CPD16 v Minister for Immigration

[2017] FCCA 823

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 823

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority failed to assess the applicant’s claims against the relevant law – whether the applicant lost the opportunity to have matters properly explored before the Authority because the matters were not explored by the delegate – no request was made to the Authority in submissions to receive new information or to exercise statutory power – there was no failure by the Authority to consider the applicant’s claims – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H, 5J, 36, 47, 473CB, 473DC, 473DD, 473DE, 473DF, 476, Part 7AA.

Applicant: CPD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2487 of 2016

Judgment of: Judge Street

Hearing date: 26 April 2017

Date of Last Submission: 26 April 2017

Delivered at: Sydney

Delivered on: 26 April 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Hodges Legal

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon a new Ground 6 “that the IAA used the contents of an invalid application of 2013 to draw an adverse finding that is contrary to s.47(3) of the Act”.

2. The Court dispenses with the need for the filing of a further amended application.

3. The amended application is dismissed.

4. The applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2487 of 2016

CPD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 16 August 2016 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 28 September 2012 and underwent screening on 27 November 2012. The applicant lodged an invalid application for protection on 5 September 2013. On 15 March 2016 a valid application for a Safe Haven Enterprise visa was lodged.

The delegate

1. The applicant claimed to fear harm by the authorities because of his family’s and his own political activism advocating Tamil’s rights. The applicant claimed to fear harm as he is the last male member of a family and believes he is especially at risk. The applicant also feared harm because he illegally departed Sri Lanka and feared harm from the TMVP because he refused to support them. 

2. The delegate referred to the applicant’s migration history and identified the current valid application as well as the previous 2013 invalid application. The delegate referred to summarising the applicant’s claims made in the valid application. The delegate also referred to the claims that had been advanced and also referred to documents provided in support of the 2013 invalid application.

Findings made by the delegate

1. The delegate found that the applicant was a follower of the Hindu religion and of Tamil ethnicity from a particular district in the Eastern Province. The delegate accepted that the applicant was an active member in community activities including being a secretary of a sports club in his home area up until 2009 and that he continued his community activities on return in 2011. Further the delegate accepted that in the 2008 provincial council elections, the TMVP approached the applicant in his capacity as secretary of the sports club asking for assistance from the club which the applicant refused. The delegate also accepted the two members of the club who had campaigned against the TMVP were beaten by the group after the elections and the applicant felt he might also be harmed so arranged to leave the country in 2009. 

2. The delegate found that the applicant was not an active member in campaigning for anyone during the 2008 election. The delegate accepted that the applicant assisted electioneering activities for a relative of his aunt who stood as a TNA candidate in the 2012 provincial elections in his area for a number of weeks. The delegate accepted that during the campaign members of the Sri Lankan Army (“SLA”) visited his aunt’s house and questioned the aunt and the applicant about their political activities. 

3. The delegate found that the applicant was not approached by the TMVP in 2012 to assist in their campaign and that his home was not visited by unknown people asking for the applicant prior to this departure from Sri Lanka in 2012. The delegate found that the CID did not visit the applicant’s home asking for him following his arrival to Australia. The delegate did not accept that an unknown person asked the applicant’s mother about the applicant’s whereabouts while she was walking. 

Consideration of refugee criterion

1. The delegate found the applicant faced no real chance of serious harm on account of his Tamil race and the delegate found that there was no real chance the applicant would face serious harm from Sri Lankan authorities for any real or imputed political opinion or for having relatives who had previously done political activities if he returned to Sri Lanka.

2. The delegate found there was no real chance the applicant would face serious harm for any real or imputed political opinion or any association with dead exiled relatives from the Sri Lankan authorities, the TMVP or anyone else if the applicant returned to Sri Lanka in the foreseeable future. 

3. The delegate was not satisfied that the applicant has an adverse profile because of any political or community activities of the applicant in the past or any association with his dead relatives. The delegate found there was no real chance the applicant would face serious harm on an account of simply being a young Tamil male from the east.

4. The delegate found having considered the applicant’s claims individually and cumulatively, including any vulnerabilities arising from the applicant’s actual or imputed political opinion, his Tamil ethnicity, that he is a young Tamil from the east, the possibility of an imputed pro-LTTE political opinion because of his membership of any PSG and being a failed Tamil asylum seeker/returnee that the applicant does not face a real chance of harm on return to Sri Lanka and found that the applicant’s fear was not well-founded. 

5. The delegate found that there was not a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act in Sri Lanka and found that the applicant is not a refugee as defined in s.5H of the Act and did not meet the criterion under s.36(2)(a) of the Act.

Consideration of complementary protection criterion

1. The delegate found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there is a real risk the applicant will suffer significant. The applicant therefore did not meet the criterion under s.36(2)(aa) of the Act and on 28 June 2016, the delegate refused the applicant’s application for a protection visa.

The Authority

1. By letter dated 29 June 2016 the Authority wrote to the applicant and acknowledged the referral of the matter to the Authority for review. 

2. The Authority’s letter identified that there was only limited circumstances in which the Authority could receive new information. The Authority provided a fact sheet and practice direction in that regard and provided the applicant with an opportunity to put on submissions and new information.

Information before the Authority

1. The applicant took advantage of that opportunity and provided submissions on 16 July 2016 as well as on 20 July 2016. The Authority identified the applicant’s background and identified having regard to the material referred to the Authority under s.473CB of the Act. The Authority also made reference and took into account the submissions dated 16 and 20 July 2016.

Consideration of the applicant’s claims for protection

1. The Authority set out the applicant’s claims and relevantly found that the applicant did not conduct any activities to support or assist the EPDP, or any other candidate in the 2008 elections. The Authority accepted that there were steps taken in 2008 by TMVP supporters to seek the applicant and other club members on three occasions at his mother’s and aunt’s homes. The Authority accepted the two club members were abducted and badly beaten and that the applicant feared that was going to happen to him in the next few months and that the applicant then stopped work and going to the club. 

2. The Authority referred to the submission that the delegate should have further explored the applicant’s issues with the TMVP around 2008. The Authority explained that while it accepted that the applicant feared harm by the TMVP and that they had looked for him during that period, the Authority noted that the submission does not indicate what information would have been provided with any further exploration undertaken. The Authority noted that the submission did not provide any further detail about these aspects of the applicant’s claims and that there was no evidence before the Authority to indicate that the applicant came to any physical harm or faced additional issues with the TMVP. 

3. It was in those circumstances that the Authority accepted that the applicant felt intimidated and threatened by the TMVP’s assault on Club members and the fact that they visited his house but the Authority was not satisfied that the applicant was directly threatened or physically harmed by the TMVP at that time. 

4. The Authority found that the applicant did not return to his official sports club secretary role after returning from Qatar, rather he resumed an active and senior role with the club, providing guidance and support to the committee members and also did active community work with the cricket club. 

5. The Authority referred to the applicant’s activities leading up to the 2012 Eastern Provincial Council Elections and accepted that the applicant and his aunt were questioned by uniformed SLA officers about their election activities at her home which the applicant denied.  The Authority noted that the applicant stated they were not directly threatened, but that the questioning was perceived as threatening. The Authority also referred to the applicant’s 2013 and his current valid Safe Haven Visa applications where the applicant said the authorities attended his aunt’s house to ask if she was standing for the election. The Authority noted that the applicant did not mention in his 2013 application that he was also questioned and that in his valid application he stated he happened to be at her home and so they spoke to him as well. The Authority accepted that the CID knew the applicant’s name and about his activities assisting with the campaign. 

6. The Authority found that the questioning of the applicant on this occasion was opportunistic. The Authority found that the authorities did not come to the aunt’s house looking to question him but took the opportunity to question him because he was present. The Authority accepted that the applicant found this intimidating but was satisfied neither the applicant’s aunt nor the applicant were harmed or threatened during the visit.

7. The Authority also referred to the applicant’s claims that the TMVP and SLA searched for him at his home and at his aunt’s home numerous times before he left Sri Lanka in 2012. The Authority referred to the applicant’s claim that although no harm came to him at that time, it would have if he had stayed in Sri Lanka. The applicant confirmed he stayed in the local area and also stated in the valid application, which the Authority noted was consistent with his 2013 invalid application, that he had campaigned for the ITAK candidate for approximately one month until one or two days before he left Sri Lanka. 

8. The Authority referred to the delegate raising with the applicant that his electoral campaign activities were public activities and asked him to explain what he meant by claiming he was staying in hiding during that period. The applicant responded that he stopped distributing notices and door knocking a while ago and that before he left Sri Lanka he was not directly involved and that he was operating through friends. 

9. The applicant stated he stopped the door knocking activities when he was questioned by the army. The Authority did not accept the applicant’s explanation. The Authority found the applicant’s evidence about being in hiding to be contradictory to his 2013 invalid application and his earlier claim at the time of the valid visa application interview that he was engaging in public electoral activities including door knocking with the candidate for the month before he left Sri Lanka. The Authority found that the applicant changed his evidence upon being challenged in the valid visa application interview and that he did not stop his electoral campaign activities and did not go into hiding. 

10. The Authority found it implausible that the applicant would hide by staying in different places where he continued public campaigning activities in the same area. The Authority found that if the TMVP, SLA and CID wanted to find the applicant he could have been located in his locality. The Authority did not accept that the applicant stopped his election campaigning activities and lived in hiding. The Authority did not accept that the TMVP, SLA, CID or anyone else was searching for the applicant after he was questioned on one occasion at his aunt’s place. 

11. The Authority referred to the applicant’s family member’s activity and that a relative fled to the Czech Republic in 2000 and was granted asylum and now resides in the United Kingdom. The Authority referred to the submission that while the delegate accepted the applicant’s family members were killed during the civil war, the applicant’s claim was not properly explored or considered. The Authority noted that it was submitted that the delegate failed to take into account who the family members were, why and how they were killed, the targeted political motivations for their deaths and that the applicant was the only remaining political active member of the family. The Authority noted that there was no further detail provided about those issues in the submissions. The Authority noted that at the valid application interview, the delegate put to the applicant that these family members had been killed over 20 years ago and it did not appear that his family had suffered problems on account of these events in recent years.

12. The Authority noted that the applicant responded that when the CID questioned him about his election involvement they had obtained information about these family members’ political involvement and that airport officials would now have those details. The applicant stated that his family members who were involved in politics had been killed apart from his aunt who was protected by her membership of an organised Government group and his uncle who sought asylum abroad. 

13. The Authority was not satisfied that the applicant’s family had suffered any adverse consequence on account of these relatives’ political profiles for many years. The Authority considered that the authorities would have been aware of these matters prior to the applicant’s trips abroad and in his 2012 election activities.  The Authority did not accept that the applicant’s family’s political activities in the 1980s and 1990s and his uncle’s asylum in 2000 would have elevated the applicant’s profile with the authorities. 

14. The Authority found the applicant’s own political involvement was low level and limited to a month or less. The Authority did not accept that the applicant would be perceived as having a political profile and did not accept the authorities had an adverse interest in the applicant as the only surviving political active male member still in Sri Lanka.

15. The Authority referred to having found that while the applicant faced threats from the TMVP in 2008, the Authority did not accept that the applicant was sought by them in 2012 even after denying his and the club’s support for their campaign. 

16. The Authority did not accept the applicant was of adverse interest to the TMVP, SLA, CID or any other authorities when he departed Sri Lanka in 2012, nor did he subsequently become of interest to them.  The Authority did not accept that anyone sought the applicant after his departure. The Authority did not accept that the applicant as an ITAK/TNA supporter from the eastern province and taking into consideration his family’s activism with the Tamil Congress, would be perceived to be pro-LTTE or considered a separatist activist upon return. 

Consideration of refugee criterion

1. The Authority found that the applicant did not have a well-founded fear of persecution on the basis of his supporter assistance for the EPDP or any other party candidate in 2008. The Authority was not satisfied the applicant has a political profile that would cause him to be targeted upon return. The Authority found that the applicant does not face a real chance of harm from the TMVP or the Sri Lankan authorities in relation to his political opinion upon return.

2. The Authority found that the applicant would not face a real chance of harm through official and societal discrimination for reasons of his race upon return to Sri Lanka. The Authority was not satisfied that the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race or his Tamil race and origins from the East. The Authority was not satisfied that the applicant has a well-founded fear of persecution on the basis of any imputed LTTE support or links. The Authority found that the authorities did not consider the applicant to be an actual LTTE member, have family links to the LTTE or to have an LTTE supporter profile or would otherwise be of concern to the authorities.

3. The Authority accepted that the applicant would be identified as departing illegally and may be charged under Immigration and Emigration Act 1988. The Authority found that while being questioned and processed at the airport, even if the applicant is held over the weekend, he would face a period of detention but that the conditions will not be such as to give rise to the level of a threat to his life or liberty, or to significant physical harassment or ill treatment or otherwise amount to serious harm.

4. The Authority found the applicant would be issued a fine and released or if he pleaded not guilty would be released on his own personal surety. The Authority found the process leading to a charge, conviction and punishment for breaching the relevant sections of the Immigration and Emigration Act would be as a result of a law of general application applied to illegal departees and does not amount to persecution for the purpose of s.5H(1) or s.5J(1) of the Act.

5. The Authority was not satisfied that the applicant, as a Tamil male from Batticaloa, who was a low-level ITAK/TNA supporter in the Eastern Province, even with his family links to known political activists, and who was questioned on one occasion by the authorities in 2012 would result in a real chance that he will be harmed upon return, even though he would be returning to his home region charged under the Immigration and Emigration Act and as a failed asylum seeker who spent considerable time in Qatar and Australia.

6. The Authority did not accept that the applicant’s claims either individually or cumulatively, gave rise to a well-founded fear of persecution in the reasonably foreseeable future upon return. The Authority found the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and that the applicant did not meet the criterion under s.36(2)(a) of the Act.

Consideration of complementary protection criterion

1. The Authority was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criterion under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Before this Court

1. The grounds of the amended application are as follows:-

2. Ground 1

   The Immigration Assessment Authority (IAA) fell into error by failing properly consider an integer of the applicant's claim, that being an integer specifically raised and or appeared from the material before it.

   Particulars

   1. At [11] the IAA accepted that the applicant was involved in community work and a cricket club. In that capacity the applicant was approached by the ruling political group(s) and asked to support and garner the club's support for those groups in the upcoming elections.

   2. The IAA accepted that following the elections club members were forced to attend celebrations and humiliated. [12]

   3. The IAA accepted that two club members were abducted and badly beaten and that the applicant was sought after by armed TMVP supporters [12].

   4. The IAA accepted that the applicant returned to active duties in the cricket club and community work in 2012 [14].

   5. The IAA accepted that the applicant supported unsuccessful election candidates against the ruling political group(s). [15].

   6. The IAA accepted that the applicant and others were later questioned by authorities [16].

   7. The IAA accepted that members of the applicant's family have been active supporters of the Tamil Congress and a number of family members were killed between 1985 and 1990.

   8. The IAA did not properly or at all consider the risk to the applicant, being the only remaining male member of a family with long standing opposition to the ruling political groups, affiliations with the Tamil congress and associations with the LTTE.

   Ground 2

   The IAA fell into error by failing to give reasons or adequate reasons for the finding (nor was such a finding based on evidence) at [9] that the previous requests by the applicant for asylum were not known to the Sri Lankan authorities.

   Particulars

   1. The IAA did not give reasons for this finding.

   2. The IAA did not base the finding on any evidence.

   Ground 3

   The IAA fell into error by not considering if the previous requests by the applicant for asylum would become known by the Sri Lankan authorities upon return.

   Particulars

   1. The IAA was not satisfied that the applicant's previous requests for asylum “are known to the Sri Lankan authorities” [CB 141, 9].

   2. The IAA accepted that the applicant would be identifiable upon return as a failed asylum seeker from Australia [CB 141, 9].

   3. The IAA failed to consider if the previous requests by the applicant for asylum would become known by the Sri Lankan authorities upon return [CB 141, 9].

   Ground 4

   The IAA’s reasoning is tainted with jurisdictional error, as the delegate acknowledged of having failed to explore integers of claims put forward by the applicant.

   Particulars

   1. The delegate at [CB 104, 47] and at [CB 106, 60] acknowledged that integers of claims “were not explored”.

   2. Though the IAA had regard to the submission of 16 July 2016 [CB, 139], the IAA failed to cure the delegate's failure to explore integers of claims.

   3. The IAA's decision therefore is tainted with jurisdictional error.

   Ground 5

   The IAA erred in its finding at [CB 144, 25] that the applicant ”was not subsequently sought by the SLA, CID or other authorities" as the IAA failed to consider claims raised by the applicant.

   Particulars

   1. The applicant in his written claims stated at [CB 53, 30] that in 2013 that he was questioned while at his aunt's home which the delegate refers to as “opportunistic.”

   2. The applicant in his written claims stated at [CB 53, 31] “On two further occasions some men in civilian clothes came to my home and spoke to mv mother. My mother said they were not Tamils. They had to be from the Criminal Investigation Department. They asked for me ....”

   3. The applicant in his written claims at [CB 54, 36] stated a few months prior to his interview with his legal representative (interview took place on 3 December 2015) he was sought after by men who went to his home.

   4. The IAA at [CB 144, 24] refers to a claim raised by the applicant that a few months prior to May 2016 that the applicant's mother was approached by a non-Tamil speaker who asked about the applicant’s whereabouts.

   5. The IAA erred in its finding that the applicant was not subsequently sought by the SLA, CID or other authorities since the (opportunistic) questioning in 2013 as the IAA failed to consider the applicant's claims that he was in fact “sought after" On two further occasions"  (timeline - unclear) and in 2015 and in 2016.

Ground 1

1. In support of ground 1, Mr Tambimuttu, the solicitor for the applicant submitted that there was a social group that arose on the papers before the Authority that should have been the subject of findings. It was submitted that the applicant was a member of a social group by reason of being a member of a sports club. Mr Tambimuttu submitted that that sports club played a political role. There was no reference in the Authority’s reasons in support of this club playing any political role.  There was no claim expressly made that the applicant was a member of a social group by reason of being a member of a sports club. No such claim arose on the papers before the Authority.

2. The fact that the Authority accepted that two members of the sports club had come to be ill-treated by the TMVP did not give rise to a separate integer of the applicant’s claim that required separate findings.  The reference to the applicant’s family members involvement in political activities between 1985 and 1990 was a matter referred to by the Authority and in substance the particular asserting that the Authority did not properly, or at all, consider the applicant’s role as a remaining family member is, in substance, an invitation to this court to delve into the merits of the applicant.

3. The Authority made adverse findings in relation to the applicant’s claims and provided cogent reasons in support of those adverse findings. There is no substance in the contention that the Authority did not assess the applicant’s claims against the relevant law that was correctly identified. The adverse findings made by the Authority were open and cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged by ground 1 is made out.

Ground 2

1. The Court notes that ground 2 was formally abandoned by Mr Tambimuttu.

Ground 3

1. In relation to ground 3, Mr Tambimuttu submitted that because the applicant had unsuccessfully applied for asylum in other countries, this was a matter that added to his profile and risk as he would be returning as a failed asylum seeker. In light of the finding that the applicant might be subjected to questioning, Mr Tambimuttu submitted that that questioning might elicit the earlier unsuccessful applications for asylum by reason of which the applicant would be at risk and that there was no finding made in relation to those previous requests by the applicant unsuccessfully for asylum. 

2. It is apparent from the Authority’s reasons that the Authority referred to the applicant’s background including the fact that the applicant sought asylum through the UNHRC and various diplomatic posts including Australia, Germany and Switzerland. There was no separate claim advanced that the applicant’s unsuccessful applications for asylum would become known to the authorities. The Authority was not satisfied as the previous requests for asylum were known by the Sri Lankan authorities. The Authority did accept that the applicant would be identifiable as a failed asylum seeker from Australia who departed Sri Lanka illegally. There was never a separate claim to fear harm by reason of his background in the unsuccessful attempts earlier made to seek asylum separate from being a failed asylum seeker.  No such claim arises on the material before the Authority.  No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, Mr Tambimuttu argued that because there were matters that were not explored by the delegate, the applicant lost the opportunity to have those matters properly explored before the Authority. 

2. Mr Tambimuttu referred to paragraph 47 of the delegate’s reasons where the delegate referred to issues the applicant may have had with the TMVP during and just after the 2008 provincial council elections which were not explored with the applicant in detail at the interview.  The delegate in that regard continued by stating that the applicant has been broadly consistent with his claim since his arrival including at the enhanced screening interview in 2012, in his 2013 invalid application and in his current application. The delegate accordingly found it was credible that the TMVP might have tried to pressure local community groups to assist them during the elections and to intimidate those who they felt had worked against them during the campaign.

3. The delegate also referred to the applicant having identified relatives who were killed in the 1980s and early 1990s, as well as having relatives fleeing abroad, some 16 years ago and that this was not explored with the applicant in depth at the interview. The delegate continued in that regard to say that the applicant had been consistent in these claims and had provided death certificates to support the claims and the delegate accepted the claims as credible.

4. Mr Tambimuttu noted that the Authority had expressly referred to the submission that disagreed with the delegate’s decision and submitted that aspects of the applicant’s claims had been overlooked or not properly explored. It is apparent on the reasons of the Authority that the Authority took into account those submissions. Mr Tambimuttu submitted that the applicant lost the opportunity to develop further relevant detail concerning those matters that may have assisted the applicant. No request was made to the Authority in the submissions to receive new information or to exercise powers under s.473DC, s.473DD, s.473DE and s.473DF of the Act.

5. It is apparent that the Authority accepted the same matters as were accepted by the delegate in this regard and there was no failure to explore the applicant’s claims by the Authority or to make findings in respect of the claims advanced. The observations by the Authority in relation to the absence of detail in respect of the criticism of the findings of the delegate were open and do not reflect any jurisdictional error by the Authority.  No jurisdictional error is made out by ground 4. 

Ground 5

1. In relation to ground 5, it is apparent that the Authority made an adverse finding of fact that the applicant was not an adverse interest to the TMVP, SLA, CID or other authorities when departing Sri Lanka in 2012 nor did he subsequently become of interest to them. That was a finding of fact that was open to the Authority and ground 5 is in substance an invitation to this Court to engage in an impermissible merits review. There was no failure to consider the applicant’s claims as alleged by ground 5. No jurisdictional error is made out by ground 5. 

New ground 6

1. In the course of putting submissions in relation to ground 5, Mr Tambimuttu started to advance an argument that it was inappropriate to take into account the 2013 invalid application and that that was contrary to s.47(3) of the Act. The Court raised with Mr Tambimuttu that no such particular or ground appeared in the amended application.

2. Mr Tambimuttu then sought leave to raise a new ground, relevantly as follows:-

   6. that the IAA used the contents of an invalid application of 2013 to draw an adverse finding that is contrary to s.47(3) of the Act.

3. Whilst the amendment was not consented to, the Court granted leave to the applicant to raise the new ground and dispensed with the need for the filing of a further amended application in that regard. 

4. Section 47 of the Act is as follows:-

   Consideration of valid visa application

   (1)  The Minister is to consider a valid application for a visa.

   (2)  The requirement to consider an application for a visa continues until:

   (a)  the application is withdrawn; or

   (b)  the Minister grants or refuses to grant the visa; or

   (c)  the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

   (3)  To avoid doubt, the Minister is not to consider an application that is not a valid application.

   (4)  To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

5. Mr Tambimuttu submitted that s.47(3) of the Act, in essence, should be read as meaning that the information in an invalid application cannot be used in any subsequent application. The language of s.47(3) of the Act does not say so. On its face, the reference to the Minister not considering an application in s.47(3) of the Act is a reference back to the obligation under s.47(1) of the Act for the purpose of considering and making a determination of an application before the Minister.

6. Section 47 of the Act does not proscribe or prevent the use of an invalid application or material provided with an invalid application in a subsequent valid application. No jurisdictional error as alleged in the new ground 6 is made out.

Conclusion

1. The amended application is accordingly dismissed. 

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 4 May 2017