BXZ16 v Minister for Immigration

[2018] FCCA 2833

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXZ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2833

Catchwords:

MIGRATION – Application for judicial review of decision of Independent Assessment Authority (IAA) affirming decision not to grant a Safe Haven Enterprise visa – whether IAA was required to give particulars of information to the applicant – whether IAA ought to have construed Part 7AA of the Migration Act 1958 (Cth) having regard to Art.12(2) of the Convention on the Rights of the Child – whether IAA acted irrationally or unreasonably in not accepting that a parent would send a child away from home without the parent giving any reason to the child – whether IAA considered claim based on data breach – whether IAA conducted a qualitative assessment of whether the applicant’s imprisonment on his return to his country of nationality would constitute serious harm – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J(5), 36(2)(aa), 36(2A), 91R, 473DA, 473DD, 473DD, 473DE, 473GA, 473GB, 476

Cases cited:

Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29
Minister for Immigration v WZAPN [2015] HCA 22
SZSSJ v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 125

Applicant: BXZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1941 of 2016

Judgment of: Judge Manousaridis

Hearing date: 28 September 2017

Date of Last Submission: 28 September 2017

Delivered at: Sydney

Delivered on: 5 October 2018

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Shelly Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1941 of 2016

BXZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Sri Lanka, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).

2. It will be convenient to set out the history of the applicant’s application for a SHEV and, in that context, set out the applicant’s claims for protection.

Background and claims for protection

1. The applicant is a Tamil and a Christian. He was born in 2001 and comes from a town in the Ratnapura District in Sabaragamura Province.

2. The applicant first arrived at the Cocos Islands by boat on 29 April 2013. He arrived with his uncle, aunt, their son, and another cousin. The applicant’s uncle and aunt were interviewed by officers of the Department of Immigration and Border Protection (Department) and, after all the members of the family group were “screened out” under the “Enhanced Screening process”, the applicant was returned to Colombo on 22 May 2013.[1]

   [1] CB126-127

3. On 19 July 2013 the applicant again arrived at the Cocos Islands by boat,[2] and on 12 August 2013 attended an “Irregular Maritime Arrival & Induction Interview” (Entry Interview).[3] The applicant there said he left Sri Lankan because “Singhalese people came to my house broke the house they are threatening and they asked money from my dad and if they didn’t give it they were going to take me”. [4] The applicant said he did not know how many men came because he was at school at the time they came, but he said “[t]hey broke my dad’s head”. In response to the question why the people wanted money from the applicant’s father the applicant said: [5]

   Someone came to ask the bicycle from my father’s friend they asked for my father’s bicycle and my mother didn’t give. The people were angry and they broke our house.

   [2] CB127

   [3] CB1-16

   [4] CB8

   [5] CB8

4. The applicant also said he had been arrested and kept for one day for trying to come to Australia.

5. On 23 September 2015[6] the applicant applied for a SHEV with which he provided a statement dated 11 September 2015 (Statement) in which he made the following claims:[7]

   [6] CB23

   [7] CB76-80

   a)In or shortly before March 2011 the applicant was involved in an incident at school. While playing tip and run the applicant tipped another boy on the shoulder. The other boy fell and hit his head on a stone. The applicant was blamed. It was said the applicant pushed the other boy, and it was alleged the applicant caused the other boy to go into a coma.

   b)Soon after the incident the applicant was staying with his aunt’s place in Colombo. The applicant’s parents were worried about his safety because they thought the other boy’s family would hurt the applicant in revenge. The applicant claimed it “is common that people will take revenge in Sri Lanka”.

   c)Four or five times during 2011, including in July 2011, the other boy’s parents came to the applicant’s house and threatened the applicant’s parents that ““we will kill your son” or do the same thing to your son that he did to my son (ie. put me in a coma)”.

   d)The other boy’s parents also came in August 2011 to threaten the applicant’s father. The applicant’s mother told the applicant the other boy’s parents asked where the applicant was, demanded that the applicant’s parents “bring him here”, and threatened to “do something to your husband”. The applicant’s father was detained from about August 2011 until December 2011. The applicant’s mother “paid for some treatment for the boy in the coma and then my father was let out of prison”. The other boys’ parents made a number of further threats in 2012.

   e)On a night in 2012 a Singhalese man came to the applicant’s house and asked for the applicant’s father’s motorbike. The applicant’s mother refused to give it and, after unsuccessfully attempting to gain access into the house, the Singhalese man left. Later in the evening “about 10-14 Singhalese speaking people came (some were relatives of the boy in the coma)”. They said they would bash the applicant, and that they will do something to the applicant. The applicant and his other family escaped through the back door, and hid under the bed in the neighbour’s house.

   f)When they returned to their home the following day, the applicant and his family saw that everything was broken. Later on that day the applicant’s father arrived. He was worried and wanted the applicant to have a safer life. He told the applicant he would try to organise for the applicant to go to Australia.

   g)The applicant and his family moved to a house of the applicant’s father’s friend and stayed there for about one month, and the applicant’s family got a new house in M. When the applicant went to the old home, the neighbours told the applicant’s father that the attackers had come back looking for the applicant’s family again. The next day, the applicant’s father sent the applicant to Colombo by bus with the applicant’s uncle. The applicant made it to Australia but was returned to Colombo and went to the applicant’s family new house at B.

   h)On his return to his home the applicant’s father told the applicant he needed to try to go to Australia again. The applicant’s father took him to Colombo and after staying in a hotel for some time the applicant’s father took him to the boat.

   i)The other boy’s father and another person came to the applicant’s family house in February 2013 and June 2014 asking of the whereabouts of the applicant. The father of the other boy and other people again came to the applicant’s family house, twice in July 2014 and once in August 2014, and the applicant’s father received a threat by telephone that “we will kill [the applicant] and your happiness will end”.

6. Before the delegate the applicant said his father had been imprisoned because the other boy’s parents made false allegations against the applicant’s father.[8] In addition, the applicant claimed his personal details had been disclosed by the Department on its website. That was a reference to the Department’s inadvertent release in February 2014 of personal information the nature of which the Department described as follows:[9]

   In February 2014, a routine report released on the department’s website unintentionally enabled access to some personal information about people who were in immigration detention in Australia on 31 January 2014. This information was accessible online for only a short period of time before it was removed from the website.

   [8] CB197-198, [27]

   [9] CB149, [131]

7. The applicant was in immigration detention on 31 January 2014, and he claimed he fears the disclosure would result in his being harmed if he returns to Sri Lanka.[10]

   [10] CB149, [131]

8. The delegate accepted the applicant is a Tamil and a Christian; he was involved in an incident at school with a Sinhalese boy, and that the boy was injured to some degree. The delegate found, however, that the applicant exaggerated the extent of the other boy’s injuries, and the delegate did not accept the other boy’s family harassed the applicant’s family. For these and other reasons, on 5 May 2016 the delegate refused to grant the applicant a SHEV.[11]

   [11] CB126-156

9. By letter dated 9 May 2016 the IAA informed the applicant that on 6 May 2016 the delegate’s decision has been referred to the IAA, and attached the IAA’s Practice Direction.[12] The Practice Direction referred to the applicant’s being able to provide written submissions on why the applicant disagrees with the delegate’s decision or any claim or matter presented to the delegate that was overlooked. The Practice Direction also referred to the possibility of the IAA being able to receive “new information”.

   [12] CB160-169

10. By letter dated 8 June 2016 the applicant’s representative provided submissions.[13] The representative’s letter also attached a statement of the applicant dated 16 September 2016 (Second Statement).[14] The representative identified the purpose of the letter as follows:[15]

    The decision made findings as to the lack of credibility of the seriousness of the major incident claimed by the applicant, being the 2011 school incident that resulted in a school boy going into a coma.

    The decision maker did not assess as credible that the incident could be so serious and yet the applicant not remember enough of what had occurred.

    Please find attached the Statement of the review applicant to the IAA. The review applicant’s mother has been asked what was and was not told to the review applicant and any information was withheld. This statement to the IAA explains the information received by his mother explaining why the applicant did not remember details of what had occurred, including that the seriousness of the incident was kept from the applicant.

    [13] CB178-186

    [14] CB182-183

    [15] CB178

11. In the Second Statement the applicant stated that after the 2011 incident the applicant’s mother moved the applicant to his aunt’s house for his safety, but the applicant’s mother kept the reason why he was moved from him; the applicant remembers his mother said he would be moving to a different house, a better house; the applicant’s mother told him that although the applicant knew the other boy got hit, “they kept the seriousness of the incident from the” applicant because they did not want the applicant to become upset and scared; the applicant’s mother said that in 2011 they did not think the applicant was mature for his age, and was easily scared so they did not take the applicant to the hospital to see the other boy; the applicant’s mother confirmed the applicant was not at the house when the parents of the other boy came and threatened him; the parents of the other boy kept shouting at the applicant’s parents and kept threatening the applicant; “[l]ast year in October” the applicant’s father paid the father of the boy in the coma 200,000 rupees, but the parents wanted 700,000 rupees in early September 2015; the applicant’s parents asked a lawyer to help record the payment, and this “was written down as a “promissory note””; the money was for medication for the other boy; the parents of the other boy again threatened the applicant in December 2015; in 2016 the paternal uncle of the other boy asked the applicant’s mother of the applicant’s whereabouts and threatened harm to the applicant; the applicant’s mother said that on 28 May 2016 four people came to their house and asked for the applicant’s father and threatened the applicant’s father to make the applicant return home (the applicant’s mother told the men the applicant was studying in India); there was a “miscommunication” in the Statement in that the payment to the other boy’s family, although requested, had not yet occurred; and the applicant’s mother told him that his father had been imprisoned twice, once in 2011, and another time in 2007 because he was suspected of having a connection with the LTTE (that is, the Liberation Tigers of Tamil Eelam).

12. The applicant’s representative’s letter also attached what it described as “the promissory note” which, it was submitted, “shows that the payment was made from the applicant’s father to the father of the boy in the coma”.[16] The “promissory note” is as follows:[17]

    I below signed [name and address] hereby state that, I borrowed a sum of Rupees Two Hundred Thousand (Rs.200,000/=) of lawful money of Sri Lanka from [name and address] subject to repayment to the above creditor or on his order with interest thereon at ------- percent.

    [16] CB180

    [17] CB185

IAA’s reasons

1. The IAA identified the information that was before it, including the applicant’s representative’s submissions of 8 June 2016 (which the IAA noted it received on 9 June 2016), the Second Statement and the promissory note. The IAA accepted that the information contained in the Second Statement that was provided by the applicant’s mother, and the translation of the promissory note, both constituted “new information” as defined in s.473DC(1) of the Act; and it was satisfied the information was not, and could not have been provided to the Minister before the Minister (through his delegate) made his decision not to grant a SHEV to the applicant, and that there are exceptional circumstances to justify its considering the new information.[18]

   [18] CB192, [6]

The 2011 incident

1. The IAA accepted the applicant was involved in an accident at school while playing tip, but it considered it more likely that the accident was minor and did not result in the other boy being in a coma, or that the applicant was sent to Colombo to avoid the possibility of angry repercussions from the boy’s parents immediately after the incident and he returned to live with his family after his mother deemed it safe for him to do so.[19] Nor did the IAA accept that the other’s boy’s parents demanded money from the applicant’s parents, or that the applicant’s parents paid any money to the other boy’s parents in December 2011 or in October 2015, or that the other boy’s family and friends made threats against the applicant by visiting his family home or by telephoning the applicant’s father, or when the applicant’s mother was seen in the street.[20] The IAA relied on a number of matters which included the following:

   a)Although the applicant may not have known the name of the other boy at the time of the accident, the IAA expected that by now the applicant would know the other boy’s name, given the applicant’s mother has given the applicant considerable information about the other boy’s injury.[21] Further, given the amount of contact the applicant claims his family has had with the other boy’s family, the IAA did not accept the applicant’s family would not know the other boy’s name or his state of health.[22]

   b)Although the IAA accepted that the applicant’s mother may have thought there may be some anger toward the applicant and the applicant went to stay with his aunt in Colombo immediately after the incident, the IAA did not accept the applicant would have been sent to Colombo without some explanation as to why he was going there so quickly and why he would not ever be returning to school.[23]

   c)The applicant did not provide evidence about how long he stayed at his aunt’s house. The IAA, however, found it implausible that the applicant, as he claimed he did, returned to live with his family in B in circumstances where threats had been made to the applicant’s mother in 2011 in the applicant’s absence in which she felt compelled to say that the applicant was studying in India.[24]

   d)The IAA found the “promissory note” was not evidence of a payment made in October 2015, “but evidence of a loan made by the applicant’s father to another person who lives in the same street”, and there “are no repayment terms and there is no interest rate”. The IAA did not accept that “a person demanding a payment to settle a dispute would sign a promissory note which confirms that he has borrowed the money and is obliged to pay it in the future”.[25]

   [19] CB197, [25]

   [20] CB197, [26]

   [21] CB196, [14]

   [22] CB197, [24]

   [23] CB196, [15]

   [24] CB196, [17]

   [25] CB197, [23]

Claimed imprisonment of father

1. The IAA did not accept the applicant’s claim that his father was detained by the police in 2011 for any reason. The IAA relied on its not having accepted the other boy was in a coma, or that the other boy’s family visited the applicant’s home or made threats against the applicant for his involvement in the accident. The IAA also relied on the applicant himself not having visited the applicant’s father in prison and the applicant’s father often being away from home for extended period due to his work in Colombo.[26] The IAA also did not accept the applicant’s claim that his father was detained in 2007 because very little detail was provided about this.[27]

   [26] CB198, [31]

   [27] CB198, [32]

Claimed house break-in

1. The IAA accepted the applicant’s home had been broken into. The IAA, however, preferred the account the applicant gave at the Entry Interview rather than what the IAA considered to be the inconsistent account the applicant gave in the Statement. The IAA did so because it was of the view that had the applicant been present at night when his house was broken into by many people and he and his mother were threatened, causing the family to flee by the back of the door (as the applicant claimed in the Statement), it is not plausible the applicant would forget those details at the Entry Interview and instead say he could not provide details of the break in because the applicant was at school. The IAA, therefore, accepted that the applicant’s home was broken into while the applicant was at school, that damage had been done to the walls and contents of the home and that the DVD player and cash were stolen, and that the applicant’s family moved to a friend’s house for a short while and then moved to a new house. The IAA did not accept, therefore, that the applicant or his mother were threatened during the break-in, or that the break-in was related to the incident with the other boy.[28]

   [28] CB200, [38]

Failed asylum seeker and data breach

1. The IAA accepted the applicant arrived in Australia by boat in April 2013, that he was returned to Sri Lanka in May 2013 where he was detained on arrival and released the following day, and that he travelled directly from Sri Lanka to Australia by boat in June 2013 for the second time without the knowledge of the Sri Lankan authorities. For those reasons, the IAA found that if the applicant were to return to Sri Lanka, he would be considered a failed asylum seeker who departed Sri Lanka illegally, and that he would be found to have departed Sri Lanka illegally twice.[29]

   [29] CB200, [39-40]

1. The IAA also accepted the applicant was in immigration detention on 31 January 2014; that on 31 March 2014 he was notified in writing that his personal details may have been unintentionally published online; and that some of the applicant’s personal details may have been published online.[30]

   [30] CB200, [41]

Assessment under refugee criterion

1. Having made these findings, the IAA considered whether the applicant met the definition of “refugee” given in s.5H of the Act. The IAA was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future from the parents or family members, friends or associates of the other boy,[31] or from the persons who broke into the applicant’s family’s home in 2012,[32] or because the applicant is a Christian,[33] or a Tamil male.[34]

   [31] CB201, [46]

   [32] CB201, [47

   [33] CB202-203, [49-55]

   [34] CB203-205, [56-68]

2. The IAA was also not satisfied the applicant faces a real chance of persecution because he is a Tamil asylum seeker who twice departed Sri Lanka illegally, now or in the reasonably foreseeable future.[35] In so concluding the IAA made the following findings:

   a)The IAA accepted that, because the applicant departed Sri Lanka illegally, and also because of the Department’s unintentional publication of some of his data, the Sri Lankan authorities may be aware the applicant sought asylum in Australia, and he did so twice. Relying on country information, however, the IAA was satisfied that being a failed asylum seeker by itself will not result in any harm, although having an adverse profile such as a serious criminal record or suspected connection with the LTTE could give rise to some risk of harm. The IAA found the applicant does not have a profile that would make him of interest to the authorities on his return to Sri Lanka.[36]

   b)The IAA accepted that the applicant could be charged under the Sri Lankan Immigrants and Emigrants Act (IE Act) because on his return to Sri Lanka the authorities would identify the applicant as having twice departed Sri Lanka illegally. The IAA found, however, that the applicant was not charged on his previous return to Sri Lanka and, given (at the time of the IAA’s decision) the applicant was a minor, it was unlikely the applicant would be charged if he is returned to Sri Lanka again.[37]

   c)The IAA accepted that if the applicant were to arrive in Sri Lanka over the weekend or long weekend there is a chance he will be held for a short time at a nearby prison until he appears before a magistrate, but the risk of torture of those suspected of committing an offence against the IE Act is low.[38] The IAA also found that all persons who depart Sri Lanka illegally are subject to the terms of the IE Act on return to Sri Lanka. The investigation, prosecution, and punishment for the applicant’s illegal departure from Sri Lanka would be the result of a law of general application.[39]

   d)Even if the applicant, as a minor, were held in a prison over a weekend or long weekend until seen by a magistrate, the applicant would only face a brief period of detention; and even if regard is had to the poor prison conditions and the applicant’s age, the IAA did not consider that that would constitute the level of threat to the applicant’s life or liberty as required by s.5J(5) of the Act, or to significant physical harassment or ill treatment within the meaning of s.5J(5) of the Act.[40]

   e)It is most likely that the applicant would be issued a fine and released or, if he pleads not guilty, he will be released on his own personal surety. The applicant would not be subjected to any custodial sentence but he would be fined for his illegal departure; and the IAA was not satisfied the fine would constitute serious harm.[41]

   [35] CB205-208, [69-83]

   [36] CB206, [71-72]

   [37] CB206, [78]

   [38] CB207-CB208, [79]

   [39] CB208, [80]

   [40] CB208, [81]

   [41] CB208, [82]

3. For these reasons the IAA concluded the applicant did not meet the definition of “refugee” given in s.5H(1) of the Act.

Complementary protection criterion

1. When considering whether the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act, the IAA repeated the substance of the findings it had already made. The IAA, however, paid additional attention to the prison conditions the applicant might encounter during his short detention. The IAA found that while the applicant may be subjected to poor prison conditions, country information indicates this is due to overcrowding, poor sanitation and lack of resources; and the IAA was not satisfied there is an intention to inflict pain or suffering or extreme humiliation. The IAA, therefore, was not satisfied that the poor prison conditions to which the applicant may be briefly subjected constitute significant harm as defined in s.36(2A) of the Act.[42]

   [42] CB209-210, [90]

2. Given its findings the IAA concluded 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 the applicant will suffer significant harm and, therefore, the applicant does not meet s.36(2)(aa) of the Act.[43]

   [43] CB210, [94]

Grounds of application

1. The grounds of application contain seven grounds. In his written submissions, counsel for the applicant says that ground 4 is not pressed, and ground 1 “is pressed as a general encapsulation of the specific grounds” set out in the application. I will consider, then, grounds 2, 3, 5, 6, and 7 of the grounds of application.[44]

   [44] The applicant filed an affidavit with the application in which he sets out detailed responses to the IAA’s reasons for decision. Counsel for the applicant, however, did not read that affidavit or otherwise rely on it. I have, therefore, not considered the matters stated in it. It is apparent, however, that the affidavit takes issue with the merits of the IAA’s reasons for decision.

Ground 2

1. Ground 2 is as follows:

   Further or in the alternative, the second respondent exceeded jurisdiction by failing to comply with s473DE of the Migration Act in relation to the ‘new information’ which it had correctly accepted fell within the terms of s473DD at paragraph [6] and which was new information that was part of its reasons for affirming the decision.

2. Before I consider the ground it would be useful to set out the text of s.473DE:

   (1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

   (a)give to the referred applicant particulars of any new information, but only if the new information:

   (i)      has been, or is to be, considered by the Authority under section 473DD; and

   (ii)     would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

   (b)explain to the referred applicant why the new information is relevant to the review; and

   (c) invite the referred applicant, orally or in writing, to give comments on the new information:

   (i)     in writing; or

   (ii)     at an interview, whether conducted in person, by telephone or in any other way.

   (2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

   (3)Subsection     (1) does not apply to new information that:

   (a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

   (b)is non-disclosable information; or

   (c) is prescribed by regulation for the purposes of this paragraph

3. A number of the expressions contained in this section are defined, but it is not necessary to refer to those definitions.

4. Information has been prescribed for the purposes of s.473DE(3)(c) of the Act by reg.4.41 of the Migration Regulations 1994 (Cth) (Regulations) which provides as follows:

   For paragraph 473DE(3)(c) of the Act, new information given to the Immigration Assessment Authority by a referred applicant for the purposes of the Authority’s review of a fast track reviewable decision in relation to the referred applicant is prescribed.

5. Reg.4.41 was introduced into the Regulations by item 3 of Schedule 1 to the Migration Amendment (Resolving the Asylum Legacy Caseload) Regulation 2015 (Cth) (Amending Regulation). Under reg.2 of the Amending Regulation, item 3 of Schedule 1, being part of Part 1 of Schedule 1, was to come into effect at the later of the start of the day after the Amending Regulation was to be registered and the commencement of Schedule 4 to the Migration and Maritime Powers Legislations Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act). The Amending Regulation was registered on 17 April 2015, but schedule 4 to the Amending Act came into effect on 18 April 2015. That means that reg.4.41 came into effect on 18 April 2015 which is before the day on which the applicant applied for a SHEV.

6. Neither the applicant nor the Minister in his written submissions referred to reg.4.41 of the Regulations. In his written submissions the applicant submitted the information the IAA considered to be new information, namely, the information contained in the Second Statement that was provided by the applicant’s mother, and the translation of the promissory note constituted, was “clearly part of the reason for affirming the decision under review because consideration of this new information was significant to the central finding that led to the child fleeing to Colombo was not a serious incident and the finding at [44] . . . that the other child who was injured in the school incident was not in a coma, that child’s parents did not demand money from the other boy’s family (or associates) or make the call”.[45] Counsel for the applicant further submitted that the IAA’s rejection of the promissory note as not providing evidence of a part payment by the applicant’s family to the other boy’s family was based on the IAA’s examination of the terms of the document and the deficiencies it identified;[46] and on its face the promissory note undermined the applicant’s claim that money had been paid to the other boy’s family.[47] In his written submissions, on the other hand, the Minister accepted the IAA considered the new information and, for that reason, s.473DE(1)(a)(i) of the Act was satisfied.[48] The Minister submitted, however, that s.473DE(1)(a)(ii) was not satisfied because the new information was not information that “would be the reason, or a part of the reason, for affirming” the delegate’s decision. That is so, the Minister submitted, because the new information did not “in [its] terms” undermine the applicant’s claims.

   [45] Submissions on Behalf of the Applicant, [13]

   [46] Submissions on Behalf of the Applicant, [15]

   [47] Submissions on Behalf of the Applicant, [16]

   [48] First respondent’s written outline of submissions, [20]

7. At the hearing before me counsel for the Minister did refer to reg.4.41 of the Regulations and submitted it was a complete answer to ground 2 because it was the applicant who provided the new information, namely, the information contained in the Second Statement that was provided by the applicant’s mother, and the translation of the promissory note. Counsel for the applicant made no submission about reg.4.41.[49]

   [49] T16.45

8. I accept the submissions of counsel for the Minister. The consequence of reg.4.41 is that information provided by a referred applicant is not information to which s.473DE applies. Given the information contained in the Second Statement that was provided by the applicant’s mother, and the translation of the promissory note, was information the applicant provided to the IAA, it was not information to which s.473DE applied. Ground 2, therefore, fails.

Ground 3

1. Ground 3 is as follows:

   Further or in the alternative, that both respondents and their delegates had erred in applying the law and obligations under international treaties (such as the Convention on the Rights of the Child) which the Federal Government had ratified (a non-citizen child is till a child while in Australia under the care of the 1^st respondent)

2. In his written submissions counsel for the applicant submitted that ground 3 is “pressed to the extent that the process afforded by Division 7AA and the statutory obligations under section 473DE should be read in relation to children in a manner that is not contrary to Article 12(2) of the Convention on the Rights of the Child”, which provides:

   For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

3. Counsel for the applicant in his oral address referred to ground 3 but went no further than repeating the substance of the ground. Counsel for the Minister, on the other hand, submitted that to the extent the ground relies on s.473DE it cannot succeed for the reasons ground 2 cannot succeed, namely, that s.473DE does not apply to the new information. Counsel further submitted that to the extent the ground seeks to make a broader claim, the procedure for the review of the delegate’s decision is that prescribed by the provisions of Part 7AA of the Act, and there is no room to construe s.473DE in a manner which required the IAA to provide the applicant an opportunity to be heard beyond that provided for by Part 7AA of the Act.

4. I accept the Minister’s submissions and, for that reasons, ground 3 fails.

Ground 5

1. Ground 5 is as follows:

   Further or in the alternative, that both respondents and their delegates acted irrational[ly] or [unreasonably] and [unlawfully] by taking into account irrelevant considerations and failed to take into account relevant considerations without good cause and reason to the exclusion of others

2. This ground is directed to the following passage from the IAA’s reasons for decision:[50]

   I accept that his mother may have thought there may be some anger towards the applicant given that the boy fell over as a result of having been tipped by the applicant and I accept that the applicant went to stay with his aunt in Colombo immediately after the incident. Despite his young age at the time, I do not accept that he would have been sent to Colombo without some explanation regarding why he was going there so quickly, and why he would not ever be returning to school

   [50] CB196, [15]

3. In his written submissions counsel for the applicant took this passage of the IAA’s decision to contain two findings, one being that the accident by which the applicant injured the other boy was sufficiently serious for the applicant’s parent to send him away, and the other being that the accident was “not serious because the applicant did not give a sufficiently detailed explanation of why he was being removed to Colombo by his parents”.[51] This does not reflect the IAA’s findings. The IAA did not conclude the accident was not serious because the applicant did not give a sufficiently detailed explanation of why he was being removed to Colombo by his parents. All the IAA said is that it did not accept that the applicant would have been sent to Colombo without any explanation. The IAA did not rely on the applicant’s not having been given an explanation of why he was moved to Colombo to not accept the applicant’s claim that the other boy suffered an injury that resulted in the other boy being in a coma.

   [51] Submissions on Behalf of the Applicant, [34]

4. In oral address counsel for the applicant submitted that if it be accepted there was an incident (as the IAA accepted there was) and the applicant went to stay with the aunt (which the IAA accepted the applicant did), and taking into account the applicant’s young age at the time, it could also be accepted that he would have been sent to Colombo without explanation. Whether or not in these circumstances it could be accepted that the applicant would have been sent to Colombo without explanation is not the question; the question is whether it was reasonably open to the IAA not to accept the applicant’s claim that he was sent to Colombo without any explanation.

5. The IAA does not give any reasons why it did not accept this part of the applicant’s claims. It is reasonable to infer, however, that the IAA relied on an unarticulated generalisation to the effect that in most cases parents do not send their child away from his or her home and school without giving any explanation to the child. The IAA was entitled to rely on such generalisation if the generalisation itself was reasonably open to it. Like all decision makers the IAA may be taken to have a stock of generalisations in its mind about the social world based on the IAA member’s common experience of life.[52] That extends to experience about relationships within families including what matters are likely to be communicated within families in given situations.

   [52] See Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths at [3200]: “Much empirical material is employed in decision making by courts without evidence being received, without judicial notice being taken, without admissions being made, and without any specific warning being given to the party against whom that empirical material is used . . . . It is material which is part of the make-up of the human beings who form courts arising out of their general common experience of life.”

6. In my opinion, a generalisation to the effect that most parents would not send their child away from his or her home and his or her school without giving the child some explanation why the child was being sent away from his or her home and school is one within common experience, and for that reason it was open to the IAA to rely on such generalisation in not accepting the applicant’s claim that he was sent to Colombo without any explanation from his parents.

7. Ground 5, therefore, fails.

Ground 6

1. Ground 6 is as follows:

   Further or in the alternative, that both respondents and their delegates failed to consider the consequences of the data breach by the 1st respondent alerting the Sri-Lankan Authorities the Applicant had managed to twice departed [sic] Sri Lanka illegally which is unprecedented, that he will be punished severely on his return to receiving country. The Second Respondent engaged in jurisdictional error (at [71]) by failing to consider and apply the Full Federal Court in SZSSJ concerning its assessment of the claims based on the illegal release of the applicant’s personal private information by the Department and failed to consider those claims

2. By the time the applicant filed his written submissions the High Court handed down its judgment in Minister for Immigration and Border Protection v SZSSJ[53] which reversed the Full Federal Court’s orders in SZSSJ v Minister for Immigration and Border Protection (No 2).[54] Counsel for the applicant, however, submitted the facts in the case before me are distinguishable from those in SZSSJ. Counsel submitted that SZSSJ was based on an assumed fact, namely, that the personal information of the applicants in that case “may have been accessed by authorities” in the applicant’s country of nationality, thus “removing the scope of factual inquiry any question of precisely who assessed their personal information as a result of the data breach”.[55] In those circumstances it was submitted that the applicant in SZSSJ “had the benefit of the presumption that the authorities had accessed the information which was the factor which cured the procedural irregularity”.[56]

   [53] [2016] HCA 29

   [54] [2015] FCAFC 125

   [55] Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, at [90]

   [56] Submissions on Behalf of the Applicant, [37]

3. In my opinion the facts in SZSSJ, and the judgments in the High Court and the Full Federal Court in that case, are not relevant to the review the IAA undertook. The question in SZSSJ was whether the applicant was denied procedural fairness at common law because there was not disclosed to the applicant particular reports that revealed the extent of the data breach. The High Court held that in the circumstances of that case the duty to accord the applicant procedural fairness did not require the disclosure of the reports because the applicant was given an opportunity to make submissions about the harm he feared would occur on the assumption that the authorities in the applicant’s home country had accessed the personal information of the applicant. The IAA in the case before me, however, was not under a general duty to accord the applicant procedural fairness. Its duty to accord procedural fairness is provided for in Division 3 of Part 7AA of the Act, and in s.473GA and s.473GB of the Act. Subsection 473DA(1) provides that that division together with those sections “is taken to be an exhaustive statement of the requirements of the natural justice rule in relation to reviews conducted by the” IAA.

1. The first sentence of ground 6 claims the IAA failed to consider the consequences of the data breach. That is not correct. As I have already noted, the IAA accepted that, because the applicant departed Sri Lanka illegally, and also because of the Department’s unintentional publication of some of his data, the Sri Lankan authorities may be aware the applicant sought asylum in Australia, and that he did so twice; and the IAA assessed the applicant’s claims on that basis.

2. Ground 6 also fails.

Ground 7

1. Ground 7 is as follows:

   The Second Respondent had engaged in jurisdictional error by misapplying the decision of the High Court in Minister for Immigration v WZAPN[57] by failing to conduct a qualitative assessment of whether the imprisonment of the applicant would constitute a serious threat to his liberty, particularly given his age.

   [57] [2015] HCA 22

2. WZAPN is authority for the proposition that assessing under s.91R of the Act[58] whether persecution involves serious harm to the person, including the instances of serious harm identified in s.91R(2) of the Act as it then stood, requires the making of a qualitative judgment involving matters of fact and degree. [59] The plurality said that in the case of harm constituted by the threat to a person’s liberty, the qualitative judgment should include “an evaluation of the nature and gravity of the loss of liberty”, and “whether the likelihood of any detention in any case rises to the level of serious harm instanced by s 91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention”.[60]

   [58] As it then stood. The matters then contained in s.91R are not contained in s.5J of the Act

   [59] [2015] HCA 22, [41]

   [60] [2015] HCA 22, [45]

3. The IAA referred to WZAPN, and noted it endorsed the position that finding whether a risk of loss of liberty constituted serious harm required a qualitative judgment, including an evaluation of the gravity of the loss of liberty.[61] The IAA then found, as I have already set out, that if the applicant, as a minor, were held in a prison over a weekend or long weekend until seen by a magistrate, the applicant would only face a brief period of detention; and that even if regard is had to the poor prison conditions and the applicant’s age, the IAA did not consider that that would constitute the level of threat to the applicant’s life or liberty required by s.5J(5) of the Act, or to significant physical harassment or ill treatment within the meaning of s.5J(5) of the Act.[62] In my opinion, this demonstrates the IAA, consistently with WZAPN, did, consider the circumstances and consequences of the applicant’s detention and the fact that he was a minor and, therefore, undertook a qualitative assessment of whether the applicant would suffer significant harm because of his imprisonment.

   [61] CB208, [81]

   [62] CB208, [81]

4. Ground 7, therefore, also fails.

Conclusion and disposition

1. The applicant has failed on all of the grounds of application on which he relies. I propose, therefore, to order that the application be dismissed. I propose to deal with the question of costs at the time I pronounce my order dismissing the application.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  5 October 2018