BJH17 v Minister for Immigration
[2017] FCCA 2932
•28 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJH17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2932 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – adjournment application refused – adjournment not warranted in the interests of the administration of justice – the Authority provided logical and reasonable grounds in support of the adverse finding in respect of the media article – it was open to the Authority to find the translation was not new information within the meaning of s 473DC and s 473DD of the Migration Act 1958 (Cth) – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 5H, 5J, 36, 473CB, 473DD, 476 |
| First Applicant: | BJH17 |
| Second Applicant: | BKV17 |
| Third Applicant: | BKW17 |
| Fourth Applicant: | BKX17 |
| Fifth Applicant: | BKZ17 |
| Sixth Applicant: | BLA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 983 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 28 November 2017 |
| Date of Last Submission: | 28 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2017 |
REPRESENTATION
The Applicants appeared in person.
| Solicitors for the Respondents: | Mr L Dennis Minter Ellison Lawyers |
ORDERS
The amended application is dismissed.
The first, fifth and sixth applicants pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 983 of 2017
BJH17
First Applicant
BKV17
Second Applicant
BKW17
Third Applicant
BKX17
Fourth Applicant
BKZ17
Fifth Applicant
BLA17
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA affirming a decision of the delegate not to grant the applicants’ protection visas. The first applicant is the father of the second, third, fourth and sixth applicants and the husband of the fifth applicant. The first applicant’s wife and daughters were included as members of the family unit in the application for a Safe Haven Enterprise visa lodged on 23 June 2016.
The applicants were found to be citizens of Sri Lanka and their claims were assessed against that country. The first applicant arrived in Australia as an unauthorised maritime arrival on 14 November 2012 with one of his daughters. His wife and other daughters arrived on 7 May 2013. The first applicant claimed to fear harm by reason of detention, torture and interrogation by the Special Task Force officers in relation to a shooting near his shop and by reason of regular visits to the first applicant’s home by unidentified men dressed in white, demands by Tamil Makkal Viduthalai Pulikal (TMVP) that he attend their office at a particular location for questioning, regular visits by Special Task Force members to the first applicant’s shop to ask him questions and constant harassment by the Criminal Investigation Division (CID) of the applicant’s wife after his departure from Sri Lanka in 2012.
The delegate’s decision
The first applicant was found to be of Tamil ethnicity from a particular region in the Eastern province of Sri Lanka. The delegate accepted as plausible that the first applicant’s brother died a violent death in 1993 that was connected with his Tamil ethnicity. The delegate accepted that the applicant was imprisoned in 1992 and 1993 in different prisons and questioned about his brother. The first applicant informed the delegate that he had never had any involvement with the LTTE and the delegate accepted that the first applicant was never involved in supporting or fighting with the LTTE.
The delegate accepted that there was an incident in July 2008 near the applicant’s shop as a result of which the first applicant was submitted to forms of torture by the Special Task Force. The delegate accepted as credible that complaints were made by the first applicant to particular bodies about his treatment by authorities including the Special Task Force in relation to the July 2008 incident. The delegate accepted that the first applicant received visits to his home from 2008 and as a result, he moved to different houses. The delegate accepted as plausible that the first applicant believed that the local authorities were acting in unison in their frequent dealings with him from 2008 to 2012.
The delegate accepted as plausible that the first applicant was subjected to what was in effect a TMVP summons to attend their offices. The delegate raised with the first applicant what happened when he refused to attend their offices in 2008 and the applicant asserted he had been in hiding from the TMVP during the period from 2008 to 2012. The delegate explored with the first applicant the running of his shop and did not accept as plausible that the first applicant was able to live in Batticaloa and conduct his business while at the same time, shifting between houses and avoiding all interaction with the paramilitary group that retained a significant interest in him.
The delegate referred to the first applicant’s illegal departure with his second daughter in October 2012 and accepted as plausible that the authorities in Sri Lanka made enquiries about the first applicant after his departure from Sri Lanka. The delegate did not accept that the TMVP paramilitary group retained an interest in the first applicant after 2008. The delegate did not accept that the first applicant was in hiding from 2008 to 2012.
The delegate took into account the security situation in Sri Lanka in the East and North having improved significantly, but was not satisfied the first applicant would face a real chance of persecution for reason of his Tamil race. The delegate was not satisfied the first applicant faced a real chance of serious harm in the reasonably foreseeable future in Sri Lanka on the basis of his Tamil race or his origins as a Tamil from the Eastern province.
The delegate was not satisfied the first applicant faced a real chance of serious harm in the reasonably foreseeable future in Sri Lanka on the basis of alleged family associations with the LTTE and found that he would not be imputed with a political opinion in support of the LTTE.
The delegate was not satisfied the first applicant faced a real chance of persecution by a special task force of Sri Lanka, local police or the CID of the Sri Lankan police force. The delegate was not satisfied the first applicant faced a real chance of persecution by the TMVP. The delegate was not satisfied the first applicant faced a real chance of serious harm from the EPDP. The delegate overall was satisfied that there is not a real chance that the first applicant will be pursued and seriously harmed by any persons in Sri Lanka on account of his association with the TNA and found the first applicant did not have a well-founded fear of persecution for that reason.
The delegate found the first applicant was not a person of interest to the Sri Lanka authorities for any reason when he left the country. The delegate found the first applicant does not have a well-founded fear of persecution on account of being a Tamil failed asylum seeker. The delegate was not satisfied that the short period of detention to facilitate the processing of the first applicant as an illegal departee does not amount to serious harm and does not involve persecution. The delegate was not satisfied the first applicant holds a well-founded fear of persecution on account of being a failed Tamil asylum seeker who departed Sri Lanka illegally.
The delegate was not satisfied the first applicant faces a real chance of persecution by reason of his activities since arrival in Australia. The delegate having considered the applicant’s claims both individually and cumulatively found the first applicant and his family were able to return to Sri Lanka and that the first applicant would not face a real chance of persecution by reason of his risk profile now or in the reasonably foreseeable future. The delegate found the first applicant failed to meet the criteria under the Act for the grant of the visa.
The Authority’s decision
On 3 February 2017, the Authority wrote to the first applicant informing the first applicant that the application for the protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and practice which would give the first applicant an opportunity to put on new information and submissions.
Information before the Authority
The applicant’s legal representative provided submissions on 3 March 2017 by email and on 8 March 2017 by email which were identified and considered by the Authority under s 473DD of the Act. Whilst there is an error in relation to the dates of the submissions, it is apparent from the analysis of the submissions that the Authority was referring to the submissions dated 3 March 2017 and the supporting material and the submissions and supporting material of 8 March 2017.
The Authority in its reasons dated 17 March 2017 identified the background to the visa application. The Authority identified having regard to the material referred under s 473CB of the Act. The Authority addressed the submissions in detail. The Authority expressly referred to the Safe Haven Enterprise visa interview with the first applicant on 4 January 2017 drawing the first applicant’s attention to the importance of putting forward all his claims and informing him that he may not have a further opportunity to do so. The Authority noted, that at the interview, the delegate advised the first applicant that the Authority could only accept new information in exceptional circumstances.
The Authority found the delegate provided the first applicant with an opportunity to update any details in his Safe Haven Enterprise visa or to notify of any changes he wished to make. The Authority recorded that the first applicant replied to the delegate that he had no updates and no changes to make. The Authority noted that the delegate expressly confirmed with the first applicant that the second to sixth applicants were not making their own separate claims for protection. The Authority then referred to the submission advanced on behalf of the first applicant addressing the delegate’s findings and did not regard that as new information and had regard to those sections of the submission.
The Authority referred to the new information advanced in relation to the first applicant being in hiding from 2008 to 2012 and found that there were exceptional circumstances and had regard to that information. The Authority then referred to new information in the form of a statement from the first applicant’s wife. The Authority was not satisfied that the information was not previously known or had it been known, it may have affected the consideration of the first applicant’s claim. The Authority was not satisfied, given the legal representation that the applicants had in completing their Safe Haven Enterprise visa applications that the new information was not and could not have been provided to the Minister before the decision was made or that it was credible personal information that was not previously known and had it been known, may have affected the consideration of the applicants’ claims. The Authority was not satisfied there were exceptional circumstances to justify the Authority taking into account the statement from the second applicant and did not have regard to it.
The Authority then made reference to a media article including photographs about the Memorial Day the applicant attended in Australia. The Authority noted that the language of the article was Tamil and that the first applicant sought to introduce an English translation of the article which was said to be relevant to consideration of the updated submission referring to country information about Tamil diaspora activities. The Authority referred to the country information referred to in the submission as being the same as that referred to in the post-interview submission and that it was not new information and had regard to it. The Authority noted the submissions advanced in relation to the English translation and the assertion that it gave context to the photographs published. The Authority found the English translation was new information and was not satisfied that it would have affected the consideration of the claims. The Authority made reference to the delegate having regard to the media article and accepting the first applicant attended the event and that his photograph was published on the website with a clearly visible LTTE flag. The Authority noted the article was published in 2015 and was satisfied the applicant had the opportunity to obtain an English language translation and provide this to the Minister. It was in those circumstances that the Authority found that there were not exceptional circumstances to justify the Authority considering the new information, being the English translation of the media article.
The Authority then referred to statements advanced and submissions on behalf of the third and fourth applicants before the Authority which were two of the first applicant’s daughters which sought to advance new information in respect of claims for protection by the respective daughters. It was also advanced one daughter was not a member of the family unit because of a relationship. The Authority rejected the submission that the delegate failed to assess whether the sixth applicant met the definition of a member of family unit and noted that the information provided to the delegate indicated that she lived with her parents and was not in a relationship and was dependent upon her father. The Authority made reference to the requirements of s 5AAA of the Act and that the Minister does not have any responsibility or obligation to establish or assist in establishing an applicant’s claims.
The Authority was satisfied that it was the applicants’ obligation to advise the department of the alleged change in circumstances of the sixth applicant. The Authority was satisfied that the sixth applicant had an opportunity to provide information to the Minister and to advance protection claims with a Safe Haven Enterprise visa application or prior to the decision being made.
The Authority took into account the explanatory memorandum and the representative’s submissions, but found the applicant daughter had the opportunity to put forward this information to the Minister and was not satisfied there were exceptional circumstances that exist to warrant the Authority having regard to the new information submitted on behalf of the sixth applicant and did not have regard to those new claims.
The Authority identified new claims in relation to the fourth applicant, being another daughter before the Authority and took into account, the representative’s submissions. The Authority was not satisfied that there had been a material change in her circumstances since the delegate’s decision on 31 January 2017 since the completion of her Safe Haven Enterprise visa application with legal assistance in June 2016. The Authority was not satisfied the new information in relation to the fourth applicant could not have been provided to the Minister before the decision was made or that it was credible personal information that was not previously known and had it been known, may have affected the consideration of the applicant’s claims. The Authority was not satisfied there were exceptional circumstances to justify the Authority taking into consideration the new information submitted by the fourth applicant and did not have regard to the same.
Refugee Convention assessment
The Authority correctly identified the first applicant’s claims and evidence. The Authority correctly identified the relevant law. The Authority accepted that the first applicant came from an area subject to LTTE activity and that in 1990 to 1993, he and his brother were detained, he was tortured and scarred as a result and his brother was killed. The Authority accepted that the TMVP demanded the first applicant meet with them and that the applicant did not attend the meeting. The Authority accepted as plausible that the Special Task Force continued to visit the first applicant and they questioned him whenever any incidents occurred.
The Authority was not convinced by the first applicant’s explanation that for almost four years, in 2008 to 2012, his shopkeeper was not aware of his whereabouts and contacted him to come and collect money when the coast was clear. The Authority was not convinced that by staying with relatives and friends when employing a shopkeeper, the first applicant was able to successfully evade the authorities for a period of four years if he was of interest to them. The Authority did not accept that the first applicant was wanted by the authorities and that he would have been able to avoid them for a period of four years. The Authority made reference to the first applicant’s family being able to continue to live in their homes and go about their businesses with no indication that they were questioned about the first applicant’s whereabouts or harmed as a consequence of the Special Task Force or TMVP not being able to locate him.
The Authority found there was no indication that members of his family are perceived as pro-LTTE or anti-Government because of their relative links to the ITAK. The Authority accepted that as a result of the first applicant’s experiences, he has a subjective fear of harm on return to Sri Lanka. The Authority, however, taking into account country information found that it does not support the first applicant’s fear of harm as being well-founded.
The Authority found the first applicant did not have any links with the LTTE, was not charged in relation to the EPDP killing and has not been involved in any other activities that the country information indicates would cause him to be of concern to the authorities. The Authority found that there had been significant change in the country’s circumstances since the end of war and the defeat of the repressive government in 2015. The Authority accepted that the government is sensitive to Tamil separatist activities conducted by the Tamil diaspora overseas and country information indicates that the authorities monitor events overseas. The Authority, however, was satisfied that attending one event in Australia in 2015 would not result in harm to the first applicant on return to Sri Lanka, even considered together with the past incidents he has experienced. The Authority found that there had been greater reconciliation with Tamils and some acceptance of Tamil commemorative events. The Authority made reference to reports as to journalists and high profile human right activists linked to diaspora activities being perceived as pro-LTTE anti-Government and detained on that basis. The Authority found the first applicant simply attended a memorial event. The Authority found the first applicant has not been outspoken in support of Tamil separatism or against the government. The Authority did not accept the first applicant faces a real chance of harm because he attended the event. The Authority did not accept that complaints to human rights agencies by the first applicant and his mother would attract adverse attention or contribute to a perception that he is pro-LTTE or anti-government.
The Authority did not accept that the first applicant was imputed as being linked to the LTTE and found that the applicant was not charged under the 2008 EPDP killing and was not involved in any activities that would otherwise be of concern. Accordingly, the Authority was not satisfied that the first applicant’s illegal departure would imply guilt or contribute to any accumulated pro-LTTE or anti-government profile.
The Authority took into account the potential access to the first applicant’s details following the data breach. The Authority, considering the information and the claims individually and cumulatively, did not accept that the first applicant is of interest to the authorities on the basis of being a Tamil, being perceived as a supporter of the LTTE and anti-government, or because he is a member of the particular social group of failed asylum seekers who are returning from western countries after leaving Sri Lanka illegally. The Authority did not accept that the first applicant’s fear of harm from the authorities on the basis of these claims is well-founded. The Authority was not satisfied that there is a real chance the first applicant will be harmed by the authorities in the foreseeable future in Sri Lanka.
The Authority was not satisfied that the first applicant is at risk of experiencing harm from paramilitary on return to Sri Lanka. The Authority found the first applicant is not of interest to the authorities now and it follows that there is not a real chance he will be harmed by paramilitary groups working with the authorities should he return to Sri Lanka now.
The Authority accepted that the first applicant may be disturbed by increasing numbers of Sinhalese people moving into Tamil areas but found there is no indication that this would result in harm to the applicant amounting to persecution. The Authority did not accept that the first applicant’s fear was a well-founded fear of serious harm on that basis.
The Authority took into account the first applicant’s illegal departure and accepted that it is likely the first applicant will be questioned by police at the airport and charged under the Immigrants and Emigrants Act. The Authority took into account the present conditions being poor and accepted that the first applicant may find the process difficult. The Authority was satisfied that the first applicant would face only a brief period of detention. The Authority taking into account the present conditions, did not consider the brief period of detention would constitute the necessary level of threat to the first applicant’s life or liberty or to significant physical harassment or ill-treatment under s.5J(5) of the Act or otherwise amount to serious harm for the first applicant. The Authority did not accept that the likely questioning of the first applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine under the Immigrants and Emigrants Act could constitute a threat to his life or liberty, or to be significant physical harassment or ill-treatment under s 5J(5) or the Act, or otherwise to amount to serious harm.
The Authority found the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act would be the result of a law of general application and did not amount to persecution under s 5H(1) and s 5J(1) of the Act.
The Authority considered whether the first applicant’s wife faces a real chance of persecution in Sri Lanka on the basis of the claims implicit in the material submitted and claims made by her husband, being the first applicant. The Authority was not satisfied that the attending of one event would result in harm to the applicants on return to Sri Lanka. The Authority found the second applicant was not involved in other Tamil diaspora activities and there was no indication that she has been outspoken as pro-LTTE, anti-government and found there is not a real chance she will be harmed as a result of attending that event. The Authority took into account the data breach and that the second applicant would be returning as a failed asylum seeker. The Authority was not satisfied that this would result in any real chance of harm to the second applicant. The Authority was not satisfied that the second applicant faces a real chance of persecution because of her illegal departure.
The Authority referred to the fact that the daughters have not submitted separate claims for protection in their Safe Haven Enterprise visa applications but considered whether they face a real chance of persecution in Sri Lanka on the basis of the claims implicit in the claims and material submitted by the first applicant. The Authority found there is no indication that the daughters would be vulnerable due to a lack of male protection on return to Sri Lanka. The Authority made reference to the applicants having their father, as well as other male relatives in Sri Lanka who have supported the family in the past. The Authority found there was not a real chance that the daughters face a risk of harm on return to Sri Lanka on account of release of their father’s details by the data breach or on the basis of illegal departure or asylum claims for Australia. The Authority was not satisfied that the daughters of the first applicant would face a real chance of persecution because of their illegal departure.
The Authority found that the applicants did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicants did not meet the criteria under s 36(2)(a) of the Act.
Complementary protection assessment
The Authority was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being returned from Australia to Sri Lanka, there is a real risk that the applicants will suffer significant harm. The Authority found the applicants failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
On 20 July 2017, a Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions. An amended application was filed on 30 August and an affidavit by the first applicant on 25 November 2017 seeking an adjournment. That affidavit identified a potential surgical procedure to take place on the day following the hearing. There was no medical evidence to suggest that the first applicant was unable to attend the hearing and the request for the adjournment in the affidavit dated 25 November 2017 was the subject of a notification that the request had been refused.
At the commencement of the hearing, the Court explained to the first applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the first applicant. The Court explained that in summary this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs.
The Court explained that it would have identified the evidence, then hear submissions from the first applicant, then hear submissions from the solicitor of the first respondent, and then hear submissions from the first applicant in reply. The first applicant confirmed that he understood the nature of the hearing.
Adjournment application
As the Court proceeded to identify the evidence, the Court invited the first applicant to identify whether there was any further adjournment application that he wished to make in light of his affidavit of 25 November 2017 being admitted into evidence. The first applicant maintained that he wanted an adjournment and made reference to the surgical procedure that he was to have the following day. Nothing in the proposed surgical procedure report identified any inability of the first applicant to participate in the hearing before the Court. The first applicant put detailed submissions to the Court in support of his originating application and his amended application.
The Court is satisfied that the first applicant was able to meaningfully participate in the hearing. As the adjournment application was opposed and there was no fresh basis upon which the Court could be satisfied that an adjournment was necessary, in the interest of the administration of justice, the adjournment application was refused. During the course of submissions the first applicant in reply renewed the application for an adjournment on the basis of wanting to get a lawyer. The first applicant has had an ample opportunity since the commencement of these proceedings and the orders made by the Registrar to obtain legal representation if he is able to do so. The Court was not satisfied that any further proper ground had been made out to warrant an adjournment as being necessary in the interests of the administration of justice.
The first applicant’s submissions from the bar table
From the bar table, the first applicant made reference to the death of his brother and asserted that if he was returned to Sri Lanka, he would be shot. The first applicant referred to his detention and made reference to the new information in respect of the translation of the Tamil language media article which was not accepted by the authorities new information. The first applicant maintained that the Authority should have interviewed his wife and children. The first applicant maintained that he had gone into hiding and submitted that the decision is unlawful.
The application for review under Part 7AA is one in respect of which, subject to the provisions of that Part, the Authority must review the material without accepting or requesting new information and without interviewing the referred applicant. In the present case, it is clear that the Authority took into account the submissions advanced in support of the new information and considered the same by reference to both limbs of s 473DD of the Act. There is no basis to infer that the Authority adopted a narrow or erroneous meaning of the concept of exceptional circumstances in s 473DD of the Act. The submissions advanced to the Authority in relation to both limbs of s 473DD of the Act as well as the Authority’s analysis of the material advanced make clear that the Authority took into account the whole of the provisions of s 473DD of the Act in determining whether to have regard to new information. Given the provisions of the division, there is no obligation on the Authority to invite the first applicant’s wife and children to attend an interview before the Authority.
In relation to the first applicant’s submissions concerning the English translation of the Tamil media article, both the delegate and the Authority accepted that the applicant attended the event and the Authority gave reasons consistent with the proper application of s 473DD of the Act that were open to the Authority for not having regard to the English translation. That adverse decision in relation to s 473DD of the Act cannot be said to lack an evident or intelligible justification.
The applicant’s submissions otherwise in substance invited this Court to engage in impermissible merits review. This Court does not have the power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.
Consideration of the grounds in the originating application
The grounds in the originating application are as follows:
1. IAA did not consider all the claims of the Applicant cumulatively.
Particulars
IAA failed to discern that the Applicant with his gaol term and afterwards will be perceived as an LITE
IAA failed to find a Convention nexus namely Applicant will be imputed with L TTE profile
2. IAA made a procedural error.
Particulars
IAA did not exclude the daughters who had married and did not form the family composition at the decision.
3. IAA made a jurisdictional error.
Particulars
IAA did not consider the Applicant's participation in the ex-patriate Tamil diaspora against the Sri Lankan government.
There is evidence that Tamils participating in ex-patriate Tamil activities will lead to persecution in Sri Lanka.
IAA did not give any rebutting evidence.
4. IAA did not apply the well-founded fear test.
Particulars
IAA did not consider the claims of the Applicant cumulatively.
On the face of the Authority’s reasons, the Authority made dispositive findings in respect of all of the applicants’ claims. There is no integer of the applicants’ claims that was not the subject of a dispositive finding. The dispositive findings open on the material before the Authority cannot be said to lack an evident and intelligible justification. The Authority took into account the first applicant’s detention that had occurred and made dispositive findings in respect of the first applicant being perceived as an LTTE supporter.
Ground 1
Ground 1 in substance, reflects a disagreement with the adverse findings by the Authority. The adverse findings were not trivial or insignificant matters. The adverse findings were open for the reasons given by the Authority. The adverse findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, the Authority provided detailed reasons in support of rejecting the new information advanced on behalf of the daughter, who said she was engaged and expecting a child. Those reasons were open under s 473DD of the Act and cannot be said to lack an evident and intelligible justification. The first applicant suggested from the bar table that there had been some mistaken understanding of the family unit form on page 70 of the Court Book. The first applicant suggested that it had been completed by one of his daughters who was training to be a nurse. It is apparent that the Authority took into account that the first applicant had been asked by the delegate whether his daughters and wife were advancing any separate claims. There is no procedural error as alleged in ground 2, made by the Authority.
On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Authority complied with its obligations of procedural fairness by the sending of the letter to the applicants and giving the applicants an opportunity to put on new information and submissions and subject to the assessment by the Authority of that information under s 473DD of the Act, having regard to the same. No jurisdictional error as alleged in ground 2 of the originating application is made out.
Ground 3
In relation to ground 3, the Authority made express reference to the media article and the Tamil diaspora in relation to the adverse findings. Ground 3 is in substance, a disagreement with the adverse findings made by the Authority and has not identified any jurisdictional error. The adverse finding was open to the Authority and cannot be said to lack an evident and intelligible justification. Ground 3 in the originating application fails to make out any jurisdictional error.
Ground 4
In relation to ground 4, the Authority correctly identified the relevant law. Further, the Authority’s reasons refer expressly to considering the claims cumulatively. No jurisdictional error is made out by ground 4 in the originating application.
Consideration of the grounds in the amended application
The grounds of the amended application are as follows:
Ground 1
The IAA making of a finding and drawing of an inference in the absence of evidence or the IAA must make a finding on the basis of evidence.
Particulars
Because the media article was not initially interpreted into English, the Article was not properly understood. As a result, the IAA misquoted the Article and refused to admit the English Translation which would have shown that the Article expressed the support of Tamil separatism, as a pro-LTTE person and anti-government person contrary to what the IAA found in paragraph 32.
The IAA minimized the importance of the Article in Tamil with photographs. Because no-one within the DIBP translated the Tamil Article and showed the IAA has had no basis to conclude “he has not been outspoken in support of Tamil separatism or against the government".
Ground 2
The IAA failed to take into account the relevant information
Particulars
The particulars are the DFAT articles. The Applicant was denied natural justice. Refusal of the IAA to admit the English translation of the medial article
Ground 3
The IAA erred in finding in paragraph 32 that the applicant did not engage in anti-government activities (paragraph 32) when the medial article was translated showed opposite.
I need my protection visa interview CDS to listen to and I also need to closely read the full evidence cited as footnotes in the IAA's decision which will enable me to provide particulars of all my grounds in my submission to the court when the court orders me to do so.
I am seeking a barrister's opinion as to whether the IAA complied with the law in respect of all my grounds of review.
Ground 1
Ground 1 in substance takes issue with the refusal by the Authority to accept the English translation of the media article as being new information to which it should have regard. For the reasons already given, that adverse finding by the Authority was open on the material before the Court. Further, the Authority provided logical and reasonable grounds in support of the adverse finding in respect of that article. No jurisdictional error as alleged in ground 1 of the amended application is made out.
Ground 2
In relation to ground 2, this in substance is a repetition of ground 1, asserting that the English translation should have been taken into account. For the reasons already given, it is apparent that the Authority considered whether the English translation of the media article met the requirements of new information to which it should have regard under s 473DD of the Act. The adverse finding in that regard by the Authority cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 2 of the amended application.
Ground 3
In relation to ground 3, the Authority considered whether the first applicant had acquired an accumulated profile as pro-LTTE/anti-government on the basis of his past experiences, his age and residence in an area subject to LTTE activity during the civil war, as well as his attendance at a Memorial day in Australia, his illegal departure and by claiming asylum. To the extent that ground 3 seeks to cavil with the adverse findings made by the Authority in paragraph 32 of the Authority’s reasons, those adverse findings were open and cannot be said to lack an evident and intelligible justification.
To the extent that ground 3 seeks to re-agitate the issue of whether or not the translation of the media article should have been received as new information for the reasons already given, it was open to the Authority to find that the translation was not new information within the meaning of s 473DC and s 473DD of the Act. Ground 3 otherwise invites this Court to engage to impermissible merits review. No jurisdictional error is made out by ground 3 of the amended application.
As the originating application and the amended application failed to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 21 December 2017
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