Con17 v Minister for Immigration
[2018] FCCA 2565
•3 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CON17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2565 |
| Catchwords: MIGRATION – Application for review of a decision of the Immigration Assessment Authority – where Applicant seeks adjournment – whether Authority correctly applied the law – whether Authority failed to take into account relevant considerations – procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 36, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, Pt.7AA |
| Cases cited: CKG16 v Minister for Immigration and Border Protection [2018] FCA 362 Minister for Immigration and Citizenship v SZRKT & Anor [2013] FCA 317 Singh v Minister for Immigration & Border Protection [2016] FCA 942 WZARV v Minister for Immigration and Border Protection [2014] FCA 894 |
| Applicant: | CON17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1235 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 3 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 3 September 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Ms Symon |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Applicant’s application for an adjournment of the proceeding is dismissed.
The substantive application filed 13 June 2017 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1235 of 2017
| CON17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Background
These proceedings commenced on 13 June 2017 when the Applicant made an application for judicial review in respect of a decision of the Immigration Assessment Authority (‘the Authority’) to affirm a decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant the Applicant a Safe Haven Enterprise Visa (Class XE) (subclass 790) (‘SHEV’).
In that application filed 13 June 2017, the Applicant alleged jurisdictional error in the decision of the Authority on three grounds. Those grounds were as follows:-
“ 1. The decision of the second Respondent:
a. Was made without or is affected by jurisdictional error.
b. Failed to take into relevant considerations - Pursuant to s 36(2)aa, Australia has protection obligation because the minister has the substantial grounds for believing that, as necessary and foreseeable consequences of the non-citizen being removed from Australia to a receiving country, that there is a real risk that the non-citizen will suffer harm and possible death and torture;
c. In [sic] otherwise contrary to the Law.
2. Particular Details will be provided in accordance with direction of the Court.”
The Applicant has not further expanded upon his grounds of judicial review. In those circumstances, the First Respondent, in submissions filed 20 August 2018 on which the First Respondent relies, considered the Applicant’s application against three categories of possible jurisdictional error. Those categories were whether the Authority correctly applied the law; whether the Authority failed to take into account relevant considerations; and whether the Authority complied with any obligations of procedural fairness owed to the Applicant. The Court also shall consider those matters in the context of fairly meaningless grounds of judicial review.
The adjournment application
The First Respondent filed a response on 27 June 2017. By that response, the First Respondent sought orders that the application be dismissed and the Applicant pay the First Respondent’s costs.
On the same date, namely, 27 June 2017, solicitors for the First Respondent forwarded to the Applicant correspondence, both by post and by email (the postal address being 56 Power Road, Doveton in the State of Victoria) together with the First Respondent’s notice of appearance and the First Respondent’s response to application. The First Respondent, in that correspondence, noted a number of matters under separate headings. Those headings included “Legal Representation” and “If you Change Your Address”. Under the heading “Legal Representation” the solicitors for the First Respondent stated as follows:-
“It appears that you are not legally represented. Proceedings in the Federal Circuit Court entail very complex legal issues and you may wish to seek legal assistance with your application. We strongly suggest that you seek legal assistance or advice as soon as possible regarding this letter and the proceedings generally.
The Law Institute of Victoria (telephone (03) 9607 9311) can provide you with a list of immigration law specialists. The Law Institute is located at 470 Bourke Street, Melbourne. The list provided by the Law Institute will enable you to contact a specialist in the area. You will be charged for services provided.
You can also telephone Victoria Legal Aid on (03) 9269 0234 to make an appointment for free general advice. Victoria Legal Aid are located at 350 Queen Street, Melbourne.
The Asylum Seeker Resource Centre (214-218 Nicholson Street, Footscray, (03) 9326 6066) or the Refugee and Immigration Legal Centre (Level 1, 121-123 Brunswick Street, Fitzroy, (03) 9413 0101) may also be able to assist you.
We suggest that you make contact with these organisations urgently if you propose to seek legal advice as our client will not agree to delay the proceeding if you fail to act promptly in this matter.”
(Emphasis in original).
Under the heading “If You Change Your Address” solicitors for the First Respondent advised the Applicant as follows:-
“We will send all documents in relation to this proceeding to the address that you have provided at the bottom of the Application form that you filed with the Court.
It is important that you tell the Court, and tell us, if you would like correspondence and documents to be sent to an address that is different to the one you have nominated on your Application form. If you do wish to change your address for this purpose, you will need to complete a ‘Notice of Address for Service’.
This document must be filed with the Court, and you must also provide us with a copy. If you do not serve us with a copy of this document, we will continue to send all correspondence and documents to the address you provided in your Application form. …”
On 7 February 2018, Registrar Burns made procedural orders by consent. Those orders included, relevantly, the listing of the final hearing as set out in order 5. That order read as follows:-
“The application be listed for final hearing before Judge Hartnett on 16 December 2019 at 10.00am.”
By correspondence emanating from my Chambers on 15 May 2018, the parties were advised that the matter was relisted. The notice of relisting advised the parties that due to changes in the judicial roster, the matter had been relisted and was then listed for final hearing in the Melbourne Registry of the Court on 3 September 2018 at 10.00am.
By email correspondence received on 13 July 2018, from a person who claimed to be acting on behalf of the Applicant, namely a Mr Frank Benjamin, the Applicant sought an adjournment of the proceedings. Mr Benjamin is not a legal practitioner. The Applicant filed his application for judicial review as a litigant in person and has continued throughout the proceedings as a litigant in person.
By email correspondence of 16 July 2018 (the email from Mr Benjamin having been received by the Court on Friday 13 July at 6.44pm) the Court advised Mr Benjamin and the solicitors acting for the First Respondent that only a legal practitioner could act on behalf of a litigant in proceedings before the Court. Further, that in the event the Applicant sought to make an adjournment request he was required to do so on his own behalf or obtain a lawyer to do so for him.
The First Respondent did not consent to the Applicant’s request for an adjournment of the hearing, nor did the First Respondent consent to an adjournment of the hearing following service upon the First Respondent of an affidavit of the Applicant affirmed on 28 August 2018, with annexures, which detailed steps taken by the Applicant to obtain legal representation.
At the commencement of the hearing this day, the Applicant first sought an adjournment of the proceedings for a period of three to six months. The First Respondent opposed that application. The Court determined that the application for an adjournment should be dismissed and that the matter should proceed. The reasons for the Court making that order are as set out in the following paragraphs.
Approximately 15 months have passed since the Applicant filed his application for judicial review. Approximately 15 months have passed since the First Respondent put the Applicant on notice as to steps the Applicant might wish to take to obtain legal representation from a number of different sources, and as to the First Respondent’s attitude that the First Respondent would not agree to delay the proceeding if the Applicant failed to act promptly in respect of the obtaining of his legal representation. The Applicant’s affidavit material on which he relied this day for the purposes of his adjournment application, set out no steps taken by him between the filing of his application in June 2017, and the directions hearing date of 7 February 2018, to obtain legal representation. The Applicant’s affidavit affirmed 28 August 2018 went to steps taken by him since the relisting of the matter in May 2018.
The Applicant claimed that following the directions hearing date of 7 February 2018 he had an accident in the workplace, suffered an injury, and as a consequence, was unable to attend to the seeking out of legal representation until at least a period after 11 June 2018. The medical evidence put before the Court in annexures “TT3” and “TT5” of the Applicant’s affidavit affirmed 28 August 2018 is insufficient to support the Applicant’s claims in that no accident or injury is referred to; and no medical condition is described as causing the symptoms claimed by the Applicant. Indeed the medical evidence was that for a period of time from 28 May 2018 (which the Court notes was some seven days after the Applicant claimed to have suffered from a traumatic workplace accident and consequent injury) to 11 June 2018 inclusive, the Applicant would be “unfit to continue his usual occupation”. Otherwise, the Applicant had been referred, on 8 June 2018, by his treating doctor, to a Ms Jan Morgan whose qualifications were not provided, but whom the Applicant said, in submissions from the bar table, was a psychologist, for six sessions as part of a mental health treatment plan in place for the Applicant.
In the period following 11 June 2018, the Applicant still had a considerable period of time in which to seek out legal assistance. In some part of the correspondence that is before the Court, that being forwarded by Mr Benjamin to others on behalf of the Applicant, is a reference to the Applicant making payment of legal fees to Mr Krohn of Counsel. The Applicant put before the Court no efforts made by him to engage any other specialist immigration barrister in relation to whom he would pay legal fees or not pay legal fees, nor any immigration solicitors, save his attempts to obtain assistance from Victoria Legal Aid when he spoke to a Ms Chelsea Clarke on 7 August 2018. She allegedly advised the Applicant that Victoria Legal Aid was not able to take his case at such short notice.
The Applicant has had a considerable period of time since the filing of his application, indeed, over one year, to obtain legal representation. He has not taken sufficient steps to obtain such legal representation and the Court is not satisfied that he seriously undertook to do so.
The absence of representation this day, does not automatically entitle the Applicant to an adjournment. It is a matter of judicial discretion. In Singh v Minister for Immigration & Border Protection [2016] FCA 942, Charlesworth J said at paragraph 37:-
“However, I do not understand Gyles J to state, as an absolute proposition, that the refusal of an application for an adjournment of a hearing to enable a litigant to obtain free legal advice (or, as here, paid legal advice) could not in any circumstance amount to a denial of natural justice… The discretionary power to grant an adjournment is to be exercised judicially and consistently with the purpose for which it is conferred, having regard to all matters relevant to its exercise including the proper administration of justice, both in the extant proceedings and more generally.”
The Court concludes that there is no utility in further adjourning these proceedings. The proper administration of justice, in the circumstances described above, requires that the Court proceed to hear the substantive application this day.
The substantive application
The Minister contends that the decision of the Authority does not disclose jurisdictional error and that the application should be dismissed with costs.
In submissions from the bar table this day, the Applicant, having failed to file written submissions, submitted that jurisdictional error did attend the decision of the Authority because the Authority did not consider his claims that he had been in jail for a month and that the Sri Lankan Army (‘SLA’) accused him of being a leader of the Liberation Tigers of Tamil Eeelam (‘LTTE’). Neither of these claims were claims made previously by the Applicant, and in particular neither were claims put before the delegate, or the Authority. They are new claims made by the Applicant. Because they are new, the Applicant submitted he needed time and for the matter to be adjourned. Additionally, the Applicant submitted that if he had been given the opportunity by the Authority to give further evidence, he would have done so. He was not given such opportunity.
The evidence which is before the Court in relation to the opportunity to give further evidence, is as set out in the Court Book which was filed on 21 February 2018 and is at pages 223, 226 and 228 in particular. In the evidence which is contained at Court Book page 223 is correspondence from the Authority to the Applicant dated 20 October 2016. That correspondence is sent to the Applicant at 56 Power Road Doveton in the State of Victoria. The Applicant confirmed to the Court this day that is the address at which he has resided from the time he made the application for the SHEV to the Department until the present day. He has always resided at that address. In the filing of his application in the Court, the Applicant nominated that address as his address for service.
The Applicant claims, in submissions this day, that he did not receive the correspondence of 20 October 2016 from the Authority to him. He said, words to the effect of “It must have gone missing.” The correspondence of 20 October 2016 addressed to the Applicant, acknowledged the referral of the decision of the delegate of the Minister to refuse him the SHEV to the Authority for review. The correspondence noted that the matter was referred to the Authority on 20 October 2016. The correspondence also, relevantly, noted the following:-
“The Department of Immigration and Border Protection (the Department) has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse your protection visa. The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached fact sheet and Practice Direction.”
The attached fact sheet which was provided to the Applicant in both English and in his native Tamil language had, relevantly, headings which included “Can I Provide New Information to the IAA” and “Can I Make a Submission to the IAA”. The Applicant was informed that he could provide new information as defined to the Authority for the Authority’s consideration and could also provide a written submission as to:-
“- Why you disagree with the department’s decision, and
-Any claim or matter you presented to the department that was not considered.”
The Applicant made no request for the Authority to consider new information and provided the Authority with no written submission.
The notification of the Authority decision to affirm the decision under review was conveyed to the Applicant by correspondence from the Authority on 9 May 2017, and a copy of the Authority’s decision was attached along with that correspondence and a fact sheet about decisions made by the Authority. That notification was also sent to the Applicant at 56 Power Road Doveton in the State of Victoria and the Applicant clearly received such correspondence, which subsequently resulted in his making this application for judicial review. The Court finds the Applicant was provided with an opportunity by the Authority to provide further evidence to it in the form of a written submission, but that he failed to provide any such submission.
The Decision and Reasons of the Authority and background thereto
The Applicant arrived in Australia on 13 October 2012 as an unauthorised maritime arrival. On 31 December 2012, he participated in an entry interview and on 2 March 2016, he lodged a valid application for the SHEV. On 31 August 2016, the Applicant participated in an interview with the delegate to discuss his visa application. A Tamil-speaking interpreter was present at the interview.
On 31 August 2016, the Applicant participated in an interview with the delegate to discuss his visa application.
The Applicant’s claims for protection were set out in a statutory declaration accompanying his visa application. The Applicant’s claims, which were summarised in paragraph 4 of the Decision and Reasons of the Authority (‘the Decision Record’) were as follows:-
a)in 1972, the Applicant was born in Trincomalee, Eastern Province in Sri Lanka. He is a Tamil who, in 2006, converted from Hinduism to Catholicism;
b)in April 2012, unknown persons destroyed a church in the Applicant’s neighbourhood of Muthur, Trincomalee. The church was adjacent to a 3.5 acre block of land, owned by the Applicant’s wife;
c)the Applicant gathered local Tamil Christians to protest against the destruction of the church. The authorities dispersed the protest and the Sinhalese proceeded to build a Buddhist statue there;
d)there was subsequently a rumour that a local Sinhalese politician was after land as part of an effort by the Sinhalese to reduce the Tamil population of the area;
e)the sister of the Applicant’s wife is married to a Sinhalese man named Mr CS. In June 2012, Mr CS came to the Applicant and asked him for his wife’s land. The Applicant told him he planned to build a church on the land, which Mr CS did not like as he is a Buddhist and works with local Sinhalese politicians;
f)in July 2012, the members of the Karuna Group blindfolded the Applicant and took him to the local SLA camp where they asked him about his wife’s land. The Applicant told them the land was in his wife’s name. The Applicant was released from the camp on the condition he convince his wife to transfer the land to them;
g)upon return to his home, the Applicant learned his wife and her sister, who was married to Mr CS, had been involved in a physical altercation. The sister reported the incident to the police and claimed it was the Applicant, not her sister, who had hit her.
h)The Applicant went to the police station where he was detained overnight. The following day, his community leader paid the Applicant’s bail and he was released. The traditional village court tried to mediate in the family dispute but Mr CS and his wife refused to settle and took the case to the official court system;
i)the Applicant relocated his family to a safer part of Trincomalee around 45 kilometres away, where paramilitary groups were less active and the church was influential;
j)during this period, the Karuna Group had made inquiries about the Applicant with his side of the family. The Applicant’s brother-in-law was taken to the SLA camp where he was interrogated about the Applicant, threatened and then released;
k)on 21 September 2012, the Applicant departed Sri Lanka illegally by boat before he could be summonsed to the official court;
l)the Applicant fears the Sri Lankan authorities will detain, interrogate, torture or kill him because:-
i)he organised a protest against the destruction of a church, and the erection of a Buddhist statute near his wife’s land;
ii)in 2012, he departed Sri Lanka illegally while he was the subject of criminal charges instigated by his sister-in-law’s husband, Mr CS;
m)the Applicant fears the Karuna Group, certain local Sinhalese politicians and Mr CS will seriously harm him because they want his wife’s land in Muthur.
The statutory declaration also referred to the Applicant being seriously harmed because of his Tamil ethnicity, political opinion and Christian religion, and noted that he had been falsely accused by his Sinhalese brother-in-law of assaulting his sister-in-law. The matter was handed over to the Panchayat court and the Applicant received a summons relating to that matter. The Applicant fled Sri Lanka before he could be summonsed to the higher court and, in the process, broke his bail conditions.
On 21 September 2016, the Applicant’s representative provided the Department of Immigration and Border Protection (‘the Department’) with written submissions. On 28 September 2016, the Applicant’s representative provided further submissions and copies of additional documents relating to the court case against the Applicant. The representative (by way of clarification) sought to emphasise that the Applicant’s claim was that both the alleged assault complaint and the land dispute had arisen due to the Applicant’s participation in a protest against the destruction of a Christian cross on land that was subsequently used to build a Buddhist statue.
On 13 October 2016, the delegate found the Applicant was not a person to whom Australia owed protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’) and refused to grant the Applicant the visa.
By reason of the timing of his arrival in Australia and his status as an “unauthorised maritime arrival”, the Applicant is a person deemed to be a “fast track Applicant” pursuant to s.5(1) of the Act and, therefore, subject to the merits review framework and procedure that is set out in Pt.7AA of the Act.
Accordingly, on 20 October 2016, the Department referred the delegate’s decision to the Authority for review.
On 9 May 2017, the Authority affirmed the decision under review.
In the Decision Record, the Authority, as accurately summarised by Counsel for the First Respondent:-
a)had regard to the material referred by the secretary under s.473CB of the Act;
b)had regard to the most recent Department of Foreign Affairs and Trade (‘DFAT’) country report for Sri Lanka, which was published on 24 January 2017, the Authority being satisfied that there were exceptional circumstances to justify considering that new information;
c)summarised the Applicant’s claims;
d)set out the relevant law concerning the assessment required under s.36(2)(a) and s.36(2)(aa) of the Act;
e)considered and rejected the Applicant’s claim to fear harm because he was a Tamil male from the Eastern Province, with an imputed pro-LTTE political opinion, on the basis of the country information before the Authority, including the UNHCR’s guidelines last updated in 2012;
f)considered the delegate’s decision and, as additionally noted by the Court, the material put before it by the Applicant, together with country information before the delegate and more recent country information, and rejected the Applicant’s claim to fear harm as a Christian Tamil, including being satisfied the Applicant did not face a real chance of persecution because of his Christian religion or because in April 2012, he participated in a protest along with other Christian villagers against the destruction of Christian crosses. While the Authority was prepared to accept that the Applicant was a practicing Christian and that he had participated in a protest against the erection of a Buddhist statute, the Authority was not satisfied, due to the Applicant’s “vague testimony regarding his religious convictions”, that he had organised the protest or that he planned to build a church on his wife’s land. Further, the Authority did not accept that the Applicant’s participation in the protest resulted in an adverse profile with the local Sinhalese politicians and that they then targeted the Applicant in order to obtain his wife’s land. The Authority rejected as “far-fetched” the Applicant’s claim that it was his role in the protest which led his brother-in-law to instigate a fraudulent assault case against him. Having regard to country information and the Applicant’s own evidence, the Authority was satisfied that the Applicant had not been prevented from practicing as a Christian prior to this departure from Sri Lanka, and there was no evidence that he would be restricted in doing so upon return or suffer discrimination amounting to serious harm;
g)considered and rejected the Applicant’s claim to fear harm relating to his interactions with the Karuna Group. The Authority was prepared to accept that:-
“paramilitary groups such as the Karuna Group were operating in the applicant’s home area in 2012, that they questioned him about obtaining his wife’s land and made some threats.”[1]
However, the Authority was not satisfied, in light of the Applicant’s “vague evidence” on these matters that the Karuna Group took the Applicant to the SLA camp as claimed. On the evidence before the Authority, the Authority was not satisfied that the Karuna Group continued to threaten the Applicant after the initial conversation in July 2012 about his wife’s land. The Authority was also not satisfied that there was a link between the Applicant’s involvement in the protest and the Karuna Group’s interest in his wife’s land, which occurred several months later. Having regard to country information regarding the decline of the Karuna Group’s power and the Applicant’s four year absence from Sri Lanka, the Authority did not find it credible the Karuna Group would resume an interest in the Applicant’s wife’s land should the Applicant return to Sri Lanka;
h)considered and rejected the Applicant’s claim to fear harm arising from a family dispute involving his wife and sister. Whilst the Authority was prepared to accept that the Applicant’s in-laws had wanted to obtain the Applicant’s wife’s land and that there had been a disagreement in this regard, the Authority was not satisfied that there was a link to local Sinhalese politics, as the Applicant had not provided any persuasive evidence that the brother-in-law’s Buddhist religion or the influence of local Sinhalese politicians were motivating factors for the brother-in-law’s interest in the land. Having so found, the Authority did not accept that the Applicant’s wife and her sister had an altercation or the other claimed consequences, including that the Applicant had been released on bail on assault charges, had occurred. The Authority gave separate consideration to a document that the Applicant claimed was a receipt for bail money allegedly paid on behalf of a community leader who had been arrested when the Applicant breached his own bail conditions. The Authority considered that the “receipt” was deficient in a number of respects and did not consider it to constitute evidence of the claimed events. Moreover, the Authority did not accept that the Applicant and/or his family ever relocated to avoid the Karuna Group, the Applicant’s brother-in-law and the Sinhalese politician or the police, because the Applicant’s visa application and a letter the Applicant provided from the parish priest in Muthur indicated that the Applicant’s family lived in the same home as they did when the Applicant had departed Sri Lanka. It followed that the Authority did not accept that the Applicant was in hiding or that the Karuna Group took his brother-in-law to the SLA camp for interrogation about the Applicant;
i)the Authority said at paragraph 35 of the Decision Record:-
“In light of the applicant’s vague responses to the delegate’s questions regarding these matters, and lack of documentary evidence, I am not satisfied the applicant’s wife had a physical altercation with her sister, and that Mr CS used this as a pretext to press charges against the applicant in order to obtain their land. While I accept there has been a family disagreement about the land, I do not accept this matter was ever brought before the police, the traditional village court, the official court system or that the applicant has outstanding criminal charges against his name. I am not satisfied the applicant was ever in hiding outside of his home area, and I note neither Mr CS, nor anyone else, has ever threatened or harmed the applicant’s wife in his absence, and that she continues to use the land to support the family.”
j)considered and rejected the Applicant’s claim to fear harm as a returning asylum seeker from Australia. In this context, the Authority referred to the 2015 DFAT report cited by the delegate and the current DFAT report before it, and noted that they both recorded that persons who depart Sri Lanka illegally can be liable for penalties of imprisonment of up to five years and subject to a fine under the Immigrants and Emigrants Act 1949 (‘I&E Act’). While the Authority was satisfied that there was a real chance the Applicant would be questioned, fined and held briefly as part of the re-entry process, it was not satisfied that such questioning and the fine in question amounted to serious harm. The Authority further found that the I&E Act was a law of general application and was not discriminatory on its face or in its application so as to rise to a level of persecution within the meaning of s.5J(4) of the Act.
k)considered and rejected the Applicant’s claim to be a person to whom Australia owed complementary protection. The Authority did so on the basis of country information and its earlier findings of fact. Whilst the Authority found that the Applicant would be required to pay a fine and may be detained, it was not satisfied that either matters amounted to significant harm. The Authority further found that while country information indicated that Sri Lanka prison conditions did not meet international standards, it was not satisfied that this would amount to the arbitrary deprivation of life, the death penalty or torture so as to constitute significant harm.
[1] Decision Record, paragraph 23.
Consideration
No jurisdictional error attends the decision of the Authority for the reasons which follow. Accordingly, the application should be dismissed with costs.
The Authority correctly understood and applied the law in respect of both the refugee criterion and the complementary protection criterion.
The Authority rejected the claims which related to the Applicant’s Tamil ethnicity and Christian religion because, as submitted by the First Respondent, the Authority had either rejected the factual substratum of such claims in its earlier Convention analysis, or found that there was no chance of any harm occurring to the Applicant arising from such matters. The Authority was clearly entitled to adopt its earlier factual findings in its consideration of s.36(2)(aa) of the Act matters, and it was not required to revisit conclusions on harm that it already had reached on an application of the identical risk threshold embodied in the analysis under s.36(2)(a) of the Act.[2] In respect of the Authority taking into account the relevant claims and evidence put before it by the Applicant, the Court finds that it is apparent from the Authority’s Decision Record that the Authority gave consideration to, and engaged in an active intellectual process with respect to, each of the Applicant’s claims. No illogicality attended the reasoning process, nor the conclusions reached by the Authority.[3]
[2] WZARV v Minister for Immigration and Border Protection [2014] FCA 894, 46-50.
[3] Minister for Immigration and Citizenship v SZRKT & Anor [2013] FCA 317, 148.
The Authority’s procedural fairness obligations are limited by the codified scheme set out in Part 7AA of the Act. Section 473DA(1) states the requirements of the natural justice hearing rule in Part 7AA. The Authority must, pursuant to s.473DB, review a fast track reviewable decision by considering the “review material” and without accepting or requesting “new information”, new information being defined in s.473DC of the Act as:-
“… documents or information that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.”
The Authority is prohibited from considering any new information unless certain conditions are satisfied.[4]
[4] Migration Act 1958 (Cth) s.473DD.
The Authority is required to review a fast track reviewable decision without interviewing the Applicant,[5] and is only required to invite an Applicant to comment on “new information” in writing or at an interview if two preconditions are met, being that:-
a)the Authority considered the “new information”; and
b)the new information would be the reason, or a part of the reason, for affirming the decision.
[5] Ibid s.473DB(1)(b).
Here there was new information before the Authority which was the then current DFAT report; however, that new information met the description of new information that:-
“Is not specifically about the referred Applicant and is just about a class of persons of which the referred Applicant is a member.”[6]
It, therefore, was comprehended by s.473DE(3)(a) of the Act, with the result that the Authority was not obliged to identify the current DFAT report for the Applicant or to invite him to comment on its significance.
[6] CKG16 v Minister for Immigration and Border Protection [2018] FCA 362, 14.
The application shall accordingly be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 18 September 2018
0
4
0