BHW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 49
•4 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BHW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 49
File number: PEG 90 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 4 February 2022 Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority – whether jurisdictional error based on weight given to evidence – whether Authority failed to consider claim raised by applicant – vague assertion of interpretation error and complaints about interpreter – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss.5AA, 5H, 36, 46A, 473CA, 473CB, 473DD, 476, 477 Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
AYY17 v Minister for Immigration & Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263Division: Division 2 General Federal Law Number of paragraphs: 98 Date of hearing: 17 January 2022 Place: Perth Counsel for the Applicant: In person Counsel for the First Respondent: Mr C M Beetham Counsel for the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 90 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHW17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application filed on 28 April 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
By application filed on 28 April 2021, the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority) on 1 April 2021. The Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa. The application to this Court is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons outlined below, I have found that there is no jurisdictional error in the Authority decision. Accordingly, the application to this Court is dismissed.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia at the Cocos (Keeling) Islands in October 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 9 December 2015 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The letter advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 18 March 2016 the applicant lodged a valid application for a Safe Haven Enterprise Visa, which is a type of protection visa. He claimed to fear harm if he returned to Sri Lanka at the hands of the Tamil Makkal Viduthalai Pulikal (TMVP) and the Criminal Investigation Department (CID) on account of his political affiliation with the Liberation Tigers of Tamil Eelam (LTTE) and Tamil National Alliance (TNA), and his role as a founding member, leader and advocate of a union at a university in Sri Lanka.
On 1 September 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
The applicant, through his representative, provided a submission to the Authority on
11 October 2016.
On 10 March 2017 the Authority affirmed the decision not to grant the applicant a protection visa.
The applicant sought judicial review of the Authority’s decision of 10 March 2017 in the Federal Circuit Court of Australia (FCC). On 7 April 2020 a judge of the FCC dismissed the application. The applicant then appealed to the Federal Court of Australia. On
15 February 2021 Mortimer J made orders by consent that set aside the orders of the FCC and, in effect, set aside the Authority decision and remitted the matter to the Authority to determine the review according to law. The Minister conceded that the Authority decision of
10 March 2017 was affected by jurisdictional error. The applicant had provided to the Authority two letters comprising new information. In considering whether these two letters met the requirements of s 473DD of the Migration Act, the Authority failed to assess whether the new information was ‘credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims’ as required by s 473DD(b)(ii). This meant that the Authority made an error of the type identified in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17) at [11]-[12] and [18], by failing to take into account the matters referred to in s 473DD(b)(ii) in finding that exceptional circumstances did not exist for the purpose of s 473DD(a).
Following the remittal, on 9 March 2021 the Authority invited the applicant to comment on the information in three country information reports which it obtained and which were not before the delegate. On 24 March 2021 the applicant, through his representative, provided to the Authority a submission with further country information attached and a statement by the applicant with numerous attachments.
On 1 April 2021 the Authority, differently constituted, affirmed the decision not to grant the applicant a protection visa.
AUTHORITY DECISION
Information before the Authority
The Authority had regard to the information provided by the Secretary pursuant to s 473CB of the Migration Act. The Authority also had regard to the submissions:
(a)provided to the Authority on 11 October 2016, to the extent that the submission referred to the delegate’s findings and conclusions, material provided by the applicant to the Department and an extract from the 2015 Department of Foreign Affairs and Trade (DFAT) report which was before the delegate; and
(b)containing arguments in response to the updated country information reports obtained by the Authority.
The Authority had regard to the following new information, in relation to which it was satisfied that the requirements of s 473DD of the Migration Act were met:
(a)two letters from the applicant’s niece addressed to the Australian High Commission;
(b)updated country information that the Authority obtained itself; and
(c)a 2019 Human Rights report provided in response to an invitation to comment on the updated country information obtained by the Authority.
The Authority did not have regard to the following new information provided by the applicant:
(a)
a letter from the Australian High Commission to the applicant’s niece dated
25 August 2016, which was merely an acknowledgement of a letter from the applicant’s niece and information about Australia’s humanitarian program, as the Authority considered it was not relevant to assessing the applicant’s claims;
(b)an extract from an Authority decision in relation to a different, unidentified, applicant, as it did not meet the requirements of s 473DD;
(c)a 2013 United Kingdom Upper Tribunal decision that was provided in response to the invitation to comment on the updated country information obtained by the Authority, as it did not meet the requirements of s 473DD;
(d)two decisions of the Administrative Appeals Tribunal (Tribunal) in relation to different unidentified applicants provided in response to the invitation to comment on updated country information obtained by the Authority, as the decisions did not meet the requirements of s 473DD;
(e)identity cards and a marriage certificate in relation to the applicant’s sister and brother-in-law, which the Authority found did not demonstratively add to the applicant’s case and did not meet the requirements of s 473DD; and
(f)a photograph of the applicant’s brother-in-law with a senior member of the LTTE, as it did not meet the requirements of s 473DD.
Authority’s consideration of claims for protection
The Authority accepted that the applicant is a national of Sri Lanka of Tamil ethnicity. The Authority found that the applicant gave evidence in relation to his claims regarding his experiences in Sri Lanka in a broadly consistent manner throughout his dealings with the Department.
The Authority accepted that the applicant was mistreated, harassed and interrogated by the security forces in 1995 while travelling between his village and Batticaloa. The Authority further accepted that the applicant was detained in December 1995, brought before a court and released after he was found not to have connections with the LTTE.
The Authority also accepted that the applicant was employed at a university in Sri Lanka and was the leader of the union. The Authority was willing to accept that the applicant may have been harassed, mistreated and dismissed from his employment in 2011. The Authority accepted that the applicant resigned from his role in the union in 2008. The Authority accepted that, as the union leader, the applicant was approached to recommend and secure roles for TMVP members and his refusal resulted in the TMVP threatening him and visiting his home, at which time, a brother-in-law of the applicant, S, while drunk, may have questioned the TMVP. The Authority further accepted that S was at a later time arrested at a checkpoint while travelling from an LTTE area to an army controlled area and remains missing, with his family unaware of his whereabouts. However, the Authority was not convinced that S’s disappearance related to the TMVP’s interactions with the applicant.
The Authority acknowledged the applicant’s acceptance, at the protection visa interview, that his former role with the union and his former position at the university would not be an issue for him if he returned to Sri Lanka.
The Authority accepted the applicant’s evidence that, in the two years following the end of the war, he was subject to detention and mistreatment by the Sri Lankan authorities, and that he may have been questioned about involvement with the LTTE and his brother-in-law, KA’s, whereabouts. However, the Authority found that, on the applicant’s evidence, it did not appear that he was perceived as being an LTTE member, and his release after short periods of detention and interrogation suggested that he was not of ongoing concern to the authorities.
The Authority considered it plausible that after the applicant’s brother-in-law, KA, departed Sri Lanka and at the end of the conflict in 2009, the authorities may have enquired about KA’s whereabouts. However, the applicant’s evidence did not indicate that he or the other members of his family were accused of having been members of the LTTE or placed in a rehabilitation camp due to their relationship with KA or otherwise. The Authority found that while the authorities may have enquired about KA, any concern that the authorities may have had regarding KA and his involvement with the LTTE subsided given that he was no longer in the country.
The Authority accepted that the applicant’s business may have been bombed and that the incident may have been reported in a local Tamil newspaper in August 2012. Although the applicant expressed his belief that it was a CID or TMVP who bombed his shop, he did not produce any evidence of the perpetrators or their motivation and the Authority found that the applicant’s belief that the CID or TMVP bombed his shop was speculation.
The Authority accepted that the applicant assisted his former teacher to campaign during the 2012 Eastern Provincial Election. Given the applicant’s evidence that he was not a member of the TNA and given his very limited involvement, the Authority did not accept that the applicant was of interest to the CID as a result. The Authority also acknowledged the applicant’s concession at the protection visa interview that his involvement with the TNA in 2012 would not be of concern to the authorities if he returned to Sri Lanka.
The Authority was not satisfied that the Sri Lankan authorities or the TMVP had any ongoing interest in the applicant at the time of his departure from Sri Lanka in 2012. The Authority was not convinced that in the years after the applicant’s departure, the authorities enquired about him, searched his house or continually asked his wife and other family members about his whereabouts. The Authority was not satisfied that the Sri Lankan authorities or others had continued to enquire about the applicant or harassed or threatened the applicant’s family members after his departure.
Taking into account its findings of fact and the country information that was before it, the Authority was not satisfied that the applicant would be of any ongoing interest to the authorities for the reasons he claimed. The Authority considered the chance of the applicant being detained and mistreated, if he returned to Sri Lanka, to be no more than remote. The Authority accepted that the applicant had left Sri Lanka in breach of the Immigrants and Emigrants Act (Sri Lanka) (Immigrants and Emigrants Act), but was not satisfied that the investigative process that would be undertaken at the airport as a result of this would identify him as a person of interest. The Authority accepted that the applicant would be questioned at the airport and his criminal history checked, but considered the chances of him being arrested, charged or detained for reasons of his past detention, his brother-in-law’s profile or on suspicion of having links with the LTTE to be no more than remote.
The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act and did not meet the criteria in s 36(2)(a). Based on the same findings of fact, the Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed on 28 April 2017. This is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant advances two grounds of review in his written application, reproduced below without alteration:
1. The IAA did not properly give weight to the evidence that I was taken into custody and that I will be taken persecuted on my return.
2.The IAA did not give proper consideration to the effect of my close relationship to my brother in law which will identify me to the government authorities as a member of the LTTE and result in my persecution.
On 17 June 2021 a Registrar of this Court made orders to progress the matter to hearing. Those orders required the applicant to file and serve any amended application and further affidavit by 5 August 2021. The orders also required the applicant to file and serve written submissions 28 days before the hearing. The applicant did not file any documents in accordance with these orders.
The matter came before me for hearing on 17 January 2022. The applicant was self-represented and assisted by an interpreter in the Tamil and English languages. The Minister was represented by Mr Cheyne Beetham of counsel.
CONSIDERATION
In order to be entitled to relief before this Court, the applicant must show that there is jurisdictional error in the Authority’s decision.
The concept of jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
I gave the applicant an opportunity at the hearing to further explain his grounds of application. The Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] confirmed that it is usually appropriate to give self-represented applicants in protection visa matters an opportunity to explain orally the matters that are said to give rise to their review grounds.
In this matter, the applicant gave lengthy oral submissions. These oral submissions raised issues that went well beyond those raised by the applicant’s two grounds. I have treated the matters raised in the applicant’s oral submissions as additional grounds of review.
Ground 1
Applicant’s submissions
By ground 1, the applicant asserts that the Authority did not give sufficient weight to his claims that he had been taken into custody by the Sri Lankan government and that he would be persecuted on return. To the extent that this ground purports to allege error in the Authority decision, the applicant did not elaborate on the ground in any detail at the hearing of this matter. He did, however, assert that he cannot go to the airport because his papers have been provided to the authorities in Sri Lanka, and even if he gets past the airport, he will then be detained by the CID.
Minister’s submissions
The Minister submitted that the weight to be given to evidence is a matter for the Authority, not the Court. The Minister further submitted that the Authority carefully considered, accepted and weighed the applicant’s evidence about the times he was taken into custody.
Resolution
It is well-established that the weight to be given to evidence before the Authority is generally a matter for the Authority as part of its fact-finding functions: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162 at [95].
In the present case the Authority considered the evidence before it insofar as it relates to the applicant’s claims that he had been taken into custody by the Sri Lankan government in the past, and carefully assessed whether he would face persecution in the reasonably foreseeable future.
To this end, the Authority took into account the applicant’s evidence of past detention or custody and accepted that he had been taken into custody and detained on the following occasions:
(a)In 1995 the applicant was mistreated, harassed and interrogated by security forces travelling between his village and Batticaloa, and in December 1995 was brought before a court and released after he was found not to have connections with the LTTE.
(b)The applicant was the subject of detention and mistreatment by the Sri Lankan authorities in the two years after the end of the war in 2009 and he may have been questioned about his involvement with the LTTE and his brother-in-law KA’s whereabouts.
However, the Authority was not satisfied that the applicant was of any ongoing adverse interest to the authorities for any of the reasons claimed at the time of his departure in 2012, and that he would not be of adverse interest now for any reason. Essentially, the Authority was not satisfied that the treatment that the applicant faced during the civil war and in the years in the immediate aftermath of the civil war would be repeated now. These findings of the Authority were made taking into account up-to-date country information.
In circumstances where the Authority did not consider that the applicant was of any ongoing adverse interest to the authorities, it was open to find that the applicant would not face a real chance of serious harm or a real risk of significant harm if he returned to Sri Lanka. It was open to the Authority to give weight to the applicant’s evidence in the manner it did.
The applicant’s oral submission at the hearing before the Court that he could not go to the airport because his papers have been provided to the authorities does not give rise to jurisdictional error. This claim was not before the Authority and the Authority was not required to consider it. This Court does not have jurisdiction to consider for itself whether the applicant meets the criteria for a protection visa.
The Authority did otherwise consider in detail the treatment that the applicant could expect to face at the airport. Based on claims that were made by the applicant, the Authority’s analysis took into account the various information before it, including that the applicant would return to Sri Lanka on temporary travel documents, as a failed asylum seeker. The Authority also took into account the treatment that the applicant may face for breaching the Immigrants and Emigrants Act, and considered his claim that an ex-LTTE member who knew of the applicant’s relationship with his brother-in-law once worked at the airport. Taking all of these factors into account, the Authority was not satisfied that the investigative process that would be undertaken at the airport would identify the applicant as a person of interest, save for his illegal departure. The Authority also found that the treatment he would face as a result of his illegal departure would not amount to serious harm or significant harm. These findings were open to the Authority.
Ground 1 is not established.
Ground 2
Applicant’s submissions
By ground 2, the applicant asserts that the Authority did not give sufficient consideration to the applicant’s relationship to his brother in law who is a member of the LTTE.
At the hearing, the applicant made the following submissions about his claims relating to his brother-in-law. The applicant said that he gave details to the Authority to show that there is lots of interest shown in him because of his brother-in-law. He provided a photo of his brother-in-law with an LTTE leader to the Authority. The authorities think his brother-in-law is hiding some weapons or arms and they are looking for him. The applicant and his brother-in-law had been living together for some time, so the authorities think that the applicant’s brother-in-law gave the applicant details as to where he has hidden the arms. This will create problems for the applicant.
In reply to a submission from the Minister to the effect that the applicant had not claimed to support the LTTE, and only claimed to help his brother-in-law, the applicant submitted that he had provided enough evidence that he helped his brother-in-law, and that is one and the same as supporting the LTTE. If the applicant helped his brother-in-law, that amounts to assisting the LTTE. He said the brother-in-law was staying in his house and that the brother-in-law gave the applicant’s house and address when questioned. The brother-in-law was not only the applicant’s sister’s husband but was also close to the applicant. He was a big shot in the LTTE and because of the applicant’s association with his brother-in-law, the applicant will be at risk. When he attended his interview, the Sri Lankan authorities were only looking at LTTE people who are in hiding in Sri Lanka. However, they are now interested in people who have gone overseas and this will cause more problems for the applicant. The applicant submitted that news items from Sri Lanka report lots of murders at night and most people who were previously involved in the movement have been murdered.
Minister’s submissions
The Minister submits that:
(a)if the applicant is asserting that the Authority failed to consider a substantial, clearly articulated argument relying on established facts, being the argument that his relationship with his brother-in-law will identify him to the authorities as a member of the LTTE, that allegation fails on the Authority’s reasons;
(b)if the applicant is asserting that the Authority failed to take into account as a relevant consideration the applicant’s claims relating to his relationship to his brother-in-law, the allegation also fails on the Authority’s reasons; and
(c)if the applicant is asserting that the Authority failed to give enough weight to the claim or the evidence supporting the claim, that does not amount to jurisdictional error because the weight to be given to evidence is a matter for the Authority.
Resolution
The applicant has not by this ground established jurisdictional error. The ground is best understood in the light of the applicant’s oral submissions and I deal with each matter raised in the applicant’s oral submissions in turn.
The applicant submits that there was a lot of evidence before the Authority of the interest shown in him because of his relationship to his brother-in-law. I accept that the applicant advanced a claim before the delegate and the Authority to the effect that he would face harm as a result of his relationship with his brother-in-law, who was a senior member of the LTTE. The Authority considered the claim and accepted that the applicant’s brother-in-law held a senior position within the LTTE and that the applicant had been detained and questioned about his brother-in-law’s whereabouts and interrogated on suspicion of having links with the LTTE. The reason the Authority found that the applicant would not face a real chance of harm on account of his brother-in-law, was because the Authority found that the applicant was not of any ongoing interest to the authorities. The Authority found that the applicant’s evidence did not indicate that he or any of his other family members were accused of having been members of the LTTE or placed in rehabilitation camps due to their relationship with the applicant’s brother-in-law or otherwise. The Authority also found that any concern that the authorities may have had regarding the applicant’s brother-in-law and his involvement with the LTTE subsided given that the brother-in-law was no longer in the country. These findings were open to the Authority and the weight to be given to the evidence before the Authority was a matter for it.
The applicant also referred to specific evidence that he gave the Authority, namely, a photograph of his brother-in-law with a senior LTTE leader. The photograph was new information before the Authority in relation to which the Authority found that the requirements of s 473DD of the Migration Act were not met. As the requirements of s 473DD were not met, the Authority did not have regard to the photograph. There is no error in the Authority’s findings in relation to s 473DD as it applied to the photograph. The Authority reasoned that the photograph appeared to have been taken prior to the delegate’s decision, as the brother-in-law had departed prior to the end of the war and the LTTE leader depicted in the photograph died in May 2009. The Authority found, for the purposes of s 473DD(b)(i), that it was not apparent why the photograph was not provided to the delegate. In relation to section 473DD(b)(ii) of the Migration Act, the Authority accepted that the photograph was credible personal information, but was not satisfied that it may have affected consideration of the applicant’s claims. The Authority found that the photograph did nothing more than establish that the applicant’s brother-in-law had an association with the LTTE, which was a claim that was accepted by both the delegate and the Authority. The photograph did not establish that the applicant’s brother-in-law is still a person of interest because of his past involvement or membership in the LTTE or that he may have been involved in any activities while abroad that may be of concern to the Sri Lankan authorities. Taking into account these findings, the Authority was not satisfied that there were exceptional circumstances to justify considering the new information. This reasoning process is consistent with the requirements of s 473DD and the High Court’s decision in AUS17.
In oral submissions to the Court, the applicant said that the authorities believe that his brother-in-law hid weapons or arms and that the applicant may know where they are. The applicant never advanced this claim before the Authority or the delegate. It did not need to be considered by the Authority and indeed could not have been considered by the Authority because it was not raised.
Nor was there any claim before the delegate or the Authority to the effect that the Sri Lankan authorities have now shifted their focus to people who are overseas and that the applicant is at a higher risk because of this. It therefore did not fall to be considered by the Authority.
The applicant made no express claims to the delegate or to the Authority that providing support to his brother-in-law, who was a high-ranking member of the LTTE, was akin to providing support to the LTTE, or that his brother-in-law and the LTTE should effectively be considered one and the same. The information before the Authority in relation to the applicant’s brother-in-law was that he was a senior member of the LTTE, who was wounded during the conflict and stayed at the applicant’s house. This does not give rise to any implied claim that the support that the applicant provided to his brother-in-law by allowing him to stay in the same house amounted to the provision of support to the LTTE. The applicant’s claim before the Authority was that he would be imputed with a pro-LTTE political opinion because of his association with his brother-in-law. The Authority understood the applicant’s claim in this way and appropriately assessed the claim.
The Authority considered all relevant information that was before it in relation to the applicant’s brother-in-law and the fear of harm expressed by the applicant as a result of his relationship to his brother-in-law. The findings made by the Authority on the evidence before it were open to it and the weight to be given to the evidence before the Authority was a matter for the Authority.
Ground 2 is not established.
Issues raised in applicant’s oral submissions.
Submissions seeking merits review
Many of the issues raised in oral submissions by the applicant relate to the merits of the Authority decision. This Court does not have any jurisdiction to engage in merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The applicant made the following submissions that go to the merits:
(a)He cannot now go to the airport, as his files have been sent to the airport.
(b)His wife will dob on him.
(c)Even if he can get out of the airport the CID will come for him.
(d)The house he built in Sri Lanka now has no one living in it. He cannot get evidence from the police to confirm this as the police will blame him and say that he is seeking this evidence just for the sake of remaining in Australia.
(e)He cannot get any further evidence from Sri Lanka. For example the police recently broke into his sister’s house last year and took all the documents.
(f)He has now been living in Australia for more than 10 years and has been separated for his children throughout this time.
(g)The applicant is employed in Australia. He used to give $50 to church from his salary. However he stopped making contributions to the church and instead used the money to support LTTE people who lost limbs during the war. He has done this for the last five years and the CID has become aware of this and is interrogating people. The CID think that he is trying to restart the LTTE.
(h)When he gave his interview people like Pallayan and Karuna were not important, but now they are in government and the applicant will face huge problems from them too.
None of these submissions allege any jurisdictional error in the Authority decision, and they do not establish jurisdictional error.
Further, the vast majority of these issues were not raised before the delegate or the Authority. The Authority is not required to address any claims that were not expressly articulated by the applicant and which did not clearly emerge from the materials before the Authority: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]; AYY17 v Minister for Immigration & Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18].
Submissions relating to Authority reasons
The applicant made oral submissions to the effect that the Authority erred by reasoning that he could return to Sri Lanka because all the children in Sri Lanka are happy now and have no problems. The applicant submitted that he has two children who were aged 10 and 8 when he left Sri Lanka and who are now aged 20 and 18 respectively. The children did not know about the problems when they were young but now they are able to understand better. The applicant applied for a protection visa for himself and cannot accept the assertion that the children are happy and okay. He also submitted that his wife has now left him.
The applicant explained in his reply submissions that he does not speak English well and that his lawyer told him that the Authority said that his children were happy and that was one of the reasons why he was not granted a protection visa.
This submission reflects a misunderstanding of the Authority’s reasons. The Authority made no findings in relation to whether or not the applicant’s children are happy. Nor did it make any findings about his wife leaving him. The Authority was not required to make findings on these matters. They did not form part of any claim made by the applicant to fear harm.
In circumstances where the submission does not accurately reflect the Authority reasons, it does not establish jurisdictional error.
Submissions alleging errors in interpretation at the protection visa interview.
The applicant also raised issues in relation to the quality of interpretation at his protection visa interview. The concerns raised by the applicant can be summarised as follows:
(a)when he attended the protection visa interview, the interpreter was from Malaysia and was not Tamil. The interpreter could not properly interpret what the applicant said and was mostly arguing with what he was telling them;
(b)because of the tension with the interpreter, he did not give his evidence properly;
(c)he complained about the interpretation to the first lawyer that he engaged, but the lawyer said the matter was now finished;
(d)only about 10% of applications where this interpreter interprets are successful. The interpreter has now stopped interpreting and that shows that he made mistakes. He is not a NAATI accredited interpreter and therefore he is not a legally acceptable interpreter;
(e)the interpreter has a son-in-law who is Sinhalese and who comes from the same area as the President of Sri Lanka and supports the Sri Lankan government;
(f)the interpreter was blaming the applicant and was angry with the applicant during a break in the interview; and
(g)when the applicant was outside the interview room, he told the interpreter that he was taken to the fourth floor. The interpreter did not know what the fourth floor meant and said that maybe there was nothing available on the first floor. After he said that there was a lot of tension. The applicant said that the fourth floor is in the CID building and that is where they take people for intensive interrogation. If 10 people are taken in only one will come out.
A key difficulty that the applicant faces in raising these issues is that he has not provided any evidence to the Court to support his allegations. The applicant bears the onus of establishing jurisdictional error in the Authority decision: SZMTA at [41]; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [2]; BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38]. In the absence of evidence, any ground based on problems with the interpreter or errors in the interpretation at the protection visa interview fails at the first hurdle.
At the hearing, I asked the applicant whether he had taken any steps to try to obtain evidence. The applicant indicated that he had asked one interpreter from his hometown to review the audio recording of the protection visa interview, but that person said he was unable to provide any interpretation services because that needs to be organised by the Department. The applicant suggested that anyone could listen to the audio recording of the interview and could hear the argument that took place between the applicant and the interpreter during a break. The applicant also submitted that the Court could look into the interpreter and see that the interpreter was not NAATI accredited and was no longer been used by the Department. However, as I explained to the applicant at the hearing, this Court has no inquisitorial powers and does not investigate allegations made by parties. Rather, the evidence that the Court takes into account in reaching its decision is that evidence which is filed by the parties. The Court does not have before it any information about the interpreter who assisted the applicant at the protection visa interview, nor does the Court have before it any audio recording or written record of the protection visa interview, nor any evidence about alleged errors in interpretation.
I also asked the applicant at the hearing whether he had raised the alleged issues in interpretation with the Department or the Authority or the Minister’s lawyers. The applicant responded that he raised it with his previous lawyer, but the lawyer advised him that the matter was finished and he did not need to do anything. I have reviewed the available material in the court book and cannot see that the applicant at any stage raised any concerns with interpretation with the delegate or in his materials provided to the Authority. This is notwithstanding that the applicant made two detailed submissions to the Authority, the first in 2016 shortly after the delegate’s decision, and the second in 2021 after the matter had been remitted by the Federal Court.
In any event, it is difficult to see how some of the matters raised by the applicant could give rise to jurisdictional error even if they were proved by evidence.
The applicant’s allegation that because of tension between himself and the interpreter, he answered a question incorrectly about whether he supported the LTTE does not give rise to jurisdictional error in the Authority decision. As discussed above, the Authority is required to consider the claims expressly articulated by the applicant, as well as any unarticulated claims that emerge clearly from the materials before the Authority. The evidence that was clearly given by the applicant was that he did not support the LTTE. As the Minister submitted at the hearing, throughout the process relating to the original decision by the delegate and the review conducted by the Authority, the applicant has never articulated that he supported the LTTE. Accordingly, the Authority has not erred by failing to address the applicant’s claims on the basis that he did support the LTTE. The Authority cannot be expected to assess claims that the applicant in hindsight wishes he had made, but did not make.
A second issue that arises from the applicant’s complaints about the interpretation at his protection visa interview is his suggestion that the interpreter was somehow biased or prejudiced against him. There were a number of limbs to this argument. The first was that the interpreter was Malaysian rather than Tamil and did not have a full appreciation of the situation in Sri Lanka. The only example given was that during a break in the interview, the applicant and interpreter had an argument because the applicant said that he was taken to the fourth floor in the CID office, and the interpreter did not understand the significance of this and suggested simply that it was because there was no further room on the first floor. The applicant submitted that everyone from Sri Lanka knows that the fourth floor is where the CID take people to do serious interrogations and that if 10 people are taken to the fourth floor only one will survive.
This does not give rise to jurisdictional error. Neither the Authority nor the delegate referred in their reasons to any conversation that took place between the interpreter and applicant during a break in interview and there is no evidence before the Court to suggest that any conversation that occurred during a break in the interview was recorded or formed part of the review materials.
In any event, any lack of understanding by the interpreter of the situation in Sri Lanka would not necessarily give rise to jurisdictional error. The High Court provided the following description of the art of interpretation in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 (DVO16) at [5] (per Kiefel CJ, Gageler, Gordon and Steward JJ) (footnotes omitted):
Long past is the time when an interpreter might have been thought to be appropriately described as a "translating machine" or "bilingual transmitter" performing a function "not different in principle from that which in another case an electrical instrument might fulfil in overcoming the barrier of distance". More accurate is to conceive of an interpreter as a "bilingual mediating agent between monolingual communication participants in two different language communities" and to recognise that "total equivalence" between words spoken or written in a source language and words translated into a target language is a "chimera". Translation is not a "simple word-matching exercise" but "a difficult and sophisticated art" which, "[t]o be done well", "requires not only linguistic sophistication and sensitivity to 'minor' linguistic details (which may be correlated with vast differences in conceptualization), but also an intimate knowledge of the cultures associated with the language in question, of the social and political organization of the relevant countries, and of the world-views and life styles reflected in the linguistic structure".
The High Court acknowledges that, to be done well, interpretation requires that the interpreter have an intimate knowledge of the social and political organisation of the relevant country. However, it does not follow that any deficiency in understanding the social and political situation in a country on the part of the interpreter, even if proven, would necessarily amount to jurisdictional error. Interpretation of an interview must be adequate and sufficient to convey the substance of what the applicant is communicating. It does not need to be perfect: BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [52].
In any event, the only example given by the applicant of the interpreter’s lack of understanding of the political situation in Sri Lanka is an example of a conversation in a break in the interview. There is no specific allegation of any misunderstanding by the interpreter causing specific evidence to be mistranslated in the course of the interview.
The applicant’s submission that the interpreter had a pro-Sri Lankan government political opinion because his brother-in-law comes from the same area as the Sri Lankan President and therefore he supports the government does not amount to jurisdictional error. There is no evidence before the Court from which I can conclude or draw an inference that the Authority had any knowledge whatsoever of the interpreter’s background. In any event, the interpreter has no role in the decision-making process and, in the present case, there is no evidence that the interpreter and the Authority had any interaction at all, and there is no suggestion whatsoever that the Authority decision is affected by actual or apprehended bias.
Another issue to be addressed in relation to the allegation of interpretation error was that the interpreter shortened the applicant’s answers. A brief interpretation is not necessarily inaccurate and the applicant gave no examples of where the substance of his claims was not accurately interpreted.
At the hearing, I invited the applicant to tell me how the alleged errors in interpretation affected the Authority’s decision. He did not to tell me any way in which the Authority decision might be affected. Further, the applicant did not provide any examples of interpretation errors. The specific consequences identified by the applicant as a result of issues with the interpretation or the interpreter, were:
(a)that the applicant answered no rather than yes to the question about whether he supported the LTTE; and
(b)an argument that took place with the interpreter during a break in the interview, with that argument relating to the interpreter’s alleged lack of understanding about what it meant to be taken to the fourth floor of the CID.
As indicated above, neither of these examples give rise to jurisdictional error.
In DVO16, the High Court recognised that errors in interpretation at an interview with a delegate of the Department might potentially give rise to jurisdictional error in the Authority decision in two ways. The first might arise if the Authority breaches the implied condition of reasonableness in reviewing the referred decision by considering the review material and in exercising its procedural powers. This might arise, for example, if the Authority was aware of revealed or suggested translation errors in the review material and failed to invite the referred applicant to an interview so that it could consider the referred Applicant’s testimony as correctly translated. Likewise the Authority might breach the reasonableness condition implied in its duty to review the referred decision by making adverse findings in relation to an applicant with knowledge of translation errors and without exercising its procedural powers to get new information which might address those errors. The second way that interpretation errors at a protection visa interview might give rise to jurisdictional error in the Authority decision is if the interpretation errors cause the Authority to fail to understand and therefore fail to consider the substance of an applicant’s claim, which might in turn lead to the Authority failing to comply with its overriding duty to review the referred decision: DVO16 at [22]-[23].
In the present case, there was nothing in the materials before the Authority to suggest that there were any errors in interpretation in the protection visa interview, notwithstanding that the applicant provided two submissions to the Authority. There was nothing known to the Authority that would, because of any interpretation issues, cause any part of the Authority’s exercise (or non-exercise) of its procedural discretions to be unreasonable.
If the applicant had established that the interpreter shortened his answers in a way that meant that the substance of his claims was not communicated to the delegate and, by extension, the Authority, then there might have been the potential for the applicant to attempt to demonstrate that the Authority made the second of the potential errors identified in DVO16, namely that it constructively failed to review the referred decision because it failed to understand and consider the substance of the applicant’s claims. However, the applicant has not asserted this and I cannot find any such error in the present case.
Even after I explained to the applicant that he would need evidence to establish any allegation of interpretation error, the applicant did not seek any further opportunity to adduce that evidence before the Court. I am also cognisant of the fact that the protection visa interview took place in 2016 and there is no evidence to suggest that the applicant has raised any concerns about interpretation at that interview at any stage prior to the hearing of this matter. This issue was not raised in either of the submissions provided to the Authority by the applicant, and I have reviewed the reasons for decision of the applicant’s previous judicial review to this Court, and cannot see any reference to this issue in those reasons. In circumstances where:
(a)the applicant had over five years to raise issues about interpretation in the protection visa interview and did not do so until the day of the hearing;
(b)the applicant has not identified how the alleged interpretation issues affect the Authority decision; and
(c)the assertion that the interpreter shortened the applicant’s answers appears to be vague and speculative and does not allege that the substance of any particular evidence was not accurately translated,
I did not consider it necessary to take any steps to give the applicant further opportunity to pursue this issue.
The issues raised by the applicant in relation to the interpretation at his protection visa interview do not establish jurisdictional error in the Authority decision.
Section 473DD of the Migration Act
As a model litigant, the Minister raised an issue in relation to the Authority’s consideration of s 473DD of the Migration Act.
Section 473DD of the Migration Act provides:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In AUS17 the High Court considered the proper approach to s 473DD. The High Court said at [11]-[12] (footnotes omitted):
11Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
In relation to the two Tribunal decisions that the applicant provided to the Authority in
March 2021, the Authority:
(a)relevant to s 473DD(b)(i), acknowledged at [13] of its reasons a submission that the Tribunal decisions were not in existence at the time of the delegate’s decision and could not have been provided to the delegate, but made no finding in relation to this;
(b)found at [15], for the purposes of s 473DD(b)(ii), that the Tribunal decisions were not credible personal information that may have affected the consideration of the applicant’s claims; and
(c)was not satisfied that there were exceptional circumstances to justify considering the Tribunal decisions.
The Minister conceded, and I accept, that in failing to consider the matter in s 473DD(b)(i) and take its findings in relation to that matter into account in assessing whether there were exceptional circumstances to justify considering the new information for the purposes of s 473DD(a), the Authority has made an error of the type identified in AUS17. The Minister made no submission that the Authority’s acknowledgement of the applicant’s submission in [13] amounts to an implied finding, which is presumably because the submission related to three pieces of new information and the Authority then made an express finding in relation to the other two.
The Minister submits, however, that the error of the Authority is not material, because even if the Authority had considered the new information, it could not have affected the overall consideration of the applicant’s claims.
The Authority said at [15]:
…AAT decisions are similarly not binding authority on the IAA and as indicated earlier, I am to determine this review by assessing this applicant’s circumstances and considering the evidence that is before me. While there may be some similarities between the applicant’s claimed circumstances and those of the applicants before the AAT, I do not consider the AAT decisions to be of assistance in this review. Considering all these matters, I am not satisfied that there are exceptional circumstances to justify considering the decisions.
I accept the Minister’s submission that the error is not material and therefore does not amount to jurisdictional error.
An error will be material if it could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [45]. In this case, the Authority has clearly set out the potential impact of the decisions, had they been taken into account, at [15] of its reasons. The Authority has clearly articulated that because the decisions relate to a different person and that other person’s circumstances, they do not assist with the review immediately before the Authority. The Authority was required, as it correctly identified, to consider the applicant’s claims for protection based on the applicant’s personal circumstances and the evidence before the Authority. In circumstances where the Authority has said that the Tribunal decisions do not assist it in conducting the review, it cannot be said that the Authority’s error in its approach to s 473DD could realistically have deprived the applicant of the possibility of a successful outcome.
The Minister also concedes that the Authority made an error of the type identified in AUS17 in relation to the identity cards and marriage certificate of the applicant’s sister and brother-in-law. The Authority addressed this new information at [17] of its reasons, where it said:
The applicant’s statement dated 24 March 2021, refers to the applicant’s sister and his brother-in-law’s Belgian identity cards and marriage certificate (attached to the submission) in support of the applicant’s claim that his sister is married to his brother-in-law and are residing in Belgium. The delegate accepted these claims and as explained below, I also accept that the applicant’s sister and brother-in-law, KA, departed Sri Lanka prior to the end of the war and have been granted refugee status in Belgium. The identity cards and marriage certificate do not establish anything more than the applicant’s sister and brother-in-law’s identity, marriage and status in Belgium, all of which I accept, and I did not consider these documents to demonstratively add to the applicant’s case.
The Authority made further findings at [18] which also relate to the identity card and marriage certificate. The Authority accepted that the documents comprise credible personal information, but was not satisfied that the information may have affected the consideration of the applicant’s claims. The Authority also said that the documents did not establish that:
(a)the applicant’s brother-in-law was still a person of interest because of his past LTTE involvement and membership;
(b)the applicant’s brother-in-law had been involved in any further activities while abroad that may be of interest to the Sri Lankan authorities; or
(c)the applicant’s relationship with his brother-in-law would be of concern if the applicant returned to Sri Lanka.
The Authority then concluded at [18] that it was not satisfied that there were exceptional circumstances to justify considering the new information.
It can be seen from this that the Authority made findings for the purposes of ss 473DD(b)(ii) and 473DD(a) but made no finding for the purposes of s 473DD(b)(i) of the Migration Act. I agree with the Minister’s concession that this amounts to an error of the type identified in AUS17.
I accept the Minister’s submission that the error was not material. The error in relation to the Belgian identity cards and marriage certificate could not realistically have deprived the applicant of the opportunity of a successful outcome in circumstances where:
(a)the Authority clearly articulated that it did not consider the documents to demonstratively add to the applicant’s case; and
(b)the Authority accepted the only facts that the documents could prove, namely, the identity and marriage of the applicant sister and brother-in-law, and that they have been granted refugee status in Belgium.
I find that there is no jurisdictional error in this matter based on any misinterpretation or misapplication of s 473DD of the Migration Act.
CONCLUSION
I have found that there is no jurisdictional error in the Authority’s decision. It follows that the application for judicial review must be dismissed.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 4 February 2022
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