BDI17 v Minister for Immigration & Anor - [2018] FCCA 2162

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDI17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2162

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in critical respects and other fears found not to be well-founded – whether the Authority overlooked a claim or unreasonably failed to get an updated DFAT country report or failed to properly consider a claim considered – jurisdictional error established in the failure by the Authority to consider getting the most recent DFAT country report.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 46A, 65, 424, 473CB, 473DB, 473DC, 473DD, 499

Cases cited:

Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 236 FCR 593

Carrascalao v Minister for Immigration [2017] FCAFC 107

DWN16 v Minister for Immigration & Anor [2018] FCCA 1911

Htun v Minister for Immigration (2001) 194 ALR 244

Khan v Minister for Immigration [1987] FCA 457; (1987) 14 ALD 291

Minister for Immigration v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475

Minister for Immigration v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323

NAHI v Minister for Immigration [2004] FCAFC 10

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 174

Applicant:

BDI17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 812 of 2017

Judgment of:

Judge Driver

Hearing date:

8 August 2018

Date of Last Submission:

22 August 2018

Delivered at:

Sydney

Delivered on:

23 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr R Chia, pro bono publico

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari shall issue, removing into this Court the record of the Immigration Assessment Authority decision made on 20 February 2017, for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to reconsider according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 812 of 2017

BDI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 20 February 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a Sri Lankan national, born on 17 February 1990 in Batticaloa, in the Eastern Province of Sri Lanka. He is a Tamil of Christian faith.
Prior to leaving Sri Lanka, the applicant had been studying to obtain a diploma in hotel management in Colombo. However, he returned to Batticaloa in 2008 because it was not safe to remain in Colombo.
The applicant arrived in the Cocos (Keeling) Islands on about 26 September 2012 as an “irregular maritime arrival”[1] and he was interviewed by the Minister’s Department on 8 October 2012 and 25 January 2013.[2]
[1] Court Book (CB) 51. Note that the delegate recorded the applicant as having arrived on 27 September 2012 at CB 138
[2] Written record of arrival interview at CB 1 and “Original arrival interview 8/10/2012” is referred to at CB 11
On 8 September 2015, the Minister made a determination under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act), permitting the applicant to apply for a protection visa, and under cover of letter dated 12 November 2015 the applicant applied for a Safe Haven Enterprise (Class XE) (subclass 790) Visa (SHEV) with the assistance of a registered migration agent appointed under the Minister’s Department’s Immigration Advice and Application Assistance Scheme (IAAAS).[3]
[3] CB 27 and following. The Minister’s Department recorded the protection visa application as having been lodged on 17 November 2015 (CB 121)

Applicant’s claims

The applicant’s claims to fear harm centred on his Tamil ethnicity, imputed support of the Liberation Tigers of Tamil Eelam (LTTE), his illegal departure from Sri Lanka and his status as a failed asylum seeker. The applicant claimed that he would be under additional suspicion by the authorities as he was a Tamil who had departed Sri Lanka three times. In summary, the applicant made the following claims:[4]
a)the applicant was born in Batticaloa and attended school there until 2007;
b)in November 2009, the applicant attempted to flee Sri Lanka, but his boat was intercepted by the authorities. About 30 passengers, including the applicant, were taken for interrogation. He was held in a prison camp for one and a half months and beaten, and was then transferred to another prison for a further one and a half months. In February 2010, he was convicted of trying to leave Sri Lanka illegally, and was fined and released. He paid the fine in April 2010;
c)later in 2010, the applicant travelled to Singapore because he was still fearful. However, the applicant returned to Sri Lanka after several days. Upon return to Sri Lanka, he was stopped by the authorities, interrogated and had his passport seized; and
d)between 2010 and July 2012, unknown people monitored the applicant and asked him questions. On 10 July 2012, some people came to the applicant’s home when he was not there and spoke to his father. The applicant’s father died of a heart attack later that day, which the applicant believed to be caused by “[w]hatever they said to him that day”. Before the delegate, the applicant claimed that the aforementioned people pushed and injured the applicant’s father on this occasion.
[4] CB 71
Included with his SHEV application was a statement by the applicant dated 29 October 2015 (statement), in which the applicant said:[5]
[5] CB 71-72
Batticaloa was dominated by the Karuna and Pillayan groups which are pro-government groups. These groups were previously part of the Liberation Tigers of Tamil Eelam (LTTE) but they left to work with the government. They recruit people forcibly and are also responsible for making people disappear.
…
One of the reasons for marrying [my wife in 25 Oct 2009] was because I thought I would be less likely to be arrested on suspicion of supporting the LTTE. The Karuna and Pillayan groups continued to round up Tamil men. Even though I had no association with the LTTE I feared I would be taken.
Those targeted also included those who were considered to have wealth and who could therefore be extorted. Young men were also targeted in order for them to forcibly work for these groups. Kidnappings of young men were common. An old school friend of mine - Puvi - disappeared around this time. I don’t know what has happened to him.
The Karuna group worked closely with the Criminal Investigation Department (CID). Their political party was the Tamil Makkal Viduthalai Pulikal (TMVP) party.
The applicant described his fears on return to Sri Lanka as follows:[6]
[6] CB 74
I fear the authorities and those groups associated with them if I return to Sri Lanka.
I fear that t will be mistreated in the same way as before, and worse, even though I have done nothing wrong. I would not have fled Sri Lanka if I was not in fear of my life. My wife was pregnant when I left I was not even able to attend my father’s funeral out of fear.
The authorities have continued to show an interest in me, after my release from detention and after my return from Singapore. I believe they suspect me of being associated with the LTTE. I also come under suspicion as a Tamil who has left Sri Lanka three times.
The application was accompanied by a copy of the applicant’s birth certificate, Sri Lankan national identity card, education certificates, his father’s death certificate and a Human Rights Commission of Sri Lanka card, amongst other things.[7]
[7] CB 76 and following
On 16 March 2016, the applicant attended an interview with the delegate at the Minister’s Department’s Sydney office. The applicant was accompanied by his registered migration agent and was assisted by an interpreter in the Tamil and English languages.
By letter dated 5 September 2016, the applicant was notified that his application for a protection visa had been refused.[8]
[8] CB 135
In her protection visa decision record,[9] the delegate accepted that the applicant was a Sri Lankan citizen of Tamil ethnicity and Christian faith from Batticaloa and that the applicant would have been subjected to discrimination and harassed by the Sri Lankan authorities and paramilitary groups during and after the Sri Lankan civil war.[10] The delegate also accepted that the applicant had attempted to leave Sri Lanka by boat in 2009 and was imprisoned for three months before facing a court on the charge of illegally departing the country and being required to pay a fine.[11] However the delegate did not accept that the applicant had departed Sri Lanka again in 2010 for Singapore and returned five days later and did not accept that the applicant was a person of interest or that he had any real or imputed links to the LTTE when he departed Sri Lanka for the last time in September 2012.[12] The delegate also found that the applicant would not face serious or significant harm as a Tamil male or as a failed asylum seeker who had departed Sri Lanka illegally and concluded that he was not a person to whom Australia owes protection obligations.
[9] CB 138
[10] CB 141
[11] CB 142
[12] CB 143-144

Referral to the Authority

In her letter dated 5 September 2016,[13] the delegate noted that her decision to refuse the applicant’s application for a protection visa was a “fast track reviewable decision” and had automatically been referred to the Authority for review under Part 7AA of the Migration Act.[14]
[13] CB 135
[14] Section 473CA of the Migration Act
The now self-represented applicant received acknowledgment from the Authority of the referral by letter dated 15 September 2016.[15]
[15] CB 152
By letter dated 20 February 2017, the Authority notified the applicant of its decision to affirm the delegate’s decision to refuse the applicant’s application for a protection visa.[16]
[16] CB 163
In its decision and reasons, the Authority accepted that the applicant is a Sri Lankan national of Tamil ethnicity and Christian faith, originally from Batticaloa, and that in Colombo in 2008, Tamils had been rounded up and arrested on suspicion of assisting the LTTE.

Authority decision

The Authority had regard to the material referred to it under s.473CB of the Migration Act.[17] No further information was obtained or received by the Authority.[18]
[17] CB 165, [4]
[18] CB 165, [5]
The Authority accepted the applicant’s evidence that he grew up in Batticaloa and went to Colombo to study in 2008 but returned to Batticaloa due to the situation in the country for Tamils at that time.[19] The Authority further accepted the applicant’s claims regarding his attempted departure from Sri Lanka in 2009 and treatment upon return.[20]
[19] CB 167, [11]
[20] CB 167, [13]-[14]
However, on the basis of the applicant’s inconsistent evidence to the delegate regarding his passport and his lack of any adverse profile, the Authority did not accept that the applicant was fleeing Sri Lanka at that time because of a well-founded fear of harm.[21] Further, on the basis that the applicant was convicted and released, and was able to depart Sri Lanka unhindered some months later, the Authority found that the applicant was no longer a person of interest at that time.[22]
[21] CB 167, [12]
[22] CB 167, [14]
In relation to the applicant’s return from Singapore, the Authority referred to the applicant’s contradictory and inconsistent evidence to the delegate and considered that the applicant “appeared to be unable to go behind the version of events set out in the statement”.[23] The Authority was prepared to accept that the applicant travelled to Singapore but did not accept the balance of the applicant’s claims in relation to this matter or that the applicant left Sri Lanka on that occasion due to fear for his safety.[24] Having found that the applicant was not a person of interest to the authorities at this time, and on the basis of his inconsistent evidence regarding his return from Singapore, the Authority did not accept that he was detained and interrogated on his return from Singapore.[25]
[23] CB 168, [18]
[24] CB 168, [18]
[25] CB 168, [20]
In light of its finding that the applicant was not of interest to the authorities, the Authority did not accept that the applicant was subjected to constant monitoring and questioning, or that unknown persons came to his home and questioned his father.[26] Further, the Authority was not satisfied that the applicant would be imputed with support for or association with the LTTE, and found that he did not face a real chance of harm on this basis.[27]
[26] CB 169, [24]-[25]
[27] CB 169, [26]
Based on country information, the Authority found that Tamils in the east of Sri Lanka might continue to face some difficulties on the basis of their ethnicity but that it was not of a level to constitute serious harm.[28] The Authority further found that there were no official laws that discriminated on the basis of religion.[29] Accordingly, the Authority found that the applicant did not face a real chance of harm on the basis of being a Tamil, a Tamil male from the east, or a Christian.[30]
[28] CB 170, [31]
[29] CB 170, [32]
[30] CB 170, [33]
As the applicant paid the fine in respect of his previous conviction for departing Sri Lanka illegally and had subsequently lawfully departed Sri Lanka, the Authority was satisfied that he did not have an adverse profile and found that there was not a real chance that the applicant would be harmed on the basis of being a returned asylum seeker.[31]
[31] CB 170-171, [36]
The Authority set out the procedure to which the applicant would be subjected if returned to Sri Lanka on the basis of his illegal departure in contravention of the Sri Lankan Immigrants & Emigrants Act (Immigrants & Emigrants Act).[32] The Authority accepted that the applicant would be charged and fined for his illegal departure. However, having regard to country information and its findings regarding the applicant’s lack of a profile, the Authority found that if the applicant pleaded guilty, it was highly likely he would be bailed on personal surety.[33] The Authority considered the applicant’s previous charge for having breached the Immigrants & Emigrants Act but noted that there was no information or evidence before it to indicate that the applicant would be treated in a harsher manner on this basis.[34]
[32] CB 171, [37]-[39]
[33] CB 171, [37]-[39]
[34] CB 171, [40]
The Authority accepted that although the likelihood was remote, the applicant may be detained upon return to Sri Lanka before he could appear before a magistrate.[35] The Authority found that the poor prison conditions he would face in that event would not constitute serious harm and that the procedures were applied on a non-discriminatory basis under a law of general application.[36]
[35] CB 171, [41]
[36] CB 171-172, [41]-[43]
In considering complementary protection, the Authority had regard to its anterior findings of fact and found that the applicant would not face a real risk of significant harm on the basis of his Tamil ethnicity or actual or imputed political opinion.[37]
[37] CB 172, [48]
In respect of the applicant’s illegal departure and circumstances on return to Sri Lanka, the Authority found that any treatment faced by the applicant on return (including prison conditions to which he may be subjected) did not amount to significant harm.[38]
[38] CB 173, [49]-[52]
On the basis of these findings, the Authority found that the applicant was not a person to whom Australia owed protection obligations under either s.36(2)(a) or (aa) of the Migration Act and accordingly, affirmed the decision to refuse a SHEV.

The current proceedings

These proceedings began with a show cause application filed on 20 March 2017. The matter was listed for a show cause hearing on 2 March 2018. The applicant was by that stage represented and a proposed amended application was handed up. It was not filed. I dispensed with the need for a preliminary hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) and listed the matter for a final hearing on 8 August 2018. I also gave the applicant the opportunity to file and serve a further particularised amended application. That opportunity was not taken up by the due date but a proposed further amended application was annexed to the applicant’s written submissions filed on 25 July 2018. The Minister opposed leave being granted for the applicant to rely upon the proposed further amended application but at the trial I granted leave, noting that the grounds in that proposed further amended application were substantially similar to Grounds 1 and 2 in the amended application handed up at the show cause hearing and Ground 2 in the original application.
The grounds in the further amended application are:
1. The second respondent (Authority) failed to consider the applicant’s claim to fear harm by the Karuna and Pillayan groups.
2. Further or in the alternative, the Authority’s failure to consider “getting” the DFAT Country Information Report for Sri Lanka dated 24 January 2017 was legally unreasonable.
3. Further or in the alternative to 1 and 2, the Authority failed to exercise its jurisdiction by failing to give proper, genuine and realistic consideration to the applicant’s claim that he would be under suspicion as a Tamil who had left Sri Lanka three times.
In addition to the court book filed on 3 August 2017, I have before me as evidence the affidavit of Eden Weller made on 27 April 2018, to which are annexed the Department of Foreign Affairs and Trade (DFAT) country information report for Sri Lanka dated 18 December 2015 and the more recent DFAT report dated 24 January 2017.
Both the applicant and the Minister filed submissions prior to the trial of this matter. I have been assisted by those submissions. In the light of the course of oral submissions at the trial, I gave the parties the opportunity to file post hearing submissions in relation to the second ground. Both the applicant the Minister took up that opportunity. The Court appreciates the willingness of counsel to assist in this way, particularly when representing a client on a pro bono basis.

Consideration

Ground 1 – did the Authority fail to consider a claim of a fear of harm from the Karuna and Pillayan groups?

The applicant’s first ground of judicial review is that the Authority committed jurisdictional error by failing to consider his claim to fear harm by the Karuna and Pillayan groups, namely the Tamil Makkal Viduthalai Pulikal (TMVP) and the faction led by Sivanesathurai Chandrakanthan (also known as Pillayan).
In their joint judgment in Minister for Immigration v Yusuf,[39] their Honours Justices McHugh, Gummow and Hayne notably described jurisdictional error in the following way:[40]
It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
(citations omitted)
[39] [2001] HCA 30; 206 CLR 323
[40] Yusuf at [82]

Yusuf itself was a case where the visa applicant had argued that the Tribunal failed to consider her claim that in Somalia a rival clan had invaded her home and harmed her husband. However, their Honours concluded that there was no jurisdictional error because the failure was not material to the Tribunal’s decision, there having been a finding at a higher level of generality that the visa applicant’s clan was not being targeted by the rival clan.[41]
[41] Yusuf at [91] per McHugh, Gummow and Hayne JJ (Gleeson CJ and Callinan J agreeing)
In Applicant WAEE v Minister for Immigration[42] the Full Federal Court, applying Yusuf, held that a Tribunal had failed to consider a claim made by the visa applicant, notwithstanding the fact that the Tribunal referred to the “issue” in its overview of the visa applicant’s claims. The failure of the Tribunal to deal with the claim in its discussion and findings amounted to jurisdictional error:[43]
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[42] [2003] FCAFC 184; (2003) 236 FCR 593 (French, Sackville and Hely JJ, as his Honour then was)
[43] at [47]
In the present case, the applicant had referred in his statement to the Karuna and Pillayan groups as paramilitary groups which “work with the government” and said that they did two things, namely, they forcefully recruited young men and abducted their enemies:[44]
[44] CB 71
… They recruit people forcibly and are also responsible for making people disappear.

The applicant stated: [45]
The Karuna and Pillayan groups continued to round up Tamil men. Even though I had no association with the LTTE I feared I would be taken.
[45] CB 72
This is said to suggest that the applicant feared he would be taken by the Karuna or Pillayan group either because he would be perceived by them to be a supporter of the LTTE or because they wanted to forcibly recruit him.
That his fear was not limited to one based upon the Pillayan and Karuna groups perceiving him to be an LTTE supporter is said to have been put beyond doubt when the applicant continued:
Those targeted also included those who were considered to have wealth and who could therefore be extorted. Young men were also targeted in order for them to forcibly work for these groups. Kidnappings of young men were common. An old school friend of mine – Puvi – disappeared around this time. I don’t know what has happened to him.
In its decision and reasons, under the heading “Applicant’s claims for protection”, the Authority noted that the applicant “feared … the Karuna and Pillayan groups”.[46] However, the applicant contends that the Authority did not deal with the issue of harm by the Karuna or Pillayan group, whether it be due to forced recruitment or as a perceived supporter of the LTTE, in its discussion and findings, under the heading “Refugee Assessment” or “Complementary Protection Assessment”.
[46] CB 165, [6]
The Authority considered whether the applicant would be harmed by the Sri Lankan authorities. In finding that he was “no longer a person of interest to the authorities” the Authority relied only upon his interaction with the authorities, namely that it was “implausible that the authorities would release someone who was suspected of being involved with the LTTE” and that he was “not stopped, questioned or otherwise harassed when he left Sri Lanka”.[47]
[47] CB 167-168
The Authority considered whether the applicant could be subjected to serious harm as a “Tamil or Tamil male from the east or a Christian”; however those formulations of particular social groups are said not to have taken into account that the applicant had claimed that his age and immigration history would contribute to his treatment. Moreover, in considering whether the applicant could face serious harm as a “Tamil or Tamil male from the east or a Christian”, the Authority is said to have relied almost entirely upon the 2015 DFAT report for independent country information regarding Sri Lanka but did not refer to any part of that report which refers to the TMVP and other paramilitary groups, and in particular did not refer to the observation in the report that there are credible reports they continue to actively engage in criminal activity.[48] This is said to be consistent with the Authority only considering the possibility of harm from the Sri Lankan authorities, as opposed to the Karuna and Pillayan groups. The applicant also draws on the fact that the Authority’s ultimate finding was that “any questioning, harassment, surveillance or monitoring that the applicant may face from the authorities on return is not of a level to constitute serious harm”.[49]
[48] 2015 DFAT report at page 7
[49] CB 170, applicant’s emphasis retained
I prefer the Minister’s submissions in relation to the first ground.
In assessing whether the Authority considered the applicant’s claim, the starting point is the way in which the claim was made by the applicant. The Authority’s obligation on review is only to consider those claims made by the applicant, or which could be said to arise squarely on the material.[50]
[50] Htun v Minister for Immigration (2001) 194 ALR 244, 259 per Allsop J
In the present case, I accept that in the written statement provided with his SHEV application,[51] the applicant made claims related to the Karuna and Pillayan groups. That statement also contained assertions regarding the activities and prominence of the groups. However, the assertions were general in nature and lacked any direct nexus to the applicant’s own past experiences or claimed fear of future harm.
[51] CB 71
The basis on which the applicant claimed to fear harm upon return to Sri Lanka and the reasons for any adverse attention were clarified at the delegate’s interview, during which, when specifically asked from whom he feared harm, the applicant was recorded as saying that he worried about the government and authorities.[52] Further, the applicant’s reasons for this fear were given as his Tamil ethnicity and suspected LTTE association.[53]
[52] CB 144
[53] CB 141-142; 144
It was in the light of the applicant’s evidence at the delegate’s interview that the Authority assessed his claims. This was in my view orthodox and reveals no error. An isolated focus on the text of the written statement submitted with the SHEV application, as the applicant now postulates, was not the task of the Authority. It is clear from [6] of the Authority’s decision that it was aware of the applicant’s claims to fear harm from the Karuna and Pillayan groups. The Authority properly focused on the applicant’s claimed fear of harm arising from his Tamil ethnicity, illegal departure (including past departures), suspected LTTE association and failed bid for asylum. In so doing, the Authority properly understood and adequately addressed the claims as advanced by the applicant before the delegate.
Further, the delegate made findings that subsumed a rejection of the applicant’s claims that he would face a real risk of harm from entities affiliated with the authorities, such as the Karuna and Pillayan groups, as a result of his Tamil ethnicity or suspected LTTE association. These findings included: a rejection of the claim that the applicant would be perceived as being associated with the LTTE;[54] a finding that the applicant did not fall within any of the categories of people identified by the UNHCR as being at risk of harm;[55] and a finding that Tamils did not face a real chance of serious harm in Sri Lanka.[56]
[54] CB 144
[55] CB 146
[56] CB 146
It should also be noted that the Authority’s understanding of the applicant’s claims, including in respect of the Karuna and Pillayan groups, was consistent with that set out in the delegate’s decision. While invited to provide submissions or new information to the Authority, the applicant did not take this opportunity to put in issue the delegate’s understanding or dismissal of his claims in this regard.
This ground is premised on a refashioned reading of the applicant’s written statement that ignores his subsequent elaborations of the relevant claims. A fair reading of the Authority’s decision reveals no error of the type alleged.

Ground 2 – did the Authority unreasonably fail to “get” the DFAT country information report for Sri Lanka dated 24 January 2017?

Applicant’s submissions

The applicant’s second ground of judicial review is that the Authority’s failure to consider whether to “get new information” in the form of the 2017 DFAT report was legally unreasonable.
The 2017 DFAT report was published on 24 January 2017 and the decision of the Authority was made on 20 February 2017.
In making his decision under s.65 of the Migration Act, the delegate “must comply with” any direction made by the Minister pursuant to s.499 of the Migration Act. This included Ministerial Direction No. 56 of 21 June 2013, which states:
Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision.
The delegate’s obligation in this regard is a strict one in that it does not depend upon the visa applicant providing or the delegate being made aware of the report.
The review material in the present case included Ministerial Direction No. 56 and the 2015 DFAT report.[57]
[57] CB 150
The statutory task of the Authority is to consider the merits of the visa application de novo[58] and, though the decision on review will generally be based only upon the review material, the Authority has a discretion to “get” any information that was not before the delegate which it considers may be relevant,[59] however the Authority must not consider any new information unless satisfied that there are exceptional circumstances to justify doing so.[60]
[58] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 174 at [17]
[59] Sections 473DB and 473DC of the Migration Act
[60] Section 473DD of the Migration Act
The Explanatory Memorandum, which accompanied the Bill introducing Part 7AA into the Migration Act, envisaged that “exceptional circumstances” would encompass new country information in a review applicant’s country of origin:[61]
New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant’s country of origin that means the applicant may now engage Australia’s protection obligations.
[61] Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. See also Plaintiff M174/2016 at [33]
The Full Federal Court has held that the Authority will commit jurisdictional error, not only when the exercise of discretion in the conduct of a review is legally unreasonable, but also when it is legally unreasonable not to consider exercising the discretion at all. Accordingly, the failure of the Authority to consider whether to invite the referred applicant in Minister for Immigration v CRY16[62] to give new information on a relevant issue amounted to jurisdictional error.
[62] [2017] FCAFC 210; (2017) 253 FCR 475 (Robertson, Murphy and Kerr JJ)
In the present case, the applicant contends that there were material differences between the 2017 DFAT report and the 2015 DFAT report relied upon by the delegate and the Authority, for instance:
a)in circumstances where the applicant claimed that his school friend had disappeared and he “feared [he] would be taken”, the 2017 DFAT report noted that in December 2015 Sri Lanka had become a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance and that in July 2016 it had passed legislation to establish the Office on Missing Persons;[63]
b)whereas the 2015 DFAT report specifically refers to, but provides only qualified, support for claims based upon TMVP and other paramilitary groups, the 2017 DFAT report only indirectly supports the continued activities of paramilitary groups without specific reference;[64] and
c)the 2017 DFAT report notes that the Sri Lankan government was to review the Immigrants & Emigrants Act in 2017 and draft new legislation.
[63] 2017 DFAT report at page 26
[64] 2015 DFAT report at page 7
The applicant contends that, although it was for the Authority to decide what to make of the 2017 DFAT report, the exercise of its statutory task of review was premised upon it, like the delegate, having regard to the most current version of the DFAT country information report in relation to Sri Lanka. It is said to have been therefore unreasonable for the Authority not to have considered “getting” a copy of the 2017 DFAT report and, in failing to do so it fell into jurisdictional error.

Minister’s submissions

The applicant’s challenge in this ground is that it was legally unreasonable for the Authority not to consider exercising its discretion under s.473DC of the Migration Act to “get” new information, in the form of a 2017 DFAT country information report. In support of this ground, the applicant refers to the decision of the Full Federal Court in CRY16.
Subject to certain limited exceptions, s.473DB of the Migration Act requires the Authority to review the delegate’s decision on the basis of the review material referred to it under s.473CB of the Migration Act. Whilst s.473DC(1) of the Migration Act states that the Authority may get new information, s.473DC(2) makes clear that the Authority “does not have a duty to get, request or accept, any new information”.
The Minister contends that the applicant’s reliance on CRY16 is misconceived. The Authority in CRY16 found that the visa applicant in that case (who was the respondent before the Full Federal Court) was not owed protection obligations because he could relocate to a different city. The delegate had made no such finding. The Full Federal Court found the Authority in that case had acted unreasonably in not considering whether to exercise its discretion under s.473DC of the Migration Act to get new information from the visa applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have information on his particular circumstances relevant to relocation. The Full Federal Court emphasised that the Authority “did not have that information because the question of relocation…was not explored, or the subject of findings, by the delegate”.[65]
[65] CRY16 at [82]
The Minister contends that there was no equivalent absence of information before the Authority in the present matter, such that the Authority was disabled from conducting its review. Moreover, the applicant was on notice from the delegate’s decision that the 2015 DFAT report would form part of the review material given to the Authority but did not provide any new information challenging that report or the matters referred to therein. The Minister contends that the Authority was entitled to make its decision on the basis of the review material given to it, including the 2015 DFAT report, and it was not legally unreasonable for the Authority not to consider getting the 2017 DFAT report.
Further, the Minister asserts that the features of the 2017 DFAT report referred to in the applicant’s submissions that are said to have been absent from the 2015 DFAT report do not establish that the Authority was disabled from validly exercising its review function,[66] much less that the identified features of the 2017 DFAT report could have met the requirements of s.473DD.[67]
[66] cf CRY16 at [82]
[67] See eg DWN16 v Minister for Immigration & Anor [2018] FCCA 1911
The Minister submits that a want of a reasonable exercise of the Authority’s power under s.473DC(1) should not be found to arise in circumstances resulting in a conflict with the well-established principle that the selection of, and weight to be given to, country information is a matter within the jurisdiction of the decision-maker.[68] It should be noted that Ministerial Direction No.56 does not apply to the Authority’s decision-making under s.473DB(1).
[68] See eg NAHI v Minister for Immigration [2004] FCAFC 10

Resolution

Some of the authorities referred to at trial and in the parties’ post hearing submissions are not particularly helpful, given the different factual circumstances and the different statutory regimes involved. However, the general statement of principle by Mason J (as his Honour then was) in Minister for Immigration v Peko-Wallsend Ltd[69] needs to be borne in mind, where his Honour stated that:
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
[69] [1986] HCA 40; 162 CLR 24 at 45
That statement of principle underlies the statutory obligation on the delegate and the Administrative Appeals Tribunal to comply with Ministerial Direction No. 56. The Authority operates under a different statutory regime and is not so bound. It would, however, be absurd if the Authority were given a statutory licence to ignore material that would have to be considered by other decision makers at the direction of the Minister. At the very least, the Authority should consider getting any updated DFAT report on the country of reference where it is reasonably practicable to do so. The question is, however, whether it was a jurisdictional error for the Authority to fail to do so in this case.
In Part 7AA of the Migration Act, the Authority conducts a de novo review of the delegate's decision in relation to fast track reviewable decision. The delegate “must” have had regard to the current DFAT report and, on conducting the de novo review, the applicant submits it was intended by the legislature that the Authority would do the same. In circumstances where the Secretary is not obliged to give to the Authority documents considered relevant to the review after the referral is made,[70] and the legislature intended that evidence of changed conditions in a visa applicant's country of origin would be taken into account,[71] it is hard to justify the Authority not exercising its discretion in s.473DC(1) to get “new information” in the form of updated country information in a new DFAT report. This is reflected in the fact that the “new information” to be considered in accordance with the provisions of Division 3 of Part 7AA is not, as is the case with the Tribunal under s.424, only information that it “considers relevant” but, rather, information that the Authority considers “may be relevant”.
[70] Section 473CB(1)(c) of the Migration Act
[71] See Explanatory Memorandum referred to at [59] above

In the present case, I find that the Authority did not consider getting a copy of the 2017 DFAT report although it had almost a month to do so prior to its decision and its failure to do so lacked any evident and intelligible justification. The 2017 DFAT report updated the 2015 DFAT report, to which the delegate was obliged to have regard, which formed part of the review material and was relied upon extensively in and throughout the Authority's reasons. The Authority's failure to consider exercising its discretion to get the 2017 DFAT report was legally unreasonable.[72]

Ground 3 – did the Authority fail to give proper, genuine and realistic consideration to the applicant’s claim that he would be under suspicion as a Tamil who had left Sri Lanka three times?

[72] Cf the approach of the Authority at [3] of its reasons in BHP v Minister for Immigration & Anor (SYG931 of 2017)

In Khan v Minister for Immigration, his Honour Gummow J stated: [73]
[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...
[73] [1987] FCA 457; (1987) 14 ALD 291 at [25]
The Full Federal Court has more recently stated:[74]
… when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria … This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” …
(citations omitted)
[74] Carrascalao v Minister for Immigration [2017] FCAFC 107 at [45] per the Court (Griffiths, White and Bromwich JJ)
In the present case, the applicant had claimed in his statement that he feared he would “come under suspicion as a Tamil who has left Sri Lanka three times”.[75] The applicant was essentially saying that his risk profile would be raised because of the fact he had left Sri Lanka three times. This was over and above any claim that he would be harmed by reason of his illegal departure per se or as a failed asylum seeker per se. The applicant was claiming that having done so three times would attract adverse attention from the authorities. It was also over and above the issue of whether the applicant would be treated “any harsher” because he had previously been charged and fined for breaching the Immigrants & Emigrants Act.
[75] CB 74
The applicant contends that, on one view, the Authority appears not to have consider this claim at all. Though, again, it is referred to under the heading “Applicant’s claims for protection”, the Authority does not refer to the claim in its discussion and findings. On this view it was only because the Authority failed to consider the applicant’s claim based on him having left Sri Lanka three times that the Authority found that “any questioning, harassment, surveillance or monitoring that the applicant may face from the authorities on return is not of a level to constitute serious harm”.[76]
[76] CB 170, [31]
However, the applicant submits that the other view is that the Authority’s broad finding simply did not amount to a valid exercise of its function of review, such that it was not a proper, genuine and realistic consideration of the applicant’s claim. No finding was made as to whether there would in fact be any “suspicion” arising from the applicant leaving Sri Lanka three times and, if so, what the applicant would be suspected of and what consequences would follow. There was only the ultimate finding that “any” questioning or harassment would not amount to serious harm.
I prefer the Minister’s submissions in relation to this ground.
The claim as made by the applicant (and as framed in the applicant’s submissions) was that his departure from Sri Lanka on three occasions, and his Tamil ethnicity, would give rise to his having a greater risk profile in Sri Lanka.[77] It is this claim regarding the applicant’s increased risk profile that the Authority was required to consider.
[77] CB 71; applicant’s submissions, [55]
To the extent that it could be said that the applicant advanced a separate claim that he feared harm for having departed Sri Lanka three times, a fair reading of the Authority’s decision record reveals that the Authority did in fact consider this claim.
First, the Authority referred to this aspect of the applicant’s claims.[78]
[78] CB 166, [6]
Secondly, the Authority considered the applicant’s 2009 departure and his travel to Singapore in 2010.[79] However, the Authority did not accept that the applicant had a profile arising out of these departures. Having rejected that the applicant had a profile arising out of these departures, and noting the Authority’s findings at [12] and [18] that the applicant was not departing Sri Lanka on these occasions in order to avoid harm, any residual claim that the applicant had a heightened profile for having departed three times falls away.
[79] CB 167-168, [11]-[21]
Thirdly, the Authority did not accept that the applicant faced a relevant risk of harm if returned to Sri Lanka.[80] In making that finding, the Authority specifically referred to the applicant having been “previously charged and fined for breaching the I&E Act”.[81]
[80] CB 170-172, [34]-[43]; 173-174, [50]-[53]
[81] CB 171, [40]
In those circumstances, the Authority considered whether the applicant faced a risk of harm as someone who had departed Sri Lanka three times, and made findings dispositive of that claim.

Conclusion

The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks.
I will hear the parties as to costs.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 23 October 2018