BHH18 v Minister for Home Affairs
[2020] FCCA 337
•20 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHH18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 337 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether IAA erred in finding information before it to be “new information” – whether information in footnotes is information “before the Minister” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB Prevention of Terrorism Act 1978 (SL) |
| Cases cited: BVD17 v Minister for Immigration & Border Protection & Anor [2019] HCA 34 CVV16 v Minister for Home Affairs [2019] FCA 1890 |
| Applicant: | BHH18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 148 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 28 March 2019 |
| Date of Last Submission: | 28 March 2019 |
| Delivered at: | Perth |
| Delivered on: | 20 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Saul-Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Mr P J Hannan |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 148 of 2018
| BHH18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 14 February 2018.
The IAA’s decision affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise Visa (the “visa”).
The applicant filed an amended application in this Court with a new ground of review on 31 January 2019. That sole ground of review, discussed below, is the subject of this judgment.
This proceeding is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
The Court had before it a Court Book (“CB”) spanning 397 pages, an affidavit of Shaun Wyn-Jones affirmed 30 January 2019, written submissions from the applicant dated 30 January 2019, written submissions from the Minister dated 21 December 2018 and further written submissions from the Minister dated 13 February 2019.
This matter was heard on 28 March 2019. The applicant was represented by Mr Saul-Jahnke. The Minister was represented by Mr Hannan.
On 9 May 2019, the Court made orders in Chambers adjourning the matter pending the High Court decision in BVD17 v Minister for Immigration & Border Protection & Anor [2019] HCA 34 (“BVD17”). The parties were provided an opportunity to file any written submissions addressing the issues that arose in BVD17 in relation to a certificate issued under s.473GB. Neither party filed any further submissions. In the circumstances, the Court does not consider there to be any issue or jurisdictional error alleged in relation to the certificate issued in this matter (CB 344).
Background
The applicant in these proceedings is a Sri Lankan Tamil of the Catholic faith (CB 58).
On 23 October 2012, the applicant arrived in Australia via Cocos (Keeling) Islands as an unauthorised maritime arrival (CB 65).
On 10 December 2015, the Minister lifted the bar under s.46A(2) of the Act and invited the applicant to apply for the visa.
On 13 March 2017, the applicant lodged an application for the visa. He was assisted by a migration agent. His claims for protection were articulated as follows:
• He is of Tamil ethnicity and Catholic faith and has lived most of his life in Jaffna, a Liberation Tigers of Tamil Eelam (LTTE) controlled area during the war.
• His family were displaced a number of times due to the conflict. When they returned to their home in 2005, after fighting in the area, the home was uninhabitable as it had been used by the Sri Lankan Army in the conflict.
• His family was heavily involved with the LTTE during the conflict. Three of his uncles and his cousins were members; one cousin was shot by the Sri Lankan Army (SLA) in 1996 and two uncles each travelled overseas to obtain funding for the LTTE during the conflict in the 1990s. His father undertook training with the LTTE in 1994 and supported them, including financially, during the conflict.
• From 2002 until 2004 his father coached the LTTE soccer team on a weekly basis and was harassed by authorities because of this involvement.
• His father supported former LTTE combatants returning to Jaffna after the end of the war including by providing them with food from the fish market where he worked.
• His father was close friends with ‘P’ who was the chair of the LTTE sports club. P surrendered to the authorities after the war and subsequently worked with an intelligence investigative team that worked from the Bandaranaike International Airport to help identify those with LTIE-connections.
• During an altercation with Sinhalese men in 2009 the applicant and his friends were assaulted and subsequently arrested, falsely charged and fined by the police.
• In 2012 his father received threatening calls from unknown people requesting money and stating they knew he had provided money to the LTTE. The unknown callers threatened to kidnap the applicant if the money was not handed over and the applicant subsequently hid in Colombo in August 2012 and then travel to Australia by boat in October 2012.
• After his departure his father continued to receive threatening calls from the unknown people. He lodged a complaint with the Human Rights Commission about this in February 2013. His father eventually departed Sri Lanka for India in 2013 because of the threatening calls and has not been in touch with his family since.
• Since 2015 he has been a member of the Tamil Eelam Cricket Club in Australia which would be perceived to be associated with the Tamil separatist movement by Sri Lankan authorities and the applicant fears, given his profile, including his membership in the club, that he will be harmed by authorities if returned to Sri Lanka.
• The applicant departed Sri Lanka illegally and will return as a failed asylum seeker.
The applicant attended an interview with the Ministerial delegate on 17 May 2017 (CB 177-178).
On 31 May 2017, the applicant’s representatives provided post interview submissions and supporting information to the delegate (CB 205-336). The Court will return to one of these documents in detail below.
On 7 June 2017, the delegate refused to grant the applicant the visa (CB 320-335).
The matter was then referred to the IAA.
The applicant’s representatives provided written submissions to the IAA on 13 July 2017. Relevantly, that submission stated:
All information provided in the attached submission is based on information that was before the Delegate of the Minister for Immigration and Border Protection. This submission contains no ‘new information’ within the meaning of s 473DC of the Act.
The IAA affirmed the delegate’s decision on 14 February 2018.
The IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act is unusually rigid and limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a 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 IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information”. Section 473DC(1)(a) defines “new information” as follows:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
Here, the IAA’s decision is 18 pages long and spans 54 paragraphs. Four pages extract the legislative provisions relevant to protection matters of this sort. The IAA accurately summarises these provisions at [35]-[36] and [50]-[51].
The Court notes the Ministers’ extensive summary of the IAA’s decision in written submissions dated 21 December 2018 at [7]-[24]. The summary provided is accurate. The Court adopts it as its own, with some additions and minor amendments, as follows.
At [3], the IAA notes that it considered the materials referred by the Secretary under s.473CB of the Act. At [4], the IAA outlined that it had received submissions from the applicant and noted that, to the extent that the submissions contained argument, the IAA had had regard to them.
However, the IAA found that the submissions also contained “new information”, namely:
a)a “new claim” and “new information” regarding the Transnational Government of Tamil Eelam (the “TGTE”); and
b)new information concerning examples of football teams (West Papuan Warriors Rugby Team and Tibet National Football Team) who represented threats to stability and unity of the state.
At [6]-[7], the IAA found as follows:
6. Turning to the new claim and new information regarding the TGTE. A screenshot of the Tamil Eelam Cricket Club’s Wikipedia page showing the link to the TGTE Wikipedia page was before the delegate. Also before the delegate was the submission that the TGTE were “at the forefront of separatist politics” and that the phrase “Tamil Eelam” carries a strong association with Tamil separatist politics because, among other things, it is used by groups such as the TGTE. Not before the delegate, and what I consider new information regarding the TGTE, is the statement in the submission that the link from the Tamil Eelam Cricket Club Wikipedia entry to the TGTE Wikipedia entry “demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement” and that the TGTE is still prescribed under the Prevention of Terrorism Act (PTA). The applicant has not provided an explanation as to why this information was not provided earlier or how the information is credible personal information. The source of the information about the TGTE still being prescribed under the PTA appears to be a report pre-dating the delegate’s decision. I consider the applicant has had a number of opportunities to provide his complete claims; namely, in the arrival interview on 19 January 2012 (arrival interview), SHEV interview, SHEV application and post-SHEV interview submission. He has also been represented by the same lawyer since the SHEV application stage. I consider the new information to be in the nature of general country information only. The applicant has not satisfied me as to the matters in s.473DD(b). Having regard to the applicant’s circumstances as a whole I am also not satisfied that there are any exceptional circumstances to justify considering this information.
7. In relation to the new information regarding the West Papuan Warriors Rugby team and Tibet National Football team. It was before the delegate that globally sporting teams have been used “as a means of expressing nationalist sentiment among the diaspora of ethnic groups who do not possess a sovereign state”. The examples of these types of groups provided to the delegate by the applicant were of the Palestinian diaspora football club in Chile and the Kurdish diaspora football club in Sweden. In the submission two further examples of these types of groups were provided for the first time, namely the West Papuan Warriors Rugby team and the Tibet National Football team. These examples were not provided to the delegate and I consider this new information. The applicant has not provided an explanation as to why this information could not have been provided earlier or how this information is credible personal information. No source is provided for the new information. I consider the applicant has had the opportunity to present his complete claims and has been represented by the same lawyer since the SHEV application stage. I also consider this new information to be in the nature of general country information only. The applicant has not satisfied me as to the matters in s.473DD(b). I am also not satisfied that there are any exceptional circumstances to justify considering this information.
The IAA then noted that the applicant’s written submission included a request for an interview to discuss the applicant’s protection claims. The IAA found that the applicant had had the opportunity to present his case and an interview was not warranted (at [8]).
The IAA then summarised the applicant’s claims as they appear above in this judgment at [11].
In relation to the applicant’s identity and background, the IAA accepted that the applicant was of Tamil ethnicity and Catholic faith and that he was born in the Northern Province of Sri Lanka (CB 377 at [10]). The IAA also accepted that the applicant’s family was temporarily displaced on a number of occasions during the conflict and that their home may have been damaged in 2005 (CB 377 at [11]).
In relation to the applicant’s claimed family connections to the Liberation Tigers of Tamil Eelam (the “LTTE”), the IAA accepted aspects of the applicant’s claims despite these not being raised at the entry interview. Relevantly, the IAA (at [13]):
a)accepted that the applicant’s family provided support (including monetary support) to the LTTE;
b)accepted that the applicant’s father may have briefly been forced to undertake physical training with the LTTE;
c)accepted that the applicant’s uncles may have been members of LTTE more than 20 years ago;
d)noted that the applicant did not claim to have been harassed or detained by authorities in connection with his family’s past involvement with the LTTE; and
e)overall, did not accept that the applicant was of interest to the authorities while in Sri Lanka because of his family’s past involvement with the LTTE.
The IAA noted the applicant’s claim that his mother took him to meet his cousins (who were in the LTTE) in 1996. The IAA accepted that the applicant’s cousins may have been members of the LTTE and that one of his cousins was shot when pursued by the Sri Lankan Army (the “SLA”). However, the IAA noted that the applicant was not at his cousin’s place when these events occurred and he had not claimed that he or his mother were implicated. In the circumstances, the IAA did not accept that the applicant was of interest to the authorities because of his cousins’ involvement with the LTTE more than 22 years ago (CB 378 at [14]).
The IAA also accepted that the applicant’s father may have coached the LTTE soccer team during the ceasefire (CB 379 at [18]). However, given the lack of detail and inconsistencies, the fact that the applicant’s father only coached the team when the government ban on the LTTE was lifted and that he was never an LTTE member or detained or interrogated by authorities, the IAA did not accept that the applicant’s father was harassed or was of interest to authorities because of his coaching activities (CB 378-379 at [15]-[18]).
Further, the IAA did not accept that the applicant’s father provided fish to returning LTTE combatants immediately after the war. The IAA found that the applicant had provided very little detail in relation to this claim and that the claim was “implausible” (CB 379 at [19]).
At [20], the IAA found as follows:
The applicant claims that his father’s LTTE friend, P, surrendered sometime after the war and now works at Bandaranaike International Airport identifying members of the LTTE when they return to Sri Lanka and that the applicant will be identified by P at the airport if he is returned because he knows the applicant “very well”. This claim was first mentioned in the SHEV application. In the SHEV application the applicant states that while his dad coached the LTTE soccer team, P would collect him every Friday very early in the morning and take him to somewhere in the Vanni so that he could coach the team. In the SHEV interview the applicant said that P aligned himself with the government at the end of the war but he was not sure what date he started working at the airport. He said that he knows “he works at the airport” and that some of his father’s friends had been detained by him, but no detail was provided regarding this. Included in a submission lodged by the applicant’s lawyers after the SHEV interview was a copy of an article dated 2011 stating that a person with the same name as the applicant’s father’s friend was the LTTE’s Sports Head and after having surrendered to the government after the war was said to be part of the intelligence investigative team operating at the Bandaranayake International airport. In the SHEV interview the applicant confirmed his father had never been interrogated or questioned by authorities and I do not accept he was ever harassed by authorities after the war in connection with his past association with the LTTE. I consider it implausible that a high-profile LTTE member such as the Sports Head would transport his father every week to the Vanni to coach a soccer team. While I am willing to accept his father may have known of the LTTE Sports Head and may have met him, I do not accept they were close friends. At the time his father coached the LTTE soccer team the applicant would have been between 10 and 12 years of age. In 2010 the applicant travelled to India to assist a friend transport items back into Sri Lanka in 2011 and based on the article it appears the LTTE Sports Head was working for the government in 2011. In the SHEV interview the applicant confirmed he did not suffer any harassment at the airport when leaving or returning to Sri Lanka on this trip. Given the applicant’s young age when his father may have met the LTIE Sports Head, that I do not accept his father was close friends with this high-profile LTIE Sports Head, that neither his father nor the applicant was an LTIE member and that his father was not detained because of his past association with the L TIE after the war, I do not accept the LTTE Sports Head knew the applicant.
The IAA accepted that the applicant was arrested and charged with assault in August 2009 (CB 380 at [21]).
The IAA did not accept that the applicant’s father received threatening phone calls from people in 2012, that these threats and calls continued or that his father fled to India in 2013 and his whereabouts were unknown (CB 381 at [25]). In rejecting this claim the IAA placed little weight on a letter about his younger brother and found that the applicant had wired money to his father in 2015. This, it was found, undermined his claims (CB 380-381 at [22]-[24]). The IAA also found that it was implausible that unknown people would continue to call and threaten the applicant’s father for 5 months but not act on these threats (CB 381 at [24]-[25]).
At [26], the IAA discussed the applicant’s claim concerning the Tamil Eelam Cricket Club (the “Cricket Club”), as follows:
The applicant claims that in about August 2015, he joined the Tamil Eelam Cricket Club in Australia. The applicant’s lawyers state that the applicant’s participation in the club should be considered a “diaspora activity that is extremely likely to be perceived as promoting and propagating the Tamil Eelam separatist agenda” and he will consequently be perceived as a threat to the integrity of the Sri Lankan state. This is because, among other things, the club has links on its pages to the Government of Tamil Eelam page which refers to the campaign to have “Tamil Eelam” listed as a country on the Australian census. The club uses the controversial phrase “Tamil Eelam” in its name which phrase is often used by militant groups and the TGTE whose ultimate goal is the creation of a separate state, Tamil Eelam, and the phrase is perceived by the Sri Lankan authorities as being connected to separatism. The club’s activities should also be understood in the global context, where sporting groups are often used as a “means of expressing nationalist sentiment among diaspora of ethnic groups who do not possess a sovereign state”.
At [27]-[31], the IAA summarised the documents that the applicant had supplied in relation to the claim concerning the Cricket Club and the evidence and submissions the applicant had provided in the course of the application process in relation to this claim. The IAA noted that the applicant had only claimed that he had attended Martyrs Days ceremonies or public demonstrations regarding Tamil separatism either by himself or with the Cricket Club late in his interview with the delegate and had provided little detail. In these circumstances, the IAA did not accept this claim (CB 382 at [31]).
At [32], the IAA found as follows:
Based on the evidence before me, I accept the applicant joined the club in 2015 and is a central figure in the team and has a genuine commitment to the team. There is no evidence before me to suggest the applicant had a political profile while in Sri Lanka. There is no credible evidence before me to suggest the applicant has participated in public demonstrations in Australia in connection with Tamil Separatism whether by himself or with the club. I consider the club aims to distance itself from the Sri Lankan civil war, the LTTE and other similar groups and causes and publicly promotes this as one of its objectives through various means such as playing a game with a group of Sinhalese youths in Australia. It appears most of the attention received by the club on Facebook is positive. I am not satisfied the applicant would be imputed by the authorities in Sri Lanka with Tamil separatist politics because he is a member of the Tamil Eelam Cricket Club in Australia
The IAA also did not accept that the Cricket Club members’ families in Sri Lanka were harassed. This determination was based on the lack of detail surrounding this claim and the late disclosure of the claim (CB 382 at [33]).
The IAA accepted that the applicant left Sri Lanka illegally and would be identified by authorities on his return as having departed illegally as a returning asylum seeker and Tamil (CB 383 at [34]).
The IAA also noted that the applicant did not make claims about his Catholic religion and that no such claim arose on the facts (CB 383 at [37]).
Having regard to its factual findings, the IAA found that the applicant and his family’s claimed links to the LTTE in Sri Lanka, and his activities in Australia, did not give rise to any imputed or actual association with the LTTE (CB 383 at [37]).
The IAA also summarised the country information, noting that it suggested that monitoring and harassment of Tamils generally has decreased since the end of the war and only high profile LTTE suspects are at risk of being monitored (CB 384 at [38]-[41]).
At [42], the IAA found as follows:
The applicant states that the use of the controversial phrase “Tamil Eelam” in his cricket club’s name and of a sporting group as a platform to promote, broadly, marginalised Tamils, will attract the adverse attention of the Sri Lankan government. There is nothing in the available country information to support the view that the mere use of the phrase “Tamil Eelam” in a group’s name, or that this coupled with the use of a sporting club designed to promote pride and provide a positive environment for young Tamils, will attract the adverse attention of the Sri Lankan government. The club is not on the government’s list of Tamil diaspora organisations. The available country information reports that under Sirisena, the Sri Lankan government has demonstrated a commitment to easing restrictions, lifting its listing for eight Tamil diaspora organisations and 269 individuals in November 2015. I do not consider the applicant had a political profile while in Sri Lanka, nor am I satisfied that involvement with the club would lead him to be viewed as a person of interest to the authorities in Sri Lanka.
The IAA did not accept that the applicant would face a real chance of harm from the authorities because of his past involvement with the LTTE, his charges or his membership of the Cricket Club if he returned to Sri Lanka (CB 384-385 at [42]-[43]). The IAA also did not accept that the applicant was of ongoing interest to the authorities or would be harmed on account of his ethnicity (CB 385 at [44]).
At [45]-[46], the IAA summarised the country information concerning the treatment the applicant might receive when returning as an illegal departee. The IAA found that the applicant was likely to be detained upon arrival at the airport for processing but that this was in accordance with Sri Lankan laws which apply to all Sri Lankan citizens. The IAA determined that, as such, this was not “persecution” because it was not “discriminatory” (CB 386 at [47]-[48]).
The IAA found that the applicant did not meet the definition of a “refugee” and, as such, did not meet the requirements of s.36(2)(a) of the Act (CB 386 at [49]).
In relation to the required complementary protection assessment, the IAA concluded that, for the reasons given in relation to the refugee criterion, the applicant did not face a real risk of significant harm in Sri Lanka. The IAA noted that any harm faced as a result of the applicant’s illegal departure would not constitute significant harm within the meaning of s.36(2A) of the Act (CB 387 at [52]-[53]).
In light of the above, the IAA affirmed the delegate’s decision not to grant the applicant the protection visa he was seeking.
Proceedings in this Court
The application for judicial review (as amended on 30 January 2019) contains one ground of review as follows:
The Immigration Assessment Authority (Authority) erred in excluding consideration of the evidence that:
a.the link from the Tamil Eelam Cricket Club Wikipedia entry to the Transnational Government of Tamil Eelam (TGTE) Wikipedia entry ‘demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement’; and
b. ‘the TGTE is still prescribed under the Prevention of Terrorism Act’.
Particulars
a. A screenshot of the Wikipedia entry for the ‘Tamil Eelam national cricket team’ (containing both the Applicant’s full name and a direct link to the TGTE Wikipedia entry) was before the Delegate (CB: 288-289) and is not ‘new information’ for the purposes of s.473DC of the Migration Act 1958 (Cth) (Act).
b. The information or claim that the link from the Tamil Eelam Cricket Club Wikipedia entry to the TGTE Wikipedia entry ‘demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement’ was squarely raised in the post-interview written submission to the Delegate (CB: 213 [27]) and is not considered ‘new information’ for the purposes of s.473DC of the Act.
c. The information or claim that the TGTE is proscribed under the Prevention of Terrorism Act is sourced from Gazette, No. 1941/44 – 20 November 2015 which is available at paragraph 6.2.2 of the UK Home Office report titled ‘Country Policy and Information Note Sri Lanka: Tamil separatism’ dated 8 March 2017. This report was discussed in the post-interview written submission to the Delegate (CB: 216 [40]) and is not ‘new information’ for the purposes of s.473DC of Act.
An affidavit of Shaun Wyn-Jones affirmed 30 January 2019 annexed a copy of the “Country Policy and Information Note Sri Lanka: Tamil separatism” (the “Policy Note”) and a copy of the Gazette of the Democratic Socialist Republic of Sri Lanka, No. 1941/44 (the “Gazette”).
Applicant’s Submissions
By way of background, Counsel for the applicant provided the following information to assist in relation to the sole ground of review:
a)on 31 May 2017, the applicant provided the delegate with a written submission which reiterated that the applicant ‘fears he would face a real chance of serious harm and a real risk of significant harm for reasons of his membership of the Tamil Eelam Cricket Club in Australia.’ Annexed to that submission was a screenshot showing the Wikipedia entry for the ‘Tamil Eelam national cricket team’, which publicly listed:
i)the applicant (by his full name) as one of the eight team members; and
ii)a link to the TGTE Wikipedia entry;
b)the written submission to the delegate explained that the associations on weblinks (such as the Cricket Club’s Wikipedia entry) would be interpreted as evidence of the Cricket Club’s support for a separate Tamil homeland:
The Tamil Eelam Cricket Club continues this tradition of promoting international recognition and visibility for the Tamil people’s aims of obtaining a separate Tamil homeland, as well as asserting their marginalised identities as Tamils. This aim is evident both through the associations evident from the links cited above, but also through their controversial choice of name. It clearly links participants in the team with separatist politics which, as the UK Upper Tribunal observed in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), exposes the Applicant and his teammates to a real risk of harm if returned to Sri Lanka.
c)in the conclusion to the submissions, the applicant asked that the delegate take into account all information “including all websites referenced and all subsequent references contained within these websites”;
d)further, footnote 60 of the submissions referenced and linked the Policy Note. Paragraph 6.2.2 of the Policy Note provides a link to the Gazette. Page 2 of the Gazette records the TGTE as one of the eight remaining proscribed terrorist organisation in Sri Lanka;
e)on 12 July 2017, the applicant provided the IAA with a written submission containing new information which stated as follows:
The Delegate’s claim that the Tamil Eelam National Cricket Team would not be perceived as working for or supporting Tamil separatism is naïve in the extreme. At the very least, the Tamil Eelam Cricket Club’s Wikipedia page automatically links readers to the Wikipedia page for the Transnational Government of Tamil Eelam (TGTE) – one of the eight remaining organisations still proscribed under the Prevention of Terrorism Act by the current Sri Lankan government (under Gazette, No. 1941/44 – 20 November 2015). The Gazette accuses the TGTE as being ‘Terrorism related activities and Financing Terrorism’. The very fact that the Tamil Eelam Cricket Club Wikipedia entry links readers to the TGTE entry demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement.
f)on 14 February 2018, the IAA affirmed the delegate’s decision to refuse to grant the applicant the visa. In its decision, the IAA found that the IAA submission contained a “new claim” and “new information” – specifically:
i)the claim that the link on the Cricket Club’s Wikipedia page to the TGTE “demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement” (the “Wikipedia Claim”); and
ii)the information that the TGTE was “still prescribed under the Prevention of Terrorism Act” (the “TGTE Information”); and
g)the IAA excluded these from consideration on the basis that there were no exceptional circumstances which justified consideration as required by s.473DD of the Act.
The applicant argues that the classification of these two matters as a “new claim” and as “new information” was an error. They were, the applicant says, matters that were before the delegate.
Specifically, the applicant contends that the Wikipedia Claim was not “new information” because:
a)the submissions to the delegate stated that ‘there is a real risk that the Applicant’s membership of the Tamil Eelam Cricket Club has or will come to the attention of the Sri Lankan authorities and that the Applicant’s association with the club will cause the Applicant to be imputed with an association with the LTTE and post-conflict Tamil separatism’;
b)the submissions to the delegate annexed a screenshot of the Wikipedia entry for the ‘Tamil Eelam national cricket team’ (which contained both the applicant’s full name and a direct link to the TGTE Wikipedia entry);
c)the submissions to the delegate stated that the TGTE ‘put the idea of Eelam at the forefront of separatist politics: ‘The first guiding principle of the TGTE is unambiguously clear about the ultimate goal being the creation of Tamil Eelam’’; and
d)the submission to the delegate raised the claim (at [27]) that the Cricket Club’s alignment with the Tamil Eelam separatist movement is ‘evident… through the associations evident from the [web]links cited above’. One of the “above” cited weblinks was the Wikipedia entry for the ‘Tamil Eelam national cricket team’ which linked to the TGTE.
The applicant further argues that the delegate had before it the claim that the Cricket Club’s Wikipedia entry was associated with the TGTE Wikipedia entry. That is, it had the Wikipedia Claim before it.
As such, it is argued, the IAA erred in finding that the Wikipedia Claim was a new claim.
Further, it is submitted, the TGTE Information was not new information because:
a)this information was sourced from the Gazette which was referenced and hyperlinked at [6.2.2] of the Policy Note. The Policy Note was in turn cited at paragraph 40 (and footnote 60) of the applicant’s submissions to the delegate; and
b)in the submissions to the delegate, the applicant explicitly requested ‘the decision-maker take all of this information (including all websites / documents referenced in footnotes (and any subsequent footnotes or references contained within these footnoted websites / documents)) into account when making a decision on his application’.
The applicant states that this is not a case where the applicant is arguing that the delegate should be taken to have constructively had the Gazette before him. Rather, the applicant made an explicit written request that the delegate take into account all footnotes and references contained within the documents footnoted in the submissions to the delegate. The Gazette fell within the scope of the applicant’s request.
Hence, it is argued, the information that ‘the TGTE is still prescribed under the Prevention of Terrorism Act’ was not ‘new information’ and the IAA erred in finding otherwise.
In respect of materiality, the applicant’s complaint here is not only that the IAA overlooked an item of evidence, but rather that it intentionally decided not to consider what it referred to as a ‘new claim’. Given the present matter involves the IAA’s intentional failure to consider a claim (as opposed to only a piece of evidence), there is no requirement that the applicant demonstrate that the rejected material was ‘fundamental’, ‘important’ or ‘overwhelming’. The IAA must consider all claims, including essential components or integers of such claims which the Wikipedia Claim and TGTE Information were.
At hearing, Mr Saul-Jahnke for the applicant emphasised as follows:
a)the Cricket Club itself, and its associations online with the TGTE, placed the applicant in a category of being imputed with a certain separatist political opinion;
b)there is a statutory requirement for the IAA to consider the review material. The case law makes clear that the IAA must review the claims that were put to the delegate. Here, we have a claim that the IAA has purposely severed from the rest of the case;
c)the Wikipedia page was provided to the delegate as a PDF document. It was a direct print out from the internet and contained the hyperlink. This would allow both the IAA and the delegate to click on the link and immediately access the relevant website;
d)the applicant has clearly raised as an integer of his claim that the reason why the Cricket Club has particular concerns is because of the online presence and its associations online to certain separatist political groups;
e)in the submission to the IAA the applicant has simply argued with the delegate’s findings and reiterated his claim that he has raised earlier (but, perhaps, with more specificity). The applicant in his submissions has very clearly relied on information that was already before the delegate. The submissions to the IAA simply “go into” his attachments and explain what they mean;
f)the IAA’s finding at [32] was a very easy finding for the IAA to make once it was found that the Cricket Club had no political connotations and was just a cricket club. However, it can be seen from the Cricket Club’s Wikipedia page that despite its efforts, it is still imputed with political connotations;
g)if the Cricket Club’s Wikipedia page was taken into account, [32] of the IAA’s decision would need to be worded differently. As opposed to just looking at the aims and intentions of the Cricket Club (which is what it does at [32]), the IAA would need to address outside perceptions;
h)here, the applicant has asked the delegate to take into account websites and documents footnoted and documents subsequently footnoted in those documents. This is not an endless task. It only references documents within documents;
i)it would be an unusual proposition that footnotes in submissions to the delegate are not before a delegate and that the websites in footnotes or hyperlinks to those footnotes are not before a delegate; and
j)it is common practice in a number of visa applications (such as business sponsorship applications) for the Department to specifically ask for a web address. Hyperlinks provide information that then becomes information “before the delegate”.
Minister’s Submissions
The Minister’s written submissions in relation to the Wikipedia Claim can be summarised as follows:
a)the words “before the Minister” in s.473DC(1)(a) refer only to material physically before the Minister, not in respect of which the Minister may have constructive knowledge because of the breadth of the material held by the Department;
b)it is artificial to distinguish between “claims” and “information”. While a “claim” in the most general terms is simply an expression of fear of return to another country for some reason, a “claim” does not exist in a vacuum. It only carries with it a meaning capable of consideration if it is accompanied by asserted facts and circumstances;
c)in circumstances where the applicant did not physically provide a copy of the TGTE Wikipedia entry, it cannot be said that the relevant document was “before the Minister”;
d)further, the submissions to the delegate make a different claim from that made in the last sentence of [8] of the written submission to the IAA; and
e)if (which is denied), the IAA made a legal error in relation to the Wikipedia Claim, such an error was immaterial to the outcome of the IAA review. The IAA’s findings at [32] rendered moot the claim made in the last sentence at [8] of the written submission to the IAA.
The Minister’s submissions in relation to the TGTE Information can be summarised as follows:
a)the applicant is effectively contending that all information in footnotes to a written submission to the delegate, even “footnotes to those footnotes”, is information that was “before the Minister” for the purposes of s.473DC(1) of the Act. Such a construction is inconsistent with the scheme and purpose of pt.7AA and would produce great inconvenience;
b)the Policy Note at [6.13] refers to the Prevention of Terrorism Act 1978 (SL). The Policy Note at [6.2.2], footnote 10 refers to the Gazette. A perusal of the Gazette shows that the TGTE is made a proscribed entity under the United Nations Act 1968 (SL), not the Prevention of Terrorism Act 1978 (SL);
c)the written submission to the IAA refers to the Gazette and asserts that, by reason of the Gazette, the TGTE is “still prescribed under the Prevention of Terrorism Act”;
d)it is important to note that the written submissions to the delegate at [40] did not deal with the status of the TGTE, either under the United Nations Act 1968 (SL) or the Prevention of Terrorism Act 1978 (SL);
e)in circumstances where the applicant did not physically provide a copy of the Gazette, it cannot be said that the document was before the Minister;
f)the delegate’s decision sets out the relevant findings and the information that was relied upon by the delegate. Therefore, the applicant would have been on notice from the decision record that the Gazette was not referred to by the delegate. If the Gazette was of critical importance to the applicant’s claims, the applicant could have provided submissions to the IAA detailing the importance of the Gazette; and
g)if (which is denied), the IAA made a legal error in relation to the TGTE Information, such an error was immaterial to the outcome of the IAA review. The written submission to the IAA at [8] refers to the Gazette and asserts that, by reason of the Gazette, the TGTE is “still prescribed under the Prevention of Terrorism Act”. The Gazette makes the TGTE a prescribed entity under the United Nations Act 1968 (SL) rather than the Prevention of Terrorism Act 1978 (SL).
At hearing, Counsel for the Minister, Mr Hannan, stated:
a)the context within which the various links and articles and annexures were put was that the Cricket Club had received attention both online and in the printed press in Sri Lanka and internationally. Hence, the claim at [8] of the IAA’s submissions differs from [27] of the submissions to the delegate. The context matters;
b)the mere fact that there is a “see also” link when you are dealing with a topic in an online encyclopaedia suggests that one should not read too much into it. The way the claim concerning the Cricket Club was put at the delegate stage was not with emphasis on the “see also” part but on the fact that the Cricket Club, and the applicant being named, had an online presence;
c)if a submission contains a statement requesting “any subsequent footnotes or references contained therein within these footnoted websites” be taken into account, where would that request end? It would effectively mean that the mere putting of such a statement in a submission would mean that reliance could be placed on a link within a link to a paragraph or topic which was not even loosely touched upon in the submissions or claims. There has to be some element of practicality here;
d)it would be a remarkable proposition to find that the IAA failed to deal with an absolutely vital piece of information when that information was not put to the delegate as a vital piece of information; and
e)the TGTE Information is evidence and there is no failure to complete the statutory task if one fails to consider evidence that is not vital to the decision. Here, the TGTE Information was not presented as vital evidence at the delegate stage.
Consideration
The issue in this case is whether the IAA was correct in finding that the Wikipedia Claim and the TGTE Information were “new information” as that term is defined by the Act.
In submissions to the IAA, the applicant’s agents stated as follows:
The Delegate’s claim that the Tamil Eelam National Cricket Team would not be perceived as working for or supporting Tamil separatism is naive in the extreme. At the very least, the Tamil Eelam Cricket Club’s Wikipedia page automatically links readers to the Wikipedia page for the Transnational Government of Tamil Eelam (TGTE) - one of the eight remaining organisations still proscribed under the Prevention of Terrorism Act by the current Sri Lankan government (under Gazette, No. 1941/44 - 20 November 2015). The Gazette accuses the TGTE as being ‘Terrorism related activities and Financing Terrorism’. The very fact that the Tamil Eelam Cricket Club Wikipedia entry links readers to the TGTE entry demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement.
The footnote to the information referred to in this paragraph reads as follows:
18 UK Home Office, Country Policy and Information Note Sri Lanka: Tamil separatism, March 2017, 8 < v4_0_March_20l7 ,pdf> p 17. Note: this document was discussed in detail in the Applicant’s post-Interview written submission dated 31 May 2017 and should not be considered ‘new Information’.
For ease of reference, the IAA found as follows in relation to the submission:
Turning to the new claim and new information regarding the TGTE. A screenshot of the Tamil Eelam Cricket Club’s Wikipedia page showing the link to the TGTE Wikipedia page was before the delegate. Also before the delegate was the submission that the TGTE were “at the forefront of separatist politics” and that the phrase “Tamil Eelam” carries a strong association with Tamil separatist politics because, among other things, it is used by groups such as the TGTE. Not before the delegate, and what I consider new information regarding the TGTE, is the statement in the submission that the link from the Tamil Eelam Cricket Club Wikipedia entry to the TGTE Wikipedia entry “demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement” and that the TGTE is still prescribed under the Prevention of Terrorism Act (PTA). The applicant has not provided an explanation as to why this information was not provided earlier or how the information is credible personal information. The source of the information about the TGTE still being prescribed under the PTA appears to be a report pre-dating the delegate’s decision. I consider the applicant has had a number of opportunities to provide his complete claims, namely, in the arrival interview on 19 January 2012 (arrival interview), SHEV interview, SHEV application and post-SHEV interview submission. He has also been represented by the same lawyer since the SHEV application stage. I consider the new information to be in the nature of general country information only. The applicant has not satisfied me as to the matters in s.473DD(b). Having regard to the applicant’s circumstances as a whole I am also not satisfied that there are any exceptional circumstances to justify considering this information.
The Policy Note (which the IAA appears to have found was “new information”) states as follows:
6.2.1 The Rajapaksa government proscribed a number of Tamil groups active around the world who were not allowed to engage jn Sri Lanka. A letter (Available on request) from the British High Commission in Colombo dated 30 November 2015, noted that the new government de-proscribed the following Tamil groups/ organizations:
1. The Global Tamil Forum
2. British Tamil Forum
3. National Council of Canadian Tamils
4. Tamil Youth Organisation
5. World Tamil Coordinating Committee
6. Canadian Tamil Congress
7. Australian Tamil Congress
8. Tamil National Council
Membership or affiliation to the above groups is no longer regarded by the government of Sri Lanka as terrorism or terrorist activity. The members of these groups whether active or lay, have no reason to fear persecution as a consequence of their affiliation to them from the government of Sri Lanka.’
6.2.2 Eight organizations and 157 individuals remain proscribed, as listed on the amended Gazette, No. 1941/44 -20 November 2015.
A footnote to [6.2.2] directs the reader to the Gazette. The Gazette identifies the TGTE as a proscribed terrorist organisation.
Undoubtedly, the applicant had claimed that he feared that his involvement in the Cricket Club would cause him to be imputed with a pro-Tamil separatist agenda. He emphasised that this imputation would arise from the online associations the Cricket Club had with, for example, the “Government of Tamil Eelam”, and the controversial use of “Eelam” and “Tamil Eelam”.
The applicant had not, however, emphasised that the links related to any terrorist organisation. The submission to the IAA expressly makes reference to evidence that was not before the delegate (i.e., that the TGTE was a “prescribed terrorist organisation”). All the delegate had before it was information that the Cricket Club had been (or would be imputed to be) associated with pro-Tamil separatist movements – not proscribed terrorist organisations.
It is quite clear that a link to the TGTE on the Cricket Club’s Wikipedia Page was before the delegate. A screenshot of the Cricket Club’s Wikipedia page is evidence of that fact.
The Court also accepts that the statement referencing the ‘symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement’ was not new information. It was akin to a submission directed to an existing pool of factual information or a new argument responsive to the delegate’s decision which drew on information that was already before the delegate: DPH17 v Minister for Immigration & Anor [2019] FCCA 2258 at [46].
The core issue here, however, is whether the TGTE Information was “before the Minister”. More specifically, the question is: was the Gazette (a footnote to the Policy Note) “before the Minister”? If it was not, then the fact that the TGTE, as an entity, appears on the Wikipedia page is of no consequence because the TGTE cannot be seen to bet identified in any meaningful way. It is simply, in these circumstances, a name under the heading “see also”.
The Court finds that the Gazette was not “before the Minister” and, as such, no jurisdictional error arises from the IAA’s findings in relation to all of the information before it.
The Gazette, as noted, was a footnote in the Policy Note (which was referred to in a footnote in the applicant’s submissions to the delegate). That is, the Policy Note itself did not contain the information that the TGTE was a proscribed terrorist organisation. Rather, the Policy Note simply indicated that there were eight remaining proscribed terrorist organisations and then referred to the Gazette.
The furthest the applicant’s submissions to the delegate went was to submit that the applicant would be imputed with an association to the LTTE and post-conflict Tamil separatism as a result of his involvement in the Cricket Club. The TGTE was, on the information before the IAA, an organisation “at the forefront of Tamil separatist politics”. It was not, on its face, distinguished as a “registered terrorist organisation”. Nor was it identified as such in the material directly cited. It is also noted that in the submissions directed to the Prevention of Terrorism Act 1978 (SL) no reference was in fact made to the TGTE. The TGTE was, in the context of the applicant’s submissions to the delegate, simply an organisation at the “forefront of separatist politics”.
Albeit in a different context (i.e., the Court’s Rules), when considering if there is a reference to a document in a document (and thus allowing a party to seek access to the document referred to) it has been held that the question is whether or not the document actually and directly refers to the document sought, or is adequately specific such that one can say that there is a document referred to: Selth v Australasian Barrister Chambers Pty Limited(No.2) [2016] FCA 46 at [16]. Contextually, these principles apply here. The applicant’s submissions to the delegate were adequately specific to refer to the Policy Note – but not, importantly, to the Gazette. In these circumstances, it cannot be said that the Gazette, and the information that the TGTE was a proscribed terrorist organisation was “before the Minister”. There was nothing to direct the delegate to this particular fact or piece of information.
The applicant has stressed that in his submissions to the delegate, it was clearly stated:
…The Applicant requests that the decision-maker take all of this information (including all websites/documents referenced in footnotes (and any subsequent footnotes or references contained within these footnoted websites/ documents)) into account when making a decision on his application.
The fact that the applicant asked that footnotes be taken into account does not assist him. This was a “request” for the delegate to take all information into account. It does not represent the applicant “giving” information to the delegate. A “request” to canvass footnotes does not equate with “putting” concrete information before the Minister.
In DTK17 v Minister for Immigration & Border Protection [2018] FCAFC 170 (“DTK17”), the applicant contended that an Issues Paper that had been prepared by the Minister’s Department was “before the Minister”. The Court held that “before the Minister” meant “physically” and not “constructively” before the Minister. A later Federal Court case clarified that, where an applicant “shows” a document to the delegate (and the delegate does not obtain a copy) the document is “before the Minister”: CVV16 v Minister for Home Affairs [2019] FCA 1890.
In DTK17 at [37] the Full Court stated:
…The appellant’s construction of “before the Minister” could have the effect that any document published on the internet by the Department on a matter entirely unrelated to the case at hand could be regarded as being “before” the decision-maker. This is not a result which Parliament should be taken to have intended.
As in DTK17, the Court here is also concerned with the effect that the applicant’s construction of “before the Minister” would have if accepted.
Here, the applicant’s contention could have the effect that any publicly available document (not just any document published by the Department) to which the applicant refers and which may contain other references which are entirely unrelated to the case at hand could be “before the Minister”.
By way of example, the applicant’s submission to the delegate contained 104 footnotes. As a rough estimate, approximately 30 sources are cited (i.e., articles and reports). The Policy Note was one of those sources. The Policy Note is 67 pages long and contains 167 footnotes. Many of the footnotes are repetitive (although it appears that there are in excess of 20 further reports or sources cited or footnoted in the Policy Note). The effect of the applicant’s submission is that one reference (bearing in mind there are approximately 30 more) “puts” 20 further documents “before the Minister”.
The applicant seems to suggest that there was an “end” as the list was not infinite. That might be so but the applicant’s interpretation of what information is and is not “before the Minister” would, in the Court’s view, impose an unreasonably burdensome task on the delegate. As in DTK17, this is not a result which Parliament should be taken to have intended.
On the basis of the above, the Court finds that the information that identified the TGTE as a proscribed terrorist group was “new information”. As such, the fact that the Wikipedia Claim was not considered not material because, without the TGTE Information (rightly not considered), there was nothing in the Wikipedia Claim that identified the TGTE as a terrorist organisation. The IAA did not, accordingly, err.
The sole ground of review is, accordingly, dismissed.
Conclusion
On the basis of the above, the application is dismissed.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 20 February 2020
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