BQX17 v Minister for Immigration

[2020] FCCA 1161

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQX17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1161

Catchwords:
MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that the IAA failed to consider all the applicant’s claims and evidence, failed to consider exercising its discretion to obtain additional information, failed to apply the correct test and reached incorrect factual conclusions.

Legislation:

Migration Act 1958, ss.5, 5H, 5J, 36, 473BB, 473CA, 473DC 474, pt.7AA
Migration Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

First Applicant: BQX17

Second Applicant: BQY17

Third Applicant: BQZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1183 of 2017

Judgment of: Judge Cameron

Hearing date: 29 April 2020

Date of Last Submission: 29 April 2020

Delivered at: Sydney

Delivered on: 14 May 2020

REPRESENTATION

Solicitor for the Applicants: Mr D Taylor of Sydney West Legal and Migration

Counsel for the First Respondent: Ms K Hooper

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT SYDNEY

SYG 1183 of 2017

BQX17

First Applicant

BQY17

Second Applicant

BQZ17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

INTRODUCTION

1. The first and second applicants are husband and wife respectively, the third is their child and they are citizens of Sri Lanka.  The first and second applicants arrived by boat at the Cocos Islands on 26 October 2012 without a visa permitting them to enter and stay in Australia.  On 14 March 2016 the first and second applicants lodged a combined application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs.  Each made claims of their own while the third applicant was included in his parents’ application as a member of the family unit.  On 22 September 2016 a delegate of the first respondent refused the applicants’ application and referred their matter to the second respondent (“IAA”) for review.  The applicants were unsuccessful before the IAA and have applied to this Court for judicial review of the IAA’s decision.

2. In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the applicatoin will be dismissed.

FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

1. On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 5(1) of the Act relevantly defines a “fast track applicant” as, relevantly, a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination;

2. Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that any of the applicants was such an applicant.

3. Part 7AA of the Act sets out the IAA fast track process. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.

STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA

1. Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:

   36 Protection visas—criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   …

   (2A)  A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

   5H Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)the real chance of persecution relates to all areas of a receiving country.

   …

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   …

   (b)the persecution must involve serious harm to the person; and

   …

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   …

BACKGROUND FACTS

Protection visa claims

1. The first applicant’s claims for protection were made at an entry interview on 7 January 2016, in a statutory declaration dated 23 February 2016 lodged with his SHEV application and at a departmental interview on 7 September 2016 (“SHEV interview”).  In its decision record the IAA summarised the first applicant’s claims as follows:

   ·The applicant is a Tamil male from Batticaloa District, Eastern Province;

   ·From 2004, the applicant provided assistance at a number of Liberation Tigers of Tamil Eelam (LTTE) annual celebrations;

   ·From 2005, the applicant came to the adverse attention of the Karuna Group. On several occasions, the applicant was either threatened, abducted, interrogated, detained and/or beaten;

   ·From January 2008 until January 2011, the applicant resided in Iraq on a working visa;

   ·From January 2011, The Karuna Group were searching for the applicant;

   ·From August 2012 until September 2012, the applicant provided assistance to the Tamil National Alliance (TNA) in the provincial council elections;

   ·In 2012, the Karuna Group threatened the applicant that he must support Rudramalar Gnanabaskaran during the election campaign;

   ·Three days prior to the September 2012 election, the applicant noticed he was being followed by a van;

   ·The applicant lived in hiding from mid-September 2012 until he departed Sri Lanka on 8 October 2012;

   ·Between September 2012 and November 2012, members of the Karuna Group searched for the applicant

   ·The applicant fears serious farm from Tamil paramilitary groups, the Karuna Group and the Sri Lankan authorities due to:

   -his Tamil ethnicity

   -his actual and imputed LTTE links

   -his involvement and support of the TNA

   -his illegal departure from Sri Lanka

   -his asylum application in Australia.

2. The second applicant’s claims for protection were made at an entry interview on 7 January 2013, in a statement dated 9 March 2016 lodged with her SHEV application and at the SHEV interview on 7 September 2016.

The IAA’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the IAA found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA’s decision was relevantly based on findings and reasons which are summarised below. As the present application for judicial review is concerned only with the first applicant’s claims to fear persecution, the following summary of the IAA’s reasons will be limited to matters relevant to those allegations.

Findings and reasoning

1. The IAA accepted that between 2004 and 2008 the first applicant assisted with Liberation Tigers of Tamil Ealam (“LTTE”) events such as Pongu Thamil and Martyrs’ Day by, for one or two weeks each year, providing transport and hanging out flyers and banners.  The IAA found that he provided coherent and consistent accounts of his involvement in these particular events.

2. However, the IAA found the first applicant’s evidence in relation to his claimed interactions with the Karuna Group and his later involvement in politics to be unconvincing.  In particular the IAA found the first applicant’s evidence at the entry interview did not support a number of claims later made in his SHEV application and noted that there were discrepancies in his SHEV application concerning when he came to the adverse attention of the Karuna Group.

3. The IAA thought that the first applicant’s claims that he had been threatened, beaten and/or detained by the Karuna Group on a number of occasions before moving to Iraq in 2008 were plausible and accepted that he had participated in activities that supported the LTTE.  Country information indicated that the Karuna Group acted against the LTTE in the Eastern Province at the relevant time.  However, the IAA did not accept that the Karuna Group came looking for the first applicant after he returned from Iraq in 2011.  The IAA noted that this claim was first raised in the SHEV interview and was not consistent with information provided at his entry interview or in his SHEV statutory declaration.

4. The IAA found that the first applicant had fabricated his claims to have been involved with the Tamil National Alliance (“TNA”) and come to the adverse attention of the Karuna Group after he returned from Iraq.  Noting that neither the first nor the second applicant had referred to the TNA in their entry interviews, the IAA was unconvinced by the first applicant’s claim of involvement with that party.  The first applicant also stated in his entry interview that he had never been associated or involved with any political group or organisation.

5. In para.33 of its reasons the IAA said:

   Country information indicates that since 2009 the Karuna Group, also known as Tamil Makkal Viduthalai Pulikal (TMVP), no longer operates as a paramilitary group and has since been registered as a political party.  While I have accepted it is plausible that Applicant 1 came to the adverse attention of the Karuna Group prior to his departure to Iraq in 2008, I have found he has fabricated his claim to have come to the adverse attention of the Karuna Group following his return to Sri Lanka in January 2011.  There is no evidence before me that Applicant 1 will come to the adverse attention of the Sri Lankan authorities or any other group on account of his low level support for the LTTE, over a number of weeks each year, between 2004 and 2008.

PROCEEDING IN THIS COURT

1. In their amended application the applicants alleged:

   The Authority’s task to review the decision of the Delegate miscarried because:

   1A.The Authority misunderstood the claims of the applicant and the circumstances in which the applicant’s claims in respect of the Karuna faction between 2005 and 2008 occurred. 

   i.    The Authority misunderstood the nature of the applicant’s assistance provided to the LTTE after the Karuna defection, during the conflict occurring between the LTTE and Karuna faction (including during the peace accord period).

   ii.     An integer claim of the applicant to have driven covertly for the LTTE within the Karuna controlled area after the defection was not adequately interpreted or otherwise misunderstood by the Authority;

   iii.   An integer claim for the applicant not understood or considered by the Authority was that in providing services to the LTTE in the LTTE area and, separately transporting cadres for the LTTE in the Karuna area, after the defection and during the period of conflict between the LTTE and the Karuna faction, the applicant provided logistical support to the LTTE for military activities.

   1B.The Authority’s findings that the applicant’s service to the LTTE was considered to have been low-level support for the LTTE for a few weeks a year at LTTE events from 2004-2008 were unreasonable, having regard to the claims of the applicant and the relevant country information

   i.    The Authority misunderstood its own referenced source material in particular the Home Office report, to appreciate that the war between the LTTE and the Karuna faction in 2004 was a state of active military;

   ii.     The DFAT report at 4.1 indicated that killings and disappearances were common between the LTTE and the paramilitaries (such as the Karuna faction). 

   iii.   The Home Office report referred to by the Authority indicated that after the Karuna faction defection there were significant military conflict and counter-offensives between the LTTE and Karuna faction in the East. 

   iv.    The Authority did not expressly or implicitly consider the seriousness of the harm claimed by the applicant in the protection visa interview, to have been beaten to unconsciousness or near unconsciousness; being a claim of beatings of such seriousness as to expose him to a risk of serious injury or death. 

   v.   In considering the harm inflicted on the applicant by the Karuna faction, the Authority assumed that the applicant’s ongoing service to the LTTE was known rather than suspected of providing ongoing support to the LTTE after the Karuna defection. 

   vi.    The Authority’s finding that he did not face a real chance of harm over his service to the LTTE during this period was unreasonable, in that it was based on an unsupported assumption that his service was both fully known, and considered by the Karuna group to be low level. 

   1C.The Authority did not understand, unreasonably failed to consider requesting further information from the applicant as to the nature of support provided by the applicant to the LTTE after the Karuna defection, the time period of that support, how the applicant was able to provide support, and what the Karuna faction knew, or otherwise suspected about his service to the LTTE, in this period of warfare between the Karuna faction and the LTTE and thereafter;. 

   Particulars

   i.    The Authority stated at 25 that: “I accept that Applicant 1 assisted with LTTE events for a number of weeks each year between 2004 and 2008”.

   ii.     Such an understanding of the claims of the applicant was not reasonable or open to the Authority, having regard to the claims made by the applicant and the country information referred to by the Authority, that there was active conflict between the LTTE and the Karuna faction

   iii.   The Authority did not make any findings as to whether his activities in support of the LTTE were known or only suspected by the Karuna Group but rather assumed that all of his activities were known by the Karuna faction and unreasonably failed to make an obvious enquiry relating to this matter. 

   1.The IAA committed jurisdictional error by failing to apply the real chance test,

   PARTICULARS

   a.At [6], the first applicant claims that, since coming to the attention of the Karuna Group in 2005, he had been threatened, abducted, interrogated, detained and/or beaten on several occasions. 

   i.    At [27], the IAA accepted this claim but only in relation to the period before his departure to Iraq in 2008.

   b.The IAA also accepted, at [66], that the first applicant provided assistance to the LTTE between 2004 and 2008. 

   c.However, despite accepting that the applicant had, on several instances, been subject to the harm, the IAA failed to recognise that the applicant's historical links to the LTTE suggest that the applicant continued to face a real chance of harm.

   2.The IAA committed jurisdictional error by presenting inconsistent findings when judging whether the applicant faced a real chance of suffering significant harm. 

   PARTICULARS

   b.     The risk categories outlined in the 2012 UNCHR guidelines include:

   i.Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE…

   ii. Despite accepting the applicant’s claims of links to the LTTE, the IAA failed to consider that the applicant’s circumstances fit this risk category.

CONSIDERATION

1. As a preliminary point, it should be noted that the parties adduced differing versions of a transcript of a portion of the SHEV interview.  A copy of the interview’s recording was also adduced.  It has not been necessary to reconcile the parties’ differences as nothing turned on the matters, which were not very great, on which they differed.  References to the transcript are to the version annexed to the affidavit of Aminata Soriena Conteh affirmed 16 April 2020.

Applicants’ case

1. By way of background to their arguments, the applicants referred to the following factual matters emerging from the material before the IAA:

   a)in 2004 the Karuna Group split from the LTTE.  Then followed an LTTE counter-offensive that destroyed most of the Karuna Group;

   b)the Karuna Group subsequently rebuilt;

   c)the first applicant continued to help the LTTE in LTTE-controlled areas after the Karuna Group split away; 

   d)his job was to drive people around in LTTE vehicles because there was no one else to do it;

   e)according to the UK Home Office, in late 2006 and early 2007, with the Sri Lankan Army, the Karuna Group fought the LTTE in Sri Lanka’s Eastern Province;  and

   f)according to the Department of Foreign Affairs and Trade, in 2002-2011, the LTTE and paramilitary groups, which the applicants contended included the Karuna Group, committed murders and kidnaps, particularly in the north and east of Sri Lanka.

1. As explained in their written submissions and address to the Court, the applicants’ case was that:

   a)before the Karuna Group split from the LTTE, the first applicant had been involved in helping the LTTE with celebrations by transporting people and by putting up flyers and banners;

   b)after the split the first applicant increased his assistance to the LTTE.  The help he provided was driving people in LTTE vehicles, which he did because there was no one else to do it;

   c)his “statement that there wasn’t anyone to drive their vehicles can only be interpreted to mean that due to the conflict there was not anyone to drive their vehicles in the area now controlled by the Karuna faction and that this was what the first applicant did, because the LTTE were no longer able to do that”;

   d)given that there was open military conflict between the LTTE and the Karuna Group in late 2006 and early 2007, such work “could only be covert”;

   e)the first applicant’s motivation to continue working for the LTTE was his personal opposition to the Karuna Group because it had betrayed the Tamil community;

   f)“any attempt to hold an LTTE event in the Karuna Group-controlled area would result in immediate death and any support of the LTTE in the LTTE controlled area after the split would be considered by the Karuna faction from 2004, and by the Army from 2006 after the full resumption of hostilities, to be service to the enemy punishable by death”;

   g)the IAA’s finding that the first applicant was perceived by the Karuna Group to be a low-level supporter of the LTTE was not sustainable on the evidence;

   h)the evidence established that the Karuna Group suspected the first applicant to be supporting the LTTE covertly which he in fact did by covertly driving their vehicles and cadres in the Karuna Group-controlled area and the LTTE controlled area, including during the period of conflict between the LTTE and Karuna Group;

   i)in the period prior to his departure for Australia, the Karuna Group had only suspected the first applicant of having assisted the LTTE.  If they had believed he had assisted the LTTE, they would have killed him and would do so now too if they knew.

2. In their written submissions the applicants summarised their position as follows:

   39.The only sensible way to understand the claims of the applicant, on the materials, was that he continued to provide logistical services to the LTTE, after the Karuna defection, but that this was clandestine and not definitively known by the Karuna group.  On the information, it is likely that the Karuna group suspected the applicant of helping the LTTE but did not definitively come to that conclusion, and for that reason, while they tortured him, he was not ultimately killed.

   40.That leaves the realistic possibility that the applicant’s service to the LTTE during the period of its offensive against the Karuna faction, and thereafter through 2005 and thereafter, is a matter for which the applicant has not yet been definitively investigated and punished.

   41.There is therefore, on the information available to the Authority, a realistic possibility that the applicant will be investigated over the existing suspicions of his involvement with the LTTE, and a real chance that he will be harmed over this.

3. The applicants contended, variously in their submissions or in their amended application, that the IAA had erred by misunderstanding the first applicant’s claims in the following respects:

   a)it did not understand his strong anti-Karuna Group motivation;

   b)it mistakenly believed that his work had been limited to:

   i)a few weeks a year;

   ii)celebrations or martyrs remembrance events; and

   iii)low-level activities;

   c)it had not taken account of the state of hostilities between the LTTE and the Karuna Group, and the fact that he had assisted the LTTE during that time, and so would have been seen by the Karuna Group as an enemy; and

   d)it had not considered his claim to fear persecution for having provided logistical support to the LTTE for military activities.

4. They also submitted that the IAA had erred by finding, without supporting evidence, that the first applicant had provided services to the LTTE up to 2008, in particular, for a few weeks every year, driving services for celebratory or memorial events;

Discussion

Ground 1A - covert LTTE work in Karuna Group areas

1. The applicants’ core factual claim was that the first applicant had covertly driven LTTE cadres in LTTE vehicles in areas controlled by the Karuna Group in periods of military hostilities between the two organizations.  However, they did not submit that they had made such a claim to the delegate or to the IAA. 

2. Moreover, it could not reasonably be said that such a claim emerged with sufficient clarity from the materials that the IAA had been obliged to consider it.  Indeed, it is contradicted by the claims which the first applicant did in fact make that:

   a)in 2005, and in every year after the war (SHEV interview pp.5, 10, 11), he continued to assist the LTTE as he had previously (statutory declaration at [10]);

   b)the events he helped with were in LTTE-controlled areas (statutory declaration at [10]);

   c)the driving he did was in LTTE-controlled areas close to where he lived (statutory declaration at [11]);

   d)he supported the LTTE’s political goals but all he did was help them celebrate functions and festivals (SHEV interview pp.8, 9);

   e)after the Karuna Group split from the LTTE he was more strongly motivated to help the LTTE (SHEV interview pp.9, 10) and he did that by being a driver because there was no one else to do that (SHEV interview p.10);

   f)he transported “people, workers and sand” because the LTTE was building tombs for fallen soldiers (SHEV interview p.10) and just continued what he had been doing previously (SHEV interview p.11); and

   g)the situation deteriorated over time with members of the Karuna Group targeting persons like the first applicant “who assisted the LTTE” and so he left for Iraq in 2008 (statutory declaration at [17]). 

3. The first applicant did say in his statutory declaration that the LTTE would cross the river from their area to the Government-controlled area where he lived, (SHEV interview p.3) but he did not assert that he had done anything with or for them when they did.  The submission that he had seems to be a speculative extrapolation from the factual allegations that he had made. 

4. I find that the IAA did not misunderstand the applicants’ claims as alleged.

Ground 1B - unreasonable findings

1. The allegation that it was unreasonable of the IAA to find that the first applicant did not face a real chance of harm over his service to the LTTE in the period 2004 to 2008 overlooks the first applicant’s evidence at the SHEV interview.  Relevantly, the first applicant is recorded (SHEV interview pp.11-12) to have said that the Karuna Group threatened him on five occasions between 2005 and 2008 “[b]ecause I was helping LTTE”.  Given that evidence and the evidence referred to above at [25(a)], it was open to the IAA to conclude that the first applicant had been assisting the LTTE between 2005 and 2008. 

2. Further, it was not unreasonable, in the sense of irrational, of the IAA to conclude that the first applicant’s activities had been at a low level and, to the extent that the Karuna Group had been aware of them, to have been appreciated as just that.  Important to that conclusion is the finding expressed earlier in these reasons that the first applicant did not allege at any point before this proceeding that he had worked covertly for the LTTE in government-controlled areas.  That leaves him, as the IAA found, having put up banners and posters and having been a driver in association with commemorative events supported by the LTTE.  That being so, the finding of low-level involvement was reasonably open to the IAA.

3. Further, the evidence also supported the IAA’s conclusion that the time devoted by the first applicant to the work he performed for the LTTE in association with commemorative events was of limited duration.  The IAA stated in para.25 of its reasons that the first applicant had “assisted with LTTE events for a number of weeks each year between 2004 and 2008” and went on to record: 

   In an interview on 7 January 2013 (entry interview), Applicant 1 stated that he provided assistance to the LTTE during celebrations such as Pongu Thamil and Martyrs’ Day.  He said he provided assistance for one or two weeks helping with transport and hanging flyers/banners.

   I have been unable to find a reference to “one or two weeks” in the Court Book that was exhibit R1.  Specifically, the “Irregular Maritime Arrival; Entry Interview” document reproduced in the Court Book does not include such a reference.  Whether or not the applicant actually said as much is not of any particular importance, however, because to the extent that the IAA’s description of the first applicant’s work was an inference from such evidence as it did have, it was one that reasonably open to it.  In the entry interview the first applicant is recorded as having said:

   I used to help the LTTE like when there was celebrations …

   which makes it fairly clear that the applicant’s assistance was limited to the occasions themselves and so of short duration.  The IAA’s finding in that regard was therefore not unreasonable.

4. Finally, the particulars of the allegation reveal that this ground is, in substance, a complaint that the IAA made factual findings adverse to the applicants’ case.  To that extent the ground does not seek judicial review, to which this Court is limited in proceedings such as this one.

Ground 1C – failure to consider seeking information

1. Section 473DC of the Act relevantly provides:

   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 applicants also submitted that the IAA should have considered exercising its discretion under s.473DC and sought more information from the first applicant regarding his work for the LTTE. However, it had no obligation to consider seeking from him an elaboration of his allegations that he had not volunteered. It was not suggested that this was a case like Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475.

3. This ground discloses no error on the IAA’s part.

Ground 1 – Failure to apply the “real chance” test

1. The “real chance test” is only a paraphrase of one element of the criteria for the grant of a protection visa under s.36(2)(a), namely that an applicant’s subjective fear of persecution, if accepted, is objectively well-founded. The IAA cited that test at para.8 of its decision record and then expressed its relevant finding by reference to that test. Its approach was not erroneous. In any event, the substance of the allegation was another complaint that the IAA had made factual findings adverse to the applicants’ case and so in reality seeks merits rather than judicial review.

Ground 2 – Inconsistent fact finding

1. Ground two of the amended application alleged that there were inconsistencies in the IAA’s reasons but the particulars of the ground did not identify what those inconsistences were.  Instead, they implicitly allege that the IAA had failed to consider a potential basis to find a well-founded fear of persecution although the ground advanced, purportedly derived from UNHCR guidelines, appears not to have been propounded to the delegate or the IAA. 

2. More importantly, however, there is no evidence of what the UNHCR guidelines in question relevantly said and so the Court cannot take this issue further.

CONCLUSION

1. Jurisdictional error on the part of the IAA has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 14 May 2020

CORRECTIONS

1. The word “Tribunal’s” in para.35 has been changed to “IAA’s”.