BIK18 v Minister for Home Affairs
[2019] FCCA 413
•18 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIK18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 413 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 36, 473CA, 473CB, 473DA, 473DD, 473GA, 473GB, 476, pt.7AA, div.3 |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 |
| Applicant: | BIK18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 149 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 January 2019 |
| Date of Last Submission: | 18 January 2019 |
| Delivered at: | Perth |
| Delivered on: | 18 January 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s originating application filed 19 March 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 149 of 2018
| BIK18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)
Background
The applicant in these proceedings is a young Sri Lankan Tamil male. In November 2012, he arrived in Australia via Christmas Island as an unauthorised maritime arrival.
On 16 June 2016, the applicant lodged an application for a Safe Haven Enterprise Visa, a type of protection visa (“SHEV”). He claims to fear persecution in Sri Lanka because:
a)of his Tamil ethnicity;
b)he is from a former Liberation Tigers of Tamil Eelam (“LTTE”) controlled area;
c)of his imputed association with the LTTE; and
d)the authorities in Sri Lanka tried to extort money from him as he had a successful business.
The applicant attended an interview with a Ministerial delegate on 8 March 2017.
On 1 June 2017, the delegate refused to grant the application the SHEV.
The matter was then referred to the Immigration Assessment Authority (“IAA”) pursuant to s.473CA of the Migration Act 1958 (Cth) (the “Act”).
The applicant’s migration agent filed written submissions to the IAA on 27 June 2017.
The IAA affirmed the delegate’s decision on 26 February 2018.
Proceedings in this Court
The applicant has expressed concerns about his legal representation to date and, in particular, some of the difficulty he has had contacting his lawyers. While this Court is not fully aware of the relationship between the applicant and his solicitors, the applicant was referred to the jurisdiction of the Legal Practice Complaints Committee in relation to any concerns he had about the conduct of his lawyers.
The applicant appeared before this Court with the assistance of an interpreter. He did not have legal representation.
The applicant seeks judicial review of the IAA’s decision. This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the IAA.
By his application for judicial review, dated 19 March 2018, the applicant alleges jurisdictional error on the part of the IAA. He relies on the following three grounds of review:
1. Jurisdictional error.
2. Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3. Identifying a wrong issue on a wrong question.
The applicant’s grounds of review are best described as vague. Despite being given an opportunity to provide particulars in relation to his grounds for judicial review by a Registrar of this Court on 9 May 2018, the applicant did not provide particulars or written submissions.
A failure to particularise provides a basis for each of the grounds to be dismissed (AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 at [20] per Judge Lucev, approved on appeal in AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J. See also WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J (from which an application for special leave was refused: AQN15 v Minister for Immigration & Border Protection [2016] HCASL 183).
The Court notes that more recently, however, the decision of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8], in which His Honour commented that the consequences of a failure to particularise will depend upon the circumstances. His Honour observed that it will rarely be appropriate to simply dismiss an appeal ground in a migration case for lack of particularisation where the appellant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. His Honour found that, in such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground (at [9]).
Noting that the applicant is not legally represented and this case relates to protections claims, the Court asked that the applicant to explain what he believes the IAA “did wrong”. In this context, the Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions, they most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question (see Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198]).
b)Where the decision maker ignores relevant material (see Craig at [198]).
c)Where the decision maker relies on irrelevant material (see Craig at [198]).
d)Where the decision maker fails to follow mandatory procedures (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208]).
e)Where the decision maker fails to consider the entirely of an applicant’s claims (or “integers” of the claims) as made (see Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22]).
f)Where the decision maker shows actual or apprehended bias (see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17]).
g)Where the decision is illogical, irrational or unreasonable (see Minister for Immigration v SZMDS (2010) 240 CLR 611 (SZMDS) at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44]).
The Court also explained that the Court could not engage in “merits review” of the IAA’s decision and what “merits review” means.
The Court is satisfied that the applicant understood the legal summary provided.
The applicant was asked to outline what, in his opinion, he felt the IAA did that was wrong. The applicant did so, as discussed below.
The Court had before it a Court Book (“CB”) and detailed written submissions from the Minister dated 21 December 2018. As indicated, no written submissions were received from the applicant.
Unfortunately, the applicant did not present in Court today with any of the materials relevant to a proceeding of this sort. To assist the applicant, the Court asked Counsel for the Minister to ensure that, to the extent that any references were made to the Court Book, or the written submissions and the decision of the IAA, the interpreter was given an opportunity to interpret this material for the applicant. The evidence shows that the applicant was sent both the Court Book and the Minister’s submissions well in advance of this hearing. The Court is satisfied that the Court’s approach was appropriate in the circumstances.
Fast Track Applicants
The applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. Further, he is not an “excluded fast track review applicant” as that term is defined in the Act. This is important in relation to allegations of jurisdictional error as the Act limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”, in respect of each fast track reviewable decision referred to the IAA under s.473CA. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time his or her decision was made. The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1).
An applicant may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are contained in s.473DD of the Act which provides:
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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. This imposes fairly strict limitations on the evidence an applicant can advance in IAA proceedings.
The IAA’s Decision
The IAA’s decision dated 26 February 2018 appears in the CB at pages 216 to 228.
The Court notes counsel for the Ministers’ extensive written summary of the IAA’s decision in her written submissions at paragraphs 13 to 30. The Court has cross checked all references and adopts the summary provided by counsel for the Minister, other than as expanded upon below.
At paragraph 3, the IAA notes that it considered the materials referred by the Secretary under s.473CB.
At paragraphs 4 to 5, the IAA noted that it had received submissions from the applicant. The IAA noted that it had reviewed that document and, to the extent that the submissions dated 13 July 2018 contained argument, the IAA had regard to them: [4]. However, the IAA found that the submissions also contained “new information”; namely five country reports. In relation to these country reports, the IAA found that three of the reports predated the delegate's decision and contained general country information. The other two reports did not have either footnotes or citations and the extracts contained general country information. There was no explanation provided as to why the information could not have been provided prior to the delegate's decision and no reasons were given as to why it may be considered credible personal information. The IAA was not satisfied that the requirements of s.473DD(b)(i) or s.473DD(b)(ii) were met in relation to the country information. Furthermore, it was not apparent that there were any “exceptional circumstances” to justify considering the information.
It is clear from the above that the IAA assessed this information in light of s.473DD of the Act.
The IAA then summarised the applicant’s claim (at [6]) as follows:
a)He was born in 1989 in Thiriunagar village, Kilinochchi District, Northern Province in Sri Lanka. He is of Tamil ethnicity and a Jehovah’s Witness.
b)He has three brothers and three sisters, one of his brothers came to Australia about six years ago.
c)During the war the LTTE required one member of each family to go to war and his older brother T volunteered to join and the LTTE took him away.
d)After the war in 2009 the SLA targeted his district because it had been controlled by the LTTE since 1989. His village had helped with the preparation of funerals because for LTTE members and he had been MC for some of these funerals so he was specifically targeted by the SLA.
e)On 22 April 2009 the SLA moved the village to an army camp Menik Farm in Vavuniya. Everyone was questioned and his brother T admitted to his involvement with the LTTE and was taken to rehabilitation. The LTTE confirmed the applicant was not an LTTE member.
f)He was released with his other family members in September 2009 and returned to his village in 2010.
g)In August 2011 he opened a shop attached to their family home and the whole family worked in the shop. T was released in from rehabilitation in October 2011 and worked in the shop.
h)A big army camp ‘Division 57’ was about 200 metres from their house. Soldiers regularly came and he, his brothers and brother in law would be questioned. They knew T had been to rehabilitation but asked why the applicant had not been.
i)Around February 2013 the soldiers questioning increased. On 1 April 2013 he organised a 50th birthday party for his mother. Soldiers came and asked them to turn down the loud music and they complied. The army took him to their camp and threatened him. A few officers questioned him about his involvement with the LTTE; they pushed him against the wall and hit him with a shoe. They told him he had to pay 5 lakhs rupees or they would send him to Boosa jail.
j)The soldiers called his brother and told him they had to be paid by 3 April 2013. His brother agreed. He and his brother feared paying would be an admission that he was involved with the LTTE so decided not to pay.
k)On 3 April at 10.30-11pm at night as they were locking the shop four or five people pulled up in a large vehicle. One of the people put him in handcuffs, someone pointed a pistol to his head and another told him in Sinhalese ‘this is our country’.
l)He shouted ‘mother’. His mother and relatives ran out and he managed to get loose, hit the pistol pointing at him and ran away. The people took their vehicle and left.
m)He decided to leave and his mother rang his uncle who wanted to send him to Singapore. At 4am on 4 April he travelled to Colombo, his uncle paid an agent and he travelled to Singapore that day by plane.
n)After he left the authorities were afraid he would recruit new members to the LTTE and required his brothers to have a book signed by the CID every month in Colombo.
o)He fears harm on return to Sri Lanka because of his Tamil ethnicity, because he is from a former LTTE controlled area and his imputed association with the LTTE.
This is an accurate summary of the applicant’s claims.
In relation to his identity and background, the IAA accepted that the applicant was of Tamil ethnicity and Catholic faith, and that he was born in the Northern Province of Sri Lanka: [10].
The IAA also accepted that the applicant’s family was temporarily displaced on a number of occasions during the conflict and their home may have been damaged causing it to be uninhabitable in 2005: [11].
In relation to his claimed family connections to the LTTE, the IAA accepted aspects of his claims despite these not being raised at entry interview. It accepted that:
a)the applicant’s family provided support including monetary support to the LTTE: [13];
b)the applicant’s father may have briefly been forced to undertake physical training with the LTTE: [13]; and
c)the applicant’s uncles may have been members of LTTE more than 20 years ago: [13].
The IAA then undertook a refugee assessment as per s.5J of the Act and the meaning of “well-founded fear of persecution”: [7] to [9].
At paragraphs 10 to 30, the IAA assessed the applicant’s evidence in relation to his family links and imputed association with the LTTE, his status as a Tamil business man and his Tamil Ethnicity.
The IAA accepted that the applicant is from the Kilinochchi District, which was an LTTE controlled area during the war. It further accepted that the applicant's older brother was forced to be part of the LTTE and was later taken to a rehabilitation camp, and that the applicant and his family spent time in a government camp. The IAA accepted it was plausible that the applicant was taken by the LTTE on two occasions and escaped on each occasion. The IAA also accepted that it was credible that the applicant may have been involved in LTTE activities whilst at school, including being an MC at funerals: [18].
The IAA was not satisfied that the applicant's brother was head of the LTTE Communications Department. The IAA considered the claim was illogical given the applicant's claim that his brother was an unwilling recruit and so soon after being trained would be given such a position of responsibility, would have only been approximately 21 years old at the time, had no relevant skills, and the applicant provided limited evidence as to his brother's responsibilities in this role at the interview before the delegate. The IAA considered that the applicant embellished the brother's role and was of the view that the brother was a low level LTTE cadre: [19].
The IAA referred to country information suggesting that close relatives of high-profile former LTTE members who remain wanted by the authorities may be subject to monitoring, but did not accept that the applicant's brother would be considered a high profile former LTTE member. Accordingly, the IAA found that the applicant was not at any risk on this basis: [20]-[22].
The IAA accepted that the applicant was involved in a family business and that it was plausible that the family may have experienced some harassment from the Sri Lankan Army. However, the IAA was not satisfied of the claimed events of 1 and 3 April 2013 and found that the applicant fabricated these events in their entirety. The IAA reached this conclusion for a number of reasons, including that:
a)it did not accept that the applicant and his family would knowingly bring attention to themselves by playing loud music next to an army base considering the claimed abuse his brother went through during his rehabilitation and the applicant's claimed harassment from the Sri Lankan Army whilst running the business;
b)the applicant was inconsistent as to whether he was held overnight on 1 April 2013 and who attended the family business;
c)the applicant and his brother decided not to pay the bribe intentionally without taking any precautions or action;
d)it was fanciful that the applicant was so easily able to free himself and run away when his hands were tied behind his back; and
e)the applicant's departure from Sri Lanka on his own passport appeared somewhat premeditated given that the applicant had never travelled outside Sri Lanka previously: [20]-[22].
The IAA found it far-fetched that the applicant's brothers are still required to travel to Colombo when they have done nothing except allegedly not paying the ransom, and found that that the brothers are not of any ongoing interest to the authorities because of the applicant: [22].
The IAA was not satisfied that, now or in the reasonably foreseeable future, the applicant would be targeted or monitored by the Sri Lankan authorities because of his Tamil ethnicity or because he originates from the north of Sri Lanka or a former LTTE controlled area. This finding was made taking into account country information and the applicant's evidence. The finding was also made on the basis of the applicant's lack of profile, and that he has no substantive connection or links to the LTTE other than his brother who the IAA found was not of a high profile, completed rehabilitation and was released in 2011. Further, the IAA was not satisfied that if the applicant were to reopen his business he would experience the level of harassment he may have experienced in the past. Therefore, the IAA was not satisfied that the applicant faced a real chance of harm on these bases: [27] to [30].
The IAA was not satisfied that the applicant was involved in any way with post-conflict Tamil separatism: [25] and [26].
The IAA was not satisfied that the applicant experienced harm on the basis of his practice of the Jehovah's Witness faith in the past. Further, it was not satisfied that on his return the applicant would attempt to proselytise or convert others. Therefore, the IAA was not satisfied that the applicant faced a real chance of serious harm on the basis of his religion: [32] to [35].
The IAA was not satisfied that the applicant faced a real chance of harm as a returning Tamil asylum seeker: [36].
Accordingly, the IAA concluded that the applicant did not meet the requirements of s.36(2)(a) of the Act.
In relation to any Complementary protections, the IAA concluded that, for similar reasons, the applicant did not face a real risk of significant harm in Sri Lanka.
Consideration
Ground 1
Jurisdictional Error.
The applicant was asked to explain what he means when he refers to “jurisdictional error”.
In effect, the applicant said that he had given the IAA sufficient evidence and they “should have believed him”. He disagrees with the IAA’s assessment, i.e. that everything is “now okay in Sri Lanka”.
Unfortunately, what the applicant is asking the Court to undertake is a merits review in the hope that the Court will ultimately come to a different conclusion than that reached by the IAA. In effect, the applicant would like the Court to review the evidence that was before the IAA and ultimately give him the visa that he seeks. This Court cannot undertake a review of that sort: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.
Ground 1 fails.
Ground 2
Bias based on conscious or unconscious prejudice by ignoring relevant materials.
In relation to the allegation of bias, the court notes the Minister’s submissions at [41]-[45]:
41. Any allegation of bias must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at [69]. General assertions of bias, such as that made by the applicant, are not sufficient.
42. In any event, the applicant is unable to establish any actual or apprehended bias on the part of the IAA in this matter.
43. For the applicant to establish actual bias, he must show that the IAA’s state of mind, in exercising the discretion, was so committed to a conclusion already formed as to be incapable of alteration, regardless of the evidence or arguments presented: Jia Legeng at [71]-[72].
44. For the applicant to establish apprehended bias, he must demonstrate that the IAA behaved in a way which might lead the hypothetical fair-minded layperson to reasonably apprehend that the decision maker might not have brought an impartial mind to making the decision: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
45. The IAA carefully and independently assessed the applicant’s claims, as it was required to do, and its rejection of some of the applicant’s claims does not indicate bias. There is nothing to indicate any pre-judgment on the part of the IAA. As the IAA was not satisfied that the criteria for the grant of the visa had been met, the appropriate order for the IAA to make was to affirm the decision under review: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [17]. Accordingly, the IAA’s decision to affirm the delegate’s decision to refuse the applicant a protection visa does not indicate bias.
The applicant was asked to explain what he means when he refers to “bias”. The applicant did not offer any explanation that went directly to the issue of bias. Rather, he simply said, in effect, that he should have been believed.
An allegation of actual bias requires proof. Apprehended bias must be firmly established. The applicant has not today provided any evidence to the Court that shows that the IAA had closed its mind towards his case or was otherwise incapable of changing its view or that a fair minded and informed observer might reasonably apprehend that the IAA might not have brought an impartial mind to bear. Allegations of bias are quite serious. It is not sufficient for an applicant to simply state that bias existed.
There is no indication here that the IAA was biased, actually or apparently, against the applicant or that the IAA approached the task of review with a preconceived view as to the outcome.
In relation to the assertion that the IAA “ignored relevant material”, the Court notes the Minister’s submissions at [46]-[50], as follows:
46. The applicant has not identified which material he claims the IAA has ignored. The first respondent submits that the IAA has considered all relevant claims and evidence advanced by the applicant.
47. The IAA considered the applicant’s protection claims relating to his imputed LTTE association for the various reasons claimed, his Tamil ethnicity and the specific events of 1 and 3 April 2013 that allegedly gave rise to the applicant’s departure from Sri Lanka. The IAA also considered whether the applicant may face a real chance of harm as a result of any involvement with post-conflict Tamil separatism, his Jehovah’s Witness religion, or as a failed asylum seeker. The IAA’s reasons demonstrate that the IAA was engaged in an active intellectual process directed at the protection visa criteria: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]-[46].
48. The IAA was not required to refer to every piece of evidence and every contention made by the applicant: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46].
49. In any event, it is apparent that the IAA had regard to all relevant evidence provided by the applicant, including the applicant’s statement accompanying his protection visa application, his interview before the delegate for the purpose of discussing his protection claims, his enhanced screening interview, his arrival interview, his identification card issued by the Sri Lankan Army, photographs from his mother’s birthday, his commercial licence, a letter from a member of parliament, a YouTube page on which the applicant claimed to have uploaded music, and an article submitted by the applicant prior to the delegate’s decision being made.
50. The records show that the applicant’s representative provided 3 submissions. In its reasons, the IAA has referred to receiving ‘a’ submission from the applicant’s representative. However, this does not establish jurisdictional error because the 3 submissions have the same content, with only the font and formatting differing between the submissions.
(Footnotes omitted)
The applicant was asked to clarify what information he believes was not looked at. He referred to a letter from a Sri Lankan parliamentarian found at CB 138. In effect, the applicant asserts either that the letter wasn’t looked at or that the letter was looked at but, given the content of the letter, the conclusions reached by the IAA are illogical or irrational or unreasonable.
It is clear that the IAA did reference the letter referred to. It does so at [21] in its decision. Further, it cannot be said that the approach taken by the IAA in relation to the letter is illogical or unreasonable. What the IAA did was attach less weight to the letter because of the other evidence before it and, in particular, inconsistent statements made by the applicant (see CB 222 at [20]).
Having assessed the IAA’s analysis of the letter and the evidence as a whole, it cannot be said that the way in which the IAA approached the content of the letter or the way in which the IAA approached what weight should or should not be attached to the letter is illogical or unreasonable. A claim of illogicality or irrationality can only be made out if it can be demonstrated that the IAA formed a view that no rational or logical decision maker could have arrived at on the same evidence: SZMDS at [130]. Illogicality and irrationality may be considered not only in relation to the end result but also in fact finding which leads to end result: ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174 at [74]. This is what occurred here and it cannot be said that the approach taken was not open to the IAA.
Ground 2 fails.
Ground 3
Identifying a wrong issue on a wrong question.
In relation to ground 3, the Court notes the Minister’s submissions at [52] and [53]:
52. The applicant has not specified what wrong issue the IAA has identified in its decision or what wrong question the IAA has asked in reaching its decision.
53. In reviewing the delegate’s decision, the IAA was required to consider whether the applicant met the criteria for the grant of a protection visa. The IAA correctly identified the criteria in subsections 36(2)(a) and 36(2)(aa) of the Act as being relevant criteria. The IAA’s approach to these subsections was entirely orthodox and it did not identify a wrong issue or ask itself the wrong question. In particular, the first respondent notes:
53.1. in considering whether the applicant was a refugee for the purposes of s 36(2)(a), the IAA appropriately considered and applied the meaning of ‘refugee’ in s 5H and the meaning of ‘well-founded fear of persecution’ in s 5J of the Act; and
53.2.in considering whether the applicant met the complementary protection criteria in s 36(2)(aa), the IAA correctly identified and applied the definition of ‘significant harm’ in s 36(2A) of the Act.
The applicant was asked to clarify this ground of review. He made references to the fact that the IAA focussed more on the evidence of his brother than on his evidence. It is noted in this context that the particular example given by the applicant refers to questions put by the delegate. The delegate’s decision is not under review in this Court.
It cannot be said that an assessment of the brother’s evidence as undertaken by the IAA was inappropriate or irrelevant in relation to this matter. It is par for the course in proceedings of this sort that if a family member is at risk of harm, then an applicant might also be at risk of harm. In those circumstances, the assessment of the brother’s evidence as undertaken by the IAA was entirely appropriate.
What we have here are evidentiary assessments that go directly to credibility. That analysis is entirely appropriate within the factual context of this matter.
The IAA accurately set out the applicant’s claims for protection and considered those claims against independent country information and the applicant’s evidence. Its findings were open on the material before it. Any credibility findings flowed logically from its assessment of the material before it and provided a sound basis to support the decision ultimately made.
Finally, the applicant seemed to suggest that he was not provided procedural fairness. He did not, however, elaborate.
The Court disagrees. The applicant was provided procedural fairness within a strict legislation regime relating to fast track applicants.
The IAA conducted the review required of it by pt.7AA of the Act, particularly in terms of exercising the jurisdiction conferred upon it to determine whether there was a real chance that the applicant would suffer persecution if returned to Sri Lanka. After considering all of the evidence referred to it and having determined that there was no evidence to justify concerns in that regard, the IAA determined that there was no chance of harm.
Overall, while the Court is sympathetic to the concerns raised by the applicant, there is no merit in any of the grounds for review advanced by him.
Conclusion
There is, on the evidence before this Court, no jurisdictional error demonstrated by the grounds of review or otherwise apparent in the IAA’s decision. Accordingly, the application is dismissed with costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 25 February 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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