BTT16 v Minister for Immigration

[2018] FCCA 1125

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTT16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1125

Catchwords:
MIGRATION – Judicial review – decision of Immigration Assessment Authority – refusal of a Temporary Protection Visa – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 5H(1), 36(2), 46A(2), 473CA, 476(1)

Cases cited:
AZAEY v Minister For Immigration and Border Protection (2015) 238 FCR 341; [2015] FCAFC 193
Craig v State of South Australia (1995) 184 CLR 163; (1995) 39 ALD 193; (1995) 131 ALR 595; (1995) 69 ALJR 873; (1995) 82 A Crim R 359; [1995] HCA 58
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; (2010) 113 ALD 1; (2010) 262 ALR 569; (2010) 84 ALJR 154; (2010) 190 IR 437; [2010] HCA 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18
Minister for Immigration and Citizenship v SZRKT and Another (2013) 212 FCR 99; (2013) 136 ALD 41; (2013) 302 ALR 572; [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6
Minister for Immigration v Singh (2014) 231 FCR 437; (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1
Minister for Immigration v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; (2005) 83 ALD 545; (2005) 215 ALR 162; (2005) 79 ALJR 1009; [2005] HCA 24
Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1; (2013) 61 AAR 531; [2013] FCAFC 141
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

First Applicant: BTT16

Second Applicant: BTU16

Third Applicant: BTV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 307 of 2016

Judgment of: Judge Kendall

Hearing date: 20 March 2018

Date of Last Submission: 20 March 2018

Delivered at: Perth

Delivered on: 20 March 2018

REPRESENTATION

Applicant: BTT16 in person

Counsel for the First Respondent: Mr Macliver

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The first applicant’s oral application at the hearing for an adjournment of the originating application is dismissed.

2. The applicants’ originating application filed 14 July 2016 is dismissed.

3. The first applicant and second applicant pay the first respondent’s costs fixed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 307 of 2016

BTT16

First Applicant

BTU16

Second Applicant

BTV16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed in this Court on 14 July 2016, the three applicants (a husband, wife and son) seek judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 1 July 2016. 

2. The IAA affirmed a decision of a delegate of the Minister for Immigration and Border Protection made on 24 May 2016. That decision refused the applicants' application for temporary protection visas made on 2 June 2015. The delegate refused the visas on the basis that the applicants would not face persecution or significant harm for any of the reasons claimed if they returned to Sri Lanka. The delegate found that the applicants were not persons in respect of whom Australia had protection obligations for the purposes of s.36(2) of the Migration Act 1958 (the “Act”).

3. The applicants now seek judicial review of the IAA’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show jurisdictional error on the part of the IAA.

4. In their application to this Court, the applicants rely on one ground:

   1. We request a jurisdictional review of the IAA decision as the (sic.) all the available information was not considered, or misinterpreted and not used in determining the Applicants' circumstances as a whole.

5. On 17 August 2016 this Court made orders programming the matter to a final hearing.  Those orders required the applicants to file and serve any amended application giving complete particulars of each ground of review, and also any affidavit containing any additional evidence.  This was to be done by 5 October 2016.  Written submissions and a list of authorities were to be filed 42 days prior to the scheduled hearing date.

6. The applicants did not file and serve any amended application, any further affidavits (other than one which provided the decision of the IAA) or any written submissions. 

7. This means that the Court was not provided with any written details of what information the applicants believe was not considered, or might have been misinterpreted by the IAA.

8. The first applicant, representing and speaking on behalf of his wife and son at the hearing before the Court, was asked to outline to the Court in his own words what he thought the IAA “did wrong”.  Unfortunately, no detailed response was provided other than a response which arguably only goes to merits review -- something which this Court cannot undertake.  This is discussed further below.

9. The Court had before it a Court Book (“CB”) numbering 539 pages.  The Court also had extensive written submissions from the Minister dated 27 February 2018.  The First Applicant, speaking for the Second and Third Applicants, spoke through an interpreter in the Tamil language.  The applicants were not legally represented before this Court.

Synopsis

1. For the reasons that follow, this application for judicial review fails and is, accordingly, dismissed. 

Background

1. The Court adopts the factual and procedural background outlined at paragraphs 1 to 20 in the Minister’s written submissions dated 27 February 2018.  This background information, which was not disputed, provides, relevantly, as follows.

2. The applicants are citizens of Sri Lanka who arrived in Australia by sea at Christmas Island on 6 September 2012: CB at 119, 126, 164, 171, 210, 217 and 274.

3. As a result of having arrived in Australia by sea at Christmas Island without any visas, the applicants became unauthorised maritime arrivals within the meaning of s 5AA of the Act.

4. By letters dated 25 June 2015 and 8 July 2015 the Department advised the third applicant that the Minister had exercised his power under s 46A(2) of the Act to allow him to make an application for a Subclass 785 Temporary Protection visa or a Subclass 790 Safe Haven Enterprise visa. Similar advice was provided to the first and second applicants: CB at 90-96 and 100-105.

5. On 25 June 2014 the applicants were granted Bridging Class WE Subclass 050 visas. Further Bridging E visas were granted to the applicants on 27 May 2015: CB at 275.

6. On 19 August 2015 the first applicant lodged an application for a Temporary Protection visa.  The second applicant (his wife) and the third applicant (his son) were included in that application. The first applicant made a statutory declaration on 11 August 2015 in support of his Temporary Protection visa application: CB at 107-251 and 149-157.

7. The second applicant also made her own protection claims in a statutory declaration made on 11 August 2015: CB at 192-201.

8. On 27 August 2015 further Bridging E visas were granted to the applicants in association with their Temporary Protection visa applications: CB at 275.

9. By letter dated 4 November 2015 the Department invited the applicants to an interview to be held at the Department on 18 November 2015. Interviews were conducted with the first and second applicants on that date: CB at 252-254 and 275.

10. On 2 December 2015 the applicants’ representative provided submissions to the Department in support of the applicants’ application for Temporary Protection visas: CB at 258-266.

11. On 24 May 2016 a delegate of the Minister made a decision refusing to grant Temporary Protection visas to the applicants. The applicants were advised of the delegate’s decision by letter dated 24 May 2016: CB at 274 and 267-272.

12. The delegate’s decision was referred to the IAA pursuant to s 473CA of the Act. By letter dated 26 May 2016 the IAA notified the first applicant that the matter had been referred to it on 26 May 2016. The IAA also provided the first applicant with information about the IAA and its review function (in English and Tamil) and provided a copy of the IAA’s Practice Direction: CB at 319-327.

13. On 18 June 2016 the first applicant advised the IAA by email of four key instances which he claimed had occurred recently and which he said demonstrated that problems between the Sri Lankan Army and the Tamil people were persisting and that the applicants would not be safe if they were returned to Sri Lanka. The first applicant requested further time to provide translated newspaper articles to the IAA: CB at 328-329.

14. On 27 June 2016 the first applicant provided articles and reports in relation to the persecution of Tamils in Sri Lanka, and letters by persons deposing to the family’s Christian values and their good good character: CB at 337-369.

15. The first applicant advised the IAA that the reason the information could not have been provided previously was that he was not very literate, he was “undergoing a lot of trauma” when he first arrived in Australia, he “could not remember a lot of things at that time” and his English was not good at that time. The first applicant further stated that most of the additional information which he had provided related to the situation between 2014 and 2016: CB at 337.

16. On 29 June 2016 the applicant provided the IAA with a report titled “A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009-2015”. The first applicant also referred the IAA to the UNHCR Sri Lanka Report 2015 at 30 and 31: CB at 373-508.

17. On 1 July 2016 the IAA made a decision affirming the delegate’s decision not to grant the applicants Temporary Protection visas: CB at 511.

18. The IAA advised the applicants of its decision by letter dated 1 July 2016.  This decision attached a copy of the IAA’s decision and a fact sheet about IAA decisions: CB at 509-539.

19. On 14 July 2016 the applicants filed an application in this Court seeking review of the IAA’s decision.

The IAA’s Decision

1. The IAA’s decision appears at pages 511−532 in the Court Book.  The Court has reviewed the IAA’s decision in detail and notes as follows. 

2. The IAA (noting the information before it from the delegate and given to the IAA by the applicants) began its analysis by summarising the applicants' claims for protection.  The Court notes in particular the summary provided at paragraphs 20, 21 and 22 of the IAA’s decision, as follows:

   20. The applicant's claims to protection can be summarised as follows:

   • In 1958, 1977 and 1983, he and his family were caught up in communal violence in which Sinhalese mobs attacked Tamils throughout Sri Lanka. Their properties and businesses were destroyed and they were forced to relocate from Kandy to Eastern Province.

   • Tamils are denied jobs and educational opportunities based on their ethnicity.

   • During the war Tamils were persecuted as suspected LTTE supporters. In 1986 a group of the applicant's friends were killed by the Sri Lankan Army (SLA). In 1990 the applicant was rounded up with 90 other Tamil men, detained and tortured.

   • During the war the applicant was required to pay regular amounts  of  money to the LTTE. The man who collected the money subsequently defected to the Karuna Group which split from the LTTE and provided intelligence  information  to the  government about former LTTE members and supporters. The applicant claims that he is therefore known as a supporter of the LTTE.

   • In 2010 when he operated his jewellery shop in Batticaloa he was targeted for extortion and robbery, suggesting that this was carried out by government security forces and their armed paramilitary supporters because he was known as an LTTE supporter. He claimed that he was similarly subjected to extortion and the threat of harm when he opened a restaurant in Batticaloa in January 2012 and this forced him to leave Sir Lanka in August 2012.

   • In 2011 after he was forced to close his jewellery business he relocated to Kalmanai where women were subjected to attacks by “Grease men.” Because of the danger he and his family could not stay there.

   • The personal details of the applicants were revealed in the January 2014 DIBP “data breach.” Since then, he has been told that the armed forces have been making inquiries of his family members as to his whereabouts.

   • Illegal departure/failed asylum seeker - the applicant claims that because he left Sri Lanka illegally he faces harm on return.

   • Conversion to Christianity - the applicant, formerly a Hindu, has been baptised as a Christian in Australia. Although he did not claim to fear harm on this basis the delegate dealt with an implied claim that he might face harm for reason of his religion.

   21. The second named applicant made her own claims to protection, stating that

   • She has been imputed with the profile of an LTTE supporter because of her marriage to the applicant; and because her first husband was detained in a roundup of Tamil men in 2004, detained and tortured.

   • As a Tamil, she has faced the threat of harm and sexual violence during various periods in Sri Lanka when she was been single, or living alone, although she has never actually been harmed.

   • She has been baptised as a Christian in Australia; as with the applicant, the delegate dealt with an implied claim that she might face harm on this basis.

   • She fears harm because of her illegal departure from Sri Lanka

   • She fears harm as a result of the “data breach.”

   22. The delegate considered the following claims that were explicitly made, or implied, in relation to the third named applicant

   • Because of his association with his step father, the applicant, and his biological father, and because he is approaching adolescence, he may be imputed as a supporter of the LTTE

   • He faces harm because of the data breach

   • He faces harm because he left Sri Lanka illegally

3. The IAA then summarised and assessed the evidence before it. This appears at paragraph 86 to 93 in the IAA’s written reasons.  It is the Court’s view that the summary assessment made by the IAA is detailed, forensic and thorough. 

4. Overall, the IAA outlined its findings in paragraphs 86, 87, 88, 89, 90, 91, 92 and 93, as follows:

   86. I accept that the applicant has experienced harm of various kinds throughout his life because he is a Tamil. I accept that he has witnessed harm done to members of his extended family and his community because of their ethnicity. Many of these events occurred before and during the civil war. I must look to the reasonably foreseeable future in assessing whether the applicant is owed protection.

   87. I do not accept that the applicant is at risk of harm, now or in the reasonably foreseeable future, as a Tamil. I do not consider that there is a real chance that he would be affected by communal violence, or security measures of the kind that were in place during the civil war which resulted in serious human rights abuses against Tamils because they were collectively under suspicion of involvement with the LTTE. While the Sri Lankan authorities continue to monitor the Tamil populations of the Northern and Eastern Provinces that were previously under the control of the LTTE, the applicant's evidence does not suggest that he has been subjected to such monitoring, consistent with country  information indicating that it is those Tamils with prior links to the LTTE or those who may be working to revive it, who may currently be at risk of harm. There is no suggestion that the applicant is such a person. He does not claim to have been involved with the LTTE in any way except that he paid obligatory taxes to the organisation during the war. Country information indicates that all Tamils living in LTTE controlled areas were required to do so, and do not now face serious harm because of this, as the authorities are not concerned about this level of support. I do not accept that the applicant has in the past, or would in the reasonably foreseeable future, face monitoring or other harm for this reason. I do not accept that he has, for this or any other reason, been imputed to be a supporter of the LTTE or to have any connection with the organisation that would be of concern to the authorities if he were to return to Sri Lanka. Even accepting that the person to whom he paid the money is now with a government aligned paramilitary group, and even if that person had informed the authorities that the applicant paid money to the LTTE, I do not accept that this would result in harm to the applicant because I find on the basis of the country information that the authorities are not concerned about  involvement at this level. I do not accept that any difficulties the applicant faced post-war in the context of his business operations in Batticaloa or Vaalichchenai, were the result of any actual or imputed political opinion attributed to him either because he is Tamil or because he was known to have paid money to the LTTE during the war.

   88. I am not satisfied that there is a real chance that the second or third named applicants face harm in Sri Lanka because they are imputed to be supporters of the LTTE on their own account or because of their connection with the applicant or any other person.

   89. I accept that the applicant faced harassment and minor extortion from government security personnel and armed paramilitary groups when he operated his jewellery shop in Vaalichchenai and his restaurant in Batticaloa. The credible evidence does not suggest that this mistreatment reached the threshold for serious harm. I do not accept, on the evidence, that the applicant would be killed or otherwise harmed if he refused to accede to the demands for food, cash and cigarettes; the evidence does not  support a finding that the financial consequences of having to provide food, cash and cigarettes would threaten the applicant's capacity to earn a livelihood or to subsist. I accept that he was robbed in December 2010 after a brief abduction but I am not satisfied, on the evidence, that this was anything other than a criminal matter, notwithstanding evidence that paramilitary groups operating in the political sphere and with government connections are also engaged in criminal activity in the eastern province. Even accepting that actual or implied threats were made to the safety of the second or third named applicants, there is no credible information to suggest that they were, or would in the reasonably foreseeable future be at real risk of harm from these groups.

   90. I do not accept that the applicant (or the second or third named applicants) is at risk of future harm from grease men, given that there have been no reported attacks by grease men since September 2011.

   91. I do not accept that the applicants face a real chance of persecution because they left Sri Lanka illegally.  I find  that  they  would  not  be  subject  to  penalties  on  return  that  constitute persecution, both because they do not involve serious harm and because they would be imposed under laws of general application. Because I find that none of the applicants have a profile as a person with real or suspected links to the LTTE I find that there is no risk that they would be subjected to unusual detention or mistreatment amounting to serious harm on return.

   92. I find that even if they were recognised as failed asylum seekers on return for any reason, including because of the DIBP data breach, they would not thereby be imputed to be LTTE supporters or opponents of the government or face a real chance of harm for any related reason.

   93. I do not accept that the applicants have been subjected to discrimination amounting to persecution in relation to employment or education, or any other matter, because they are Tamils, or that there is a real chance that they would be subjected to such discrimination in the reasonably foreseeable future.

1. The IAA then concluded that the applicants did not meet the requirements of the definition of refugee in s.5H(1) of the Act. The applicants thus did not meet s.36(2)(a) of the Act.

2. In terms of the applicants' complementary protection claims, the IAA noted that the applicants had not made any specific claims to complementary protection, but nonetheless proceeded to analyse whether there was complementary protection required .

3. Based on the information the applicants had provided to the IAA and the country information referred to, the IAA found that it was also satisfied 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 would not be a real risk that the applicants face significant harm. Accordingly, the IAA found that the applicants did not meet the requirements of s.36(2)(aa) of the Act.

4. Again, the overview provided by the IAA at paragraphs 95 to paragraph 103 in its decision was detailed and thorough. The IAA accepted some evidence and refused other evidence. It then balanced all of the information and came to conclusions that were entirely open to it. Relevantly, paragraphs 95-103 provide:

   95. A criterion for a protection visa is that the applicant is a non citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

   Real risk of significant harm

   96. Under s.36(2A), a person will suffer 'significant harm' if:

   • the person will be arbitrarily deprived of his or her life

   • the death penalty will be carried out on the person

   • the person will be subjected to torture

   • the person will be subjected to cruel or inhuman treatment or punishment, or

   • the person will be subjected to degrading treatment or punishment.

   97. The applicants have not made specific claims to  complementary protection separate from those put forward in relation to the refugees criteria. Based on the information they have provided, and the country information referred to above, I am also satisfied that there is not a real risk that they would face significant harm.

   98. There is no suggestion that the applicants face the death penalty for any reason.

   99. I do not accept that there is a real risk that the applicants would face being arbitrarily deprived of life or tortured for any reason connected with their ethnicity, their political opinion or a political opinion imputed to them, or their religion. Nor do I accept that there is a real risk that they would be subjected to cruel, inhuman or degrading treatment or punishment, intentionally inflicted for any of those reasons; or as a result of any discrimination they might suffer as Tamils. I do not accept that the second named applicant faces significant harm related to her gender.

   100. I have accepted that the applicant faced harassment and minor extortion from government security personnel and armed paramilitary groups when he operated his jewellery shop in Vaalichchenai and his restaurant in Batticaloa. I accept that he was robbed in December 2010 after a brief abduction and that he was threatened in 2012. I do not accept, on the evidence, that there is a real risk that the applicant would be killed, tortured or subjected to cruel, inhuman or degrading treatment or punishment, as defined, should such demands continue and if he refused to accede to the demands for food, cash and cigarettes. Even accepting that actual or implied threats were made to the safety of the second or third named applicants, there is no credible information to suggest that they  were, or would in the reasonably foreseeable future be at real risk of significant harm from these groups.

   101. I do not accept that there is a real risk that the applicants face harm of any kind from grease men.

   102. As to their treatment under the criminal justice system, including as people who departed illegally and/or failed asylum seekers, I accept that they will be detained briefly at the airport for questioning, and security and character checks. They may be charged with an offence under the l&E Act because they departed Sri Lanka illegally. They may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate who will most likely quickly grant bail. For reasons discussed above, I do not accept that there are any particular aspects of the applicants' profiles that would result in their being detained for a longer period or subjected to interrogation that might give rise to significant harm. I do not accept that the process outlined above amounts to significant harm, or that the applicants would be exposed to significant harm during this process. Nor does the penalty likely to be imposed on the applicants, or the questioning or remand conditions they would most likely face, amount to any form of significant harm. I find that, to date, a custodial sentence has never been imposed on illegal returnees such as the applicants. I am not satisfied that there is a real risk that the applicants face a custodial sentence. I am not satisfied that there is a real risk that the applicants will face torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, including as a result of conditions they may face during a short period in custody. I accept that conditions in prison or detention may be poor, but the evidence does not suggest that the applicants face the death penalty or arbitrary deprivation of life. The definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act requires that any pain or suffering be intentionally inflicted on a person. Similarly, “degrading treatment or punishment” is defined to mean an act or omission that causes and is intended to cause extreme humiliation. I am not satisfied that any pain or suffering caused to the applicants by overcrowding and poor and insanitary conditions in prison or on remand would be intentionally inflicted, as required. Nor do I accept that overcrowding and poor conditions are intended to cause extreme humiliation.

   Complementary protection: conclusion

   103. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. The applicants do not meet s.36(2)(aa).

5. Overall, the IAA affirmed the decision not to grant the applicants their protection visas.  The IAA advised the applicants of its decision by letter dated 1 July 2016 and attached was a copy of the IAA's decision and a fact sheet about the IAAs decision.  As noted above, on 14 July 2016, the applicants filed an application in this Court seeking judicial review of the IAAs decision citing one ground of review.  It is this ground of review that the Court must analyse.

Decision

1. The applicants seek orders in this Court for the issue of constitutional writs.  In order for these writs to be the issued the applicants need to demonstrate that the IAA fell into jurisdictional error.

2. The possible categories of jurisdictional error are not exhaustive and may sometimes overlap.  For migration decisions, they most commonly include the following categories:

   a)Where the decision maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 39 ALD 193 (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 and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208].

   e)Where the decision maker fails to consider the entirely of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22].

   f)Where the decision maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17].

   g)Where the decision is illogical, irrational or unreasonable: Minister for Immigration v SZMDS (2010) 240 CLR 61 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44].

3. It was held in the case of WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, and in WZATH v Minister for Immigration and Border Protection [2014] FCA 969, that a court is entitled to dismiss a case seeking judicial review by reason of generalised and non-particularised grounds of review.

4. In relation to this issue, the Minister submitted (at paragraphs 24 to 26) as follows.

   24. The applicants’ only ground of application fails to provide particulars of the alleged errors said to have been made by the Authority in making its decision. The sole ground of application does not specify what available information “was not considered” by the Authority, fails to specify what information was “misinterpreted” by the Authority, and fails to specify in what information was “not used” by the Authority “in determining the Applicants circumstances as a whole.”

   25. Pursuant to the orders of the Court made on 18 August 2016, the applicants were given an opportunity to file and serve an amended application giving complete particulars of each ground of review by 5 October 2016, but they have failed to do so. Further, there has been no attempt by the applicants to file an amended application in the 16 months since.

   26. The failure to particularise a ground of application is itself a sufficient reason to warrant dismissal of that ground: see WZATH v Minister for Immigration & Anor 2014 FCCA 612 at [60]: WZAVW v Minister for Immigration and Border Protection [2016]FCA 760 at [35].

5. The Court agrees.  Here, the one ground that is articulated by the applicants is perhaps best described as vague. A general and vague application of this sort provides judicial justification for the dismissal of the proceeding.

6. Unfortunately, although given an opportunity do so before this Court, the first applicant was unable to elaborate on the grounds of review or clarify for the Court what he believes the IAA “did wrong”. 

7. The first applicant was clearly distressed before this Court and the Court has considerable sympathy for him and his family. Their life has been challenging at almost every turn.  Unfortunately, having heard from the first applicant, it is evident that what the applicants are really asking this Court to undertake is a merits review of the IAA’s findings.  They do so in the hope that the Court will come to a different conclusion and give them the visas they seek. This Court cannot do that.  It cannot review the merits of the IAA’s decision or determine the applicants’ claim for protection.  As outlined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 136 ALR 481 at 491:

   These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

8. In relation to jurisdictional error, the Minister argued at paragraphs 28 and 29 of his written submissions:

   28. Further, and in any event, the Authority’s reasons for decision (CB 512-532) demonstrate that the Authority gave careful consideration to all of the applicants’ claims and evidence, and its reasons for concluding that it was not satisfied that the applicants faced a real chance of being persecuted for the reasons advanced, and for concluding that there was not substantial grounds for believing that there is a real risk that the applicants will suffer significant harm if returned to Sri Lanka, cannot be said to lack “an evident and intelligible justification” see Minister for Immigration and Citizenship v Li (2013) 139 ALD 181; [2013] HCA 18 at [76] per Hayne, Kiefel and Bell JJ.

   29. No jurisdictional error is disclosed by the Authority’s reasons for its decision to affirm the delegate’s decision not to grant Temporary Protection visas to the applicants.

9. This Court agrees.  The applicants have failed to show that the IAA fell into jurisdictional error.  The Court sees no legal error, and nothing that can be referred to as logical or irrational, on the part of the IAA in terms of its approach, analysis or ultimate conclusions. All findings were open to the IAA.  They were reached on valid grounds.  Nor can it be said that the IAA’s conduct of the case or its conclusions were unfair.  Overall, the decision to affirm the delegate’s decision was perfectly sound.  There is no evidence before this Court that the IAA failed to look at all of the evidence it had before it.  Rather, it did so exhaustively.  The Court also disagrees with the suggestion that a complete analysis was not provided.  The IAA carefully considered the facts of the case, the legislation it was required to examine, the relevant country information and all of the evidence that it had provided to it.  Its analysis was, overall, unimpeachable. 

10. The application for judicial review is dismissed.

11. The Court orders that the applicants are to pay the Minister’s costs fixed in the sum of $5,500.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  8 May 2018