BIH19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 86
•31 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIH19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 86
File number(s): ADG 124 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 31 January 2025 Catchwords: MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether failure to properly apply s 36(2A) in determining no risk of suffering serious harm – whether failure to fully or properly consider likelihood of harm – whether failure to consider applicant’s relationship to receiving country – whether IAA was required to consider welfare and safety of the applicant – whether need to consider new information in accordance with s 473DD – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 36(2A), 473CB, 473DA(1), 473DB(1), 473DD, 473DD(a), 473DD(b)(i), 473DD(b)(ii), 476 Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199
Craig v State of South Australia (1995) 184 CLR 163
CRM18 v Minister for Home Affairs [2019] FCA 665
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
DQU16 v Minister for Home Affairs (2021) 388 ALR 363
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZKRT [2013] FCA 317
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submission/s: 21 September 2023 Date of hearing: 18 December 2024 Place: Adelaide Applicant: Self-represented with the assistance of a Tamil interpreter Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 124 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIH19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS THAT:
1.The application be 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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Safe Haven Enterprise (subclass 790) visa (SHEV). As will be explained, for the applicant to succeed in this Court, he must establish that the IAA decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the IAA decision. On that basis, his application cannot succeed.
BACKGROUND
The applicant arrived in Australia as an unauthorised maritime arrival on 8 June 2013 (Court Book (CB) 44). He is a Roman Catholic Tamil from Sri Lanka but has resided in India since about the age of 9 (CB 37, 39, 163).
On 20 June 2013 and 4 August 2014, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 1-21, 96). In that interview, he claimed that he left India because he and his wife were being harassed by Q Branch and the Police. He claimed that he had assisted a political party during an election and that members of a rival political party had physically assaulted him on two occasions. He claimed that his complaints to the police were not taken seriously and he was scared that he would be assaulted again if he were to return to India (CB 10).
He claimed that he cannot return to Sri Lanka, his country of nationality, because of his “father’s problem” which caused his father to move the family to India. He claimed that his mother returned to Sri Lanka in 1993 but she was taken by the Sri Lankan Army (SLA), questioned about the applicant’s father and killed. Because the applicant is from a part of Sri Lanka that supported the Liberation Tigers of Tamil Eelam (LTTE), he feared that he will also be taken for questioning and killed if he were to return to Sri Lanka (CB 10-11).
On 31 January 2017, the applicant lodged a SHEV (the visa) application with relevant documentation and supporting statements (CB 24-63). In those statements, he claimed to fear harm from the Sri Lankan authorities because of his father’s and uncle’s past involvement with the LTTE. He claimed that his uncle was killed when he attempted to escape, and that his father managed to flee to an LTTE-controlled area but that the authorities continued to search for him. This led to his family fleeing to India in 1990, where the applicant resided in a refugee camp until 2013. He repeated the claims about his mother’s death in 1993. He further claimed that he would be arrested at the airport if he attempted to return to Sri Lanka, and that the authorities there have details about his father because of a data breach (CB 61-63).
On 5 September 2018, the applicant was invited to attend an interview scheduled for 27 September 2018 (CB 79-80), which he attended and participated in (CB 96). At the interview, in addition to his earlier written statements, he claimed that he fears harm in Sri Lanka because he is from a town in the Northern Province, and people from other areas of Sri Lanka do not have problems with the Sri Lankan authorities (CB 98).
On 4 December 2018, a delegate of the Minister refused to grant the applicant the visa (CB 94-112). On 7 December 2018, the delegate’s decision was referred to the second respondent, the IAA, for review (CB 113-114).
On 8 January 2019, the applicant appointed an authorised representative who then requested an extension of time of 14 days to provide submissions on behalf of the applicant (CB 124-125). On 9 January 2019, the IAA refused to grant the extension as requested but allowed until 11 January 2019 to provide submissions (CB 129). On 11 January 2019, the applicant’s representative provided submissions and three supporting media articles (CB 139-158).
On 22 February 2019, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 162-174).
On 29 March 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE IAA DECISION
To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.
The IAA began by noting that it had regard to the material given by the Secretary under s 473CB of the Act and to the submissions prepared by the applicant’s representative, to the extent that they elaborated on or responded to the delegate’s findings (at [2]-[3]).
The IAA did not have regard to the three media articles which accompanied the submissions as those articles all pre-dated the delegate’s decision. The IAA was not satisfied that there were exceptional circumstances to justify consideration of that new information and therefore found that they did not meet the requirements of s 473DD of the Act (at [4]).
The IAA summarised the applicant’s claims as follows (at [5]) (without alteration):
•His father and uncle transported goods between Government-controlled areas into the Liberation Tigers of Tamil Eelam (‘LTTE’) territory. The Sri Lankan Army (‘SLA’) found out about this and on one occasion intercepted and searched his father’s vehicle. His father managed to escape but his uncle was killed by the SLA.
•Following this event, in 1990, the applicant and his family departed Sri Lanka and relocated to the Government of Tamil Nadu Refugee Camp in India. The applicant was roughly nine years old. He lived in this refugee camp until he departed India in 2013.
•In 1993, his mother returned to Sri Lanka and the SLA questioned her about her husband (the applicant's father) and then shot her. She passed away.
•The applicant did not have the rights and privileges that belonged to Indian citizens while in India. He had problems with the Indian ‘Q’ Branch Police who would question him when he left the camp. He was assaulted by members of opposing political parties on two or three occasions. He was required to display political flags on the rickshaw he drove, but neither party approved when he displayed their rival’s flag. Those parties were the Dravida Progressive Federation (Dravidian Munnetra Kazahagam or DMK) and the All India Dravidian Progressive Federation (All India Anna Dravida Munnetra Kazahagam or AIADMK).
•His information was leaked by the Department of Immigration data breach in 2014.
•If he returned to Sri Lanka he will be arrested at the airport and mistreated because his father is a wanted person. His father helped the LTTE and if they know he is his son he will be persecuted and killed. The Sri Lankan Government is arresting people who helped the LTTE under the Prevention of Terrorism Act (PTA). He fears harm as he is originally from Mullaitivu, which is an area known to be supportive of the LTTE.
The IAA accepted that the applicant had resided in India since he was young, but found that he is a citizen of Sri Lanka and was satisfied that Sri Lanka is his receiving country (at [7]). Given that finding, the IAA therefore found it was not required to consider his claimed fear of harm in India or to make any finding about past events in India (at [8]).
The IAA accepted the applicant’s narrative about his father’s and uncle’s involvement with the LTTE, including that his uncle had been killed by the SLA (at [9]). The IAA also accepted that his mother was killed when she returned to Sri Lanka in 1993, but was not satisfied that this was due to familial LTTE links or for any reason related to her husband, the applicant’s father (at [10]).
The IAA accepted that the applicant departed Sri Lanka illegally as a child and that he may be identified as a returning asylum seeker (at [11]). The IAA also accepted that his information was inadvertently disclosed by the Department’s data breach in 2014 (at [12]).
Refugee assessment
The IAA considered the applicant against the refugee criterion (at [13]-[24]). Through consideration of country information, the IAA reached the following findings (at [15]-[22]).
The IAA did not accept that the applicant would be of continuing interest in Sri Lanka simply because of past incidents or past familial LTTE links, given the significant time that has passed, the low-level involvement of his father and uncle, and consideration of country information (at [15]).
The IAA did not accept that the applicant would be of interest to the authorities because he was from an area that was previously controlled by the LTTE (at [16]). Country information did not support a finding that there was a real chance he would be targeted, detained or harmed because of his ethnicity, familial LTTE links, or because of his absence from Sri Lanka and extended stay in India, or that Tamil ethnicity would impute LTTE association, even when combined with gender, his place of origin or the aforementioned factors (at [16]-[17]).
The IAA accepted that some of the applicant’s personal information was inadvertently disclosed by a departmental data breach, and that he may be identified as a failed asylum seeker upon his return to Sri Lanka. However, the IAA did not accept that he would face a real risk of harm as a result of this. The IAA also did not accept that, if the applicant were to be visited by the authorities on his return, this would expose the applicant to a real chance of suffering serious harm (at [18]).
The IAA found that any stigma the applicant may face in Sri Lanka as a returnee from Tamil Nadu would not amount to serious harm. The IAA found that the applicant had demonstrated an ability to secure various kinds of employment and establish himself in both Australia and India. The IAA was therefore satisfied that he had the means and ability to meet his basic needs if returned to Sri Lanka (at [19]).
The IAA did not accept that the applicant would face a real chance of harm during returnee processing or if he were to be detained on his return to Sri Lanka. The IAA found that he did not have an adverse profile that would be of interest to the authorities, including because of historical familial LTTE links or because of any extant criminal charges or proceedings against him. Given that he departed over 30 years ago as a child, the IAA found that even if he were arrested and charged for illegal departure, he would be identified as a passenger rather than a smuggler. The IAA found that the imposition of any surety, reporting conditions, fines or other costs associated with a court appearance would not amount to serious harm. The IAA further found that any arrest and associated judicial process would not be the result of selectively enforced and/or discriminatory laws, and therefore did not constitute persecution for the purposes of the Act (at [20]-[22]).
The IAA found that the applicant did not have a well-founded fear of persecution (at [23]). The applicant therefore did not meet the definition of refugee in s 5H(1) and the requirements of the visa criteria in s 36(2)(a) (at [24]).
Complementary protection assessment
The IAA then considered the applicant against the complementary protection criterion (at [25]-[29]).
The IAA accepted that the applicant may face some stigma and economic hardship upon return to Sri Lanka, and that he may be subject to a fine or detention for his illegal departure, but that this would not amount to significant harm (at [27]).
Relying on its previous findings, the IAA found that the applicant did not face a real risk of significant harm because of his Tamil ethnicity, actual or imputed LTTE affiliation, status as a failed asylum seeker in Australia, or because his personal information was leaked in a data breach (at [28]).
The IAA concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm. The applicant therefore did not meet the requirements of s 36(2)(aa) of the Act (at [29]).
Having regard to the above, the IAA concluded that the applicant was unable to meet the relevant visa criteria. The IAA affirmed the delegate’s decision not to grant the visa.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 29 March 2019 contains the following four grounds of review (without alteration):
1.The decision maker did not properly apply the law in relation to the applicant’s legal rights and the obligations of the decision maker under the Act in particular in deciding that there is no risk of suffering harm and in particular ‘significant harm’ under s.36(2A0 of the Migration Act or at all.
2.The decision did not fully or properly consider the likelihood of acts by any parties or at all in considering the risks and likelihood of harm to the applicant if required to leave Australia and relied on limited information in making its decision.
3.The decision did not consider the full and proper relationship of the applicant with his relocation to another country where his relationships and connections with family are non-existent due to the age of the applicant at the time of his leaving the country of birth and the risks of the limited support and connections within the country to prevent harm to him if returned to the birth country.
4.The decision did not properly consider the welfare and safety of the Applicant and as such was unsafe at law.
The applicant filed an affidavit with that judicial review application on 29 March 2019 which annexed a copy of the IAA’s decision and relevantly deposed that:
(a)He did not agree with the IAA decision, and he is at risk of retaliation for his father’s perceived association with the LTTE (at [2], [8] and [10]);
(b)He meets the requirements for the grant of a SHEV and the IAA decision should be set aside (at [3]);
(c)The IAA did not allow him to provide evidence in support of his fears and that he would suffer significant harm if returned to Sri Lanka (at [6]);
(d)The IAA relied on country information that did not support his concerns for returning to Sri Lanka, and the decision-maker should have called for further information about the situation in Sri Lanka (at [7]);
(e)He does not believe that he will be given assistance to relocate in Sri Lanka and he will be killed for his family connections (at [9]); and
(f)The IAA did not determine the question of ‘significant harm’ other than by a cursory analysis of the situation in Sri Lanka (at [11]).
The applicant appeared before the Court on 18 December 2024 without legal representation but with the assistance of a Tamil interpreter. He had not filed any amended application, further affidavits or written submissions in support of his application. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 29 March 2019 (the affidavit being taken as read and in evidence at the hearing on 18 December 2024), a Court Book numbering 174 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 21 September 2023.
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952 at [40]. Accordingly, at the hearing of this matter on 18 December 2024, the applicant was invited to tell the Court what he believed to be wrong with the IAA’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the IAA’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the IAA decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged by the applicant, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZKRT [2013] FCA 317 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445.
However, it was also explained to the applicant that this was not an exhaustive list, and he should tell the Court why he said the IAA had fallen into error.
Against this background, the applicant said that he came to Australia as a refugee 12 years ago and he has nowhere to go and no other protection. He said that if he is returned to Sri Lanka, he would “basically be an orphan” as the rest of his family and siblings are in India and also unable to return to Sri Lanka.
When the Court took the applicant through the grounds in his application, he said that he had nothing further to add to what was already written in his application and affidavit.
In reply to the Minister’s submissions, the applicant stressed that the data breach would pose a risk to his life and safety if he returned to Sri Lanka.
CONSIDERATION
As outlined above, the application for judicial review contains four grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).
Ground one
Ground one contends that the IAA failed to properly apply s 36(2A) in determining that there was no risk that the applicant would suffer significant harm in Sri Lanka.
Section 36(2A) relevantly provides:
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhumane treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
In written submissions, the Minister submitted that there was no error in the IAA’s assessment of the complementary protection criterion. The Minister submitted that the IAA correctly summarised the relevant tests and was correct to find that any stigma or contact with authorities that the applicant might face upon return to Sri Lanka, including for reason of being a returned asylum seeker or due to having resided in Tamil Nadu, would not expose the applicant to a real risk of significant harm.
The Minister submitted that the IAA clearly considered whether the applicant would suffer significant harm as defined in s 36(2A), and that there is nothing in the IAA decision to demonstrate misapplication of that provision. Further, the Minister submitted that there was no error in the IAA referring to previous factual findings made for the purpose of s 36(2)(a) when applying those findings to its assessment of the criteria in s 36(2A), citing DQU16 v Minister for Home Affairs (2021) 388 ALR 363 at [27] and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]. In oral submissions at the hearing, counsel for the Minister, Mr Chan, submitted that not only did the IAA correctly apply the phrase “significant harm” as defined in s 36(2A) of the Act, the IAA expressly used the precise language of the Act at [26] of its reasons.
Based on country information, the IAA reasoned it was not satisfied that someone with the applicant’s profile would suffer significant harm. The Minister submitted that the IAA properly referred to country information and to its earlier factual findings made under the refugee criteria, and that it was correct to do so, in applying the phrase “significant harm”.
The Court accepts the Minister’s submissions with respect to ground one. It is patently clear that the IAA was aware of the relevant tests. It accurately summarised the ambit of significant harm contained within s 36(2A) and its reasons make it clear that it was aware that it was required to consider whether there was a real risk that the applicant would suffer significant harm as a result of return to Sri Lanka. The IAA’s observation that the “real risk” test in s 36(2)(aa) involves the same standard as the “real chance” test in s 5J was entirely orthodox and supported by applicable authority (Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505).
The IAA’s consideration of whether there was a real risk that the applicant would suffer significant harm was equally orthodox. In particular, the IAA specifically assessed whether the stigma associated with returnees from Tamil Nadu and its flow on consequences to reduced employment and housing opportunities, and, the real chance that the applicant may be questioned, detained for up to two days in an airport holding cell and fined as a consequence of his illegal departure, constituted significant harm. Its conclusions in respect of this were open to it and for the reasons it gave.
No jurisdictional error arises in respect of this ground.
Ground two
Ground two claims that the IAA did not “fully or properly consider” the likelihood of acts by “any parties” in assessing the risk of harm to the applicant if he were to be returned to Sri Lanka.
In written submissions, the Minister asserted the only “parties” the applicant claimed to fear harm from were the Sri Lankan authorities, including the SLA. The Minister submitted that the IAA clearly had regard to the likelihood of the applicant being persecuted by Sri Lankan authorities because of his Tamil ethnicity and familial LTTE links (at [15]-[17]), status as a returning asylum seeker and because he was affected by the 2014 departmental data breach (at [18]-[19]), and because of processes he may be subjected to as a returnee (at [20]-[22]). The IAA did not consider the applicant’s claims to fear harm from the Q Branch in India because it found that the applicant did not have a right to enter or reside in India, he was not a citizen of India, and India was not his receiving country (at [8]).
In oral submissions, Mr Chan submitted that the IAA properly confined itself to the persecutory actions or conduct of the Sri Lankan authorities. The applicant does not specify any other parties in his application or affidavit against whom he claims to fear harm.
The Court agrees that the IAA’s approach was conventional and that no error is revealed. The IAA’s assessment of the interest of the Sri Lankan authorities was grounded in relevant and credible country information and informed by the applicant’s own evidence.
No jurisdictional error is apparent in respect of ground two.
Ground three
Ground three contends that the IAA failed to consider the applicant’s lack of family in Sri Lanka and limited support network if he were to return there.
In written submissions, the Minister submitted that the IAA had regard to the applicant’s family situation in Sri Lanka, acknowledging that he had some distant relatives in Sri Lanka but that he was not in touch with them (at [19]). The IAA further noted that the applicant had demonstrated an ability to establish himself in Australia and India by securing various different types of employment. Referring to country information, the IAA was not satisfied that any stigma or resulting treatment he would endure as a returnee from Tamil Nadu would amount to serious harm.
The Minister submitted that the IAA gave consideration to the applicant’s circumstances in relocating to another country where he had limited connections and concluded that he had “the means and ability to meet his basic needs were he to return to Sri Lanka, even when [taking] into consideration his prior residency in Tamil Nadu” (at [19]).
In oral submissions, Mr Chan submitted that the meaning of “serious and significant harm” in the Act (and repeatedly emphasised by the Federal Court) refers to the actions of third parties, for example, “denying somebody access to medical care or capacity to subsist”. Mr Chan submitted that the IAA was correct to find that any stigma or lack of family support did not rise to the level of serious or significant harm required by the Act.
Further, the Minister submitted that the IAA noted the applicant’s claim that he left Sri Lanka around the age of nine, but it expressed doubt that Sri Lanka immigration laws would be applied to him given the length of time that had elapsed since his departure (at [20]). The IAA also found there was no reason why the applicant would not be granted bail if he pleaded guilty to departing Sri Lanka illegally, noting there was no indication his brothers could not assist financially if required (at [21]).
In the Court’s view, it is clear that the IAA turned its mind to the applicant’s circumstances if he were to return to Sri Lanka, including his lack of family there and limited support network. The IAA actively considered the applicant’s lack of family and limited support network in Sri Lanka but found that any hardship he might experience would not amount to serious or significant harm as required by the Act.
No jurisdictional error arises in respect of ground three.
Ground four
Ground four contends that the IAA did not consider the “welfare and safety” of the applicant.
In written submissions, the Minister simply submitted that this was not something the IAA was required to consider in its determination of whether the applicant satisfied the criteria for the grant of a SHEV, namely, s 36(2)(a) or (aa) of the Act.
The Court accepts this submission and finds that the IAA appropriately considered the relevant definition in s 5H(1) for the refugee criterion (s 36(2)(a)) and the definition of “significant harm” in s 36(2A) for the complementary protection criterion (s 36(2)(aa)).
No jurisdictional error arises in respect of ground four.
Complaints raised in the Applicant’s affidavit
The applicant appears to raise two further grounds in his affidavit that were not otherwise expressed in his application to the Court, namely:
(1)That the applicant did not agree with the IAA decision because the IAA made factual errors or was selective about the information it relied upon; and
(2)That the IAA should have given the applicant more opportunities to provide evidence.
With respect to the first issue, to the extent that the applicant did not agree with the IAA decision, the Minister submitted that mere strong disagreement with the factual reasoning and conclusion of the IAA does not establish jurisdictional error (citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40]). Furthermore, the Minister submitted it is well established that the choice of country information and weight given to that is a matter for the IAA, relying on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
The Court agrees with these submissions and finds that this rises no higher than a disagreement with the findings of the IAA and is in effect an invitation into impermissible merits review. No jurisdictional error arises with respect to these aspects of the IAA’s decision or approach.
With respect to the second issue, the Minister submitted that the IAA’s procedural fairness obligations were limited by Part 7AA of the Act. Section 473DA(1) provided that Division 3 of Part 7AA was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. The Minister submitted this leaves no room for the operation of common law rules of procedural fairness (citing BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [31], [33]).
Furthermore, the Minister submitted that s 473DB(1) (as it then was) provided that the IAA was to conduct reviews by considering the review material “without accepting or requesting new information” and “without interviewing” the applicant. The Minister submitted there was therefore no requirement for the IAA to interview the applicant, to put any specific reservations to the applicant for comment, or to otherwise provide him with an opportunity to respond.
In oral submissions, Mr Chan submitted that the IAA complied with its requirements under Part 7AA of the Act. The applicant was provided with a copy of the IAA’s practice direction on 7 December 2018, and the applicant provided the IAA with a submission attaching country information on 11 January 2019. Mr Chan submitted that the applicant therefore was given an opportunity to provide further evidence, along with information about the circumstances under which the IAA would consider such further evidence.
The Court agrees with the Minister’s submission in this respect. In the absence of any specific complaint, it is difficult to ascertain any basis for finding anything other than that the IAA afforded the applicant sufficient opportunities to provide evidence in accordance with its obligations under the Act. There is nothing unorthodox about the approach taken by the IAA in this matter and nothing arises on the material which suggests that any other opportunity should have been provided. No jurisdictional error arises with respect to that complaint.
The IAA’s treatment of new information
Although not raised by the applicant, the Minister, acting as model litigant, helpfully made submissions in writing and at the hearing about whether there was any error of the kind identified in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17) in the IAA’s application of s 473DD in its determination of whether to consider new information in the three articles attached to the applicant’s submissions dated 11 January 2019.
Section 473DD provides that:
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 ruled that the IAA is required to assess any new information 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)”. It follows that if neither of the criteria in s 473DD(b)(i) or s 473DD(b)(ii) is met, the IAA is “prohibited” from considering that new information.
In oral submissions before the Court, Mr Chan cited several Federal Court authorities to support the proposition that compliance with the principle in AUS17 is a matter of substance and not of form (citing CRM18 v Minister for Home Affairs [2019] FCA 665 and CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199), and that the IAA is not required to engage in any particular “formulaic consideration” of s 473DD (APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]).
The Minister submitted that the IAA implicitly considered s 473DD(b) in its assessment of the three articles attached to the applicant’s submissions dated 11 January 2019 (at [4] of its reasons). The IAA began by noting that all of the new information pre-dated the delegate’s decision. It then considered the applicant’s representative’s explanation for not providing the information earlier, being that the previous migration agent or lawyer had failed in their care of the applicant. With respect to that explanation, the IAA indicated that there was no evidence before it that the applicant ever had a previous representative. The Minister submitted that it is apparent from the IAA’s rejection of the applicant’s explanation, and in noting the date of the information, that it had implicitly considered whether the new information could have been provided to the delegate prior to the decision, in accordance with s 473DD(b)(i).
With respect to implicit consideration of s 473DD(b)(ii), the Minister submitted that the IAA was not required to consider this further because it was correct to determine that the articles were country information and that country information can never be “credible personal information” within the meaning of s 473DD(b)(ii) (AUS17 per Edelman J at [24]).
The Court accepts the Minister’s submission that there was no AUS17 error in the IAA’s findings about whether or not to consider the applicant’s new information. It clearly had regard to s 473DD(b)(i) in noting that all of the country information pre-dated the delegate’s decision. Further, it is evident from AUS17 that country information cannot be described as credible personal information and so the IAA was prohibited from considering it under s 473DD(b)(ii). As the new information did not meet the requirements of s 473DD(b)(i) or s 473DD(b)(ii), the IAA was not required to consider whether any exceptional circumstances existed under s 473DD(a). The Court notes that, although the IAA did consider s 473DD(a), there was no error in it doing so because it had also considered the requirements of s 473DD(b)(i) and (ii).
No jurisdictional error arises in respect of the IAA’s treatment of any new information.
The 2014 Departmental data breach
In reply to the Minister’s submissions about the IAA’s treatment of new information, the applicant did not say anything relevant to those particular matters. He simply said, and repeatedly emphasised, that his life would be in danger in Sri Lanka because of the departmental data breach. The Court accepts that the applicant is genuinely concerned about the potential consequences of the data breach.
Mr Chan, in reply, submitted that the IAA had given consideration to the data breach from [18] onwards in its decision. The IAA accepted that the applicant had been affected by the data breach and that some of his personal information had been disclosed, but that based on country information, the IAA was not satisfied that the applicant being potentially identifiable as a returning asylum seeker would result in any real chance of serious harm.
The Court accepts the Minister’s submission that the IAA had considered and reached a reasonable conclusion, in accordance with the country information before it, with respect to the risk of any serious harm to the applicant because of the data breach.
No jurisdictional error arises in respect of this issue, and the Court thanks Mr Chan for the assistance he provided to the Court in his capacity as model litigant.
CONCLUSION
The application for review, supporting affidavit and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the IAA.
Accordingly, the application is dismissed.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 31 January 2025
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