ATY19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 677
•1 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ATY19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 677
File number(s): ADG 73 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 1 August 2024 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka – whether investigation concerning letters from Terrorism Investigation Department to assess genuineness – whether duty to make inquiries – whether failure to take into account relevant considerations when assessing applicant’s credibility – whether restriction on answers given in evidence before the Delegate - whether material jurisdictional error
PRACTICE AND PROCEDURE – application to extend time for filing of originating application – where Minister consents to extension of time
Legislation: Migration Act, ss 5H, 36, 46A, 473CB, 473DC, 474, 476, 477 Cases cited: BAW16 v Minister for Immigration & Anor [2016] FCCA 2830
CQG15 v Minister for Immigration & Border Protection & Anor [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 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 Border Protection v Haq [2019] FCAFC 7; (2019) 267 FCR 513; (2019) 77 AAR 268; (2019) 365 ALR 202
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010)183 FCR 575; (2010) 114 ALD 666
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
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
SZSHV v Minister for Immigration & Border Protection [2014] FCA 253
SZTKV v Minister for Immigration and Border Protection [2014] FCA 903
SZTPJ v Minister for Immigration & Anor [2015] FCCA 1992
WZARX v Minister for Immigration and Border Protection [2014] FCA 423
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 15 July 2024 Date of hearing: 15 July 2024 Place: Adelaide Applicant: In person by telephone 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 73 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATY19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) the time in which to file the originating application be extended to 27 February 2019.
2.The originating application filed 27 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
The applicant, ATY19, seeks an extension of time (“Extension of Time Application”) under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) in which to file an application seeking judicial review (“Judicial Review Application”) of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) made on 22 January 2019. The Authority Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant ATY19 a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHE Visa”). The Authority Decision appears in the Court Book (“CB”) at CB 175-189.
The Extension of Time Application was filed one day outside the statutorily prescribed 35 day time limit in s 477(1) of the Migration Act. The Minister has consented to an extension of time being granted to file the Judicial Review Application: Transcript, p 4. There will be an order granting the Extension of Time Application.
BACKGROUND AND CLAIMS
The background to this matter, including the claims made by ATY19, is as follows:
(a)ATY19, a citizen of Sri Lanka, arrived on Christmas Island as an unauthorised maritime arrival on 17 November 2012: CB 57;
(b)on 23 December 2015 the Minister’s Department informed ATY19 that the Minister had lifted the bar pursuant to s 46A(2) of the Migration Act and invited ATY19 to apply for a SHE Visa: CB 29-34;
(c)on 16 August 2016 ATY19 applied for the SHE Visa: CB 37-76;
(d)on 26 March 2018, the Delegate invited ATY19 to attend an interview (“SHE Visa Interview”) with the Delegate on 18 April 2018: CB 116-117;
(e)ATY19 attended the SHE Visa Interview assisted by a registered migration agent and an interpreter in the Tamil and English languages: CB 118-124;
(f)ATY19’s claims for protection were set out in a statement of claims lodged with his SHE Visa application: CB 77-79. Those claims were, in summary, as follows:
(i)in 1985, a shell fell on ATY19’s family home, injuring his family, and later that year, ATY19 and his family departed Sri Lanka illegally to live in India, returning to live in Sri Lanka in 1988;
(ii)in 1995 there were problems in ATY19’s village between the Liberation Tigers of Tamil Eelam (“LTTE”) and the Sri Lankan Army (“SLA”);
(iii)in 1995 ATY19’s father was shot and injured by the SLA;
(iv)on 17 June 2006 during a fight between the Sri Lankan Navy (“SLN)” and the LTTE, ATY19 sought shelter in a church, which was later bombed with him in it;
(v)after the bombing of the church, ATY19, along with other youths from the church, demonstrated against the use of weapons. The demonstration was video recorded;
(vi)the LTTE took notice of ATY19 and forced him to undergo training;
(vii)ATY19 believed that the SLA knew that he underwent LTTE training, so he departed Sri Lanka illegally for India;
(viii)in early 2007 ATY19 returned to Sri Lanka and stayed at a Catholic Church to avoid abduction;
(ix)on 14 April 2012 a boy from the Eelam People’s Democratic Party (“EPDP”) told ATY19 that he was targeted in 2006 and would again be targeted now that he had returned; and
(x)on 17 April 2012 ATY19 was standing in front of a restaurant when three people came and informed him that they had some inquiries and took him to an isolated place near the beach. ATY19 assumed they were from the Criminal Investigation Department (“CID”) and recognised one of the men who was a member of the EPDP. The men kicked him, tied him to a tree and poured petrol on him. The men fled when women arrived after hearing his screams. He was hospitalised for two days for hip pain;
(g)at the SHE Visa interview ATY19 further claimed: CB 131 and 177 at [4], that:
(i)from 2007 to 2009 he transported food and medicine for the LTTE on boats;
(ii)he departed Sri Lanka legally to Malaysia; and
(iii)in 2017 the Sri Lankan police:
(A)hand delivered letters (“Police Memos”) to his family requesting he report to the Terrorism Investigation Division (“TID”); and
(B)beat his brother and demanded money from him; and
(h)on 17 September 2018 the Delegate refused to grant ATY19 the SHE Visa: CB 125-150;
(i)the matter was referred to the Authority on 20 September 2018: CB 152-154;
(j)ATY19 did not provide further information to the Authority; and
(k)on 22 January 2019 the Authority Decision was to affirm the Delegate’s Decision: CB 175-189.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)had regard to the material given to it by the Secretary under s 473CB of the Migration Act, and noted that no further information had been obtained or received from ATY19: CB 176 at [2];
(b)accepted ATY19’s identity, nationality, ethnicity and Catholic faith as claimed and that Sri Lanka was the receiving country: CB 177 at [5]-[6];
(c)accepted that ATY19 temporarily resided in India from 1985 to 1988 and from 2006 to 2007 as claimed: CB 177 at [7];
(d)accepted that ATY19’s father was shot by soldiers in 1995 and that the attack on the church occurred as claimed: CB 177 at [8];
(e)accepted that ATY19 was present in the church when it was attacked by the SLN in June 2006 but escaped uninjured: CB 177-178 at [9];
(f)did not accept that on his return to Sri Lanka around early 2007 ATY19 risked his safety by transporting goods on LTTE boats from 2007 to 2009: CB 179 at [16];
(g)was not satisfied that ATY19 had been truthful in respect of his dealings with the LTTE and found that the evolving narrative of the duration of his LTTE training and extent of his role was not credible. Based on relevant country information, the Authority accepted that ATY19 may have had some dealings with the LTTE from time to time. The Authority did not accept that ATY19 ever undertook any LTTE training or that he provided the LTTE movement with any support, including transporting goods, or that he otherwise engaged in any other LTTE related activities: CB 179 at [17];
(h)accepted that ATY19 was part of the church youth group and the group may have publicly demonstrated after the attack on the church: CB 179-180 at [18];
(i)noting that it did not accept ATY19’s claimed links to the LTTE, did not accept that ATY19 was of interest to the EPDP for that reason: CB 180 at [20];
(j)had concerns in respect of the diagnosis ticket dated 2 December 2012 from the Mannar District Hospital, noting that it was prepared many months after ATY19’s claim that he was admitted in April 2012. Whilst the Authority had some doubts as to the veracity of the document, it afforded it some weight in its assessment: CB 180-181 at [21];
(k)considered that it was not plausible that ATY19 would be targeted by the EPDP and the CID in April 2012 because of his involvement in a church demonstration six years earlier, and did not accept that the EPDP and the CID would wait more than five years after his return to Sri Lanka to interact with him. The Authority found that these claims had been fabricated and that ATY19 had never been targeted by any group because of his involvement in the church demonstration: CB 181 at [22];
(l)did not accept that ATY19 was of any adverse interest to the authorities or any group at the time of his departure from Sri Lanka in August 2012 and found that he was able to leave Sri Lanka freely because he was of no interest to the authorities or any group and did not accept that he paid a bribe to depart Sri Lanka: CB 181 at [22];
(m)found ATY19’s evidence relating to the TID to be unpersuasive and was not satisfied that the TID had any interest in ATY19, or that they threatened his family, assaulted his brother or extorted money from his brother: CB 182 at [25]-[26];
(n)found that country information did not support a finding that ATY19’s Tamil ethnicity or speaking Tamil of itself imputed LTTE membership or a pro-LTTE opinion, even when combined with other factors: CB 183 at [30];
(o)did not accept that ATY19 was ever perceived as having any LTTE affiliation or that he was otherwise of interest to the authorities while in Sri Lanka or Australia: CB 183 at [31];
(p)found that country information did not support a finding that ATY19 would face a real chance of harm because of his asylum claims in Australia and given that he had departed Sri Lanka lawfully it was not apparent if or how the Sri Lankan authorities would ascertain that he had requested asylum: CB 183 at [32];
(q)after considering ATY19’s claims separately and cumulatively, was not satisfied that ATY19 faced a real chance of any harm for any reason in the foreseeable future were he to return to Sri Lanka, including for actual or imputed LTTE or Tamil separatist affiliation, his Tamil ethnicity and identity, his father’s experiences with the SLA in the 1990s, for participating in the church demonstrations or his status as a failed asylum seeker from Australia: CB 183 at [33];
(r)concluded that ATY19 did not have a well-founded fear of persecution in Sri Lanka and he did not meet the definition of refugee in s 5H(1) of the Migration Act and the refugee criterion in s 36(2)(a) of the Migration Act: CB 184 at [34]-[35];
(s)regarding the complementary protection criterion in s 36(2)(aa) of the Migration Act, and for the same reasons given in relation to the refugee criterion, found that:
(i)ATY19 did not face a real chance of any harm; and
(ii)there was not a real risk of ATY19 experiencing any treatment amounting to significant harm were he to return to Sri Lanka, including because of any actual or imputed LTTE or Tamil separatist affiliation, his Tamil ethnicity and identity, his father’s experiences with the SLA in the 1990s, his participation in the church demonstration and his status as a failed asylum seeker from Australia: CB 184 at [38]; and
(t)concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would suffer significant harm, and he did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act: CB 184 at [39].
JUDICIAL REVIEW APPLICATION
Grounds
The Judicial Review Application contains two grounds set out at [11] (ground 1) and [31] (ground 2) below.
Litigation history
It is appropriate to set out some aspects of the litigation history of the matter, as follows:
(a)the Judicial Review Application was filed in the Adelaide Registry of the Court (then the Federal Circuit Court) on 27 February 2019;
(b)on 26 April 2019 a Registrar of this Court made consent orders (“Registrar’s Orders”) which included the following orders:
(i)the Minister to file and serve the CB by 24 May 2019;
(ii)for ATY19 to have leave to file and serve any amended Judicial Review Application, and such further material as he may rely upon at hearing, by 27 June 2019;
(iii)listing the matter for a directions hearing almost 16 months later, on 12 June 2020; and
(iv)listing the Extension of Time Application, “or if time is extended” the Judicial Review Application “for final hearing, be listed on a date to be advised”;
(c)the CB was filed on 24 May 2019;
(d)ATY19 did not file any materials pursuant to the Registrar’s Orders;
(e)on 2 January 2020 the parties were advised by the Adelaide Registry of the Court that the 12 June 2020 directions hearing had been adjourned to a date to be fixed, and that a new listing date would to be advised “in due course”. No reason was given for the adjournment;
(f)nothing further occurred in relation to the matter for more than three years, until March 2023 when the matter was docketed to the docket of the presently presiding Judge, and the matter was listed for a directions hearing on 30 March 2023;
(g)on 30 March 2023 ATY19 did not appear at the directions hearing, and the Court made made orders (“Court’s March 2023 Orders”), including 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 21 September 2023;
b)the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 19 October 2023; and
c)the matter be listed for hearing of the extension of time application and the final hearing by video link on 14 November 2023 at 10.00am AWST/12.30pm ACDT before Judge Lucev.
(h)on 12 September 2023 the Chambers of the presiding Judge advised the parties that due to judicial hearing workloads and case management issues the final hearing of the matter had been relisted to 15 July 2024;
(i)ATY19 filed no further materials pursuant to the Court’s March 2023 Orders;
(j)the Minister filed a written outline of submissions on 12 October 2023;
(k)the final hearing of the matter proceeded on 15 July 2024 with ATY19 appearing by telephone from Mobilong Prison in regional South Australia (the Prison being apparently unable to facilitate a video-link for ATY19’s appearance), and the Minister appearing by video-link from Adelaide.
Submissions
ATY19’s oral submissions
In ATY19’s oral submissions at final hearing (at Transcript pp 2-3 and 5-7) ATY19 said:
(a)all the “details have been given to my lawyer” who “knows everything, and he’s the one doing all the proceedings”;
(b)he was undergoing counselling for trauma that he had suffered in Sri Lanka;
(c)he was becoming a better person and wanted to have a good life by staying in Australia;
(d)he did not disclose his being in the LTTE earlier because he was scared to do so for fear of being indefinitely detained as a terrorist;
(e)he understood that there were inconsistencies in his versions of events, and that he did not disclose some information because of the trauma he had suffered, and because of the personal and family shame involved;
(f)he was not given sufficient time to answer or explain during interviews and was told by the “immigration officers and lawyers” just to say “yes” or “no” to the questions he was being asked; and
(g)that if everything had been done properly he would have been granted the SHE Visa, and he wanted to be re-interviewed.
Minister’s submissions
In written and oral submissions the Minister submitted that:
(a)in relation to ground 1:
(i)it pleads no jurisdictional error and was not sufficiently particularised;
(ii)the Authority was not required to undertake an investigation into the authenticity of the Police Memos when there was otherwise a proper basis upon which to doubt their reliability, and its findings in relation thereto were rational and reasonable; and
(iii)it was not legally unreasonable for the Authority not to exercise the discretionary power to get new information in relation to the veracity of the Police Memos; and
(b)in relation to ground 2:
(i)it was misconceived because ATY19 never put submissions to the Authority (or the Delegate) that his failure to raise his now alleged LTTE connection was because of a fear of detention as a terrorist; and
(ii)the Authority’s finding concerning ATY19’s alleged LTTE links was open on the evidence available to the Authority.
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; (2024) 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).
No 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”).
Ground 1
Ground 1 is as follows:
1.The IAA has rejected the letters that were sent to my family from the Terrorism Investigation Department in September 2017 without making any investigation to find out whether they were genuine.
Although the Minister complains about a lack of particularisation of jurisdictional error in ground 1 it is tolerably clear that, at the very least, ATY19 asserts a jurisdictional error of the type identified in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, namely a failure to make an obvious inquiry (ATY19 uses the phrase “any investigation”) about a critical fact, the existence of which is easily ascertained. In particular, it appears that ATY19 asserts that the Authority ought to have made inquiries to endeavour to find out if the Police Memos were, or were not, genuine. Further, ground 1 might also be asserting that the failure by the Authority to undertake an investigation into the genuineness of the Police Memos was legally unreasonable in the manner identified in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 (“Li”) at [28] per French CJ and [66] per Hayne, Kiefel and Bell JJ. These two possible jurisdictional errors were clearly identified by the Minister’s written submissions. In the circumstances, ground 1 ought not be dismissed on the basis of a want of particularisation of an alleged jurisdictional error (as to which see 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. Also, ground 1 does not, as was asserted by the Minister, seek impermissible merits review (as to which see Wu Shan Liang) because:
(a)as set out above, ground 1 might give rise to two possible jurisdictional errors; and
(b)ground 1 does not seek to have the Court itself undertake any inquiry or investigation as to the genuineness, or otherwise, of the Police Memos.
In SZIAI at [25] – [27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ the majority in the High Court said:
[25]Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act [1958 (Cth) (“Migration Act”)] is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26]The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
[27]No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.
On a judicial review application under the Migration Act there is therefore no general duty to inquire, however, in some circumstances the failure to undertake a simple inquiry as to an obvious and critical fact may constitute a jurisdictional error: SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
SZTKV v Minister for Immigration and Border Protection [2014] FCA 903 (“SZTKV”) involved an application for leave to appeal from a decision of this Court (then the Federal Circuit Court) which was dismissed by the Federal Court: SZTKV at [13] and [32] per Siopis J. Before the then Refugee Review Tribunal (“RRT”) SZTKV had claimed, for the first time, that his wife and sister had been raped, and after the RRT hearing forwarded to the RRT a statement from a person said to be SZTKV’s wife asserting that a “physical outrage” had been committed upon her: SZTKV at [5]-[6] per Siopis J. The RRT had made strong adverse credibility findings against SZTKV based on the implausibility and inconsistency and unsatisfactory nature of his oral evidence, and placed no weight on the documentary evidence, and dismissed his review application: SZTKV at [7]-[8] per Siopis J.
Before the Federal Circuit Court ground 2 of SZTKV’s judicial review application was as follows: SZTKV at [9] per Siopis J:
2.The Tribunal made error not asking any questions to the author of the letters submitted by the applicant. Without any investigations or any queries. The Tribunal negated reality of the submitted documents and its genuineness, which is unreasonable and is not maintainable.
The Federal Circuit Court’s findings in relation to ground 2 of SZTKV’s judicial review application were summarised in SZTKV at [12] per Siopis J as follows:
In relation to ground two, the primary judge found that there was no obligation in the circumstances for the Tribunal to make any inquiries in relation to the genuineness of the documents upon which the applicant relied before the Tribunal. First, said the primary judge, the Tribunal had made “comprehensive” adverse credibility findings in respect of the applicant’s oral evidence. Secondly, said the primary judge, the Tribunal had in fact considered the applicant’s documents on their face, but the content of the documents “tended to add to the Tribunal’s concerns rather than alleviate them”.
In SZTKV at [25] per Siopis J the Federal Court held, citing SZIAI, that the Federal Circuit Court did not err in finding that it was open to the RRT to disregard the documentary evidence provided by SZTKV, without the Tribunal having to embark upon an inquiry as to whether the documents were genuine or not, as there was no duty upon the RRT to so inquire.
In SZTPJ v Minister for Immigration & Anor [2015] FCCA 1992 (“SZTPJ”) the Administrative Appeals Tribunal (“AAT”) had indicated that fraudulent documents were very common in SZTPJ’s home country of Bangladesh, and it appears that the AAT may possibly have been asked by SZTPJ to verify documents he had provided as to his involvement with a particular political party in Bangladesh or as to what other evidence was needed to prove his claim: SZTPJ at [77] per Judge Barnes. Having cited SZIAI the Federal Circuit Court went on to observe: SZTPJ at [79] per Judge Barnes, that:
… there is no general duty to inquire (SZTKV v Minister for Immigration and Border Protection [2014] FCA 903 at [25]). The circumstances of this case, including the exchange between the Applicant and the Tribunal set out above from p.45 of the Transcript of the first hearing, are not such as to establish that the Tribunal was under an obligation to make inquiries to “verify” the genuineness of all the supporting documentation submitted by the Applicant as appears to be contended. The Tribunal was not obliged to accept the genuineness of such documents. The circumstances before the Tribunal were not such as to indicate that there was a critical fact, the existence of which was easily ascertained, such that the Tribunal’s failure to make inquiries about the existence of that fact constituted a failure to review. Insofar as the Applicant may have intended to suggest that the Tribunal should have made or instituted calls to the persons whose telephone numbers were shown on letters of support, as in SZIAI at [26], the question of whether such documents contained false statements (for example, about the Applicant’s involvement in the BNP) “would not be able to be determined by calls placed to those telephone numbers”.
In BAW16 v Minister for Immigration & Anor [2016] FCCA 2830 (“BAW16”) at [25] per Judge Driver it was alleged that the AAT had failed to make inquiries of the Egyptian Police to check the bona fides of police reports the AAT determined to be false. The then Federal Circuit Court held: BAW16 at [26] per Judge Driver (footnotes omitted, but quoting from SZIAI and citing SZTPJ), that:
It is well-established that there is no general duty to inquire in decision-making proceedings such as those in the present matter, though “... a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”. There was no such duty on the Tribunal in the present circumstances. The Tribunal was not under an obligation to make inquiries to “verify” the genuineness of all the supporting documentation submitted by the applicant; nor was it obliged to accept the genuineness of such documents.
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196 at [25] per Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ (footnotes omitted) the High Court observed that:
[25]The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.
Recently, in DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75 at [47] per Wigney, Hespe and Kennett JJ the Full Court of the Federal Court observed that:
… since the decision in SZIAI it has been emphasised that any such cases must be rare and exceptional (Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 at [60] (Kenny J)) and the fact that it is reasonable to make an inquiry does not mean that a failure to do so constitutes jurisdictional error (SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; 256 FCR 235 at [33] (the Court)).
In Li at [66] and [76] per Hayne, Kiefel and Bell JJ (footnotes omitted) the High Court dealt with the issue of legal unreasonableness, observing that:
66.This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
76.As to the inferences that may be drawn by an appellate court, it was said in House v The King [(1936) 55 CLR 499 at 505] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The Court notes that the Police Memos (which appear, with English translations, at CB 106-111) are handwritten on a pre-printed form headed with the printed phrases “Sri Lanka Police” and “Message Form”.
In the Delegate’s Decision the Delegate found that they were unable to verify the Police Memos as documentary evidence of the TID’s interest in ATY19 and that it could not be satisfied as to the credibility of the Police Documents, and therefore placed no weight on them: CB 137.
The Authority dealt with the Police Memos at CB 181-182 at [23]-[26] and gave plausible reasons for doubting the authenticity of the Police Memos, including the following:
(a)the lack of substantive content insofar as the Police Memos failed to specifically direct when, and to whom, and to what address, ATY19 was required to report to the TID;
(b)that it did not accept that such a vague reporting request would be issued in relation to a terrorism investigation;
(c)that ATY19’s evidence that the TID “might” have arrested one of his friends was not persuasive, and lacked any explanation as to the reason for the possibility of the friend’s arrest (and noting the fact that the Authority had found that ATY19 had not had any LTTE involvement, and that it was not satisfied that ATY19’s friends would have had such involvement);
(d)the timing of the issuance of the Police Memos, being:
(i)more than five years after ATY19 had left Sri Lanka; and
(ii)shortly after ATY19 had made his SHE Visa application; and
(e)finding that ATY19 was not of:
(i)adverse interest to the Sri Lankan authorities when he left Sri Lanka; and
(ii)of any interest to the TID.
The invitation to the Authority to make inquiries about the Police Memos misconceives the role of the Authority. The Authority’s task was to conduct a review, not an inquiry, and not to make its own inquiries about ATY19’s claims, other than in respect of the most straightforward matters: SZIAI at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, and it was not obliged to make inquiries to facilitate ATY19’s case being better put to the Authority: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010)183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CJ and [49] per Emmett J. There was no evidence before the Authority (and further none on this Judicial Review Application in circumstances where the authenticity of the Police Memos squarely arose in the Delegate’s Decision: see [25] above) which might have established that the task of establishing the authenticity of the handwritten Police Memos emanating from a local police station somewhere in Sri Lanka would have been an easily or simply resolvable issue, able to be made by reference to readily available information: SZIAI at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
To adopt the language used in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [135] per Crennan and Bell JJ, it cannot be said that the Authority’s reasons for not undertaking any inquiry into the authenticity of the Police Memos “were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for decision” and “[n]or could it be said that there was no probative material which contradicted the … claims [of the visa applicant]”. In those circumstances it cannot be said that there was a constructive failure (or any failure) to exercise jurisdiction by the Authority.
In relation to legal unreasonableness it is fair to observe (and perhaps to repeat [28] above) that the Authority’s reasoning was not unintelligible or illogical, and that having regard to the law with respect to the duty to inquire set out above at [13]-[22], the non-exercise of the discretion to undertake inquiries into the authenticity of the Police Memos fell within the area of decisional freedom afforded to an administrative decision-maker: Li at [66] per Hayne, Kiefel and Bell JJ. Further, the Courts will not lightly interfere with the exercise of a statutory power involving an area of discretion: Li at [28] per French CJ and [66] per Hayne, Kiefel and Bell JJ; Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; (2019) 267 FCR 513; (2019) 77 AAR 268; (2019) 365 ALR 202 at [37] per Griffiths J. In the circumstances the non-exercise of the discretion to make undertake inquiries into the authenticity of the Police Memos was not legally unreasonable.
Having regard to both the law and the factual circumstances set out at [13]-[30] above the Court is satisfied that ground 1 of the Judicial Review Application is not made out and does not establish jurisdictional error in the Authority Decision.
Ground 2
Ground 2 is as follows:
2.When assessing my credibility, the IAA has failed to take into account my fear of revealing my involvement with the LTTE and smuggling because of the risk of being indefinitely detained as a terrorist, and why this meant that that I did not reveal information straight away.
The Authority dealt with the ATY19’s claims of involvement with the LTTE at CB 179 at [14]-[17] as follows:
14.At the interview with the delegate, the applicant claimed for the first time that he was actively involved in the LTTE. Initially when asked by the delegate about his LTTE involvement the applicant indicated he was part of the sea tigers. Then he clarified that he was not a member of the LTTE but only a supporter, as such he did not have a uniform or an LTTE name. He claimed that from 2007 to 2009 he transported food and medicine by the LTTE by boat. He said that he did this roughly three days per week, 16-17 times per day. He claimed that he had no other family member who were involved in the LTTE.
15.I have considerable doubts in relation to the extent of applicant’s claimed LTTE involvement. While he mentioned LTTE training of three to four days in his visa application, he did not mention his claimed six months training or his roughly two years of transporting goods for the LTTE. I appreciate that at the interview the delegate encouraged the applicant to provide all relevant information including any details that were missing form his visa application. However, I also note that the visa application was prepared with the assistance of a registered migration agent, and differences in the evidence and not properly be described as minor omissions. The significant variation in the nature and length of his claimed LTTE involvement between his visa application and his evidence at interview causes me to doubt the veracity of the applicant’s narrative. He has offered no explanation for his failure to include these particulars in his visa application, which was prepared with assistance from a representative.
16.I also note that in the statement accompanying his visa application, the applicant indicated that following the compulsory LTTE training in June 2006 that he feared the ‘LTTE would make me do something’, so he left Sri Lanka for India. However, he then claimed to have returned to Sri Lanka in earlier 2007 and commenced transporting good for the LTTE. I do not consider it plausible that on his return to Sri Lanka around six months later he would then risk his safety transporting goods on LTTE boats, particularly as often and over such a lengthy period of three days a week from 2007 to 2009.
17.Cumulatively I am not satisfied the applicant has been truthful in respect of his dealings with the LTTE. His evolving narrative of the duration of his training and extent of his role is not credible in the circumstances. That the claimed six months training after the protest appears to be irreconcilable with his claimed presence in India at the same time also creates significant doubts. Furthermore, I do not consider it plausible that he would depart Sri Lanka at least in part due to fear of the LTTE, then six months later return and start transporting goods for them. Also that neither of the letters from the reverend make any reference to the LTTE, the applicant’s involvement with them, or him ever fearing harm from them creates further doubt in respect of the applicant’s narrative. Country information indicates, and I accept, that during the conflict it is unlikely that a young Tamil civilian would have avoided any contact with the LTTE.5 As such I can accept that he may have had some dealings with the LTTE from time to time. However, given my concerns with the applicant’s evidence, I do not accept that he ever undertook any LTTE training or that he provided the LTTE movement with any support including transporting goods, or that he otherwise engaged any other LTTE related activities.
As submitted by the Minister, ground 2 is misconceived. At no stage did ATY19 make any submissions to the Authority or the Delegate to the effect that he did not raise his links to the LTTE earlier because he was fearful of indefinite detention for terrorism. The Authority’s finding that ATY19 “offered no explanation for his failure to include these particulars [with respect to his LTTE affiliations] in his visa application”: CB 179 at [15], was a finding reasonably open to the Authority on the materials and evidence before it, based on rational grounds and arrived at on consideration of matters logically probative to ATY19’s credibility on this issue: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ, and were plainly not made on an illogical or unreasonable or other reviewable basis going to the jurisdiction of the Tribunal: CQG15 v Minister for Immigration & Border Protection & Anor [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [36]-[44] per McKerracher, Griffiths and Rangiah JJ; SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [27]-[31] per Flick J. Further, it cannot be said that no other rational or logical decision maker could have adopted the same reasoning as the Authority on this issue on the same materials and evidence: SZMDS at [135] per Crennan and Bell JJ.
Having regard to both the law and the factual circumstances set out at [32]-[33] above the Court is satisfied that ground 2 of the Judicial Review Application is not made out and does not establish jurisdictional error in the Authority Decision.
Jurisdictional error otherwise
The Court is cognisant that ATY19 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 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 at [26] per Judge Lucev.
In relation to the matters raised in ATY19’s oral submissions the Court notes that, despite having had the opportunity on filing the Extension of Time Application, and as a consequence of the Registrar’s Orders and the Court’s March 2023 Orders, ATY19 filed no evidence in support of the Judicial Review Application but did file an affidavit in support of the Extension of Time Application. Thus none of the matters raised in ATY19’s oral submissions (set out at [7] above) were the subject of any evidence filed in this Court. Insofar as those matters are concerned the Court observes that:
(a)in relation to the assertion that all the “details have been given to my lawyer” who “knows everything, and he’s the one doing all the proceedings”, there has never been a lawyer on the record or otherwise apparently acting for ATY19 in these proceedings. When the Extension of Time Application was filed it was filed by ATY19 personally with an address for service in the Adelaide suburb of Elizabeth North. No further notice of address has been filed by ATY19, although it now appears he is incarcerated in Mobilong Prison in regional South Australia. As there is no right to legal representation in migration proceedings in this Court: SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; WZARX v Minister for Immigration and Border Protection [2014] FCA 423 at [14] per McKerracher J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev nothing turns on the issue in any event, and it does not provide a basis for finding jurisdictional error in the Authority Decision;
(b)in relation to ATY19’s observations that he was undergoing counselling there is no medical or allied health evidence as to that counselling, what it entails or entailed, when it commenced or why ATY19 was undergoing the counselling, and nothing to link what appears to be current counselling to his capacity to have appeared at the SHE Visa Interview before the Delegate (where he was in any event represented by a migration agent: CB119-121) or to have made submissions to the Authority (where he was represented by a solicitor/migration agent: CB 165-166), albeit that no further submissions were made to the Authority by or on behalf of ATY19. Whilst ATY19’s current counselling may be, as he submitted, helpful to him in coming to terms with issues in his past, it does not provide a basis for finding jurisdictional error in the Authority Decision in circumstances where there is no evidence that any issue as to ATY19 being counselled, or the effects of matters about which he may have been counselled, was raised in the proceedings before the Delegate or the Authority; and
(c)as to the submission that ATY19 was not given sufficient time to answer or explain during interviews and was told by the “immigration officers and lawyers” just to say “yes” or “no” to the questions he was being asked, that is not a complaint that has any substance so far as the Authority is concerned because, consistent with the general intent of s 473DC(2) of the Migration Act, ATY19 was not interviewed by the Authority. Further, the submission is at odds with Authority Decision where the Authority observed that at the SHE Visa Interview:
(i)ATY19 made claims as to his involvement with the LTTE, and specifically noting, for example, that:
(A)“[a]t the interview … [ATY19] claimed for the first time that he was actively involved in the LTTE … [and] indicated he was part of the sea tigers” and then “clarified that he was not a member of the LTTE but only a supporter”: CB 179 at [14]; and
(B)ATY19 “claimed that … he transported food and medicine … [for] the LTTE by boat”: CB 179 at [14];
(ii)“the delegate encouraged … [ATY19] to provide all relevant information including any details that were missing from his … [SHE Visa] application”: CB 179 at [15];
(iii)ATY19 “mentioned … that he was singled out at the church following the demonstration by a specific EPDP member”, with ATY19 naming the EPDP member and asserting that the named member having identified ATY19 as an LTTE member then arrested ATY19: CB 180 at [19];
(iv)ATY19 “indicated he suspected the TID had obtained some information about … [ATY19] transporting goods for the LTTE and that they had been digging the grounds of his house, and that is why they were now interested in him”, and “added that … [the LTTE] did not locate any weapons at his house but had located weapons in the area where he stored his fishing boat and equipment”: CB 181 at [24]; and
(v)ATY19 “indicated he now believes he is on a TID list of people involved with the LTTE “: CB 181 at [24].
The Delegate’s Decision notes at CB 131 that at the SHE Visa Interview ATY19 “made relevant additions to his written claims” which the Delegate summarised as follows:
•From 2007 to 2009, he transported food and medicine for the LTTE on LTTE boats.
•The applicant paid an agent to arrange his legal departure via the airport from Sri Lanka to Malaysia.
•In 2017 the police hand delivered letters to his family requesting he report to the Terrorism Investigation Division (TID) in Kilinochchi and then to Colombo.
•In 2017 when the TID delivered message to his family requesting he report, the TID beat and demanded money from his brother.
The Delegate’s Decision also notes that made ATY19 various claims at the SHE Visa Interview including the following:
(a)that he travelled illegally, twice (in 1985 and 2006), with his family from Sri Lanka to India: CB 132;
(b)that he was issued a Sri Lankan passport in 2010 which he utilised to legally depart Sri Lanka for Malaysia: CB 132;
(c)that there was a bomb blast at a church in 2006 and that he was a member of a church youth group: CB 132;
(d)that he was forced to undergo basic training with the LTTE for six months, and was a LTTE supporter with the Sea Tigers: CB 133, and the Delegate went on to observe that they asked ATY19 if he:
(i)“worked or supported the LTTE after the training, he initially responded yes and when I asked how he responded that he did nothing for the LTTE after the training”: CB 133; and
(ii)“was involved in any other activities for the LTTE, he responded in the negative … [and] also stated that no members of his family were associated or involved with the LTTE”: CB 133.
(e)“that from 2007 to 2009 he transported goods … for the LTTE, illegally by boat. … [and] added that he assisted in the transport of goods with ‘many people’. That he loaded and unloaded goods on and off LTTE boats and that he would travel on LTTE boats with a person named … [name deleted]”, and that the Delegate asked ATY19 “how many times he transported goods for the LTTE, he responded many times” and when asked “how often, he responded ‘16 to 17 times a day continuously, three days a week’”: CB 134;
(f)the involvement of the EPDP including:
(i)one member of the EPDP whom he named, in relation to events following the bombing of the church, and how the named EPDP member had filmed the public who had gathered at the church and had identified ATY19 as a LTTE member: CB 134-135;
(ii)ATY19’s explanation that after he returned to Sri Lanka in 2007 the EPDP “were waiting for an opportunity to target him”, and that until 2009 he was in an LTTE controlled area and had protection from the EPDP, but that in 2012 (following the defeat of the LTTE by the Sri Lankan Government) he had no protection from the EPDP: CB 135;
(g)that after he was assaulted in April 2012:
(i)he was admitted to hospital to treat his injuries;
(ii)went to reside at the church for refuge;
(iii)ceased working as a fisherman, but was monitoring the accounts of his fishing boats from the church;
(iv)obtained a visa for Malaysia with the assistance of his priest and an agent; and
(v)bribed the agent to arrange his undetected passage through the airport in Sri Lanka: CB 135;
(h)that when asked by the Delegate “if the reason these men attacked him [in April 2012] was due to their drunkenness … [ATY19] responded in the affirmative and added that they had weapons and that he was not able to report the incident to the police”: CB 135; and
(i)that in relation to the TID:
(i)the TID had made enquiries with ATY19’s family about his whereabouts as the TID “wanted to know if he was continuing to do things for the LTTE and they were also looking for him”: CB 136;
(ii)ATY19 suspected that the TID had “some information about him transporting goods for the LTTE and that they had been digging the grounds of his house … did not locate any weapons at his house but had located weapons where he stored his fishing boat and equipment”: CB 136; and
(iii)submitted the Police Memos to the Delegate, and in response to queries from the Delegate explained:
(A)why there was no TID contact information or address to attend on the Police Memos: CB 136; and
(B)that the Police Memos were genuine documents: CB 137.
The Court also notes that ATY19 was advised by the Department, at the time the Delegate’s Decision was sent to ATY19, that a copy of the audio recording of the SHE Visa Interview was available if he would like a copy: CB 125.There is no evidence that ATY19 ever requested a copy of the audio recording of the SHE Visa Interview.
In the circumstances set out at [36(c)]-[39] above it is plain that:
(a)there was no limitation on the evidence that ATY19 was able to give at the SHE Visa Interview, or any restriction imposed such that he could only give “yes” or “no” answers at the SHE Visa Interview, and the Delegate’s Decision demonstrates that ATY19 was not only requested to respond to many issues and did so, and to provide additional information on occasions and did so, but that he also on occasion voluntarily added to some of his responses; and
(b)ATY19 had the opportunity to obtain a copy of the audio recording of the SHE Visa Interview, but did not do so, or at the very least did not seek to provide a copy to the Authority or to this Court, from which it can be inferred that the audio recording would not have assisted his submission that he could only give “yes” or “no” answers at the SHE Visa Interview.
As to the submission that had everything been done properly ATY19 would have been granted the SHE Visa:
(a)the evidence does not:
(i)support the submission insofar as it suggests that “everything” was not done properly by either the Authority or the Delegate; and
(ii)indicate that anything at all was done improperly by either the Authority or the Delegate; and
(b)it is no more than a plea for this Court to act contrary to long established principles in judicial review applications under the Migration Act by undertaking impermissible merits review of the Authority Decision: Wu Shan Liang.
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.
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)ATY19’s Extension of Time Application under s 477(2) of the Migration Act seeking an extension of time in which to file the Judicial Review Application under s 476 of the Migration Act is to be granted; and
(b)the Authority Decision is not affected by jurisdictional error and the Judicial Review Application is to be dismissed,
and there will be orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 1 August 2024
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