BMY17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 782
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BMY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 782
File number: MLG 701 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 28 August 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to sufficiently raise critical matters with applicant – whether Authority afforded applicant a real opportunity to reply to adverse information – whether Authority erred by failing to invite applicant to interview – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 5J, 36, 46A, 473DB, 473CA, 473DC, 473DD, 473DE, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30; [2016] FCAFC 68
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Singh v Minister for Immigration and Border Protection [2016] FCA 942
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 21 August 2023 Place: Perth Applicant: In person Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley ORDERS
MLG 701 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BMY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
28 AUgust 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister made a decision not to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on 13 March 2017. The applicant now seeks judicial review of the Authority decision, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In his judicial review application, the applicant asserts that the Authority’s decision is affected by jurisdictional because the Authority:
(a)constructively failed to review the delegate’s decision, or denied the applicant procedural fairness because it did not sufficiently raise critical matters with him or extend to him a real opportunity to respond to adverse information; and
(b)denied him procedural fairness or made an error of law by refusing to schedule an oral interview at which the applicant could present his claims and comments.
In his oral submissions at the hearing, the applicant focused on the difficulties that he had preparing his initial protection visa application without the assistance of an interpreter, and his desire to have a further opportunity to articulate his claims.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error and I therefore dismiss the application to this Court.
VISA APPLICATION AND DECISIONS
The applicant entered Australia by sea at Cocos (Keeling) Islands in September 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 5 January 2016 the applicant lodged a valid application for a protection visa, after the Minister exercised the discretion in s 46A(2) to allow the applicant to make a valid visa application. The applicant attended an interview with an officer of the Minister’s Department on 30 November 2016 to discuss his claims for protection (protection visa interview).
On 13 December 2016 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 13 March 2017 the Authority affirmed the delegate’s decision.
SUMMARY OF AUTHORITY DECISION
The Authority was satisfied of the applicant’s claimed identity and that Sri Lanka was the receiving country for the purposes of the review.
The Authority acknowledged that there were significant inconsistencies between the applicant’s oral evidence at his protection visa interview and in his written statement of claims. The Authority considered that the applicant provided a reasonable explanation for these inconsistencies at the protection visa interview and found that the applicant’s oral evidence was generally credible and free from embellishment.
The Authority accepted that the applicant faced past harm from the Sri Lankan Army (SLA) and the Criminal Investigations Department (CID) when he was a high school student in 2007 or 2008. The relevant incidents of past harm included that:
(a)the SLA suspected that the applicant and other boys were responsible for a nearby explosion, and they were taken to a nearby SLA camp and beaten until their school principle secured their release; and
(b)the CID suspected the applicant and another person of causing an explosion near their school, then asked the applicant if he knew any people from the Liberation Tigers of Tamil Eelam (LTTE) and hit him, before dropping him off at a location near his home.
However, the Authority noted that the applicant continued to reside in Sri Lanka for a further four years without again coming to the attention of the SLA or CID and was satisfied that the applicant did not have an imputed pro-LTTE political opinion as a result of these incidents. The Authority was also satisfied that any official record of the applicant’s details in connection with the incidents did not give rise to a real chance of harm should he return to Sri Lanka. The Authority considered the country information before it in relation to the improved security situation for Tamils in Sri Lanka and, taking into account its factual findings and the country information, the Authority was not satisfied that the applicant had a well-founded fear of persecution due to any real or imputed pro-LTTE or anti-Sri Lankan government political opinion arising from his profile as a young Tamil male from the Northern Province of Sri Lanka, or his previous incidents with the Sri Lankan authorities.
The Authority accepted the applicant’s claim that he was twice approached by the People’s Liberation Organisation of Tamil Eelam (PLOTE) in 2012 and asked to join, and that he was taken to their office and made to perform tasks such as watering their plants. The Authority accepted that the applicant was told not to discuss what he heard at the PLOTE office and threatened with harm if he did. However, in circumstances where the applicant had not claimed that he had ever personally supported the PLOTE, and where the PLOTE has now been integrated into mainstream Sri Lankan politics, the Authority was not satisfied that there was a real chance of the applicant being imputed to have any anti-Sri Lankan government political opinion on account of the few days he spent with the PLOTE in 2012. The Authority found the applicant’s claim that he feared the PLOTE would kill him for not joining their organisation and for leaving the country to be speculative, and was satisfied there was no credible reason why the PLOTE would target the applicant for harm or forced recruitment again. The Authority was therefore satisfied there was no real chance the PLOTE would seriously harm the applicant should he return to Sri Lanka now or in the reasonably foreseeable future.
The Authority accepted that the applicant departed Sri Lanka illegally in August 2012 to seek asylum in Australia, but was not satisfied that the applicant faced real harm on account of his time spent in Australia seeking protection. The Authority was satisfied that there was a real chance that the applicant would be questioned, fined and held briefly upon re-entering Sri Lanka, but was not satisfied that these matters individually or cumulatively amounted to serious harm. Further, the Authority found that this treatment was not persecution within the meaning of s 5J(4) of the Migration Act.
The Authority concluded that the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Migration Act. Accordingly, the Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act and therefore did not meet s 36(2)(a) of the Migration Act.
In assessing the complementary protection criterion, the Authority relied on similar reasoning in finding that there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm on account of his Tamil ethnicity and origin, having previously come to the attention of the SLA and CID, or as a result of the PLOTE attempting to forcibly recruit him on two occasions in 2012. The Authority again considered the treatment the applicant would face as a result of breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) and found that this anticipated treatment did not meet the definition of ‘significant harm’ in s 36(2A) of the Migration Act. Accordingly, the Authority found that the applicant did not meet the criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 7 April 2017, which is within 35 days of the day on which the Authority made its decision, as required by s 477(1) of the Migration Act.
There are three grounds set out in the application:
1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant’s procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.
2.The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
3.I have made an application for assistance through Victorian Legal Aid and am waiting for a response from them.
The third ‘ground’ does not assert any error in the Authority decision and is simply a statement that the applicant sought legal assistance. It is incapable of establishing jurisdictional error and is not addressed further.
Pursuant to an Order made by a Registrar of this Court on 11 October 2017, the applicant was required to file and serve any amended application, any supplementary court book and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the hearing, as required by the Order.
The evidence before the Court comprises an affidavit affirmed by the applicant on 7 April 2017 and the court book filed on behalf of the Minister on 4 September 2017.
The applicant purported to provide a further document to the Court during the hearing. That document records a complaint made by the applicant’s mother to the Human Rights Commission of Sri Lanka in August 2019. The document does not refer to the applicant, and is rather a complaint by the applicant’s mother made several years after the applicant left Sri Lanka. The applicant indicated that he provided the document to show that he is still at risk of harm if he returns to Sri Lanka. At the hearing, Counsel for the Minister objected to the document being admitted into evidence and I ruled that the document was inadmissible as it was not relevant to the application before the Court.
The reasons for finding that the document is irrelevant and therefore inadmissible are as follows. The document can only go to the factual merits of the Authority decision, and as I explained to the applicant at the hearing, the Court does not have the power to consider for itself whether he meets the criteria for a protection visa. Further, the document relates to events that occurred after the Authority decision. Whether or not there is jurisdictional error in the Authority decision, which is the key question for the Court in this matter, is to be assessed based on the circumstances that existed at the time of the Authority decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]. A document that refers to an incident that occurred some two years after the Authority decision is not relevant to the question of whether there is jurisdictional error in the Authority decision based on the circumstances that existed at the time the decision was made.
THE ROLE OF THE COURT IN JUDICIAL REVIEW APPLICATIONS
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
To obtain relief the applicant must establish that the Authority decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (emphasis added)
To amount to a jurisdictional error, any error by the Authority must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [45].
CONSIDERATION OF THE MATTERS RAISED IN THE APPLICANT’S ORAL SUBMISSIONS
Before turning to the grounds of application, it is convenient to address the matters raised in the applicant’s oral submissions.
In circumstances where the applicant is self-represented and advanced grounds that do not contain particulars, I explained to him at the hearing the role of the Court and the need to provide further detail to enable the Court to properly assess his grounds, and I invited him to make submissions on what he believes the Authority did wrong, as well as the matters raised in his grounds. I also asked specific questions of the applicant to assist me to understand the grounds in his application and through this process, I am satisfied that the applicant has provided sufficient particulars to allow the Court to properly understand his assertions of error in the Authority decision.
The matters raised by the applicant in his oral submissions can be considered upfront and they are also considered further below to the extent that they are relevant to the grounds of application. The applicant’s oral submissions broadly raise the following themes, which I address in turn:
(a)that he was not assisted by an interpreter when he first articulated his claims for protection;
(b)that he has had limited legal assistance;
(c)the circumstances of his life in Australia; and
(d)that he still fears harm if returned to Sri Lanka.
The applicant was not assisted by an interpreter when he first articulated his claims for protection
The applicant submitted that when he applied for a protection visa he engaged a lawyer or agent and paid for their services. There was no Tamil interpreter made available to him when he initially prepared his protection visa application and then he had his protection visa interview very soon after that. At the time he prepared his application, he could not explain the facts properly and could only speak very limited English. It was only once he was in a ‘detention camp’, by which I infer he means immigration detention, that he was able to properly explain his case.
The applicant submitted that his case just went through the process, he was not given the opportunity to speak about his claims and he has not had any face-to-face contact about his claims for protection since his protection visa interview. The applicant submitted that he did not know what was written in his protection visa claims at the time the application was submitted and he now understands that what was submitted was incorrect. He would have liked to have the opportunity to raise concerns about his limited English language skills at the time he expressed his claims and to correct his claims for protection. He submitted that even at the protection visa interview, he raised his concerns but was not able to make changes to his claims until now.
The concerns raised by the applicant before the Court about an interpreter not being made available to him when he made his claims for protection were also raised by him at his protection visa interview. The delegate accepted that it was evident from reading the statement of claims that it had not been written by a National Accreditation Authority for Translators and Interpreters (NAATI) accredited interpreter or translator, found the applicant to be a credible witness, and accepted his statement that his migration agent had fabricated one of his claims.
The Authority was also clearly aware of the difficulties that the applicant faced in preparing his protection visa application. The Authority explained at [8] and [9] of its reasons:
8.During his [Temporary Protection Visa (TPV)] interview it became apparent there were significant inconsistencies between the applicant’s oral evidence and his written statement of claims. The applicant stated he had paid a migration agent approximately 500 dollars to assist him with his TPV application however the agent did not speak Tamil and no interpreter was made available to assist. Accordingly the applicant relied on his limited English to communicate his claims to his agent, who then prepared his TPV application. The applicant’s statement of claims was not read back to him to verify the accuracy of the information.
9.I consider the applicant has given a reasonable explanation of why his oral evidence is not consistent with his written statement. Overall I found the applicant’s oral evidence to be generally credible and free from embellishment…
It is clear from this that the Authority was aware of, and took into account, the difficulties that the applicant faced in preparing his application for a protection visa without the assistance of an interpreter. It is also clear that the applicant had an opportunity at his protection visa interview to properly explain his claims for protection and both the delegate and the Authority took into account the articulation of the applicant’s claims that he gave at the protection visa interview and accepted this as credible. I accept Counsel for the Minister’s submission that the Authority did not make any adverse findings against the applicant by reason of the difficulties that he had in preparing his statement of claims.
In these circumstances, no jurisdictional error arises from the initial difficulties that the applicant had in articulating his claims when preparing his written application for a protection visa.
The limited legal assistance provided to the applicant
After his visa application was rejected, the applicant submitted that he got help from Victorian Legal Aid. They assisted him with the judiciary side of his submissions, but provided no further assistance with the details of his case. The applicant submitted that because he was working, he could not get further legal aid and was told to get a private lawyer. However, the private lawyers he engaged with said it was too late and they could not assist with his application process. The applicant also submitted that because he was so young when he came to Australia, he could not get proper legal or procedural assistance.
As submitted by Counsel for the Minister, the applicant’s attempts to obtain further legal assistance and his inability to get further legal assistance do not amount to an assertion of error by the Authority in conducting the review. Further, to the extent that the submissions may refer to his attempts to get legal assistance in this judicial review proceeding, I observe that there is no right to legal assistance in migration proceedings before this Court: Singh v Minister for Immigration and Border Protection [2016] FCA 942 at [36]; AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30; [2016] FCAFC 68 at [51].
The applicant’s circumstances in Australia
The applicant submitted that he has not been able to do anything and has had a hard and a lonely life, living and paying taxes in Australia for the last 11 years. He came to Australia when he was 18 and his life here is the only one he knows. There is nowhere else where he can adapt and live and his life has been rather distressing.
None of these matters assert jurisdictional error in the Authority decision. The Authority was required to consider whether the applicant met the criteria for a protection visa, and these matters raised by the applicant do not relate to that issue. Therefore, the Authority was not required to consider them. The Court cannot grant relief to the applicant unless he can establish jurisdictional error in the Authority decision. Given that these matters do not assert jurisdictional error in the Authority decision, they cannot be the basis of any grant of relief by the Court.
The applicant’s continued fear of harm in Sri Lanka
The applicant submitted that there are still people who will harm him if he returns to Sri Lanka, his mother is aware of it and concerned about his protection. Therefore, his mother made a complaint to the Human Rights Commission in Sri Lanka. The applicant submitted that he cannot return to Sri Lanka due to his circumstances.
These issues go to the factual merits of the Authority decision and do not assert jurisdictional error in the Authority decision. As I explained to the applicant at the hearing, the Court does not consider for itself whether he meets the criteria for a protection visa. The Court does not have jurisdiction to engage in merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Conclusion in relation to the matters raised by the applicant in his oral submissions
None of the matters raised by the applicant in his oral submissions establish jurisdictional error in the Authority decision.
GROUND 1: IS THE AUTHORITY DECISION AFFECTED BY JURISDICTIONAL ERROR ON THE BASIS THAT THE AUTHORITY FAILED TO SUFFICIENTLY RAISE CRITICAL MATTERS WITH THE APPLICANT OR AFFORD HIM A REAL OPPORTUNITY TO REPLY TO ADVERSE INFORMATION?
The ground as explained by the applicant
By ground 1, the applicant alleges that the Authority denied him procedural fairness in respect of two matters:
(a)first, by failing to raise critical matters with him; and
(b)second, by failing to extend to him a real opportunity to respond to adverse matters.
When I asked the applicant at the hearing to identify what critical matters the Authority did not raise with him, he submitted that he was not able to give any grounds or explanations since his initial immigration interview because his case went automatically to the Authority. He submitted that he could not do anything with his limited English and he was not given an opportunity to speak to the Authority.
When I asked the applicant what adverse information he believes the Authority should have given him an opportunity to respond to, he submitted that it was only when he was in immigration detention that he was able to give some details of his case and that because he did not have an interpreter when he presented his case to his lawyer, he did not know what was written down and he now understands that what was submitted was incorrect.
Limited form of merits review conducted by the Authority
This ground, and ground 2, need to be assessed in the context of the limited form of merits review conducted by the Authority, and the limits on the Authority’s procedural fairness obligations.
By way of overview, the following features of the form of merits review conducted by the Authority are relevant to the resolution of this matter:
(a)The Authority’s procedural fairness obligations are limited to those set out in Division 3 of Part 7AA of the Migration Act and ss 473GA and 473GB (which have no application in the present matter). This is because s 473DA(1) of the Migration Act provides Division 3 of Part 7AA, 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 Immigration Assessment Authority’.
(b)Subject to Part 7AA of the Migration Act, the Authority is required to conduct its review by considering the review material provided to it by the Secretary pursuant to s 473CB of the Migration Act without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1).
(c)The Authority does have a discretion pursuant to s 473DC to get new information which was not before the Minister at the time of the delegate’s decision and that it considers to be relevant to the review: s 473DC(1). As with all discretionary powers, the Authority must exercise this power reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21] (Gageler, Keane and Nettle JJ), [86] (Gordon J); ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ), [61] (Nettle J), [80] (Gordon J).
(d)The Authority may only consider new information if the requirements of s 473DD are met.
(e)The Authority is required to give a referred applicant particulars of new information which has been or will be considered under s 473DD and would be the reason or part of the reason for affirming the delegate’s decision, explain to the applicant why the information is relevant to the review, and invite the applicant to comment on the new information: s 473DE(1). However, subsection 473DE(1) does not apply to certain types of information, including information that is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member: s 473DE(3)(a) of the Migration Act.
Was the Authority required to raise critical matters with the applicant or invite him to respond to adverse information and, if so, did it fail to do so?
The applicant’s submissions regarding his inability to articulate his grounds, the lack of an interpreter to assist him in preparing his application and the consequent incorrect information in his claims, and that his case was automatically referred to the Authority do not identify any critical matters that the Authority was required to raise with the applicant, or any adverse information to which the applicant ought to have been invited to respond. Rather, they are an expression of the applicant’s desire to have had a further opportunity to explain his claims for protection.
As explained above, the Authority was aware of the difficulties that the applicant faced in preparing his initial application, took those difficulties into account and did not make any adverse finding against the applicant as a result of any incorrect information in his written statement of claims.
The ground is pleaded as a denial of procedural fairness. In relation to the procedural fairness issues raised by this ground:
(a)There are no provisions in Part 7AA of the Migration Act that required the Authority to give the applicant an opportunity to comment or to invite him to an interview simply because he did not have access to an interpreter when he prepared his statement of claims or because some of the information in those claims was incorrect.
(b)I accept the Minister’s submission that the only power of the Authority that the applicant identifies as being relevant is the power to invite him to an interview. This power is conferred by s 473DC of the Migration Act. However, as a matter of procedural fairness, the Authority was not required to invite the applicant to an interview. Proceeding to conduct the review on the papers without inviting the applicant to an interview was consistent with the usual position articulated in s 473DB(1) of the Migration Act.
(c)The only procedural fairness obligation to invite an applicant to comment on adverse information is that set out in s 473DE of the Migration Act. However, in the present case, there was no obligation on the Authority to put particular information to the applicant for comment in accordance with s 473DE. The procedural fairness obligation arising under s 473DE of the Migration Act only applies to new information. The only new information before the Authority was updated country information from the Department of Foreign Affairs and Trade, and the Authority was satisfied that the requirements of s 473DD were met in relation to this new information. However, this country information is not specifically about the applicant and is rather information about a class of persons of which the applicant is a member. It therefore fell within the exception set out in s 473DE(3)(a) of the Migration Act and the Authority was not required to invite the applicant to comment on it.
I have also considered whether the Authority acted unreasonably in not exercising its discretion to obtain new information from the applicant about the matters which caused it to affirm the delegate’s decision. I accept the submission advanced by Counsel for the Minister that the Authority’s findings were largely consistent with those made by the delegate and the Authority did not make adverse findings against the applicant that were different to those made by the delegate. Both the delegate and the Authority broadly accepted the applicant’s claims about what had happened to him in the past in Sri Lanka, including the attention that he had received from the Sri Lankan Army and PLOTE. The delegate and the Authority both considered country information and found that the applicant would not face the relevant risk of harm in Sri Lanka in the reasonably foreseeable future. The Authority considered that the applicant was a credible witness and accepted his claims of past harm as they were articulated at his protection visa interview. The applicant has not identified anything that made it unreasonable for the Authority not to invite him to comment on those matters that caused it to affirm the delegate’s decision, and I find that the Authority did not act unreasonably in not inviting the applicant to provide new information.
Ground 1 is not established.
GROUND 2: IS THE AUTHORITY DECISION AFFECTED BY JURISDICTIONAL ERROR BECAUSE THE AUTHORITY DID NOT INVITE THE APPLICANT TO ATTEND AN INTERVIEW?
Nature of the ground
In many ways, ground 2 overlaps with and raises similar issues to ground 1.
The applicant asserts that the Authority denied him procedural fairness or made an error of law by failing to invite him to an interview. As indicated above in considering ground 1, as a matter of procedural fairness, the Authority was not obliged to invite the applicant to an interview: see s 473DC(2) of the Migration Act.
However, I consider that it is appropriate to interpret this ground broadly and treat it as an assertion that the Authority acted unreasonably in failing to invite the applicant to an interview. The Authority had a discretion conferred by s 473DC to invite the applicant to an interview to provide new information and, as discussed above, that discretion must be exercised reasonably.
When I asked the applicant at the hearing why he thought it was unreasonable for the Authority not to invite him to an interview, the applicant submitted that if he had been invited to an interview he would have had the opportunity to raise concerns about the limited English skills that he had when he articulated his claims to prepare his application and to correct his claims.
Was the Authority’s failure to invite the applicant to an interview unreasonable?
I do not accept that it was unreasonable for the Authority not to invite the applicant to an interview based on the matters raised in his submissions to the Court. The applicant already had an opportunity at the protection visa interview to raise his concerns about the lack of interpreter and his limited English language skills at the time he prepared his written statement of claims. The applicant also had the opportunity at the protection visa interview to correct his claims and explain the real reasons he was seeking protection. The Authority had access to the content of the applicant’s protection visa interview and took into account the explanations that he provided to the delegate. As explained above, the Authority accepted the applicant’s explanations and accepted the applicant’s oral account of the harm he had faced in Sri Lanka. In these circumstances, it was not unreasonable for the Authority to not invite the applicant to an interview to address matters that he had already addressed before the delegate.
I accept the Minister’s submission that there was otherwise no reason in the present case that the Authority needed to have considered inviting the applicant to an interview. The applicant did not ask the Authority to invite him to an interview. There is also nothing in the Authority’s findings or reasoning that indicated a need to invite, or consider inviting, the applicant to an interview. As indicated above, the Authority considered the same issues that the delegate considered in relation to the applicant’s claims for protection and made similar findings. The Authority was able to make its decision with regard to the information that was before it, as it was generally required to do under the Migration Act.
Ground 2 is not established.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error and the application for judicial review must therefore be dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 28 August 2023
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