BOA18 v Minister for Home Affairs

[2019] FCCA 1651

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOA18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1651

Catchwords:
MIGRATION – Safe Haven Enterprise Visa – review of decision of the Immigration Assessment Authority – whether there was a failure to consider exercising the discretion in s.477DC(3) of the Migration Act 1958 (Cth) – whether findings were unreasonable or illogical – jurisdictional error found – writs issued.

Legislation:

Immigrants & Emigrants Act 1949 (SL)

Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 65, 473CB, 473DA, 473DC, 473DD, 473DE, 473GA, 473GB, 476

Migration Act (Resolving the Asylum Legacy Caseload) Bill 2014, Explanatory Memorandum

Cases cited:

BTW17 v Minister for Immigration & Border Protection (2018) 258 FCR 511
DBA16 v Minister for Immigration & Border Protection [2017] FCA 1580
Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486

Minister for Immigration & Border Protection v CRY16 (2017) 235 FCR 475

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

First Applicant: BOA18

Second Applicant: BOB18

Third Applicant: BOC18

Fourth Applicant: BOD18

Fifth Applicant: BOE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 166 of 2018

Judgment of: Judge Kendall

Hearing date: 12 March 2019

Date of Last Submission: 12 March 2019

Delivered at: Perth

Delivered on: 19 June 2019

REPRESENTATION

Counsel for the Applicants: Mr M G S Crowley

Solicitors for the Applicants: AUM Legal

Counsel for the First Respondent: Ms S Oliver

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the applicants have leave to amend ground one as follows:

   The decision is vitiated by jurisdictional error in that the IAA unreasonably failed to consider whether to exercise the discretion to invite one of the applicants, BOB18, to an interview pursuant to section 473DC of the Migration Act 1958 (Cth) in circumstances where:

   (a)she made her own claim in relation to her mental health and the availability of treatment in Sri Lanka;

   (b)her evidence in relation to the principal claims made by BOA18 may have affected the actual feeling of persuasion felt by the IAA in relation to the claims and evidence given by BOA18 and thereby denied the applicants a potentially different outcome;

   and in the circumstances the jurisdictional error was not cured by any subsequent action taken by the IAA.

2. A writ of certiorari issue directed to the second respondent quashing the decision dated 26 February 2018.

3. A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicants’ application according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 166 of 2018

BOA18

First Applicant

BOB18

Second Applicant

BOC18

Third Applicant

BOD18

Fourth Applicant

BOE18

Fifth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 26 February 2018. 

2. The IAA’s decision affirmed a decision of a delegate of the then Minister for Immigration and Border Protection, now the Minister for Home Affairs (the “Minister”), to refuse to grant the applicants a Protection visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”).

3. The first and second applicant are husband and wife respectively. The third and fourth applicant are their children and were born prior to the family arriving in Australia. The fifth applicant was born in Australia after the family arrived as unauthorised maritime arrivals. 

4. All of the applicants are citizens of Sri Lanka.

Background

1. In light of the grounds of review as framed, it is necessary to analyse (in some detail) the procedural background to this matter.

2. A forensic summary of the factual background to this matter was provided by Counsel for the Minister, Ms Oliver, in written submissions dated 12 February 2019 at [3]-[25]. 

3. The Court has reviewed Ms Oliver’s summary and has cross checked all references with the materials provided in a 354-page Court Book (“CB”). The Court accepts that the summary is factually correct and does not contain argument. The summary provided was not contested by Counsel for the applicant, Mr Crowley. In the circumstances, the Court adopts it as its own.  Other than as amended below, that summary provides as follows.

4. On 4 June 2013, the first applicant (BOA18), his wife (the second applicant (BOB18)) and two of their children (the third applicant (BOC18) and the fourth applicant (BOD18)) arrived at Cocos Island as unauthorised maritime arrivals (CB 305-306).

5. The fifth applicant (BOE18) was born to the first and second applicants in Australia on 6 October 2016 (CB 235 and CB 306).

6. On 11 July 2013, the second applicant participated in an Irregular Maritime Arrival and Induction Interview with an officer of the Department (the “entry interview”) (CB 8-31).

7. In her entry interview, the second applicant stated that the reason her family had left Sri Lanka was because the Criminal Investigation Department (the “CID”) had been making the family pay bribes from the profits of the family’s two shops (CB 21, Q.32 and CB 22, Q.38a).

8. The second applicant explained that they were paying bribes of 15,000 rupees a month to the CID and that in April 2013 the CID demanded 2 lakhs (CB 21, Q.32 and CB 22, Q.38a). She further explained that after her husband refused to pay the money, the CID said they would come back on 15 April 2013 and would take them to the “4th floor” (CB 21, Q32 and CB 22, Q.38a). The family then fled Sri Lanka (CB 21, Q.32).

9. The second applicant further told the officer that, before they were married, her husband had worked for the Liberation Tigers of Tamil Eelam (the “LTTE”) (CB 21, Q.32 and 34; and CB 22, Q.38a). She said she did not know what work her husband had done for the LTTE, because it was before they had married (CB 21, Q.34), but that he had worked for the LTTE for 3 years (CB 21, Q.32 and CB 22, Q.38a).

10. On 12 July 2013, the first applicant participated in an entry interview (CB 32-57). In his entry interview, the first applicant stated that the reason he had left Sri Lanka was due to problems with the CID (CB 44, Q.32). He told the relevant officer that he owned two shops and that the CID demanded payment of bribes of 10,000 rupees a month (CB 44, Q.32). He made such payments until April 2013, when a demand was made for payment of 2 lakhs (CB 44, Q.32). He refused to pay this sum.  He was told the CID would return on 15 April 2013 and that, if he did not make the payment, he would be taken to the “4th floor in Colombo” for an “enquiry” (CB 44, Q.32). Shortly after this, he and his family fled Sri Lanka (see CB 54, Q.69).

11. The first applicant further told the officer in his entry interview that he had worked for the LTTE in the years 1997-1998 and 1999 (in their bus transport service as a ticket checker (CB 44, Q.32)) and that, in 2010, he had signed a form acknowledging that he had undertaken this work for the LTTE (see CB 44, Q.32-33 and CB 45, Q.38b).  The form was written in Sinhalese and the first applicant has indicated that he did not understand it.

12. In “Part 2” of his entry interview, the first applicant provided details of his employment history. Relevantly, he stated that he had worked for the LTTE as a ticket checker between approximately 1997 and 1999 (CB 54). Between 2006 and 2008, and again between August 2012 and April/May 2013, he described his employment as self-employed in a spice and fuel shop (CB 50).

13. In both of their entry interviews, the first applicant and the second applicant referred to the second applicant’s mental health difficulties. The first applicant advised the officer that his wife had mental health issues (CB 48, Q.57-58) and said (CB 56, Q.75):

    My wife has health issues. She is mentally upset because her father was killed in the war, she has gone for counselling in Jaffna, even in Aqua she went for counselling we have the documents. Sometimes she thinks a lot, sometimes she does not care for the kids. At night I have to look after the kids.

14. In her interview, the second applicant said (CB 23-24, Q.49):

    I have mental health issues and I was taking tablets before, and since I arrived on CI I’m not taking the tablets. Sometimes I can’t do anything, I can’t cook or look after my children or anything. The doctor I saw on CI said the tablets I was taking at home weren’t good for me and taking away my energy, and said I should deal with my problem with counselling, and I haven’t done that yet but I would like to. … If I am given bad news or see blood, I can’t handle it. That is the state of mind I am in.

15. The officer interviewing the second applicant observed her demeanour and considered there may be a cognitive impairment (see CB 24, Q.54-55 and Q.56a).

16. On 2 August 2016, the Department advised the first applicant that the bar pursuant to s.46A of the Act had been lifted and, accordingly, he was invited to apply for the visa (CB 64).

17. The second applicant was offered assistance with applying for a visa through the Primary Application and Information Service (“PAIS”) (CB 66). The offer was accepted, and extended to assistance to her family unit – specifically, the first, second and third applicants (CB 68).

18. On 30 November 2016 (CB 240), the Department received the following from a migration agent assisting the applicants under the PAIS referral:

    a)an application for the visa (CB 74-85), identifying:

    i)the first applicant as an applicant and as a person raising his own claims for protection (CB 75, Q.3); and

    ii)the second, third, fourth and fifth applicants as individuals who were not raising their own claims for protection (CB 75, Q.3).

    b)Form 790 Part C in relation to each of the applicants (CB 86-113 for the first applicant; CB 122-142 for the second applicant; CB 151-177 for the third applicant; CB 178-205 for the fourth applicant; and, CB 206-231 for the fifth applicant);

    c)A Statement of Claims made by the first applicant (CB 114-121); and

    d)Form 956 appointing a migration agent to act for the applicants (CB 236-239).

19. In his Statement of Claims, the first applicant identified one discrepancy between his entry interview and his SHEV application – related to the location of his National ID card and his passport (CB 114, [3]).

20. In relation to his involvement with the LTTE, the first applicant said (CB 115, [12]):

    I worked with the LTTE for approximately 3 years. My job was to check that LTTE members were travelling within their approved areas. They would travel on public buses and I would conduct spot checks. If I found someone who was travelling outside of their designated area, then my job would be to hand them over to a person at the next checkpoint. I did not carry a gun when I did this and I was paid 5800 rupees per month. I have never been involved in any active combat and I have never been trained to use weapons.

21. As to his reasons for leaving Sri Lanka, the first applicant said he had left because of problems with the Army and the CID (CB 116, [16]). He explained (CB 116, [16]): “I worked with the LTTE from approximately 1997-1999 and I was also forced to give them payments from my grocery shop from 2006-2009”.

22. The first applicant stated in the Statement of Claims that:

    a)towards the end of the war in approximately August 2009, he and his family decided to surrender to the Army (CB 116, [17]). The first applicant referred in his Statement of Claims to two interrogations that were undertaken by the CID in relation to his involvement with the LTTE (CB 116, [17]-[19]) following his surrender. He explained that he told the CID of his paid employment as a civilian with the LTTE for 3 years (CB 116, [18]). He stated that he ended up escaping the camp and was concerned because he had disobeyed the CID officer’s directions not to speak to his family (CB 116, [19]). He fled to Saudi Arabia (CB 117, [23]);

    b)whilst he was in Saudi Arabia, his family were visited by officers from the CID who were looking for him (CB 117, [24]);

    c)in the two months before the birth of their second child, his wife’s mental health deteriorated (CB 117, [24]). A month or two after the birth of their child, she was hospitalised due to her mental health condition (CB 118, [25]). The first applicant returned to Sri Lanka due to his wife’s mental health condition (CB 118, [26]-[27]);

    d)three days after he returned to Sri Lanka, an officer from the CID came to see him, checked his documents and passport and advised him to register with the Kodukulai Government Camp in Jaffna, which he did (CB 119, [28]);

    e)a month after he returned to his village and started working in his grocery store, another CID officer told him to go to Kattaikadu CID camp (CB 118, [29]). When he arrived at the camp, he was told to sign a document which stated he had worked for the LTTE for 3 years. He signed the document because he felt intimidated and knew he would face serious issues if he did not sign it (CB 118, [29]);

    f)after signing the document, he was released but was visited by CID officers twice every week for a month (CB 118, [29]). The officers questioned him about his business and what he was doing (CB 118, [29]);

    g)two CID officers then took him away on a motorbike for questioning (CB 118, [30]). They asked him about the money his business was making. He told them that, sometimes, he would earn 10,000-15,000 rupees per day (CB 118, [30]). The CID officers demanded he pay them 10,000 rupees per month, on the 15th of every month (CB 119, [31]). He says he was afraid to say no and agreed (CB 119, [31]);

    h)approximately one month later, he opened a second business selling fuel and groceries at the beach (CB 119, [31]); and

    i)every month, the same two CID officers would come to the shop to collect the payment (CB 119, [32]).

23. In relation to the events immediately prior to their departure from Sri Lanka, the first applicant provided the following account in his Statement of Claims (CB 119, [33]):

    I grew so fed up by the way that I was constantly being treated by the authorities and I had a friend called R who told me about an opportunity to travel to Australia. In the meantime, the two CID members came on the 10 May 2013 rather than on the 15 May 2013. They demanded the money that I owed them and I said no I can’t pay you. We had an argument and they left and then they came back. They came again and told me that a high-ranking officer from Kodukulai Government Camp wanted to see me and I was told to go and see him. I did not go and they returned again on the same day telling me that on the 13 May 2013 CID personnel from the 4th floor were coming to question me and for that reason I was asked to go to Kodukulai Government Camp in person.

    (Identifiers omitted)

24. The first applicant further stated that, after he and his family left Sri Lanka, his wife’s sister told him that CID officers continued to look for him (CB 119-120, [36]).

25. The Statement of Claims document includes a section headed “My wife’s claims” (CB 120). That section reads (CB 120, [38]-[40]):

    My wife was in a Government Camp at the same time as me and she has experienced terrible things during the war. She watched her father being shot and killed by a bullet that pierced through his chest, and also witnessed her brother-in-law and sister being injured.

    My wife has been questioned several times by the CID in relation to my activity and she fears that she will continue to be targeted because of her association with me.

    I am worried that if my wife is forced to return to Sri Lanka she will not have access to adequate medical care and that the stress of being forced to return in addition to being deprived of medical care will make her mental health deteriorate even further.

26. By letter dated 5 October 2017 (and addressed only to the first applicant), the first applicant was invited to attend an interview with the delegate in relation to his visa application (CB 255-256). The letter stated (CB 255):

    You are requested to attend an interview to discuss your visa application and your claims that you are a person in respect of whom Australia has protection obligations. The interview is for the purpose of obtaining more information about your application. Children are not required to attend the interview unless formally requested.

27. The first applicant attended an interview with the delegate on 18 October 2017.

28. The second applicant was not separately invited to attend the interview with the delegate. 

29. Following the interview with the delegate, on 1 November 2017, the applicants’ migration agent provided submissions to the delegate in support of the visa application (CB 260-292) together with:

    a)a further statement by the first applicant (CB 293-294); and

    b)an assessment by a Trauma Counsellor from Asetts in relation to the second applicant’s mental health condition (CB 295-296).

30. The further statement by the first applicant and part of the submissions disclosed further involvement by the first applicant with the LTTE that had not been disclosed when he was interviewed by the delegate (CB 261). Specifically, in his further statement, the first applicant stated that he had worked with the LTTE between March 2006 and September 2007 in their Internal Security and Intelligence section (CB 293, [2]) and for the Coastal Security section between September 2007 until 2008 (CB 293, [2]). He stated that this work for the LTTE was unpaid (CB 293, [7]).

31. The first applicant further stated that he had been questioned by the CID from 2009 until the family left Sri Lanka in 2013 (CB 294, [8]). He stated that he told them about the work he did for the LTTE from 1997-1999 for income (CB 294, [8]). He explained that he feared the CID had become suspicious that he had worked for the LTTE from 2006-2008 and this made him fear for his family’s safety (CB 294, [9]).

32. On 10 January 2018, the delegate refused the application for the visa (CB 302-331).

33. The delegate accepted that the first applicant had been a voluntary employee of the LTTE during the period 1997-1999 (CB 313). However, the delegate did not accept that the first applicant was questioned by the CID from 2009 until leaving Sri Lanka in 2013 as claimed and concluded that it appeared the two CID officers were using the first applicant’s past involvement with the LTTE from 1997-1999 to extort money from him (CB 313).

34. The delegate also did not accept the first applicant’s claims of having worked for the LTTE in 2006-2008 (CB 315), noting that he had provided information to the Department on three occasions about his involvement with the LTTE and had only referred to the involvement in 1997-1999 (CB 315), and in circumstances where he had been warned about the consequences of not providing truthful and accurate information to the Department (CB 315).

35. The delegate further noted that the first applicant was a “voluntary surrenderee” and was exposed to the Army and CID after the end of the conflict.  

36. However, the delegate did not accept that the first applicant would not have come to the notice of the Sri Lanka authorities if his involvement with the LTTE had been at the level he now claimed (CB 315).

37. On 16 January 2018 the applicants’ application was referred to the IAA (CB 334).

38. The applicants provided no additional information to the IAA.

39. On 26 February 2018, the IAA affirmed the delegate’s decision not to grant the applicants the visa they were seeking (CB 336-354).

40. The applicants now seek judicial review in this Court.  The applicants’ grounds of review are outlined and discussed in detail below.

Relevant Legislation

1. It is not disputed that the applicants satisfy the criteria in s.5(1) of the Act for a “fast track applicant”. Further, they are not “excluded fast track review applicants” 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.

2. 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 unusually strict limitations on the evidence an applicant can advance in IAA proceedings.

3. 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).

4. An applicant may also provide “new information” to the IAA and ask that it take that information into account.

5. 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, as set out in s.473DD of the Act, are met.

The IAA’s Decision

1. The IAA noted that it had had regard to the material given to it by the Secretary under s.473CB of the Act and that no further information had been received from the applicants.

2. The IAA then summarised the applicant’s claims as follows:

   • The applicant was born on [omitted] and is a Tamil Christian from Puthukudyiruppu in the Mullaithivu District of the Northern Province of Sri Lanka. He resided there until he married [omitted] and then moved in with his wife to Vadamaraatchi East in the Jaffna District. He makes no claims about his religion.

   • The second applicant was born on [omitted] and is a Tamil Christian from Vadamaraatchi East in the Jaffna District.

   • The applicant worked for the Liberation Tigers of Tamil Eelam (LTTE) as a paid civilian from 1997 until 1999. He was a travel inspector and checked travel passes on LTTE buses.

   • In 2006 the applicant opened his own convenience store. From 2006 until 2009 the LTTE required the applicant to make payments to them from the grocery shop.

   • In May 2009 the applicant and his family surrendered to the Sri Lankan Army (SLA) and were placed in an Internally Displaced Persons (IDP) camp in Vavuniya. In August 2009 the applicant was questioned by the Criminal Investigation Division (CID) about his involvement with the LTTE and he told them about his period of civilian employment.

   • Three weeks later he was questioned again for 45 minutes by a CID officer who said he was from the ‘4th Floor’. The applicant was afraid of what would happen to him so he made a plan to escape the camp.

   • The applicant went to work and did not go back to the camp in the evening. He took a train to Colombo and met an agent who arranged a passport, visa and legal work in Saudi Arabia. Three days later he left the country. He was questioned for 45 minutes at the airport in Colombo before being allowed to depart but the authorities did not appear to know that he had escaped from an IDP camp.

   • In January 2010 the applicant began work in Saudi Arabia and remained there, working until July 2010.

   • While the applicant was overseas his family in the camp was questioned about his whereabouts. At this time his wife’s mental health began to deteriorate and she was hospitalised. His family was eventually released from the camp and allowed to return home.

   • The applicant was encouraged by his family to return from Saudi Arabia to assist the family due to his wife’s illness. He returned to his home town and work at his grocery store. He had no issue returning through the airport where he was met by the agent who had arranged his travel.

   • Three days after he returned, the CID visited him, checked his passport and documents and asked him to register at their camp. They asked him to sign a document which was in Sinhala which they said was about his former employment with the LTTE. They then demanded monthly payments from his business and, in April 2013, when he could not pay, they threatened that he should go to the camp and see the ‘4th Floor’.

   • On 13 May 2013 the applicant and his family fled to Colombo and departed for Australia by boat on 16 May 2013.

   • The applicant’s relatives were questioned by the CID after their departure. The applicant fears that if he is returned to Sri Lanka he will experience ongoing harassment, significant physical intimidation and assault, abduction, detention, torture, cruel inhuman treatment or punishment and/or loss of his liberty and life because of his involvement with the LTTE and as a failed asylum seeker.

   • On 30 October 2017, after the SHEV interview, the applicant provided a statement which stated that he did unpaid work for the LTTE in addition to the paid work that he mentioned in his SHEV application. From March 2006 until September 2007 he worked for the Internal Security and Intelligence branch of the LTTE and from September 2007 until 2008 he worked for LTTE Costal Security.

   (Identifiers omitted)

3. The IAA then noted that the first applicant had made the following additional claims on behalf of his wife:

   • His wife has experienced terrible things during the war. She watched her father being shot and killed by a bullet that pierced through his chest, and also witnessed her brother-in-law and sister being injured.

   • His wife has been questioned several times by the CID in relation to the applicant’s activity and she fears that she will continue to be targeted because of her association with him.

   • If she is forced to return to Sri Lanka she will not have access to adequate medical care and the stress of being forced to return, in addition to being deprived of medical care, will make her mental health deteriorate even further.

4. The IAA then addressed and assessed these claims as follows (CB 336-339 at [1]-[8]).

5. Under the heading “Factual Findings”, and in relation to the first applicant, the IAA:

   a)noted that the first applicant had had three opportunities to detail his claims and had only raised the claim that he worked in the intelligence division without pay between 2006-2008 (the “Late Claim”) in post hearing submissions to the delegate.  Otherwise, his claim of association with the LTTE was consistent (CB 339 at [9]-[10]).  Relevantly, these paragraphs in the IAA’s decision provide:

   9.The applicant claims that he worked for the LTTE as a paid civilian from 1997 until 1999. He was a travel inspector and checked travel passes on LTTE buses. The applicant also claims that from 2006 until 2009 the LTTE required him to make payments to them from his grocery shop. He does not claim to have been an LTTE member or to have undergone any LTTE training. On 30 October 2017, after the SHEV interview, the applicant provided a statement that he did unpaid work for the LTTE in addition to the paid work that he mentioned in his SHEV application. From March 2006 until September 2007 he worked for the Internal Security and Intelligence branch of the LTTE and from September 2007 until 2008 he worked for LTTE Coastal Security.

   10.The applicant had three opportunities prior to the 30 October 2017 to explain his association with the LTTE and was asked at each stage to put his claims in full to the Department; however, he did not make all his claims about his association with the LTTE until the post interview submission. Prior to that the applicant’s claims about his association with the LTTE were consistent and supported by the second applicant. Essentially, he claimed that because of his former involvement with the LTTE from 1997-1999 he was targeted by the CID. Two officers from the CID eventually began to ask him to pay them a bribe each month from his business as he had been making payments in the past to the LTTE. When he refused to make a payment in April 2013 he was threatened by the CID officers and subsequently decided to flee the country. In the second applicant’s arrival interview she confirmed this account and stated that she did not know exactly what work her husband did for the LTTE as it was before they were married.

   b)accepted the first applicant’s claim that he was employed by the LTTE in a civilian capacity from 1997-1999 and that he had to make payments from his business to the LTTE from 2006-2009, but did not accept his claim that he did unpaid work for the LTTE from March 2006 until 2008 – the Late Claim – “as the nature of intelligence and security roles does not indicate that it would be performed in an unpaid capacity” (CB 339-340 at [11]-[12]);

   c)rejected the first applicant’s claim that the reason he did not provide this information earlier was that he was scared that if he said too much about his involvement with the LTTE, the Australian Security and Intelligence Organisation would interview him and make him stay in detention for a long time and separate him from his family (CB 340 at [12]);

   d)noted that the first applicant was given a clear warning to make his claims in full and had had the benefit of a representative in attendance at his visa interview (CB 340 at [13]);

   e)accepted that, as the applicant is a young Tamil male and had admitted working for the LTTE, it is highly likely that he may have been questioned in the post-war period about his association with the LTTE and accepted that he was questioned by a more senior officer (CB 340 at [13]);

   f)noted that at no time did the applicant claim to have been harmed during questioning because of his LTTE involvement or that the officers conducting the questioning threatened to cause him any harm or to arrest him or send him to a rehabilitation camp (CB 340 at [13]);

   g)accepted, within the context of his travel to Saudi Arabia, that the first applicant escaped the camp he was being held in and was able to secure a passport and a job using an agent in Colombo that allowed him to travel to Saudi Arabia (CB 341 at [16]);

   h)accepted that the first applicant returned from Saudi Arabia in July 2010 to support his family during his wife’s illness and had no issue returning through the airport (CB 341 at [16]);

   i)accepted that the first applicant was subject to monitoring for one month due to his past LTTE involvement but found that, because it had been over 10 years since he had worked for the LTTE and he was not an “LTTE member”, the level of monitoring he was subjected to indicates that he was not considered by the authorities to be a significant threat (CB 341 at [17]);

   j)accepted that two CID officers extorted money from the first applicant through visits to his business and threatened him when he could not pay. It found that the only ongoing contact the applicant had with the CID was for the purpose of extorting money from him (CB 341 at [18]);

   k)accepted that the CID officers who were extorting the first applicant may have made inquiries as to his whereabouts. It noted that the first applicant had not suggested that his relatives had been harmed or threatened, nor had there been threats made to the applicant and his family (CB 342 at [19]); and

   l)accepted that the first applicant was a person affected by the data breach and, inferably, that the CID would be aware that the applicants had sought protection in Australia (CB 342 at [20]).

6. Under the heading “Factual Findings”, and in relation to the second applicant, the IAA:

   a)accepted that the second applicant may have experienced terrible things during the war and, given tens of thousands of people were killed on both sides, that she would have been adversely affected by this and experienced significant losses (CB 342 at [21]);

   b)in relation to the first applicant’s claims that his wife had been questioned several times by the CID in relation to his activity and that she fears that she will continue to be targeted because of her association with him, understood that this questioning occurred in the context of the time she spent in the Internally Displaced Persons (“IDP”) camp and accepted that it may have been part of the screening process based on the applicant’s former association with the LTTE (CB 342 at 22);

   c)accepted that the second applicant may have been questioned about the first applicant’s whereabouts after he left Sri Lanka to work in Saudi Arabia but noted that the second applicant did not make any claim that she was harmed during the course of this questioning (CB 342 at 22); and

   d)accepted that the second applicant has a history of mental illness and currently has Post Traumatic Stress Disorder, anxiety and depression (CB 342-343 at [23]).

7. Under the heading “Refugee Assessment”, and in relation to the first applicant, the IAA:

   a)considered that if there were concerns about the first applicant’s past involvement with the LTTE, he would have been arrested or sent to rehabilitation and noted that, despite being subject to a period of monitoring, this did not occur (CB 343-344 at [27]);

   b)did not consider there was any substance to the claim that there was a threat that CID personnel from the “4th Floor” were coming to see the first applicant as the individual officers would not want their unlawful activities exposed to scrutiny (CB 341 at [18] and CB 343 at [27]);

   c)considered that, after five years, the chances of the applicant still being the subject of extortion by the CID officers would be remote and noted that the public can lodge complaints to the National Police Commission about conduct of this sort (CB 343-344 at [27]);

   d)referred to the first applicant’s circumstances and submissions involving his LTTE association as follows:

   28.In spite of the applicant’s former association with the LTTE he was not detained beyond having to reside in the IDP camp with other displaced persons, nor was he sent to rehabilitation. I have considered the applicant’s claims about the continued detention of former LTTE members under the Prevention of Terrorism Act (PTA). The applicant was not a member of the LTTE, merely employed by them in a civilian capacity. Further he was not arrested for LTTE involvement or sent for rehabilitation. He was able legally obtain a passport and travel to and from Saudi Arabia in 2010 and although he was questioned, he was not subject to any harm at the airport either on entry and exit, and was not further detained;

   e)having assessed the relevant country information, determined:

   29.It is now approximately nine years since the end of the war and the LTTE is considered a spent force in Sri Lanka. The most recent UK Home Office report of 2017 opines that a past connection to the LTTE would only give rise to international protection where the person has or was perceived to have a significant role in the LTTE or if they are or perceived to be active in post conflict Tamil separatism and thus a threat to the state. DFAT reports that in 2017 Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE and consider those at highest risk of arrest, detention or prosecution are the LTTE’s former leadership. Those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are not likely to face adverse harm on the basis of those past connections. This assessment is consistent with the recent opinion of the UK government and I am satisfied that the applicant does not fit this profile;

   f)in light of the above and all the relevant country information, did not consider the applicants were at risk on the basis of any LTTE association (CB 344 at [30]);

   g)in relation to the first applicant’s fear of being detained and tortured on return to Sri Lanka, noted the country information and, while accepting that the first applicant had previously been detained and questioned about his LTTE involvement, concluded that it was not satisfied that the first applicant was of interest after 2013 and that he did not hold the profile of a person the Sri Lankan authorities would perceive as holding information or as being involved in any threatening action (CB 345 at [31]-[32]);

   h)noted that the applicants were from the Northern Province, a former LTTE area, and were Tamils but that Tamil ethnicity alone did not warrant international protection and, further, that there was no claim that the applicants’ family had been harmed because of the applicants’ departure (CB 345-346 at [34]-[35]);

   i)concluded that, given the improved situation in Sri Lanka and the finding the first applicant does not have an adverse profile with the Sri Lankan authorities for any real or perceived links to the LTTE, the chance of the applicants facing harm for this reason was remote (CB 346 at [35]);

   j)did not accept that the data breach resulted in the divulging of any of the applicants’ claims for asylum (CB 346 at [36]);

   k)was not satisfied there is a real chance the applicants would be harmed by the Sri Lankan authorities having failed to seek asylum in Australia. The country information indicated that thousands of asylum seekers have returned to Sri Lanka since 2009 and while there have been reported instances of harm, the risk is low and continues to reduce, and those reported instances concerned people suspected of having substantial links to the LTTE, committing a crime or participating in anti-government protests, all of which the first applicant had not claimed and the IAA was satisfied the applicants did not possess or partake in (CB 346 at [37]); and

   l)accepted that as the applicants (except for the fifth applicant) departed Sri Lanka without a passport, they may be found to have committed an offence under the Immigrants & Emigrants Act 1949 (SL) (the “I & E Act”) and there was a real chance that they would be fined. However, this did not amount to serious harm and the penalties and provisions of the I & E Act are laws of general application (CB 347 at [39]-[41]).

8. Addressing the claims of the second applicant, the IAA:

   a)did not accept that she was subject to any harm during questioning at the IDP camp in respect to the first applicant’s involvement in the LTTE nor would she be subject to any harm in the future on this basis (CB 347 at 42);

   b)noted that the delegate considered a range of country information about the health services which would be available to the second applicant in Sri Lanka and that the second applicant had previously sought assistance for her mental health in Jaffna and was hospitalised and treated there (CB 348 at [44]);

   c)took into account that the stress of returning to Sri Lanka might exacerbate the second applicant’s symptoms, and, having considered her ability to access medical treatment in Sri Lanka for her condition, was satisfied that there are mental health services available in Sri Lanka (CB 348 at [45]); and

   d)concluded that, on the basis of the above, there were not substantial grounds for believing that as a result of the second applicant’s current medical condition she will face a real chance of harm, including serious harm, in terms of access to those services (CB 348 at [45]).

9. Under the heading “Complementary Protection Assessment”, the IAA:

   a)reiterated its earlier findings that there is not a real chance that the applicants face harm because of the applicant’s association with the LTTE, because of previous extortion attempts by corrupt CID officers, because of their Tamil ethnicity and origin in the Northern Province or for having sought asylum, nor for any combination or accumulation of those factors (CB 348 at [49]);

   b)found that, based on the same information, and for the reasons set out in respect of the Refugee Assessment, was also not satisfied that there is a real risk that the applicants would face significant harm (CB 348 at [49]);

   c)accepted that the first and second applicant, and their two older children, would be identified on arrival at the airport in Sri Lanka as having departed illegally and may be detained for several hours at the airport, but was not satisfied there is a real risk that the applicants will face significant harm during the investigation process or while being held at the airport (CB 348 at [50]);

   d)accepted that, should the applicants be held at prison for a brief period because of the unavailability of a magistrate, they may be subjected to poor prison conditions during their detention (CB 348 at [50]);

   e)noted that country information indicates this is due to overcrowding, poor sanitation and lack of resources (CB348 at [50]);

   f)having taken into account the medical evidence and having noted that the second applicant may find even a brief period of detention difficult because of her mental health, was not satisfied that the country information demonstrates that there is any intention by the Sri Lankan authorities in such a process, or through the imposition of a fine and associated questioning, to inflict pain, suffering or to be cruel or inhuman in nature. Nor is there an intention to cause extreme humiliation (CB 348 at [50]-[51]); and

   g)overall, was not satisfied that this amounted to significant harm as described in s.36(2A) of the Act (CB 348 at [51]).

1. On the basis of the above, the IAA affirmed the decision not to grant the applicants the visa.

Judicial Review Application

1. The applicants relied on two grounds in an amended application filed 4 February 2019. The Court notes that there were originally three grounds but that the second ground was abandoned at the hearing of this matter.

2. At the hearing on 12 March 2019, the applicants sought leave to make some minor amendments to ground 1. The Minister neither opposed nor consented to the applicants amending their grounds of review. The Minister addressed the proposed amendments in his written submissions and the Court was satisfied no prejudice would be suffered. In the circumstances, leave to make the amendments to ground 1 was granted.

3. An affidavit of Patricia Ng Phaik Kim affirmed 27 July 2018 was provided. It annexed a copy of the Transcript of the interview with the delegate that took place on 18 October 2017 (“Transcript”).

4. The Court was assisted by Mr Crowley of Counsel for the applicants and Ms Oliver of Counsel for the Minister. The Court thanks both advocates for their considerable assistance with this matter.

5. It is well established that in an application brought pursuant to s.476 of the Act the applicants can only succeed in this Court if it is established that the IAA fell into a jurisdictional error.

6. In preparing these reasons for judgment the Court has had regard to the materials referred to in the Court Book, the Transcript (from the hearing before the delegate), the extensive written submissions filed by both parties and the transcript of the hearing before the Court on 12 March 2019.

Ground 1

1. Ground 1, as amended, reads as follows:

   The decision is vitiated by jurisdictional error in that the IAA unreasonably failed to consider whether to exercise the discretion to invite one of the applicants, BOB18, to an interview pursuant to section 473DC of the Migration Act 1958 (Cth) in circumstances where:

   (a) she made her own claim in relation to her mental health and the availability of treatment in Sri Lanka;

   (b) her evidence in relation to the principal claims made by BOA18 may have affected the actual feeling of persuasion felt by the IAA in relation to the claims and evidence given by BOA18 and thereby denied the applicants a potentially different outcome;

   and in the circumstances the jurisdictional error was not cured by any subsequent action taken by the IAA.

2. It was not initially entirely clear what the applicants were asserting in relation to ground 1. Having reviewed the applicant’s written submissions and oral submissions from Mr Crowley, the Court agrees with Ms Oliver for the Minister that the applicants’ central concern here is that the IAA erred by failing to reasonably consider the exercise of the discretionary power in s.473DC to invite the applicants to give new information via comments in writing or at an interview.

3. Specifically, it is asserted that the IAA unreasonably failed to give the second applicant an opportunity to comment on the extent of her husband’s LTTE involvement during the period of 2006-2008 or his reasons for the delay in disclosing the extent of that involvement (as relevant to the Late Claim).

Applicants’ submissions

1. In relation to ground 1, the applicants submitted as follows in written submissions:

   a)it is true that the IAA is under no duty to get, request or accept any new information, but there is a duty to consider the exercise of the discretion. The powers and obligations of the IAA are conditioned by the requirement that they be deployed reasonably and it is established that the IAA acts unreasonably in failing to consider whether to exercise the power under s.473DC of the Act where the IAA knows there exists information likely to be with the review subject(s) which speaks to a relevant matter;

   b)the IAA’s rejection of the first applicant’s protection claims was informed in part by its rejection of the Late Claim.  It considered ‘that because of the fact that it was over 10 years since he worked for the LTTE and he was not an LTTE member, the level of monitoring he was subjected to indicates that he was not considered by the authorities to be a significant threat to the state’. That proposition makes little logical sense, but what it appears the IAA is saying is that, because only the more remote (earlier) claim to LTTE involvement was accepted, that has some bearing on the likelihood as to whether the first applicant was of interest to the Sri Lankan authorities;

   c)the IAA was critical of the Late Claim in part because the first applicant had not made the claim on three previous occasions;

   d)just as the IAA had found the second applicant’s information as to the first applicant’s LTTE involvement pre-marriage convenient to accept the applicant’s account, the same logic ought to have been applied to the Late Claim. That the first applicant’s alleged involvement with the LTTE post-2006 was at a time when the first and second applicant were married (something identifiable on the material), it was something that the second applicant should have been asked about;

   e)the claim that was being advanced by the first applicant and which was required to be considered on review by the IAA was that he had not been completely candid with the Minister previously because the first applicant feared that ‘ASIO would detain him for many years and separate him from his wife and children’. That claim could have been tested by inviting the second applicant to respond in writing or, more realistically, at an interview;

   f)as to the IAA’s finding that it did ‘not consider the applicant would have had the knowledge or forethought to only disclose part of his LTTE association at that interview or had the opportunity to discuss this matter with Tamils already present in Australia’, as a basis for rejecting the Late Claim, that was also an obvious enquiry that could have been made of the second applicant. So too, other matters arose which, had the IAA enquired of the second applicant, would have been “infinitely more meaningful” than the propositions the IAA came to;

   g)there is no indication that the IAA considered whether to deploy s.473DC of the Act and the concern the IAA had with the first applicant’s account was to a not insignificant extent capable of being answered by the second applicant. The IAA also knew that the second applicant had not been interviewed by the delegate and, as such, that her account had not been explored; and

   h)the Late Claim by the first applicant was that his involvement with the LTTE was more significant than first claimed. In those circumstances, the IAA ought to have considered whether to exercise its powers under s.473DC of the Act and obtain further information from the second applicant.

2. In oral submissions, Counsel for the applicants further submitted:

   a)it is important to note that in the Transcript there is a reference to the second applicant working for the LTTE in a medical capacity.  It can thus be inferred that she would have some information, or would have discussed with the first applicant, matters that the IAA did not believe;

   b)because the Late Claim was made in a post-interview submission there was no information before the delegate. However, the IAA was well aware that that information was available. The Court should find no difficulty in accepting s.473DC was not considered by the IAA despite the fact that the IAA would have known that the second applicant’s evidence was relevant to the first applicant’s Late Claim;

   c)in this particular case, there was evidence that the second applicant was unwell. Hence, it might be expected that if the IAA did actually consider exercising the power under s.473DC, it would reference that it did, or did not do so, as it might adversely impact the second applicant’s mental health; and

   d)when there is a proper, genuine, realistic consideration of a matter, there is usually some trace in the reasons, and there is not in this case.

Minister’s submissions

1. Relevantly, in relation to ground 1 as amended (and as interpreted by the Court (see above)), the Minister submitted:

   a)the applicants were notified that the delegate did not accept the Late Claim and, despite being represented by a migration agent before the delegate, the applicants did not seek to put any further information or submissions before the IAA in relation to this issue;

   b)the ground is misconceived when one has regard to the statutory obligations of the IAA in pt.7AA of the Act whereby the IAA was required to conduct a review of the delegate’s decision on the papers and was not obliged to accept or request new information, and without interviewing the applicants;

   c)whilst s.473DC(1) of the Act does provide the IAA with the discretion to obtain documents or information, it is not a discretion at large and in the present case, the Late Claim and the first applicant’s reasons for not disclosing such, were before the delegate when the decision was made;

   d)in the circumstances, the question of whether to exercise the discretion in s.473DC(1) did not arise for consideration as both the delegate and the IAA rejected the Late Claim for similar reasons;

   e)at the time the first applicant made his Late Claim in October 2017, the applicants were represented by a migration agent.  Hence, if the second applicant did have relevant information she could have given in relation to whether the first applicant did in fact work for the LTTE in 2006-2008, then the applicants ought to have provided that information to the delegate at the same time; and

   f)alternatively, the applicants could have sought to put any such information before the IAA by way of new information under s.473DD of the Act.

2. In oral submissions, Counsel stated:

   a)the applicants appear to be suggesting that what the IAA should have sought was “different information” because it was a different person’s perspective or information they might be able to obtain in relation to the same assertion;

   b)this is not a case where there is a hole in the evidence without the information. The second applicant’s evidence was that she was not aware of what the first applicant had done for the LTTE; and

   c)what was important was the opportunity to provide all of the relevant claims in relation to the involvement with the LTTE and that opportunity was not taken up until after the delegate’s interview.  In those circumstances, even if the discretion did arise, it could not be held to be unreasonable for the IAA not to consider exercising that discretion in circumstances where there had been three previous opportunities and no earlier assertion of this involvement with the LTTE in the period of 2006-2008.

Consideration

1. Section 473DC of the Act reads:

   473DC Getting new information

   (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

   (a)     were not before the Minister when the Minister made the decision under section 65; and

   (b)     the Authority considers may be relevant.

   (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

   (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)     in writing; or

   (b)     at an interview, whether conducted in person, by telephone or in any other way.

2. While s.473DC of the Act is discretionary, the IAA must not transgress the bounds of reasonableness in considering whether to exercise the discretion: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [49].

3. The applicants relied upon Minister for Immigration & Border Protection v CRY16 (2017) 235 FCR 475 at [82] (“CRY16”), which provides, relevantly:

   The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances…

   (Emphasis added)

4. It cannot be said here, as seemed to have been suggested by the Minister, that the relevant information in question was previously before the delegate.  While it is correct that the Late Claim was an issue earlier assessed, the “information” that is relevant here is information that might be obtained from the second applicant in relation to the Late Claim.  That information was not previously before, or considered by, the delegate as the second applicant had never been asked to comment on the Late Claim and, indeed, was never interviewed by the delegate. Hence, any information provided would most certainly be “new”.

5. In CRY16, the Full Court held that it was unreasonable for the IAA not to exercise the discretion under s.473DC(3) of the Act in circumstances where the IAA decided the review on the basis of relocation, a matter that the applicant was not on notice the IAA would be considering and which was ultimately dispositive.

6. Determining if the IAA’s failure to consider exercising the discretion is unreasonable is a matter that must be considered in light of the individual circumstances of each case.

7. The applicants refer to [10] of the IAA’s decision to support the proposition that as the IAA found that the second applicant’s evidence supported the first applicant’s claims, it should have invited her to give evidence in relation to the Late Claims. That paragraph provides:

   10. The applicant had three opportunities prior to the 30 October 2017 to explain his association with the LTTE and was asked at each stage to put his claims in full to the Department; however, he did not make all his claims about his association with the LTTE until the post interview submission. Prior to that the applicant’s claims about his association with the LTTE were consistent and supported by the second applicant. Essentially, he claimed that because of his former involvement with the LTTE from 1997-1999 he was targeted by the CID. Two officers from the CID eventually began to ask ‘him to pay them a bribe each month from his business as he had been making payments in the past to the LTTE. When he refused to make a payment in April 2013 he was threatened by the CID officers and subsequently decided to flee the country. In the second applicant’s arrival interview she confirmed this account and stated that she did not know exactly what work her husband did for the LTTE as it was before they were married.

   (Emphasis added)

8. The applicants’ main argument is that, on the basis of the emphasised passages, the IAA ought to have considered exercising the discretion in s.473DC of the Act to invite the second applicant to provide information in relation to the Late Claim. As the second applicant had “supported” or “confirmed” the first applicant’s account of his early LTTE involvement, she ought to have been invited to do the same for the Late Claim, particularly as she was married to the first applicant at the relevant time.

9. The Court agrees. 

10. Despite referring to the second applicant having corroborated, or supported, the first applicant’s earlier claims at interview, at [12] the IAA explains its reasons for rejecting the Late Claim as follows:

    12.I do not accept the applicant’s claim that he did unpaid work for the LTTE from March 2006 until 2008. The nature of the work described, intelligence and security roles, does not indicate that it would be performed in an unpaid capacity. His stated reason for not providing this information earlier was that he was scared that if he said too much about his involvement with the LTTE, the Australian Security and Intelligence Organisation would interview him and make him stay in detention for a long time and separate him from his family. He said that he thought he should only disclose part of the previous work he did with the LTTE in 1997 to 1999. I note the applicant’s representative has submitted that the Tamil community in Australia are giving its members the opposite advice to immigration representatives about whether to disclose their LTTE links. However, the applicant’s arrival interview was held shortly after his arrival in Australia. I do not consider that the applicant would have had the knowledge or forethought to only disclose part of his LTTE association at that interview or had the opportunity to discuss this matter with Tamils already present in Australia. Further the applicant was given clear warning at the SHEV interview to make his claims in full and had the benefit of his representative in attendance. He volunteered information about an association with the LTTE.

11. It strikes the Court as “odd” that, given the extent to which the IAA relies on the evidence of the second applicant to bolster her husband’s earlier claims, the IAA then rejects the Late Claim without seeking any information, at all, from the second applicant as to what was actually happening with her (by then) husband at the relevant time. It is peculiar that there is no consideration whatsoever as to whether the IAA should even “consider” whether evidence of this sort might exist and might go directly to the credibility concerns raised at [12].

12. This is particularly so in circumstances where, as Counsel for the applicants rightly highlighted:

    a)the Late Claim by the first applicant was that his involvement with the LTTE was more significant than first claimed; 

    b)the IAA knew that the second applicant had not been interviewed by the delegate and that, as such, her perspective on the Late Claim had not been explored;

    c)just as the IAA had found the second applicant’s information as to the first applicant’s LTTE involvement pre-marriage convenient to accept the applicant’s account, the same logic should have been applied to the Late Claim. That the first applicant’s alleged involvement with the LTTE post-2006 was at a time when the first and second applicant were married (something identifiable on the material), much of what the IAA refers to in [12] could have been clarified, affirmed or rejected by the second applicant as she was with him and married to him at the relevant time;

    d)the claim that was being advanced by the first applicant and which was required to be considered on review by the IAA was that he had not been completely candid with the Minister previously because the first applicant feared that ‘ASIO would detain him for many years and separate him from his wife and children’. That claim could have been tested by inviting the second applicant (his wife at the relevant time) to respond in writing or at an interview;

    e)as to the IAA’s finding that it did ‘not consider the applicant would have had the knowledge or forethought to only disclose part of his LTTE association at that interview or had the opportunity to discuss this matter with Tamils already present in Australia’, as a basis for rejecting the Late Claim, that too was an obvious enquiry that could have been made of the second applicant. Her evidence arguably could have directly addressed that issue; and

    f)overall, any concerns the IAA had with the first applicant’s accounts were clearly capable of being answered by the second applicant.

13. On the material, it cannot be disputed that the IAA could have (or should have) easily discerned that the second applicant might have been able to corroborate or provide information on the Late Claim.

1. Despite this, the IAA did not even consider whether to exercise its discretion to seek new information/evidence from the second applicant on issues central to the first applicant’s protection claims.

2. The question is: should they have done so?

3. On the basis of the above, the Court finds that the IAA’s failure to consider to exercise its discretion was, in the particular circumstances of this case, unreasonable.

4. The IAA ought to have considered whether to exercise its powers under s.473DC of the Act and obtain further information from the second applicant. The issue to be canvassed goes directly to a “critical fact” – that being, whether the first applicant was actively involved with the LTTE and thus at risk of future harm.

5. Importantly, the information central to this critical fact was “easily ascertained” or, as put in CRY16, information that the second applicant was “likely to have”. 

6. It has been argued that pt.7AA of the Act was introduced as a result of perceived exploitation of the merits review process by applicants who raised new claims or bolstered claims after the first unsuccessful review. The purpose of the introduction of the fast-track process was designed to “clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront”: Explanatory Memorandum, Migration and Maritime Powers (Resolving the Asylum Legacy Caseload) Bill 2014.

7. While it is certainly the case that that the first applicant had the opportunity to provide any information he believed would have been relevant to the Late Claim (including evidence from his wife) but did not do so, it cannot be said here that this alone provides a sufficiently strong reason for the IAA not to have considered seeking the second applicant’s evidence – particularly in circumstances where it was (or should have been) quite clear that this evidence could have directly addressed adverse findings. That information was easily obtained and it would have either negated or supported the IAA’s findings at [12]. It would have resolved the issue one way or the other, bringing finality to the issue. No one would have been left wondering, as they are here.

8. The Court is not suggesting that the IAA is required to consider exercising the power in s.473DC of the Act every time an applicant raises a Late Claim and the delegate is not able to test that evidence in full. This would undermine the statutory purpose of pt.7AA of the Act and could be all too easily exploited and would prolong a process that is meant to “fast track” proceedings: DBA16 v Minister for Immigration & Border Protection [2017] FCA 1580.

9. However, in all the circumstances of this case, the Court is satisfied that the IAA acted unreasonably in not considering to exercise the discretion in s.473DC of the Act when that information was so easily obtained and so clearly relevant to the issue of harm advanced by the first applicant. In failing to do so, the IAA did not actively and intellectually engage with the first applicant’s Late Claim.

10. For the reasons outlined above, ground 1 discloses jurisdictional error.

Ground 3

1. Ground 3 of the application, as amended, pleads:

   The decision was vitiated by a constructive failure to exercise jurisdiction, or a denial of procedural fairness, in that the IAA, by finding that “the nature of the work described, intelligence and security roles, does not indicate that it would be performed in an unpaid capacity” (AB 340[12]), was arbitrary or capricious, and which was said to undermine an important integer of the Applicants’ claims that the primary Applicant had played a more significant role within the LTTE.

Applicants’ submissions

1. The applicants’ submissions in relation to ground 3 were as follows:

   a)in not being satisfied of the first applicant’s claims of later LTTE involvement, the IAA reasoning is in part a proposition of speculation;

   b)the IAA purports to derive a positive proposition from a purely negative one and such reasoning is flawed and conceals impermissible speculation;

   c)the reasoning is also arbitrary in that there is no intelligible basis for a statement that the roles the first applicant claimed to have undertaken do not ‘sound like’ something that would be done in an unpaid capacity and therefore were not true; and

   d)on the contrary, the implication in the first applicant’s evidence of being ‘released’ (from his employment) was that there was a degree of ‘press-ganging’ by the LTTE of local Tamils, especially towards the end of the civil war.

2. At hearing, Counsel for the applicant added:

   a)the IAA has acted on “nothing more than a hunch”;

   b)there can be jurisdictional error in the IAA making an erroneous finding of fact if that finding of fact is material to the decision that has been made;

   c)section 473DE of the Act requires the IAA to “put out” its reasoning in writing. Hence, the Minister cannot suggest that it might have reasoned a different way but did not write it down; and

   d)there was evidence that the LTTE imposed a tax, and the applicant asserted in his claims that in order to be released from his role as a ticket collector he was required to work the intelligence role, and that work could be inferred as unpaid.

Minister’s submissions

1. The Minister argues ground 3 has no merit because:

   a)the finding was open to the IAA on the material before it.  It does not lack a logical connection to the evidence as such evidence included the evidence of the first applicant that he had been paid for work he had performed for the LTTE as a ticket checker in 1997-1999. It was open to the IAA to consider that work in intelligence and security roles would be more significant than work as a ticket checker and would thus be likely to be paid employment, rather than unpaid;

   b)the IAA concluded that it did not accept that the first applicant had undertaken any work for the LTTE in 2006-2008 as he had not provided that information to the Department on three occasions, in circumstances where he had been warned about the consequences of not providing truthful and accurate information to the Department; and

   c)even if there was error in relation to this finding, any such error had no material effect on the outcome of the review or the effect of denying the applicant a successful outcome because the IAA’s conclusion that it did not accept the first applicant had worked for the LTTE between 2006-2008 did not rely on the impugned finding.

2. In oral submissions to the Court, Counsel for the Minister seemed to suggest that, in the alternative, what the IAA has done here is “draw an inference” from the information that was before it that was open to it on the evidence.

3. Further, it was argued that any error here was not material to the overall outcome.

Consideration

1. The impugned finding upon which the applicant relies is at [12] of the IAA’s reasons, which provides:

   12…The nature of the work described, intelligence and security roles, does not indicate that it would be performed in an unpaid capacity…

2. The applicants appear to argue that the IAA’s reasoning here is illogical and that the relevant finding lacked a logical and probative basis.

3. In Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486 at [34]-[36] the Full Court summarised the authorities regarding illogicality and unreasonableness as follows:

   [34] To discern irrationality or illogicality in the Tribunal’s reasoning, more must be shown than simply the fact that the decision is one upon which reasonable minds may differ: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84]-[85] citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ. As Crennan and Bell JJ stated in SZMDS at [135]:

   A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   [35] Moreover, illogicality must be shown to have affected the decision in question: SZOOR at [85].

   [36] As to unreasonableness, the applicable standard was summarised by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] as follows:

   In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):

   “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383-384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].

4. The applicant referenced BTW17 v Minister for Immigration & Border Protection (2018) 258 FCR 511 for the proposition that illogical findings, including those based on assumptions, can amount to jurisdictional error.

5. In BTW17, the Court concluded that it was not rational for the IAA to reach a “no real risk” decision on the basis of the information before it. The Court referred to an earlier remark of Kirby J that, where the conclusion or outcome is one of serious gravity, including death or disappearance, an assumption is simply not good enough: BTW17 at [29].

6. Here, the evidence that was before the IAA concerning the first applicant’s employment from 2006-2008 was in the form of a submission made by the applicants’ representative subsequent to the interview with the delegate and a declaration by the first applicant which relevantly stated as follows (CB 293):

   …

   2.I did not work for the LTTE during peacetime 2004-2006. I married in January 2006. From March 2006 until September 2007 I was working with the LTTE Internal Security and Intelligence of the LTTE. After that I was released from this unit and until 2008 I worked for the LTTE coastal security.

   3.When I worked for the Internal Security and Intelligence division, when there were any newcomers to our village I would register their names and details. I would be required to visit their home and collect their details. Every week I would hand over these details to our co-ordinator.

   4. When collecting information I had to explain that they were required to provide this information. My wife and her sister-in-law would look after our shop when I was collecting these details.

   5. I requested in writing to be released from the position with Internal Security. My release was granted on the condition I worked in another role. I then took the position of working in my area in the coastal security division.

   6. My duties in the coastal division involved the village youth. We were involved in sentry walk, they post four village youth along the coast and they are required to take down the detail of anyone passing through each night. The details they took down would be handed to me the following morning, the youth would come to my shop and provide this information to me. I would remove the pages from their book and put them in a file. Each month I would have to take this file to the co-ordinator in charge.

   7. I was not paid for my work with the LTTE for the last two jobs we were required to do this.

   8. Since I stopped working for the LTTE I have been questioned by the CID from 2009 until leaving Sri Lanka in 2013. They questioned me about the work I did with the LTTE, I only disclosed the work I did with the LTTE from 1997 to 1999 for income.

   9.I fear that the CID became suspicious that I did work for the LTTE from 2006 to 2008 and this made me fear for our safety.

   10. When they questioned me about working with the LTTE, I explained that I was forced to do this work I was made to pay the CID money ranging from 10-15 thousand rupees each month. If I didn’t pay the money I am sure they will lay charges on me or shot and kill me. It is my fear of the CID due to my involvement of the LTTE that I fear returning to Sri Lanka.

7. The first applicant had previously indicated that he was paid for the role of ticket-checker by the LTTE.  He took that role voluntarily (CB 44). The submissions accompanying the first applicant’s claim to have worked with the LTTE during 2006-2008 stated that the first applicant “assisted voluntarily and in paid positions”.

8. The delegate found that the first applicant worked voluntarily as a ticket checker for the LTTE from 1997-1999. The delegate did not accept that the first applicant had worked in the Intelligence or Coastal Security branches between 2006-2008. The delegate did not accept the claim on the basis that the first applicant had failed to make this claim in the three prior opportunities he had been given (CB 314).

9. In the Court’s view, there is no error in the manner contended by the applicant. The applicant has sought to isolate the impugned statement from the entirety of the reasoning process undertake by the IAA in respect of the relevant claim.

10. Paragraph 12 must be read in context.  Specifically, at [9]-[11] the IAA:

    a)acknowledged the first applicant’s claim that he had worked for the LTTE in 1997-1999 as a ticket checker, being paid work, and also in the Internal Security and Intelligence branch and the Coastal Security branch in 2006-2008 for which he was not paid (CB 339 at [9]);

    b)referred to the three prior opportunities the first applicant had to raise the claim he worked for the LTTE in 2006-2008 (CB 339 at [10]);

    c)footnoted the Department of Foreign Affairs and Trade (“DFAT”) report indicating that Tamils in areas controlled by the LTTE, such as where the applicant was from, were required to interact with the LTTE “as a matter of course” and the LTTE was supported by voluntary and forced recruitment of Tamils (CB 339-340 at [11]); and

    d)accepted the first applicant’s claim that he was employed in a civilian capacity from 1997-1999 and noted that the first applicant’s account in respect of this had not altered since he began the visa process and that when questioned his answers were forthright and detailed (CB 339-340 at [11]).

11. The IAA then went on to make its findings at [12].

12. The Court accepts that the first applicant indicated that he was forced, or “required”, to undertake the work in question. The Court accepts that the IAA referred to information (at [9]) that suggested work was voluntary or forced. The Court also accepts that there was no information before the IAA that indicated that the work the applicant engaged in in 2006-2008 was work of a nature that was paid.

13. However, the Court does not accept that there is any error in the IAA’s logic or that the impugned statement is unreasonable in the context of the decision as a whole.

14. Reasons should not be construed minutely and finely with an eye keenly attuned to error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Nor should “parts” of any decision be read in isolation. Context matters.

15. Here, in context, the IAA referred to the country information at [11] that work was forced and voluntary. It accepted that the first applicant voluntarily worked as a ticket-checker in 1997-1999 and was paid for doing so. The first applicant’s evidence was that he had been paid for his work previously. While there does not appear to be anything on the material to inform about the “nature” of paid and unpaid work undertaken for the LTTE, the Court is satisfied that having accepted the applicant was paid for his role as a ticket-checker, it was reasonable for the IAA to reason that other roles undertaken by the first applicant were paid and that roles with the Internal Security or Coastal Security were of greater importance and thus, inferably, paid.

16. The Court notes that the “nature” of the first applicant’s work between 2006-2008 as described by the first applicant was that he was required to report certain details (such as the arrival of “newcomers” to his village and people who had “passed through each night”) to the LTTE “co-ordinator” once a week. The work he undertook as a ticket-checker was, in his evidence, such that he checked people’s tickets to ensure they were not travelling outside of their designated area and, if they were, they would “hand them over” at the next checkpoint.

17. On the evidence, the nature of the applicant’s involvement with the LTTE from 1997-1999, for which he was paid, was not dissimilar from the role he said he undertook in 2006-2008 (for which he says he was unpaid).

18. While the Court might have come a different conclusion in relation to whether the first applicant was or was not paid for the work he did for the LTTE between 2006-2008 and might have dealt with that evidence differently, that is not the relevant test here.  The test is whether the reasoning provided by the IAA is arbitrary, capricious or without “common sense”. 

19. The applicants did not argue that there was no evidence upon which the IAA could have come to the finding in question. Rather, it was argued that the finding was unreasonable, or illogical as it was simply “a hunch”.

20. The Court disagrees. 

21. While reasonable minds might differ, and a different decision-maker (even this decision-maker) might have accepted that the first applicant was not paid for the role he undertook in 2006-2008, it cannot be said here that the analysis provided by the IAA at [12] is illogical, irrational or unreasonable.  Rather, the conclusion reached was open to the IAA on the evidence before it.

22. Ground 2 does not identify jurisdictional error of the sort contended by the applicants.

Conclusion

1. For the reasons outlined above, the Court is satisfied that ground 1 of the applicants’ judicial review application identifies jurisdictional error on the part of the IAA.

1. In circumstances where the IAA has fallen into jurisdictional error, the IAA’s decision will be set aside and the matter remitted to the IAA for determination according to law.

I certify that the preceding one hundred and twenty five (125) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Date: 19 June 2019