BWT17 v Minister for Immigration
[2020] FCCA 2204
•4 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWT17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2204 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded outside his local area – whether the Authority misapplied the real chance test or unreasonably failed to invite or consider inviting the applicant to provide further information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.425, 473CA, 473CB, 473DB, 473DC, 473DE, 473EA, 473GB |
| Cases cited: AIE15 v Minister for Immigration [2018] FCA 610 BCQ16 v Minister for Immigration [2018] FCA 365 BMB16 v Minister for Immigration (2017) 253 FCR 448 BMV16 v Minister for Home Affairs [2018] FCAFC 90 BVD17 v Minister for Immigration (2018) 261 FCR 35 BVD17 v Minister for Immigration [2019] HCA 34 CCQ17 v Minister for Immigration [2018] FCA 1641 CPE15 v Minister for Immigration [2017] FCA 591 DGZ16 v Minister for Immigration [2018] FCAFC 12 DIN16 v Minister for Immigration & Anor [2019] FCCA 1150 DRO17 v Minister for Immigration & Anor [2018] FCCA 3547 DTK17 v Minister for Information [2018] FCAFC 170 DZU16 v Minister for Immigration (2017) 321 FLR 306 Minister for Immigration v CRY16 (2017) 253 FCR 47 Minister for Immigration v DZU16 [2018] FCAFC 32 Minister for Immigration v EEI17 (2018) 261 FCR 461 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZVFW [2018] HCA 30 Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173 Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481 VAAD v Minister for Immigration [2005] FCAFC 117 |
| Applicant: | BWT17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSSESSMENT AUTHORITY |
| File Number: | SYG 1322 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Selliah of Rasan T Selliah & Associates |
| Solicitors for the Respondents: | Ms S Burnett of Clayton Utz |
ORDERS
The amended application the subject of leave granted on 10 August 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1322 of 2017
| BWT17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 7 April 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
On 10 October 2012 the applicant arrived on Cocos (Keeling) Islands by boat as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 47
On 19 October 2012 the applicant participated in an “entry interview”.[2]
[2] CB 1
On 29 February 2016 the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).[3] The application included a typed statement by the applicant which set out his claims.[4]
[3] CB 25
[4] CB 68-73
On 21 July 2016 the applicant participated in an interview with the delegate.[5] Some of the applicant’s evidence is set out in the delegate’s decision dated 27 September 2016.[6]
[5] CB 109
[6] CB 131-148
On 27 September 2016 the delegate made a decision refusing to grant the applicant a SHEV.[7]
[7] CB 131
On 4 October 2016 the Authority informed the applicant that the Minister’s decision had been referred to the Authority for review. The letter provided the applicant with information about the Authority.[8] On 17 October 2016 the applicant’s migration agent sent submissions to the Authority.[9]
[8] CB 149-150
[9] CB 151-154
On 7 April 2017 the Authority made a decision affirming the delegate’s decision not to grant the applicant a SHEV.[10]
[10] CB 159-178
In summary, the applicant claims to fear harm from the Criminal Investigation Department (CID), Sri Lankan Army (SLA) and/or the police, local Sinhalese thugs and villagers as a Tamil from Sri Lanka whose family faced previous harm due to their ethnicity, involvement in elections and imputed connections with the Liberation Tigers of Tamil Eelam (LTTE).[11] The applicant also claims to fear harm as a failed asylum seeker who departed Sri Lanka illegally.
[11] Authority’s decision at [5], CB 161-162
Authority decision
The Authority observed that it had received submissions from the applicant after the delegate's decision. The Authority considered that they contained legal argument rather than new information, and took them into account. The Authority also took into account new information in the form of a Department of Foreign Affairs and Trade (DFAT) report that post-dated the delegate's decision.[12]
[12] Authority’s decision at [3], CB 161
The Authority accepted that the applicant and his family had faced previous harm, and that there are credible risks from Sinhalese thugs and/or corrupt local officials in his mother's home village. However, the Authority did not consider that the applicant faced a real chance of harm in his other home with his father in Batticaloa. The Authority:
a)did not accept that the applicant or his father were threatened during the 2012 election, finding it implausible that the Karuna Group would not have pursued things further after the applicant's father was said to have refused to comply with their threats;
b)found that the applicant did not and would not have an adverse profile outside of his mother's home village;
c)observed that country information did not support the applicant's claims to face a real risk of the relevant harm, based upon his ethnicity, family experiences or otherwise. Whilst the Authority considered Batticaloa to be the applicant's home area, it also found that, if it were wrong, it would in any event be reasonable for the applicant to relocate there.
In respect of the complementary protection assessment, the Authority relied upon each of its earlier findings and the equivalence between the "real risk" and "real chance" standards to find that the applicant would not face a real risk of significant harm if he were to be returned to Sri Lanka.[13]
[13] Authority’s decision at [56]-[57], CB 173-174
The present proceedings
These proceedings began with a show cause application on 2 May 2017. The application was allocated to the docket of Judge Barnes, but at a callover on 15 March 2019, the matter was transferred to me.
At the trial of this matter on 10 August 2020, I gave the applicant leave to rely upon an amended application. That application retains the first ground in the original application and removes former Grounds 2, 3 and 4. An additional Ground 5 is added. As thus amended, the grounds are:
Ground 1
The Second respondent incorrectly or wrongly considered the real chance test and thereby committed a jurisdictional error. The Second Respondent in this context asked a wrong question and identified a wrong issue.
Particulars
The Second respondent accepted at paragraph 9 that his uncle was subjected to a protracted detention by the Sri Lankan authorities, purportedly on suspicions of LTTE involvement or connection. His mother was also detained on several occasions, resulting her fleeing the country at one point….and grandfather was subjected to torture and succumbed to death. The Second Respondent also accepted at paragraph 13 that the applicant experienced mistreatment, harassment and beatings by local officials the army/police, and Sinhalese, villagers and thugs as well as curfews and restrictions on his and family movements.
At paragraph 15 it was concluded that "I am satisfied the applicant's family had no such links, and while I accept his family has faced arrest, detention and mistreatment on LTTE suspicion in the past, I am satisfied he has no such profile".
There is no consideration or finding of the consequences that would occur if the returned to Sri Lanka as an illegal boat arrival with family LTTE link or no consideration in the near future in the context of risk profiles recognised in the UNHCR guide line.
Ground 5
The second respondent’s failure to invite the applicant to clarify in writing or at an interview under ss 473DC(1) and 473DC(3) of the Migration Act 1958 (Cth) was legally unreasonable in the particular circumstances of this case where the dispositive issue of the applicant’s relocation to Batticaloa was not a reasons or part of the reasons for affirming the delegate’s decision (Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475.
Particulars
(a) Regarding the applicant’s refugee assessment, the second respondent stated the following at paragraph 22: "Weighing all the evidence, I am prepared to accept that there are credible risks to the applicant and his family in his mother's home area from Sinhalese thugs and/or corrupt local officials, and that there is a more than remote chance that he could be seriously harmed if he were return to that area."
At paragraph 23, the second respondent concluded that "For those reasons, I am satisfied that any risks to the applicant (or his family) within this area are localised and do not relate to all areas of the receiving country and, having regard to s.5J(1)(c), I find his fears of persecution on this basis are not well founded."
(b)Regarding the applicant's complementary protection assessment, the second respondent concluded the following at paragraph 56: "Weighing all the evidence before me, I find it would be reasonable for the applicant to relocate to an area of the country (Batticaloa) where there would not be a real risk that the applicant will suffer significant harm. It follows that there is not a real risk that the applicant would suffer significant harm if he were returned to Sri Lanka."
(c)The delegate did not consider the issue of relocation at all; the delegate did not accept that the applicant would face significant or serious harm in the entirety of Sri Lanka, whether in Batticaloa or any other area.
(d)At page 24 of the protection visa interview transcript, the delegate only asked "So other than Thalavakalai and Batticaloa is there any other place do you think you could live without any hassles caused by people in Thalavakalai or Karuna group?", to which the applicant responded through an interpreter, "Definitely not. I don't think to live longer than 2 days in other places because when I go to Thalavakalai I have to go to signing thing and I can't leave to any other place. More than this I won't be alive.". No further expansion nor clarification of this issue occurred in the interview.
In addition to the court book lodged on 18 August 2017, I received as evidence the affidavit of Dinesh Kumar Jaganathan made on 12 March 2019, to which is annexed a transcript of the applicant’s protection visa interview.
Consideration
Ground 1 – did the Authority misapply the real chance test?
The applicant asserts that the Authority misapplied the real chance test and fell into jurisdictional error in failing to assess the applicant’s position into the “reasonably foreseeable future”. The Minister contends that there is no basis for this ground.
The applicant’s submissions traverse at length the principles to be applied, with which I have no difficulty, but I prefer and adopt the Minister’s submissions in relation to this ground in the application of general principles to the facts of the case.
It may readily be accepted that a proper application of the "real chance" test involves a "forward-looking" assessment of the circumstances which an applicant may face on return to the receiving country, both immediately and into the "reasonably foreseeable future".[14]
[14] AIE15 v Minister for Immigration [2018] FCA 610 at [26]-[31] and authorities cited therein
Any such assessment must be based on "probative material but without extending into guesswork".[15] Thus, evidence of past events and present circumstances are ordinarily relevant as "the most reliable guide as to what will happen in the future".[16]
[15] CPE15 v Minister for Immigration [2017] FCA 591 at [59]-[60]
[16] Minister for Immigration v Guo (1997) 191 CLR 559, 575
I accept that this is the type of reasoning which the Authority adopted in this case. Furthermore, the Authority's reasons indicate a proper assessment of the applicant's likely circumstances in the reasonably foreseeable future both in terms of:
a)its consideration of the applicant's profile in the past; and
b)in analysing the consequences of his return to Sri Lanka while being processed as an illegal departee.
In this regard, the Authority found that:
a)"in view of the country information about the improved situation and the reduction of questioning and detention of ordinary Tamils, including those from former-LTTE areas in the east of Sri Lanka, and having regard to the applicant's low profile", the applicant would not face a real chance of being harmed by the Sri Lankan authorities, the SLA or police, or any paramilitary (including the Karuna Group), or any other group or person (including Sinhalese persons) on the basis of his ethnicity, for any actual or imputed political opinion or profile, or any past history or profile of his family;[17]
b)given the applicant's previous lack of profile, he would not be targeted or harmed on the basis that he insulted Sri Lanka or made claims against the government. The Authority observed that the applicant was one of thousands of Sri Lankan men and women that have left Sri Lanka and sought work or asylum overseas. It noted that the country information indicates that returnees may face certain issues on return, but these are due to economic factors, or where there is some existing higher profile; [18]
c)notwithstanding the significant improvements in the security situation for Tamils, there is a real question about the specific environment in the applicant's mother's home. The Authority noted that, while it expected the country information likely reflected the situation in the home area of the applicant's mother, in light of the depth of the applicant's family hardships, and the apparent high level of corruption in the mother’s home area between the authorities and Sinhalese thugs, it was concerned those risks remained extant. For this reason, it was prepared to accept that there are credible risks to the applicant and his family in his mother's home from Sinhalese thugs and/or corrupt local officials and "that there is a more than remote chance that the applicant could be seriously harmed";[19]
d)there was not a real chance the applicant would be harmed "in the future"[20] should he return to Batticaloa, his father's home area. In so finding, the Authority considered the applicant's claims that his father was threatened during the elections in 2012 and that he and his father would be killed by the Karuna Group. However, it rejected those claims as not credible.[21] The Authority further gave consideration to country information noting the reductions in electoral violence in the country, the growth of Tamil political parties in the country and corresponding reduction in the activities and influence of paramilitary groups like the Karuna Group;[22]
e)by reference to country information, accepted that there have been credible risks to persons with certain profiles returning to Sri Lanka but was not satisfied those reports "are indicative of the circumstances that would be faced by the applicant upon return, in particular, given his low profile".[23]
[17] Authority's decision at [18], CB 166
[18] Authority's decision at [21], CB 167
[19] Authority's decision at [22], CB 167
[20] Authority's decision at [31], CB169
[21] Authority’s decision at [25]-[31], CB 168-169
[22] Authority’s decision at [31], CB 169
[23] Authority’s decision at [42], CB 171
I accept that each of these matters referred to above are "forward-looking" assessments of whether the applicant would face a real risk of harm in the "reasonably foreseeable future" on return to Sri Lanka. In making those findings, the Tribunal engaged with relevant country information in its analysis and, by reference to that information, disposed of the applicant's claims to fear harm in Batticaloa or Sri Lanka more generally, as it was entitled to do.
The applicant's reliance on DRO17 v Minister for Immigration & Anor[24] is misplaced. As observed at [12] of DRO17 by Judge Smith:
At a high level, [“the real chance test”] requires no less than a reasonable speculation about what might occur in the reasonably foreseeable future on the hypothesis that a visa applicant is returned to his or her country of nationality. In addressing that test it is accepted, and clearly logical that what has occurred in the past is relevant to determining what might occur in the future. However, it is not necessarily decisive of that question. Whether it is decisive or not depends upon the facts.
(counsel’s emphasis retained)
[24] [2018] FCCA 3547
The facts in DRO17 were quite different to those here. Most critically, in DRO17, the applicant was found by the Authority to have in the past supported the LTTE by storing weapons for a prominent leader of the LTTE which would have, on the Authority's own findings in DRO17, given the applicant a profile which could have led to further persecution of the applicant.[25] By contrast in this matter, the Authority:
a)did not accept the applicant was responsible for the concerns facing his family both in his mother’s home and Batticaloa noting the applicant was very young and many of the events in his mother's home area took place during or in the aftermath of the civil war;[26]
b)whilst accepting that the harassment and mistreatment the applicant faced during his time in his mother's home village increased when he became a teenager, the Authority was satisfied that this was not due to the applicant being targeted for any reason specifically, but rather because he was a young Tamil from a Tamil family in a Sinhalese majority area;[27]
c)noted the applicant's evidence that he was never detained or interrogated by the authorities. It found that this was because the authorities did not consider him to be connected to the LTTE or otherwise to have any adverse profile, even accounting for his uncle's past detention on suspicion of being involved with the LTTE.[28]
[25] DRO17 at [29].
[26] Authority’s decision at [10], CB 164
[27] Authority’s decision at [10], CB 164
[28] Authority’s decision at [13], CB 165 and see also [14]-[15] of the Authority’s decision at CB 165
By Ground 1, the applicant also contends that the Authority's consideration of the applicant's claims surrounding his father's position as a policeman of Tamil ethnicity reflects a failure to apply the required "what if I am wrong" approach.[29]
[29] applicant's submissions at [26]-[31]
The applicant relies on:
a)the "limited weight" attached by the Authority on the complaint/card receipt (Complaint Card) from the Human Rights Commission in Batticaloa;[30] and
b)the use of the term "will likely" in [32] of the Authority’s decision[31] where the Authority stated, "I consider that the marginalisation, discrimination and other pressures the applicant's father has experienced in the past will likely be tempered by significant changes in the Country...", as indicating doubt in the Authority’s findings.
[30] applicant's submissions at [26]
[31] CB 169
The Authority is not bound to undertake a "what if I am wrong" approach where it has "no real doubt" that its findings were correct, or the probability of error in its findings was "insignificant".[32] When read in context, the use of the words "limited weight" and "will likely" did not suggest that the Authority had doubts as to its ultimate findings. The Authority expressly and conclusively rejected (without indicating any lingering "doubt"):
a)the applicant's claim that he and his father were threatened by the Karuna Group or any other paramilitary group during the 2012 election or any time.[33] The attachment of limited weight by the Authority to the Complaint Card and its finding that it provided little corroboration of the applicant's claims does not undermine the conclusiveness of the Authority’s ultimate finding; and
b)the claim that the applicant had ever been harmed or threatened in connection with his father's job as a policeman, or that there was any real chance of them being harmed on this basis in the future.[34] The Authority’s observation that “the marginalisation, discrimination and other pressures the applicant's father has experienced in the past will likely be tempered by significant changes in the Country”, read in context, does not undermine the Authority's ultimate finding on this issue or suggest "uncertainty" in its ultimate finding.
[32] Guo at [61]
[33] Authority’s decision at [31], CB 169
[34] Authority’s decision at [32], CB 169
In circumstances where the Authority did not entertain any real doubt as to the correctness of its findings, it was unnecessary for the Authority to ask itself "what if I am wrong?" To do so would require the Authority to "second-guess" its own conclusive findings, which exceeds the scope of the "what if I'm wrong?" test.
No error is disclosed in the Authority’s decision by Ground 1 of the amended application.
Ground 5 – did the Authority unreasonably fail to invite (or consider inviting) the applicant to provide further material in writing or at interview under s.473DC(1) and s.473DC(3)?
In granting leave for the application being amended to include this ground, I accepted that it was arguable.
Under ss.473DC(1) and 473DC(3) of the Migration Act 1958 (Cth) (Migration Act), the Authority possesses the discretionary power to invite a person to give new information. However, the applicant submits that the Authority’s failure to use this discretionary power to invite the applicant to clarify in writing or at an interview regarding the particular circumstances of the case where a reason for affirming the delegate’s decision was not connected to the delegate’s decision was legally unreasonable.
In Minister for Immigration v CRY16,[35] which concerned a SHEV applicant from Lebanon, Murphy, and Kerr JJ stated the following at [82]-[83]:
Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
As in Li, at [82], it is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed.
[35] (2017) 253 FCR 475
Further, in DZU16 v Minister for Immigration,[36] which concerned a protection visa applicant from Afghanistan, at first instance I noted the following at [122]:
Thus, contrary to the Minister’s submissions, it was unreasonable for the Authority not to consider giving the applicant an effective opportunity to address the issue that it found dispositive. Although it thought it was acting under s 473DE in sending the letter of 27 October 2016 it should have acted or considered acting pursuant to s 473DC(3). Given that the giving of that letter, at least insofar as raising the issue about relocation to Mazar-e-Sharif was concerned, was fundamental to the review, it follows that an error in identifying the relevant statutory provision, calculating a statutory response time, or unreasonableness in insisting on a particular form or timeframe of response, would unreasonably deny the applicant the opportunity to respond consistently with the provisions of Pt 7AA and thus is a jurisdictional error.
[36] (2017) 321 FLR 306
In the applicant’s present case before this Court, he submits that the Authority also failed to use its discretion under ss.473DC(1) and 473DC(3) to invite him to give information about the possibility of avoiding harm by relocation to a different area of Sri Lanka. The Authority stated the following at [22]-[23] of its decision in relation to the applicant’s refugee assessment:
… Weighing all the evidence, I am prepared to accept that there are credible risks to the applicant and his family in his mother’s home area from Sinhalese thugs and/or corrupt local officials, and that there is a more than remote chance that he could be seriously harmed if he were return to that area.
However, in order for the fear of harm to be well-founded, it must relate to all areas of the receiving country. The delegate asked the applicant why the applicant could not return to live in his father’s home area in Batticaloa. The applicant referred to the specific risks to him and his father in Batticaloa, but not to the risks related to his mother’s home village. He confirmed nothing had happened to him in Batticaloa specifically, nor had he been threatened by the Sinhalese thugs from his mother’s area while he was there. He did confirm, however, that his mother remained under threat. It is apparent from his evidence that while he considers the threats in his mother’s home area to be credible and ongoing, he has not faced threats or harm for those reasons outside of this area, and indeed he moved to Batticaloa to avoid being harmed further. There is no country information before me to suggest that Tamils are targeted for harm by Sinhalese thugs in the east of Sri Lanka. For those reasons, I am satisfied that any risks to the applicant (or his family) within this area are localised and do not relate to all areas of the receiving country and, having regard to s.5J(1)(c), I find his fears of persecution on this basis are not well-founded.
The Authority also concluded the following at [56] of its decision regarding the applicant’s complementary protection assessment:
… I accept it would be challenging for him to be away from his mother and other family members due to the risks in his home area, however I do not accept this would make it unreasonable for him to relocate elsewhere. ... Weighing all the evidence before me, I find it would be reasonable for the applicant to relocate to an area of the country (Batticaloa) where there would not be a real risk that the applicant will suffer significant harm. It follows that there is not a real risk that the applicant would suffer significant harm if he returned to Sri Lanka.
However, the dispositive issue of relocation is said to be nowhere to be found in the delegate’s original decision. Further, while the Authority claims that the delegate did ask the applicant why he could not return to live in his father’s home area, the reality is said to be that the delegate’s question about location was brief and should merely be regarded as a passing remark. Page 24 of the applicant’s protection visa interview transcript is said to demonstrate the brevity and insignificance of the delegate’s enquiry:
[Delegate]: So other than … and Batticaloa is there any other place do you think you could live without any hassles caused by people in … or Karuna group?
[Interpreter]: Definitely not. I don’t think to live longer than 2 days in other places because when I go to … I have to go to signing thing and I can’t leave to any other place. More than this I won’t be alive.
Moreover, the delegate did not seek to clarify nor expand on this enquiry to make it a live issue and immediately proceeded to address a different issue following the above question. More importantly, the complete omission of the matter of relocation in the delegate’s decision record is said to evidence its irrelevance to the delegate.
Further, the applicant submits that the Authority’s failure to exercise its ss.473DC(1) and 473DC(3) discretion in this case represents a greater degree of legal unreasonableness than DZU16. Unlike the applicant in DZU16, the applicant in the present case did not even receive any s.473DE letter; the applicant was “completely unaware of the important dispositive issue of relocation, which is a vital issue that affects a favourable protection visa assessment”.
While I accept that this ground is arguable, I am not satisfied that it has been established. I prefer and adopt the submissions of the Minister in relation to this ground.
The obligation of the Authority is to review a fast track reviewable decision referred to it by the Minister pursuant to s.473CA of the Migration Act. The Authority’s duty is to consider the application for a protection visa afresh (or de novo) and to determine for itself whether or not it is satisfied that the criteria for the grant of the protection visa have been met.[37] This has been reinforced in numerous cases, including Plaintiff M174/2016 v Minister for Immigration[38] per Gageler, Keane and Nettle JJ at [17].
[37] DTK17 v Minister for Information [2018] FCAFC 170
[38] (2018) 92 ALJR 481
Further the manner in which the Authority is to conduct the review of a fast track decision is without accepting or requesting new information and without interviewing the referred applicant.[39] The review material provided by the Secretary of the Minister’s Department pursuant to s.473CB(1) is expressly limited.
[39] Migration Act, s.473DB
The discretionary powers conferred on the s.473DB of the Migration Act by Division 3 of Part 7AA, including s.473DC(3), are conferred on the implied condition that they are to be exercised reasonably.[40] In undertaking analysis of whether the circumstances of a particular case can properly be analysed as unreasonable, due regard must be given to the broad zone of “decisional freedom” that a decision-maker has.[41] Reasonableness is informed by the subject matter, scope and purpose of the legislation in question.[42] The test for unreasonableness is necessarily stringent.[43]
[40] Nettle and Gordon JJ in Minister for Immigration v SZVFW [2018] HCA 30 at [89]
[41] Minister for Immigration v Li (2013) 249 CLR 332, per French CJ
[42] BCQ16 v Minister for Immigration [2018] FCA 365 [71] per Thawley J; SZVFW at [11]-[13] per Kiefel CJ; SZVFW at [88]-[90] per Nettle and Gordon JJ
[43] SZVFW at [11] per Kiefel CJ
For the purposes of the discretion in s.473DC(3), the applicable principles have been conveniently set out in the decision of Thawley J in CCQ17 v Minister for Immigration.[44] His Honour noted at [38]-[49] of the judgment that there may be circumstances in which it is legally unreasonable to fail to consider exercising the discretion under s.473DC(3). In that regard, it may, in the applicable circumstances of each case, be legally unreasonable for the Authority “not to consider getting documents or information from the respondent”.[45]
[44] [2018] FCA 1641
[45] CRY16 [at [82]; DGZ16 v Minister for Immigration [2018] FCAFC 12
In Minister for Immigration v DZU16[46] the Full Federal Court also emphasised that “particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion” at [80]-[81]. CRY16, DGZ16 and DZU16 are authority for the limited or narrow proposition that a conclusion about legal unreasonableness in respect of the non-exercise or non-consideration of the power in s.473DC(3) is dependent upon a careful analysis both of the particular circumstances and the way in which the claims by the applicant have been put.
[46] [2018] FCAFC 32
The Full Federal Court in DGZ16 confirmed that the appropriate starting point for consideration of these issues was not Part 7 but the terms of Part 7AA. It further confirmed at [75]-[76] that s.473DA(1) constituted an exhaustive statement of the natural justice hearing rule; there was no equivalent obligation to s.425 under Part 7AA of the Migration Act and the Authority was permitted to depart from a finding of the delegate without informing the applicant.[47]
[47] see also BMB16 v Minister for Immigration (2017) 253 FCR 448 at [96]
In CCQ17, Thawley J noted the following:
a)the appellant bears the onus of establishing the factual foundation for the conclusion that there was a failure to consider the exercise of the discretion and that this failure was a jurisdictional error;[48]
b)section 473EA(1) does not require the Authority’s statement of decision to include a statement as to the exercise of a procedural decision;[49]
c)the absence of a reference to the consideration or exercise of a discretion does not of itself give rise to an inference that its exercise was not considered;
d)there are no fixed categories of circumstances where it would be legally unreasonable to fail to consider the discretion in s.473DC(3); and
e)the discretion must be approached through the lens of the statutory scheme and not the general law principles of procedural fairness.[50] The discretion must be read with s.473DC(2) which provides that there is no duty on the Authority to get, request or accept new information. Other features of the statutory scheme that are relevant include that s.473DE(3)(a) can be used to affirm a decision without giving a referred applicant an opportunity to be heard on relevant country information and Part 7AA, pursuant to s473DB(1), contemplates that the default position is that there will be a limited review on the papers.
[48] VAAD v Minister for Immigration [2005] FCAFC 117 at [45]; Minister for Immigration v SZGUR (2011) 241 CLR 594 at [67]
[49] BCQ16 at [45], [49]
[50] BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81]
The applicant in this case argues that the Authority failed to exercise the discretion in the present case. The Authority was under no obligation to alert the applicant to the fact that it would depart from a finding of the delegate; that arises from the terms and effect of Part 7AA. It was not under any duty to get further information or required to identify reasons why it did not seek to exercise the discretion. That is the relevant statutory background against which to assess the reasonableness of failing to exercise the power under s.473DC(3) of the Migration Act.
The primary response to this ground is that the applicant has failed to demonstrate that the Authority did not consider the exercise of its power in s.473DC(3) of the Migration Act.
The applicant bears the onus of proving, on the balance of probabilities, the basis for drawing the inference necessary to make out the alleged jurisdictional error on the part of the Authority.[51] In the present context, the applicant is required to “establis[h] the factual foundation from which it can be inferred that the Authority failed to consider the exercise of its discretion”[52] under s.473DC(3) of the Migration Act. As the Full Federal Court held in respect of the discretionary power in s.473GB(3)(b), “[t]he Minister does not need to establish that the Authority had indeed considered the exercise of the discretion.”[53] There is no good reason why that reasoning should not apply to the Authority’s discretionary power in s.473DC(3).
[51] SZGUR 616 [67]-[68] per Gummow J, 623 [91] per Heydon J, 623 [92] per Crennan J; Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173 at 185 [24] per French CJ, Bell, Keane and Gordon JJ
[52] BVD17 v Minister for Immigration (2018) 261 FCR 35 (BVD17 – Full Court) at 45 [41] per Flick, Markovic and Banks-Smith JJ
[53] BVD17 – Full Court at 45 [41]
The fact that the Authority did not refer to, or explain, the exercise of the power under s.473DC(3) does not, of itself, supply the inference that it failed to consider its exercise, as “the Authority, in giving reasons for th[e] ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as th[at] conferred on it by s 473DC(1)”.[54]
[54] BVD17 v Minister for Immigration [2019] HCA 34 (BVD17 – High Court) at [16] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. See also BVD17 – Full Court at 45 [42], 47 [49]; Minister for Immigration v EEI17 (2018) 261 FCR 461 at 474 [49] per McKerracher, Gleeson and Burley JJ and DIN16 v Minister for Immigration & Anor [2019] FCCA 1150 at [41] per Markovic J
Alternatively, if I am wrong in the foregoing analysis, I also accept that the non-exercise of the power in s.473DC of the Migration Act was not unreasonable
In the present case:
a)the Authority’s decision as to "relocation" at [56] was made in the alternative and in the event that the Authority was wrong regarding the question of the applicant's home area. No error is disclosed in the Authority’s finding on the question of the applicant's home area;
b)the applicant at [46] and [47] of his statement to the delegate dated 23 February 2016 made submissions on the question of relocation; and
c)the applicant was provided with an opportunity to explain why he could not relocate during the visa interview when asked whether he could live in Batticaloa or relocate to another area.
In light of the above matters, any non-exercise of s.473DC of the Migration Act could not be said to be lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
In the absence of further information from the applicant, the Authority was forced to deal with alternative propositions in making its complementary protection assessment. Inviting further information from the applicant might well have made the Authority’s decision simpler but its failure to make that invitation was not unreasonable.
I reject this ground.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 September 2020
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