BVR18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 54
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BVR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 54
File number: MLG 975 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 1 February 2024 Catchwords: MIGRATION – judicial review of the decision of the Immigration Assessment Authority to not grant a protection visa – Applicant a citizen of Sri Lanka and a Tamil from the East province of Sri Lanka – finding that the Applicant did not face a real chance of harm on account of his Tamil ethnicity, his political activism, being a failed asylum seeker or upon returning to Sri Lanka after departing illegally – whether the IAA failed to consider new information under ss 473DC and 473DD of the Migration Act 1958 (Cth) – no error in the interpretation or application of the law – no unreasonableness – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 473DC and 473DD Cases cited: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69; [2018] FCAFC 222
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80
Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of last submissions: 14 November 2023 Date of hearing: 14 November 2023 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Ambi Associates Counsel for the First Respondent: Mr Lessing Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 975 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BVR18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MUTLICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
1 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application filed 12 April 2018 and amended 26 October 2023 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in this Court on 12 April 2018 (Application) and amended 25 October 2023 (Amended Application), the Applicant seeks judicial review of the decision of the Immigration Assessment Authority (IAA) made on 19 March 2023 (IAA’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
On 19 March 2018 in the IAA’s Decision the IAA affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (SHEV Visa).
This matter was heard on 14 November 2023 and proceeded in person at the Melbourne Registry of the Court (Hearing). Both the Applicant and the Minister were represented by Counsel, who made oral submissions at the Hearing. At the conclusion of the Hearing Judgment was reserved. These Reasons for Judgment are in relation to the Hearing.
ISSUES IN DISPUTE
The issues in dispute are whether the IAA committed jurisdictional error by:
(a)Erring in its interpretation and/or application of the law;
(b)Failing to consider relevant considerations; and/or
(c)Making unreasonable or illogical findings.
SYNPOSIS
I am satisfied that the Tribunal correctly interpreted and applied the law, considered relevant considerations and did not make findings unreasonably or illogically. No jurisdictional error can be found in the IAA’s Decision.
BACKGROUND
The Court has before it a Court Book numbering 241 paginated pages, filed by the Minister on 1 May 2019 (Court Book). The Court also has before it a Court Book numbering 38 paginated pages filed by the Applicant on 26 October 2023 (Applicant’s Court Book). The Minister’s Written Submissions, filed on 2 November 2023 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [11]. The Court adopts these submissions as its own with some amendments as follows.
The Applicant is a citizen of Sri Lanka. The Applicant is a Tamil from the Eastern Province of Sri Lanka.[1]
[1] Court Book (CB) 19
On 21 October 2012 the Applicant arrived in Australia by boat as an Irregular Maritime Arrival.[2] On 26 November 2012 the Department of Immigration and Border Protection (Department) conducted a screening interview with the Applicant (Screening Interview)[3] and on 28 January 2013 the Applicant completed an Irregular Maritime Arrival Entry Interview (Arrival Interview).[4]
[2] CB 87.
[3] CB 10-16.
[4] CB 17-49.
On 18 December 2015 the Applicant was invited to apply for the SHEV Visa.
On 18 February 2016 the Applicant’s appointed representatives Ambi & Associates, Barristers & Solicitors (Applicant’s Representatives) requested an extension of time to apply for the SHEV Visa on the basis that they were awaiting documents from the Department.[5] On 4 March 2016 the Applicant was granted an extension of time of a month from the date the Applicant received the documents he had requested.[6]
[5] CB 50-52.
[6] CB 53.
On 12 December 2016 the Department sent a reminder letter to the Applicant’s Representatives to apply for the SHEV Visa within 60 days.[7] On 16 January 2017 the Department followed up regarding the reminder letter and the Applicant’s Representatives informed the Department by email that the Applicant was in the process of finalising his application for the SHEV Visa.[8]
[7] CB 57-61.
[8] CB 62-63.
On 30 January 2017 the Applicant applied for the SHEV Visa (Visa Application).[9] The Department acknowledged receipt of the Visa Application on 17 February 2017.[10]
[9] CB 65-123.
[10] CB 124-135.
On 5 October 2017 the Applicant was requested to attend an interview with the Department, which he attended on 19 October 2017 (SHEV Interview).[11]
[11] CB 135-149.
On 5 December 2017 the Delegate refused to grant the Applicant the SHEV Visa (Delegate’s Decision).[12] The Delegate did not find that there was a real chance that the Applicant would face persecution for being Tamil, his political opinion or being a failed asylum seeker. The Delegate was not satisfied that the Applicant was a refugee as defined by s 5H(1) of the Migration Act and that he therefore did not meet the requirements of s 36(a) of the Migration Act. Further the Delegate was satisfied that the Applicant was a not person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Migration Act.
[12] CB 155-175.
On 8 December 2017 the Delegate’s Decision was referred to the IAA for review (Review Application).[13]
[13] CB 177-190.
On 20 December 2017 the Applicant’s Representatives provided a statement from the Applicant to the IAA (Applicant’s Statement)[14] and requested a recording of the SHEV Interview.[15] The Applicant’s Statement addressed the Delegate’s Decision and attached various articles and reports about Sri Lanka. On 21 December 2017 the recording of the SHEV Interview was released to the Applicant.[16]
[14] CB 194-198.
[15] CB 191-213.
[16] CB 214.
On 19 March 2018 by way of the IAA’s Decision the IAA affirmed the Delegate’s Decision.[17]
[17] CB 216-241.
THE IAA’S DECISION
The IAA’s Decision is at pages 221 to 241 of the Court Book. The Minister’s Submissions summarise the IAA’s Decision at [12] to [24]. The Court adopts these submissions as its own with some amendments as follows.
The IAA first outlined, at [7] of the IAA’s Decision, the Applicant’s claims for protection, which can be summarised as follows:
(a)The Applicant is of Tamil ethnicity and Hindu religion;
(b)The Applicant was taken into custody by the Special Force in 1985 on suspicion of involvement with the Liberation Tigers of Tamil Eelam (LTTE) and detained for three (3) years at various prisons;
(c)The Applicant returned to his home village after he was released from detention and then worked in Saudi Arabia for three varying (3) periods of time until May 2012;
(d)In 2012, upon returning to Sri Lanka, the Applicant supported the local Tamil National Party (TNA) candidate in the 2012 Provincial Council elections by canvassing and raising support from voters during the election campaign;
(e)After the 2012 election the Sri Lanka Criminal Investigation Department (CID) along with the members of the Karuna and Pillayan Group came to shoot the Applicant. The Applicant was forced to leave Sri Lanka for his safety;
(f)The Applicant fears harm by the Sri Lankan authorities and the Tamil Makkal Viduthalai Puligal (TMVP); and
(g)The Applicant illegally departed Sri Lanka for Australia by boat on 3 October 2012.
The IAA then outlined the relevant statutory framework in the Migration Act. The IAA then considered the Applicant’s claims regarding his experiences in Sri Lanka: [13] to [25]. The IAA made the following relevant findings about the Applicant’s claims:
(a)The Applicant’s evidence about his arrest and imprisonment was consistent across his interviews, hearings and submissions, and was consistent with country information about Sri Lanka at the time. The IAA accepted that the Applicant, as a young Tamil, had been part of routine army round-ups and taken on suspicion of being involved with the LTTE and was arrested, charged and detained on suspicion of being involved in Tamil insurgency or LTTE involvement. The IAA accepted that the Applicant had been released after he was found not guilty of the charges as there was no evidence against him: IAA’s Decision [11].
(b)The Applicant gave evidence that he worked for periods of time in Saudi Arabia and travelled between Saudi Arabi and Sri Lanka on his own passport without problems. The IAA was satisfied, noting the absence of adverse incidents with authorities, that the Applicant was of no adverse interest to the authorities after he was released from prison when he was cleared of charges: IAA’s Decision [12] to [13].
(c)The IAA accepted the Applicant’s evidence that he is a supporter of the TNA and assisted in two election campaigns, with the most recent being 2012, which included canvassing and support work in his local area and travelling: [14] IAA’s Decision. The IAA considered that the Applicant’s association with the TNA was “low level” and did not amount to political association or significant continuity in political activism given he: did not claim to be a member; did not run for elected office; was limited to supporting one (1) particular local candidate; did not claim to have experienced adverse consequences; and did not have consistent involvement with the TNA prior to the election in 2012: IAA’s Decision [15].
(d)The Applicant gave inconsistent and vague evidence about the people searching for him and the events that occurred after the election in 2012. The IAA considered it plausible that the Applicant may have been harassed after the election as a Tamil and accepted that the Applicant may have had a subjective fear at the time. The IAA was not satisfied: that there was credible evidence that the Applicant was targeted to be killed; that the Applicant’s association with the TNA was of such a nature that plausibly attracted adverse attention; and that the Applicant was a person of adverse interest to any groups or authorities in Sri Lanka: IAA’s Decision [16] to [17].
(e)The country information from various sources, dated from 7 March 2012 to 26 July 2017, indicated that: the TNA continues to have significant support in Sri Lankan politics; Tamils have a substantial level of political influence and inclusion since the change of government in 2015; the number of recent incidents involving election-related and politically motivated violence has reduced; there is an absence of evidence of systematic targeting of TNA members and supporters; and there is recent criminal prosecution of the TMVP former leaders and the TMVP does not continue to operate as a paramilitary group. Given the country information above and the finding that the Applicant’s association with the TNA was low level, the IAA was satisfied that the Applicant did not face a real chance of harm from any persons in Sri Lanka: IAA’s Decision [18] to [25].
(f)The Applicant gave evidence that his status as a Tamil and imputed support for the LTTE made him a person of adverse interest to Sri Lankan authorities. The IAA considered the Applicant’s claims in conjunction with country information which indicated a marked improvement in the security situation of Tamils and changed country conditions. The IAA did not find that the Applicant has a profile as an LTEE member or any imputed LTTE association and was therefore not satisfied that there is a real chance the Applicant would suffer harm on account of his Tamil ethnicity or origin from the Eastern Province of Sri Lanka: IAA’s Decision [26] to [36].
(g)The IAA was not satisfied that there was a real chance that the Applicant would suffer any harm on his return to Sri Lanka as there was no evidence the Applicant would be identified as a person of adverse interest: IAA’s Decision [43].
(h)The IAA accepted that the Applicant may be identified as returned failed asylum seeker who departed Sri Lanka illegally and noted that illegal departure is an offence that can be penalised in Sri Lanka. The country information indicated that the Applicant is likely to be charged for illegally departing Sri Lanka and may be subjected to questioning and a fine. However the country information did not indicate that the Applicant would be given a custodial sentence: IAA’s Decision [44] to [47].
(i)The IAA noted that the Applicant may be detained for a short period as a result of being charged for illegally departing Sri Lanka. Country information indicated that prison conditions in Sri Lanka were below international standards, however the IAA found that the totality of treatment the Applicant may experience did not amount to serious harm and the Applicant did not face a real chance of persecution due to his illegal departure: IAA’s Decision [48] to [52].
Given the findings outlined in the previous paragraph, the IAA determined that the Applicant did not meet the requirements of the definition of a refugee in s 5H(1) and did not meet the requirements of s 36(2)(a) of the Migration Act.
In relation to the complementary protection criterion, the IAA found that the Applicant did not face a real chance of harm upon his return to Sri Lanka by reason of: his TNA association; his Tamil ethnicity; his origin form an area in the Eastern Province; or his status as a returning failed asylum seeker: IAA’s Decision [56]. The IAA accepted that the Applicant would face consequences upon his return to Sri Lanka for departing the country illegally, and the IAA accepted that he could be questioned and detained, and that a period in detention would involve poor prison conditions. The IAA was not satisfied that the Applicant would be subjected to the death penalty or any treatment or sanctions that would constitute arbitrary deprivation of life or torture. The IAA noted there was no evidence of any particular personal vulnerability experienced by the Applicant. The risk of torture or mistreatment for the majority of returnees was low and therefore the IAA determined that the Applicant did not face a real risk of significant harm for the illegal departure offence: IAA’s Decision [57].
PROCEEDINGS BEFORE THE COURT
The Application was filed in the Federal Circuit Court (the predecessor to this Court) on 12 April 2018, within 35 days of the date of the IAA’s Decision, pursuant to s 477 of the Migration Act.
On 17 October 2023 Orders were made by consent for the Applicant to file any amended application, affidavits, supplementary court books and written submissions. The Applicant lodged the Amended Application on 25 October 2023, which was accepted for filing on 26 October 2023, and other material sought to be relied upon in accordance with these Orders.
The Applicant relied upon the following documents at the Hearing:
(a)The Amended Application;
(b)The Affidavit of Mr Chellappah Ambikaipalan, Solicitor, affirmed and filed 13 April 2018;
(c)The Applicant’s Submissions, lodged 25 October 2023 and accepted for filing 26 October 2023;
(d)The Applicant’s Court Book; and
(e)The Applicant’s List of Authorities, filed 10 November 2023.
The Minister relied upon the following documents at the Hearing:
(a)The Response, filed 8 May 2018;
(b)The Minister’s Submissions;
(c)The Court Book; and
(d)The Minister’s List of Authorities, filed 8 November 2023.
The Applicant relied on the following grounds of review (Grounds of Review) in the Amended Application:[18]
[18] Amended Application – Migration filed 25 October 2023, ‘Grounds of Application’.
1.The Authority fell into jurisdictional error in that it erred in interpreting or applying the law. (Ground 1)
PARTICULARS
(a)The Second Respondent (“the Authority”) erred in interpreting or applying section 473DC(1) and 473DD(a) of the Act, in not getting or considering whether to get new information relating to the abuse of human rights in Sri Lanka, pursuant to section 473DC(1).
(b)The Authority erred in interpreting, or applying section 473DC(1) and 473DD(a) of the Act in not finding exceptional circumstances to consider new information relating to the abuse of human rights in Sri Lanka, pursuant to section 473DD(a).
2. The Authority fell into jurisdictional error in that it did not give procedural fairness to the Applicant.PARTICULARSa. The Authority did not consider all the material and information in the Applicant’s submission made after the primary decision and which the Tribunal received on or about 20 December 2017. (IAA Decision and Reasons [5])2.
1.The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information. (Ground 2)PARTICULARS
a. Further or in the alternative to particular (a) to Ground 1, the Authority did not consider whether to get, new information relating to the abuse of human rights in Sri Lanka, pursuant to s 473DC(1).
b.
a.Further or in the alternative to Particulars (a) and (b) to Ground 1, theTheAuthority did not consider all the material and any or all of the new information in the Applicant’s submission made after the primary decision and which the Tribunal received on or about 20 December 2017 when pursuant to section 473DC(1) and 473DD(a) of the Migration Act 1958 (“the Act”) it should have got and considered the new information, especially the information in relation to torture and abuse of human rights and the information which was more recent that the report by DFAT dated January 2017, on which it substantially relied.c.
b.The Authority did not consider whether the Applicant may suffer harm while in detention, simply as a person in detention, given the entrenched culture of torture and abuse of persons in detention.c The Authority did not consider cumulatively, in relation both to treatment of the Applicant immediately after his future return to Sri Lanka, such that there is a real chance this may cause him serious or significant harm.d The Authority failed to seriously consider the information provided by the Applicant to the IAA in relation to TMVP or Karuna group3.The Authority feel into jurisdictional error in that it was legally unreasonable or made findings without logically probative material. (Ground 3)
PARTICULARS
a. The Authority was unreasonable in not finding that there was a real chance that the Applicant may suffer serious or significant harm on his return as a failed asylum seeker who had left Sri Lanka illegally, including while in detention, simply as a person in detention, given the entrenched culture of torture and abuse of persons in detention.
b. Further or in the alternative to Ground 1,
Thethe Authorityhas failedwas unreasonable in failing to consider submissionsmade in relation toand information submitted to it including the arguments put forward by UN Special Rapporteur Ben Emmerson QC when pursuant to section 473DC(1) and 473DD(a) of the Migration ACT 1958 (“the Act”) it should have got and considered new information, especially the information in relation to torture and abuse of human rights and the information which was more recent than the report by DFAT dated January 2017, on which it substantially relied.c. The Authority did not give the Applicant an interview, or take other steps to get information about his past repeated detentions interrogations and beatings.(Words in bold and italics added. Otherwise as written)
CONSIDERATION
The finding that there was not a real chance the Applicant would suffer harm and the Applicant did not face a real chance of persecution
The IAA considered the Applicant’s claims along with the country information and determined that: the Applicant did not face a real chance of harm from any Sri Lankan authorities on account of his Tamil ethnicity and/or his political activism; and that he did not face a real chance of persecution on the basis of being a failed asylum seeker who had departed Sri Lanka illegally. The Applicant’s claims were articulated and advanced in the Screening Interview,[19] the Arrival Interview,[20] and in the Visa Application.[21] Counsel for the Applicant described that matters material to the IAA’s Decision were:[22]
(a)The consequences of the Applicant’s support for and involvement with a political candidate; and
(b)The Applicant’s claim that he feared returning to Sri Lanka as a returned illegal immigrant and failed asylum seeker.
[19] CB 11-13.
[20] CB 28.
[21] CB 100-102.
[22] Transcript P4:L5-14.
Ground 1
Ground 1 can be framed as: “Did the Authority err in interpreting or applying the law relating to getting and considering new information?”. Subdivision C of Division 3 of Part 7AA of the Migration Act concerns additional information in the fast track review process for certain protection visa decisions. The IAA is conducting a “fast track review” which is distinct from the review conducted by the Administrative Appeals Tribunal under Part 7 of the Migration Act. The fast track review can be characterised as a review on the papers.
The IAA’s review of the decision of a delegate is limited as it is confirmed to the material provided to or in the possession of the delegate at the time of the delegate’s decision and must be done on the papers, subject to certain exemptions: Migration Act ss 473CB, 473DB and 473FA. The IAA can conduct its review without accepting or requesting new information or interviewing the applicant. The IAA may seek and consider any documents or information that were not before the delegate which it considers relevant, and may invite an applicant to give new information in writing or at an interview: Migration Act s 473DC. The IAA does not have a duty to get, seek or accept new information: Migration Act s 473DC(2). The IAA’s discretionary power to seek and consider new information is limited by s 473DD. Pursuant to s 473DD the IAA must be satisfied that both of the following requirements are met before it considers any new information:
(a)There are exceptional circumstances justifying the consideration of new information; and
(b)The Applicant has satisfied the IAA: that the new information was not and could not have been provided to the delegate; or that the new information is credible personal information that was not previously known and was material to the determination of the Applicant’s claims.
The IAA considered the operation of ss 473DC and 473DD in relation to the Applicant’s evidence at [3] to [6] of the IAA’s Decision. The IAA must pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 of Part 7AA of the Migration Act. Sections 473DC and 473DD are within Division 3.
As submitted by Counsel for the Minister,[23] AUS17 v Minister for Immigration and Border Protection (2020) 269 at [7] to [8] and [11] to [12] and CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 CLR 494; [2020] HCA 37 at [45] to [46] and [49] correctly identify and summarise the considerations and pathway the IAA must follow.
[23] Transcript P21.
The Authority’s discretionary power to get new information
In accordance with s 473CB for the purposes of a fast track reviewable decision, the IAA is to be provided with certain material, effectively being the material that was before the delegate. Section 473DB requires the IAA to review the matter before it and make a decision on the papers without accepting or requesting “new information”, and without interviewing the referred applicant. Section 473DA provides a codified statement of the natural justice rule.
Section 473DC relevantly provided, at the time of the IAA’s Decision, as follows:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
(Emphasis added)
Counsel for the Applicant submitted that for the purposes of discharging its task under the Migration Act, the IAA must proceed upon the basis of ‘good information’ and the ‘best information that it could reasonably get’. This submission must be qualified.[24] Counsel for the Applicant correctly identified that the discretionary power in s 473DC “must be exercised in a manner which best promotes the object and purpose of the Migration Act as a whole and gives effect to (in particular) the fast track review process”: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 at [15]. Counsel for the Applicant is correct in saying that section 473DC(2) contains no duty on the IAA but that the IAA may need to exercise its powers under ss 473DC(1) and (2) in particular circumstances to discharge its obligations.[25] I agree with the submission of Counsel for the Minister that there is no tension between the IAA’s task in assessing the protection visa application and the constraints regarding obtaining information.[26] Sections 473DC and 473DD enable the IAA to carry out its statutory task.
[24] Transcript P9:L10-12.
[25] Transcript P10.
[26] Transcript P23:27-35.
“New information” in this context is information that was not before the Delegate when the original decision was made. There is no duty to obtain or consider new information, even if the applicant has requested the IAA to make enquiries or consider further information. Section 473DC is subject to s 473DD. In protection visa reviews the IAA will conduct its review on the basis of the information before the delegate.
Particular (a) of Ground 1 has not been made out.
The Authority’s discretionary power to consider new information in exceptional circumstances
Section 473DD provides strict requirements for the IAA to find that there are exceptional circumstances that warrant the consideration of new information. Section 473DD relevantly provided, at the time of the IAA’s Decision, as follows:
473DD Considering new information in exceptional circumstances
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.
(Emphasis added)
The Applicant claims that the IAA erred in its interpretation and/or application of the law by not finding that there were exceptional circumstances to justify the consideration of new information. The Applicant submitted that exceptional circumstances existed as the IAA was put on notice that more recent relevant information was available and the task to determine whether there was a real chance of relevant harm had gravity.[27] Counsel for the Applicant submitted that “when the [IAA] is charged with making the decision on whether somebody is owed protection […] then it is necessarily an exceptional case” and further described material more than a year old, which raised grave problems, as exceptional.[28]
[27] Applicant’s Written Submissions, lodged 25 October 2023 and accepted for filing 26 October 2023 (Applicant’s Submissions), [24]-[26].
[28] Transcript P11:L11-19.
The Minister contended that the Applicant invites merits review by simply disagreeing with the outcome of the IAA’s application of s 473DD(a). The Minister reasoned that the approach proposed by the Applicant was not correct for the following reasons:
(a)The approach would be contrary to the purpose of the statutory scheme;
(b)The IAA’s approach was consistent with the requirements in s 473DD; and
(c)The IAA was not required to consider s 473DD(a) as it found ss 473DD(b)(i) and (ii) were not satisfied.
The Minister submitted that the Applicant’s contention that in every case where an applicant for a protection visa can identify more up to date country information (that was not before the delegate), the IAA will be bound to find that s 473DD(a) is satisfied, cannot be supported. Counsel for the Minister rejected the Applicant’s submission that there was exceptional circumstances as the review of protection visa applications and the conduct of the IAA in undertaking this process is the purpose of and established by Part 7 of the Migration Act. Further Counsel for the Minister submitted that whether or not there would be a risk of harm does not make this an exceptional case but rather an ordinary case.[29]
[29] Transcript P27:L21-29.
The IAA found that the articles provided by the Applicant “report broadly on human rights issues” and it was not clear how the articles were connected to the applicant’s personal claims for protection. The IAA noted that the Applicant did not explain, pursuant to s 473DD(b) why the material could not have been provided prior to the Delegate’s Decision, how it was credible personal information, or the relevance of the articles in sufficient detail. Importantly, regardless of the IAA’s finding in regards to s 473DD(a), the IAA was not satisfied that s 473DD(b) was met and therefore the IAA could not have considered new information under s 473DD even if it was satisfied that there were exceptional circumstances. There is nothing unusual or exceptional about this particular review.
I accept the Minister’s submissions that particular (b) is not supported by the statutory scheme nor would a failure to find exceptional circumstances be material. The IAA engaged in an intelligible process in accordance with the Migration Act to determine whether s 473DD was satisfied in the circumstances in order for it to consider new information. The Applicant has not established how the IAA’s assessment of exceptional circumstances pursuant to s 473DD contains error and it is not evident on the material. No exceptional circumstances exist as the statutory scheme is one of limited review that is to be conducted, save for particular circumstances provided for in the Migration Act, on the papers. Particular (b) of Ground 1 has not been established.
The Applicant’s contention that the IAA erred in its interpretation and application of the law has no basis. The IAA undertook an approach that it was required to take. No jurisdictional error has been identified. Ground 1 must be dismissed.
Ground 2
Ground 2 was advanced as “Did [the IAA] fail to consider relevant considerations in not considering whether to get new information, and not considering that new information?” and “Did [the IAA] fail to consider whether the Applicant had a real chance of suffering relevant harm?”. The Applicant submitted that the IAA failed to consider the matter squarely raised by the Applicant in relation to three (3) considerations:
(a)Information relating to the state of human rights in Sri Lanka submitted after the Delegate’s Decision, pursuant to s 473DC(1);
(b)Material and information relating to torture and abuse of human rights, particularly information more recent than the Department for Foreign Affairs and Trade Report (DFAT) on Sri Lanka (2017 DFAT Report); and
(c)The risk of harm the Applicant would suffer while in detention or prison.
The Applicant argued that had the IAA engaged with these considerations, its assessment of the risk of relevant harm may have been different and therefore the IAA committed jurisdictional error. Counsel for the Applicant submitted that the Applicant’s Statement and reference to material was important as the information was more current than the 2017 DFAT Report and put the IAA on notice that there was some contest to the situation in Sri Lanka.[30] In reply to the Minister’s submissions that the IAA is not required to make a finding on every material claim and weight is a matter for the IAA, Counsel for the Applicant also submitted that where there is a integer of a claim or material question of fact that arises on a refugee claim, then each integer and claim must be considered.[31]
[30] Transcript P8:L4-14.
[31] Transcript P35:L16-P36:L6.
As identified by Counsel for the Applicant,[32] the Federal Court made the following observations in relation to the consideration of claims during the review of a delegate’s decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]:
58.The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated […] The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[32] Transcript P36:L9-17.
The Minister submitted that particulars (a) and (b) of Ground 2 reframe arguments made under Ground 1 as ‘failure to consider grounds’, and that particular (c) is an attempt at merits review. The Minister contended that particulars (a) and (b) must be rejected for the same reasons as Ground 1 and the Applicant has not established a material error.
New information on abuse of human rights
Counsel for the Applicant conceded that the IAA is not obliged to express reasons for its determination of discretion pursuant to s 473DC and 473DD.[33] However, Counsel for the Applicant submitted that the fact the IAA said nothing about getting further information should lead the Court to infer that it did not consider whether to do so.[34] Counsel for the Applicant submitted that the IAA should have determined to consider new information as it was alerted to the Applicant’s submissions that there were continuing grave problems of human rights in Sri Lanka[35] and identified two important documents:[36]
(a)An article by The Guardian headed “Torture by Sri Lankan police routine, says human rights lawyer” dated 14 July 2017;[37] and
(b)An article by Human Rights Watch headed “Sri Lanka: Adopt Timeline for Action” dated 15 November 2017.[38]
[33] Transcript P9:L22-23.
[34] Transcript P9:L40-41.
[35] Transcript P9:L2-5 and P12:L29-37.
[36] Transcript P6:L21-P7:L47.
[37] CB 199-201.
[38] CB 203-206.
The Minister contended that Applicant has not positively demonstrated that the IAA failed to consider whether to get more current country information and that the IAA’s Decision discloses that the IAA engaged with the Applicant’s submissions and evidence, formed a view about the Applicant’s personal claims and found that it was not permitted to consider new information under s 473DC. Counsel for the Minister referred to the 2017 DFAT Report and submitted that the information provided a probative basis for the IAA to assess the risk of harm and to cavil with it is merits review.[39]
[39] Transcript P29-31.
The IAA is not required to explain a refusal to exercise its discretion under s 473DC: DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69; [2018] FCAFC 222 at [65]. The fact the IAA does not provide reasons indicating why it did not consider new information is insufficient to show that it did or did not consider whether to exercise its power under s 473DC. Further, the Applicant has not discharged his onus of establishing that the discretion was not considered: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [61].
At [5] of the IAA Decision, the IAA finds:
5.[…] Overall, the articles report, broadly on human rights issues that the Government has pledged to deal with following and related to a long running civil war in Sri Lanka and outstanding commitments. It is not clear how, beyond the very broad country context and noting the concerns of broad human rights issues reflected in those reports, the matters reported in these articles have any connection to the applicant’s personal claims for protection. The applicant has not provided any explanation as to the particular relevance of the issues reported on in those articles, or how they affect him specifically beyond his general submission that the articles indicate the persecution faced by many in this country in relation to the PTA […]
The Applicant accepted that the IAA did consider some material in relation to human rights and detention of people. However, Counsel for the Applicant submitted that the IAA did not engage as required with the whole of the material before it and the gravity of that material.[40] At [29] of the IAA Decision the IAA states:
29.I accept there have been occasional reports of Sri Lankan civilians being abducted and tortured, and reports of continued human rights violations in Sri Lanka, including the use of torture against suspects,
[40] Transcript P16:L27-30.
At [39] the IAA notes that “there have been credible reports of mistreatment and torture”. The IAA concludes at [50]:
50.I am not satisfied the totality of the treatment the applicant may experience on return, potentially being detained on remand for up to several days in overcrowded and unsanitary conditions , and having to pay a fine, amounts to serious harm.
In paragraphs [43] to [48], having considered the material relating to human rights, the IAA assesses the risk of harm to the Applicant specifically, as an illegal immigrant and based on its finding that the Applicant is not of adverse interest in connection with the LTTE. The IAA directed its attention to specific kinds of risk and determined the risk of harm to the Applicant.
Harm in detention
The Applicant’s Statement contends that “the Case Officer has failed to give due consideration to the implications I would face for being a failed asylum seeker if I’m returned to Sri Lanka”.[41] Counsel for the Applicant submitted that the IAA should have grappled with, but did not, the observations by DFAT about allegations of torture and the limitations acknowledged by DFAT.[42]
[41] CB 194.
[42] Transcript P16:L30-P17:L22.
Counsel for the Minister submitted that the IAA evidently read the 2017 DFAT Report and considered the contents of the report.[43] Counsel for the Minister submitted that the IAA turned its mind to the question of whether the Applicant would be detained and made a finding accordingly.[44] The Minister submitted that particular (c) must be rejected on the basis that:
(a)The IAA gave detailed consideration to the Applicant’s circumstances as a failed asylum seeker, which included express regard to the information about the risk of torture to returnees in the 2017 DFAT Report;
(b)The IAA considered whether the Applicant was at risk of harm as a result of being detained and noted the expected brevity of any detention;
(c)The IAA accepted that there had been ongoing reports of Tamils being tortured but the country information as a whole indicated that the risk was generally low and therefore the IAA was not satisfied that Tamils were being systematically targeted and subjected to harm; and
(d)The IAA did not accept that the Applicant’s profile was such that he would be personally targeted, having considered the legislation and country information including an express reference to the 2017 DFAT Report. Further to the extent a claim arose regarding entrenched culture of torture, it should be inferred the IAA considered that claim.
[43] Transcript P29:L19.
[44] Transcript P32-33.
I accept the Minister’s Submissions. The IAA’s Decision expressly addresses information relating to human rights, torture and the conditions experienced in detention. The IAA considered the various possibilities and consequences of the Applicant returning to Sri Lanka as a failed asylum seeker who had departed illegally. The IAA took into account country information before it and came to the conclusion that the Applicant could be detained for a short period but that such detention would not amount to serious risk. The IAA rejected the claim that the Applicant was at risk of detention under the “Prevention of Terrorism Act” as it considered the Applicant’s was not of adverse interest.
The IAA made the following critical finding at [28] of the IAA’s Decision:
28.[…] I do not consider that the applicant’s profile is such that he faces a real chance of harm upon return of being detained under the operation of the Prevention of Terrorism Act […]
[…]
While I’ve accepted that he was detained in prison from 1985 to 1988, the case against him was dismissed and there was no credible evidence that he was pursued by or suffered any harm from the authorities after he had been released. I do not consider his fears, as expressed at the PV interview, that another case may be fabricated against him now, and that he would again be placed in prison and tortured are well-founded. Having regard to my findings, I am not satisfied that the applicant was a person of any adverse interest to authorities for any reason at the time of his departure from Sri Lanka, or that he would be a person of such interest to authorities now.
As discussed above, the IAA properly carried out its obligations relating to the consideration of new information. The IAA sufficiently considered the Applicant’s detention-related claims. The IAA is entitled to give weight to the evidence as it thinks appropriate in the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]. The IAA thoroughly addressed the Applicant’s claims and the information before it, and then made findings open to it on the evidence. I note that the fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered: Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166 at [49].
The IAA evidently considered whether there was risk to the Applicant and the relevant potential sources of risk. The Applicant has not established any material error in relation to the IAA’s consideration of claims, facts or information. Ground 2 must be dismissed.
Ground 3
The Applicant framed Ground 3 as: was the Authority legally unreasonable in dealing with the risk to the Applicant on return or with new information. The Applicant contended that the IAA failed to discharge its statutory task by making unreasonable and illogical findings.
The Minister submitted that Ground 3 should be rejected for similar reasons to Ground 1 and Ground 2. Counsel for the Minister contended that Ground 3 should be dismissed given the submissions under Ground 1 and Ground 2, which indicate that there is nothing unreasonable in the IAA approach, especially having regard to the statutory scheme.[45]
[45] Transcript P34:L31-33.
As identified by both parties, the statutory scheme provides the context for assessing the boundaries of legal unreasonableness. The statutory scheme was outlined at [29] to [34] and [38] herein. The Minister correctly contended that in assessing legal unreasonableness, regard must be had to the fact that this is a mandated limited review that is ordinarily to be based upon the papers that were before the Delegate.[46]
[46] Transcript P22:L14-20.
Assessment of the risk of harm
The Applicant submitted that it was not open to the IAA to exclude a real chance that the Applicant may suffer serious or significant harm as a failed asylum seeker in the context of the tension of opinions in the 2017 DFAT Report. Counsel for the Applicant submitted that the only legally reasonable conclusion given the important evidence about the routine use of torture and IAA’s acceptance that the Applicant might be detained, was that there was a real chance of harm.[47]
[47] Transcript P18:L28-34.
The Minister contended that the IAA’s findings as to the likelihood that the Applicant would experience harm, and to what extent, had a logical and probative basis. The Minister submitted that the reports referred to by the Applicant were not at odds or inconsistent with the 2017 DFAT Report and the IAA noted there were ongoing reports of torture.[48] I accept the Minister’s submissions.
[48] Transcript P23:L10-13.
Particular (a) has not been made out.
Assessment of whether to consider new information
The Applicant contended that the IAA acted unreasonably in not exercising its discretionary power under s 473DC and/or s 473DD and therefore acted unlawfully and committed jurisdictional error. The Applicant contended that the IAA failed to exercise its discretionary power to get information reasonably because it did not seek or uncover information relating to the abuse of human rights in Sri Lanka.[49] The Applicant’s Counsel submitted that it was unreasonable to not seek new information as the IAA was put on notice by the Applicant of more recent country information and consistent information regarding the continuity of concern about the situation of human rights.[50] Counsel for the Applicant submitted that the proper exercise of the discretion to consider new information should have resulted in the IAA asking “what’s going on now in March 2018”.[51]
[49] Applicant’s Submissions, [20]-[23].
[50] Transcript P37:L39-P38:L8.
[51] Transcript P9:L28-29.
The Minister submitted that the IAA was under no duty to get information and there was nothing unreasonable about the IAA having regard to the 2017 DFAT Report which was before the Delegate. Counsel for the Minister submitted that the IAA reasonably relied on the 2017 DFAT Report as: it was open to it to rely on the 2017 DFAT Report as a more authoritative source of information; and there was no evidence of other more recent country information justifying a speculative search.[52] The Minister set out the statutory context and submitted that the IAA did precisely what the statutory scheme required and that the IAA was not obliged to explain the refusal to exercise its discretion. The Minister further submitted that any finding that the treatment of s 473DD(a) was unreasonable would be immaterial when the IAA had found the Applicant did not satisfy ss 473DD(b)(i) and (ii).
[52] Transcript P23:L15-
As cited by the Applicant, the Full Court of the Federal Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 held at [15] that:
15.[…] s 473DC(2) leaves unconfined the discretionary power conferred by s 473DC(1) to “get any document or information (new information) that ... the Authority considers may be relevant”, other than the constraint that the discretion must be exercised in a manner which best promotes the object and purpose of the Migration Act as a whole and gives effect to (in particular) the fast track review process”.
The Applicant has not demonstrated why and how the IAA did not employ an evident, transparent and intelligible justification within its decision-making process: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, at [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, at [47]. The IAA relied upon the country information before it, particularly the 2017 DFAT Report and it can give such weight to the evidence as it thinks appropriate in the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464, at [27]. The IAA considered various sources of country information dating from 7 March 2012 to 20 July 2017. The Review Application was before the IAA from 8 December 2017 to 19 March 2018. The IAA considered the information within the 2017 DFAT Report which assessed the risk of harm as a result of torture as low. The IAA was not satisfied that there were exceptional circumstances as it was unclear how the broad material provided by the Applicant was relevant to the Applicant’s personal claims. The IAA made findings, which are not in dispute, as to the Applicant’s profile and level of adverse interest by authorities.
The IAA was not required to go looking for further information that ‘might’ have helped its decision given the statutory scheme for fast track reviews and the reliable information before it. Particular (b) has not been established.
The Applicant has not identified how the IAA’s analysis of whether there were exceptional circumstances was unreasonable and unreasonableness is not apparent on the material. Further any unreasonableness regarding the determination of exceptional circumstances is immaterial. The Applicant has not established any jurisdictional error in relation to Ground 3. Ground 3 must be dismissed.
CONCLUSION
No jurisdictional error can be found in the IAA’s Decision. The Amended Application must be dismissed.
The Minister sought costs fixed in the scale amount.[53] Item 3 of Division 1 of Part 2, Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) provides that the scale amount for a migration proceeding concluded at final hearing is $8,371.30.
[53] Transcript P35:L1-3.
Orders will be made accordingly.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 1 February 2024
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