BDJ18 v Minister for Immigration
[2020] FCCA 1449
•5 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDJ18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1449 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa application – review of Immigration Assessment Authority decision – whether Authority’s decision failed to take into account the Applicant’s fear of Tamil paramilitary groups – whether Authority failed to consider the Tamil paramilitaries organising for the Sri Lankan Authorities to send the Applicant to an LTTE rehabilitation camp –whether the Authority failed to seek further information from the Applicant when departing from the Delegate’s findings – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473DC(3) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2013) 269 FCR 134 FND17 v Minister for Immigration [2019] FCA 1369 |
| Applicant: | BDJ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 621 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 4 November 2019 |
| Date of Last Submission: | 4 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia by direct access |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
AMENDS the name of the First Respondent to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
DISMISSES the further amended application dated 1 November 2019.
ORDERS the Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 621 of 2018
| BDJ18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Immigration Assessment Authority, made on 25 January 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (then the Minister for Immigration and Border Protection, and subsequently the Minister for Home Affairs) made on 6 July 2017 to refuse to grant the Applicant a Safe Have Enterprise (subclass 790) Visa.
The Applicant filed his application for judicial review to this Court 7 days out of time. On 23 August 2018, pursuant to s.477 of the Act, and by consent, I extended time for filing his application to this Court.
At the commencement of the hearing on 4 November 2019, I granted leave to the Applicant’s counsel, Mr Chia, to file in Court and rely on a further amended application containing 2 grounds of review, previously notified to the solicitors for the Minister.
Background
The Applicant is a 27 year old male, born in the Mannar District in the North Province of Sri Lanka. He is of Christian faith, and Tamil ethnicity. The Applicant arrived in Australia without a valid visa by boat on 3 November 2012. Thus he is an “irregular maritime arrival” as defined in the Act. He was interviewed by officers of the Department of Immigration and Citizenship (as it then was) on 11 January 2013 (Arrival interview).
On about 7 June 2016, the Applicant applied for the Visa, following the Minister’s exercise of his power under sub-s.46A(2) of the Act to permit the Applicant to validly apply for a protection visa. The Visa application was accompanied by a Statement made by the Applicant dated 1 June 2016.
On 30 June 2017, the Applicant was interviewed by the Delegate in relation to his claims (PV Interview). On 6 July 2017, as I have said, the Delegate refused the application for Visa.
The Applicant’s claims
The Applicant’s claims for protection are set out in his Arrival interview, his Statement, his PV Interview and in written submissions provided to the Authority by the Applicant’s then representative dated 28 July 2017 (referencing the above).
In his Statement, the Applicant claimed that his father is a farmer who leased land in the Mannar district, and was considered a rich man by the locals. Being a rich man, he was harassed by the Liberation Tigers of Tamil Eelam (LTTE) from the beginning. The Applicant claims that: “It came to the stage where the LTTE was forcing all the Tamils including my father to work for them, and eventually knowing that we had a very big land and a house, took over our house and made it into an LTTE camp.”
The Applicant claims that his family had to live as tenants in their own house whilst the LTTE cadres occupied it. When the Sri Lankan Army (SLA) gained control of the area, the SLA, along with Karuna cadres, started to attack the Mannar District and the LTTE head office, which was situated at his family’s house. His family fled to a refugee camp. The army captured his house and the LTTE left his village.
His father tried to return to their house, but he was arrested and beaten for visiting the house. The army set up another camp near the family’s house, and in 2008, the Applicant’s father, mother and younger brother returned to their home. The Applicant stated “my father refused to take me back to our house for fear of losing me to the LTTE or being arrested by the army, as I was young. I was living with a priest [redacted] and continued to attend school.”
In May 2009, the LTTE was captured, and thereafter, the Applicant started returning home during the school holidays. The Applicant stated that he was arrested in 2010, and his father got the village headman to release him, but the CID and the SLA continued to arrest him periodically. The Applicant claims he was tortured on suspicion of being an LTTE cadre. The Applicant claimed he started to fear for his life due to the continuous arrests.
The Applicant said that after school he started working in the paddy fields. He hid in fishermen’s huts and went fishing to avoid arrest and torture at the hands of the SLA. In his Statement he claimed as follows:
My father on the other hand, faced the atrocities of the army and the CID. My father always maintained that I had left the area and he had no idea as to my whereabouts. The army beat my father repeatedly and in August 2012, while I was at the patty field working along with my father, the CID officers arrested me and detained me in the army camp. The Tamil paramilitaries who were assisting the army to translate, were threatening to kill me if I failed to tell them the truth that I was an LTTE cadre and was engaged in the war against the army. The army was repeatedly telling me that I was a terrorist and they had witnesses to support their claims and that I would be sent to the special LTTE camp permanently and would not be released in the future. The paramilitaries told me that if the army took me into the LTTE special camps I would eventually be killed and be declared as a missing person. I begged with the Tamil paramilitaries to contact my father who would give them good money if they saved me from being sent to the LTTE prison.
I was kept there the whole night and when I was brought back home by the paramilitaries, my father made arrangements to send me out of the country by illegal boat to India. The fisherman told my father that he knew an agent who would send me to Australia by illegal boat. My father did not wish to waste more time as the paramilitaries threatened that if the army officers found that I had been released, they would arrest me and I would be taken to the LTTE prison straightaway. I was so relieved that I got the opportunity to flee from Sri Lanka to Australia. When I arrived in Australia, my father told me that the paramilitaries forced him to pay more money for my release. The CID officers had questioned my father as to my whereabouts and my father told the CID that I had gone missing. Recently, when I spoke to my father, he told me that the paramilitaries and the CID officers were aware that I had left the country by illegal boat, but they were not aware which country I had fled to. They have told my father that if I returned back to Sri Lanka, they would kill me as I was an ex-LTTE cadre who fought the army during the war.
The Applicant claims he fears for his life if returned back to Sri Lanka because the present government is not taking any steps to stop harassment of Tamils, instead the government is encouraging the army to abduct Tamil youths and LTTE supporters in white vans. The government is determined to wipe out the Tamil youths so that the LTTE will not regroup once again.
The Delegate’s decision
The Delegate accepted that during the war between the LTTE and the Sri Lankan authorities, the LTTE resided in the Applicant’s home, his family left their home and resided in a refugee camp, and that the SLA seized the Applicant’s family home from the LTTE as well as the weapons the LTTE had left behind.
The Delegate accepted that after the family returned to their home, the Applicant began residing with a reverend for schooling purposes from 2008 until 2009/2010 (Delegate’s decision at page 3). The Delegate also accepted that the Applicant was questioned by the Sri Lankan authorities regarding any involvement the Applicant may have had with the LTTE during the conflict. The Delegate found: “In August 2012, the Applicant was last questioned by the Sri Lankan authorities on this matter [regarding any involvement with the LTTE during the conflict] after being asked to attend an army camp which he complied with. The Applicant was released after 3 hours of questioning.”
The Delegate did not accept that the Applicant had been repeatedly detained and tortured as he claimed, identifying inconsistencies with his testimonies in the course of his engagement with the Department between his Arrival interview, his Visa application, and his PV Interview. The Delegate observed that in certain respects, his claims are implausible and (at page 6) “are the result of embellishing claims that [the Delegate had accepted] in an attempt to bolster his protection claims.” The Delegate stated “I am on this basis not satisfied that the claims to have been repeatedly detained and tortured by the Sri Lankan authorities or that he was ever of a high level of adverse interest to the authorities is credible.”
Referral to the Authority and the Authority’s decision
On 11 July 2017, the Delegate’s decision was referred to the Authority for review under Part 7AA of the Act. On 28 July 2017, the Applicant’s then representative provided written submissions to the Authority setting out why the Applicant disagreed with the Delegate’s decision, and identified claims or matters that he considered were overlooked by the Delegate. The Authority accepted legal discussion in the submission as argument rather than information, and on that basis, had regard to it.
The Applicant also provided several news articles post-dating the Delegate’s decision. The Applicant did not claim to be connected to the individuals or incidents concerned in the articles, nor did he provide any explanation as to their relevance, beyond stating that they are recent and that the Delegate failed to consider them in considering the Applicant’s claims. The Authority (at [7]) was not satisfied there are exceptional circumstances to justify considering this new information.
The Authority also exercised its discretion under s.473FB(5) not to accept new information described as articles in the Tamil Guardian and reports referred to in the Tamil Guardian, referred to but not provided to the Authority, as not in compliance with the Practice Direction.
At [10], the Authority summarised the Applicant’s claims for protection.
The Authority accepted the Applicant’s identity at [13]. At [14], the Authority accepted that the Applicant’s family owned a large landholding, and was considered a wealthy farmer by locals and that the LTTE forced the family to support them. It accepted that the Applicant’s father’s property came under the occupation of the LTTE, that the family was forced to live as tenants in their own house while the LTTE occupied it for some years. The Authority also accepted that the LTTE hid their weapons on the Applicant’s family property during their occupation of it. The Authority accepted that the family was safe because their home was under LTTE control.
At [15], the Authority referred to the Applicant’s Statement. It accepted given the war situation and the control of the LTTE in the early 2000s that the Applicant’s property came under the occupation of the LTTE and that, from necessity, the Applicant’s family had no option but to continue to “live in with the LTTE for some years, from some time before 2004, until they were forced to flee in 2006 as a result of the attack on the LTTE in his home village at that time.”
At [16], the Authority accepted that the SLA had been in occupation of the Applicant’s family’s home for some period after the LTTE was defeated, and, for that reason, the Applicant’s father did not return to their home until 2008. However, the Authority was not satisfied that the Applicant’s father was arrested and detained or subjected to mistreatment described by the Applicant upon his father checking the house, and then was required to renegotiate for the release of his house.
At [16] and [17], the Authority noted inconsistent evidence in the Applicant’s Arrival interview. It considered that the Applicant had embellished his claim that his father was mistreated in order to bolster his claims for protection.
At [18], the Authority did not accept that the Applicant was of any particular interest to authorities at the time the Applicant claimed to be living with the priest, such that he would have attracted the attention and mistreatment he claimed. The Authority observed that the Applicant did not claim that the school was far from his family home, nor did he provide any information regarding where he lived with the priest while attending school. The Authority also noted that the Applicant’s school was in the same area where his family’s home is located so if he were of any particular interest to the authorities or the LTTE at that time, it would not have been difficult to find him. The Authority did not accept that the Applicant lived with the priest as claimed or that he was [at] risk of being taken by the LTTE or arrested by the army.
The Authority examined the letters of support provided by the Applicant with his Visa application, but noted that the writers of these letters did not claim to have firsthand knowledge of the matters stated. At [19], the Authority noted that there was no way of verifying the letters, and did not consider that the letters were of any probative value or provide any independent firsthand evidence of the matters claimed by the Applicant, and therefore did not attach any weight to them.
At [20], the Authority did not accept the Applicant’s claim that he was arrested by the army in 2010 and released after one day, but continued to experience periodic arrest, detention, interrogation, and torture by the army and CID. The Authority did not consider it plausible that if the army and CID officers had any particular interest in the Applicant, or genuine suspicion that he was an LTTE cadre, that they would have released him. The Authority was not satisfied that his profile as a young Tamil male would have warranted the adverse attention he claims to have received from the authorities.
At [21], the Authority was not convinced that the army would have been interested in the Applicant as an LTTE cadre, or because of any suspicion that he knew where any LTTE weapons were hidden on his property.
At [22] to [26], the Authority considered the Applicant’s claim that he was arrested by CID officers, detained in the army camp overnight, interrogated, and threatened by paramilitaries assisting the army who stated he would be sent to a special LTTE camp and eventually killed. The Authority noted multiple inconsistencies in the Applicant’s account of this claim between his Arrival interview, the Statement, and his PV Interview. The Authority was not satisfied that the Applicant’s account of any arrest, detention, and torture in August 2012 was credible.
At [23], the Authority considered and disbelieved the Applicant’s claim that in August 2012 when he was working in the paddy field along with his father, the CID officers arrested him and detained him in the army camp. The Authority pointed to inconsistencies, implausibilities and vagueness in his claims, and was not satisfied that the Applicant had gone into hiding.
At [24] the Authority discussed inconsistencies between his PV Interview and Statement in his claims to have been detained and tortured severely for 2 days. Whilst acknowledging that the sequence and timing of events may be confused over time, in this case the Authority considered the Applicant had changed the circumstances of his claimed arrest and detention in August 2012 to embellish his claims for protection. The Authority expressed the view that this change was not attributable to confusion.
At [25] the Authority considered the Applicant has exaggerated the extent of the claimed August 2012 arrest and detention and the torture he claimed to have endured at that time. The Authority set out the Delegate’s questions and Applicant’s responses. The Authority concluded “Having considered the Applicant’s evidence overall, I am not satisfied that the Applicant’s account of any arrest, detention and torture in August 2012 is credible.”
At [26], the Authority set out further inconsistencies, and concluded “Having regard to this and also the inconsistencies referred to above in relation to his evidence as a whole, I do not accept that the applicant was arrested by the army or CID in August 2012 and detained and tortured over 2 days. I am not satisfied that the applicant was a person of interest to authorities at that time.”
At [27], the Authority referred to the Applicants claimed profile and the situation with regard to his family, including his younger brother. Having regarding to country information, the Authority did not accept the Applicant’s explanation that only he in his family was targeted, forcing him to leave Sri Lanka. Accepting the plausibility that as Tamils who had lived in an LTTE controlled area and had contact with the LTTE the family were subject to harassment during the war and in its immediate aftermath, the Authority did not accept they were subjected to the extent of the adverse treatment claimed, or that because of any such treatment, the Applicant fled the country.
At [28] and [29], the Authority referred to UNHCR guidelines and DFAT country information regarding categories of persons at risk of being of adverse interest to the Sri Lankan authorities. The Authority concluded that it was not satisfied that because the LTTE had occupied the Applicant’s family property for a period of time during the war, and that his family had helped the LTTE by giving them food, this would now lead to any suspicion that the Applicant fought as an LTTE combatant or give rise to any imputed LTTE membership. The Authority was not satisfied that the Applicant’s profile is such that he faces any risk of being placed in rehabilitation upon his return.
At [30] the Authority considered the effect of the Prevention of Terrorism Act in force in Sri Lanka, and country information. The Authority, having regard to the Applicant’s profile, was not satisfied that he faces a real chance of being detained under that Act upon return.
At [31] – [32] the Authority had regard to country information regarding the consequences of being a Tamil, and having had connection to the LTTE. The Authority observed that the Applicant was not a member of the LTTE, nor had any significant role in the LTTE. It noted it had not accepted the Applicant’s claims that he was periodically arrested, detained, interrogated and tortured by the Authorities between 2010 and 2012 on suspicion of being an LTTE cadre. The Authority referred to media articles and reports submitted by the Applicant, stated it had regard to the material, and did not consider it provides any support for the Applicant’s claims.
At [33] the Authority referred to reports of human rights violations, referred to country information and concluded that the Applicant would not be targeted for reason of his race, age or area of origin, or that he has a profile such that he would be interest to any Sri Lankan authorities.
The Authority further referred to country information at [34] – [37]. At [38], in a passage on which Mr Chia, counsel for the Applicant relies, the Authority said:
[38]Having considered the country information, including that relating to changed country conditions detailed above, I am not satisfied there is a real chance the applicant will suffer harm from the Sri Lankan authorities because of his Tamil ethnicity and/or his origin from an area formerly controlled by the LTTE in the Northern Province, or because the LTTE occupied his family home and his family provided food to the LTTE, or because of his experiences during the war, including being displaced from his family home, disruption in daily life and general harassment experienced by Tamil civilians during the war.
The Authority then discussed the Applicant’s position as a returning asylum seeker (at [39] – [55]), accepted (at [52]) that the Applicant may be fined but that such a fine may be paid by instalments, and did not accept this would cause him economic hardship or threaten his capacity to subsist, or would otherwise amount to serious harm for the purposes of s.5J(4) of the Act.
At [55], the Authority found it was not satisfied the Applicant faces a real chance of persecution due to his illegal departure, now or in the reasonably foreseeable future if returned. At [56], the Authority concluded the Applicant did not meet the definition of refugee in s.5H(1) of the Act, and did not meet s.36(2)(a) of the Act.
The Authority then turned to, and considered, the complementary protection criterion, and for the same reasons already given, and referring to DFAT country information, found that the Applicant does not face a real risk of significant harm if he returns to Sri Lanka (at [57]‑[61]).
The Authority affirmed the Delegate’s decision not to grant the Applicant the Visa.
Grounds of review
The further amended application filed in Court pursuant to leave (see [3] above) contains two grounds of review, as follows (without alteration):
1. The second respondent (Authority) failed to consider, or to give proper, genuine and realistic consideration to, an integer of the applicant's claim.
Particulars
The applicant claimed to fear harm from paramilitaries in Sri Lanka.
2. Further or in the alternative, the failure of the Authority to consider exercising its discretion under section 473DC(3) of the Migration Act 1958 to invite, or the exercise of that discretion to not invite, the applicant to give new information was legally unreasonable.
Particulars
The information given to the delegate at the protection visa interview did not address the proximity of the applicant's school to his family home or the location where he lived with the priest from "2008 to about 2009/2010".
Relevant Legislative provisions
Subsection 473DC(3) of the Act provides the Authority with a discretion to invite the applicant to give new information:
(3)... 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.
Proceeding in this Court
At the hearing before me, the Applicant was represented by Mr R Chia of counsel on a direct access basis, and the First Respondent by Mr T Reilly of counsel.
Ground 1
Applicant’s submissions
By ground 1, the Applicant contends that the Authority fell into error in failing to consider, or give proper consideration to, the Applicant’s claim to fear harm from paramilitaries in Sri Lanka.
Mr Chia refers to the Applicant’s Statement, specifically:
They never believed that I was innocent and had no connection at all with the LTTE. They constantly accused me of being an LTTE cadre and told me that I was training during the time the LTTE occupied our house.
Mr Chia submits that this highlights that the Applicant’s claim was that he would be perceived to be an LTTE cadre, not that he was an LTTE cadre. Mr Chia draws attention to the Applicant’s claims that were he to return, he would be taken to one of the LTTE rehabilitation camps, where he would likely be killed. Mr Chia submits that this creates a twofold claim: first that the Tamil paramilitaries threatened to kill him, and secondly, that the Tamil paramilitaries acted as informants and interpreters for the SLA, and would inform the SLA that he was an LTTE cadre, facilitating him being sent to an LTTE rehabilitation camp.
Mr Chia submits that the Authority at [38] (see above at [39]) does not make any finding in relation to the Tamil paramilitaries either seeking to threaten or hurt the Applicant directly, or seeking to facilitate adverse action being taken against the Applicant by the Sri Lankan authorities.
Mr Chia refers to Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593, 604, where the Full Court of the Federal Court of Australia stated that when there are issues with evidence advanced by an applicant, a failure to deal with it in its published reasons may raise a strong inference that it has been overlooked. Mr Chia submits the lack of reference to the Tamil paramilitaries raises such an inference as stated in WAEE that an integer of the Applicant’s claim has been overlooked.
Mr Chia relies on CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65; (2017) 250 FCR 587, where the Full Court found that Tribunal did not address in its reasons a factual integer of the applicant’s claim in relation to fearing harm from the police. Mr Chia submits the circumstances considered in CDD15 are analogous to the present case, as both required the applicant to modify their conduct to avoid harm. That is, Mr Chia argues, living with the priest was a modification of the Applicant’s behaviour to avoid harm from the Sri Lankan authorities.
Mr Chia further submits that the Delegate’s acceptance of the Applicant living with a priest (although the Delegate referred to him as reverend) for schooling purposes, is inconsistent with the finding that the Applicant did not have a well-founded fear of harm, or meet the complementary protection criteria.
Mr Chia submits that although the Authority found the Applicant would not be of interest to the Sri Lankan authorities, it did so by overlooking the claim that paramilitaries would for the same reasons contribute to the Applicant being subjected to serious harm from the authorities. By failing to consider an integer of the Applicant’s claim based or the actions of the Tamil paramilitaries, the Authority constructively failed to exercise its jurisdiction, and committed jurisdictional error.
The Minister’s submissions
Mr Reilly acknowledges that the Authority must consider the Applicant’s claims. Mr Reilly submits that the reasons provided by the Authority implicitly reject the claims that are not explicitly mentioned in the reasons. The Authority is not required to give a “line-by-line” refutation of the evidence of the claimant: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [65]‑[67].
Mr Reilly refers to the Authority’s conclusions at the end of [25] and [26] of its decision; as the Authority did not accept that the Applicant was detained by the army and tortured for 2 days, the threat of being sent to a camp could not have been made. Mr Reilly submits this is similar to Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, where the Tribunal did not accept the claim that the applicant had been detained, so the claim to have been raped in detention logically could not have happened.
In relation to the claim that the Applicant’s father told him that LTTE paramilitaries and CID officers would kill him if he returned, Mr Reilly submits that this was specifically noted by the Authority at [10] of its decision. Mr Reilly relies on WAEE at [47], where the Full Court observes that the inference that a claim was not considered should not be readily drawn in cases where the reasons are otherwise comprehensive. In the present case, he submits the Authority at [29] makes a general finding on the issues relating to the LTTE, and whether the Applicant’s profile would be such that the Sri Lankan authorities would attempt to put the Applicant in an LTTE rehabilitation camp. Mr Reilly submits that it would be incorrect to presume that [29] deals only with CID officers, and not Tamil paramilitaries reporting to CID officers.
As the Authority finds that the Applicant is not suspected of being an LTTE cadre, nor to have any involvement with the LTTE, necessarily, Mr Reilly submits, the Applicant cannot have a well-founded fear of harm from either the CID or the Tamil paramilitaries.
Consideration
The Authority explicitly refers to the Applicant’s claims to fear harm from Tamil paramilitaries at [10] of its decision. The Authority also summarises the Applicant’s claims in regards to the paramilitaries sending him to the special LTTE camps if he did not tell the truth that he was an LTTE cadre. The Authority thus acknowledges the Applicant’s claims complained of in ground 1.
At [22] (and see also [24]) the Authority reiterates the Applicant’s claims that Tamil paramilitaries took over the interrogation from the CID officers, in the context of considering, and rejecting, the Applicant’s claim of arrest and torture in August 2012.
The Authority, as I have set out above, did not accept that the Applicant’s account of any arrest, detention and torture in August 2012 was credible (see Authority at [25] and [26]). The Authority was not satisfied that the Applicant was a person of interest to the authorities at that time (August 2012).
I consider that the Authority’s rejection of the Applicant’s claimed profile of risk at [28], and at the end of [29], encompasses its rejection of the Applicant’s claimed fear of paramilitaries. The Authority’s conclusions about the Applicant not having an LTTE profile and not facing harm from the Sri Lankan authorities at [27] – [29] encompasses and addresses any such claimed fear of harm from paramilitaries (whom the Applicant claimed assisted the army (at [10]), and took over his interrogation from CID officers in August 2012 (at [22])). The Authority’s further consideration in the light of country information at [31] – [33], and its conclusion, having regard to that material at the end of [33] that the Authority was not satisfied that the Applicant “would now be targeted for reason of his race, age or area of origin or that he has a profile such that he would now be of interest to any Sri Lankan authorities”, again encompasses and addresses any such claimed fear of harm from paramilitaries.
It was unnecessary for the Authority to make a particular finding on the issue claimed of fear of harm from paramilitaries, the factual premise upon which that contention rests having been rejected by the Authority’s findings: see WAEE at [47].
Ground 1 is not made out.
Ground 2
Applicant’s submissions
In relation to ground 2, Mr Chia refers to the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v CRY16[2017] FCAFC 210; (2017) 253 FCR 475, where the Full Court found that (at [82]) it was legally unreasonable not to exercise the discretionary power in s.473DC “where the Authority knew it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation”. Mr Chia submits that this statement applies in the present case to the Authority not believing the Applicant lived with the priest.
Mr Chia also relies on DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2013) 269 FCR 134, in which the Authority departed from one of the delegate’s findings in relation to an assault, relying on inconsistencies in the applicant’s evidence, but did not invite the applicant to respond to those inconsistencies. Mr Chia submits that as was the case in DPI17, the Applicant was not put on notice that his claim to have lived with the priest would be disputed, and the Authority should have invited the Applicant to provide new information on his stay with the priest.
Mr Chia further relies upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Whilst he acknowledges SZBEL was concerned with a Tribunal decision, as the Authority should operate in a way that is procedurally fair, in this regard, he submits it should operate in the same way as the Tribunal. The Applicant should have been put on notice of the differing findings between the Delegate and the Authority.
Thus, Mr Chia submits that it was legally unreasonable for the Authority not to exercise its discretion under sub-s.473DC(3).
The Minister’s submissions
Mr Reilly relies on DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551, at [72] that:
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
Mr Reilly distinguishes DPI17 as in that case, the applicant was assured by the Delegate that they found the claim of sexual assault whilst being detained credible, thus essentially disabling the applicant from putting further evidence before the Authority. However, in the present case, the Authority simply came to a different conclusion in relation to the claim about living with the priest, noting the lack of evidence provided. Mr Reilly submits that applying DGZ16, there was nothing before the Delegate that would have dissuaded the Applicant from putting further evidence on in relation to that claim, and so the Authority was not required to invite the Applicant to provide new information. It is not unreasonable for the Authority to make different factual findings to those found by the Delegate without first exercising s.473DC(3) of the Act: see FND17 v Minister for Immigration [2019] FCA 1369, [43], per Griffiths J.
In any event, Mr Reilly submits that were it to be found that the Authority should have exercised its discretion under s.473DC(3) of the Act, the Authority’s finding in relation to that claim would have to be material to its decision. Even were the Authority to have accepted the claims regarding living with the priest, Mr Reilly submits that there is a realistic probability that the Authority would not have come to a different result regarding the Applicant’s fear of harm.
Consideration
The Applicant claims the Authority’s failure to exercise its discretion under s.473DC(3) of the Act to provide an opportunity to the Applicant to give new information was legally unreasonable.
The Authority concluded at [18]-[19] that the Applicant was not at risk of being taken by the LTTE or being arrested by the army, or that he had lived with the priest. The Authority’s conclusion it was not satisfied the Applicant lived with the priest as claimed was based on its consideration of the evidence before it and its lack of plausibility, particularly considering evidence given on other matters, and the fact the school the Applicant attended whilst he claimed to be living with the priest was in the same area as the family home. Given this proximity, the Authority considered that had the Applicant been of any adverse interest to the authorities or the LTTE it would not have been difficult to find him (last sentence, [18]).
The Authority may reach different factual findings than the Delegate: see, e.g., FND17. The findings concerning the priest flow logically from the Authority’s finding that the Applicant was not of adverse interest to the authorities (see above). In these circumstances, I consider it was not unreasonable for the Authority not to invite the Applicant to give new information, nor not to consider exercising its discretion whether or not to do so.
Both DPI17 and CRY16 are distinguishable. In DPI17, the applicant relied upon evident assurances given by the Delegate. No such assurance was given here. In CRY16, the Authority decided the matter on a completely different basis to the Delegate, which was the primary reason for rejecting the application.
Further, given the Authority’s finding as to the Applicant’s fear of being returned in 2018, there is nothing to suggest that whether or not the Applicant stayed with the priest in 2008 – 2009 was material.
I find that the Authority did not legally unreasonably. Ground 2 is not made out.
Conclusion
I have concluded that neither of the grounds put forward by the Applicant are made out. It follows that the further amended application should be dismissed, with costs. I will so order.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 5 June 2020
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