CCL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 248
•13 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCL18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 248 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority correctly applied the test required in s.473DD of the Migration Act 1958 (Cth) in relation to new information provided by the applicant to the Immigration Assessment Authority – whether Immigration Assessment Authority erred in its identification of new information for the purposes of s.473DD of the Migration Act 1958 (Cth) – whether Immigration Assessment Authority’s findings were open to it – whether Immigration Assessment Authority considered all claims made by the applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 31, 36, 65, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474, 476 Treaties: |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | CCL18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1179 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 10 February 2020 |
| Date of Last Submission: | 10 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2020 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Counsel for the Respondents: | Mr Nicholas Swan |
| Solicitors for the Respondents: | Australian Government Solicitor |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1179 of 2018
| CCL18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 27 March 2018 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 7 June 2017 refusing the applicant a Safe Haven Enterprise Visa (Class XE) (“SHEV”).
The applicant is a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from the Sri Lankan authorities, including the Sri Lankan Army (“SLA”), in Sri Lanka.
Background
On 29 April 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection (“the Department”).
On 7 June 2017, the Delegate refused the applicant’s application for a SHEV.
On 14 June 2017, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.
On 27 March 2018, the Authority handed down its decision affirming the decision of the Delegate not to grant a SHEV.
On 26 April 2018, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a SHEV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 5J of the Act defines the meaning of well-founded fear of persecution.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“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.”
Section 473DD of the Act provides as follows:
“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.”
The applicant’s application for a Protection Visa
The Authority summarised the applicant’s claims as follows:
“• He is of Tamil ethnicity and of the Hindu faith, having been born in Manipay, Jaffna, Northern Province in Sri Lanka.
• During the civil war and from about 1995 he was forced to move with his family on numerous occasions and live in other areas of Jaffna as a result of the fighting in the north between the LTTE and the Sri Lankan army (SLA).
• In 1997, when he was living in Mullaitivu, his older brother, SR, who was only 16 at that time, joined the LTTE.
• He commenced studies at University of Jaffna in 2008 (or late 2007) and became a supporter of a politically active student organisation, which organised demonstrations, protests and rallies. He attended a number of these demonstrations.
• In the later part of 2008, the president of the student organisation was killed by the army intelligence section, and the same happened to his successor, with the university being closed when the SLA conducted a search and cordon operation.
• In 2008 there was a large scale confrontation between the SLA and the LTTE in the north as a result of which his family’s house was damaged by shelling conducted by the SLA air force. Also, there was a lot of disruption at the University during this period of the war when fighting intensified in the north.
• In August 2008 he moved from Jaffna to Vanni where his family was living as he was worried about them following the shelling by the SLA. From this time up to 2009 he could not return to Jaffna and stayed with his family as they moved from place to place in the north to avoid fighting and the dangers of aerial attacks.
• In March 2009, when he had moved back to Pokknanai he received news that his older brother who had joined the LTTE had been killed. His sister was very disturbed about her brother’s death and committed suicide.
• As the war intensified in the north, he moved with his family from Vanni to Mullivaikail.
• He and his family were subsequently captured by the SLA and placed in a Zone 4 Refugee camp in Vavuniya, called the Chettkulam camp, where they were interrogated by the CID.
• The CID ascertained that he was a student at Jaffna University and interrogated him about his activities at Jaffna University and also asked him questions about his brother who had joined the LTTE and who was killed in 2008. He was also asked about his activity with the LTTE and was tortured.
• On 21 May 2009 he and his family were released from the camp after his uncle had arranged for this.
• He then returned to Jaffna and resumed his studies in Jaffna University in that year and again became involved in rallies and demonstrations organised by the student organisation, in particular protesting against the secret organisation/movement responsible for attacking Tamil females in the north and east of Sri Lanka (Grease man demonstrations). He was involved in the poster campaign and was a speaker at the demonstration.
• During the demonstration, which occurred at the end of 2009 or early 2010, he noticed the CID taking photos of the demonstrators, including of him, and the following day the army was deployed outside the campus, putting up notices on building that all protectors and demonstrators were LTTE (Liberation Tigers of Tamil Eelam) supporters and that all those who supported the protesters would be shot.
• The security forces went to the University hostels looking for him and his friends, but he was able to avoid being taken by staying within the University hostel.
• On 17 May 2011, the Tamil student organisation of the Jaffna Universtiy organised a prayer meeting for those who had been killed at Mullaitivu in support of Remembrance day, which the security forces reacted to by cordoning the university for a number of days and by conducting regular patrols of the university.
• The university was infiltrated by CID and EPDP people who would questions students and threaten to shoot and kill those viewed as sympathisers.
• In October 2011, after witnessing the CID assaulting the Chairperson of the University Tamil student organisation and reporting it to the vice Chancellor, he with other colleagues from the university organised a demonstration to highlight the assault and further problems that Tamils were facing from the Sinhaelse Sri Lankan government authorities, also inviting the media to focus on the plight of the Tamils who were speaking out against the Sri Lankan government.
• Following a letter being sent by the EPDP to the Deputy Chancellor’s office to investigate this demonstration, the applicants and a few others were taken from the University hostels by the army to the Urela camp and detained for 5 to 6 hours, having been warned to stop the demonstration activities and threatened that they would be charged under the PTA and imprisoned for years if they continued. Whilst detained the applicant was threatened, assaulted and abused and was in real fear for his life.
• He and the other students were released after the University administration had contacted the army commander requesting their release.
• After his release he left the University and moved to Vavuniya where he started working for an NGO. However, he stopped working because he felt that he was being followed and then after about 6 months returned to Jaffna with the intention of finishing his university study.
• After returning to Jaffna he was approached by 2 men on a motorbike who threatened him for returning to Jaffna and working with the student organisation. From fear, he returned to Vavuniya, having obtained the assistance of an MP.
• His parents organised for his flight out of Sri Lanka to Singapore, from where he travelled by boat to Indonesia and then from Indonesia to Australia, arriving at Christmas Island on 17 November 2012.
• He fears returning to Sri Lanka because he will suffer persecution because of the fact that he is a male Tamil and because of his personal links to the LTTE in that his brother joined the LTTE, his personal involvement with the Tamil student organisation at Jaffna university and because of his imputed support of the LTTE by the government forces.
• He fears significant harm from the Government forces/police/security forces because of the fact his brother voluntarily joined the LTTE, his work for the Tamil student organisation and also based on his race, his location and his age and gender.”
The Delegate’s decision
The Delegate made findings of fact which can be summarised as follows:
i)The applicant attended Jaffna University as a student.
ii)The applicant may have been a member of a Tamil student union.
iii)The applicant may have taken part in student protests.
iv)The applicant’s claims of interrogation, abuse and assault at Urela Camp were inconsistent and may have been embellished.
v)The applicant’s brother may have joined the LTTE.
The Delegate noted that the applicant’s representative had provided submissions and country information. The Delegate noted that the country information that was provided did not appear to be relevant to the applicant’s situation or profile and was generally outdated.
The Delegate considered whether the applicant would face harm as a result of being a student who attended Jaffna University during protests. The Delegate noted a news article submitted by the applicant regarding the shooting of two Jaffna University students in 2016. The applicant provided no further explanation as to why the news report supported his claims. The Delegate found no evidence that the applicant, as a former student of Jaffna University who partook in demonstrations, possessed a profile that would result in a real chance of being seriously harmed in the present or foreseeable future.
The Delegate then considered whether the applicant would face harm due to any real or perceived links to the LTTE and as a result of the applicant’s Tamil race and from being from a former LTTE controlled area. The Delegate considered country information on former LTTE combatants and those with family links to persons with such a profile. The Delegate also considered country information on the situation for Tamils in Sri Lanka. After taking into account the most recent country information and the specifics of the applicant’s case, the Delegate was not satisfied that the applicant would face harm on return to Sri Lanka for this reason.
The Delegate considered whether there is a real chance of the applicant suffering harm as a result of being a failed asylum seeker who departed Sri Lanka illegally. The Delegate discussed country information on the arrival process at Colombo airport for failed asylum seekers. The Delegate noted that the screening process is not selectively enforced or applied in a discriminatory manner. The Delegate was satisfied that the applicant does not face a real chance of persecution on account of being a failed asylum seeker who departed Sri Lanka illegally and attempted to obtain asylum in Australia. In making that finding the Delegate had regard to various pieces of country information, including a Department of Foreign Affairs and Trade report dated 24 January 2017.
After considering the applicant’s circumstances individually and cumulatively and after considering country information, the Delegate found that the applicant does not face a real chance of persecution in the reasonably foreseeable future.
The Delegate subsequently considered whether, pursuant s.36(2)(aa) of the Act, there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there was a real risk the applicant would suffer significant harm. Ultimately, the Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there was a real risk the applicant would suffer significant harm as outlined in s.36(2)(aa) of the Act.
On 7 June 2017, the Delegate refused the applicant’s application for a SHEV on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The Authority’s review and decision
On 14 June 2017, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.
The Authority’s decision is accurately summarised in the submissions of the first respondent as follows:
“6. The Authority had regard to the material provided to it pursuant to s 473CB of the Act (CB 405 [3]). The Authority also referred to the Applicant's submissions to it and stated that it had taken the submissions into account to the extent that it was argument in response to the delegate's decision (CB 405 [4]). The Authority then referred to a number of new claims made by the Applicant, as well as documentation provided to it (CB 405 [6]). It considered those matters pursuant to s 473DD of the Act and explained why it was not able to take them into account (CB 405-410 [7]-[18]).
7. The Authority accepted that the Applicant's brother had joined the LTTE in 1997, but was not satisfied that the Applicant's family were otherwise politically aligned with, or supported, the LTTE (CB 413-414 [24]). The Authority also accepted that the Applicant studied at Jaffna University between 2007 and 2011, although did not complete his degree (CB 414 [25]). The Authority accepted that the Applicant became involved in the Jaffna University student union as an ordinary (non-executive) member, and participated in rallies, demonstrations and protests (CB 415 [26]). It did not accept that the suffered any adverse consequences, or was in danger because of, the claimed protests in January 2008 (CB 415 [27]).
8. The Authority accepted that the Applicant's brother, who was in the LTTE, was killed in 2009 (CB 415 [28]). The Authority also accepted that the Applicant and his family were detained by the Army for 3-4 days, but did not accept that the Applicant was tortured by the CID or that he was identified at that time as a person of interest, either as a Jaffna University student who had participated in protests or as an LTTE supporter (CB 416 [29]). The Applicant subsequently returned to Jaffna University. The Authority accepted that he had participated in 2009 and 2011 protests, but did not accept that these would have made him a person of interest. It also did not accept that the Applicant was detained or tortured at Urela camp (CB 418 [32]). The Authority further did not accept that the Applicant had been threatened by two men on a motorbike in 2012 (CB 419 [33]). The Authority concluded that, while the Applicant had been involved in student demonstrations, protests and rallies, and was a member of the student union, he would not now, or in the reasonably foreseeable future, be of adverse interest to the Sri Lankan authorities. It also did not accept that being a member of the student union would lead to the Applicant being imputed as pro-LTTE. Accordingly, the Authority was not satisfied that the Applicant faced any harm on account of being a member of the student union or having participated in protests and demonstrations (CB 419-420 [35]).
9. The Authority also considered the Applicant's ethnicity, age, gender and/or origin from a former LTTE controlled area. It was not satisfied, including on the basis of country information before it and the changed conditions in Sri Lanka, that the Applicant faced a real chance of harm from the Sri Lankan authorities for any of these reasons (CB 420-423 [36]-[48]).
10. The Authority accepted that the Applicant would be identified as a person who had sought asylum in Australia (CB 424 [49]), but was not satisfied, on the basis of country information before it, that there was a real chance that the Applicant would face harm for this reason (CB 425 [56]). The Authority also observed that the Applicant had departed Sri Lanka legally, such that no issue of having committed an offence under the Immigrants and Emigrants Act arose (CB 425 [57]).
11. The Authority was not satisfied that the Applicant met s 36(2)(a) of the Act (CB 425 [58]). In reliance on its earlier findings, the Authority was also not satisfied that the Applicant faced a real risk of significant harm, and thus found that he did not satisfy s 36(2)(aa) of the Act (CB 426 [59]-[62]).”
The proceeding before this Court
The applicant was unrepresented before the Court, however had the assistance of a Tamil interpreter. The applicant had been previously legally represented.
On 16 May 2018, orders were made by consent in my Chambers which gave the applicant leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.
On 1 November 2019, orders were again made by consent in my Chambers which gave the applicant leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon and directing the applicant to file and serve submissions 14 days before the hearing. The matter was set down for hearing on 10 February 2020 at 10:00am before me.
At the commencement of the hearing, the applicant confirmed that he had not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in the Application, filed on 24 April 2018, as follows:
“1. The Authority's failure to correctly apply the test for considering new information, outlined in s 473DD of the Migration Act 1958 (Cth), demonstrates a constructive failure to exercise its jurisdiction.
PARTICULARS
a. At paragraph 8, the Authority noted that the applicant advanced the claim that he was part of the Tamil Eelam Manavar Amaippua, which was part of the political wing of the LTTE.
b. In its reasons for rejecting to consider the applicant's claim, the Authority neither explicitly not impliedly referred to part of the test outlined ins 473DD(a), that is, whether exceptional circumstances existed to justify the consideration of the information.
c. Rather, the Authority's consideration was wholly confined to the part of the test outlined in s 473DD(b).
d. Even if it can be argued that the Autho1ity impliedly referred to s 473DD(a), by neglecting to consider the applicant's circumstances beyond his failure to raise the information on an earlier occasion, the Authority applied an unduly narrow interpretation of 'exceptional circumstances.'
e. The adoption of this narrow understanding elucidates that there has been a constructive failure by the Authority to exercise its jurisdiction.
2. The Authority committed jurisdictional error by failing to consider a component of the applicant’s claim after erroneously considering it to be new information.
PARTICULARS
a. At paragraph 9 of its decision, the Authority noted that the applicant had advanced claims which expanded upon his initial claim of his involvement in a student union at Jaffna University.
b. Specifically, the Authority noted that the applicant now claims that the organisation had received funds from overseas whilst he was a member and after he left the organisation.
c. When making the finding to reject the consideration of this claim, at paragraph 10, the Authority reasoned that the applicant had not previously made any claims of the Jaffna University student union having received funds from overseas.
d. The Authority further reasoned that “given the late stage that [the applicant] has brought up these claims and also his statement about the Tamil diaspora in Australia being willing to make contributions to the Tamil cause, these claims are not genuine and have been contrived to attribute to the student union a more political role associated with the Tamil diaspora.”
e. At paragraph 19, the applicant advanced the following claims in relation to the activities of the student organisation at the Jaffna University:
i. During his time in the Jaffna University, he became involved in rallies and demonstrations, organised by the student union, which protested against the secret organisation/movement responsible for attacking Tamil females in the North and East of Sri Lanka.
ii. On 17 May 20 I 1, the Tamil student organisation at the Jaffna University organised a prayer meeting for those who had been killed at Mullaitivu in support of Remembrance Day.
iii. In October 2011, the applicant and other colleagues from student organisation organised a demonstration to highlight the assault and further problems that Tamils faced from Sinhalese government authorities. They also invited the media to focus on the plight of the Tamils who were speaking out against the Sri Lankan government
f. The applicant's claims, as outlined in paragraph 19, clearly draw a connection between the student organisation and the Tamil cause.
g. The Authority committed jurisdictional error by neglecting to consider consider that the claim advanced in relation to monetary contributions by the Tamil diaspora was always linked to the applicant’s claim in relation to the Jaffna University student union and, therefore, the claim clearly arose from the evidence before it.”
Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake.
The applicant then told the Court that he had lost his job on 17 December 2019 and that he had mental health issues and was being medicated. I asked the applicant if he had any evidence in relation to his health issues and the applicant said he did not but that if he was given three days, he would be able to produce that material.
Counsel for the first respondent opposed any adjournment on the basis that the applicant has had ample time to obtain any documents, including any medical certificates, and it was not clear how any health problems from which the applicant may suffer would affect his ability to represent himself in Court today. As it turned out, the applicant was able to satisfactorily represent himself. The applicant understood questions being asked of him and responded appropriately. The applicant was able to articulate the claims and concerns he had about findings that where made against him. His application for an adjournment was refused.
Ground 1
Ground 1 had been prepared by the applicant’s then lawyer, who had earlier represented the applicant. The ground was of a technical nature and the applicant had nothing relevant to submit on that issue. However, the applicant expressed the following other concerns:
i)When the Department rejected the applicant’s case, it had said that his claims were based on a book and that was not true and the Authority did not consider that.
ii)When the applicant was detained in a camp he was asked if he was in the student wing of the LTTE and he was at risk of harm as a student union member.
iii)Two students from the applicant’s university had been killed in 2016 and the applicant feared that would happen to him. The applicant said that legal action was said to have been commenced against the killers but that was not true and nothing had been done for the students that had been killed.
iv)The applicant had relied on country information that said that because of his Tamil ethnicity he would be at risk of harm on his return. However, the Authority had relied on other information. The Applicant said that Tamils had been reconciled and been allowed to sing the national anthem in Tamil. However, the new government that came to power at the end of 2019 had withdrawn their permission to sing the national anthem in Tamil.
v)The applicant had been a member of two unions who had received funds from overseas, including Australia, and the applicant was at risk as a result.
Otherwise, Ground 1 alleges that the Authority erred in failing to correctly apply the test required in s.473DD of the Act to new information, in that the Authority did not expressly or implicitly refer to “exceptional circumstances” in s.473DD(a) of the Act, and focused only on s.473DD(b) of the Act.
As is clear from the legislative summary above, the structure of s.473DD of the Act provides that the Authority must not consider new information unless certain matters are established, that is, (a) that there are exceptional circumstances to justify considering the new information; and (b) the new information was not and could not have been provided to the Minister or was credible personal information that was not previously known and had it been known may have affected the consideration of the applicant’s claims.
New information can only be considered if both s.473DD(a) and (b) are satisfied (see BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26] per Gilmour J; AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 (“AUH17”) at [32]-[33] per Mortimer J). There is no requirement that s.473DD(a) of the Act must be considered before s.473DD(b) of the Act. In AUH17, Mortimer J stated as follows:
“33. I accept the Minister’s submissions that in the present circumstances, there was nothing erroneous about the Immigration Assessment Authority directing its attention to (b) rather than (a), since the text of (b) does suggest an applicant must “satisfy” the Immigration Assessment Authority about why the information was not provided earlier. That at least calls for some material from an applicant by way of explanation, although in a statutory setting such as this there is no burden imposed. In circumstances where the appellant had not put any express material before the Immigration Assessment Authority to explain why he was relying on these facts for the first time, the Immigration Assessment Authority was not in error to identify (b) as not satisfied. That was enough to trigger the prohibition in s 473DD.”
The Authority dealt with the new information in the following terms:
“8. The applicant also claims that he was part of the Tamil Eelam Manavar Amaippua, which was part of the political wing of the LTTE and he worked for them under the auspices of Mr. Kannan, and that the group was made up of LTTE people and students from the union at Jaffna University and other university Tamil students. The applicant has not previously made any claim of being personally involved in any political wing of the LTTE or of having any other LTTE involvement, having stated that he and his family did not support the LTTE, although his eldest brother had joined the LTTE during the war. The applicant has not provided any explanation as to why he had not provided this new information earlier. He was provided with an opportunity by the delegate to provide further information in support of his claims at the PV interview, including towards the end of the interview after a break to discuss any outstanding matters with his legal representative, who was also present during the interview. It appears that by now raising this claim the applicant is seeking to elevate his political profile, and in particular to support that he has pro-LTTE profile. As the applicant is only now raising this claim, I have real doubts as to its veracity and I am not satisfied that it has any credible basis. The applicant has not satisfied me as to either of the matters set out s.473DD(b). I am therefore unable to consider this new information.” (Emphasis added)
The Authority was not satisfied that either of the limbs in s.473DD(b) of the Act were made out in respect of the new information. The Authority noted that the applicant had not provided any explanation as to why he had not provided the new information earlier, despite being given an opportunity by the Delegate to provide further information at the interview. Further, the Authority was not satisfied that the information was not credible. The Authority found that the applicant was raising the new information to support his political profile.
Those findings were open to the Authority on the evidence and material before it, and for the reasons it gave. The Authority’s findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue before the Authority. The Authority’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
In the circumstances, there was no obligation on the Authority to consider whether there were exceptional circumstances as the applicant’s failure to meet s.473DD(b) of the Act resulted in the Authority being prohibited from considering the new information.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 alleges that the Authority failed to consider a component of the applicant’s claim after erroneously considering it to be new information.
In particular, the Authority found the applicant’s claims that the student union received funds from overseas and the consequences that followed were new information. Relevantly, the Authority stated as follows:
“9. In regard to the student union at Jaffna University of which the applicant claims to have been one of the 13 members of the Committee of that union until 2011, the applicant now claims that:
• They received funds from overseas whilst he was a member up until 2011;
• In 2012 the next committee also received a lot of funds from overseas, which was distributed to students in financial difficulty and also to Tamil people in need in the community; and
• In December 2012 two of his friends (J and P) from the same village, one of whom was the President of the union and who had received the funds, were arrested by the CID under the PTA, and upon being investigated divulged to the CID who else was involved and who were the other present and past committee members. The applicant was informed about this by his friend J and is very concerned that the same will happen to him if he is forced to return to Sri Lanka, namely that he will be arrested and detained.”
The applicant contends that the applicant’s claims of student activities drew a connection between the student organisation and the Tamil cause; and that failure to consider the new information failed to appreciate the link the new information had to the applicant’s claims in relation to the university student union.
In considering the new information, the Authority stated as follows:
“10. In making the above new claims, the applicants states that Australia is well known as being a country where the Tamil diaspora is always willing to make contributions to the Tamil cause in Sri Lanka. At no time previously did the applicant make any claims of the Jaffna University student union having received funds from overseas, either when he was a member or in subsequent years. The applicant has not provided any explanation as to why he is now raising these claims. I consider that given the late stage that he has brought up these claims, and also noting his statement about the Tamil diaspora in Australia being willing to make contributions to the Tamil cause, these claims are not genuine and have been contrived to attribute to the student union a more political role associated with the Tamil diaspora. I do not consider that it is credible personal information that may have affected the consideration of the applicant’s claims. The applicant has not satisfied me as to either of the matters set out s.473DD(b). I am therefore unable to consider this new information.” (Emphasis added)
Again, the Authority noted that the applicant had not made any previous claims about the student union having received funds from overseas, either when the applicant was a member or in subsequent years; and had not provided any explanation as to why the applicant was now raising those claims. The Authority found that given the late stage that the applicant had made these claims and noting his statement about the Tamil diaspora in Australia being willing to contribute to the Tamil cause, it found the new information was not genuine and was contrived to elevate the political role of the student union as being associated with the Tamil diaspora. The Authority did not find the new information to be credible personal information that may have affected the consideration of the applicant’s claims. Accordingly, the Authority found that it was unable to consider that new information.
In considering the term “new information”, in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [24], Gageler, Keane and Nettle JJ stated as follows:
“The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.” (Emphasis added)
The statements in relation to receipt of funds was a “communication of knowledge about some particular fact, subject or event” and had not been raised by the applicant other than to the Authority. Thus, they were “not before the Minister when the Minister made the decision” (see 473DC(1)(a) of the Act).
In relation to the applicant’s submission that the union receipt of funds was linked to some other claim, that is not the test for “new information” as identified in s.473DC of the Act.
In the circumstances, the Authority properly considered the new information in the context of the scheme provided in s.473DD of the Act. As the requirements of s.473DD(b) of the Act were not met, the Authority correctly determined not to consider the new information.
Again, those findings were open to the Authority on the evidence and material before it, and for the reasons it gave. They were based on rational grounds and arrived at after considering the factors that were logically probative of the issues before the Authority.
Accordingly, Ground 2 is not made out.
Other claims
In relation to the claims raised by the applicant at the hearing before this Court, they are considered as follows.
i)The applicant’s claims were plagiarised
That complaint is in relation to the Delegate’s finding that the applicant had copied country information and largely plagiarised from a published book “The Prabhakaran Saga: The Rise and Fall of an Eelam Warrior” by S. Murari. The Delegate found that the applicant was attempting to pass off the plagiarism as the applicant’s firsthand account of his claims. As a result, the applicant’s migration agent was asked to resubmit the applicant’s original statement of claims, which the agent then did. The Delegate then summarised those resubmitted claims and considered those claims.
The applicant said that he did not know about this book. In any event, the Authority does not mention this issue and no jurisdictional error is made out in relation to that issue.
ii)Fear of harm due to being a student union member
The applicant’s complaint in relation to the Authority’s rejection of his fear of harm as a student union member appears more to be a disagreement with the Authority’s finding that the applicant was not at risk of harm because he was involved in and participated in student demonstrations, protests and rallies while he was a student and member of the student union at university. The Authority made clear its reasons for that finding as follows:
“35. Having accepted that the applicant was involved in and participated in student demonstrations, protests and rallies whilst he was a student of, and a member of the student union at, Jaffna University, in particular the “Grease man” demonstration and the rally in support of Remembrance day, I am not satisfied that he would now, or in the reasonably foreseeable future be a person of adverse interest to any Sri Lankan authorities. I do not consider that by participating in student demonstrations as a Jaffna university student and union member the applicant was demonstrating any pro-LTTE support or engaging in any Tamil separatist activities and I am not satisfied that he would be perceived to have done so. The demonstrations, protests and rallies that the applicant participated in as a Jaffna university student were in relation to specific issues of general concern to many Tamil university students at that time, namely deaths in the war as commemorated in Remembrance day events and threats to the safety of the population as a result of the threat of “Grease man” attacks at that time. I do not consider that the nature of such demonstrations could conceivably elevate the applicant’s profile as being pro LTTE or a Tamil separatist. I also note that the applicant was as an ordinary student member of the Jaffna university student union, not having any high profile or leadership role as such, and that his involvement and participation in student demonstrations was limited to the period of time that he was a Jaffna university student. Having considered the applicant’s claims and all the evidence before me, I am not satisfied that the applicant faces any harm upon return to Sri Lanka because he was a member of the Jaffna University student union or because of his previous participation in student union demonstrations, protests or rallies.” (Emphasis added)
Again, those findings were open to the Authority on the evidence and material before it and for the reasons it gave. The applicant’s claims seek merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
iii) Risk from shooting of 2 students
In relation to the applicant’s complaint about the Authority’s finding that the applicant’s claim to fear harm because of the shooting of two Tamil university students in 2016 was speculative, a fair reading of the Authority’s decision record makes clear that the Authority considered in detail the article reporting on the shooting and the applicant’s submission that Jaffna university has always been “a hotbed of student protests and is closely monitored by the Sri Lankan authorities and that the authorities in the past and now have often come down hard on Tamil student protesters.” The Authority found that the circumstances in which the students were shot did not involve any student protest or rally at the time, such as those in which the applicant claimed to have been involved. The Authority was not satisfied that the circumstances of the shooting of the two Tamil students was connected to the applicant or his circumstances, other than “the very broad context of being two Jaffna university students”. Further, the Authority noted that the applicant had been unable to identify any material relating to any of the particular demonstrations that the applicant claimed to have been involved in or with which he claimed to have a connection.
Ultimately, the Authority was not satisfied that the applicant faced harm upon return to Sri Lanka because he was a member of Jaffna university student union or because of his previous participation in student union demonstrations, protests or rallies.
The Authority made findings that were open to it on the evidence and material before it and for the reasons it gave. Those findings were made after considering those factors that were logically probative of the issues before the Authority and were not tainted by any failure to afford procedural fairness and were not without an intelligible foundation.
Accordingly, no jurisdictional error is made out.
iv)Reliance on the independent country information
A fair reading of the Authority’s decision record makes clear that the Authority identified with specificity all the country information to which it had regard. The country information was relevant and recent. In particular, the Authority stated that country information no longer supports a finding that Tamil ethnicity of itself imports LTTE membership or pro-LTTE opinion, even when combined with a person’s place or origin in an area previously controlled by the LTTE.
The Authority summarised in great detail the country information before it and concluded that there was not a real chance that the applicant would suffer harm from any Sri Lankan authorities on account of his Tamil ethnicity, his age or gender and/or his origin from and residence in former LTTE controlled areas in the Northern Province of Sri Lanka.
It is well settled that the country information to which the Authority has regard and the weight it gives that information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
Again, those findings were open to the Authority on the evidence and material before it and for the details reasons that it gave.
It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
v) Risk of harm because of receipt of overseas funds by union
The applicant’s complaint in relation to a risk of harm to the applicant because the student union received funds from overseas has been dealt with above in Ground 2. It was part of the new information given to the Authority by the applicant. The Authority found the new information not to be genuine and to have been contrived to attribute to the student union a more political role associated with the Tamil diaspora. The Authority found that the new information was not credible personal information that may have affected consideration of the applicant’s claims. As stated above, those findings were open to the Authority on the evidence and material before it and for the reasons it gave. In light of its findings on that new information, the Authority was prohibited by s.473DD of the Act from considering it further.
Otherwise, the applicant’s complaints made at the hearing before this Court are more in nature of disagreement with various adverse findings of fact made by the Authority. Such claims invite merits review which this Court cannot undertake.
No jurisdictional error is made out in respect of any of the applicant’s grounds either written or oral.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority considered whether it should have regard to new information in the context of s.473DD of the Act. The Authority identified in detail the independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 13 February 2020
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Administrative Law
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Immigration
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