BRN17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 397
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 397
File number: MLG 795 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 16 May 2023 Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA failed to assess an integer of the applicant’s claim (being a Tamil from the North of Sri Lanka) – whether the IAA failed to assess the applicant’s claims cumulatively – whether the IAA failed to assess the applicant’s claims of being persecuted on the basis of his religion (being a Christian of Roman Catholic faith) – whether the IAA erred by concluding that a period of short detention would not amount to serious harm – whether the IAA correctly assessed new information under section 473DD of the Migration Act 1958 (Cth) – Ministerial Intervention – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB & 476 and Division 3 in Part 7AA Cases cited: ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 81
CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260
Craig v State of South Australia (1995) 184 CLR 163
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
DCP16v Minister for Immigration and Border Protection [2019] FCAFC 91
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 3
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCAFC 10
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 21 March 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 795 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
16 MAY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Sri Lanka (Court Book (“CB”) 53). He first arrived in Australia in August 2012 as an unauthorised maritime arrival (CB 114)
On 9 September 2015, an officer from the then Department of Immigration and Border Protection (the “Department”) invited the applicant to apply for a Temporary Protection or Safe Haven Enterprise visa (CB 172-179).
On 12 October 2015, the applicant applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”) (CB 180-217). Annexed to that application was a statutory declaration and supporting documents (CB 218-230). The statutory declaration outlined the applicant’s protection claims as follows (CB 218-221):
(a)he and his family fled Sri Lanka sometime in 1990 (due to the civil war) and they stayed in India for approximately three years as refugees;
(b)in 1993, the applicant voluntarily returned to Sri Lanka because “it seemed the situation had improved”;
(c)upon his return, he realised that the “problems were far from over” and he could not return to his home town (which was occupied by Sri Lankan forces) because it was not safe;
(d)the applicant travelled to Qatar, where he remained until late 2011;
(e)the applicant again returned to Sri Lanka in December 2011;
(f)he was stopped by two Criminal Intelligence Division (“CID”) officers in January 2012 (on his return home after taking his daughter to school) for questioning and was “physically assaulted”;
(g)in February 2012, members of the Karuna Group came to his shop demanding money. The applicant thought that they would kill him if he did not pay. He paid them some money and told them that he would pay the balance the following week;
(h)he was stopped by three members of the Karuna Group a week later and was severely beaten with poles and by hand and they also threatened to kill him;
(i)the applicant was provided refuge by his church and remained there for approximately two months before moving to his in-laws’ house; and
(j)he believes that he will be killed by the Karuna Group or harmed by the CID if he returns to Sri Lanka.
On 4 January 2016, the Department invited the applicant (through his representative) to attend an interview at the Department’s Melbourne offices scheduled to take place on 28 January 2016 (CB 270-280).
The applicant attended that interview with a delegate from the Department.
On 10 February 2016, the applicant’s representative provided written submissions to the Department (via email) in support of the applicant’s visa application (CB 289-310). With those submissions, the applicant’s representative also provided supporting media articles and country information (CB 311-349).
On 14 February 2016, a further news article was provided to the Department via email (CB 350-356).
On 22 September 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 363-374).
The delegate’s decision was referred to the Immigration Assessment Authority (the “IAA”) on 28 September 2016 under Part 7AA of the Migration Act 1958 (Cth) (the “Act”) (CB 382).
On 19 October 2016, the applicant’s representative provided the IAA with written submissions, a statutory declaration, an appointment of representative form and supporting documents (CB 395-403).
On 24 March 2017, the IAA affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 407-420).
On 20 April 2017, the applicant applied for judicial review of the IAA’s decision in this Court (CB 423-428). The application is brought pursuant s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
THE IAA’S DECISION
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act arguably restricts what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information”, which is defined as information that was not before the delegate and which the IAA considers “may be relevant”: s 473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act, which provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB of the Act, 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 Court is generally reluctant to “copy and paste” large portions of the IAA’s decision (preferring, instead, to summarise the IAA’s “core” findings). At times, however, it is useful to provide substantial portions of the IAA’s reasons in order to draw attention, in some detail, to the IAA’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly useful when (as was the case here) the applicant appeared before the Court without legal representation and had difficulty articulating his concerns.
The IAA’s decision in this matter is 14 pages long and spans 44 paragraphs. This includes four pages containing extracts of relevant legislative provisions.
The IAA began by noting that it had had regard to the material referred by the Secretary under s 473CB of the Act (at [3]).
The IAA then explained that it had received a submission from the applicant’s representative which attached a statutory declaration from the applicant. The IAA noted that the submission and statutory declaration responded to issues arising from the delegate’s decision. In the circumstances, the IAA determined that this material was not “new information” and considered the submission and statutory declaration when assessing the applicant’s claims (at [4]).
The submission included “new information” in the form of a media article dated 11 June 2016 titled “British Tamil tortured and detained during Sri Lanka wedding trip”. This information, the IAA noted, pre-dated and related to events that pre-dated, the delegate’s decision. The IAA explained that the applicant’s representative had not provided any explanation as to why this new information was not, and could not have been, provided to the delegate, or why it might be regarded as credible personal information that was not known and, had it been known, might have affected the consideration of the applicant’s claims. In the circumstances, the IAA concluded that the new information did not satisfy the matters set out in s 473DD(b) of the Act (at [5]).
The IAA then explained that, although the delegate had relied on the 18 December 2015 Department of Foreign Affairs and Trade (DFAT) Country Information Report for Sri Lanka, DFAT had issued a new Country Information Report for Sri Lanka on 24 January 2017 (at [6]).
The IAA continued:
6….From the 2017 report I have obtained new information regarding Tamils, persons with links to the LTTE and Sri Lankan citizens who departed the country illegally and sought asylum overseas. This information is not specifically about the applicant and is just about a class of persons of which the applicant is a member. The 2017 report was issued after the delegate's decision of 22 September 2016. I consider DFAT to be an authoritative source of country information and as its January 2017 report updates its December 2015 one, I am satisfied that there are exceptional circumstances to justify considering the new information.
The IAA then summarised the applicant's claims for protection, noting as follows (at [7]):
•The applicant lived on Delft Island until 1990. While living there he was beaten on several occasions by Sri Lankan forces and has scars from the beatings. He believes that such scarring would lead the authorities to suspect him of LTTE involvement. In 1990 the applicant and some family members fled to India where they remained in a refugee camp until 1993.
•In 1993 the applicant returned voluntarily to Sri Lanka, but around December 1993 went to Qatar for work. He worked in Qatar until December 2011 and in that time returned to Sri Lanka on four occasions, staying for a few months each time. On his return trips he moved between relatives' houses as he was afraid he could be arrested by the Sri Lankan police Criminal Intelligence Division (CID) or targeted by Tamil paramilitary groups who extort money from Tamils who have been overseas.
•He returned permanently to Sri Lanka on 22 December 2011. On 25 January 2012 he was stopped by two CID officers after dropping his daughter at school. They questioned him as they knew he was new to the area. He tried to tell them he had recently returned from working in Qatar but they did not believe him. They physically assaulted him and released him only after he pleaded with them.
•Sometime in early February 2012, members of the Karuna Group came to his shop and demanded ten lakhs rupees. On 23 February he paid one lakh as he was afraid of being harmed and told them the balance would be paid the following week.
•Around a week later, as he was closing his shop at around 9:00 pm, three Karuna Group cadres beat him with poles and their hands. They threatened to kill him if he approached the police or any humanitarian organisation.
•Following this incident he went to see his local Catholic priest who gave him refuge in the church seminary. He remained there for two months and then moved to the residence of his wife's parents in Jaffna where he remained until 17 July 2012, around ten days before he departed Sri Lanka.
•Since he has left Sri Lanka his wife and children have moved to Jaffna due to threats from authorities and paramilitary groups. They live in constant fear and intimidation by anonymous armed groups and have advised him not to return home in the near future.
•As he fled Sri Lanka illegally and claimed asylum in Australia, this would increase the likelihood and risk of being harmed by the Sri Lankan authorities and other armed Tamil groups who work closely with the government if he is returned.
The IAA then summarised the meaning of “refugee” under section 5H(l) of the Act and
“well-founded fear of persecution” under s 5J of the Act (at [8] and [9]) and assessed the applicant’s refugee claims as follows:
(a)the IAA accepted that the applicant had worked in Qatar, had returned to Sri Lanka four times for vacation and had moved between relatives’ houses because, he claimed, “he was afraid he could be arrested by the Sri Lankan police CID personnel or targeted by Tamil paramilitary groups” who extort money from Tamils who have been overseas (at [11]);
(b)the IAA accepted that on these return trips, the applicant may have been treated with suspicion by officials when crossing checkpoints (at [11]);
(c)the IAA determined, however, that the applicant had not claimed (and there was no evidence before the IAA to indicate that) he had suffered harm as a result (at [11]);
(d)the IAA noted (at [12]) that at the protection visa interview the applicant had confirmed that he had no trouble arriving or departing the airport on his vacation trips to Sri Lanka;
(e)the IAA did not accept the applicant’s claim that he had moved between relatives’ houses as he was afraid of arrest, stressing that the applicant’s voluntary return to Sri Lanka four times between 1993 and 2011, his unhindered entry and departure through immigration controls at the border and his extended stay on each occasion weighs strongly against him having any genuine fear of harm from Sri Lankan authorities or Tamil paramilitary groups (at [12]);
(f)the IAA accepted that the applicant was harassed and physically assaulted by CID officers in January 2012 but noted that, at his protection visa interview, the applicant’s representative agreed with the delegate that this was an isolated, random event. The IAA determined that, as the applicant was not arrested, detained or placed on reporting conditions as a result of this incident, this indicated strongly that the CID did not consider that the applicant had LTTE links, had no ongoing interest in him and that he did not have a profile of concern (at[13]); and
(g)the IAA did not accept that the applicant’s family has been threatened or intimidated by the CID since his departure from Sri Lanka or that he faced a real chance of harm from the CID on return to Sri Lanka (at[13]).
Having assessed the country information before it, the IAA:
(a)accepted (at [14]) that, after working in Qatar for eighteen years and returning to Sri Lanka the applicant may have been perceived as wealthy and targeted for extortion by paramilitary groups when he opened his business. However, the IAA was not satisfied that the applicant’s fear of facing harm from the Karuna Group on return to Sri Lanka now is well-founded. The IAA concluded that the country information revealed that there has been a significant change in Sri Lanka since the applicant departed in 2012 as well as a reduction in incidents of extortion, the weakening of paramilitary groups and their renunciation of paramilitary activities. This led the IAA to conclude that the chance of the applicant facing instances of extortion from such groups, now or in the reasonably foreseeable future, is remote;
(b)further noted (at [15]) that in a post-interview submission the applicant’s representative stated that reliable, objective information demonstrates that the Sri Lankan government continues in its failure to fulfil many of its international human rights obligations. The applicant further claimed that he will be targeted by the Sri Lankan authorities upon return to Sri Lanka on account of his Tamil ethnicity and presumed support of the LTTE;
(c)did not accept (at [16]) that the applicant faced a real chance of harm for this reason. The IAA accepted that the applicant originates from an area previously controlled by the LTTE, was displaced from his home area during Sri Lanka's civil conflict and that he experienced personal upheaval. At the height of its influence, the LTTE controlled and administered around three quarters of what are now the Northern and Eastern provinces of Sri Lanka. As a result, all persons residing in these areas necessarily encountered the organisation and its administration in their daily lives. The applicant, however (the IAA noted), was away from Sri Lanka for much of this civil conflict, as he resided and worked in Qatar from 1993 to 2011; and
(d)assessed (at [17] the applicant’s submission that (as per the UNHCR 2012 eligibility guidelines for Sri Lanka, which was before the delegate), certain categories of persons are at risk of detention, torture and extra-judicial killing but determined (at [18]) that there was no evidence before the IAA that the applicant was ever a member or supporter of the LTTE and no credible evidence that he was suspected of being so after he returned to Sri Lanka (from Qatar) in December 2011. The IAA also noted that the applicant had no issues passing through immigration controls on entry to and departure from Sri Lanka when he vacationed there between 1993 and 2011 and when he returned permanently in December 2011.
The IAA continued:
18.…Despite being harassed by the CID in January 2012, he was not arrested or detained indicating strongly that the CID had no ongoing interest in him and did not consider he had LTTE links. I do not accept that the applicant was of interest to Sri Lankan authorities, including the CID, when he departed the country or that Sri Lankan authorities have visited the applicant's family in the time since his departure.
While the IAA accepted that the applicant might have some scarring to his body, it noted that the UNHCR and other authoritative sources no longer indicate that individuals with scarring are more prone to adverse treatment upon return to Sri Lanka (at [19]).
Overall, the IAA determined that the applicant did not face a real chance of harm from Sri Lankan authorities, including the CID, on account of any imputed links to the LTTE (at [20]).
The IAA accepted that the applicant feared harm on return to Sri Lanka on account of his Tamil race but, for the following reasons, was not satisfied the applicant would face a real chance of harm on the basis of being a Tamil or a Tamil from Sri Lanka’s north:
22.DFAT assesses that Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since Sirisena came to power in 2015.
23.Information before the delegate is that Sri Lanka’s August 2015 parliamentary election was deemed credible by international and domestic observers, with the Tamil National Alliance (TNA), gaining sixteen seats and TNA leader, Rajavaothian Sampanthan appointed opposition leader.
24.DFAT reports that monolingual Tamil speakers, including in the Northern Province, can have difficulty communicating with the police, military and other government authorities but that these practical difficulties are the result of a lack of qualified language teachers, the disruption to civilian life caused by the conflict and the legacy of earlier discriminatory language policies rather than official discrimination. Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the former Rajapaksa government. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity.
25.Information before the delegate is that since taking power in 2015, the Sirisena government has established a new reconciliation taskforce mandated with ‘healing the wounds of mistrust and social and cultural stress generated from extended conflicts between different communities in Sri Lanka’, replaced military governors with civilians governors in the Northern and Eastern Provinces, reduced high security zones, released land formerly held by the military and engaged constructively with the TNA. In addition, some individuals held under the PTA have been released.
26.DFAT has recently confirmed that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. While some cases of monitoring of Tamils continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced.
The IAA did accept (at [27]) that the applicant would be considered a returning asylum seeker who left Sri Lanka illegally and noted that it had had regard to the submission expressing concern over the treatment of returned asylum seekers in Sri Lanka. The IAA accepted that, as a result of his illegal departure, the applicant might be subjected to arrest and interrogation by the authorities upon his return.
However, the IAA continued:
28.DFAT reports that persons who depart Sri Lanka illegally by boat are generally considered to have committed an offence under the I & E Act, and are liable for penalties including imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees, however in practice, they are applied to such persons on a discretionary basis and are almost always a fine.
29.Most returning asylum seekers are questioned by police on return at Colombo’s International Airport and are charged under the I & E Act where an illegal departure from Sri Lanka is suspected. As part of this process, they will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Illegal departees who are arrested can remain in police custody at the CID Airport Office for up to 24 hours, and should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be held at a nearby prison.
30.DFAT has assessed that such persons are treated according to standard procedures, regardless of their ethnicity or religion and that detainees are not subject to mistreatment during their processing at the airport.
31.Information before the delegate indicates that in general, prisons in Sri Lanka do not meet international standards due to overcrowding, poor sanitary conditions and a lack of resources.
32.According to the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, no illegal departee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards Sri Lankans departing illegally in the future. If an illegal departee pleads guilty, they will be fined (which they can pay by instalment) and are then free to go. In most cases where an illegal departee pleads not guilty, they are immediately granted bail by the magistrate on the basis of personal surety.
The IAA then stated:
33.As the applicant departed Sri Lanka illegally, I accept he may be charged under the I & E Act and there is a chance he may be held in detention for a short period. In MIBP v WZAPN the High Court endorsed the position taken in SZTEQ v MIBP finding that whether a loss of liberty constituted serious harm required a qualitative judgement, including an evaluation of the nature and gravity of the loss of liberty. In this case, I find that the brief period of detention does not rise to the level of threat to his life or liberty, or to significant physical harassment or ill treatment or any other form of serious harm for the applicant.
34.I find that if the applicant pleads guilty, he will be required to pay a fine and will subsequently be released and if he pleads not guilty, will be released on his own personal surety. The applicant was a passenger on a people smuggling venture and will not on the evidence, be subject to a custodial sentence. As he departed illegally, I accept he will be required to pay a fine but I am not satisfied this or the provision of a surety amounts to serious harm, nor am I satisfied that the payment of a fine, being held in detention for a short period and questioning cumulatively amounts to serious harm.
35.Furthermore, country information cited above indicates that the process and the treatment to which the applicant will be subject under the I & E Act is not discriminatory on its face nor is it applied in a discriminatory manner. Rather it is a law which applies to all Sri Lankans. A generally applicable law will not ordinarily constitute persecution because the application of the law does not amount to discrimination. As such I find the treatment the applicant will face as a consequence of the application of the I & E Act is not persecution within the meaning of the Act.
36.DFAT has reported that it is not aware of any specific post-arrival monitoring of recently returned failed asylum seekers, monitoring and fears about mistreatment have reduced under the current Sirisena government and the risk of harm for the majority of returning asylum seekers is low. On the available evidence, I am not satisfied the applicant has any real or perceived connection to the LTTE. I do not accept that the applicant will be imputed with separatist or anti-government dissident beliefs by the authorities because of the manner of his departure from Sri Lanka, his extended residence in a western country, imputed asylum seeking there, either individually or cumulatively. In light of this I find that the applicant does not face a real chance of persecution from Sri Lankan authorities or paramilitary groups either as a failed asylum seeker or as returnee from the west or for any other reason.
On the basis of the above, the IAA determined (at [37]) that the applicant did not meet the requirements of the definition of refugee in s 5H(l) of the Act and, overall, the applicant did not meet the requirements of s 36(2)(a) of the Act.
The IAA then assessed whether the applicant met the complementary protection requirements under s 36(2)(aa) of the Act. When assessing whether there was a real risk that the applicant would face significant harm if returned to Sri Lanka (as per s 36(2A) of the Act), the IAA relied on its findings above in relation to refugee status and determined that:
(a)it was not satisfied there was a real risk that the applicant will face significant harm during the investigation process or while being held at the airport (at [40]);
(b)the poor prison conditions to which the applicant may be subjected do not, in and of themselves, constitute significant harm as defined by the Act (at [41]);
(c)it was satisfied the applicant would not face a real risk of significant harm during any brief time spent in detention (at [41]); and
(d)while accepting that the applicant may be subjected to questioning and may be required to pay a fine or provide a surety on his return to Sri Lanka, it was not satisfied that this amounts to significant harm (at [42]).
The IAA also noted that it had not accepted the applicant’s claims to have been imputed with links to the LTTE and did not accept that his method of departure from Sri Lanka or lengthy period of residence overseas imputed him with any such links. Further, the IAA noted that DFAT and the UNHCR did not indicate, in their recent reporting, that Tamils are at risk of harm in Sri Lanka purely on account of their race (at [43]).
Finally, the IAA noted that it had found that there was not a real chance that the applicant faces harm in Sri Lanka from paramilitary forces or Sri Lankan authorities, including the CID, on the basis of his imputed wealth from working overseas, being imputed with LTTE links, due to his Tamil race, or as a failed asylum seeker. The IAA stressed in this regard that the Full Court of the Federal Court had held (in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 3 (“SZQRB”)) that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ and, for the same reasons set out above, found that the applicant did not face a real risk of significant harm on return to Sri Lanka (at [43]).
On the basis of the above, the IAA determined that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm. As such, the applicant did not meet the requirements of s 36(2)(aa) of the Act (at [44]).
APPLICATION TO THIS COURT
In his application for judicial review (filed in this Court on 20 April 2017), the applicant provides four grounds of review, as follows (without alteration):
1.The second respondent has not assessed the applicant’s integer claims of being a Tamil from the North of Sri Lanka being perceived with political opinion against the government of Sri Lanka.
2.The second respondent has not assessed the applicant’s claim cumulatively and there by fell into jurisdictional error.
3.The Seconde respondent has not assessed the applicant’s claim of being persecuted for his religion, being a Christian of Roman Catholic faith.
4.The second respondent fell into jurisdictional error by concluding that a detention of the applicant for a short period is not amount to serious harm. The second respondent failed to consider the applicant’s exposure to poor prison condition and did not consider whether the authorities had the necessary intent because they foresaw the consequences of their actions. (The matter is now subject to a special leave application before High Court S272/2016. (Appeal from Full court in SZTAL)
On 25 October 2017, procedural orders were made by Registrar Luxton (of the then Federal Circuit Court of Australia) giving the applicant an opportunity to file an amended application, any supplementary court book and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit by the applicant filed on 20 April 2017, a Court Book numbering 453 pages (marked as Exhibit 2) and written submissions filed on behalf of the Minister on 23 February 2023.
This matter was initially listed for a hearing on 10 March 2023 at 2.00pm (AEDT) / 11.00am (AWST) via video link. The applicant, who was self-represented, appeared via video link and was assisted by an interpreter in the Tamil and English languages. Mr Greg Johnson of counsel appeared via video link on behalf of the Minister. The Court determined that that hearing needed to be adjourned due to interpretation issues caused by digital connectivity issues.
The matter was re-listed for hearing on 21 March 2023 at 3.30pm (AEDT) / 12.30pm (AWST) via video link. The applicant and Mr Johnson both appeared at the rescheduled hearing via video link, as did a Tamil interpreter.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
As is now the practice in this Court, and to assist the applicant, the Court explained to him what this Court can and cannot do. The Court explained that its task is limited to assessing whether the IAA fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the IAA’s decision or grant him the visa that he seeks. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant indicated that he had not studied the material from the Minister and did not understand what mistakes the Tribunal had made. Further, the applicant told the Court that there was “nothing that [he] could say” and that the decision was ultimately in the Court’s hands.
The Court then heard from Mr Johnson (for the Minister) who summarised the Minister’s written submissions in detail. Unfortunately, the applicant chose not comment on or respond to the content of those oral submissions.
CONSIDERATION
The applicant’s grounds of review lack particulars. Unfortunately, his oral submissions did not assist in this regard. As this Court has emphasised previously, while there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]; upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court's preferred approach is to be mindful that, where an applicant is unrepresented and may not have adequate knowledge or the ability to prepare for and understand what is required of them, the Court will read their grounds of review as broadly as possible and, when doing so, remain astute to the possibility of legal error in the IAA’s decision. Any concerns identified will then be scrutinised and raised with the Minister (MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392). The Court is assisted in this regard by the contents of the Minister’s written submissions – noting that, in this context, the Minister stands in the shoes of a model litigant.
Grounds of review
Ground 1
Ground 1 provides:
1.The second respondent has not assessed the applicant’s integer claims of being a Tamil from the North of Sri Lanka being perceived with political opinion against the government of Sri Lanka.
In relation to ground 1, the Minister contends:
9.…the Authority accepted the applicant was a Tamil, and it expressly considered whether he would face harm on return as a Tamil who would be returning to the north: [21] ff. It was not an error, let alone a jurisdictional error, for the Authority to reject that the applicant’s claim that he had a real chance of harm on account of his race. That was a matter for the Authority to assess. The Authority took into account the applicant’s claim, cf Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26.
The Court agrees with the Minister in this regard.
Without assistance from the applicant, the Court reads the applicant’s concern to be that the IAA did not assess the significance of the fact the he is of Tamil ethnicity from the North of Sri Lanka and the fact that those who identify in that way are harmed because they are perceived to be connected to the LTTE (and, as such, are likely to harbour anti-government sentiment).
The IAA clearly assessed the applicant’s claims that he would be harmed on the basis of the fact that he was a Tamil from the North of Sri Lanka who would be perceived as harbouring pro-LTTE political opinions against the government.
This is best evidenced in the IAA’s assessment in this regard, which provides as follows (emphasis added):
15.In a post-interview submission the applicant’s representative states that reliable, objective information demonstrates that the Sri Lankan government continues in its failure to fulfil many of its international human rights obligations. The submission asserts that abductions, arbitrary detention and police mistreatment of detainees remains rife within Sri Lanka. In the vast majority of cases, those abuses are directed at the non-Sinhalese, non-Buddhist minorities, particularly Tamils. Notwithstanding the proclaimed end of the war with the LTTE in 2009, the Sinhalese-dominated central government is still actively and systematically implementing a fear campaign designed to prevent the resurgence of the same form of rebellion that created the LTTE movement. The applicant claims that he will be targeted by the Sri Lankan authorities upon return to Sri Lanka on account of his Tamil ethnicity and presumed support of the LTTE.
16.I do not accept the applicant faces a real chance of harm for this reason. I accept that the applicant originates from an area previously controlled by the LTTE, was displaced from his home area during Sri Lanka’s civil conflict and that he experienced personal upheaval. At the height of its influence, the LTTE controlled and administered around three quarters of what are now the Northern and Eastern provinces of Sri Lanka. As a result, all persons residing in these areas necessarily encountered the organisation and its administration in their daily lives. The applicant, however, was away from Sri Lanka for much of this civil conflict, as he resided and worked in Qatar from 1993 to 2011.
17.The IAA submission argues that the UNHCR 2012 eligibility guidelines for Sri Lanka, which was before the delegate, note that persons in the following categories are at risk of detention, torture and extra-judicial killing:
•Information has been published documenting cases of mistreatment and torture of women and men in detention (police custody or other forms of detention), for reason of their or their family members alleged former links with the LTTE. Killings have been reported which appear to be politically motivated, targeting persons believed to be LTTE sympathisers.
18.There is no evidence before me that the applicant was ever a member or supporter of the LTTE and no credible evidence that he was suspected of being so after he returned to Sri Lanka from Qatar in December 2011. The applicant had no issues passing through immigration controls on entry and departure to Sri Lanka when he vacationed there between 1993 and 2011 and when he returned permanently in December 2011. Despite being harassed by the CID in January 2012, he was not arrested or detained indicating strongly that the CID had no ongoing interest in him and did not consider he had LTTE links. I do not accept that the applicant was of interest to Sri Lankan authorities, including the CID, when he departed the country or that Sri Lankan authorities have visited the applicant's family in the time since his departure.
19.I accept that the applicant may have some scarring to his body. UNHCR and other authoritative sources no longer indicate that individuals with scarring are more prone to adverse treatment upon return to Sri Lanka.
20.For these reasons I consider the applicant does not face a real chance of harm from Sri Lankan authorities, including the CID, on account of any imputed links to the LTTE.
The IAA continues:
21.I accept that the applicant may fear harm on return to Sri Lanka on account of his Tamil race, however for the following reasons, I am not satisfied the applicant will face a real chance of harm on the basis of being a Tamil or a Tamil from Sri Lanka's north.
22.DFAT assesses that Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since Sirisena came to power in 2015.
23.Information before the delegate is that Sri Lanka’s August 2015 parliamentary election was deemed credible by international and domestic observers, with the Tamil National Alliance (TNA), gaining sixteen seats and TNA leader, Rajavaothian Sampanthan appointed opposition leader.
24.DFAT reports that monolingual Tamil speakers, including in the Northern Province, can have difficulty communicating with the police, military and other government authorities but that these practical difficulties are the result of a lack of qualified language teachers, the disruption to civilian life caused by the conflict and the legacy of earlier discriminatory language policies rather than official discrimination. Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the former Rajapaksa government. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity.
25.Information before the delegate is that since taking power in 2015, the Sirisena government has established a new reconciliation taskforce mandated with ‘healing the wounds of mistrust and social and cultural stress generated from extended conflicts between different communities in Sri Lanka’, replaced military governors with civilians governors in the Northern and Eastern Provinces, reduced high security zones, released land formerly held by the military and engaged constructively with the TNA. In addition, some individuals held under the PTA have been released.
26.DFAT has recently confirmed that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. While some cases of monitoring of Tamils continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced.
The IAA’s assessment is based on the country information before it. To the extent that the applicant takes issue with “the choice” of that country information, it is now undisputed that it is a matter for the IAA as to which country information it looks at and the weight placed on that information. As detailed in Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCAFC 10 (at [11]):
…There can be no objection in principle to the tribunal, in that context, relying on country information. The weight that it gives to such information is a matter for the tribunal itself, as part of its fact-finding function. Such information as the tribunal obtains for itself is not restricted to guidance. It may be used to assess the credibility of a claim of a well-founded fear of persecution. The question of the accuracy of the information is one for the tribunal, not for the court. If the court were to make its own assessment of the truth of country information, it would be engaging in merits review, and the court does not have the power to do that.
Further, to the extent that the applicant can be seen to suggest that the IAA’s conclusions in this regard are “unreasonable”, again, the Court disagrees.
As this Court has previously detailed, the principles in relation to legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41], as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Disagreement with the ultimate decision, however strong, does not evidence jurisdictional error: Wu Shan Liang at 272.
Here, the IAA’s findings in relation to the applicant’s ethnicity and any government perception of political bias arising from that ethnicity and his geographical place of residence was entirely reasonable. It cannot be said here that the IAA made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33]. Further, as in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688 (at [56]), it cannot be said here that the IAA’s findings are lacking an independent reasoning process or logical connections or are based on subjective grounds or insecure assumptions: CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [26]-[28].
The IAA assessed and ultimately relied on probative material, resulting in conclusions that were reasonably drawn.
No error arises in relation to ground 1, read broadly.
Ground 2
Ground 2 states:
2.The second respondent has not assessed the applicant’s claim cumulatively and thereby fell into jurisdictional error.
In relation to ground 2, the Minister contends:
10.In the second ground the applicant contends that the Authority fell into error in having failed to consider his claims cumulatively. This ground fails on the facts. The Authority expressly considered the applicant’s claims cumulatively. To the extent the Authority was required to consider the applicant’s claims both singularly and cumulatively (referencing Minister for Immigration v DDK16 [2017] FCAFC 188, [32], it did so. No error is made out.
The Court again agrees with the Minister in this regard noting, in particular, the IAA’s analysis at [36], which provides as follows:
…On the available evidence, I am not satisfied the applicant has any real or perceived connection to the LTTE. I do not accept that the applicant will be imputed with separatist or anti-government dissident beliefs by the authorities because of the manner of his departure from Sri Lanka, his extended residence in a western country, imputed asylum seeking there, either individually or cumulatively. In light of this I find that the applicant does not face a real chance of persecution from Sri Lankan authorities or paramilitary groups either as a failed asylum seeker or as returnee from the west or for any other reason.
No error arises in relation to ground 2.
Ground 3
Ground 3 provides:
3.The Second respondent has not assessed the applicant’s claim of being persecuted for his religion, being a Christian of Roman Catholic faith.
In relation to ground 3, the Minister contends:
11.…. despite the applicant having identified his religion in various forms before the Department (see CB 1, 55,93, 149 [3]), the applicant never claimed or even hinted at a claim, that he feared harm or was at risk of any harm, in connection with his religion. The Authority’s obligation to consider claims is limited to claims that are expressly advanced or which arise “squarely” on the materials: NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263, [58]. As the Full Court there said in relation to a claim that squarely arises:
The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
12.In neither his written claims for protection (CB 149) or in his oral claims as summarised in the Authority’s decision, did the applicant assert, or even suggest, that he was at risk because of his religion. The applicant is here attempting to do that which Gleeson CJ (in dissent on the outcome) opined against in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 [2003] HCA 71, [1]:
…this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.
Again, the Court agrees with the Minister in this regard.
The applicant does identify as a Christian of Roman Catholic faith in materials before the Department (CB 1, 55, 93 and 149 [3]). The Court also notes, in particular, that in his statutory declaration the applicant explains that following an alleged incident with three Karuna Group members, he visited his Catholic priest and then hid in the church seminary for two months.
It cannot be said, however, on the basis of this information that the applicant expressed any fear whatsoever of harm arising from his identification as a Christian of Roman Catholic faith. No such claim is expressly advanced. Nor does it arise squarely on the materials.
No error arises in relation to ground 3.
Ground 4
Ground 4 states:
4.The second respondent fell into jurisdictional error by concluding that a detention of the applicant for a short period is not amount to serious harm. The second respondent failed to consider the applicant’s exposure to poor prison condition and did not consider whether the authorities had the necessary intent because they foresaw the consequences of their actions. (The matter is now subject to a special leave application before High Court S272/2016. (Appeal from Full court in SZTAL)
In relation to ground 4, the Minister contends:
14.In the fourth ground the applicant contends that the Authority erred in concluding that detention for a short time was not serious harm, and that it failed to consider the subjective intent of the authorities, in reliance on the Full Court’s judgment in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. Although it is not clear the applicant appears to challenge both the Authority’s finding at [33] in relation to serious harm, and its finding at [41] in relation to significant harm.
15.Addressing the first issue, it is answered by the highest authority. In Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22 the High Court held that the question of whether a threat to liberty constituted serious harm for the purposes of the Act required a qualitative assessment of the circumstances (including frequency and duration) of the detention: see [45].
16.Addressing the other component of the ground, it is also without merit. The High Court dismissed the appeal in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34. The plurality clarified that in the context of s.36(2A) of the Act and protection visa refusals, the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” incorporate the element of actual subjective intent: [26]-[27] (Kiefel CJ, Nettle and Gordon JJ). There was no error in the Authority’s reasoning at [41]. The ground is not sustainable in light of the case law.
The Court again agrees with the Minister in this regard.
There is no reason to doubt that the IAA’s summary of the applicant’s claims at [7] is correct. The applicant claimed to fear harm on return to Sri Lanka from the Sri Lankan authorities and from Tamil paramilitary groups. The applicant claimed that having departed Sri Lanka illegally and having claimed asylum in Australia would increase his risk of being harmed.
In its refugee assessment, the IAA found the applicant did not face a real chance of harm from the Sri Lankan authorities (at [13], [16], [20], [36]) or from Tamil paramilitary groups (at [14], [36]) or more generally due to being a Tamil from the north of Sri Lanka (at [21]) or a failed asylum seeker (at [36]). No errors arise in this regard.
In its complementary protection assessment at [43], the IAA converted these “real chance” findings into real “risk findings”. For the same reasons that the IAA found the applicant not to face a real chance of harm, the IAA also found that the applicant did not face a real risk of harm on return to Sri Lanka. Applying the principles set out in SZQRB, the IAA has sufficiently addressed the applicant’s claims for the purposes of the complementary protection assessment task it was required to undertake.
Otherwise, the Court considers that the only findings the IAA made in its refugee assessment which required further assessment under the complementary protection legislative framework are in relation to the applicant’s illegal departure from Sri Lanka. The IAA accepted that on his return the applicant may be arrested and charged under the Sri Lankan I & E Act for his illegal departure (at [27], [33]). The IAA accepted that the applicant may be detained for a short period but found this brief period of detention would not amount to “serious harm” (at [33]).
The IAA found that if the applicant were to plead guilty, he would be fined and released, and that if he were to plead not guilty, he would be released on a personal surety. The IAA also found that being required to pay a fine or provide a personal surety did not amount to “serious harm” (either in and of itself or cumulatively with a short period of detention) (at [34]).
In addition, the IAA found that the applicant’s treatment under the I & E Act would, in any event, not amount to persecution as it was a non-discriminatory law of general application (at [35]).
Because the tests for “serious harm” and “significant harm” are different (and persecution has no application when it comes to complementary protection assessment), the IAA was then required to consider whether the treatment which it found would not constitute “serious harm” would nonetheless constitute “significant harm”. The IAA did so at [40]-[42], finding that the treatment the applicant would experience due to his illegal departure (in respect of investigation, brief detention in poor prison conditions and the payment of a fine or surety) would not amount to significant harm. In the course of finding the treatment would not amount to significant harm, the IAA relied, in part, on the absence of an intention to inflict severe pain or suffering or cause extreme humiliation. Reasoning of this sort was since upheld by the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 (subsequent to the IAA’s decision in this case).
The Court also notes that the IAA’s reasoning in relation to the applicant’s illegal departure seems to be analogous to the reasoning upheld by the Full Court in DCP16v Minister for Immigration and Border Protection [2019] FCAFC 91 (noting, in particular, [103]). Further, this is not a matter where there was any finding that the applicant would require a family member to act as a guarantor in order to be released on bail. Rather, the IAA found the applicant would be released on a personal surety: cf ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 and the Full Court’s comments in DCP16 at [100].
No error arises in this regard.
Other
For completeness, the Court notes the IAA’s determination in relation to new information submitted in submissions from the applicant’s representative, as follows:
5.The submission also includes new information in the form of a media article dated 11 June 2016 titled 'British Tamil tortured and detained during Sri Lanka wedding trip.' This new information pre-dates and relates to events that pre-date, the delegate's decision. The applicant's representative did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant's claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.
Lest the applicant have any concerns with the IAA’s approach in relation to s 473DD of the Act, the Court finds as follows.
As this Court previously detailed in BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 81, the requirements of s 473DD are cumulative. That is, an applicant must meet s 473DD(a) and one of the sub criteria in s 473DD(b) before the IAA can consider any “new information”. If the applicant does not meet either one of (a) or (b), the IAA cannot consider the information. This is uncontroversial: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217.
In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (“AUS17”), the High Court was concerned with the construction of s 473DD and the approach the IAA must take in applying s 473DD – that is, what the IAA must do when assessing new information. Relevantly, the majority of the High Court explained:
10. Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12. The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
Having so determined, the High Court found that the IAA in that matter had indeed erred.
In AUS17, the IAA stated as follows in relation to the “new information” the appellant had provided:
I accept the letter of support from [omitted] could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information.
The IAA had considered ss 473DD(b)(i) and 473DD(a) of the Act. However, the IAA had not considered s 473DD(b)(ii) of the Act. Its failure to consider this sub criterion and, if it was found that s 473DD(b)(ii) was met, to then take that positive assessment into account when considering if there were “exceptional circumstances” amounted to jurisdictional error.
In this matter, in relation to the new information provided in the applicant’s submission in the form of a media article, it is clear that the IAA adopted the correct legal approach. The IAA concluded that there was no evidence before it that demonstrated that the article (which, the IAA positively determined, pre-dated the delegate’s decision) was not and could not have been provided to the delegate. Here, the IAA has properly applied s 473DD(b)(i) of the Act.
The IAA then proceeded to determine if the article met the requirements of s 473DD(b)(ii) of the Act and concluded that there was no evidence that explained why the article may be regarded as credible personal information that was not known and, had it been known, may have affected the consideration of the applicant's claims:
Having expressly found that neither criterion in s 473DD(b) of the Act was satisfied, the IAA did not need to consider s 473DD(a) of the Act. As stated by the High Court in AUS17, doing so would have been “redundant”.
The IAA’s approach was entirely consistent with the approach required by AUS17.
No error arises in this regard.
MINISTERIAL INTERVENTION
The Court notes that the current country information in relation to the now deteriorating situation in Sri Lanka paints a very different picture to that which was available to the IAA in 2017 when it handed down its decision in this matter. The Court cannot, however, take what is clearly a changing (and arguably dire) situation into account when assessing whether the IAA fell into error in 2017. This Court’s jurisdiction is limited and, without evidence of jurisdictional error on the part of the IAA, the Court cannot assist the applicant – regardless of the current situation in Sri Lanka. The IAA’s decision can only be assessed on the basis of the material before it at the relevant time and by reference to circumstances as they existed at the relevant time: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177; GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9.
While the Court cannot assist the applicant (as no issue of jurisdictional error arises) the Court nonetheless draws the applicant’s attention to the Minister’s discretionary powers. Where, as here, the IAA has affirmed a decision refusing to grant the applicant a visa because of a failure to meet a mandatory criteria for the grant of that visa, and that decision has been upheld on review, the Minister has broad discretionary powers to assist applicants in situations such as this.
While the Court has no power or ability to compel the Minister to exercise his discretionary powers, the Court notes (for the applicant’s benefit) that the Minister does have broad discretionary powers.
CONCLUSION
The application for judicial review filed by the applicant on 20 April 2017 has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 16 May 2023
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