CED16 v Minister for Immigration
[2017] FCCA 233
•14 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CED16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 233 |
| Catchwords: MIGRATION – Protection (Class XA) visa – adverse findings made by the Authority were open – Court not satisfied determination in SZTAL warrant an adjournment – no denial of procedural fairness by reason of the applicant not being provided with the certificate in the conduct of the review – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 36, 425, 473CD, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 476, pt.7AA. |
| Cases cited: MZAFZv Minister for Immigration and Border Protection [2016] FCA 1081 |
| Applicant: | CED16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2118 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 14 February 2017 |
| Date of Last Submission: | 14 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu Stephen Hodges Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
Grant leave to the Applicant to file in Court the document described as “Second Amended Application” and dispense with the need for the electronic filing of the same.
The second amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2118 of 2016
| CED16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 11 July 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant is a Tamil who was born in a particular district in the Eastern province and has lived for most of his life in that district. The applicant lived and worked in Doha, Qatar from approximately 26 August 2009 to 31 July 2010. The applicant departed Sri Lanka illegally on 25 August 2012 and arrived at Christmas Island on 10 September 2012. The applicant applied for protection on 4 September 2015.
The Delegate
The applicant claims that his father was killed in 1997 and believes that was because of crossfire between the Sri Lankan Authorities (“SLA”) and the Liberation Tamil Tigers of Eelam (“LTTE”).
The applicant alleges in July 2011 that he was appointed as the vice-president of the Rural Development Society (“RDS”) for a particular village. The applicant claims that members from the Tamil Makkal Viduthalai Pulikal (“TMVP”) political party came to his residence and asked the applicant to gather a crowd in preparation for a meeting. The applicant claims that he visited a TMVP office. The applicant claims that the members attempted to recruit him as a supporter due to his position on the RDS and because of his late father’s position within the community. The applicant alleges that after refusing that position, he was physically and verbally assaulted and that he agreed to help in order to get away from the office. The applicant fears that refusing to help the TMVP will indicate to them that he is a supporter of the LTTE.
The applicant claims that since his arrival in Australia, members of the TMVP have gone to his mother’s residence and told her that he needs to report to their office or risk being harmed. The applicant fears harm by reason of his Tamil ethnicity and that he would be targeted by paramilitary groups. The applicant fears he would be harmed by the members of the TMVP because he did not assist them in 2012. The applicant fears that members of the Karuna Group and the SLA may target him because he originates from a former LTTE-controlled area. The applicant believes if he returns to Sri Lanka because he departed illegally and claimed asylum, he will be targeted by the Sri Lankan authorities.
In relation to the applicant’s father, the delegate noted that the applicant knew very little of his father’s political activities. The delegate accepted the applicant’s father was a political candidate for the 1994 elections and the delegate accepted that the applicant’s father went missing in 1997 and that the applicant believes that his father was killed by the Sri Lankan authorities, TMVP or Karuna Group on suspicion that he was a suspected LTTE member.
The delegate referred to the applicant’s involvement with the RDS. In that regard, the delegate did not find the applicant’s explanation for his lack of knowledge of his claimed level of involvement with the community as acceptable. The delegate made reference to the applicant’s embellishment in that regard.
The delegate referred to the applicant’s support letter from the RDS dated 10 January 2013. The delegate expressly referred to the letter stating that a meeting on 20 July 2011 was held to elect a new administrative committee. The letter confirmed the applicant was elected as deputy chairman and that the letter asserted that the applicant spearheaded and worked for the development of the society.
The delegate noted that the RDS may be sincere in their support for the applicant, their focus was not the question of the motives or credibility of the applicant. The delegate accepted the factual assertion that the applicant was involved in the RDS and was elected deputy chairman of an administrative committee but the delegate did not accept the letter of proof of the genuineness and extent of the applicant’s political belief and commitment. The delegate expressly referred to the fact that the letter did not provide detailed particulars of the extent to which the applicant was involved in the RDS.
Accordingly, the delegate placed greater weight on the view formed that the applicant had personally embellished his claimed profile. Whilst accepting that the applicant was elected deputy chairman, the delegate did not accept that he was very active in the community and did not accept that the applicant spearheaded any projects. The delegate expressly referred to putting more weight on the applicant’s testimony at interview than on the document as to whether the applicant was very active. The delegate referred to the proposition that at no point did the applicant give any indication in his evidence that he spearheaded any particular project for the RDS.
The delegate accepted that it was plausible the applicant was appointed as vice-president of the RDS of his village and also accepted the applicant’s late father played a role in local politics. The delegate was not satisfied that the applicant’s testimony convinced the delegate that the applicant was very active, especially given his work commitments which often required him to work every day of the week.
The delegate then referred to incidents with the TMVP in July 2012. The delegate accepted that there may have been some intimidation or threats during the election campaign in the local area to try and encourage people to support the rival Tamil party, the TMVP. The delegate noted that as the delegate had found the applicant was an unofficial low-level supporter and would have been one of hundreds of such Tamil National Alliance (“TNA”) supporters or helpers in the local area. The delegate found that the applicant’s limited involvement in the RDS had not created any significant profile recognisable by the TMVP. The delegate found that the applicant did not hold a profile that would attract adverse attention from the TMVP if he were to return to Sri Lanka.
The applicant indicated that neither he nor any member of his family had any active involvement with the LTTE or any other anti-government group. The delegate did accept that the applicant was from a former LTTE-controlled area. The delegate referred to the fact that the applicant had never described incidents in which he had been suspected of any LTTE involvement, notwithstanding his claim that he would be imputed with a pro-LTTE opinion because he refused to join or assist the TMVP or because his father was imputed with pro-LTTE opinion. The delegate found that this indicated that the applicant has not been of any adverse interest to the SLA in the past.
The delegate made reference to the fact the applicant was able to consistently secure jobs as an electrician and that there was no evidence to support that the applicant had any significant restrictions on his day to day life because of his ethnicity.
Refugee Criterion Assessment
The delegate did not accept that there is a real chance of the applicant being persecuted for reason of him being a Tamil and/or originating from a formerly controlled LTTE area. The delegate found that the applicant’s fear of persecution for that reason was not well-founded.
The delegate was not satisfied that the applicant would be imputed with a pro-LTTE opinion because he refused to join or assist the TMVP or because his father was imputed with a pro-LTTE opinion. The delegate found that the chance of the applicant being imputed with a pro-LTTE anti-government opinion in the future was remote.
The delegate referred to the applicant’s illegal departure from Sri Lanka and noted that according to country information, returnees found to have an LTTE profile, criminal records or involvement with people smuggling faced heavy punishment on return to Sri Lanka. The delegate found that the applicant may be questioned upon arrival at Colombo airport regarding possible people smuggling networks and his background and may be checked for any outstanding criminal or security matters. The delegate accepted the applicant may be remanded for a short time before going before a Court and faced a possible fine for illegal departure. The delegate found that the process to which the applicant would be exposed for illegal departure would not amount to persecutory conduct or serious harm.
The delegate found that the applicant does not face a real chance of persecution or serious harm from the Sri Lankan authorities or groups associated with them either in a particular district, at the airport, or elsewhere in Sri Lanka as a whole or for any reason under s.5J(1)(a) of the Act for illegally departing Sri Lanka. The delegate found the risk to be remote that the applicant would be imputed with a pro-LTTE/anti-government profile in the future if he returned to his home area because he is a Tamil and has returned from Australia.
The delegate found that there would be no real chance the applicant would suffer persecution on return to his home district because of being a member or a possible member of a particular social group of failed Tamil asylum seekers. The delegate found that the risk of the applicant facing harm from the TMVP or any other political or paramilitary group to be remote.
The delegate was not satisfied that there is a real chance of the applicant being persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act upon being returned to Sri Lanka. The delegate found that the applicant was not a refugee under s.5H of the Act and the criteria under s.36(2)(a) of the Act had not been satisfied.
Complementary protection criterion assessment
The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk that the applicant would suffer significant harm. The delegate found that the criteria under s.36(2)(aa) of the act was not satisfied.
The delegate found that the applicant was not covered by paragraph (aa) of the definition of excluded fast track review applicant under s.5(1) of the Act.
The Authority’s Decision
On the same date as the delegate’s decision, a certificate was issued under s.473GB of the Act referring to a particular document or information, which was relevantly described as a Draft IMAPS Identity Assessment Form. The disclosure of that information was described as something that would be contrary to public interest because it is a Departmental working document.
By letter dated 23 May 2016, the Authority acknowledged that the matter was referred to it on 20 May 2016. By letter dated 19 June 2016, submissions were made to the Authority on the applicant’s behalf.
The Authority, in its reasons, referred to the applicant’s Tamil ethnicity and Hindu faith and the outcome of the delegate’s determination. The Authority expressly referred to having regard to material referred by the Secretary under s.473CB of the Act. Reference was also made in detail to the submissions provided on behalf of the applicant, which the Authority did not regard as constituting new information within s.473DC(1) of the Act and accordingly had regard to that material.
Assessment of the applicant’s claims
The Authority made reference to the applicant’s claims. The Authority referred to the applicant’s father, who was said to be an independent candidate in parliamentary general election in 1994 and was not elected. The Authority referred to the applicant’s father going missing in 1997 and a death certificate was provided. The Authority referred to the applicant and his family believing that his father was killed by the SLA or other Sri Lankan authorities. The Authority accepted that the applicant’s father went missing in 1997 and died in the same year.
The Authority made reference to the applicant’s involvement in the RDS. Reference was made by the Authority to the letter from the Society, including the applicant’s proposition that the applicant spearheaded work for the RDS and noted that no further details of those activities were provided. The Authority noted that the applicant had not given evidence of having spearheaded development for the year he was in office and the Authority concluded that the description exaggerated the applicant’s involvement. The Authority accepted that the applicant was elected deputy chairman of the RDS administrative committee and undertook a range of limited activities during the year before he departed Sri Lanka. The Authority noted that apart from the 2012 incident with the TMVP, the applicant did not claim to fear any other harm stemming from his role in the RDS.
The Authority made reference to the 2012 incident. The Authority found that the applicant was approached by the TMVP members to help gather a crowd for a prearranged meeting. The Authority accepted the applicant was forcibly recruited to assist the TMVP during its campaigning but that he left the village and did not assist them. The Authority found on the evidence that the TMVP members had not visited the applicant’s home since 2012.
Refugee criterion assessment
The Authority did not accept that the applicant would be targeted upon his return to Sri Lanka because of his Tamil ethnicity or because he is a Tamil from the east. The Authority was not satisfied the applicant faced a real chance of persecution now or in the reasonably foreseeable future on the basis of his Tamil race or the fact that the applicant originates from the east.
After referring to the country information that the TMVP may still be active in Sri Lanka, the Authority was of the view the applicant does not have a profile that would make him of interest to the TMVP now or in the future, despite the fact that he was active in his community, that he refused to assist in the TMVP in 2012, that he comes from a LTTE controlled area and that his father was a political candidate in 1994.
The Authority found that as the applicant had no involvement with the TMVP prior to 2012 and that there is no evidence to suggest they have looked for him since 2012. Given that it is four years since the incident with the TMVP, the Authority was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future from the TMVP. The Authority was of the view that there is nothing more than a remote chance that the applicant faces a real chance of persecution now and in the reasonably foreseeable future from the Karuna Group or other paramilitary groups.
The Authority made reference to the applicant departing Sri Lanka illegally and the offence created under the Immigrants and Emigrants Act 1949 (Sri Lanka). The Authority accepted that the applicant would be charged under the Immigrants and Emigrants Act and that there is a chance that he may be held over a weekend or for a short time at a nearby prison until he appears before a magistrate. The Authority found that the Immigrants and Emigrant Act is not discriminatory on its terms and was a generally applicable law that would ordinarily not constitute persecution because its application did not amount to discrimination. The Authority found that the investigation, prosecution, punishment of the applicant for his illegal department under the Immigrants and Emigrants Act would be the result of a law of general application and does not amount to persecution for the purpose of s.5J(1) of the Act.
The Authority made reference to the poor conditions and did not consider that the brief period in detention to which the applicant may be subject would constitute the level of threat to the applicant’s life or liberty, or amount to significant physical harassment or ill treatment under s.5J(5) of the Act or that it would otherwise amount to serious harm.
The Authority found it is most likely that the applicant would be issued a fine and be released or released on his own personal surety. The Authority found that the applicant was a passenger on a people smuggling vessel and although he departed illegally has not claimed to be involved with organising or facilitating people smuggling. In these circumstances, the Authority found the applicant would not be subject to any custodial sentence but that he would be fined for his illegal departure and that this would not amount to serious harm. The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future.
The Authority made reference to the applicant’s circumstances cumulatively and was not satisfied that there is a real chance that the applicant will face persecution on return to Sri Lanka now or in the reasonably foreseeable future. The Authority found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and that the applicant did not satisfy the criterion under s.36(2)(a) of the Act.
Complementary protection assessment
In relation to complementary protection, the Authority made reference to the poor conditions to which the applicant would be subjected if placed in prison, being overcrowding, poor sanitation and lack of resources. The Authority was not satisfied on the evidence that there is intention to inflict pain, suffering or extreme humiliation. The Authority found that the circumstances did not amount to the death penalty or an arbitrary depravation of life, or torture. The Authority was not satisfied that poor prison conditions to which the applicant may be briefly subjected to constitute significant harm as defined under s.36(2A) of the Act and s.5 of the Act. The Authority was not satisfied that the applicant would face a real risk of significant harm during a brief period spent in detention.
The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act.
Before this Court
The grounds of the second amended application are as follows:
Ground 1
The decision is irrational, illogical, or so unreasonable that no reasonable decision maker could make it as the IAA erred in failing to consider written submissions provided to the IAA and deal with a finding made by the delegate that was inconsistent with the delegate's own finding.
PARTICULARS
(i) The delegate accepted at [CB 535, Paragraph 132] that the applicant may be questioned on arrival at Colombo airport regarding ''possible people smuggling networks" despite also accepting at [CB 532, Paragraph 121] that the applicant did not have a profile of a people smuggler or was involved in people smuggling. If the applicant was not a people smuggler or was not involved in people smuggling the applicant is unlikely to be questioned about possible people smuggling networks. It could be argued that by stating that the applicant would be questioned by the authorities regarding “possible people smuggling networks" the delegate was of the view that the applicant could be perceived by the authorities to have had involvement with people smugglers / people smuggling networks, hence this line of questioning pursued. It is submitted that the delegate failed to consider the consequence of this line of questioning as it is open to argue that the line of questioning which the delegate accepts may be undertaken upon arrival could impute the applicant with involvement with people smugglers / smuggling networks.
(ii) The written submissions made to the IAA dated 20 June 2016 [CB 566, Paragraph 7] requested the IAA to consider the inconsistency in the delegate's findings referred at (i) above.
(iii) The IAA's finding at [CB 583, Paragraph 59) though it may seem consistent with the delegate's finding at [CB 532, Paragraph 121] failed to consider that the delegate's finding at [CB 532, Paragraph 121) was inconsistent with the delegate's own finding at [CB 535, Paragraph 132].
(iv) The written submissions made to the IAA dated 20 June 2016, pointed out the inconsistency at [CB 566, Paragraph 7].
(v) The delegate acknowledged that an applicant who may be involved in people smuggling “faced heavy punishment on return to Sri Lanka”[CB 532, Paragraph 121], while the IAA acknowledged (impliedly) that an applicant who may be involved in people smuggling would be subjected to a custodial sentence.
(vi) The IAA erred by not considering the written submissions made to the IAA on 20 June 2016, which pointed out the inconsistency.
(vii) As a finding made by the delegate appeared to be inconsistent, the reviewer ought to have dealt with the finding that appeared to be inconsistent which was addressed in the written submission to the IAA prior to accepting one of findings made by the delegate.
Ground 2
The IAA committed jurisdictional error as it failed to accept / reject a claim that was raised by the applicant and referred in the submission dated 20 June 2016 which the IAA had regard to [4]. The claim related to the applicant's father's cause of death [8] which was relevant when assessing future harm the applicant may suffer at the hands of Tamil paramilitary groups [46] “Sri Lankan authorities”[8].
PARTICULARS
(i) The applicant claimed at [CB 346, Paragraph 20] that he believed his father was killed by the army on grounds of suspicion that he was an LTTE member.
(ii) The delegate accepted at [CB 519, Paragraph 37] that the applicant's father went missing and that the applicant believes that his father was killed by the SLA.
(iii) The delegate noted that the applicant submitted an untranslated death certificate in support of the applicant's claim that the applicant believes that his father was killed by the SLA.
(iv) The IAA accepted that the applicant's father went missing in 1997 and died the same year [CB 573, Paragraph 8].
(vi) The IAA went as far as to state “Despite the official explanation for his father's death, the applicant and his family believe he was killed by the SLA or other Sri Lankan authorities” [CB 573 , Paragraph 8], however did not make a finding on the cause of the father's death.
(vii) It is submitted that the IAA had sufficient evidence before it, to make a finding regarding the cause of the applicant's father's death. The applicant in his written claims stated [at CB 430, Paragraph 25] that the authorities notified the applicant and his family that the father had been “killed during a cross fire” though this is not what the applicant and his family believed had happened to the father. Though the IAA did appear to consider the explanation provided by the authorities to the applicant and his family regarding the father's death and what the applicant and his family believed had happened to the father, no clear finding regarding the father's cause of death be it “killed during a cross fire" or “killed by the SLA, TMVP, or Karuna group on suspicion that he was a suspected LTTE member" [CB 519, Paragraph 37] as contended by the delegate was made.
(viii) The written submissions made to the IAA dated 20 June 2016, pointed out an error in the delegate's decision record [at CB 566, Paragraph 9]. The written submissions at CB 566, Paragraph 9 state “The applicant did not state that his father was killed by the TMVP / Karuna group as these paramilitary groups did not exist at the time of the father 's death in 1997''. The IAA failed to consider or respond to the delegate's error pointed out in the written submissions made to the IAA
(ix) It is submitted that the cause of the applicant's father's death was an essential and relevant integer of the applicant's claims, and for reasons particularised above the IAA ought to have made a clear finding of fact regarding the cause of the applicant's father's death.
Ground 4
The IAA's findings at [CB 584, Paragraph 67] is consistent with legal errors alleged by the applicants in SZTAL. This matter would be heard in the High Court as special leave has been granted by the HCA for the appeal to proceed. The outcome of the matter to be heard by the HCA could affect the applicant's case.
PARTICULARS
(i) At [CB 584, Paragraph 67] the IAA states “I am not satisfied on the evidence, that there is an intention to inflict pain or suffering or extreme humiliation".
(ii) The finding made by the IAA [CB 584, Paragraph 67] relates to ''poor prison conditions”(when the applicant would be detained upon arrival) “due to overcrowding, poor sanitation and lack of resources".
(iii) On the basis of the IAA's inference at [CB 584, Paragraph 67] it is submitted that the IAA impliedly accepts that the ''poor prison conditions" caused due to overcrowding, poor sanitation and lack of resources" amounts to pain or suffering or extreme humiliation.
(iv)The outcome of SZTAL would determine if the IAA was correct in stating that “intention” needs to exist in order that any pain or suffering or extreme humiliation that the applicant may experience during any period of detention amounts to significant harm.
(v) Therefore should appeal grounds I - 3 be unsuccessful, the applicant's case must be adjourned until a decision is made by the HCA on SZTAL.
Ground 5
The IAA's decision was infected with jurisdictional error as the delegate's notification to the IAA regarding the non-disclosure of certain information under s473GB of the Migration Act, failed to provide sufficient information regarding the relevance and the significance of the document / information that the IAA should not disclose to the applicant / his representative.
PARTICULARS
(i) The delegate who signed the written certificate states at [CB 547], “the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it is a working document"
(ii) It is acknowledged that on the basis of s473GB(1)(a) it may be perceived as sufficient that the written certificate issued under s473GB specifies “any reason” for non-disclosure of a document /information where disclosure would be contrary to public interest. It is submitted that s473GB(1)(a) is an unfair and unreasonable sub section of the Act as it permits the delegate / Minister to specify “any reason” where disclosure is considered contrary to public interest.
(iii) The delegate who signed the written certificate has indicated that the reason for non- disclosure of the document / information was “because it is a working document".
(iv)The delegate did not provide sufficient reasoning so as to justify withholding information. The fact that a document / information contains “working document"” is not a reason that could form the basis of a claim by the Commonwealth in judicial proceeding that information should not be disclosed. See MZAFZ.
(v) It is submitted that the applicant has been denied procedural fairness as the delegate failed provide sufficient reasoning so as to justify withholding information.
(vi) The IAA had before it a document / information that was not put to the applicant for comment and which may have been part of the reason for the IAA to affirm the delegate's decision. It is submitted that failure to put the document / information to the applicant constitutes a denial of procedural fairness.
(vi) This case being reviewed is analogous to a recent Federal court matter that was decided in favour of the applicant in that case, see: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (7 September 2016).
(vi) In MZAFZ Beach J stated,
Validity of the certificate
35. It is appropriate to first address the validity of the s 438(1)(a) certificate; I will discuss procedural fairness questions and the legislative fail-safe of s 422B(2) later. In order to address validity, it is necessary to consider what is meant by the phrase in s 438(1)(a), ''the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document or the information, should not be disclosed.
36. In my view this phrase is referring to public interest immunity or what is sometimes referred to as Crown privilege, albeit that the latter description is not ·wholly apposite given the nature of the interest protected. First, the words of the text so suggest. Second, the context of s 438 does not suggest a broader ambit. Third, the explanatory memorandum for the predecessors 166GC suggests that the legislature was considering “the basis of a claim for Crown privilege" (see the explanatory memorandum at [387] to the Bill which ultimately became the Migration Reform Act 1992 (Cth)). Fourth, the Minister before me did not contend for any broader ambit. Fifth, provisions such as s 47C of the Freedom of Information Act 1982 (Cth) are irrelevant as they deal with conditional exemptions under that Act rather than claims entitling non-disclosure in judicial proceedings. Sixth, my construction is consistent with how an analogous phrase has been construed and applied ins 36B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (see Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority and Ors [1991] AATA 277; (1991) 25 ALD 160 at [11] per Gray J). Finally, and for completeness, I note that the analysis of Wilcox J in Burton v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1455; (2005) 149 FCR 20 was dealing with s 375A(1) of the Migration Act, which provides an analogous power to the Minister to issue a certificate if the disclosure of information would be contrary to the public interest. But that provision is differently formulated to s 438(1)(a), although the views of this eminent jurist are relevant to the next issue dealing with the adequacy of disclosure on the face of the certificate.
37. Now given that the phrase is referring to public interest immunity, one can appreciate that the certificate on its face is invalid. What had to be specified in the certificate was “any reason ... that could form the basis for a claim ...” But the only reason stated was “ ... contains internal working documents". But that has never been either a necessary or sufficient basis for public interest immunity. whether at common law (Sankey v Whitlam (1978] HCA 43; (1978) 142 CLR 1 at 38 to 46 per Gibbs ACJ) or under statute (s 130 of the Evidence Act 1995 (Cth)). The certificate in the present case is as deficient as the certificate purportedly produced under the legislative analogue analysed by Wilcox J in Burton at [43] to [52], albeit by way of obiter dicta. The certificate in the present case manifests imprecision and overreach. At best, it only disclosed one of a set of conditions (not fully specified in the present case) that together might have been sufficient to disclose a “reason ... that could form the basis for a claim ...”. At best, it only disclosed a reason that could form part of the basis for a claim, not the basis. It did not meet the statutory prescription of s 438(1)(a). It did not communicate to the Tribunal or indeed any reader any reason which met the description “could form the basis ...”. The description was not unimportant. It permitted the prima facie concealment from the applicant of documents or information. It triggered the operation of ss 438(3)(a) and 438(3)(b) in relation to how the documents or information could be dealt with. It potentially impacted on procedural fairness questions as narrowed by the s 438(3) boundaries.
38. On the basis of Beach J's reasoning in MZAFZ it is submitted that the certificate issued by the delegate under s473GB of the Migration Act is invalid.
39. It is further submitted that the applicant has been denied procedural fairness for reasons particularised above.
Ground 6
The IAA's decision is infected with jurisdictional error as the delegate failed to put the applicant on notice, though the delegate accepted that “base factual assertions in the support letter" [CB 523, 60] would be accepted, a claim raised in the support letter [CB 523, 60] which stated that the applicant 'spearheaded’ projects would not be accepted.
PARTICULARS
(i) The support letter was provided to the delegate after the delegate's interview [CB 523, 58].
(ii) The delegate accepted base factual assertions in the support letter however did not accept the letter as proof of the genuineness and extent of the applicant's political belief and commitment. [CB 523,58].
(iii) It is submitted that the delegate did consider the contents of the support letter.
(iv) The delegate did not accept that the applicant 'spearheaded' any projects [CB 523, 60] while also noting at [CB 523, 60] that “At no point did the applicant give any indication that he 'spearheaded' any particular project for the RDS.
(v) Having considered the contents of the support letter and accepting the base factual assertions in the support letter. and noting that the applicant did not give any indication (during his interview with the delegate) that he had spearheaded projects, the delegate ought to have put the adverse concerns he had to the applicant and his representative for comment. Failing to do so is a breach of procedural fairness which neither the delegate / the IAA rectified.
Mr Tambimuttu, the solicitor for the applicant, confirmed that Ground 3 is not pressed and is formally abandoned.
Consideration
Ground 1
In relation to Ground 1, the reasons of the Authority reflect an orthodox approach to the review conducted under Part 7AA of the Act. That Part has important provisions including s.473DA of the Act and the obligation imposed on the Authority under s.473DB of the Act. That Part also includes a power under s.473DC of the Act in relation to getting new information and the constraint under s.473DD of the Act in considering in considering new information and the obligations imposed in that regard under s.473DE and 473DF of the Act.
I do not accept that there is any inconsistency in the delegate’s own findings in relation to people smuggling networks. The applicant did not allege that he was a people smuggler or involved in people smuggling. There was no irrationality, illogicality or unreasonableness in the decision-making of the Authority in its findings as to whether the applicant was a refugee or in its findings in relation to complementary protection. I do not accept that there is any inconsistency in the delegate’s reasons that would require consideration by the Authority. Ground 1 is in substance an impermissible challenge to the adverse findings of fact made by the Authority. No jurisdictional error is made out by Ground 1.
Ground 2
In relation to Ground 2, there is no obligation upon the Authority to determine how the applicant’s father was in fact killed. It is apparent that the Authority took into account the applicant’s belief that his father had been killed by the SLA. Whilst I accept that there may be an error in the delegate’s decision in referring to the TMVP, this is of consequence and was an immaterial error to the determination of the claims and was immaterial to the adverse findings made by the Authority. The adverse findings by the Authority were open on the material before the Authority.
It is apparent that the Authority addressed the applicant’s claim in relation to fears of imputed political opinion because of LTTE involvement and the applicant’s fear in relation to the TMVP. This is not a case where the Authority had to make any finding of fact in relation to who killed the applicant’s father. The Authority addressed the essential integers of the claims advanced on behalf of the applicant and made findings that were open.
It is apparent that the Authority took into account the applicant’s fear that his father was killed by the SLA in the adverse findings that were made by the Authority. Ground 2 is in substance an invitation to this Court to engage in an impermissible merits review. No jurisdictional errors made out by Ground 2.
Ground 4
In relation to Ground 4, an application for an adjournment was foreshadowed in the written submissions, pending the challenge in the High Court of Australia to SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (“SZTAL”). It was submitted on behalf of the applicant that intention was irrelevant in relation to the conditions to which the applicant would be exposed by reason of his illegal departure upon his return to Sri Lanka.
Section 5 of the Act identifies the relevance of the intention in respect of the definitions referred to. No part of the reasoning in SZTAL is the subject of specific argument as to its materiality in relation to the determination of the issues in the present case. It was submitted that other cases had been adjourned because of the challenge in the High Court of Australia. I am not satisfied that there was any overlap in relation to the determination of the decision SZTAL with issues raised in the present case that warrants the matter being stood over pending the outcome of the application for special leave.
An adjournment would in the circumstances of the present case only unnecessarily add to the costs of the parties and utilise limited Court time. The Court is not satisfied that an adjournment is in the interests of the administration of justice. In relation to Ground 4, it is apparent that the Authority considered the circumstances to which the applicant would be exposed and made adverse findings that were open. On the face of the material before the Court, the Authority complied with statutory regime in the conduct of the review. No legal error has been identified in relation to the reasoning of the Authority. The Authority’s adverse finding in relation to detention was open and on the material before the Court, the Authority correctly applied the relevant law. Ground 4 fails to make out any jurisdictional error.
Ground 5
In relation to Ground 5, the statutory provisions under Part 7AA of the Act are materially different from those considered in MZAFZv Minister for Immigration and Border Protection [2016] FCA 1081 (“MZAFZ”) and in particular there is no equivalent to s.425 of the Act.
Mr Kaplan of Counsel on behalf of the respondent conceded that the certificate in the present case had not been provided to the applicant in relation to the review by the Authority and that the underlying document had not been provided to the applicant. Mr Kaplan accepted that there was an argument that might be raised of invalidity given the overlap of language in s.473CB of the Act and the description in the certificate in the present case as being contrary to the public interest because it is a departmental working document.
The solicitor for the applicant contended that the applicant did not have the opportunity to challenge the validity of the certificate and to seek an obtainment document and that this was a denial of procedural fairness and fell within reasoning in MZAFZ. I accept the submissions of the first respondent that the decision in MZAFZ is distinguishable from the present case because of the provisions under Part 7AA of the Act.
Further, in the present case is the fact that the document referred to was one in its description referring to the identity assessment referrable to the applicant. There was no dispute in the present case as to the applicant’s citizenship. There was no rational argument developed as to how that document could have possible relevance to the outcome of the decision of the Authority. The solicitor for the applicant referred to the provisions of s.473CB(1)(c) of the Act and whether the information was considered to be relevant to the review.
There is no reference to the identity assessment form in the reasoning of the Authority. I find that the Authority did not act upon the certificate in the reasoning process referrable to the review and the determination of the applicant’s claims. I find that the document was irrelevant to the determination of the applicant’s claims in the present case. I find that the alleged invalidity of the certificate in the documents could not possibly have assisted the applicant in relation to the conduct of the review. I find that there was no jurisdictional error by reason of the applicant not being provided with the certificate or in relation to the conduct of the review I find that there was no denial of procedural fairness by reason of the applicant not being provided with the certificate in the conduct of the review.
Even if contrary to the reasons I have identified it was found that there was an error concerning the certificate, this is a case where I am satisfied there was no practical injustice to the applicant in the conduct of the review by the Authority and this is a case where I have withheld a grant of relief for that reason. No jurisdictional error is made out by Ground 5.
Ground 6
In relation to Ground 6, there is no positive finding by the delegate that the applicant spearheaded activities. The premise underlying the alleged error in Ground 6 that there is a favourable finding by the delegate in relation to the applicant’s spearheading activities is not supported by the delegate’s reasons. Further, the Authority is not bound by the findings of fact made by the delegate.
I do not accept that there was any denial of procedural fairness that gives rise to any jurisdictional error by the Authority. I do not accept that the delegate was required to raise with the applicant the relevant limited weight it gave to the letter. Equally, it was a matter for the Authority to determine what weight to give the relevant letter. No jurisdictional error is made out by Ground 6.
Conclusion
For these reasons, the second amended application is dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 2 March 2017
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