AXQ17 v Minister for Immigration

[2018] FCCA 1209

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1209

Catchwords:
MIGRATION – Review of decision by the Immigration Assessment Authority – Applicant claimed to fear harm in Sri Lanka as a result of being suspected of having links with LTTE – whether Applicant met the requirements in the definition of “refugee” in s.5H(1) Migration Act 1958 (Cth) – whether Authority considered country information – whether the Authority took into account a relevant matter – Applicant attempted to introduce “new information” – whether Authority made jurisdictional error in applying s.473DD of the Migration Act 1958 (Cth) – no jurisdictional error – Applicant seeks impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 31, 36, 46A, 65, 473CB, 473DC, 473DD, 473FB, Pt.7AA

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: AXQ17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 693 of 2017

Judgment of: Judge Baird

Hearing date: 5 April 2018

Date of Last Submission: 5 April 2018

Delivered at: Sydney

Delivered on: 17 May 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr L Dennis of Minter Ellison Lawyers

ORDERS

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 693 of 2017

AXQ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority dated 10 February 2017.  In that decision the Authority affirmed a decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection, not to grant the Applicant a Safe Haven Enterprise (Class XE) Visa (SHEV). The decision was affirmed because the Authority found that the Applicant did not meet the requirement of the definition of refugee in s.5H(1) of the Act, and did not meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Act.

2. The Applicant is a citizen of Sri Lanka, and a Tamil Hindu. He arrived in Australia on 21 September 2012, and is an unauthorised maritime arrival. On 30 November 2015, the Minister exercised his discretion under s.46A(2) of the Act, and invited the Applicant to make a valid application for a SHEV. The Applicant applied for a SHEV on 17 March 2016. On 11 October 2016, the Delegate refused to grant the Applicant that SHEV. The Minister referred the Delegate’s decision to the Authority for review pursuant to the fast track review process in Part 7AA of the Act.

3. On 9 March 2017 the Applicant commenced the proceeding in this Court for judicial review.  The Applicant filed an amended application on 20 November 2017, although the consent orders made 22 June 2017 required that step to be done by 6 November 2017.  At the hearing on 5 April 2018, I granted leave to the Applicant to file and rely on that amended application.  The amended application contains three grounds, each of which is particularised.  The Applicant confirmed that the amended application replaces the earlier application, and that he relied on each ground in the amended application.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the Minister may grant a visa. Section 65(1)(b) of the Act provides that if the Minister is not satisfied about those matters, then the Minister must refuse to grant the visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One such class of visa is a SHEV.

2. Section 36(2)(a) of the Act, relevantly, provides that a criterion for a protection visa (and in the present case, a SHEV), is that an applicant is a non-citizen in Australia, of whom the Minister is satisfied that Australia has protection obligations because the person is a refugee, as defined in s.5(H)(1) of the Act.

3. Section 36(2)(aa) of the Act then sets out the complementary protection criterion for a protection visa, and sub‑s.36(2A) of the Act defines the phrase “significant harm” appearing in sub‑s.36(2)(aa).

4. Part 7AA of the Act was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Part 7AA provides for review of “fast track reviewable decisions” – decisions to refuse to grant protection visas to certain “fast track applicants”, which includes persons who arrived in Australia as “unauthorised maritime arrivals” on or after 13 August 2012 and before 1 January 2014.  When such a decision is made, it must be referred to the Authority for review together with specified “review materials”.  The Authority may either affirm the decision or remit the decision to the Minister for reconsideration, but is not authorised to set the decision aside or substitute its own decision.

5. It is not in dispute that the Applicant was a fast track applicant, and a fast track review applicant, or that the Delegate’s decision is a fast track decision and a fast track reviewable decision: see s.5(1) of the Act.

6. Division 3 of Part 7AA (ss.473DA to 473DF) deals with the manner in which reviews are to be conducted by the Authority.  Subject to exceptions, the Authority is required to review decisions on the papers.

7. One such exception is provided in s.473DC(1) of the Act, which, relevantly, is as follows:

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

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

   (b)the Authority considers may be relevant.

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

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

   (a)in writing; or

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

8. Section 473DD of the Act sets out the circumstances in which the Authority may consider “new information” as follows:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of his SHEV application, in which he claimed to fear harm on account of his Tamil ethnicity, his imputed support for the Liberation Tigers of Tamil Eelam (LTTE), his family’s perceived wealth, and as a failed asylum seeker who departed Sri Lanka illegally.  In support of those claims (which I have summarised by reference to the Minister’s written submissions, the statutory declaration accompanying the Applicant’s SHEV application and from [6] of the Authority’s decision) the Applicant recounted the following events:

   (1)in 1986 his older brother was abducted and shot by a paramilitary group;

   (2)in 1991 he was detained and beaten by the Sri Lankan Army (SLA) at their Nellamanai camp on suspicion of being involved or affiliated with the LTTE.  2 or 3 other Tamils were murdered on that day.  He later learnt that about 20 Tamils were rounded up by the sea, and shot dead by the SLA.  He escaped by paying a bribe to an SLA member, but was required to constantly report at the SLA camp on Sundays;

   (3)in 1992, he moved to Colombo to seek safety;

   (4)in 1994, he fled to Saudi Arabia to work as a labourer, where he stayed and worked until 2000;

   (5)he returned to Sri Lanka in October 2000, and 5 days later 2 Tamil men came to his home, threatened him, asking him for money as he had returned from abroad.  They continued their harassment towards his family until 2001.  His mother owns a valuable bus, and he believes they were targeted due to their wealth, which is above common Sri Lankan standards;

   (6)in 2001, he returned to Saudi Arabia as he was fearful for his life, and remained there until 2003;

   (7)in about 2003, he returned to Sri Lanka.  In about November 2003, members of the Tamil Makkal Viduthalai Pulikai (TMVP) came to his mother’s home, close to his home, and demanded some electrical equipment from her to assist in building their offices throughout the country.  His mother felt fearful, and purchased the requested items for the TMVP, as she had heard from neighbours these individuals were violent, and could harm her if she did not heed their demands;

   (8)between November 2003 and June 2012, his family members were constantly targeted and harassed for money, due to their wealth.  This occurred on at least 10 to 12 occasions.  They have always demanded money in a threatening manner, and also threatened to abduct family members, or shoot them if they did not make payment.  His mother was fearful, as his brother had been shot dead previously (in 1986), by unknown assailants, so she would often be forced to provide these individuals with their requested payments or supplies;

   (9)he was harassed by police every day;

   (10)in about June 2012, he was out having a beer with his friend, Raja, when a man approached Raja in the bar and said, “The boss wants to see you”.  The Applicant had no idea what he was talking about.  Raja left with the man soon after, told the Applicant to look after his bag, and that he would return shortly.  Raja did not return, so the Applicant took his bag and left.  The next morning he noticed a corpse on the road.  He learnt this was Raja.  The Applicant openly searched for Raja, and many people became suspicious towards him.  He became fearful of the consequences of this, after what had happened to Raja;

   (11)on 20 August 2012, 3 men came to his home, one of whom entered the front yard, while the other 2 stood by the gate outside.  The man inside was armed with a pistol.  The Applicant immediately noticed the gun and fled through the back door of the property, and stood around the corner to observe what these men were doing.  He then fled to his relative’s home in the same location, and stayed there for 2 days.  He was too fearful to tell his wife and children what he saw.  He believed that the men were targeting him, and not them.  He sent his relative back to his home to collect his family, and bring them to his mother’s home, following which they met him at his relative’s place.  He was fearful after this incident, as he believes these men were searching for him to kill him.  For this reason, he decided to flee Sri Lanka.  He departed Sri Lanka in September 2012. 

Interview with the Delegate and the Delegate’s decision

1. The Applicant was interviewed on 20 September 2016, to discuss his claims in his application for a SHEV.  During that interview, the Applicant made a number of amendments to his original claims.  He also further claimed that:

   (12)in 2015 a Muslim person, driving a three-wheeler, hit and killed his brother.

2. During the interview, the Applicant also clarified that he was detained in 1991, due to suspicion that he was a supporter of the LTTE.  He said he went to Colombo, and stayed there in a lodge to avoid harassment in his home town of Batticaloa.  He then moved to a camp set-up by the Red Cross for displaced Tamils.  The Delegate found this claim to be plausible.

3. The Applicant also claimed that he feared of being arrested, detained and even tortured should he be returned to Sri Lanka as he left that country illegally.  The Delegate accepted that he may be questioned, or even charged under the country's Immigrant and Emigrant Act (I&E Act) on return to Sri Lanka because he left illegally.  However, the Delegate relied on DFAT information that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally, but fines have been issued to act as a deterrent towards joining boat ventures in the future.

4. The Delegate was not satisfied that the Applicant was a refugee as defined by s.5H(1) of the Act, and therefore was also not satisfied that he is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act. The Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Sri Lanka, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act, and concluded that he is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.

The Authority’s Decision

1. The Authority had regard to the material referred by the Secretary under s.473CB of the Act. The Authority accepted much of the Applicant's account, but found that his claims did not give rise to a real chance of serious harm or a real risk of significant harm if he was returned to Sri Lanka.

New Information but not exceptional circumstances

1. The Authority received a submission from the Applicant on 4 November 2016.  Attached to that submission were two untranslated documents which the Applicant claimed were his brothers' death certificates.  The Applicant claimed he was unable to provide these at the time of his SHEV interview as he was unaware that it was necessary for submission.  He also claimed that this was personal information which may affect the decision of the Authority.

2. The Authority stated that it was satisfied that the documents were new information as they were not before the Delegate. On 4 November 2016, the Authority advised the Applicant that the documents must be translated. In its decision the Authority stated that to date, namely, 10 February 2017, the date of the decision, no translations of the documents had been provided. The practice direction for an applicant’s representatives and authorised recipients given under s.473FB of the Act by the Authority at [25] expressly states that all documents that are not in English should be translated into English, and both the documents and translations should be provided, and that the translator have appropriate translator level accreditation.

3. The Authority noted that the Delegate accepted that the Applicant's elder brother had been shot and that his other brother had been recently killed in a road accident. The Applicant did not indicate what other information in the death certificates would be of relevance to his claims and the assessment before the Authority. Although the Applicant had a suspicion about the circumstances surrounding the latter brother’s recent death in 2015, the Authority noted that the Applicant claimed that the police concluded that it was a road accident. The Authority concluded that given it was unable to read the contents of the death certificates, and that the Delegate had accepted that his brothers had died and that the police had concluded that his brother died in a road accident in 2015, it was not satisfied that there were exceptional circumstances for considering the new information under s.473DD(a).

The Authority’s findings and consideration

1. Accepting and rejecting claims as set out below, the Authority found that:

   (1)while the Applicant’s brother was shot and killed in 1986, the Applicant not been of any adverse interest to any group since then;

   (2)while the Applicant was detained, beaten and subject to reporting requirements in 1991, he was not specifically targeted, the reporting stopped, and he was of no further interest to any group;

   (3)in light of his inconsistent evidence, it did not accept that in 2000, 5 days after his return from Saudi Arabia, 2 Tamil men came to the Applicant’s home, threatened him and asked for money, or that he and his family were subject to continued threats;

   (4)it did not accept that harassment continued towards his family until 2001;

   (5)the Applicant worked in Saudi Arabia in 2001, and remained there until 2003, when he returned to Sri Lanka.  As the Authority did not accept that the Applicant was extorted between 2000 and 2001, the Authority did not accept that the Applicant travelled to Saudi Arabia during this time out of fear for his life;

   (6)the Applicant’s family were perceived as wealthy as they owned a bus, and as a consequence members of the TMVP came to the Applicant’s mother’s home in November 2003, and took electrical wiring and money from her as a form of extortion;

   (7)the Applicant’s mother/his family were the subject of a number of extortion incidents between 2003 and 2012 due to their perceived wealth and that the Applicant was not aware who was extorting his mother/family on these occasions;

   (8)the Applicant’s friend, Raja, was abducted and killed, accepting the Applicant’s claim that in approximately May/June 2012 he was having a beer with his friend, Raja, when a man approached Raja and said, “The boss wants to see you,” and that Raja left with him and told the Applicant to look after his bag.  The Authority accepted that the Applicant tried to find Raja’s home to return his bag, but when he did not find his residence, he went home with the bag and when no‑one claimed it, he gave it to his cleaner.  The Authority noted the Applicant’s claims that he did not know who killed Raja but he knows the boy with whom Raja left the bar;

   (9)as to the Applicant’s claims that on about 20 August 2012, 3 men arrived to his home in Batticaloa and that the Applicant believed the men were targeting him to kill him, the Authority noted the Delegate’s observation that it would be reasonable to expect that the men would force their way into the house to locate the Applicant, or force the occupants of the house to reveal where he was.  The Authority noted that in response to this observation, in his submission to the Authority the Applicant claims that they (presumably the men) did not want the police to come and ask questions.  The Authority was satisfied that this claim was speculation on the part of the Applicant;

   (10)the Applicant’s other elder brother was killed in 2015 after being hit by a three‑wheeler driven by a Muslim man.  Whilst the Authority appreciated that the Applicant had suspicions around the circumstances of his brother’s death, it was not satisfied that that brother’s death was related to the Applicant and/or Raja’s death, or because the Applicant’s family were being specifically targeted for any reason.  The Authority was not satisfied that the Applicant faces a real chance of harm on return to Sri Lanka as a result of the recent death of his brother.

1. The Authority noted there was no information before it of the reason or cause of Raja’s death.  Given this, and that no harm came to the Applicant after Raja’s death, and prior to his departure from Sri Lanka, the Authority was not satisfied that the Applicant was of any adverse interest to anybody, or was at risk of harm as a result of or in connection to Raja’s death.  The Authority concluded that it was not satisfied the Applicant faced a real chance of harm on return to Sri Lanka as a result of/or in connection to Raja’s death.

2. In the light of its factual findings and country information, the Authority did not accept that the Applicant would face harm on account of his or his family’s perceived wealth.  Having regard to country information and the Applicant’s profile, the Authority did not accept the Applicant would face harm on account of his Tamil ethnicity, being a Tamil male, any imputed support of the LTTE (decision at [36], [41]–[42]), or as a failed asylum seeker (at [41]). 

3. In relation to the Applicant’s illegal departure from Sri Lanka, the Authority found that any detention for several days in a Sri Lankan prison, or that being questioned, fined and detained for a short period do not cumulatively arise to the level of serious harm.  It found that the application of the I&E Act in respect of those Sri Lankans who have departed unlawfully is an application of the law which applies to all Sri Lankans, and it was not satisfied that the enforcement of this law was applied in a discriminatory manner.

4. For the above reasons, and considering the Applicant’s claims cumulatively, the Authority found that the Applicant did not meet the requirements of the definition of “refugee” in subs.5H(1) of the Act (at [50]). For the same reasons, the Authority found that the Applicant did not satisfy the complementary protection criterion (at [54]–[55], [61]–[62]). In this context, the Authority also made specific findings to the effect that the Applicant would not face significant harm on account of being a Tamil (at [53]), or his illegal departure (at [56]–[60]).

5. Having determined that the Applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s. 36(2)(aa) of the Act, the Authority affirmed the decision under review.

Grounds of the Amended Application

1. The grounds of review set out in the amended application are as follows (without alteration):

   Ground 1

   IAA made a jurisdictional error by not considering a relevant issue to discern a UN Convention nexus.

   Particulars:

   Applicant's was suspected of LTTE links in 1991 and on that basis IAA failed to discern a Convention reason.

   Applicant was able to depart Sri Lanka because he was actually not in the LTTE as only high profile LTTE suspects were unable to depart Sri Lanka.

   Ground 2

   IAA made a jurisdictional error by not considering the country information.

   Particulars:

   IAA failed to consider that LTTE supporters and suspects ate still persecuted in Sri Lanka.

   Ground 3

   IAA made a jurisdictional error by not considering a relevant matter.

   Particulars:

   IAA did not take into account that Applicant was extorted money and there is no reference to that in the IAA decision. has no relatives in Sri Lanka and as such will not be able to obtain bail if he is remanded to travelling illegally to Australia.

The proceeding before this Court

1. The Applicant appeared unrepresented before this Court, with the assistance of a Tamil interpreter.  At the outset of the hearing I explained to the Applicant that the role of the Court is not to reconsider the Applicant’s claims and reach different findings or conclusions.  I also explained to the Applicant that the only issue before this Court is whether or not the decision of the Authority had legal problems.

2. As I have said above, the Applicant confirmed that he relied on the grounds contained in an amended application filed on 20 November 2017.  I invited the Applicant to make submissions on each ground during the course of the hearing.

3. After the interpreter translated to the Applicant the Minister’s submissions, save repeating the grounds that I had previously read out to him, and the general scheme of the legislation, I asked the Applicant whether he had anything to say.  He submitted that everything he had told them is true and that what he said really and truthfully happened to him.

Ground 1

1. As to the first ground, I asked the Applicant what he meant.  He said that he meant that “I’m a refugee”. Whilst ground 1 does not directly reflect what the Applicant now contends, I am prepared to accept that by the first ground, as particularised, the Applicant contends that the Authority did not consider whether the Applicant satisfied the criterion of being a refugee and whether the Applicant had a well‑founded fear of persecution and accordingly is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations pursuant to s.36(2)(a) of the Act.

2. In trying to ascertain from the Applicant how the matters that he particularised supported ground 1, I asked him what he meant, to which he responded in substance that:

   (a)in 2004 he went to Saudi Arabia, there were no problems;

   (b)in 1991 it was a different issue;

   (c)in 2012 there were more issues and he had to leave the country.

   When I asked him how these related to ground 1 he did not provide any assistance.

3. I infer that the Applicant is submitting that, he was suspected of having LTTE links in 1991, and so the Authority should have concluded the Applicant was a refugee in 2012, but it failed to do so, and, secondly, that his ability to depart Sri Lanka in 2004 was because he was “actually not in the LTTE” and it was only high profile LTTE suspects that were unable to depart Sri Lanka.

4. At [8] of its decision, the Authority summarised s.5H(1) of the Act, and at [9] it set out certain components of what constitutes a well-founded fear of prosecution and the meaning of well-founded fear of persecution under s.5J. The Authority considered the Applicant’s claims by reference to, and applied, the relevant legal criteria. It is clear that the Authority did review the Applicant’s claims and the events recounted by him, and whether the Applicant met the requirements of the definition of “refugee” in sub‑s.5H(1) of the Act, or the complementary protection criterion under the Act.

5. To the extent that, in substance, ground 1 seeks an impermissible merits review, it is not for this Court, in the circumstances, to review the merits of the Authority’s decision, and I do not propose to:  see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 at [31].

6. The Authority made dispositive findings on the issues raised in ground 1 and its particulars, and the matters submitted by the Applicant at hearing.  I find that the adverse findings it made were open to the Authority, on the material before it, for the reasons it gave: see Authority’s decision at [16], [36] and [41] to [42].

7. As to particular (a), the Authority did consider and accept the Applicant’s claim that he had been detained in 1991 for a number of days on suspicion of being associated with the LTTE.  It accepted that the Applicant was thereafter required to report every week but that he stopped doing so after four months: (at [15]-[16]).  The Authority observed that the Applicant had not claimed to have been of any further interest to the Sri Lankan authorities due to the 1991 incident and/or for failing to continue to report thereafter.  The Authority was satisfied that the Applicant was not specifically targeted due to suspicion of LTTE involvement, but was the subject of a general roundup in his area.

8. The Authority also noted (at [16]) that the Applicant had travelled to Saudi Arabia twice, and returned to his home area on each occasion, and was not questioned at the airport in relation to any suspicion of involvement with the LTTE, and he has not claimed that the local Sri Lankan authorities took an adverse interest in him due to his 1991 arrest, or because he did not continue to report as required.

9. At [36] the Authority referred to country information.  The Authority was not satisfied that the Applicant fitted the profile of an activist or separatist, and the Authority further was not satisfied, on the information before it, that Tamils/males from the east (the home province of the Applicant), are imputed to be supporters/sympathisers/ members of the LTTE, or are targeted and subjected to harm for this reason.  The Authority gave weight to DFAT’s more recent assessment in 2015, that returnees are treated according to standard procedures, regardless of their ethnicity and religion.

10. The Authority accepted that Sri Lankan authorities continue to actively seek out former LTTE members, and remain sensitive to the re-emergence of the LTTE throughout the country. However, the Authority did not accept that the Sri Lankan authorities maintained an adverse interest in the Applicant after he was detained for several days in 1991, and did not continue to report as required. The Authority was not satisfied the Applicant will be arrested and harmed on return at the Sri Lankan airport, or in his home area, on this basis (at [41].)

11. The Applicant’s second particular is unsupported and speculative.  Further, as I have stated at [38], the Authority observed that the Applicant did not claim that the local Sri Lankan authorities took an adverse interest in him due to his 1991 arrest, or because he did not continue to report as required.

12. Ground 1 is not made out.

Ground 2

1. Ground 2 is an assertion that the Authority did not consider country information.  It is particularised by the statement that Authority failed to consider that LTTE supporters and suspects are still persecuted in Sri Lanka.  The Applicant submitted, “I have issues and I have individual problem and I have ground through persecution.”

2. Contrary to the Applicant’s assertion, the Authority did consider a number of different sources of country information, including at [23], [26], [36], [38], [41] to [48], and [57].

3. Having considered country information, the Authority found that Tamil males from the Eastern Province, such as the Applicant, were not imputed to be supporters or sympathisers or members of the LTTE, and were not targeted or harmed for this reason (see at [36], [41] and [42]).

4. To the extent that by ground 1 or ground 2 the Applicant complains that the Authority failed to find that he was an LTTE supporter, or would be suspected of being a supporter, that contention invites this Court to engage in an impermissible merits review: see Wu Shan Liang at [31], above at [35].

5. Having found that the Applicant would not be considered an LTTE supporter, the Authority was not required to consider any risk of harm faced by the Applicant on the basis that he was one (see at [41]).

6. Accordingly, I find that this ground is not made out.

Ground 3

1. By ground 3 the Applicant contends that the Authority fell into error because it did not consider a relevant matter, which matter the Applicant particularises as (i) the Applicant was extorted money and that there is no reference to that in the Authority decision, and (ii) has no relatives in Sri Lanka and as such will not be able to obtain bail if he is “remanded to travelling illegally to Australia”.  I clarified with the Applicant through his interpreter that by “remanded to travelling illegally to Australia”, what the Applicant meant was that he would be remanded because he has travelled illegally to Australia.”

2. Contrary to the claim of the Applicant, the Authority did consider the Applicant’s claims in relation to extortion.  It did not, however, accept them.

3. The Authority records in its decision that the Applicant gave inconsistent evidence in respect of his claims to have been subjected to extortion in his interview before the Delegate; that he alleged that many of the questions he was asked were confusing, and that he misunderstood these questions, which made his statement appear to be inconsistent.  At [21] of the decision it records its consideration of the Applicant’s claims, that it listened to the recording of the interview with the Delegate and the exchange with the Applicant on the issue, and concluded that the inconsistent evidence could not be attributed to the Delegate’s questioning or the Applicant’s confusion.

4. It is clear that the Authority considered and had regard to submissions made by the Applicant on 4 November 2016 regarding to questions during his protection visa interview and that the Authority has concluded, after consideration, that it does not accept the Applicant’s claims.  It was open to the Authority, acting reasonably, to conclude as it did, on the evidence and material before it and having considered the recording of the interview.

5. Contrary to the Applicant’s statement in the particulars to ground 3 that he has no relative in Sri Lanka and as such will not be able to obtain bail, the evidence before the Authority was that the Applicant does have family in Sri Lanka.

6. Based on country information, the Authority accepted that there was a real risk that the Applicant will be questioned by the Sri Lankan authorities on return and charged with an offence under the I&E Act.  Country information indicated that if found guilty, it is likely he will be fined and then released.  The Authority found that if the Applicant pleads not guilty he will likely be granted bail, and he may need to wait for a family member to come to Court to collect him.  I note that the Authority states (at [46]) that the Applicant had provided evidence that his family remain in Batticaloa and other family members continue to reside in Sri Lanka, and that there was no information before the Authority to indicate that a family member would be unable to collect the Applicant from Court if required.

7. The Applicant does not point to any information placed before the Authority to the contrary effect.  Indeed, I note that the Authority had before it the departmental file relating to the Applicant, and that part of the Applicant’s SHEV application is form 790B, part B signed by the Applicant in which the Applicant declared as at 14 March 2016, to the Applicant’s family composition and identified that his spouse, son and two daughters were all resident in Batticaloa, Sri Lanka.

8. Ground 3 fails.  The Authority had evidence before it that the Applicant had family remaining in Sri Lanka, and he did not claim before the Authority, or at any earlier stage, that he would be unable to make payment to obtain bail (cf. Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069). Further, as the question of bail was discussed in the Delegate’s decision, the Applicant was on notice that his ability to pay personal surety or have a family member act as guarantor was in issue before the Authority.

Issue of new information

1. The Minister raised a further issue for the Court’s review: the Authority’s treatment of the untranslated death certificates provided to the Authority by the Applicant on 4 November 2016, which I have referred to above at [18] – [20]. 

2. The requirements of sub-ss.473DD(a) and (b) of the Act are cumulative: BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [256]. It is apparent from the Authority’s reasons that it did take into account whether the information met part of the requirements of sub‑s.473DD(b)(i), in so far as it accepted that the information was not before the Delegate, and also that it considered whether there existed exceptional circumstances as required by sub‑s.473DD(a) of the Act, and concluded that there were not such circumstances. It is not apparent, however, whether the Authority considered whether or not the information was information that could not have been provided to the Delegate before he made his decision, as also required by sub‑s.473DD(b)(i), or whether it satisfied the requirements of sub‑s.473DD(b)(ii). The Authority’s acceptance of the information as information that was not before the Delegate does not satisfy the requirements of sub‑s.473DD(b).

3. Even if the Authority made an error respecting its consideration of the matters described in sub‑s.473DD(b), however, any error could not be jurisdictional as a finding adverse to the Applicant was made in respect of sub‑s.473DD(a).  That finding was sufficient to prohibit the consideration of the new information by the Authority.

4. Given the matters identified by the Authority that I have referred to above at [20], it was open to the Authority, acting reasonably, not to obtain translations of the documents and to conclude that it was not satisfied that there are exceptional circumstances within the meaning of sub‑s.473DD(a) to justify considering the information.

Conclusion

1. For these reasons, the Authority’s decision is not affected by jurisdictional error.  The application must be dismissed, with costs.

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

Date:     17 May 2018