BTT16 v Minister for Immigration
[2020] FCCA 2134
•5 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTT16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2134 |
| Catchwords: MIGRATION – Temporary Protection visa – decision of the Immigration Assessment Authority – whether the IAA unreasonably failed to extend time to provide information and submissions – whether the IAA made a finding without evidence – jurisdictional error established as findings made without evidence – writs issued. |
| Legislation: Migration Act 1958 (Cth), pts.7, 7AA, div.3, ss.5, 5AAA, 5J, 46A, 473CA, 473CB, 473DA, 473DB, 473DD, 473DE, 473DF, 473GA, 473GB Migration Regulations 1994 (Cth), reg.4.42 |
| Cases cited: BSE17 v Minister for Home Affairs [2018] FCA 1926 Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151 |
| First Applicant: | BTT16 |
| Second Applicant: | BTU16 |
| Third Applicant: | BTV16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 224 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 24 June 2020 |
| Date of Last Submission: | 24 June 2020 |
| Delivered at: | Perth |
| Delivered on: | 5 August 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr H W Glenister |
| Solicitors for the Applicants: | William Gerard Legal Pty Ltd |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 23 May 2019.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicants’ application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 224 of 2019
| BTT16 |
First Applicant
| BTU16 |
Second Applicant
| BTV16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants in this matter are citizens of Sri Lanka. They arrived in Australia as unauthorised maritime arrivals on 6 September 2012 (Court Book (“CB”) 194). The first applicant and the second applicant are husband and wife respectively. The third applicant is their son.
On 25 June 2015, the first respondent (the “Minister”) exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the “Act”) and invited the applicants to apply for a Temporary Protection (subclass 785) visa (the “visa”) (CB 35-41). The applicants were subsequently advised on 8 July 2015 that they could also apply for a Safe Haven Enterprise (subclass 790) visa (CB 42-47).
On 19 August 2015, the applicants applied for the visa (CB 50-168). The first applicant and the second applicant made claims for protection in their own right. Both claimed that they were at risk because of their association to one another. The first applicant’s claims for protection can be summarised as follows (CB 90-97):
a)he is of Tamil ethnicity and this has caused him to be targeted and discriminated against. In 1958, 1977 and 1983, his family’s house and shop were looted and burnt down by the Sinhalese and the government supported these attacks. His house and shop were again burnt down by Muslims in 1987 who were trying to drive Tamils out of Sri Lanka;
b)his father was abducted by armed men in 1986 and the first applicant’s mother had to pay a bribe for his release. In the same year, his friends were loaded into an Army jeep and were taken away and shot dead;
c)in 1990, he was arrested by the Sri Lankan Army and was tortured by the Army who accused him and others of supporting the Liberation Tigers of Tamil Eelam (“LTTE”). He was released after 23 days;
d)he took over the family business in 1996 and he was often visited by armed groups such as the Eelam People’s Democratic Party (“EDPD”) and the Karuna Group. These groups demanded money and threatened to kill the first applicant if he refused to pay. In 2000, armed men demanded money from him. When he refused, he was locked out of his shop and was forced to pay money to re-enter;
e)in 2010, the first applicant was attacked by soldiers, robbed and tied up and left in a bush. Later in that year he was abducted by men driving a white van who demanded money from him;
f)in January 2012, he moved to Batticoloa and opened a restaurant. He was again targeted by armed groups. He suffered beatings and went into hiding for three days. When he returned, his family were threatened;
g)he was coerced by representatives of the LTTE into paying to keep his shop open. As a result of making these payments he was targeted by other groups; and
h)his details were released in the data breach and he left Sri Lanka illegally.
The second applicant’s claims for protection can be summarised as follows (CB 128-137):
a)she is of Tamil ethnicity which she fears will lead to her suffering persecution from the Sri Lankan Government;
b)her previous husband was taken by the Army in 2004 and was beaten and tortured. He was released after three days but never recovered and died in 2005;
c)her mother and younger sister were part of an attack by the Army on a bus of Tamils in 1991. They were the only survivors;
d)she was frequently threatened after her mother died and she did not feel safe;
e)if the first applicant were to be killed it would not be possible for her to survive as a single woman with a young child. Her family cannot support or protect her; and
f)her details were released in the data breach and she left Sri Lanka illegally.
The applicants attended an interview with a Ministerial delegate on 18 November 2015 (CB 176-178). On 2 December 2015, their migration agent forwarded written submissions to the delegate for consideration (CB 180-187).
On 24 May 2016, the delegate refused to grant the applicants the visa (CB 189-238). The applicants’ matter was then referred to the Immigration Assessment Authority (the “IAA”) pursuant to s.473CA of the Act (CB 239-244).
On 18 June 2016, the first applicant sent an email to the IAA referring to four recent incidents where Tamils had been targeted by the Sri Lankan Army (CB 245-247). On 27 June 2016, the first applicant provided a further submission to the IAA explaining why the information in the email dated 18 June 2016 should be considered (CB 253-254).
On 29 June 2016, the first applicant emailed the IAA stating that the current situation in Sri Lanka is not safe for Tamil Christians and that sexual violence against women is a current issue and that women have no rights at the current time (CB 256).
On 1 July 2016, the IAA affirmed the decision not to grant the applicants the visa (CB 259-285).
On 28 February 2019, orders were made in the Federal Court setting aside the IAA’s decision made 1 July 2016 and remitting the matter to the IAA for rehearing (CB 286-288).
On 1 May 2019, the IAA wrote to the applicants inviting them to comment on two pieces of country information it considered might be the reason for affirming the delegate’s decision: first, a report on the Easter Sunday attacks in Sri Lanka; and, second, information that states that “white van abductions” are no longer common. The applicants were provided 14 days to respond (CB 294-320).
The applicants obtained legal representation on 15 May 2019 (CB 321-324). The applicants’ representative requested a further two weeks to provide submissions. That correspondence provided:
…
I request that no decision on their remitted application be made for 2 weeks so that I can write submissions and put material before the IAA.
I note that the last decision did not determine whether the applicants had a claim for protection arising out of their occupational status as small business people and the extortion from armed groups that results. I intend to address this ground as well as the issues arising out of the Easter bombing.
…
On 20 May 2019, the IAA informed the applicants’ representative that the extension of time would not be granted. They advised that a decision could be made on the review “at any time” (CB 330).
On 23 May 2019, the IAA affirmed the decision not to grant the applicants the visa (CB 334-357).
The applicants filed an application for judicial review in this Court on 21 June 2019.
The IAA’s Decision
It is not disputed that the applicants here satisfy the criteria in s.5(1) of the Act for “fast track applicants”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits 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 Minister’s 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”. 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 as follows:
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, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
Here, the IAA’s decision dated 23 May 2019 is 24 pages long and spans 125 paragraphs.
It is not necessary to summarise in detail the entirety of the IAA’s decision. Instead, the Court will extract particular paragraphs that are relevant to the applicants’ grounds of review before this Court.
In relation to ground 1 of the applicants’ judicial review application (discussed in detail below), the critical paragraphs of the IAA’s decision are as follows:
8. On 1 May 2019 the IAA wrote to the applicants pursuant to s 473DE putting adverse information to them, which included a copy of the information about Easter bombings. The applicants had until 15 May 2019 to respond. No response was received.
9. On 15 May 2019 the applicants’ representative sought an extension of time for two weeks to provide submissions and new information. The request did not refer to the invitation to comment on adverse information.
10. On 20 May 2019, the IAA refused the extension of time request because the applicants had already provided submissions and new information in June 2016 and had plenty of opportunity to provide information since the application was remitted by the Federal Court. The IAA noted the practice direction allowed applicants to provide a submission about the delegate’s decision, which was due within 21 days of referral of the decision to the IAA. The due date for that submission was 16 June 2016. The applicants provided submissions and new information on 18, 27 and 29 June 2016, which have been considered below.
11. Further, the case was remitted by the Federal Court on 28 February 2019. The IAA informed the applicants on 2 April 2019 that the case was being reviewed again by the IAA and to act quickly as we aim to complete the review within 6 weeks. Further, the IAA wrote to the applicants on 1 May 2019 inviting them to respond to adverse information about the Easter bombings by 15 May. I note the applicants did not appoint the representative until 15 May, despite being informed on 2 April to act quickly and inform if they intended to appoint a representative. The IAA also noted in its refusal to grant an extension of time that the IAA had not received a response to the invitation to comment on adverse information and that a decision could be made at any time. To date no further information has been received from the applicants or their representative. Further, it has been over 10 weeks since the case was remitted by the Federal Court. I consider the applicants have had plenty of opportunity to provide information and make submissions, and in the circumstances it is not unreasonable to proceed to a decision.
It should further be noted that:
a)at [91]-[94], the IAA did not accept that the applicants would face harm on the basis of their being Tamil business owners in the East; and
b)at [95]-[100], the IAA considered the Easter Sunday bombings and any risk or chance of harm to the applicants as Christians and was not satisfied that they faced any such risk or chance of harm on the basis of the country information that was before the IAA.
In relation to ground 2 (discussed in detail below), it is relevant to summarise the IAA’s consideration of the applicants’ claims in relation to having departed Sri Lanka illegally.
Relevantly, the IAA:
a)accepted that the first applicant and the second applicant had departed Sri Lanka illegally. However, the IAA determined that, as the third applicant was a child under the age of 14, he would not face any penalties under the Immigrants & Emigrants Act (SL) (the “I & E Act”) (at [108]);
b)outlined country information relating to the treatment of returnees that stated that most illegal returnees are the subject of a fine. The IAA did not accept that the applicants would suffer any mistreatment (at [109]-[110]);
c)noted that country information indicated that children are not subject to charges or penalties. The IAA found that if the first applicant and the second applicant pleaded guilty they would be free to go and could pay the fine by instalments. The IAA did not accept that the applicants would not have a family member to vouch for them or that they face a real chance of any harm if required to travel to attend court appearances in the future (at [111]);
d)accepted that if the applicants arrived over the weekend they may be briefly held in an airport holding cell until being brought before a magistrate. However, the IAA determined that the relevant country information had consistently assessed risk of torture or mistreatment to detainees as being low and, when considered with the applicants’ profile, did not accept that the applicants faced a real chance of torture, interrogation or mistreatment upon arrival, during questioning or possible brief detention (at [112]);
e)did not accept that the I & E Act was discriminatory on its face, or discloses discriminatory intent or was implemented in a discriminatory manner. The IAA was not satisfied that any questioning, arrest, detention at the airport and the application of a penalty such as a fine or possible repeated bail appearances for illegal departure amount to systematic and discriminatory conduct as required by s.5J of the Act (at [113]-[114]);
f)found that the first applicant and the second applicant are very likely to be issued a fine and then released. Further, in the event they plead not guilty, they will be released pending a court date and may have to return to court for future appearances. The IAA determined that, if they arrived on a weekend, they may be held in an airport holding cell (over the weekend) while waiting to appear before a magistrate. However, the IAA was not satisfied that there was a real risk that they would be subject to the death penalty, arbitrarily deprived of life or tortured or face other significant harm (at [119]); and
g)was not satisfied that the treatment, travel to court appearances, possible costs and penalties the applicants may face as illegal departees amounts to severe pain or suffering, pain or suffering that is cruel or inhuman, is in the nature of extreme humiliation, or intentionally inflicted or caused. Nor was there was a real risk of the death penalty, being arbitrarily deprived of life or torture (at [120]).
Proceedings in this Court
By an amended application dated 6 May 2020, the applicants raise two grounds of review:
1. The Second Respondent made a jurisdictional error by unreasonably exercising its discretion to refuse the Applicants an extension of time in which to make submissions.
a. The Second Respondent wrote to the Applicants on 2 April 2019 acknowledging the remittal of their applications from the Federal Court. The letter stated ‘act quickly in your dealings with us (as we aim to complete the review within six weeks of the case being remitted to us).’
b. The Second Respondent wrote to the Applicants on 1 May 2019 inviting them to comment on the Easter bombings in Sri Lanka. A deadline of 15 May 2019 for any response was set.
c. On 15 May 2019, a request for an extension of time of 2 weeks was sent to the Second Respondent by email.
d. On 16 May 2019, a request for the Applicants’ protection visa and arrival interviews was sent to the Second Respondent. The Second Respondent provided them the same day.
e. On 20 May 2019, the Second Respondent informed the Applicants that their request for an extension of time was refused.
f. On 23 May 2019, the Second Respondent made its decision.
2. The Second Respondent made a jurisdictional error by making findings which had no basis in the evidence.
Particulars
a. The Second Respondent made explicit findings that the Third Applicant would not be charged with an offence or subject to penalties under the Immigrants and Emigrants Act.
b. The Second Respondent made implicit findings that the Third Applicant would not be questioned or detained.
c. There was no evidence before the Second Respondent capable of supporting these findings.
This matter came on for hearing on 18 May 2020 by videoconference. Mr Glenister appeared for the applicants. Ms Oliver appeared for the Minister. Shortly prior to that hearing, Mr Glenister emailed Chambers a 168 page “Court Book” that he proposed to tender at the hearing. When the hearing commenced, the Court indicated that it did not consider it appropriate to proceed in light of the late provision of a significant number of documents. The matter was adjourned and Mr Glenister and the Minister were granted leave to file submissions in relation to the new material that Mr Glenister was seeking to rely upon.
The matter returned for hearing on 24 June 2020. The hearing again proceeded by videoconference. Mr Glenister appeared for the applicants and Ms Oliver appeared for the Minister. The submissions received from both parties at the hearing were of a very high standard. The Court thanks Mr Glenister and Ms Oliver for their considerable assistance with what proved to be a complex matter.
The materials before the Court are:
a)written submissions filed by the Minister on 30 April 2020 (addressing what was, at that stage, a sole ground of review);
b)the amended application dated 6 May 2020;
c)written submissions filed by the applicant on 6 May 2020;
d)supplementary submissions filed by the Minister on 15 May 2020 addressing ground 2;
e)the Court Book prepared by the Minister (marked as Exhibit 1) numbering 357 pages;
f)the First Tender Bundle filed by the applicant on 18 May 2020 (marked as Exhibit 2);
g)the Second Tender Bundle filed by the applicant on 2 June 2020 (marked as Exhibit 3);
h)supplementary submissions filed by the applicant on 2 June 2020; and
i)further supplementary submissions filed by the Minister on 16 June 2020.
It is uncontroversial that to succeed in this Court, the applicants must demonstrate that the IAA has fallen into jurisdictional error.
Preliminary Issue
Prior to considering the grounds as articulated in the amended application for judicial review, it is necessary to consider a preliminary issue that arises that relates to the invitation that the IAA sent to the applicants on 1 May 2019.
The invitation was in the following terms:
You are invited to comment on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Home Affairs:
• The attached report and summary of the Easter Sunday attacks in Sri Lanka.
This information is relevant to your case because it indicates that Sri Lankan authorities are investigating and have arrested a number of suspects from a Muslim extremist group and a state of emergency and curfew has been imposed and that authorities have not sanctioned or condoned the attacks and are thoroughly investigating and taking precautions to prevent further attacks.
Therefore, I may not be satisfied that you face a real chance of harm on the basis of your religion or conversion or a real risk of significant harm.
•Paragraph 4.7 DFAT May 2018 report which states that DFAT understands that (white van abductions) disappearances are no longer common.
This information is relevant to your case because I may not be satisfied that you face a real chance of harm or a real risk of significant harm.
You are invited to give comments on the above information in writing…
It is apparent from the language used in the letter that the invitation was issued pursuant to s.473DE which provides:
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3)Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b)is non-disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
The information that the IAA was asking the applicants to comment upon was information that post-dated the delegate’s decision – namely:
a)a Department of Foreign Affairs and Trade Country Information Report – Sri Lanka dated 23 May 2018 (the “2018 DFAT Report”) concerning Sri Lanka; and
b)a Wikipedia report relating to the bombings targeting Christians that had occurred in Sri Lanka on Easter Sunday in 2019.
The IAA noted that “exceptional circumstances” existed such that s.473DD was met and the IAA could consider this new information (at [6]-[7]). It gave the applicants particulars about why this information would be a part of the reason for affirming the delegate’s decision.
Despite the IAA’s interpretation of the information before it, the information that the IAA asked the applicants to comment on was in fact “country information” (i.e. it was information not specifically about the referred applicants but, rather, a class of persons of which the referred applicants claimed to be member). Hence, that information falls within the scope of s.473DE(3)(a) of the Act. This means that the IAA was not required to put the information to the applicants for comment.
While the IAA, in effect, exceeded the Act’s limited natural justice requirements by inviting the applicants to comment on this information, this does not amount to jurisdictional error. It does not result in any practical unfairness to the applicants and could not have realistically deprived the applicants of a successful outcome. Rather, it provided them with an additional opportunity to obtain a successful outcome.
Ground 1
For ease of reference, ground 1 provides:
1. The Second Respondent made a jurisdictional error by unreasonably exercising its discretion to refuse the Applicants an extension of time in which to make submissions.
a. The Second Respondent wrote to the Applicants on 2 April 2019 acknowledging the remittal of their applications from the Federal Court. The letter stated ‘act quickly in your dealings with us (as we aim to complete the review within six weeks of the case being remitted to us).’
b. The Second Respondent wrote to the Applicants on 1 May 2019 inviting them to comment on the Easter bombings in Sri Lanka. A deadline of 15 May 2019 for any response was set.
c. On 15 May 2019, a request for an extension of time of 2 weeks was sent to the Second Respondent by email.
d. On 16 May 2019, a request for the Applicants’ protection visa and arrival interviews was sent to the Second Respondent. The Second Respondent provided them the same day.
e. On 20 May 2019, the Second Respondent informed the Applicants that their request for an extension of time was refused.
f. On 23 May 2019, the Second Respondent made its decision.
The applicants state that the IAA acted “unreasonably” by failing to exercise the discretion to extend the time to provide submissions. It was submitted that the statutory context in which the IAA operates did not prevent or impair its ability to accept submissions or require the conclusion that an extension of time for two weeks was “unacceptable”.
For ease of reference, the request made was as follows:
I request that no decision on their remitted application be made for 2 weeks so that I can write submissions and put material before the IAA.
I note that the last decision did not determine whether the applicants had a claim for protection arising out of their occupational status as small business people and the extortion from armed groups that results. I intend to address this ground as well as the issues arising out of the Easter bombing.
What is apparent from this request is that the applicants’ representative was seeking more time to provide submissions generally about the applicants’ review and, by virtue of the reference to the “Easter bombing”, in response to the invitation to comment.
It is convenient to address these issues separately, by asking:
a)whether it was unreasonable not to extend the time to provide submissions generally about the applicants’ review (“Part 1”); and/or,
b)whether it was unreasonable not to extend the time to provide a response to the invitation to comment (“Part 2”).
Mr Glenister, for the applicants, made submissions at hearing which addressed Part 1 and 2 generally.
Mr Glenister referred the Court to the decision in Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 (“SZVFW”). Ms Oliver, for the Minister, in turn, noted that SZVFW concerned a review under pt.7 of the Act and stressed that a review under pt.7AA of the Act is “quite different”.
The applicants’ reliance on SZVFW does not assist them in relation to Part 1 or Part 2. The legislative regime in pt.7AA is, as rightly noted by Ms Oliver, very different to that considered under pt.7. As SZVFW makes clear, the scope, purpose and objects of the statute are the reference point for determining whether any unreasonableness has occurred.
For the reasons which follow, the statutory regime in this matter plays an important part in determining why it was reasonable for the IAA to proceed. Most recently, this has been made clear in ENJ17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1079 at [53]-[56] and [64] (“ENJ17”) where the Court considered a similar issue to that arising in this case.
Every case turns on its own facts and while SZVFW is instructive, it does not, in the specific circumstances of this case, require the Court to find that the IAA acted unreasonably.
Part 1
It is apparent from the extension of time request that the applicants’ representative sought time to provide submissions “generally”. She identified that the previous IAA’s decision did not determine a particular claim and she wished to “address” this in further submissions and material.
The IAA’s reasons for refusing the request for time to provide additional submissions and materials “generally” (i.e., not in relation to the invitation to comment) were made clear in an email response to the applicants’ representative dated 20 May 2019, as follows:
…
We have considered your correspondence of 15 May 2019 requesting additional time to provide submissions and further information and have determined that an extension of time will not be granted in this case.
We have taken into account that the applicant’s case was referred to the IAA on 26 May 2016. Under the Practice Direction for Applicants, Representatives and Authorised Recipients any new information must be given to the IAA within 21 days of the date on which the case was referred to us by the Department.
The Direction also states that any submission on why the delegate’s decision may be wrong should be given within that period. The 21 day period ended on 16 June 2016. We note that the applicant previously provided a submission on 18 June, 27 June and 29 June 2016 that is before the IAA.
…
As the IAA did not receive your response by the due date, it may make a decision on the review without taking any further action to get the comments.
The IAA’s reasons for refusing the request for more time were further particularised in the IAA’s decision itself (at [11]), wherein the IAA noted that:
a)it had informed the applicants to “act quickly” on 2 April 2019 as it aimed to complete the review within 6 weeks;
b)the applicants did not appoint a legal representative until 15 May 2019 (the day the response to the invitation to comment was due) despite being informed on 2 April 2019 to “act quickly” and inform the IAA if they intended to appoint a representative;
c)despite being prompted that the response to the invitation to comment was due on 15 May 2019 and that a decision could be made at any time, no response was received. Rather, as at the date of the decision, no further information had been received from the applicants or their representative – despite them being on notice; and
d)a period of over 10 weeks had elapsed since the case was remitted by the Federal Court. In effect, the applicants had had ample opportunity to provide information and make submissions generally.
Mr Glenister submitted that the IAA’s reasons “evolved” – that is, the reasons provided in the email dated 20 May 2019 were “added to” or “expanded on” in the IAA’s reasons.
While the reasons provided in the IAA’s decision were arguably more particularised than those provided in the correspondence dated 20 May 2019, the substance did not change. Indeed, the IAA referred to its reasons in the correspondence dated 20 May 2019 (at [10]) stating that:
“…the IAA refused the extension of time request because the applicants had already provided submissions and new information in June 2016 and had plenty of opportunity to provide information since the application was remitted by the Federal Court.”
At [11], which appears to be the “evolved reasons” referred to by Mr Glenister, the IAA further states:
…I consider the applicants have had plenty of opportunity to provide information and make submissions.
This statement ties back to what is stated at [10] of the IAA’s decision and what, on a fair reading, is said in the correspondence dated 20 May 2019.
The IAA’s reasons for refusing the extension did not “evolve”. Despite having no obligation to do so, the IAA simply particularised the reasons why it determined that the applicants had had sufficient opportunity to provide submissions and information and why, in those circumstances, it did not propose to delay making its decision.
The applicants plead this as a ground of “unreasonableness”, although it is noted that Mr Glenister submitted at the hearing of this matter that the applicants’ concerns relate to an allegation that they were “denied procedural fairness”.
Notwithstanding that it was unnecessary for the IAA to provide reasons as to why it did not extend the time for the applicants to make submissions (BVD17 v Minister for Immigration & Border Protection [2019] HCA 34 at [16] (“BVD17”)), the IAA here did provide particularised reasons for its decision not to wait for and/or extend time for the provision of any submissions and new information in the decision itself. This indicates, clearly, that the IAA gave proper consideration to whether it should have waited for any submissions or information or should have allowed more time for the applicants’ representative to provide them: Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216 at [45].
When considering whether the IAA acted “unreasonably” by proceeding as it did, the Court must consider the statutory context within which the IAA operates. Relevantly:
a)as per s.473DB(2) of the Act, the IAA can make a decision on the papers without accepting or requesting further information and can make a decision at “any time”;
b)to the extent that the applicants complain that the extension of time was to make submissions and provide materials, while the IAA may ‘accept’ new information, there is no duty to do so and the “new information” must satisfy the requirements of s.473DD. Here, the applicants’ request was generic (i.e. “they sought to provide materials”);
c)the scheme that underlines pt.7AA and s.5AAA of the Act places the onus on the applicants to provide all supporting evidence and information prior to the IAA’s review; and
d)the IAA’s practice direction provided the applicants 21 days within which to provide any submissions or new information following the matter being referred to the IAA. That period ended on 16 June 2016. By virtue of s.473FB(5) of the Act, the IAA is not required to accept any new information or documents if an applicant fails to comply with the direction. Even if the Court was to accept that the 21 days commences upon remittal, the applicants were still outside this timeframe.
It is true that there is nothing in the statutory context that prevented the IAA from waiting for the submissions. It was ultimately a discretionary decision for the IAA. The IAA had the discretion to make the decision at any time after the decision had been referred: the Act, s.473DB(2). That discretion operates within the statutory context identified above – specifically, a statutory context that places the onus on the applicants to have, and assumes the applicants to have, provided their claims and supporting evidence in full, empowers the IAA to make a decision at any time and to do so without requesting or accepting new information (unless certain stringent requirements are met).
In ENJ17, a request for an extension of time to provide submissions was made to the IAA by the appellant’s new representative. That request was made eight days after the appellant had been advised by the IAA that the matter had been remitted and that the appellant should “act quickly”. It was explained that the new representative required “time to gather information”, that the representative only had part-time staff and that the appellant had a history of complex medical issues. The IAA did not extend time and made the decision only 29 days after the matter was remitted to the IAA from the Court.
At ([63]), Justice White stated that many, if not most, reasonable decision-makers would have considered it appropriate to allow the appellant more time to prepare any submission and to obtain any information. However, His Honour did not consider the IAA’s decision to proceed without further submissions to be unreasonable in the “legal sense”.
Justice White made reference to the generic nature of the request, the fact that the appellant and his representative were on notice that the decision could be made at any time, the fact that the case made for additional time was not persuasive, the fact that the IAA could only consider new information in exceptional circumstances and the fact that the practice direction requires new information and submissions to be provided within 21 days of referral (which His Honour considered to be 21 days from remittal).
Similarly, it cannot be said here (keeping in mind the relevant statutory context and the particular circumstances of this case) that the IAA’s decision not to extend time or await further submissions and material was outside of the IAA’s area of decisional freedom. Relevantly:
a)the applicants were advised on 2 April 2019 that the matter had been remitted and that they should “act quickly” as the IAA aimed to complete the review within six weeks;
b)the applicants did not obtain representation (nor provide any indication that they wished to provide a response) until 15 May 2019. Relevantly, this was six weeks after the matter had been remitted;
c)the request was nonspecific. While the request made some reference to what was going to be addressed, the nature of what the information or submissions would include was generic;
d)no reason for the extension was provided. It cannot be said that a compelling or persuasive explanation for an extension of time was advanced; and
e)the statutory regime contemplates quick and efficient reviews (which occur in a restrictive framework as described above).
Further, and contrary to Mr Glenister’s submissions at hearing, it was not necessary for the IAA to refer to or consider the “factors” in favour of granting an extension of time. Exactly what those factors were was not entirely clear. It appears that Mr Glenister is submitting that the IAA approached the issue from the perspective of what was reasonable as opposed to what was required by the Act. Mr Glenister is, in effect, disagreeing with the IAA’s decision not to wait for the applicants to make further submissions.
The IAA’s reasons for not granting an extension of time were clearly articulated and took account of the procedural fairness obligations set out in pt.7AA of the Act. The reasons were entirely reasonable. Again, the IAA provided reasons for its decision not to extend time or wait for further submissions despite the fact that they had no obligation to do so: BVD17 at [16].
The IAA’s reasons for deciding not to wait for submissions or extend time had a logical and intelligible basis derived from both the statutory regime (as discussed at [59] above) and the applicants’ own conduct in the matter since remittal (noting that they failed to “act quickly” – as they had been advised to do). It cannot be said that no reasonable decision-maker would not, or could not, have made the same decision.
In any event, the matter which the applicants’ representative said would be “addressed” in the submissions (i.e., whether the applicants made a claim on the basis of being small business people and the extortion which the applicants may face as a result) was, in fact, addressed by the IAA (at [91]-[94]).
Part 1 does not identify any jurisdictional error.
Part 2
Part 2 concerns the IAA’s refusal to extend the time for the applicants to provide a response to the invitation to comment.
In issuing the invitation, the IAA was obliged to comply with the obligation attached to a s.473DE invitation.
In the context of an invitation under s.473DE, s.473DF is relevant. It provides:
(1) This section applies if a referred applicant is:
…
(b) invited under section 473DE to give comments on new information in writing or at an interview.
(2) The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.
…
(4) If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a) without taking any further action to get the information or the referred applicant’s comments on the information; or
(b) without taking any further action to allow or enable the referred applicant to take part in a further interview.
Regulation 4.42 of the Migration Regulations 1994 (Cth) states that:
For subsection 473DF(2) of the Act, the period for giving information or comments in response to an invitation given by the Immigration Assessment Authority to a referred applicant is as follows:
…
(b) in any other case:
…
(iii) for a written invitation to give information or comments in writing or at an interview–14 days after the referred applicant is notified of the invitation.
Pursuant to s 473DF(4) of the Act, the decision as to whether to grant an extension of time to reply to an invitation purportedly issued under s.473DE is discretionary. The issue here is whether in the circumstances of this case it was reasonable for the IAA to proceed under s.473DE(4)(a) and not take any further steps to await further information.
For reasons similar to those in Part 1 above, the Court does not consider it to have been unreasonable for the IAA to not extend the time to provide information pursuant to s.473DE of the Act. In particular, the Court notes that:
a)the IAA was expressly empowered to proceed without taking any further steps;
b)Parliament has specifically prescribed that a period of 14 days is the time provided to an applicant to provide a response. Contextually, this means that 14 days is reasonable and that an extension should not be provided as a matter of course;
c)there was no explanation as to why the applicants had not provided a response within the relevant period (such as whether they were at a disadvantage). Nor was there an explanation as to what caused the delay in obtaining representation in circumstances where the applicants had been aware since 2 April 2019 that the IAA was reviewing their matter and that the IAA sought to complete the review within 6 weeks;
d)the applicants were on notice (as was their representative) that if comments were not provided by 15 May 2019 the IAA could make a decision on the review without taking any further action to obtain information. The applicants’ representative was reminded on 20 May 2019 that a decision could be made at any time;
e)the request for more time was generic. It did not indicate what information was going to be provided such that the IAA could have formed the view that it was sufficiently important or integral to the review that it should wait/extend time; and
f)the applicants, in effect, had no right to comment on the information. The invitation was issued in error and the opportunity provided to the applicants to comment was one that others in a similar situation would not be given.
Mr Glenister submits that it was unreasonable or illogical for the IAA to focus on the fact that it had been 10 weeks since the matter was remitted from the Federal Court in circumstances where, counsel submits, it had been only 22 days since the invitation to comment had been sent and 32 days since the Easter Sunday attacks.
The IAA did not focus on how long it had been since the matter had been remitted. As outlined above, the IAA referred to a number of matters which it considered sufficient for it to proceed without delay. While the Court accepts that it had been 32 days since the Easter Sunday attacks and only 22 days since the invitation to comment had been issued, it must not be overlooked that it was still seven days after the statutory time limit to respond had passed. As such, it was open to the IAA to proceed to make its decision without waiting.
While Mr Glenister did make reference to SZVFW and highlighted that, unlike in SZVFW – where the applicants showed no engagement with the Tribunal – the applicants in this matter had engaged with the IAA (by providing further submissions previously), the Court does not consider that this rendered it unreasonable for the IAA to proceed as it did. SZVFW occurred within a very different statutory regime. Here, the statutory scheme strictly limits any opportunity applicants have to engage with the IAA’s review process. Hence, simply demonstrating a willingness to engage is not enough. More is required, and a “generic” request is insufficient.
In these circumstances, it was not unreasonable for the IAA to determine the review without waiting for further submissions and materials that potentially responded to the invitation to comment.
Part 2 also fails to identify jurisdictional error.
Ground 1 is, accordingly, dismissed.
Ground 2
For ease of reference, ground 2 provides:
2. The Second Respondent made a jurisdictional error by making findings which had no basis in the evidence.
Particulars
a. The Second Respondent made explicit findings that the Third Applicant would not be charged with an offence or subject to penalties under the Immigrants and Emigrants Act.
b. The Second Respondent made implicit findings that the Third Applicant would not be questioned or detained.
c. There was no evidence before the Second Respondent capable of supporting these findings.
In relation to ground 2, the applicants submit that the IAA:
a)expressly found that the third applicant would not be charged under the I & E Act because he was a child under the age of 14; and
b)impliedly found that the third applicant would not be questioned and detained,
and there was no evidence to support these findings. It is noted that the third applicant was 14 at the time of the IAA’s decision.
In supplementary submissions, the applicants submit that:
a)when making the impugned findings, the IAA was referring to the 2018 DFAT Report;
b)there is no evidence in the IAA’s reasons that it considered any country information outside of what is before the Court. Of the information that is before the Court, only Exhibit 2 contains information about the treatment of returnees who left Sri Lanka in contravention of the I & E Act. There is no evidence in Exhibit 3 upon which the IAA could have based the impugned findings;
c)the IAA indicated that it had specifically obtained the 2018 DFAT Report as it contained updated information on returnees;
d)an interrogation of Exhibit 2 reveals that the advice about the treatment of returnees who left Sri Lanka in contravention of the I & E Act has changed over time;
e)the 2018 DFAT Report contained two significant changes from the previous reports: firstly, it contained information about the treatment of children over and under 14; and, secondly, it changed the advice about the treatment of those charged – namely, that they would now be held in an airport holding cell rather than a prison. These changes are reflected and referred to in the IAA’s decision at [108] and [112];
f)it is inherently unlikely that there would be information before the IAA which must have pre-dated the delegate’s decision in May 2016 which supported the impugned findings but was not known to DFAT until sometime after January 2017;
g)with immaterial exceptions, the previous decision-makers based their findings on this claim on reports or information that is before the Court and this material does not contain evidence relevant to the impugned findings. Neither of these decision-makers referred to any differential treatment of children (or children over and under 14) with respect to charges under the I & E Act. Both of these decision-makers contemplated that the applicants could be held in prison rather than an airport holding cell;
h)the IAA also specifically cited DFAT as a source of country information in the course of giving its reasons on the claim the subject of the impugned findings; and
i)the Court can safely, on the balance of probabilities, infer that the IAA was referring to the 2018 DFAT Report in making the impugned findings.
The Minister, in turn, submits as follows in relation to ground 2:
a)the facts of this case are distinguishable from the main case the applicants rely upon (that being, DNQ18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 72 (“DNQ18”)). Unlike in DNQ18, the applicants here did not advance any claim that the third applicant would suffer harm as a result of being charged with an offence and subject to penalties under the I & E Act. Rather, any fear of harm on the basis of the applicants having departed illegally was inextricably linked to the claim to be imputed with LTTE links;
b)there is no evidence before the Court to conclude that there was no evidence to support the finding that the third applicant would not be charged under the I & E Act because he was a child under the age of 14; and
c)by virtue of other findings made by the IAA, namely that the I & E Act provisions are not discriminatory and their application does not amount to systematic and discriminatory conduct and that the application of the laws would not amount to significant harm, there is no basis to conclude that any error could realistically have deprived the applicants of a successful outcome.
In further supplementary submissions, the Minister submits:
a)the applicants in the present case did not advance a claim to fear harm by virtue of the application of the provisions of the I & E Act to them. Instead, any claim to fear harm upon return to Sri Lanka by virtue of the family having departed illegally was inextricably linked to the claim to fear harm due to imputed LTTE links;
b)contrary to the submission made by the applicants, Exhibit 3 does not contain all of the country information referenced by the delegate in considering the treatment of returnees and one of the country information reports referenced by the first IAA in considering the treatment of returnees is also not provided;
c)little turns on this because, even if the country information relied upon by the IAA in relation to the impugned findings was limited to the 2018 DFAT Report, that report provided an evidentiary foundation for the impugned findings, such that the ground of review is without merit; and
d)further, the impugned findings in the present case were not critical or material to the IAA’s satisfaction that the applicants were not persons to whom Australia owed protection obligations.
DNQ18
The “error” the applicants focus on is said to be similar to an error identified in DNQ18. It is thus useful to consider DNQ18 in some detail.
In DNQ18, the Full Court noted that the claim which was at the “forefront” of the appeal was articulated as follows (at [6]):
We left Sri Lanka illegally, without permission, this is against the law, if we return to Sri Lanka the police will take my family and I into custody and they will charge us for breaking the law. I have heard that people who went back after leaving the country illegally have been physically harmed and been taken to the custody.
The delegate’s finding in relation to the consequences of the illegal departure from Sri Lanka was as follows (at [14]):
On the basis of the country information discussed above, it has been found that the treatment the applicants could face on return to Sri Lanka is being detained whilst waiting to be heard by a Magistrate and/or receiving a monetary fine. This finding was based on the applicants’ personal circumstances; namely being passengers on a people smuggling venture, in addition to not being of current interest to the authorities and not having declared any prior criminal convictions. Given the applicants would only be detained for a short period of time if at all, and noting the most likely punishment is to pay a fine, I am satisfied that the claimed harm does not constitute significant harm as defined in section 36(2A) of the Act.
In coming to this finding I have also considered that Applicants 1 and 2 have no particular personal vulnerabilities that would result in a short detention on return which would constitute cruel, inhuman or degrading treatment or punishment. I therefore find that the harm the applicants may incur for departing Sri Lanka illegally is not significant harm.
In DNQ18 (at [15]), the Full Court noted that while the delegate gave no express consideration to what would happen to the three appellant children, it was apparent that the delegate “plainly allowed for the likelihood the appellants would be detained without differentiating between the adults and the children”.
In DNQ18, the IAA stated that “[c]ountry information does not indicate that children are prosecuted”. At [47], the Full Federal Court commented that such a statement was:
…expressed in the negative, and at a high level of generality; ascertaining its meaning is somewhat problematic. It could be understood as nothing more than a finding about what the country information does not disclose. However, in context (see below), the better view is that it is a finding about what will not happen to returned asylum seekers who are children, rather than a finding about what will happen. We infer that by its use of the term “prosecute”, the Authority intended to refer to the instigation of a criminal process against a child, for the commission of an offence.
In DNQ18, the country information the IAA relied on (being the Department of Foreign Affairs and Trade Report Country Information Report Sri Lanka dated 24 January 2017 (the “2017 DFAT Report”)) indicated that “children are never subject to bail or fines.” The Full Federal Court held that this statement did not provide a basis for the IAA to find that “country information does not indicate that children are prosecuted.” The Full Court continued:
50. The DFAT report appears to be describing a process which occurs in relation to each returning individual asylum seeker. It does not suggest that the information supplied (for example, in the first paragraph extracted above) is limited to adults. The language used would suggest it may not be. DFAT’s advice in the key sentence is limited to what judicial orders and punishments will not be faced by children. That is all it deals with. In context, it appears in a paragraph dealing with something of a grab-bag of information about a number of topics.
51. Taking the information which is supplied by DFAT in the section we have extracted above, and upon which the Authority relied, the statement in the final paragraph extracted above says nothing about:
(a) whether children may be subjected to charges for offences under the Sri Lankan Immigrants and Emigrants Act, irrespective of whether they are liable to certain punishments if found guilty;
(b) the age of criminal responsibility;
(c) whether children may also be detained at the airport;
(d) whether children may be transported with their parents (or separately) to be brought before a Magistrate; nor
(e) whether children may also be taken to prison, if they and the adults accompanying them cannot be brought immediately before a Magistrate or if they or the adults accompanying them are charged and remanded until the adults can post bail.
The Full Court noted that the passage in the 2017 DFAT Report was not probative of the finding made by the IAA as it had a much more limited scope and was ambiguous. It was said that the IAA’s finding “reached well beyond the material before it and, in doing so, made a finding for which there was no evidence”: DNQ18 at [53].
In DNQ18, the Minister also raised a materiality argument, which the Full Court addressed as follows:
…
57. The assessment of what might befall a child who may be detained (and/or charged) on return to Sri Lanka is a qualitatively different exercise, even if assessed against the same country information used by the Authority to assess the claims of the first and second appellants. It was not an inquiry that could, on the evidence before this Court, have been resolved by resort to the 2017 DFAT report. That report did not contain sufficient information to determine that matter, at least not on the extracts identified to the Court.
Consideration in relation to ground 2
In this matter, the impugned findings are found in [108] and [111] in the IAA’s decision, as follows:
108. I accept the applicants departed Sri Lanka by boat without authority and may have breached the IAEA. However, as applicant 3 was a child under the age of 14, he will not face any penalties under the IAEA Act. I accept that applicants 1 and 2 have committed an offence and will face questioning at the airport and may be fined and charged.
…
111. Country information indicates that children are not subject to such charges or penalties. The applicants (1 and 2) have not informed how they would plead. I find if they plead guilty they will be free to go and can pay the fine by instalments. The applicants have not presented any credible evidence that leads me to conclude they would not be granted bail. In any event, I do not accept the applicants would not have a family member to vouch for them in the remote chance it was required. I do not accept they face a real chance any harm if required to travel to attend court appearances in the future. Further and in any event, I do not accept that this constitutes serious harm.
The applicants argue that the IAA:
a)explicitly found that the third applicant would not be charged with an offence or subject to penalties under the I & E Act; and
b)implicitly found that the third applicant would not be questioned or detained.
The Minister, in turn, argued that there was never a claim made that the third applicant would suffer harm as a result of the I & E Act. Alternatively, the Minister stated that this matter is distinguishable from DNQ18 and that any error was not material.
Was there a claim?
The Minister argues that, in this matter (unlike in DNQ18), there was no claim that the third applicant would suffer harm as a result of being charged or detained under the I & E Act.
In DNQ18, the appellants had made an express claim in the following terms:
We left Sri Lanka illegally, without permission, this is against the law, if we return to Sri Lanka the police will take my family and I into custody and they will charge us for breaking the law. I have heard that people who went back after leaving the country illegally have been physically harmed and been taken to the custody.
The Minster says that no such claim was ever advanced by the applicants here in relation to the third applicant. Rather, the claim to fear harm from departing Sri Lanka illegally was, it was said, inextricably linked to the fear of harm on the basis of the applicants’ alleged imputed LTTE links. The Minister submitted that there was no distinct claim advanced by the applicants in this matter to fear harm on the basis of the application of the I & E Act. On that basis, it is argued, there was no jurisdictional error in the IAA’s assessment as it was not, in any event, a claim advanced.
When the Court asked Ms Oliver for the Minister why the IAA would have addressed the claim if it was not “actually advanced”, Ms Oliver responded that what occurs to an applicant on return and in relation to the application of the I & E Act are “common” claims raised by those seeking protection from Sri Lanka and this is why the IAA addressed it.
The Court does not accept the Minister’s submissions in this regard. It appears to suggest that if the IAA addresses an issue or claim which is not raised by an applicant per se and it makes a jurisdictional error in the course of doing so, then this does not amount to an “error”. In effect, what is suggested is that if the IAA has considered something to be appropriate and relevant in the course of its review but the applicant has not advanced it (for example, it is an implicit claim arising from the materials), then the IAA can simply dispose of it however it likes and, even if a mistake is made in that regard, the applicant has no recourse to challenge the finding and any error made.
With respect, this argument strikes the Court as rather “odd”. If that was the legislative intent (and the Court does not believe that it was), then the legislation should have been drafted to allow for mistakes without recourse.
In any event, the Court does not consider that the claim was not raised. The fact that the IAA did not mention the claim expressly in the “summary of claims” (at [26]-[28]) does not support the Minister’s submission that the claim was not raised.
The IAA (at [2]) summarised the “essence” of the applicants’ claims as revolving around:
…their Tamil ethnicity, imputed support for the LTTE, and as failed asylum seekers, subject to the immigration data breach, who departed illegally.
While the applicants did not expressly state that they feared that the third applicant would be harmed (or charged or detained) on the basis of the application of the I & E Act, this concern is implicit in the materials before the IAA. Indeed, the Minister recognises this (at [12] of the written submissions dated 14 May 2020) wherein it is submitted:
In relation to the Third Applicant, the delegate considered that the following claim arose (explicitly or impliedly) from the Second Applicant’s claims (CB 198, [38]): “Applicant three has broken the law by departing Sri Lanka illegally”.
The Minister submits that the claim to fear harm by virtue of departing Sri Lanka illegally was inextricably linked to the claims regarding imputed LTTE links. The Court does not agree. The fact that the applicants departed illegally was advanced on its own merit. Any subsequent reference to the LTTE was made in the context of a heightened interest or risk on return (i.e., that the imputed LTTE links would increase the applicants’ chances of harm under the I & E Act). However, the reference to a “heightened” risk did not diminish the fact that there was a risk or chance arising from the I & E Act in and of itself.
The delegate, the previous IAA and the IAA all considered the claim to fear harm as illegal departees separately and distinctly from the claims regarding the applicants’ imputed LTTE links. For example, the delegate found that the applicants were members of a “particular social group” of “failed asylum seekers who departed Sri Lanka illegally” (CB 213). The previous IAA considered the applicants’ risk or chance of harm under the I & E Act. There is consistent reference in the material to the applicants having departed Sri Lanka illegally and having “broken Sri Lankan law” (CB 134-135 and 197-198). The claim was not “inextricably linked” to the fear of harm due to the LTTE connections.
The IAA identified that there was a claim made concerning the applicants’ illegal departure and the application of the I & E Act. The IAA then addressed the claim of whether the applicants would be at risk of harm for reason of their having departed Sri Lanka illegally. The Minister’s submissions that no such claim arose (such that any error associated with it could not be jurisdictional) or, alternatively, that the claim was inextricably linked to the applicants’ alleged LTTE connections (which were rejected, such that any claim in relation to illegal departure was also rejected) is not accepted. There was a distinct claim that the applicants would face harm as a result of their illegal departure. This needed to be addressed – and addressed without error.
The Impugned Findings
The argument in this Court is, in essence, the same as that advanced in DNQ18. The applicants here argue that there was no basis in the country information for the IAA to find and state (expressly) that “as applicant 3 was a child under the age of 14, he will not face any penalties under the IAEA Act” and “country information indicates that children are not subject to such charges or penalties”. In making these two statements the applicants suggest that the IAA also implicitly found that the third applicant would not be questioned or detained upon arrival in Sri Lanka.
The Court accepts that where there is even “a skerrick of evidence to support”, an allegation of jurisdictional error on the basis of “no evidence” cannot be sustained: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, where the information or material reasonably permits a decision-maker to infer a particular matter, a “no evidence” ground will also fail: BSE17 v Minister for Home Affairs [2018] FCA 1926 at [33].
The applicants rely heavily on DNQ18 in this regard. It is thus useful to compare the findings in that case with those made by the IAA here.
In DNQ18, the IAA stated:
The applicant husband and applicant wife may be charged under the I & E Act because they departed illegally. Country information does not indicate that children are prosecuted. DFAT understands that in most cases individuals will be arrested at the airport, they will be fingerprinted and photographed; those arrested can remain up to 24 hours in custody at the IDC office at the airport. Returnees are then transported by police to the closest Magistrates Court where a magistrate will make a determination. If a magistrate is not available a returnee might be held on remain at a nearby prison for a few days.
What the 2017 DFAT Report cited in DNQ18 actually provided was:
Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. At the earliest available opportunity after investigations are completed, the individual would be transported by police to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The Magistrate then makes a determination as to the next steps for each individual. Those who have been arrested can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. 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.
According to the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, no returnee 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 departing illegally in the future. Fine amounts vary on a case-by-case basis (but can be up to 200,000 Sri Lankan rupees / AUD 2,000) and can be paid by instalment. If a person pleads guilty, they will be fined (which they can pay by instalment) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor. Where a guarantor is required, returnees may sometimes need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a people smuggling venture. There is no general requirement to report to police or police stations between hearings.
The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT has been advised by the Sri Lankan Government that no returnee from Australia to Sri Lanka has been charged under the PTA. While credible, DFAT cannot verify this claim.
The Full Court in DNQ18 found that the mere statement that “[c]hildren are never subject to bail or fines” did not provide a probative basis for the IAA’s conclusion that “[c]ountry information does not indicate that children are prosecuted”.
In this matter, the IAA states:
108. I accept the applicants departed Sri Lanka by boat without authority and may have breached the IAEA. However, as applicant 3 was a child under the age of 14, he will not face any penalties under the IAEA Act. I accept that applicants 1 and 2 have committed and offence and will face questioning at the airport and may be fined and charged.
…
111. Country information indicates that children are not subject to such charges or penalties. The applicants (1 and 2) have not informed how they would plead. I find if they plead guilty they will be free to go and can pay the fine by instalments. The applicants have not presented any credible evidence that leads me to conclude they would not be granted bail. In any event, I do not accept the applicants would not have a family member to vouch for them in the remote chance it was required. I do not accept they face a real chance any harm if required to travel to attend court appearances in the future. Further and in any event, I do not accept that this constitutes serious harm.
Here, the 2018 DFAT Report (which was before the IAA) states:
5.30 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.
5.31 The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.
5.32 Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.
5.33 Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.
5.34 The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.
Unlike in DNQ18, in this matter the Minister does not concede that the IAA based the express finding on the 2018 DFAT Report. The Minister submits that there were other pieces of information that were before the IAA (not all of which are before this Court) which may have supported the finding.
Of the materials that are before the Court (being those in Exhibit 2 and Exhibit 3), the only reasonable basis for the impugned findings is the 2018 DFAT Report. The fact that the IAA refers to the specific age of “14” can, on what is before the Court, only be derived from the 2018 DFAT Report. This supports the view that the IAA relied on this particular information when making an express finding that, as the third applicant was a child under the age of 14, he will not face any penalties under the I & E Act.
The Court so finds.
The Minister submits that, in any event, the emphasised passage in the 2018 DFAT Report was sufficient to provide an evidentiary foundation for the IAA’s finding at [108] and [111].
The Court disagrees.
To compare, the 2018 DFAT Report which was relied upon in this matter states that “Children over 14 can be charged; no bail or fines are imposed for children under 14”. In DNQ18, the 2017 DFAT Report stated that “Children are never subject to bail or fines”.
The only other difference between the 2018 DFAT Report (considered in this matter) and the 2017 DFAT Report (considered in DNQ18) was that the 2018 DFAT Report indicated that the applicants would be held in an airport holding cell upon return. This difference is not relevant to the disposition of this matter and need not be considered further.
Here, the Court considers the statement in the 2018 DFAT Report that “Children over 14 can be charged; no bail or fines are imposed for children under 14” to be entirely ambiguous (as was also the case in DNQ18).
The statement states that “children over 14 can be charged”. This implies that those “under 14 cannot be charged” (but does not state so definitively). It then states that “no bail or fines are imposed for children under 14”. This suggests that children can be charged but are not subject to fines or bail.
As was the case in DNQ18 (at [50]), the statement appears in the context of a “grab bag” of information – for example, immediately after the 2018 DFAT Report’s statement that “children over 14 can be charged; no bail or fines are imposed for children under 14” is a sentence that refers to charges under the Prevention of Terrorism Act. These two matters are entirely unrelated but appear in the same paragraph.
Further, at [5.31] the 2018 DFAT Report addresses who may be charged under the I & E Act. The reference states that “all passengers” (with no differentiation about age) of people smuggling ventures are directed to be charged and appear in Court.
Even accepting that the country information must not be read with an eye attuned to error, the Court is not satisfied that the 2018 DFAT Report provided a basis for the IAA to find that the third applicant (a child) will not face any penalties under the I & E Act.
Even if the 2018 DFAT Report arguably (and rather ambiguously) provided a basis to find that children would not be charged for offences under the I & E Act and would not face penalties, the 2018 DFAT Report did not address:
a)on what basis it would be determined whether children would be charged on return (i.e., whether the reference to children under 14 not being charged or facing penalties was a reference to the age of the returnee at the time of their illegal departure or when they are returned to Sri Lanka). While the IAA inferred that the third applicant would not face penalties because he was under the age of 14 at the time of his illegal departure, the Court does not consider this to be an inference that can be drawn from the brief statement provided in the 2018 DFAT Report;
b)whether children may also be detained at the airport (for reason of determining their age or because of who they were travelling with) notwithstanding the fact that they could not be charged or penalised if they were under a certain age; and
c)whether children may also be taken to an airport holding cell if the adults accompanying them are charged and remanded until the adults can post bail.
Although the 2018 DFAT Report in this matter differed from that scrutinised in DNQ18, the same issues and concerns arise here. The IAA’s conclusion that the third applicant (a child) would not be charged, penalised or detained was not supported by the materials before it. These were findings made without evidence.
Materiality
The Minister also raised a “materiality” argument. Specifically, it was argued that the IAA’s findings that the third applicant would not be charged, detained or penalised were not jurisdictional facts and, further, the IAA’s findings that any charges or penalties (including possible detention) that might arise did not meet the definition of serious or significant harm in any event.
The Court does not agree.
These findings were matters that clearly went to the IAA’s state of satisfaction as to whether the third applicant met the criteria to be granted the visa. As was stated in DNQ18, having made a factual finding unsupported by any evidence (i.e., that the third applicant would not be charged, penalised or detained), the IAA assumed that its finding that “children are not subject to such charges or penalties” meant that no further inquiry about what would happen to the third applicant on return was necessary. This was erroneous and legally unacceptable.
Further, the third applicant was a minor (and would be on return) and consideration of what constitutes serious or significant harm in these circumstances requires a qualitatively different exercise. It was not sufficient for the IAA’s findings that the first and second applicant would not suffer significant harm to subsume, or extend to, the third applicant. More was needed.
This significant error was material in the sense that it could have realistically deprived the applicants’ of a successful outcome. Had the IAA scrutinised the information it needed to determine what actually would or would not happen to the third applicant on return, it may well have reached a different conclusion.
Conclusion
The IAA’s finding that the third applicant would not be detained on return or, alternatively, that the third applicant would not suffer serious or significant harm upon return, was a finding made without evidence. This amounts to a jurisdictional error of the sort this Court is asked to address.
The application is to be allowed. The matter is to be remitted to the IAA for reconsideration according to law.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 August 2020
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