COR16 v Minister for Immigration
[2020] FCCA 1299
•26 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COR16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1299 |
| Catchwords: MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority made a jurisdictional error in failing to make inquiries, failing to invite the Applicant to an interview, failing to put relevant material to the Applicant or otherwise. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473EA, 473FA |
| Cases cited: ASB17 v Minister for Home Affairs [2019] FCAFC 38 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 |
| Applicant: | COR16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2461 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 19 August 2019 |
| Date of Last Submission: | 30 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | MinterEllison |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2461 of 2016
| COR16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) dated 15 August 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Temporary Protection (Class XD) visa.
The Applicant, a Sri Lankan Tamil, arrived in Australia in October 2012. In August 2015 the Minister for Immigration exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (the Act) and allowed the Applicant to make a valid application. On 30 October 2015 the Applicant applied for a Temporary Protection visa.
In essence, the Applicant claimed that he had joined the Tamil National Alliance (TNA) in 2012, having campaigned and supported the party during an election in 2010/2011 and that after he joined the party men in a white van had been searching for him and had warned his family that it was not a good idea for him to work with the TNA. He claimed that these men continued to search for him after he left Sri Lanka. He claimed to fear harm based on his political opinion and as an ethnic Tamil believed to support the Liberation Tigers of Tamil Eelam (the LTTE). He provided a letter of support from a TNA member of parliament. He also claimed that he had departed Sri Lanka illegally.
The Applicant attended an interview with a delegate of the First Respondent on 27 January 2016. On 14 June 2016 the delegate refused to grant the Applicant a Temporary Protection visa.
As the delegate’s decision was a fast track reviewable decision, the Minister referred it to the Authority. On 6 July 2016 the Applicant, by his representative, sent an email attaching written submissions to the Authority.
Among other things, the agent submitted that the delegate had erred in its consideration of whether the Applicant’s family could provide a surety for the Applicant to obtain bail (were he to face charges for illegal departure) having regard to the principles in Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069. It was submitted that the Applicant did not appear to have been put on notice of the issue of the ability and willingness of a family member to act as surety and that this should have been put to him for comment. The submission continued:
In the fairness of justice the review applicant requests that the IAA conduct a fresh hearing of his case as it may be appropriate to provide the review applicant an opportunity to clarify concerns which were raised by the delegate.
On 15 August 2016 the Authority affirmed the decision of the delegate not to grant the Applicant a Protection visa.
The Authority’s decision
In its reasons for decision, the Authority referred to the fact that the delegate had accepted that the Applicant was a low-level supporter of the TNA, but had not accepted that he was threatened for being involved with the TNA or that his previous assistance with the TNA would draw adverse attention if he were to return to Sri Lanka and was not satisfied that the Applicant would face a real chance of serious or significant harm on any other asserted basis.
The Authority referred to the material before it, including the submission from the Applicant’s agent. It noted the agent’s submission about deficiencies in the delegate’s decision and about the law. The Authority stated that it had regard to those aspects of the submission as legal argument and not new information. It also observed that the United Nations High Commissioner for Refugees, “Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012 (the UNHCR Guidelines) referred to in the submission had been before the delegate. It did not consider this to be new information.
The Authority summarised the Applicant’s background as an ethnic Tamil of Hindu faith who was born in a refugee camp in Batticaloa. It recorded his claim that he and his family were displaced to refugee camps due to the war and had returned to their village in 2003, but that in 2005 the LTTE took control of the area and his family moved between their village and refugee camps for safety. He claimed that his father took him to work to protect him from possible forced recruitment by the LTTE.
The Authority recorded that the Applicant claimed that in 2009 he saw the Criminal Investigation Department (CID) questioning and harassing people in his village and saw white vans taking people away and that in 2011 his cousin’s son was taken away a white van.
It summarised the Applicant’s claim that in 2010/2011 he began supporting the TNA and formally became a member in July 2012. He claimed that he helped the TNA by campaigning for candidates in an election by putting up posters, visiting people at their homes and encouraging them to vote. He claimed that men in a white van approached his family home on three occasions shortly after he joined the TNA seeking his whereabouts. They had told his family that it was not a good idea for him to work for the TNA. The Applicant claimed that after the third occasion his father sent him to his uncle’s house. He left Sri Lanka in July 2012.
The Applicant claimed that his father, who had complained to the TNA about the threats, had told him that the CID had been looking for him and that men in a white van had continued to harass the family after he left. He claimed that in September 2014 unknown men came to the family home looking for him and hit and threatened his father.
The Authority accepted the Applicant’s general claims about events up to 2009. It noted that in his protection visa application the Applicant had claimed that his cousin’s son was abducted in 2011 because the cousin had previously worked for the LTTE. However when asked, the Applicant had told the delegate that he did not know what had happened to his relative. He had also told the delegate that his relative was a supporter of the TNA and worked for the TNA, that he had been kidnapped on the way to Colombo, that there was no further information and that he was still missing.
Although the Applicant had given different accounts of his relative’s profile, having regard to country information the Authority accepted that the cousin’s son was abducted in 2011 by men in a white a van and was still missing. However it had regard to the fact that the Applicant did not know what had happened to his relative. It was not satisfied on the information before it that the Pillayan group was responsible (as the Applicant’s family thought) or that it was apparent why he was abducted.
The Authority accepted that the Applicant began supporting the TNA during a 2010 or 2011 election. It noted that he claimed that he formally joined the TNA in July 2012 and had clarified in the interview that he was a low-level member. The Authority had regard to the fact that when the delegate asked the Applicant what he knew about the TNA, he had provided “relatively generic responses” and could not name the political parties that comprised the TNA. The Authority took into account the absence of information about or evidence of the Applicant’s claimed TNA membership, his limited knowledge of the TNA and of the kind of activities in which he claimed he was engaged. It was willing to accept that the Applicant became a “low-level active supporter” of the TNA in 2012 and assisted in the election campaign for the Provincial Council elections, which country information revealed were held in September 2012. It accepted that the Applicant put up posters and encouraged people to vote and that he became actively involved because of his genuine desire for the equal rights of Tamil people.
The Authority considered the Applicant’s claim that soon after he joined the TNA, men in a white van went to his sister’s home and asked her where he was then told her it was not a good idea for him to work for the TNA. He claimed that a day or two later (on 24 July 2012) his sister was again approached by armed men in a white van and asked about his whereabouts. He had initially also claimed that they later went to his family home, asked his father where he was and told his father that it was not a good idea for the Applicant to work for the TNA. The Authority observed that he had not raised this last incident in the interview with the delegate and had said that the last time the white van approached his house was on 24 July 2012.
The Authority acknowledged that the Applicant claimed that his father subsequently complained to the TNA. It noted that the supporting letter from a named member of parliament in Batticaloa District stated that the Applicant was a supporter of the TNA and that he had worked actively in two past elections. The letter claimed that the Applicant had been threatened by an unidentified armed group because he had been helping and that the group was angry because they could not find him and had come in search of him since his departure. The Authority gave this letter little weight. It had regard to the fact that it was dated approximately one year after the Applicant left Sri Lanka and was satisfied that it was procured to support the Applicant’s protection visa application. The Authority also had regard to the fact that the letter appeared to relay what the Applicant’s father had told the politician. While it stated that the politician had made enquiries to confirm that information, it did not outline what these enquiries were or with whom they were made. It observed that the Applicant had stated that he had not complained to the TNA or to the police at the time of the alleged threats.
The Authority accepted that country information confirmed that parties engaged in political activities, in particular in the TNA, had been subject to harassment and monitoring under the previous Sri Lankan government and that there had been reports of intimidation and violence against TNA candidates and their supporters in past elections. It also took into account the consistency in the Applicant’s claimed reasons as to why he left Sri Lanka in 2012. It accepted that in July 2012 unidentified men had sought him out and threatened him in relation to his TNA activities.
However the Authority did not accept the Applicant’s claims that the CID and men in a white van had continued to look for him and that unknown people had threatened and hit his father in September 2014. It did not find it plausible that people would continue to seek out the Applicant two years after the September 2012 elections, given that he was a low-level TNA supporter who only became actively involved with the TNA just prior to the elections and had not been involved in any subsequent elections. It observed that while the Applicant claimed that his father had reported this incident to the police, he had not provided any documentary evidence such as a police report.
The Authority accepted that the Applicant would be identified as a failed asylum seeker who departed Sri Lanka illegally.
Under the heading: “Fear of harm as a Tamil/Tamil from the East” the Authority considered the Applicant’s claim to fear that he would be killed or kidnapped for being an ethnic Tamil believed to support the LTTE. It referred to country information about the current situation in Sri Lanka, including the fact that UNHCR Guidelines indicated that originating from an area that was previously controlled by the LTTE did not in itself result in the need for international refugee protection. It found in paragraph 33 of its reasons:
I accept that military camps still exist in the Eastern Province. However, the above country information indicates the security situation has improved and monitoring and harassment of Tamils has decreased. There is also no information before me to suggest that all Tamils are currently imputed by the Sri Lankan authorities as being LTTE members or supporters and the applicant had not claimed to have ever been accused of such on the basis of his Tamil ethnicity or because he originates from the Eastern Province.
(footnote omitted)
The Authority was not satisfied that the Applicant would face a real chance of serious harm, or any harm, on the basis of his Tamil ethnicity or because he originated from the east of Sri Lanka.
The Authority noted that the Applicant’s representative had claimed to it that the delegate had failed to consider the Applicant’s claim that his cousin’s son had been taken in a white van because he had previously worked for the LTTE. The Authority observed that this claim had not been repeated at the protection visa interview at which the Applicant had claimed that his cousin’s son was a TNA supporter. It found that even if it were to accept that the Applicant’s cousin’s son had previously worked for the LTTE or was a TNA supporter, it was not satisfied that he was abducted for either reason. It also gave weight to the fact that the Applicant had not claimed that he had suffered any past harm due to his cousin’s son’s alleged involvement in the LTTE or TNA or that his relatives had suffered any harm. The Authority was not satisfied the Applicant faced a real chance of serious harm, or any harm, as a result of his cousin’s son’s abduction.
Under the heading: “Fear of harm as a TNA Supporter and for his political opinion” the Authority addressed the Applicant’s claim that he feared he would be killed or kidnapped because of his association with the TNA and because he had voiced his political opinion, in particular his desire for equal rights for Tamils. The Authority referred to the fact that it had not accepted that unidentified men or the CID had continued to seek out and threaten the Applicant since he left Sri Lanka and was not satisfied that he would face a real chance of serious harm on the basis of his previous work and support for the TNA. In light of country information the Authority was not satisfied that the Applicant would be imputed as being a LTTE member or supporter because he worked for, or may continue to work for and support, the TNA on return to Sri Lanka in the reasonably foreseeable future. It also found that if the Applicant were to publicly express his political opinion about equal rights for Tamils by continuing to support, and even campaign for, the TNA on return to Sri Lanka, it was not satisfied that he would face a real chance of serious harm, or any harm, on this basis.
Under the hearing: “Fear of Harm for Illegal departure and returning as a Failed Asylum Seeker” the Authority noted that the Applicant had not specifically articulated a fear in relation to his illegal departure or status as a failed asylum seeker, although he had claimed to fear he would be tortured or otherwise subjected to significant harm. The Authority was not satisfied that the Applicant had any actual or perceived links to the LTTE or that he would attract the adverse attention of the authorities at the airport or in his home area on this basis or because of his activities and support for the TNA, his failed asylum application or his Tamil ethnicity.
The Authority accepted that where illegal departure was suspected, returnees were charged under the Immigrants and Emigrants Act (I & E Act). It found at paragraph 50 of its reasons:
I accept that there is a real chance the applicant will be questioned by the Sri Lankan authorities on return and charged with an offence under the I&E Act for departing illegally. If he pleads guilty he will be fined and then released. I do not consider such questioning or the imposition of a fine to amount to serious harm. If he pleads guilty he will be fined and then released. I do not consider such questioning or the imposition of a fine to amount to serious harm. If he pleads not guilty he may be granted bail. He may need to wait for a family member to come to court to collect him. The delegate found that there is no reason to consider the applicant’s family would, or could not, assist should the applicant need to post bail or a surety. The IAA submissions claims the delegate made this assumption without putting the applicant on notice. I accept that this issue was not raised during the protection visa interview. However, the IAA submission had not provided any further information in respect of whether the applicant’s family are able to collect the applicant from court if required. Even if that were the case, I find that the application of the I&E Act in respect of those Sri Lankans who have departed unlawfully is an application of the law which applies to all Sri Lankans and there is no information before me that the enforcement of this law is applied in a discriminatory manner and, therefore, I am not satisfied that the application of the I&E Act in respect of the applicant’s illegal departure amounts to persecution.
(footnotes omitted)
The Authority found that, having regard to the Applicant’s profile and country information about the treatment of returnees, the Applicant would not face a real chance of serious harm whilst being detained and questioned by the authorities on return to Sri Lanka. It also found that being detained for several days in a Sri Lankan prison did not amount to serious harm constituting persecution and that the loss of liberty the Applicant may endure did not amount to persecution within the meaning of s.5J(4) of the Act. It reiterated that even if the Applicant’s family was unable to collect him from court and he remained in detention for a longer period, there was no evidence that the enforcement of this law was applied in a discriminatory manner. Hence it was not satisfied that the loss of liberty the Applicant may endure on return to Sri Lanka amounted to persecution within s.5J(4) of the Act.
The Authority stated that it had considered the Applicant’s claims cumulatively, including his profile as a Tamil from Batticaloa whose relative was abducted in 2011, who believed in equal rights for Tamils, who supported the TNA and was subsequently threatened in 2012 and who may continue to support the TNA, who had left Sri Lanka illegally and would be returning as a failed asylum seeker. It found that, assessing the claims cumulatively, they did not give rise to a real chance of serious harm.
The Authority then considered whether the Applicant met the complementary protection criterion. It referred to the fact that it had not accepted that the Applicant would face a real chance of serious, or “any”, harm based on his Tamil ethnicity, because he originated from the Eastern Province, because he supported the TNA or because of his political opinion. Although it accepted that the Applicant’s cousin’s son was abducted in 2011, the Authority was not satisfied that the Applicant faced a real risk of significant harm on return to Sri Lanka for this reason. Nor did the Authority accept that the Applicant faced a real risk of significant harm on the basis of being a failed asylum seeker or for his illegal departure having regard to the country information cited and the Applicant’s particular circumstances.
The Authority did accept that there was a real risk that the Applicant would be questioned by the authorities at the airport and may be charged and fined for his illegal departure from Sri Lanka. However it did not accept that being questioned and fined, individually or cumulatively, rose to the level of significant harm.
The Authority was not satisfied that a potential period of stay on remand in a Sri Lankan prison amounted to significant harm within the statutory definitions. The Authority also found that even if the Applicant’s family was unable to collect him from court and there was a real risk he would remain detained for a longer period, he would not face intentionally inflicted harm or other significant harm on that basis. It did not consider that being questioned, fined and detained for several days or more cumulatively amounted to significant harm.
The Authority stated that it had considered the Applicant’s claims cumulatively, but did not find that he would face a real risk of significant harm.
It affirmed the decision not to grant the Applicant a Protection visa.
These proceedings
The Applicant sought judicial review of the decision of the Authority. The grounds in the application are as follows:
1. The IAA made a jurisdictional error in that it failed to find that the visa applicant was associated or seen as supporter of the LTTE.
Particulars
IAA failed to find that the Applicant is supporter of the LTTE and therefore he will face persecution on return to Sri Lanka.
2. IAA is in breach of s 424.
Particulars
In lieu of ground 1, the IAA did not put relevant material to the Applicant before rejecting his claims
Despite being given the opportunity to do so, the Applicant did not file pre-hearing submissions. At the hearing the parties were granted leave to file and serve post-hearing written submissions addressing whether the Authority’s failure to make inquiries or to invite the Applicant to an interview (as the Applicant appeared to raise in oral submissions) gave rise to jurisdictional error. As discussed below, both parties took the opportunity to file post-hearing submissions. I have considered the grounds of review as pleaded and also the other issues raised by the Applicant, who is self-represented.
Ground 1
This ground takes issue with the fact that the Authority failed to find that the Applicant was associated with or seen as a supporter of the LTTE who would therefore face persecution.
In post-hearing submissions the Applicant submitted that the Authority had failed to consider an integer of his claims or an aspect of the material before it. Reference was made to the remarks of Judge Nicholls in SZSTRv Minister for Immigration & Anor [2014] FCCA 2554 at [58] that:
The Tribunal’s reference at [124] to “cumulatively” (at CB 153), and in the absence of any other relevant reference in its decision record, is not sufficient such as to say that the representative’s submissions, as described above, were considered in their entirety. In this sense the Tribunal failed to consider an integer of the applicant’s claims, expressly made (NABE (No 2)), or failed to deal with important material (SZRKT).
The First Respondent submitted that, as pleaded, this ground “plainly” invited the court to engage in impermissible merits review (see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ). It was also submitted that the Applicant had not claimed that he was in fact a supporter of or had any actual links to the LTTE (as the particulars suggested), but rather that he was an “ethnic Tamil, believed to support the LTTE”. The First Respondent contended that the Authority had considered the Applicant’s claims in this and other respects.
As the First Respondent submitted, the Applicant did not claim that he was in fact a supporter of or had any links to the LTTE. He claimed that he worked with and supported the TNA. In the statutory declaration in support of his Protection visa application the Applicant expressly stated that his family had not engaged with the LTTE and that he and his family did not support either group when the Karuna faction split with the LTTE. He also claimed that when the LTTE controlled the area he lived in, he feared he would be forced to join the LTTE and had been taken to work elsewhere so that the LTTE could not find or harass him. His claim in that respect was that he feared he would be killed or kidnapped for being an ethnic Tamil believed to support the LTTE.
It appears from the delegate’s decision that this was the claim the Applicant maintained at the interview. The delegate accepted that the Applicant may be perceived to support the LTTE due to his Tamil ethnicity and Eastern Province origins, but that he had “no connection” to the LTTE.
The agent’s submission to the Authority took issue with that finding on the basis that the Applicant had claimed his cousin’s son worked for the LTTE. However the Authority understood that the Applicant’s claims included a claim of “imputed support” for the LTTE. It considered the various ways in which this claim was made or arose, including based on the Applicant’s ethnicity, his origin from an area previously controlled by the LTTE or because he was working for the TNA (which he had told the delegate had the same policies as the LTTE).
The Authority also had regard to the fact that in his protection visa application the Applicant had claimed that his cousin’s son was abducted in 2011 by men in a white van because he had previously worked for the LTTE. In contrast, he had told the delegate that his cousin’s son was a TNA supporter. The Authority considered whether the Applicant had a real chance or real risk of harm on either basis, thus considering suggested imputed support for the LTTE on the part of the Applicant. As discussed above, the Authority found that even if it were to accept that the cousin’s son previously worked for the LTTE or that he was a TNA supporter, it was not satisfied on the information before it that he was abducted for either of those reasons. It also gave weight to the fact that the Applicant had not claimed to have suffered any past harm due to his cousin’s son’s alleged involvement with the LTTE or the TNA or that his relatives had suffered any such harm. For these reasons the Authority was not satisfied that the Applicant faced a real chance of serious harm, or any harm, as a result of his cousin’s son’s abduction. In this way it addressed the Applicant’s claims in relation to his cousin’s son’s profile (including claimed LTTE links) and his abduction.
In addition, the Authority considered whether the Applicant’s association with the TNA would result in an imputation of support for the LTTE. It rejected that proposition, finding at paragraph 40 of its reasons:
… I accept that under the previous Rajapaksa government, active Government critics were often described as ‘LTTE or terrorist sympathisers’ and risked attracting adverse attention by Government authorities. I also accept that the current government remains sensitive to those expressing views that could be considered sympathetic to the LTTE. However, I note that a TNA Member of Parliament recently announced that the TNA has no allegiance to the LTTE as it is not in favour of terrorism. Given this and the fact that the Sri Lankan government is now working constructively with the TNA who now lead the opposition and, in the absence of any information to suggest that the Sri Lankan authorities consider TNA members or their supporters to be LTTE members or supporters, I am not satisfied the applicant will be imputed as being a LTTE member or supporter because he worked for, or may continue to work for and support, the TNA on return to Sri Lanka in the reasonable foreseeable future.
(footnotes omitted)
The Authority considered the Applicant’s claims both individually and cumulatively. In contrast to SZSTR, this was not a case in which the decision-maker failed to make any other reference to an integer of an applicant’s claim.
It has not been established that the Authority failed to consider whether the Applicant was associated with or seen as a supporter of the LTTE or the TNA in a manner constituting jurisdictional error. In so far as the Applicant takes issue with the Authority’s failure to accept that he was (or would be seen as) such a supporter, he seeks impermissible merits review.
If it was intended to be asserted that the Authority failed to have regard to the agent’s submission to it in a manner constituting jurisdictional error, such a claim is not made out. The Authority not only referred to the submission, it also addressed the issues raised in that submission (for example, in considering the claimed fear based on the Applicant’s cousin’s son’s abduction, the location of military camps and of his home village, the UNHCR Guidelines cited by the agent, and the contention that the TNA and LTTE had the same policies).
It has not been established that the Authority failed to consider an integer of the Applicant’s claims or any material or submission in a manner constituting jurisdictional error.
Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Authority breached s.424 of the Act. However it is particularised as a contention that the Authority did not put relevant material to the Applicant before rejecting his claims.
Section 424 gives the Administrative Appeals Tribunal the power to get information it considers relevant and if it does so, obliges it to have regard to such information. As the First Respondent submitted, this ground is misconceived in that s.424 has no application to review by the Authority of a fast track decision under Part 7AA of the Act. I also note that s.424 of the Act relates to the discretion to get information, rather than a requirement to invite the Applicant to comment on or respond to information (cf. s.424A of the Act).
The Applicant has not identified any particular information the Authority should have put to him for comment, other than the surety issue which is discussed below.
As pleaded, this ground is not made out.
Other issues
In oral and post-hearing submissions the Applicant raised unpleaded issues. In responding to the pleaded ground and in submissions the First Respondent also canvassed other possible issues.
Failure to make inquiries issue
At the hearing the Applicant questioned how the Authority could make a decision without making inquiries. It appeared to be submitted that the Authority should have visited Sri Lanka or have made an inquiry in the Applicant’s home region in Sri Lanka.
There was no duty on the Authority to make such a visit or inquiry. Under s.473DC(2) of the Act, the Authority:
… does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
Further, as the First Respondent submitted, it has not been established that in this case there was a critical fact the existence of which was easily ascertained, such as to fall within the principle considered in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] in so far as such principle applies to the Authority (see DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [72]).
The Applicant’s desire to have the Authority conduct a general inquiry into his home circumstances is not within the principles considered in SZIAI or otherwise provided for in Part 7AA of the Act.
No jurisdictional error has been established on this basis.
The SZTQS issue
In pre-hearing submissions the First Respondent acknowledged that ground 2 in the application may be seeking to make the same argument as was put to the Authority in the agent’s submission, that is, that the delegate erred by not putting to the Applicant that if he were to be charged with illegal departure and pleaded not guilty, a family member might need to post bail or a surety (see SZTQS).
As the First Respondent submitted, any error in the delegate’s decision would not establish error on the part of the Authority. I also note that the error found in SZTQS has been held to be fact specific (see SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404; [2015] FCAFC 175 at [77] per Robertson and Kerr JJ). In this case no such error has been established.
In paragraph 50 of its reasons (set out at [27] above), the Authority accepted there was a real chance that the Applicant would be charged with an offence under the I&E Act for departing Sri Lanka illegally and that he may be granted bail and may need to wait for a family member to collect him. It referred to the delegate’s finding that there was no reason to consider that the Applicant’s family would not or could not assist, should the Applicant need to post bail or provide a surety. It accepted that, as the agent had submitted, this issue had not been raised at the interview. However, the Authority also had regard to the fact that the submission to it had not provided any further information in this respect. Such remark is to be seen in light of the fact that the Applicant had been afforded the opportunity to provide new information in writing to the Authority.
In other words, the Authority had regard to the Applicant’s submission that he was not put on notice of the delegate’s assumption. It found (correctly) that no new information had been provided to it in relation to the ability of the Applicant’s family to collect him from court or assist if he needed to post bail or provide a surety if necessary, notwithstanding that he had been put on notice of this issue by the delegate’s decision and had the opportunity not only to make submissions in that respect, but also to provide new information (cf. Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 2010). No jurisdictional error has been established in this respect.
In any event, there was an independent basis for the Authority’s decision. It found that the I&E Act was a law of general application and that there was no information indicating that it was enforced in a discriminatory manner. For this reason the Applicant was not satisfied that the application of the I&E Act in respect of the Applicant’s illegal departure amounted to persecution.
The Authority also found that even if there was an issue in relation to bail or a surety such that the Applicant remained in detention for a longer period, any such further consequences he may face would also be the consequences of such a law that, on the information before the Authority, was not applied in a discriminatory manner. It was not satisfied that the loss of liberty the Applicant may endure on return to Sri Lanka amounted to persecution within s.5J(4) of the Act. Nor was it satisfied that if the Applicant were to be detained for a longer period, any resulting harm would be intentionally inflicted.
As the First Respondent submitted, these findings by the Authority were dispositive, regardless of any error that may be suggested or identified in the delegate’s decision. No jurisdictional error has been established on this basis.
The further hearing or interview issue
In the submission to the Authority his agent sought “a fresh hearing” to give the Applicant the opportunity to “clarify concerns raised by the delegate.” In oral submissions the Applicant expressed concern that he had not had a hearing with the Authority. The same concern was raised in post-hearing submissions.
In post-hearing submissions the Applicant submitted that there was new information in his agent’s submission to the Authority (as well as legal argument). Reference was made to the submission that the delegate had disregarded the claim that the Applicant had consistently maintained that his cousin’s son was taken in a white van as he had previously worked for the LTTE. It was suggested that the submission to the Authority had argued that the familial connections had not been considered by the delegate, and had referred to the Applicant’s political opinion as a supporter of the TNA on the basis that TNA and LTTE ideology were the same. The post-hearing submission also referred to the fact that the submission to the Authority had stated that the Applicant’s home village was in close proximity to an army camp. It was noted that the submission to the Authority had referred to the UNHCR Guidelines. It was contended that the submission to the Authority had contained new information in that there was “a fusion of facts and legal argument” and that this “ought to have triggered exceptional circumstances giving rise to a hearing”.
The reference to “exceptional circumstances” in the post-hearing submission suggests that it was intended to be contended that the Authority failed to consider s.473DD in relation to new information. However the reference to the need for a hearing by the Authority suggests that it was intended to be contended that the Authority had erred in its consideration of s.473DC(3) of the Act. Consistent with this, the Applicant submitted that the Authority’s approach to the exercise of its discretion under s.473DC(3) was unreasonable.
In so far as the Applicant sought a further hearing by the Authority, this misconceived the role and powers of the Authority. As the First Respondent pointed out, subject to the power in s.473DC of the Act to get new information at an interview, Part 7AA of the Act makes no provision for the Authority to hold a hearing. Rather, the Authority is normally required to review the delegate’s decision on the papers (see s.473DB of the Act).
As was also pointed out, while the Authority may get any new information it considers may be relevant under s.473DC(1) of the Act, it is not under any duty to “get, request or accept, any new information” (see s.473DC(2) of the Act), nor under a duty to exercise its procedural discretion to invite the Applicant to an interview to give new information under s.473DC(3)(b) of the Act.
It is the case that, as the First Respondent conceded, there are limited circumstances in which it may be unreasonable for the Authority not to invite an applicant to an interview under s.473DC(3) to give new information (see for example CRY16 in which a fresh dispositive issue arose before the Authority). However this is not such a case.
First, the Applicant was on notice of the concerns raised in the delegate’s decision and had an opportunity to address them in the submission and/or in new information provided to the Authority.
It is relevant to bear in mind that the Authority’s review is to be undertaken by considering the review material provided under s.473CB of the Act without accepting or requesting “new information” and without interviewing the referred applicant. However this “primary rule” admits of exceptions contained in ss.473DC, 473DD and 473DE of the Act (Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [22] per Gageler, Keane and Nettle JJ; BZC17 v Minister for Immigration and Border Protection (2018) 264 FCR 667; [2018] FCA 902 at [52] per Mortimer J). There is, however, no provision for a “fresh hearing” in Part 7AA of the Act.
Section 473DC of the Act provides:
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
As the First Respondent submitted, s.473EA does not require the Authority to give reasons in relation to the exercise of a procedural discretion (see BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35; [2018] FCAFC 114 at [41]-[51] per Flick, Markovic and Banks-Smith JJ; CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [26]-[29] per Bromwich J). The Applicant bears the onus of establishing that the Authority has failed to consider exercising its discretion (see BVD17 at [41] per Flick, Markovic and Banks-Smith JJ; ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [46] and [47] per Griffiths, Mortimer and Steward JJ).
As was also pointed out by the First Respondent, in BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677 Moshinsky J held that for an applicant to show that the Authority had acted in a manner that was legally unreasonable, he or she would need to discharge the onus of establishing both the factual foundation for a conclusion that the Authority failed to consider exercising the discretion under s.473DC and that there was jurisdictional error in failing to consider exercising the discretion (at [46] and also see CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] per Thawley J). As Moshinsky J observed in BRZ17 at [48]:
… In order to establish jurisdictional error arising from legal unreasonableness, it is necessary: (a) for the appellant to identify the alleged failure with precision; (b) to examine the terms, scope and purpose of the statutory power that the IAA failed to consider; and (c) to evaluate the alleged failure to see whether it has the character of being legally unreasonable, for example because it lacked a rational foundation or an evident or intelligible justification, or because it was plainly unjust, arbitrary, capricious or lacking in common sense: see CCQ17 at [51].
I have borne in mind the principles underlying jurisdictional error on the basis of legal unreasonableness, which the First Respondent summarised as follows:
(a) Legal reasonableness relates to the existence and scope of a discretionary power, rather than the expediency of its exercise. The existence and content of any framework of rationality that constrains the exercise of the discretion depend on the true construction of the relevant legislation: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [29]–[30] per French CJ.
(b) As legal reasonableness concerns the lawful exercise of power, it is not a vehicle for challenging a decision on the basis that the decision-maker has made an evaluative judgment with which a reviewing court disagrees if the judgment was reasonably open to the decision-maker, that is, within the area of decisional freedom within which the decision-maker has a genuinely free discretion: Li at [30] per French CJ. Thus, jurisdictional error will not result if minds might differ as to whether the decision reached was the correct one.
(c) Legal unreasonableness may describe the consequence of establishing a recognised species of jurisdictional error or an outcome-focused conclusion without any specific jurisdictional error being identified: Li at [27]–[28] per French CJ, [72] per Hayne, Kiefel and Bell JJ. The latter occurs where the decision is capable of explanation only on the ground of some misconception, if the decision is unreasonable or plainly unjust or lacks ‘an evident or intelligible justification’, or if ‘the result itself bespeaks error’: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26 at 360 per Dixon J; Li at [76], [85] per Hayne, Kiefel and Bell JJ.
(d) If a discretionary power is ‘ill-defined’, it will be necessary to look to the scope, purpose and object of the statute conferring the power: Li at [67] per Hayne, Kiefel and Bell JJ.
As indicated, under Part 7AA of the Act there is no general provision for a “fresh hearing”. Referred applicants must generally raise their claims at the earliest possible opportunity and are not permitted to add to those claims (see s.473DD of the Act). Consistent with this, s.473FA(1) of the Act is an exhortative provision which states that the Authority, in carrying out its functions, is to pursue the objective of providing “a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”. These provisions indicate that Part 7AA of the Act contains what the First Respondent acknowledged was “a restrictive system of merits review”. In particular, s.473DB(1) of the Act suggests that the Authority is empowered to seek information or comment from an applicant only to the extent permitted by express provision in Part 7AA, not by a “fresh hearing” as was sought in this case.
Further, it has been held that the common law rules of procedural fairness do not apply in this context (see s.473DA(1) of the Act and EVW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1363 at [18]-[21] per Jagot J).
In the particular circumstances of this case, where the Applicant sought a hearing, but not did not identify or suggest to the Authority what new information might be provided orally, the Authority’s approach to the exercise of its discretion in s.473DC(3) to obtain new information at an interview has not been shown to be legally unreasonable (see Plaintiff M174/2016 at [71] per Gageler, Keane and Nettle JJ; CRY16 at [72], [82] per Robertson, Murphy and Kerr JJ).
Indeed, in circumstances where the submission to the Authority sought a “fresh hearing”, it was reasonable for the Authority not to refer expressly to this broad request in considering the power to invite the Applicant to give new information. It has not been established that the Authority acted in a way that was legally unreasonable by not exercising the power in s 473DC(3) to invite the Applicant to give new information at an interview.
Indeed, even if the Authority failed to consider exercising the discretion under s.473DC(3) of the Act, I am not satisfied in the circumstances of this case that any such failure was legally unreasonable (CCQ17 at [41] per Thawley J). The Authority considered the Applicant's submissions in detail. There was no suggestion to the Authority that the Applicant had any “new information” to give it, other than the UNHCR Guidelines which the Authority considered (see BRZ17 at [51] per Moshinsky J). No jurisdictional error has been established on this basis.
In so far as the Applicant now seeks to contend that he had provided new information in the submission to the Authority, the Authority acknowledged that the submission referred to the UNHCR Guidelines, but noted that this information was before the delegate and was not new information. The Authority considered this information. Further, contrary to the Applicant’s submission, his agent’s reference to his claim that the cousin’s son (a person with a familial connection) was taken in a white van because he had worked for the LTTE was not “new information”. The assertion that this claim was consistently maintained was legal argument (and was considered by the Authority). The Applicant’s claims to fear harm because of his connection to his cousin’s son’s alleged abduction, about LTTE and TNA policies and to fear the Sri Lankan army were not new information and were considered by the Authority. It has not been established that the submission contained “new” information about the location of army camps or that was otherwise such as to enliven the need to consider s.473DD of the Act.
As no jurisdictional error has been established on any basis contended for by the Applicant, the application must be dismissed.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 26 May 2020
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