indian born Christian Tamil but was not a citizen of either Sri Lanka or India;
(ii)his paternal uncle was a combatant for the Liberation Tigers of Tamil Eelam (“LTTE”) who died in around 1990;
(iii)ASY19’s family fled Sri Lanka to a refugee camp in India because ASY19’s father was targeted by the Sri Lankan authorities because of his resemblance to the uncle;
(iv)ASY19 claimed that in India his father had been questioned and beaten by officers from the Q Branch for suspected LTTE involvement;
(v)the Q Branch had also questioned ASY19’s family because of his brother’s marriage to an Indian woman;
(vi)the Q Branch had inquired about ASY19’s whereabouts;
(vii)ASY19 feared being returned to India as Tamil refugees were treated poorly and he would be subject to inquiries because his refugee registration had since been cancelled;
(viii)it was not possible for ASY19 to acquire Indian citizenship; and
(ix)he feared being returned to Sri Lanka on the basis that he:
(A)was a Tamil male whose parents originated from the northern Sri Lanka;
(B)could not prove that he was Sri Lankan;
(C)had familial connections to the LTTE;
(D)had previously spent time in jail in India; and
(E)was a Tamil speaking Indian refugee who had departed India illegally and who had made an asylum application in Australia;
(h)on 31 August 2018 the Delegate’s Decision was to refuse to grant ASY19 the SHE Visa: CB 121-145;
(i)on 5 September 2018 the matter was referred to the Authority under s 473CA of the Migration Act: CB 146-152;
(j)on 21 and 22 September 2018 ASY19’s representative provided written submissions to the Authority (“First Submission” and “Second Submission” respectively): CB 156-162; and
(k)on 8 February 2019 the Authority Decision was to affirm the Delegate’s Decision: CB 164-182.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)had regard to the information referred to it under s 473CB of the Migration Act: CB 167 at [3];
(b)to the extent that the First Submission (provided on 21 September 2018) constituted argument or reiterated claims or evidence before the Delegate, the Authority considered the submission: CB 167 at [4];
(c)found that the First Submission also raised a new claim that ASY19 would be imputed with an adverse political opinion as a result of en masse processing. Because the Authority determined ASY19’s receiving country to be India and not Sri Lanka, the Authority found that he would not be subjected to returnee processing procedures in Sri Lanka and was not satisfied that there were exceptional circumstances to justify considering this new claim: CB 167 at [5]; and
(d)to the extent that the Second Submission constituted argument or reiterated claims or evidence before the Delegate, the Authority had regard to it: CB 167 at [6];
(e)the Second Submission also requested that the Authority exercise its discretionary powers to obtain information from the Department about how a previous identity assessment was conducted and referred to specific passages in the Delegate’s Decision in support of that request: CB 167 at [7]. The Authority found the submission in support of the request was highly speculative and that obtaining or putting that requested information to ASY19 was not warranted: CB 168 at [8].
In relation to the refugee criterion the Authority:
(a)accepted that ASY19 resided in India as a refugee and had not registered his birth with the Sri Lankan authorities or taken the necessary steps to obtain Sri Lankan citizenship and therefore he would not be recognised as a Sri Lankan national: CB 171 at [20];
(b)found that ASY19 was not a national of any country and was therefore stateless: CB 171 at [21];
(c)accepted that ASY19 was born in India and resided there until his departure in 2013 and found that India was his receiving country as it was his country of former habitual residence, and found that it was irrelevant whether ASY19 had a right to return to India: CB 171 at [21];
(d)whilst having some concerns with ASY19’s evidence was willing to accept that his family fled from Sri Lanka to India in 1990 because of his uncle’s LTTE involvement, and that as ASY19 was not born when his parents fled to India, found that ASY19’s evidence was likely a recount of what he was told by his family: CB 172 at [27];
(e)accepted that ASY19’s father did not talk about Sri Lanka, that his father came to the adverse attention of the Sri Lankan authorities because of his ethnicity and familial LTTE connections and that ASY19’s family sought refuge in India because of the adverse attention: CB 171 at [27];
(f)set out ASY19’s evidence concerning events in India as follows at CB 172-173 at [28]-[36]:
28.I found the applicant’s evidence in relation to the events that occurred in India prior to his departure unconvincing. In particular, there were a number of inconsistencies in his evidence presented at different times that undermine the credibility of his claims.
29.In his SHEV statement, the applicant claimed that on arrival to India his father informed the Indian authorities of the difficulties he faced in Sri Lanka. He also claimed that he remembered his father being taken by Q Branch due to suspicion of being a LTTE combatant and beaten several times. He believes information is exchanged between India and Sri Lanka about persons suspected of LTTE involvement. The applicant further claimed that he had recently learned that Q Branch had enquired as to his own whereabouts. He stated that the reason he departed India for Australia is because he had lived as a refugee since birth, because it was not possible to acquire Indian citizenship, and that Tamil refugees are humiliated and treated differently by Indian people.
30.According to the applicant’s father's undated letter, on arrival in 1990, he told the Indian police and navy about his experiences in Sri Lanka and that he and his family had come to India to live. However, the letter makes no mention that he faced any difficulty in India.
31.In the SHEV interview, the delegate asked the applicant the reasons as to why he was seeking protection in Australia. In response, he stated that he was not a citizen of Sri Lanka or India, that he did not receive a proper education, and that there was no access to electricity or water in India. He said that life was very hard. The delegate then asked if there was a particular incident that led to him leaving. In response, he stated that he was driving a vehicle for a politician during an election campaign when the opposition party lodged a police complaint which led to him being kept in gaol overnight in 2013. He was not charged or convicted of any crime.
32.Later in the SHEV interview, the delegate asked the applicant if his father had any issues in India, to which he responded “No”. The delegate then asked whether his father was ever questioned by the Indian authorities about his links to the LTTE, to which he replied that nothing like that ever happened while he was there. The applicant also advised the delegate that he had never been questioned about any LTTE links.
33.The delegate then referred the applicant to his SHEV statement where he had claimed that his father was taken by Q Branch for questioning. In response, he stated that his brother had married a prominent Indian girl whose family had paid money to Q Branch to “bring the girl back”. The applicant claimed that he was coming home from school on one occasion when he, his father, and his brother, were taken by Q Branch and questioned about his brother. He was told that if he lied he would be beaten. He was beaten with a stick when he said that he didn't know where his elder brother was. He claimed that he and other his brother were released but that his father was not. His father was tortured by Q Branch because the girl was not returned to her family. The applicant claimed that after this incident he ceased going to school because people had made fun of him that he had been to gaol. According to the Department of School Education certificate provided, the applicant ceased schooling in 2007.
34.The delegate then asked the applicant about his written evidence that his father was questioned in India in relation to his brother’s involvement in the LTTE. His response was that he was not sure. He then claimed that when he was in Year 5 at school his father was taken by Q Branch two or three times but he did not know the reason.
35.The delegate again asked the applicant if there was a particular reason why he left India. He again said that his problem was that he did not have any education. He also claimed that his mother wrote him a letter telling him that the authorities came searching for him in 2017. He said that his mother wouldn't tell him what questions the authorities asked and he did not know the reason why they were looking for him.
36.Towards the end of the SHEV interview, the delegate asked the applicant about why he feared harm in India and from whom. His response was that he feared extensive enquiries from the police because his refugee registration has been cancelled. He stated that he cannot move or work freely and feared being detained and beaten due to his citizenship and registration status.
(g)found that when considered cumulatively ASY19 was not recalling a genuine personal experience in relation to the events in India: CB 173 at [37];
(h)reviewed the audio recordings of ASY19’s two entry interviews and noted the evidence that he gave at those interviews: CB 174 at [38]-[41], and having considered the evidence:
(i)did not accept that ASY19:
(A)witnessed his father being taken by Q Branch due to their suspicions of him being an LTTE combatant; and
(B)was jailed in 2013 in connection with driving a vehicle for a politician during an election campaign: CB 174 at [42];
(ii)accepted that:
(A)ASY19’s family had difficulties in respect of his brother’s marriage to an Indian woman; and
(B)ASY19 and his family were questioned and faced adverse attention from the Indian authorities several years prior to ASY19’s departure from India: CB 174 at [42];
(i)based on country information, accepted that ASY19’s father previously faced problems with Q Branch in relation to seeking employment and that he may have been subjected to police extortion and assault: CB 175 at [43];
(j)accepted that ASY19 may have been monitored because of his time away from the camp or from employment but did not accept that he was questioned and beaten by camp authorities in February 2013: CB 175 at [43];
(k)did not accept that:
(i)ASY19 was a person of adverse interest to Q Branch or any other arm of the Indian authorities when he departed India in 2013;
(ii)Q Branch came searching for him in 2017; and
(iii)ASY19’s family were detained and his brothers assaulted and questioned three days after ASY19 departed India: CB 175 at [44];
(l)accepted that the Indian authorities may have inquired as to ASY19’s whereabouts given he was no longer residing in the camp, but not that he was of any ongoing interest to Q Branch or the Indian authorities: CB 175 at [44];
(m)found the chance of ASY19 facing difficulty now or in the foreseeable because of his brother’s marriage to be remote: CB 176 at [48];
(n)accepted that ASY19 and his family previously faced discrimination and other difficulties such as movement restrictions, and that ASY19 may face discrimination from employers, but found that this would not constitute serious harm: CB 176 at [49];
(o)was satisfied that ASY19 would not be denied employment or services that would threaten his capacity to subsist: CB 176 at [49]; and
(p)found that ASY19 did not face a real charm of harm in Tamil Nadu now or in the reasonably foreseeable future for any reason, including because of his lack of citizenship and registration status or previous events in Sri Lanka either individually or cumulatively: CB 176-177 at [49]-[50], and concluded that ASY19 did not meet the definition of refugee in s 5H of the Migration Act and therefore did not meet s 36(2)(a) of the Migration Act: CB 177 at [51].
In relation to the complementary protection criterion the Authority, relying on its anterior findings, concluded that ASY19 did not face a real risk of significant harm by reason of: any adverse interest to the Q Branch or the Indian government; any discrimination; his lack of citizenship and registration status; or, his irregular departure from and return to India. The Authority concluded that ASY19 did not meet s 36(2)(aa) of the Migration Act: CB 177- 178 at [52]-[57].
JUDICIAL REVIEW APPLICATION
Sole ground of Judicial Review Application
The sole ground of the Judicial Review Application is as follows:
That the Authority made a jurisdictional error in my case.
Litigation history
Given that it is more than five years since the Judicial Review Application was filed it is appropriate to set out the litigation history of the matter, which is as follows:
(a)the Judicial Review Application and a supporting affidavit were filed on 26 February 2019 in the Adelaide Registry of the Court (then the Federal Circuit Court);
(b)on 8 March 2019 the Minister filed a response seeking that the Judicial Review Application be dismissed on the basis that it did not establish any jurisdictional error in the Authority Decision;
(c)on 26 April 2019 a Registrar of the Court made orders (“Registrar’s April 2019 Orders”) that included the following:
2 The applicant has leave to file and serve any amended application by 27 June 2019.
3 The applicant has leave to file and serve such further material that they may rely upon at the hearing by 27 June 2019.
4 The first respondent has leave to file and serve any affidavit evidence that they wish to rely on by 11 July 2019.
5 The application be listed for a final hearing on a date to be advised.
6 The applicant file and serve an outline of submissions 14 days prior to the final hearing.
7 The first respondent file and serve an outline of submissions 7 days prior to the final hearing.
8 The matter be listed for a directions hearing on 12 June 2020 at 9:30 am.
(d)ASY19 did not file any documents pursuant to Orders 2 and 3 of the Registrar’s April 2019 Orders;
(e)on 2 January 2020 the Adelaide Registry of the Court advised the parties that the 12 June 2020 directions hearing had been vacated and adjourned to a date to be fixed. No reason was given for the adjournment;
(f)nothing further occurred in relation to the matter until February 2023 when the matter was docketed to the presently presiding Judge and a directions hearing was listed for 27 March 2023 at which the Court made orders (“Court’s March 2023 Orders”), which included the following:
2. Orders 2-9 of Registrar Parkyn’s orders of 26 April 2019 be set aside, and in lieu thereof order that:
a) the applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 30 August 2023;
b) the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 27 September 2023; and
c) the matter be listed for final hearing by video link on 26 October 2023 at 10.00am AWST/12.30pm ACDT before Judge Lucev.
(g)ASY19 did not file any documents pursuant to Order 2(a) of the Court’s March 2023 Orders;
(h)on 12 September 2023 the parties were advised by the presiding Judge’s Associate that due to reasons associated with judicial hearing workloads and case management the final hearing had been relisted to 2 July 2024;
(i)the Minister filed an outline of submissions on 18 September 2023 in accordance with the Court’s March 2023 Orders; and
(j)the final hearing proceeded on 2 July 2024, and at the final hearing the Court:
(i)noted that ASY19 had not filed any materials pursuant to the Court’s May 2023 Orders;
(ii)reiterated what had been said at the 27 March 2023 directions hearing that ASY19 needed to establish material jurisdictional error in the Authority Decision, and the nature of jurisdictional error, and that the Court was not re-hearing the merits of the SHE Visa application; and
(iii)heard oral submissions from both ASY19 and the Minister. Albeit that ASY19 did not file any materials he was permitted to make oral submissions, consistent with Federal Court authority to the effect that even where there are un-particularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J; see too FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383 at [8(j)] per Judge Lucev and FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144 at [25]-[26] per Judge Ladhams.
Submissions
ASY19’s oral submissions
In ASY19’s oral submissions ASY19:
(a)that he did not know anyone in Sri Lanka when he came by boat, but he had a friend who had borrowed his licence and transferred money, and the reason why the Authority rejected him is because they said he had sent money to Sri Lanka; and
(b)otherwise made no submissions, including in reply once he had heard the Minister’s submissions, as to any alleged error in the Authority Decision.
Minister’s submissions
The Minister submitted that:
(a)in the Authority Decision the Authority:
(i)determined that India was the receiving country: CB 169-171 at [21]; and
(ii)made no adverse findings about a money transfer to Sri Lanka,
and there could be no jurisdictional error on the money transfer issue;
(b)ASY19’s sole ground of review was not sufficiently particularised, and should be dismissed accordingly;
(c)it could be inferred that the Authority’s new information findings were consistent with relevant case law, and that the Authority had conducted the requisite assessment for the purposes of s 473DD of the Migration Act, but even if it had not done so there was no material error in the Authority’s findings;
(d)the Authority did not err in not exercising its discretion to not obtain new information concerning an alleged possible data breach; and
(e)otherwise engaged with the claims made by ASY19, and no jurisdictional error is apparent.
Consideration
Material jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material 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; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (224) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the High Court said that:
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Not merits review
The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”).
No jurisdictional error alleged or particularised in single ground of review
The Court notes that ASY19 had three formal opportunities prior to the final hearing to file material setting out an alleged jurisdictional error in the Authority Decision. The first opportunity was upon the filing the Judicial Review Application. The second opportunity was upon the making of the Registrar’s April 2019 Orders, which were made by consent, which permitted ASY19 to file an amended Judicial Review Application and further material by 27 June 2019, but he did not do so. The third opportunity was upon the making of the Court’s March 2023 Orders which allowed ASY19 to file an amended Judicial Review Application, any further affidavits and an outline of submissions by 30 August 2023. Also, at the March 2023 directions hearing the nature of, and requirement to establish, material jurisdictional error affecting the Authority Decision, was explained to ASY19, and ASY19 was told that the Court did not engage in merits review of the Authority Decision. ASY19 did not file any further documents as a result of the Court’s March 2023 Orders.
At the final hearing the requirement to establish material jurisdictional error in the Authority Decision, and that the Court did not engage in merits review of the Authority Decision, were reiterated to ASY19, but ASY19’s oral submissions (as to which see [8] above) did not assert any alleged jurisdictional error. In the circumstances, the Court is satisfied that ASY19 had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: DQQ17 at [8]-[9] per Colvin J; see also BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J.
Having given both explanation and opportunity to ASY19 to explain what jurisdictional error he alleged affected the Authority Decision, the failure to go beyond the bare assertion of jurisdictional error in ground 1, and the failure to particularise the grounds of review, is sufficient reason to warrant this Court dismissing that ground: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25] per McKerracher J, citing WZAVW (amongst other cases); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW.
Consideration of procedural duties under s 473DD of the Migration Act
In circumstances where ASY19 is a self-represented litigant it is appropriate for the Court to consider whether any jurisdictional error arises in relation to compliance with the procedural duties imposed upon the Authority by s 473DD of the Migration Act: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [26] per Judge Lucev.
Assessment of new information
The High Court considered the nature of the procedural duties under s 473DD of the Migration Act in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”). In AUS17 the High Court held that performance of the procedural duty in s 473DD of the Migration Act requires:
(a)the Authority:
(i)first, to assess new information against the criteria specified in ss 473DD(b)(i) and (ii) of the Migration Act; and
(ii)if satisfied that one or both criteria are met, to take the outcome of that assessment into account in its assessment of exceptional circumstances under s 473DD(a) of the Migration Act: AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J; and
(b)that if neither criterion under s 473DD(b) of the Migration Act is met, that the Authority is prohibited from considering the new information and that there is no need to assess that information against the criterion in s 473DD(a) of the Migration Act: AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J.
The Authority Decision pre-dated the judgment in AUS17. Unsurprisingly therefore the Authority did not express its findings precisely in accordance with AUS17. That matters not because:
(a)no “formulaic consideration” of s 473DD was required: ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 (“ARO17”) at [64] per Wigney J; and
(b)the Authority was under no obligation to provide reasons for the formation of the states of satisfaction required by s 473DD of the Migration Act: CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203; (2019) 274 FCR 477 at [119] per Derrington and Steward JJ.
The Authority’s consideration of the new information appears at CB 167 at [5] and 167-168 at [7] as follows:
5.In the IAA submission, the representative contends that on return to Sri Lanka the applicant will be imputed with an adverse political opinion as a result of processing procedures in place for returnees to Sri Lanka. Specifically, the representative refers to paragraph 5.19 of the 2017 Department of Foreign Affairs and Trade (DFAT) report1 which states that returnees are processed en masse, and that individuals cannot exit the airport until all returnees have been processed. The representative submits that should one member of the group of returnees who are processed en masse attract adverse attention for whatever reason, members of the group could also be imputed with an adverse profile. While the 2017 DFAT report was before the delegate, the claim that the applicant may be imputed with an adverse profile arising from en masse processing at the airport in Sri Lanka was not before the delegate. It is new information. For reasons outlined below, I have determined that the applicant's receiving country is India, not Sri Lanka. I therefore consider that the applicant will not be subjected to returnee processing procedures in Sri Lanka. In these circumstances, I am not satisfied that there are exceptional circumstances to justify consideration of this information.
…
7.In the second IAA submission, the representative refers to the delegate’s finding in her decision that ‘Information on departmental systems and country information indicate that the applicant’s birth certificate shows no signs of irregularity’ and ‘A check of relevant systems has revealed no information that raises concern that the applicant has given a false identity’. Based on this, the representative speculates that the applicant’s identity was checked using ‘departmental systems [that] could be linked with external systems’ and that those external systems ‘may be outside the control of the department’. It is further submitted that, as a result the Department’s use of these systems, the applicant’s details have been disseminated ‘online’ meaning he would be ‘exposed [to] his details being accessed online, especially as there have been previous lapses in protecting asylum seeker information which has been documented (the data breach incident)’.
The above extracts from the Authority Decision make it clear that the Authority was not satisfied that the criteria in s 473DD(b)(i) of the Migration Act was met. The Authority:
(a)noted that a 2017 Department of Foreign Affairs and Trade Report (“2017 DFAT Report”) which stated that “returnees are processed en masse” was before the Delegate, yet the claim arising from this 2017 DFAT Report to the effect that ASY19 may be imputed with an adverse profile arising from en masse processing at the airport was not before the Delegate and was new information: CB 167 at [8]-[9]; and
(b)was not satisfied that the new information could not have been provided to the Delegate before the Delegate’s Decision.
Read fairly and as a whole the Authority decision indicates that the Authority was not satisfied that the new information was credible personal information and met s 473DD(b)(ii) of the Migration Act. This is because the new claim arose directly from general information about the state of affairs with respect to returnees to Sri Lanka, a place determined by the Authority not to be ASY19’s receiving country.
In the above circumstances the Court considers that the inference can be drawn that the Authority, in substance, conducted the “requisite assessment” under s 473DD of the Migration Act, and no error of the kind identified in AUS17 arises: ARO17 at [64] per Wigney J; APH17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 23 at [79] per Markovic J; FGI18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 57 at [28] per O’Callaghan J.
Even if the Authority did err in assessing whether the new information met the criteria in s 473DD of the Migration Act any error was not material because:
(a)the Authority Decision at CB 167 at [5] makes it manifest that the Authority would not have found there to be exceptional circumstances to justify considering the information in accordance with s 473DD(a) of the Migration Act, nor did ASY19 advance any reasons for why there were exceptional circumstances; and
(b)there could not have been a different outcome even if the Authority had found that the criteria in ss 473DD(a) and (b) of the Migration Act had been met and considered the new information. Having determined that ASY19’s receiving country was India, the Authority did not consider, nor was it required to consider, whether ASY19 would be subjected to en masse returnee processing procedures in Sri Lanka.
It follows that any error on the part of the Authority in assessing whether the new information met the criteria in s 473DD of the Migration Act would inevitably not have resulted in a different outcome: LPDT at [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 at [30]-[33] per Kiefel CJ, Gageler, Keane, Gordon, Edelman and Gleeson JJ.
Discretion to obtain new information
ASY19 requested the Authority to exercise its discretionary power to get information from the Department under s 473DC of the Migration Act. The information sought was information about how ASY19’s identity assessment was conducted, including what systems were used, and information as to how “robust and safe” those systems were: CB 167-168 at [7]-[8]. The Authority’s conclusion on the request for information is set out at CB 168 at [8] as follows:
8.The representative requests that the IAA exercise its discretionary powers to obtain information from the Department about how the identity assessment was conducted, including what systems were used, and information as to ‘how robust and safe’ the systems are, and to provide that information to the applicant for comment. However, there is no indication from the information in the review material, including the delegate’s decision, that the applicant’s personal details have been disseminated online or otherwise compromised by the Department in respect of its undertaking of the identity assessment. I consider the representative’s assertion in this regard highly speculative, and I am not satisfied that his request to obtain the stated information from the Department, or to put that information to the applicant for comment, is warranted.
The Authority was required to review the Delegate’s Decision on the papers and by considering the review material provided to it in accordance with s 473CB of the Migration Act, without necessarily accepting or requesting new information or interviewing ASY19: Migration Act, s 473DB(1).
The Authority did not have a duty to get, request, or accept any new information: Migration Act, s 473DC(2). The discretion in s 473DC(1) of the Migration Act to get new information is however conferred subject to the implied condition that it is exercised reasonably: 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; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 at [3] per Kiefel CJ, Bell, Gaeler and Keane JJ.
The veracity of ASY19’s identity was not in issue, either before the Delegate or the Authority. The request made by ASY19’s representative for the Authority to get this information: CB 160, was, as the Authority correctly observed, entirely speculative and based on an assumption that ASY19’s personal details had been disseminated online or otherwise compromised, but there was no indication from the review material that this had in fact occurred: CB 168 at [8].
It follows that the Authority did not misapply or unreasonably fail to exercise its discretion to get new information from the Department about identity checks, and no error therefore arises with respect to the Authority not exercising its discretionary power to get information from the Department under s 473DC of the Migration Act, being information about how ASY19’s identity assessment was conducted, including what systems were used, and information as to how “robust and safe” those systems were: CB 167-168 at [7]-[8].
Jurisdictional error otherwise
In otherwise making findings about ASY19’s claims, the Court is satisfied that the Authority applied the correct provisions and statutory language and had regard to relevant country information reports and ASY19’s evidence. No error, let alone jurisdictional error, is otherwise apparent.
Self-represented litigant
The Court is cognisant that ASY19 was a self-represented litigant, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Authority: MZAIB at [100] and [112] per Mortimer J; Ludgero at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.
CONCLUSION AND ORDER
The Court has concluded that the Judicial Review Application does not establish any jurisdictional error in the Authority Decision. 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-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 July 2024
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