CJD16 v Minister for Immigration

[2017] FCCA 2748

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2748

Catchwords:
MIGRATION – Review of decision of Immigration Assessment Authority – fast track decision – nature of review – jurisdictional error – allegations of procedural unfairness – failure to consider new information – no error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.2A, 5AA, 5H(1), 5J(1), 5J(4), 5J(5), 7AA, 36, 36(2), 91K, 91L, 91R, 473, 474, 476

Cases cited:
NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZNXA v Minister for Immigration & Citizenship [2010] FCA 775
Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
Chan v Minister for Immigration (1989) 169 CLR 379
Minister for Immigration v Guo (1997) 191 CLR 559
Appellant S395/2000 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
SZUWX v Minister for Immigration & Border Protection [2015] FCA 1389
Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136

Applicant: CJD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 262 of 2016

Judgment of: Judge Brown

Hearing date: 2 June 2017

Date of Last Submission: 2 June 2017

Delivered at: Adelaide

Delivered on: 13 November 2017

REPRESENTATION

Counsel for the Applicant: Mr Charman

Solicitors for the Applicant: MSM Legal

Counsel for the First Respondent: Mr O'Leary

Solicitors for the First Respondent:

Solicitors for the Second Respondent:

Sparke Helmore

Submitting appearance

ORDERS

1. The application filed 24 August 2016 as amended on 19 December 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of six thousand eight hundred and twenty-five dollars ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 262 of 2016

CJD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, in these proceedings, by way of his amended application filed on 19 December 2016, seeks an order to quash an order of the Immigration Assessment Authority “the IAA” made on 8 August 2016, which affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection not to grant him a protection visa.  In generic terms, the applicant’s application for refugee status, in Australia, was rejected. 

2. The applicant is Tamil by ethnicity and Hindu by religion.  He originates in Batticaloa, in the Eastern Province of Sri Lanka.  The applicant arrived, in Australia, by boat, on 25 September 2013.  As he did not have any relevant documents, particularly a valid visa for entry to Australia, he was deemed to be an unauthorised maritime arrival, within the terms envisaged by section 5AA of the Migration Act 1958 “the Act”.

3. The applicant claims to be at risk of suffering harm, at the hands of the Sri Lankan authorities, if returned to that country because he will be imputed to be a supporter of the Liberation Tigers of Tamil Eelam “the LTTE”, a secessionist group previously involved in armed opposition to the Sri Lankan government, particularly in areas of the country which have a large Tamil population.  One of these areas is the Eastern Province.

Applicable legislative provisions

1. As a consequence of these matters, in September of 2013, the applicant applied for a protection (class XA) visa pursuant to the Act. The necessary criteria required to be satisfied, before a person is granted a protection visa, are set out in section 36 of the Act. In general terms, the section and others related to it, formalise Australia’s protection obligations owed to refugees, pursuant to the Refugee’s Convention, to which Australia is a signatory.

2. These criteria contained in the section include considerations relevant to national security and relevantly, so far as the current matter is concerned, the considerations set out in section 36(2)(a) & (aa) namely:

   “(2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)a non‑citizen in Australia (other than a non‑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;”

3. Pursuant to section 36(2)(aa), a person is additionally entitled to a protection visa, if there are substantial grounds for believing that, if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm. 

4. Subsection (2A) defines significant harm.  It includes being subject to torture; being subjected to cruel or inhuman treatment; and degrading punishment and treatment.  This is known as the complementary protection criterion.

5. The term refugee is defined in section 5H(1) of the Act as follows:

   “(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.”

6. The expression of well-founded fear of persecution is defined by section 5J(1) as follows:

   “(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

   (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)the real chance of persecution relates to all areas of a receiving country.”

7. Section 5J(4) defines what is meant by the expression persecution.  It must entail serious harm to the person concerned and involve systematic and discriminatory conduct. Section 5J(5) provides instances of what might represent serious harm, which include the following:

   ·a threat to life or liberty;

   ·significant physical harassment;

   ·significant physical ill-treatment;

   ·significant economic hardship threatening a person’s capacity to subsist;

   ·denial of access to basic services;

   ·denial of a capacity to earn a living.

• Section 5J(5) does not represent an exhaustive list of courses of conduct which represents serious harm rather it provides examples of what might amount to serious harm.  It is a failure of jurisdiction for a decision maker to construe the list as such.[1]

  [1]  see NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 at [35]-[36]

The applicant’s claim

1. The applicant completed a statement in support of his Request to Remain in Australia on 2 September 2013.  In this document, he indicated that he and his family had lived in an area of Sri Lanka previously controlled by the LTTE in the period during the civil war. 

2. The applicant claimed that, with war’s conclusion and the re-occupation of the Eastern Province, his father had been a primary target for the Sinhalese authorities because of his alleged links with the LTTE and his support of it, during the civil war.  In this context, the applicant asserted that his father had been taken in for interrogation, on several occasions, during which he had been tortured, resulting in him suffering a broken arm on one occasion.

3. The applicant himself claimed that he too had been detained by the Sinhalese authorities, when his father had been away from home, on five or six occasions between 2008 and 2012.  He further claimed that he had also been assaulted and accused of being a supporter of the LTTE.  In these circumstances, the applicant asserted as follows:

   “I believe that if I return to Sri Lanka, I will be harmed by the Sri Lankan authorities.  I will be harmed because the Sinhalese authorities suspected that my family was associated with LTTE and subjected us to constant harassments and harm.  I will be a target of such mistreatments if I return.”[2]

   [2]  See casebook at page 16

4. One of the consequences of being an unlawful maritime arrival is that such persons are excluded from applying for a protection visa, by means of orthodox channels, to enable them to remain in Australia, pursuant to the provisions of the Act [see section 91K].

5. However, pursuant to the provisions of section 91L the Minister for Immigration & Border Protection “the Minister” is vested with a discretion to allow such individuals to apply for either a protection visa or a safe haven enterprise visa “SHEV”, if the Minister considers that it would be in the public interest to do so.  This process is known as lifting the bar. 

6. The Act was amended as a consequence of the ascent of the Migration & Maritime Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.  In general terms, the amendment provided for what has been denoted as a fast track review process in respect of unauthorised maritime arrivals to Australia, in respect of whom the Minister had lifted the bar. 

7. In particular, section 5 of the Act was amended to include a definition of a fast track applicant, who is a person: 

   (i)      who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)     to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)   who has made a valid application for a protection visa in accordance with the determination; or

8. On 23 September 2015, the Minister lifted the bar, so far as the applicant is concerned.  He satisfies the other pre-conditions set out in the definition.  As a consequence, on 21 October 2015, his advisor lodged an application for a SHEV on his behalf.  It is common ground between the parties that the applicant in these proceedings is a fast track applicant, given the circumstances surrounding his arrival in Australia. 

9. In his application for the SHEV, the applicant expanded upon his original statement.  In particular, he claimed as follows:

   ·       His father was a well-known supporter and loyalist of the LTTE;

   ·As such, the applicant had been and would continue to be imputed with holding separatist views, which were likely to be viewed as being inimical to the unity of the Sir Lankan state and, as such, would be unacceptable to the relevant authorities;

   ·The applicant’s father had provided substantial support to the LTTE, which included the following:

   o   Allowing the LTTE to use his farm as an office or police station for the LTTE;

   o   Providing dry food provisions to the LTTE;

   o   Assisting with the transportation of logs to build bunkers and sentry points for the LTTE;

   o   Organising Hero’s Days in honour of deceased LTTE soldiers;

   o   Attendance and participation in LTTE meetings.

   ·The applicant also claimed to have assisted in his father’s activities, with the LTTE, during his childhood and later that he had been part of the student wing of the LTTE;

   ·His uncle had assisted LTTE cadres, during hostilities, and had been missing since 2009, presumed to have been killed by the Sri Lankan military;

   ·The applicant had been identified, by a masked person, whilst travelling on a bus between Colombo and Batticaloa, which had been stopped at a checkpoint.  Thereafter he had been questioned and photographed;

   ·Later he had failed to comply with reporting conditions imposed upon him.

10. The applicant expanded upon his claims, in a document dated 13 October 2015.  In his statement, he indicated that the LTTE had occupied a house on his family’s land from 2005 onwards.  His father had also allowed the LTTE to use his tractor.  As a consequence, Sri Lankan soldiers had come to the property to search for weapons.  The applicant also claimed that he had attended LTTE meetings with his father. 

11. Significantly, the applicant indicated that a man known as Colonel Karuna had been the commander of the Batticaloa area, for the LTTE, during the hostilities.  As a consequence he had had a significant degree of involvement with the applicant’s father in separatist activities. 

12. Colonel Karuna had subsequently defected from the LTTE and joined the Sir Lankan government.  In these circumstances, the applicant asserted that Colonel Karuna’s previous knowledge of his father’s activities, with the LTTE, posed a risk to him now that Colonel Karuna had changed his allegiances. 

13. On 27 January 2016, the applicant was invited to attend a protection visa interview, which took place on 10 February 2016.  I have been provided with a transcript of the interview.[3]  The applicant was questioned about the various claims he had made, including those in respect of Colonel Karuna and his identification on the bus stopped between Colombo and Batticaloa.

    [3]  See affidavit of Jane Louise McGrath filed 30 January 2017

Legal provisions relating to fast track decisions

1. On 20 June 2016, a delegate of the Minister refused to grant the applicant a SHEV.  As a consequence of this decision, given that the applicant was a fast track applicant, the delegate’s decision was automatically referred to the IAA pursuant to section 473CA of the Act.

2. Section 473CA enshrines the obligations incumbent upon the Minister and any delegate in respect of fast track reviewable decisions.  Pursuant to the section:

   The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

3. Section 473CC provides as follows:

   (1)     The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

   (2)     The Immigration Assessment Authority may:

   (a)     affirm the fast track reviewable decision; or

   (b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

4. Accordingly, the review envisaged by section 473CC is not one initiated by any applicant concerned.  Rather, it is a compulsory aspect of the process of fast tracking.  Section 473CB provides a list of the material, which is to be provided to the IAA, in respect of each fast track matter.  It includes the following:

   ·the findings of fact and references to evidence relating to the decision under review;

   ·       any material provided by the applicant in question;

   ·       other relevant material;

   ·       contact information for the applicant concerned.

5. In particular, section 473DB limits the manner in which a fast track review is to be conducted and the material, on which the decision is to be based.  Firstly, the fast track review is to be made without accepting or requesting new information and secondly without interviewing the referred to applicant. 

6. Section 473DC authorises the IAA to obtain both evidence and documents, which were not before the Minister, if such information is considered to be relevant.  However the IAA is under no duty to do so, including if it is requested to do so by an applicant.

1. However, section 473DC is subject to a general prohibition stated in section 473DD that the IAA is only entitled to consider new information if it is satisfied that exceptional circumstances exist. In addition the nature of the information itself must satisfy two criteria:

   ·The information was not and could not have been provided to the Minister at the time of decision;

   ·The information itself is credible and may have affected the Minister’s consideration of the relevant claims.

2. Pursuant to section 473BA, the Minister is required to refer decisions, relating to fast track applicants, to the IAA, as soon as reasonably practicable after a decision is made.  In the current matter, the delegate’s decision was referred to the IAA on 28 June 2016. 

Additional information provided following decision

1. On 13 July 2016, the applicant’s advisor forwarded two additional documents to the IAA, which it asserted had been obtained in exceptional circumstances, within the terms envisaged by section 473DD.  The documents concerned were copies of receipts, issued by the LTTE, to the applicant’s father, in respect of donations made in 1997 and 1998. 

2. The advisor also provided further country information, from a United Nations Special Rapporteur, regarding the prevalence of torture, by police, in Sri Lanka, at the present time.[4]  The advisor also provided additional information in expansion of the claims made by the applicant in respect of his interception on the bus between Colombo and Batticaloa.[5]  This information was characterised as a clarification of the earlier claims.

   [4]  See casebook at page 246 [4]

   [5]  Ibid at 254 [28]

3. The applicant claimed that on the day following his removal from the bus, his mother had been visited by police.  Later he was told to report to CID police at an army camp near to his home, every 15 days.  He had done so, on three or four occasions, until he had left Sri Lanka, without authorisation, in 2012.

4. In addition, the advisor indicated that a freedom of information request had been made, on the applicant’s behalf, to request provision of all material submitted on his behalf to the Department of Immigration & Border Protection.

The jurisdiction of this court

1. The decision of the IAA is one of an administrative nature made under the provisions of Part 7AA of the Migration Act. Accordingly it is to be characterised as a privative clause decision, within the terms of section 474 of the Act.

2. Pursuant to the provisions of section 474 a privative clause decisions is to be regarded as final and conclusive.  As such, it cannot be subject to challenge, review or appeal.  The decision of the IAA, which the applicant seeks to review, in this case, is such a privative clause decision as defined by section 474 of the Act and must not be challenged or reviewed in any court or be subject to writs of certiorari or mandamus.

3. However, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by an administrative decision maker, such as the IAA, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.[6]

   [6]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

4. The applicant seeks to review the decision of the IAA on the basis that it is affected by jurisdictional error and is therefore amenable to the application of a writ of certiorari. Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

1. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the IAA by way of a writ of certiorari, which is what the applicant seeks. 

2. However, this jurisdiction does not involve the re-hearing of any administrative decision, regarding a migration matter, on its merits – that is this court substitutes its view of the facts concerned for those of the administrative decision maker.  Rather the jurisdiction depends on the applicant concerned establishing some form of jurisdictional error on the part of the decision maker concerned.

The grounds for review

1. On 8 August 2016, the IAA affirmed the delegate’s decision not to grant the applicant a protection visa or SHEV under the Act.  It is this decision which is the subject of the current proceedings. 

2. In his amended application, filed on 19 December 2016, the applicant seeks to quash the decision of the IAA on the following grounds:

   “1.    The applicant was denied procedural fairness by the Immigration Assessment Authority to address part of the applicant's claim and this failure to take into account for a relevant consideration.

   2.     The second respondent committed jurisdictional error in failing to provide the applicant with access to documents sought and which formed part of a Freedom of Information (FOI) request to the second respondent.

   3.     The second respondent committed jurisdictional error in failing to properly interpret and apply the law regarding ‘new information’ set out in the MigrationAct and, in particular, found (for example, IAA decision paragraph 28 and 29) that information provided at the SHEV interview regarding being photographed at a checkpoint constituted ‘new information’ and not an elaboration or clarification of a claim previously put.

   4.     The second respondent committed jurisdictional error in failing to properly interpret the law regarding a real chance of persecution in Sri Lanka for a Convention reason.

   Particulars

   4.1    Having found (for example, paragraph 32, 33 and 34 of the decision), that the applicant had been called for questioning by Sri Lankan authorities on five or six occasions over a  period of three years, and was threatened.  The second respondent should have found that this constitutes serious harm amounting to persecution.

   4.2    The second respondent should have found that:

   ·The past conduct of the Sri Lankan authorities constituted persecution.

   ·The Applicant faced a real chance of persecution in Sri Lanka in the future.”

The IAA decision

1. The IAA found that the applicant was born in 1994.  It further accepted that Batticaloa was under LTTE control until 2007 or 2008.  After this time, the Eastern province, in which Batticaloa is located, came under the control of the Sri Lankan Army.

2. The IAA indicated that it had considered all the material referred to it pursuant to section 473CB of the Act.  The IAA declined to consider the receipts provided following the Delegate’s decision on the basis that there were no exceptional circumstances surrounding their late provision. 

3. In any event, the IAA accepted the aspect of the applicant’s claim that his father had supplied goods and material to the LTTE, an assertion of fact, which the receipts were purporting to corroborate.

4. The IAA did not consider that exceptional circumstances arose sufficient to justify its consideration of the Special Rapporteur’s report or the recently provided information regarding the claim that the applicant had been subject to reporting conditions prior to his departure from Sri Lanka.

5. The IAA summarised the applicant’s claims in the following terms:

   ·He had always lived in Batticaloa, apart from a period in 2007-2008, when the civil war ended in the Eastern province, when he had been in a displacement camp with his family, and in 2012, when he had worked as a tailor’s apprentice in Colombo, for three months.

   ·His family owned farming land near Batticaloa and during the period of LTTE control the applicant’s father had given the LTTE use of a building on the farm, provided food, lent his tractor for building bunkers and for transportation and had attended LTTE meetings. 

   ·The applicant himself had been involved with a student welfare organisation run by the LTTE; had assisted with preparation for the celebration of Hero Day; and helped his father in his activities with the LTTE. 

   ·From 2008 onwards, the Sri Lankan authorities had visited the family home and taken his father for questioning.  On one occasion, he had been tortured and returned with a broken arm.

   ·If his father was not at home, the applicant himself had been questioned by the authorities.  He had been questioned both at home and at an army camp on 5 or 6 occasions.  He had not been physically harmed but had been asked about his father’s activities with the LTTE and about the whereabouts of hidden weapons. 

   ·The interrogations have been carried out by the Sri Lankan Army.  Colonel Karuna provided information to the Government about LTTE supporters in the area.

   ·At least once, around the end of the war in the East (2007/2008) the authorities had come to the farm and searched for hidden weapons.

   ·His uncle had assisted LTTE cadres, guiding them through jungle areas near his farm.  He had disappeared in 2009 and it was presumed, by the family, that he had been killed by the authorities due to his support for the LTTE.

   ·In 2012, when travelling from Colombo to Batticaloa, the applicant’s bus had been stopped at a checkpoint and he had been identified by a masked man.  Thereafter he had been taken to a room and photographed.  Later, the army had visited and asked why he had gone to Colombo without permission.

   ·In these circumstances, the applicant feared that, if he returned to Sri Lanka, he was likely to be arrested at the airport and imprisoned. 

   ·He asserted that now he is eighteen, he is likely to be subjected to more significant maltreatment because of his associations with the LTTE and because he had left the country without permission and failed in his obligation to report every fifteen days.

6. The IAA assessed the applicant as being generally credible and the account of his circumstances to be broadly consistent with country information then available.  The IAA did not accept the applicant’s claim that he had been identified at a checkpoint in 2012, noting that this had matter had been briefly raised at his SHEV interview, with significant new details having been provided in respect of it in the submissions recently provided by his advisors.

7. Thereafter, after under a number of headings, the IAA turned to consider the issue of whether the applicant had a well-founded fear of persecution because of his imputed profile as a LTTE supporter.  The IAA accepted that the applicant’s father had provided support to the LTTE during the Civil War, a state of affairs which would have been known to Colonel Karuna. 

8. In this context, it was accepted that, as a Tamil, the applicant’s father would have been subject to surveillance by the Army and would have been questioned following the end of the war.  It was also accepted as plausible that his arm had been broken during questioning.  However, the IAA considered that the applicant’s father had not been considered, by the Sri Lankan authorities to have had a major role with the LTTE and any monitoring of his activities had been steadily declining for the past few years.

9. In terms of the applicant himself, the IAA considered that his main involvement with the LTTE was prior to 2007, when he had been a young teenager.  If he had attended LTTE meeting, it was doubted that he had been an active participant in them.  Rather he would have attended as a companion to his father. 

10. In these circumstances, the IAA considered that the applicant had had a minor degree of involvement with the LTTE and therefore would not have had a profile, with the authorities, as a suspected supporter of the LTTE.  In these circumstances, it was further doubted that any such profile would be enhanced, once he had turned eighteen, given the time which had passed since the end of hostilities and the fact that a new government had been elected.

11. The IAA considered it unlikely the applicant would have been identified by a masked informer, at what appeared to be a random checkpoint, on his return bus trip from Colombo.  But even if he had been so identified, no information of concern had been revealed about him as he had not subsequently been questioned in this regard.

12. The IAA had regard to the new information provided by the applicant’s advisor regarding the applicant’s claim he had been subject to reporting conditions in the period prior to him leaving Sri Lanka.  In this context, the IAA noted that this aspect of his claim had not been raised by the applicant in any of his earlier declarations to the Department.  Accordingly, this information, relating to the issue of a letter to his mother and the requirement for him to attend at the CID, every fifteen days, was assessed to be new information and not a clarification of existing claims, but rather a significant departure from them.

13. The IAA did not consider these freshly advanced claims of having been placed on reporting conditions to be credible and accordingly there were no exceptional circumstances arising to justify considering this new information.  It was considered that, if the authorities had any interest in the applicant at all, it was because of his connection to his father.  In this context, it was noted that the applicant’s brother had been able to leave Sri Lanka for Qatar in 2007 and been able to return.

14. The information provided about the disappearance of the applicant’s uncle was characterised by the IAA as being vague and speculative.  Even if the uncle had been involved with the LTTE, it was noted that the civil war had now been over for nine years, and as such, it was deemed improbable that the applicant faced a real chance of coming to harm because of his association with his uncle.

15. Significant aspects of the applicant’s grounds for review arise in the section of the IAA’s determination headed Applicant’s Profile.  Under this heading, the IAA accepted that the applicant had been subject to monitoring, by the Sri Lankan authorities since the end of the civil war in 2009.  This monitoring had taken the form of brief questioning on five or six occasions over three years.  The focus of this questioning had been the activities of the applicant’s father rather than the applicant himself.

16. The IAA had regard to country information pertaining to Sri Lanka, which indicated that although the Tamil North and East of the country remained heavily militarised, the intense monitoring of the population, put in place at the end of the war, had been eased.  The authorities continued to monitor behaviour indicating support of the LTTE or anti-government activity.

17. In these circumstances, the IAA found as follows:

    “On the basis of the applicant’s evidence about his own experiences, I am not satisfied that his being called in for questioning on five or six occasions over a period of three years, where he was not physically harmed although he was threatened, constitutes serious harm amounting to persecution, even taking into account his young age.

    …

    In these circumstances, and given the changed security conditions in Sri Lanka (albeit accepting that human rights abuses still occur) I find that there is no real chance that the applicant would be subjected to harm on return to Sri Lanka in the reasonably foreseeable future as a person with suspected LTTE connections.  The security situation seems to have eased, although problems remain, and I accept that some Tamils continue to be subject to human rights abuses.  The applicant’s evidence suggests that the monitoring of his father has eased.  He stated that his brother was able to leave Sri Lanka for Qatar, and return, without difficulty.  His brother is now living in a village neighbouring the family home and while the applicant has no first hand knowledge of his situation, having left Sri Lanka before his brother returned, I consider that the applicant’s family would have informed him had his brother been experiencing significant, or possibly any problems for the security authorities.  I find that the authorities were aware, prior to the applicant’s departure, of the degree of involvement of his family with the LTTE.  I consider that no member of the family was under ongoing investigation or suspicion of any greater level of LTTE activity than was already known.  In these circumstances, and given his young age during the conflict and the low level, if any, of his own involvement with the LTTE, I find that the applicant would not face an escalated risk of harm on return.  While I accept that he may continue to face some questioning from security forces, I do not accept that would amount to any form of serious harm.”[7]

    [7]  See Case Book at pages 255 – 256 [33] – [34]

18. It was accepted that the applicant had departed Sri Lanka illegally.  As such, it was accepted that he was liable to questioning, by police, on his return to Sri Lanka.  However, the IAA accepted country information which indicated that such returnees are routinely fined and individual returnees, with a Tamil background, are not imputed with pro-LTTE sympathies merely because they left Sri Lanka illegally. 

19. Accordingly, the IAA did not accept that the applicant was at risk of persecution on the basis of his illegal departure or because he belonged to a class of persons subject to characterisation as failed asylum seekers when this country information was considered in the light of its finding that he and his family had a low level of association with the LTTE.

20. The IAA also rejected the applicant’s claim for complementary protection under section 36(2)(aa) as there was no real risk that he would suffer serious harm, within the definition provided by the Act, if he was returned to Sri Lanka.

Discussion

a)Grounds 1 &4

1. The first ground of review is general in its scope.  It asserts a lack of procedural fairness by virtue of the fact that the IAA failed to consider part of the applicant’s claim and to take into account a relevant consideration.  These assertions are not particularised.

2. Counsel for the first respondent, Mr O’Leary submits that because of un-particularised and general nature of this ground, it is impossible for this court to determine whether the IAA did in fact fall into error by failing to consider a salient aspect of the applicant’s case.  Relying on what was said by Reeves J in SZNXA v Minister for Immigration & Citizenship, he asserts that this provides a basis for the dismissal of this ground of review.[8]

   [8]  SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [21]

3. I agree.  Although, with respect to Mr Charman, counsel for the applicant, it appears to be the position that, in his written submissions, he has attempted to particularise the matters, to which it is asserted the IAA has given inadequate or no weight, in its consideration of whether Australia owes the applicant protection because of his status as a refugee.

4. There is a significant overlap between these various matters and those delineated in ground four.  On this basis, I propose to deal with ground one and four together. 

5. Essentially, as I understand Mr Charman’s argument, he asserts that the IAA has made a number of findings regarding the applicant’s overall credibility and his past level of involvement with the Sri Lankan authorities, which render it legally unreasonable for it to have concluded that he is not a refugee because he will not be subject to a real risk of suffering persecution, if returned to Sri Lanka.

6. As indicated above, the IAA found the applicant to be generally credible other than in respect that he was placed on reporting conditions, following the checkpoint incident in 2012.  In this context, Mr Charman submits that the IAA did not specifically reject the applicant’s claim that he had been subject to the attention of the Sri Lankan Army on five or six occasions, when his father had been absent from the family home and this attention included being subject to threat.

7. Mr Charman also points to the fact that the IAA accepted country information to the effect that low level supporters of the LTTE could still be subject to monitoring by the Sri Lankan authorities.  It was also accepted that human rights abuses, involving Tamils, continued to occur in Sri Lanka.  In all these circumstances, Mr Charman submits as follows:

   ·Given the IAA accepted that the applicant had been called in for questioning on five or six occasions, during which he was threatened but not physically harmed, its finding that this was a situation, which did not constitute serious harm, is a legally unreasonable determination;

   ·Having accepted that the applicant had been subject to this level of questioning in the past, the IAA could not reasonably determine whether he would be subject to a similar level of questioning in the future, if returned to Sri Lanka;

   ·Accordingly, the IAA had failed to properly consider whether the applicant was subject to a real chance that he would suffer serious harm, if returned to Sri Lanka and so failed to acquit the jurisdiction conferred upon it.

8. On the other hand, Mr O’Leary contends that Mr Charman has artificially confined certain aspects of the IAA determination to support his contention that the determination is flawed by some species of legal illogicality or unreasonableness. 

9. Rather, Mr O’Leary submits that once the determination is read in its entirety, the logic of the reasoning is unassailable and, as such, a court, such as this one, which is undertaking a judicial review function, must not convert that process into a review of the merits of the determination by substituting its own findings of fact for those of the relevant decision maker.

10. The starting point for the resolution of this controversy lies in the definition of refugee and well-founded fear of persecution contained in sections 5H and 5J of the Act respectively.  It is the applicant’s contention that the IAA has failed to construe properly these provisions and has thus fallen into jurisdictional error.

11. As delineated above, section 5J(1) has three limbs, which can be summarised as follows:

    ·The applicant concerned fears persecution for a reason based on the Refugees Convention;

    ·There is a real chance that if returned to the country of origin, the applicant concerned would be persecuted;

    ·The real chance relates to all areas of the applicant’s country of origin.

12. Accordingly, in assessing the applicant’s application for a SHEV the IAA was required to consider whether there was a real chance that he would suffer persecution, if returned to Sri Lanka because of his status as a Tamil liable to be imputed to be a sympathiser of the LTTE. The persecution involved, congruent with section 5J(4), must involve serious harm to the applicant; be systematic and discriminatory in nature; and arise because of an attribute delineated in section 5J(1).

13. Similar considerations arise in respect of complementary protection considerations arising under section 36(2)(aa). The applicable criterion being whether the applicant concerned is subject to a real chance of suffering significant harm as defined in section 36(2A).

14. In Minister for Immigration & Citizenship v SZQRB [9] the Full Court of the Federal Court held that the risk threshold for complementary protection under section 36(2)(aa) of the Migration Act is equivalent to the real chance test which applies with respect to Convention obligations enshrined in section 36(2)(a) of the Act, namely that there is a real chance that the person will suffer significant harm.

    [9]  Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 at 551 [248] per Lander & Gordon JJ and 557 [297] per Besanko & Jagot JJ

1. In cases such as Chan v Minister for Immigration[10] and Minister for Immigration v Guo[11] the High Court has indicated that the issue of whether a person is a refugee on the basis of holding a well-founded fear of persecution has both subject and objective elements. 

   [10]  Chan v Minister for Immigration (1989) 169 CLR 379

   [11]  Minister for Immigration v Guo (1997) 191 CLR 559

2. Does the applicant fear persecution for a Convention reason (the subjective element) and is that fear well-founded (the objective element)?  The fear will be well-founded if there is a real chance the applicant will face persecution if he or she is returned to the country of origin.

3. In Appellant S395/2000 v Minister for Immigration & Multicultural Affairs[12] Gummow & Hayne JJ said as follows:

   “The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality.  That is an inquiry which requires close consideration of the situation of the particular applicant.  It requires identification of the relevant Convention reasons that the applicant has for fearing persecution.  It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership pf a particular social group or political opinion” that are engaged.

   Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality.  If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country.  Yet absence of past persecution does not deny that there is a real chance of future persecution.

   Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality.  That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. …”

   [12]  Appellant S395/2000 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 499

4. In Appellant S395 McHugh and Kirby JJ said that the following considerations, amongst others, were likely to be relevant to whether an individual had a well-founded fear of persecution:

   ·the nature, severity and likely repetitiveness of the harm feared;

   ·the extent to which, if at all, the individual will encounter the harm feared;

   ·the extent to which the individual can be expected to tolerate the harm without leaving or refusing to return to the country of nationality.

5. In Minister for Immigration & Border Protection v WZAPN the High Court (French CJ, Kiefel, Bell and Keane JJ) considered section 91R of the Act, a legislative precursor for the provisions currently under my consideration. Their Honours considered that in determining whether a particular applicant faced a situation of serious harm, in his or her country of nationality, a decision maker was required to make a “qualitative judgment…involving the assessment of fact and degree.”  They said as follows:

   “Because not all risks involve the same degree of likelihood or the same level of apprehended harm, the task of the decision-maker under s 91R(2)(a) involves making an assessment of the risk of future harm to a person. In that assessment, the decision-maker may be required to balance the likelihood of harm to the person against the gravity of the feared harm to the person should likelihood become fact.”[13]

   [13]  Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610 at [41]

6. In my view, in the current matter, the IAA considered what was objectively likely to happen to the applicant, if he returned to Sri Lanka.  In so doing, in my view, it conducted an appropriate assessment of the level of harm likely to confront the applicant on his return to Sri Lanka in the light of its assessment of his profile as a person with a history of association with the LTTE.  In particular, the IAA considered criteria of the type posited by the High Court in Appellant S395 and undertook a qualitative judgment of the situation likely to confront the applicant on his return to Sri Lanka.

7. In this context, the IAA considered that the security conditions in Sri Lanka had eased.  The applicant’s own connections to the LTTE had been at a low level and had occurred when he was a minor.  It also noted that another family member had been able to leave Sri Lanka and return without incident.  Although it accepted that the applicant might conceivably be subject to questioning, in future, it did not consider that this situation would amount to serious harm.

8. Because the IAA assessed the applicant as being genuinely credible and made some findings that he had been previously subject to some form of adverse attention by the Sri Lankan authorities and has some form of profile with the LTTE, largely as a consequence of his father’s activities, Mr Charman submits that the IAA’s determination that the applicant would not face an escalating risk of harm on return to Sri Lanka must be characterised as legally unreasonable.

9. I do not agree.  It is the case that binding High Court authority indicates that it is an inherent requirement of the exercise of any power, conferred on a decision maker, such as the IAA, that such power be exercised reasonably and, if is not so exercised, it amounts to a failure of jurisdiction.

10. In Minister for Immigration & Citizenship v Li[14] Gageler J expressed this principle as follows:

    “Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.” Citations removed

    [14]  Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [90]

11. Again in Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason.  In the case, under the heading Judging Unreasonableness His Honour said as follows:

    “Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[15]

    [15]  Li (supra) at 256 [105]

12. Essentially, an administrative decision maker is required to provide an intelligible and reasonable explanation as to why a particular decision has been reached – in this case that the degree of harm to which the applicant might be exposed, if returned to Sri Lanka, was not objectively well-founded because the level of harm, to which he might conceivably be exposed was neither significant nor serious.  In conducting this task, the IAA was required to assess the degree and qualitative nature of this harm.

13. In my view, the IAA considered each aspect of the applicant’s claim for protection.  It rejected some aspects of his evidence, as it was entitled to do, particularly in respect of his identification by the masked person at the checkpoint.  However, it also considered that the applicant was likely to have some profile, as a Tamil and person whose family had been involved with the LTTE during the civil war, with the Sri Lankan authorities, which might lead to him being questioned in future.

14. In this context, it noted the nature of the applicant’s profile and the fact that he himself did not claim to have been previously physically assaulted by the authorities.  In my view, although conceivably some other decision maker might have reached a different conclusion, as to the quality of the risk arising to the applicant in future, the IAA has provided an intelligible and transparent line of reasoning as to why it has concluded that the risk of harm arising to the applicant is neither serious nor likely to escalate in future.

15. In SZUWX v Minister for Immigration & Border Protection [16] Griffith J summarised the High Court’s decision in Li.  His Honour said as follows:

    “…with the bounds of legal unreasonableness, there ‘is an area within which a decision-maker has a genuinely free discretion’.  It is critical that, in exercising a judicial review function, the courts not exceed ‘their supervisory role by undertaking a review of the merits of an exercise of discretionary power’.  Application of a standard of legal unreasonableness ‘does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker’.”

    [16]  SZUWX v Minister for Immigration & Border Protection [2015] FCA 1389 at[ 68]

16. In my view, these comments are apposite to the current matter and the two grounds of review under consideration.  In my view, the determination made by the IAA was reasonably open to it.  In these circumstances, in my assessment, the decision is not vitiated by any error of jurisdiction.

b)      Ground (2)

1. Part VIIA of the Act describes how the IAA is to conduct a fast track reviewable decision both in terms of how the principles of natural justice apply to its proceedings and which documents are to be provided to it. 

2. Firstly, section 473DA reads as follows:

   “(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.”

3. Sections 473GA and 473GB refer to matters of national security and like issues and are not relevant to this particular matter. 

4. In Minister for Immigration & Border Protection v AMA16[17] Griffith J noted that the exclusion provided by the section focussed on the first limb of natural justice relating to the fair hearing view.  In this context, it is the contention of the applicant that he was not provided with a fair hearing because he did not know, with precision, what documents were before the IAA, when it considered his application. 

   [17]  See Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136 at [18]

5. In this context, section 473CB provides an exhaustive list of the matters which must be provided to the IAA, when it conducts its designated review process.  The section reads as follows:

   “(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.”

1. Section 473CB(1)(d) is not contentious in these proceedings.  It requires only that the IAA be provided with comprehensive contact details in respect of the applicant concerned. 

2. The matters referred to in section 473CB(1)(a) are similarly uncontentious.  The applicant was provided with a copy of the delegate’s decision, which was referred on to the IAA. 

3. Section 473CB(1)(b) requires the provision of material provided to the Ministerial delegate by the applicant concerned.  Necessarily, an applicant is likely to be aware of the nature of material submitted by him or her to the earlier decision maker.  Accordingly, it appears to me that the non-provision of this material cannot constitute any breach of the rules of natural justice. 

4. More controversy is likely to be occasioned by section 473CB(1)(c), which requires the forwarding of material to the IAA, which the secretary considers to be relevant to the fast track review process. 

5. This was the issue arising in AMA16.  In that case, material relating to the criminal history, in Australia, of the applicant concerned, had been forwarded to the IAA.  On review, this material was regarded as prejudicial in nature and its production to the decision maker concerned, without reference to the applicant concerned had led to the vitiation of the relevant decision on the grounds of apprehended bias. 

6. In my view, that is not the situation in the present case.  In the relevant freedom of information request, the applicant requested all documents be provided by the Department to the IAA.  The applicant’s advisor was provided with a copy of his visa application and interview with the Departmental Delegate. 

7. The applicant is not in a position to contend that he has not been provided with a specific document or class of document with which he has not been given an opportunity to comment upon.  Essentially, it is a matter of conjecture, on his part, that there may be a germane document, whose existence is unknown to him. 

8. In this context, it is necessary to consider the nature of a fast track review.  It is essentially, a process where an independent authority reviews the documents available to the initial decision-maker, with a limited process to allow additional evidence. 

9. In this case, the IAA indicated that it had considered all the documents referred to it by the secretary of the Department pursuant to section 473CB.  In its decision, the IAA did not exhaustively catalogue those documents.  In my view, it was not required to do so.  In any event, the decision does not refer to any document or class of documents, apart from the two referred by the applicant himself, which were not before the original decision maker. 

10. In particular, it is a matter of conjecture that there were any additional documents or material referred to the IAA other than those alluded to in the relevant decision.  In any event, section 473DA(2) does not require the IAA to refer material to an applicant that was before the Minister, at the time of decision.

11. In these circumstances, I accept Mr O’Leary’s submissions that ground two is not made out for the following reasons.  It cannot be inferred from the IAA’s decision that it did not have reference to all the material, which was required to be provided to it pursuant to the provisions of 473CB.  To the contrary, the decision indicates that if the IAA did have all relevant material and all this material had previously either been referred to or been in the control of the applicant.

12. In these circumstances, I accept Mr O’Leary’s submission that it would be contrary to the objectives of the fast track review process, namely that it be efficient and cost effective, that a review be delayed merely in order to enable an FOI request to be made for the purpose of verifying that the provisions of section 473CB had been complied with. 

13. As such, in my view, the case is significantly different to the situation prevailing in AMA16, in which a document deemed to be relevant by the secretary had been referred pursuant to section 473CB and which was unknown to the applicant concerned.  In this case, the applicant cannot point to a particular document or class of documents, which may have the consequence of causing him some form of prejudice. 

c)     Ground 3

1. Subdivision C of Division 3 of Part VIIA provides mechanisms for the IAA to obtain documents or information, which were not before the primary decision maker.  The IAA must consider such documents or information to be relevant before it embarks upon such a process. 

2. This information is characterised as new information.  It is clear from section 473DC that the IAA does not have a duty to get, request or accept, any new information, if requested to do so by an applicant or anyone else.  The IAA may, however, invite a person to give new information to it, either orally or in writing. 

3. Pursuant to section 473DD, the IAA is prohibited from considering any new information, unless specific criteria are satisfied, namely:

   ·It is satisfied that there are exceptional circumstances to justify considering the new information; and

   ·The applicant satisfies the IAA that the new information was not and could not have been, provided to the original decision-maker, or

   ·The information is credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims. 

4. In this particular case, there are three components of new information, which the IAA was called upon to consider.  None of this information originated as a consequence of any inquiry or request by the IAA itself.  Rather, each emanated from the applicant, after the original decision maker had made the relevant decision. 

5. The IAA did consider the two receipts, purportedly issued by the LTTE, to the applicant’s father in 1997 and 1998.  These receipts were provided in support of the submission that the applicant’s father had been a supporter of the LTTE, during the civil war.  The IAA accepted this contention.  Accordingly, in my view, the use of this information, by the IAA, cannot constitute any jurisdictional error. 

6. The IAA also considered the additional country information represented by the United National Special Rapporteur following his visit to Sri Lanka in 2016.  In this context, the IAA noted that the report did not contain personal information relevant to the applicant as it discussed the situation in Sri Lanka generally. 

7. Accordingly, pursuant to the provisions of section 473DD(a) the report could only be received by the applicant if it was considered there were exceptional circumstances to justify its consideration. 

8. The IAA clearly turned its mind to this consideration and determined that there were no such exceptional circumstances given it had accepted that torture remained prevalent in Sri Lanka at relevant times.  However, from its perspective, the relevant consideration, in its deliberation, was the likelihood of the applicant himself suffering such harm, which was beyond the scope of the report. 

9. In my view, the IAA clearly considered the criterion specified in section 473DD(a).  As such, it exercised the jurisdiction conferred upon it.  As such, for this court to substitute its finding of fact, in respect of this issue, would represent some form of merits review, which is not permissible. 

10. The final aspect of the new information concerns what the applicant asserted happened to him after he had allegedly been stopped at the checkpoint returning to Batticaloa.  In particular, the claim that his mother was issued with a letter and he himself was required to attend upon the CED, at a nearby army camp. 

11. The applicant characterised this as a clarification of an existing claim, which had been made by him.  In its reasons, the IAA did not accept this categorisation.  In its view, the information was new as it represented a significant departure from the earlier claims made by the applicant, both in terms of substance and the level of detail. 

12. A reading of the relevant section of the decision [29] indicates that this information was closely considered.  This is the case because the IAA was able to reject its characterisation as being a clarification.  Rather, the information was regarded as being a new and improbable elaboration, which was not regarded as being credible.  In my view, it was in this context that the information was rejected.

1. In my view, once again, the IAA correctly applied the provisions contained in section 473DD and was satisfied that there were no exceptional circumstances to necessitate the admission of this evidence.  Accordingly, I do not accept that this ground is established. 

2. For all these reasons, the application is dismissed.  I will order that the applicant pay the first respondent’s costs fixed in the sum of $6,825.00.

3. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         13 November 2017