Bak18 & Ors v Minister for Home Affairs & Anor and; Bbi18 & Anor v Minister for Home Affairs

[2018] FCCA 2953

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAK18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR and
BBI18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2953

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s  decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s  decision – application dismissed

MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CB, 473DB

Cases cited:

AKK17 v the Minister for Home Affairs [2017] FCCA 2486

First Applicant: BAK18

Second Applicant: BAL18

Third Applicant: BAM18

Fourth Applicant: BAN18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 215 of 2018

First Applicant: BBI18

Second Applicant: BBJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 219 of 2018

Judgment of: Judge Vasta

Hearing date: 2 October 2018

Date of Last Submission: 2 October 2018

Delivered at: Brisbane

Delivered on: 2 October 2018

REPRESENTATION BRG215 of 2018

Counsel for the Applicants: Mr Black

Solicitors for the Applicant: Angus Francis Lawyers

Counsel for the First Respondents: Ms Forder

Solicitors for the First Respondents: Minter Ellison

REPRESENTATION BRG219 of 2018

Counsel for the Applicants: Mr Black

Solicitors for the Applicant: Angus Francis Lawyers

Counsel for the First Respondents: Ms Forder

Solicitors for the First Respondents: Minter Ellison

ORDERS IN BRG215 of 2018

1. The Application filed on 5 March 2018 as amended on 2 July 2018 be dismissed.

2. The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $3,664.00.

ORDERS IN BRG219 of 2018

1. The Application filed on 6 March 2018 as amended on 31 May 2018 and 7 August 2018 be dismissed.

2. The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $3,664.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 215 of 2018

BAK18

First Applicant

BAL18

Second Applicant

BAM18

Third Applicant

BAN18

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

No. BRG 219 of 2018

BBI18

First Applicant

BBJ18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is a matter involving two files with six different Applicants.  It was the subject of an order from His Honour Judge Egan that I hear all matters together.  The Applicants, BAK18, BAL18, BAM18 and BAN18, are members of one family group:  BAK18 is the husband, BAL18 is the wife, BAM18 is their daughter and BAN18 is the other daughter.  BAK18 and BBI18 are brothers; they are the sons of BBJ18.  The applications for protection were made by BAK18, BAL18, BAM18 and BAN18 as separate considerations but as one family unit, as that term is understood. 

2. BBI18 and BBJ18 made applications themselves. When BBI18 made his protection application, BBJ18 originally had said that she would just make an application as a family member of BBI18. It seems that once the matter was before the delegate, it was said there that BBJ18 wished to have her considerations separately considered and then part of the family unit that she had with BBI18. 

3. There were two different delegates who dealt with those matters:  one delegate dealing with the BAK18 matters, and another delegate dealing with the BBI18 matters. 

4. As a short history, all the Applicants are of Tamil ethnicity from Sri Lanka.  When the civil war broke out in Sri Lanka the father of BAK18 and BBI18 took those two boys, plus his wife, BBJ18, to India to, in effect, be refugees whilst the war broke out.  They lived, it would seem, in refugee camps in India. 

5. The father of BAK18 and BBI18, who is the husband of BBJ18, died in India in around 2002.  BAK18 met BAL18, who, herself, was a refugee from Sri Lanka, in the same refugee area in India.  They married, and they had a daughter, BAM18. 

6. On my reading of the material, BBI18 had made a number of trips back to Sri Lanka following the cessation of formal hostilities in 2011 to 2012.  Notwithstanding that, in 2013, all five, that is, BBJ18, her sons, BAK18 and BBI18, BAL18 and BAM18 all boarded a vessel, and sailed to Australia and became unauthorised maritime arrivals. 

7. Another daughter to BAK18 and BAL18, who is BAN18, has been born since the Applicants arrived in Australia. 

8. The claims for protection are, in effect, very similar.  The Applicant, BAK18, says that from 2009 he became involved in Tamil political parties in India and supported a number of parties that supported Tamil rights.  He was involved in protests and demonstrations including a protest where an effigy of the then Sri Lankan President was burned. He said that there were photographs taken including a photograph of his infant daughter carrying an LTTE flag; that daughter being BAM18. 

9. He talked about feeling that his anti-government activities in India caused him to be monitored.  He said that he has a tiger tattoo.  He believes that the Indian authorities are working with the Sri Lankan authorities to, in effect, figure out what he is doing and that the authorities would do him harm.  And he talked of his younger brother being taken into custody in 2012; that person being BBI18.  Since he has come to Australia, he has been involved in a cricket team that comprises Tamils, and he is captain of the team. And the team’s activities have attracted social and mainstream media coverage. 

10. He said that he is aware of accounts of harassment and harm to Tamils in Sri Lanka, and he fears he would be harmed by authorities if he returned; this was because his father’s activities and his own political activities are now known.  He said that he has no support network in Sri Lanka to assist in resettlement, and his family would be vulnerable because they lived in India and now in Australia. 

11. He said that he needs to look after his mother because his mother has breast cancer; that is the person, BBJ18.  He also claimed that his personal information was breached by the Department, and he lodged a complaint with the Privacy Commissioner. 

12. His claims were thoroughly explored by the Immigration Assessment Authority (“the IAA”) who came to the conclusion, as far as the refugee aspect, in paragraph 39 of the reasons, saying:

    I have considered the applicant’s claims individually and whether on a cumulative basis of his ethnicity, his political opinion including social media use, and membership of the Tamil Cricket Team, and opinion including his tattoo, and his father’s past activities, the breach of his privacy, his illegal departure and asylum claim whether he would face harm, and considered together with his mother’s care needs, and close family unit, re-establishing himself in Sri Lanka and social media abuse, which I have found would not amount to serious harm.  And I am satisfied there is not a real chance he would experience harm in the foreseeable future in Sri Lanka.

13. Then, looking at the complementary protection criteria, the IAA looked at what punishment may be given to him for illegally departing Sri Lanka in the first place, and came to the conclusion that the IAA was not satisfied that there was a real risk that the Applicant would be subjected to mistreatment during any possible brief period in detention on return to Sri Lanka.  As such, there were no substantial grounds for believing that there was a real risk that he would suffer significant harm if returned from Australia to Sri Lanka. 

14. His wife, who had, obviously, similar claims to the husband, also had a claim because she was a woman, she was therefore vulnerable to violence, or sexual assault. She said that she was further vulnerable because of experience of attempted assaults as a child in India, and because she was unfamiliar with life in Sri Lanka. She claimed that if her husband found out about the attempted assaults in India she might be ostracised and forced to live alone in Sri Lanka.  She also spoke of having some form of post-traumatic stress disorder related to her experience in India at the refugee camp. 

15. The IAA looked at all of the material, as well as those other aspects peculiar to her; and, as far as the refugee criteria was concerned, found that there was not a real chance that she would experience harm in the foreseeable future in Sri Lanka.

16. The IAA then looked at the complementary protection criteria and came to the conclusion that she did not face a real risk or a real chance of serious harm if she were to be returned to Sri Lanka. 

17. The children, having made their own claims, the IAA came to the decision that neither of them had ever lived in Sri Lanka and, whilst looking at all of the material that their parents had submitted to the Tribunal, made this conclusion at paragraph 12:

    The applicants would be subject to an investigative process to confirm identity on arrival, and this may take several hours to complete.  As involuntary returnees are processed en masse, further delays may occur until all returnees are processed.  DFAT assesses that returnees are treated according to these standard procedures regardless of their ethnicity and are not subject to mistreatment during their processing at the airport.  Even considering their young age I find that there is not a real chance that the applicants would be harmed in this process -

    and then, at 13:

    Considering the totality of the material before me I am not satisfied the applicants would be harmed on return to Sri Lanka for reason of being female Tamils and failed asylum seekers.

18. The complementary protection assessment was also conducted.  And, again, the IAA found that there were not substantial grounds for believing that there was a real risk that the applicants would suffer significant harm if returned to Sri Lanka. 

19. With regard to BBI and BBJ, the claims of BBI were that in 1990 his parents took he and his brother, BAK, to India as refugees, and they stayed there. BBI said that life was difficult for that time and that the father died in India in 2002.  He said that after the civil war ended in Sri Lanka he obtained a travel document to return to Sri Lanka, and he did so. 

20. He stayed there with friends that he had made in India who had returned to Sri Lanka.  He said he travelled back to India later that year.  He then made a further trip to Sri Lanka in January 2012 to look after the family land.  He said that he found that the village was occupied by the army.  Whilst he was there he was rounded-up with a group of young Tamils and detained by the army.  He said that the soldiers noted his Indian accent, and he was accused of being an LTTE member and was beaten.  He was released the next day. 

21. He said that after being released he was followed.  He returned to India in April 2012, leaving Sri Lanka legally.  He said that he was questioned by the Indian authorities upon return.  Once he returned to India he participated in a protest against the Indian Government’s support of Sri Lanka, and he held an LTTE flag, and there was a video recording made of him doing so.  He then left India with his mother, brother, sister-in-law, and niece and came to Australia by boat. 

22. His claims are that he has been involved in the same cricket team as his brother, BAK18; he supports Tamil rights; that his mother has a medical condition, and he is her carer; that he hasn’t been in contact with any remaining extended family in Sri Lanka; that he would have no family support on return; that he is unfamiliar with life in the country; and, that he fears harm from the authorities on return to Sri Lanka due to the military control in Tamil areas. 

23. The mother or grandmother, BBJ18, was not interviewed by the delegate, but her claims, which were before the IAA, were that she has being treated for breast cancer since 2014.  She gave the same history that BBI18 gave.  And she said that she risked being seriously harmed because of gender violence that continues to be perpetrated against women by security forces with impunity, but that there was also a social stigma that surrounds incidents of rape in the Tamil society that could not be ignored or not considered. 

24. Again, the IAA went through these claims very thoroughly, and looked at BBI18’s claims for refugee status and said, at paragraph 26:

    I have considered whether, when taken together, the totality of the applicant’s circumstances will lead to a real chance of him suffering harm from the authorities or others as a single, male Tamil with no family support, and because of living in India and Australia, his little knowledge of life in Sri Lanka, his support for Tamil rights, his involvement in a cricket team of Tamils and for being a returned, failed asylum seeker.  However, considering the country information before me I am not satisfied there is a real chance of the applicant being persecuted in Sri Lanka in the reasonably foreseeable future.  And I find the applicant’s fear of persecution is not well-founded.

25. With regard to BBJ18’s application for the refugee status, at paragraph 43 the IAA said:

    I have considered whether, when taken together, the cumulative effect of being a woman who identifies as a Tamil, and who has been brutally harmed in the past, and who now has ongoing complications and medical needs for breast cancer, and suffers from distress because of concern at being separated from her family or concern for their welfare in Sri Lanka would amount to serious harm, considered along with the difficulties she would face as a returning, failed asylum seeker needing to re-establish her life in Sri Lanka.  However, while I accept she would face significant problems I am not satisfied that this would amount to serious harm.  And I find that the applicant’s fear of persecution is not well-founded. 

26. The IAA then looked at the complementary protection criteria for BBI18 and, on much the same grounds as had been used for BAK18 and his family, came to the conclusion, for BBI18, that they were not satisfied there was a real risk that the Applicant would be subject to mistreatment during any possible brief period in detention, and therefore the criteria had not been met.  And for BBJ18, the IAA said:

    I accept there are reports of mistreatment of asylum seekers who have been returned to Sri Lanka.  However, DFAT reports that the risk of torture or mistreatment for the majority of returnees is low.  I have found the applicant is not a person of interest to the Sri Lankan authorities.  I am therefore not satisfied there is a real risk that the applicant would be subject to mistreatment during any possible brief period in detention on return to Sri Lanka. 

27. The grounds of these applications are quite detailed, but to summarise the main gist of the grounds, it really comes down to this as the main ground of the applications:  should the information about the circumstances of BBI18 and BBJ18 have been looked at in the application that BAK18 and his family group made so that the information for BBI became part of all of the information that the IAA looked at?  And, vice versa, should the information relating to BAK18 have been looked at when looking at the applications of BBI18 and BBJ18? 

28. To answer that question, one does have to have a look at a few of the background events.  I have been helpfully assisted by counsel for the applicants, Mr Black.  He has pointed to two letters that were sent; the first being on 18 July 2016.  This was sent to BBI18 and BBJ18 because they had made their application.  It invited the application for a protection visa, along with an information sheet advising that:

    If members of the same family unit as you have made separate applications, please notify the Department when you make your application to ensure your applications are considered together.

29. On 17 August, about a month later, the Department wrote to BAK18 and his family unit, inviting them to apply for a protection visa, along with the same information sheet advising:

    If members of the same family unit as you have made separate applications, please notify the Department when you make your application to ensure your applications are considered together.

30. Now, neither BBI18, nor BAK18 did that. 

31. On 12 December, BAK18 and his family lodged their application with a covering letter.  The covering letter stated that BAK18 and his family lived with his mother, BBJ, who was Sinhalese, and a survivor or rape, torture and breast cancer, and his brother, BBI18.  It noted that she, meaning BBJ18, cannot be separated from both her sons and grandchildren as she needs her family intact. 

32. Again, even though that letter was lodged with the application, there still was no official application for the matters to be considered together. 

33. The delegate interviewed BBI18 on 15 May 2017.  It was at that time that the Department was notified that BBJ18 wanted her application to be looked at as a separate application but also as part of the same family unit as BBI18.  There was no indication by BBI18 or BBJ18, who were represented by a migration agent, that they wanted their matters heard together or considered together with BAK18.

34. Two days later, BAK18 and his family were interviewed by the delegate.  The IAA noted, in their summary and their reasons, that towards the end of the departmental interview with the Applicant, the interviewing officer stated that, as the decision-maker, he intended to look at the Applicant together with his brother and mother as members of the same family unit. 

35. Now, what has been submitted to me is that BAK18 then would have had a justifiable belief that all of the matters were going to be considered at the same time.  The IAA noted that this may have raised expectations that were not met.  Again, whilst there is no detail by the IAA, considering that the same IAA officer looked at the matters of both BAK18 and BBI, there is no reason as to what happened, or why it was that they weren’t considered together. 

36. However, when one looks at the fact that an officer had already started looking at the matters of BBI18 and BBJ18 before the different officer was looking at the matters of BAK18, it may be seen that such consideration was simply done too late. 

37. In any event, as I say, the matters were decided and the result was that none of the six applicants were given protection visas.  Because those decisions were fast-tracked decisions, the matter had to be given to the IAA. 

38. The Department sent letters, firstly, on 19 October 2017, advising of the decision and stating that:

    The Department has provided the following information to the IAA:  any material you gave to the Department before the refusal decision was made.

    A similar letter was sent to BAK18 on 25 October 2017.  It was quite clear from the decisions of the delegates that, in BAK18’s case, the BBI18 information was not used, and, in the BBI18 decision, that the BAK18 information was not used. 

39. Both BBI18 and BAK18 made submissions to the IAA.  There was no request by either BBI18 or BAK18 to have material from the other’s matter considered in their matter.  There was no giving of any of that material to the IAA as part of their submissions to the IAA. 

40. It is also significant that when one looks at paragraph 10 of the BBI18 decision, that the submission by BBI18 invited the IAA to refer to submissions – and I will underline the word submissions – provided by the representative to the IAA relating to an IAA review for the Applicants’ brother and son, meaning BAK18, regarding his involvement as captain of the cricket team. 

1. There was no application for any other material, other than the submissions, to be looked at. The IAA ended up saying that:

   There weren’t exceptional circumstances that justified considering the new information in the Facebook post, and I don’t consider the circumstances warrant getting new information from submissions provided to the IAA for the applicant’s relative.

   So there was an opportunity to ask for all of the BAK18 material to be considered, but BBI18 did not ask for any material other than the submissions to be considered. 

2. The IAA decisions on all matters were considered by the same IAA member and were all delivered on 28 February 2018.  There was a separate decision for BAK18, a separate decisions for BAL18, a separate decision for BAM18 and BAN18 and a separate decision for BBI18 and BBJ18.  As I say, when one reads the material it is clear, even though it was from the same reviewer, that the BAK18 material was not considered in the BBI18 matter and vice versa.  And, as I say, it’s also clear the IAA was not asked to consider that material. 

3. The submission from the Applicants now is that what the delegate had said, on 17 May 2017, means that they believed that it would be considered, but it was clear from the decision itself that it wasn’t considered. And simply because of what the delegate said, it does not absolve the Applicants from putting material before the IAA if it so wished. 

4. But that is not truly the complaint here.  The complaint here is that there has been a jurisdictional error because the material should have been before the IAA and given to the IAA from the Secretary. 

5. That submission involves a look at the sections of the Migration Act 1958 (Cth) (“the Act”). Firstly, as has been pointed out, s.473DB, relevantly states that:

   …the Immigration Assessment Authority must review a fast track reviewable decision referred to it … by considering the review material provided to the Authority under section 473CB.

6. It is that section where one must look at the proper construction. This section will be reproduced in the decision when I have to revise it. The relevant part of this is that, under s.473CB(1):

   The Secretary must give to the IAA the following material in respect of each fast-tracked decision:

   (a) a statement that:

   (i) sets out the findings of fact made by the person who made the decision;  and

   (ii) refers to the evidence on which those findings were based;  and

(iii) gives the reasons for the decision;

(b) material provided by the referred applicant to the person making the decision before the decision was made;

(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review…

And then (d) talks of some other matters, and I will get to those in a second. 

1. The argument is that the material from BBI18, in BAK18’s case, is other material that is in the Secretary’s possession or control, and is considered by the Secretary to be relevant to the review.  This is because of the fact that the delegate had said, on 17 May 2017, that they would look at the Applicant together with his brother and mother as members of the same family unit;  therefore, such information was relevant to the review and should have been part of the considerations of the IAA. 

2. It seems to me, though, that for the BBI18 material to be relevant to the BAK18 review means that the Secretary had looked at the matter and seen that it should be part of the material that is considered by the IAA overall.  In my view, this is putting far too great an onus on the Secretary to do so. 

3. That material is not obvious as part of the material, and where the Applicants, both BAK18 and BBI18, had specific opportunities to ask for that material to be part of the review, and only in the end asked for the submissions to be there, it makes it very difficult to say that a Secretary should have taken the position that this material was relevant.

4. Moreover, the submission is that, despite both Applicants not asking for it to be part of the material, the Secretary nevertheless should have overridden any such notion and simply provided that material to the IAA.  That seems to me that that is a very long bow to draw. 

5. Alternatively, it was put to me that the IAA can, of its own volition, ask for such material, and in this case it should have used its overall powers to ask for that material. But, given that the other material really was not a great factor in the arguments, other than BAK18 talking about being in the same cricket team and BBI18 saying that he was in the same cricket team, and that BAK18 talked about his brother being detained in Sri Lanka in 2012, and BBI18 saying that he was detained in 2012, there seems to be very little that either of the Applicants have relied upon in making their claims. 

6. It does seem to me, to be saying that there was a jurisdictional error in the IAA not trying to get such material itself is again putting far too high a duty on the IAA. The IAA really is there to do exactly what s.473DB is concerned with, and that is reviewing the decisions that were made and keeping the use of any new material to a minimum.

7. I am not convinced that there has been a jurisdictional error. 

8. There is another aspect to this.  Before there had been the invitation to make the application, and soon after arriving in this country, BBI18 lodged a statement with the Department.  That occurred on 24 October 2013. 

9. About eight months later, on 7 July 2014, BBI18 lodged another statement, with some supporting documents, to the Department.  After these statements had been lodged, then the matter took on another life, because it ended up becoming the matter that was going to be fast tracked if the Applicants took up the invitation to apply for Safe Haven Enterprise Visas. 

10. Notwithstanding that, the initial statements of BBI18 were not considered by the delegate.  There has been no explanation as to what had occurred here and why those materials were not before the delegate.  It seems, though, that once all the material came to it, the IAA realised that the material referred to some initial statements. 

11. On 15 February 2018, the IAA wrote to the Department identifying that BBI18 made a number of references to the initial statements in his statement attached to the SHEV application, yet they had not been provided. 

12. It stated, in the correspondence:

    The IAA raises this as the reviewer is seeking to avoid the same jurisdictional error as recently found in the case CGW17, where the IAA review decision was quashed because the IAA did not have regard to the material given by the applicant as part of his application as this material was not referred to the IAA.  To avoid a similar error, can the Department of Home Affairs please check if there is such a statement from RACS and if this was provided by the applicant as part of his SHEV application, stressing the point that, if the applicant provided this as part of his SHEV application, can the Department of Home Affairs please refer this. 

13. The IAA was told, three days later, that the initial statements were provided as part of BBI18’s screening decision but not his SHEV application.  On 19 February, the IAA advised that it would not ask the Department to refer the initial statements to it at that point in time.  The IAA did consider whether it should look at the material, and ultimately decided that it would not. 

14. Now, the first question is whether this material should have been before the IAA. Again looking at s.473CB, the IAA should have:

    a)the statement of findings and the reasons of the IAA;

    b)material provided by the applicant to the person making the decision before the decision was made; and

    c)any other material that is in the Secretary’s possession or control. 

15. The Applicant says that the initial statements were material provided by the Applicant to the person making the decision before the decision was made, and in doing so says that, whilst it was not material provided to the actual delegate who made the decision, it was provided to the person making the decision because it was, in effect, providing it to the Minister and the Minister was the person making the decision;  therefore, anything that was provided to the Department in any way, shape or form was material provided to the person making the decision, and therefore should have been before the IAA. 

16. I disagree with that interpretation of the legislation, simply because if one then goes to subsection (d) the legislation talks about, in (i), the last address for service provided to the Minister; in (ii), the last residential or business address provided to the Minister; and in (iii), the last electronic address provided to the Minister; etcetera. The references to “the Minister” show that such an interpretation can be made that any material given to the Department was material given to the Minister. The legislature has deliberately refrained from using the words “the Minister” in s.473CB(1)(a) and (b), and instead referred to “the person making the decision”.

17. To my mind, it is the classic expressio unius est exclusio alterius rule of statutory interpretation. Therefore, the person making the decision means the actual delegate, and that’s why anything that was before the actual delegate must be provided to the IAA pursuant to s.473CB(1)(b). Those initial statements were not provided to the delegate, so therefore did not have to be provided to the IAA pursuant to that subsection.

18. The question, then, is, was this “any other material in the Secretary’s possession or control that was considered by the Secretary to be relevant to the review”?  There is no evidence as to whether the Secretary turned their mind to whether this material was relevant or not.  It would seem, though there is no evidence to this, but inferentially, that somehow these initial statements became lost or were simply overlooked, and not given to the delegate at the time, so therefore did not form part of the material that was sent to the IAA. 

19. Because the Secretary did not pass it on, it really is a matter of looking at whether the Secretary had found it to be relevant or not; and I accept everything that my brother Judge Driver has said in AKK17 v the Minister for Home Affairs [2017] FCCA 2486.

20. In that case, where a letter had not been passed on by the Secretary, His Honour said, at paragraph 64:

    I conclude that the review function by the authority was disabled by the failure of the Secretary to refer the letter to the authority with the review material, and that jurisdictional error has been established by this ground. 

21. The question is, here, was the review function by the authority disabled?  Whether this be an oversight or not, one can, by looking at the legislation, come to some form of inference that the Secretary did not find the material relevant.  That is a mistake of the Secretary, and, in accordance with what his Honour Judge Driver has said, can make the review function of the IAA one that is derailed or disabled. 

22. Whether it was disabled or derailed in this matter is now up for my consideration.  It seems to me, though, that when one looks at what was done here, the IAA understood that it was missing and did make an attempt to get that material.  It then made the decision, after hearing that it was not part of the SHEV application, not to pursue the matter further.  The question is whether such a decision, then, by the IAA is legally unreasonable. 

23. It will be legally unreasonable if there is a chance, a slight possibility, that reference to those initial statements may have been matters that could have influenced or changed the decision.  So when all of these matters come down to it, whether the material from BBI18 in BAK18’s case, or the BAK18 material in BBI18’s case, could that have changed or possibly altered the decision that was made by the IAA?  Could these initial statements have caused a possibility, however slight, that the decision would have been different? 

24. Having looked at all of the material quite thoroughly I am of the view that the material could not have made any difference to the decision-making.  I am comforted by the fact that it was the same reviewer on both occasions who was familiar with all of the material and who gave the decisions on both, at the same time. 

25. There doesn’t seem, to me, to be anything in the BAK18 material that would have or could have changed the decision in BBI18.  And, vice versa.

26. Having looked thoroughly at the initial statements, I cannot see anything in those matters that could have changed the decision in BBI18.  There is nothing in those statements that was not repeated again in the material that was put properly before the IAA. 

27. Given those conclusions, I am of the view that there has not been jurisdictional error in relation to those matters. 

28. There are other grounds that have been given to the Court, although these were not pressed with any particular vigour.  The first ground is whether there was irrational or illogical reasoning in coming to the conclusion that there would not be a risk of serious harm because of any of the Applicants being a Tamil. 

29. It seems to me that the problem with the ground is this: 

    a)that the IAA did not make a positive finding; and

    b)it made a finding of being “not satisfied” that there was sufficient material for it to be satisfied that there was a risk. 

30. Having a look at the manner and the careful consideration that the IAA gave to this aspect, I am of the view that the conclusion that the IAA came to, that is, that it was not satisfied that there was a risk because of the Tamil ethnicity, was a conclusion that was open to it.  Given that finding, the other grounds talking about taking account irrelevant considerations also fail. 

31. Another ground in the BAK18 application was that the IAA did not, as new information, consider part of a successful application that relied, as least in part, on the association of the Ocean 12 team with a Tamil Eelam Cricket team in Australia.  In effect, there had been a previous successful application made to the IAA in a totally different matter.  The Applicant, BAK18, sought to put part of the application in that matter before the IAA in his particular matter.  It seems to me that not only does it not constitute new information, it relies upon some sort of reasoning that if there has been a successful protection visa application in some other case, it must therefore be relevant to that particular case. 

32. That argument is quite flawed, because it is trite to say that because another person’s visa application has been successful it cannot influence the outcome of the IAA’s decision in any other particular case, especially in the circumstances here, where it was only part of the application that was put before the IAA, and not the full one.  So the IAA could never make, to use the vernacular, an apples-and-apples comparison, in any event. 

33. So I do not find that there has been a jurisdictional error there. 

34. There was also another ground, and it seems to be the last one, with regard to BAL18, BAM18 and BAN18 because they are women, that they will be vulnerable in going back to Sri Lanka, because there is violence against women and sexual assault present in Sri Lanka.  The IAA looked at all of those matters very thoroughly.  And, again, it was not satisfied – it wasn’t a positive finding; it was a finding of non-satisfaction, that there would be harm to BAL18, BAM18 and BAN18 if returned to Sri Lanka. 

35. On the evidence that was before the IAA in the form of both the evidence of the Applicants and the country information, such a finding was open.  So I do not find that there was a jurisdictional error there. 

36. In conclusion, then, after looking through all of the matters, notwithstanding the very helpful submissions that have been given to me by counsel for the Applicant, I find that there was no jurisdictional error.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 23October 2018