CPX16 v Minister for Immigration
[2018] FCCA 2452
•18 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPX16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2452 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed |
| Legislation: Migration Act 1958 (Cth), ss.65, 473CB, 473DA(1), 473DB, 473DC(1), 473DD, 473GA, 473GB |
| Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 |
| Applicant: | CPX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1984 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 18 June 2018 |
| Delivered at: | Perth |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| The Applicant: | In person with the assistance of an interpreter |
| Counsel for the First Respondent: | Mr R Knowles |
| Solicitors for the First Respondent: | Mills Oakley |
| The Second Respondent: | Submitting appearance save as to costs |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
MLG 1984 of 2016
| CPX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu faith. He arrived in Australia by boat on 26 September 2012. He applied for a Safe Haven Enterprise Visa (“SHEV”) on 29 December 2015.
A Ministerial delegate refused to grant the SHEV on 22 July 2016 (Court Book (“CB”) at 102).
The delegate’s decision was referred to the Immigration Assessment Authority (the “Authority) for review under Part 7AA of the Migration Act 1958 (Cth) (the “Act”). The applicant engaged legal representatives to assist him and a detailed submission was made to the Authority (CB at 131-135).
The Authority upheld the delegate’s decision on 6 September 2016.
By application filed in this Court on 15 September 2016, the applicant now seeks judicial review of a decision of the Authority.
To obtain assistance from this Court the applicant must show jurisdictional error on the part of the Authority.
Although the applicant was represented before the Authority, he is now self-represented. The applicant appeared in person with the assistance of an interpreter in the Tamil language.
The Court had before it a Court Book numbering 157 pages and a supplementary Court Book numbering 3 pages. The Court also had before it written submissions from the Minister dated 4 June 2018.
In his application to this Court the applicant relies on three grounds of review:
1. The decision of the Immigration Assessment Authority was affected by an error of law.
2. The Immigration Assessment Authority failed to afford the applicant procedural fairness.
3. Further particular to be provided (sic).
The applicant did not particularise the grounds in his application for judicial review.
Ground 3 is not a ground of review and will not be treated as one.
On 15 March 2017, this Court made orders programming the matter to a final hearing. Those orders required the applicant to file and serve any amended application giving complete particulars of each ground of review as well as any affidavit containing any additional evidence and written submissions 28 days prior to the hearing date.
The applicant did not file and serve any amended application. Nor did the applicant file and serve any further affidavits or written submissions.
Synopsis
For the reasons set out below the Court finds that the Authority did not fall into jurisdictional error. Consequently, the application for judicial review is dismissed.
Fast Track Decisions
The Authority’s decision appears at pages 141 to 157 in the Court Book.
It is important to note that the applicant’s application was processed as a “fast track” application.
This is relevant because it affects what the Authority can and cannot do and determines, in relation to judicial review proceedings before this Court, what is and what is not jurisdictional error.
Pursuant to s.473DB of the Act, the Authority is required to review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant. However, s.473DC(1) of the Act permits the Authority to access any documents or information that were not before the Minister when the Minister made the decision under s.65 of the Act if the IAA considers they may be relevant. However, the Authority cannot consider this new information unless there are exceptional circumstances to justify considering the new information: s.473DD of the Act.
These provisions provide as follows:
Section 473DC(1)
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.
Section 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Division 3, Part 7AA of the Act deals with the conduct of reviews by the Authority. Section 473DA(1) of the Act stipulates that this division, together with s.473GA and s.473GB, is taken to be an exhaustive statement of the requirements of natural justice in relation to reviews conducted by that Authority.
This section significantly alters the types of natural justice principles that might apply before a body like the Administrative Appeals Tribunal. It limits what documents will be examined and, importantly, the right to appear and present evidence.
In relation to this matter, the Authority had regard to the information referred to it by the Secretary in accordance with s. 473CB of the Act (CB 181 at [3]). That section reads as follows:
Section 473CB
Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a)a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.
The Authority’s Decision
At paragraph 3 of its written decision the Authority noted that it had had regard to the material given to it by the Secretary under s.473CB of the Act but did not accept that the other material satisfied the “exceptional circumstances” provision in the Act.
The Authority noted that it had had regard to a submission received from the applicant’s adviser insofar as the submission reiterated claims and referred to case law, policy and country information that was before the delegate, and to the extent that the submission otherwise addressed the delegate’s reasoning and findings (CB 142, [3]-[5]).
To the extent that new information was provided, the Authority found that it should not be taken into account, as follows:
a)In respect to new reports (country information), the Authority was not satisfied that the material could not have been provided to the delegate before the delegate made the decision, or that the material was credible personal information that was not known, and had it been known it may have affected the consideration of the applicant’s claims. The requirements of s.473DD were thus not satisfied and the material could not therefore be considered.
b)In respect to possible motivations for the Karuna Group (the “TMVP”) remaining interested in the applicant, the Authority considered the material to be speculative and material that could have been provided to the delegate. The Authority considered that there were no “exceptional circumstances” justifying consideration of the information – hence, s.473DD(a) was not met and the material could not be considered.
At paragraph 6 in its decision the Authority outlined the applicant’s claims as contained in the information referred from the Delegate and subsequently given to the Authority. These were summarised as follows by the Authority:
· He believes his life is in danger from the TMVP as he is closely connected to his cousin who is a deserter from the TMVP and helped to harbour his cousin. He was detained, beaten and questioned by the TMVP in 2011. His cousin was detained, hurt and escaped from the TMVP in 2010 and escaped abduction in 2012.
· He fears he is at risk of serious harm from the Sri Lankan authorities and the Sinhalese people as he originates from a Tamil village that is surrounded by Sinhalese people and they perceive the Tamils to be Liberation Tigers of Tamil Eelam (LTIE) supporters.
· The Sri Lankan authorities may believe he has LTIE links because he claimed asylum in a western country and left Sri Lanka illegally.
The Authority also gave a summary of further details of the substance of those claims at paragraphs 8–14 in its decision (CB 143–144). In essence, as summarised by the Minister at paragraph 7 in his written submissions:
7. The applicant’s claims for protection remained relatively consistent throughout the SHEV consideration and review process. The IAA set out a summary of the applicant’s claims at [6] of the decision (CB 142-143) and gave further details of the substance of those claims at [8]-[14] (CB 143-144). In essence:
a.The applicant came from a village that was majority Tamil, but was surrounded by Sinhalese people who were hostile to Tamils. The Sinhalese considered the Tamils to be associated with the Liberation Tigers of Tamil Eelam (LTTE).
b.The applicant and his family had not had trouble with and had not been associated with the LTTE. However, the applicant believed his life was in danger from the TMVP, an anti-LTTE militant group.
c.The applicant claimed to have been rounded up by the Sri Lankan Army in around 2007 after a cache of arms was found in his village. However, he was young and was released without harm.
d.In 2008 or 2009, his cousin was forcibly recruited by the TMVP. The cousin did some months of training, during which he unsuccessfully attempted to escape. Ultimately, he completed the training and was posted to the applicant’s town. Some time later, the cousin deserted his post. He moved to an aunt’s house, but returned to the applicant’s village in 2009.
e.The applicant claimed that his cousin had escaped from a search by the TMVP around 2009. At the SHEV interview, the applicant also claimed that the cousin had been taken at gun point by the TMVP and had been beaten. However, he had managed to escape and must have limped to the applicant’s house.
f.The applicant claimed that he had been picked up by two TMVP members and was held for two days while he was beaten and questioned. He was asked about local LTTE cadres and about his cousin, but he did not tell them anything. When released he was not required to report in but was told to tell the TMVP about LTTE cadres in the area.
g.In August 2012, while walking home with his cousin from work, an attempt was made to abduct the cousin, without success. The same day, Tamil speaking men came looking for the applicant, but he was at work. After this, the applicant made plans to leave Sri Lanka.
The applicant also made broad claims based on his personal characteristics (i.e. that he would be subject to harm as a young Tamil male from a town of Tamils). He also claimed to fear harm as a failed asylum seeker and a person who had departed Sri Lanka illegally.
The Authority considered the claims advanced by the applicant but did not accept key parts of the applicant’s claims.
As summarised by the Minister, the Authority accepted that the applicant’s cousin was part of the TMVP, but did not accept that he was a deserter or that the TMVP was otherwise interested in him. The Authority also did not accept that the later incidents involving the applicant’s cousin in 2009 and 2012 occurred.
The Authority also accepted that the applicant had been picked up as a young man and released, that he had been detained, beaten and questioned for two days. However, it did not accept the further evidence involving the cousin, including the beating alleged to have taken place in 2009, that the TMVP was interested in the cousin, or that the TMVP made any enquiries about him.
As summarised by the Minister, in respect of the broader refugee claims:
a)The Authority did not accept, based on the country information before it and in light of the applicant’s lack of LTTE affiliation or profile that he would be in danger because of his ethnicity. It was not enough simply to be a young Tamil male from a Tamil town in an LTTE controlled area.
b)Further, the Authority did not accept that the applicant would be at risk of harm as a failed asylum seeker or person who had departed illegally. Based on country information and the applicant’s lack of political or LTTE profile, the Authority found the applicant might be charged with an offence, but would likely spend only a short time in custody (at worst a few days in prison waiting for a Magistrate to be available to grant bail). It was very unlikely he would receive anything worse than a fine for the offence.
It is noted that at paragraph 16 the Authority makes an assessment of the country information before it.
At paragraph 20 the Authority examines the fact that the applicant had not claimed that the Sri Lankan authorities or TMVP had attempted to contact any of his family or friends about his whereabouts since he left Sri Lanka. This led the Authority to conclude that in the absence of any evidence to the contrary the Authority accepted that the authorities and the TMVP had made no enquiries about the applicant since he left Sri Lanka.
At paragraph 21 the Authority found that if the applicant were to return to Sri Lanka he would be considered a failed asylum seeker who had departed illegally by the Sri Lankan authorities.
At paragraphs 22 and 23 the Authority outlined, correctly, the statutory legal principles which it was required to examine in relation to refugee assessments and a determination of whether there is a well-founded fear of persecution. This is an accurate summary of that legal authority.
At paragraphs 24 to 35 the Authority undertook a detailed analysis of the relevant country information and DFAT information before it in relation to the situation of young Tamil males from the east and in relation to imputed LTTE links.
Importantly, at paragraph 30, the Authority found as follows:
DFAT acknowledges that there is a moderate level of societal discrimination between ethnic groups resulting largely from the war. However, the report does not identify the affected ethnic groups or the nature of this discrimination. The applicant claims the Sinhalese people in the local area are hostile to Tamils and refers, without specifics, to their harming Tamils. The only specific incidents of harm or potential discrimination that the applicant suffered were his 2007 arrest during a round up and his detention, questioning and beating by the TMVP in June 2011 when he was interrogated about knowing former LTTE cadres. I note the applicant was living in the same village in Trincomalee and able to pursue his studies through to his O-levels, complete a twelve months welding course and work from January 2010 to August 2012 in a cement factory. The country information discussed above indicates monitoring in the north and east has significantly decreased, there have been significant positive developments for Tamils in the country's politics and the situation has generally improved.
At paragraph 31 the Authority found that there was not a real chance that the applicant would, as a young Tamil male from the east, face serious harm upon his return to Sri Lanka, now or in the foreseeable future, on this basis alone.
At paragraph 32 the Authority continued with its analysis of harm resulting from a person’s real or perceived links with the LTTE. The Authority made that assessment within the relevant UNHCR information before the Authority.
On the basis of the country information examined and in light of the applicant’s lack of LTTE affiliation or profile, the Authority determined that the applicant would not be in danger because of his ethnicity. The Authority found that it was not simply enough to be a young Tamil male from a Tamil town in a LTTE controlled area.
In that regard the Court notes the determinations made at paragraphs 36 and 37 as follows:
36. I accept the applicant's evidence that he and his family have no actual links to the LTTE. He was detained briefly in a general round up by the Sri Lankan authorities in 2007 but released unharmed. He was detained, beaten and questioned by the TMVP about former LTTE cadres in June 2011. Neither the Sri Lankan authorities nor the TMVP made any further enquiries about the applicant prior to and after his departure from Sri Lanka. He has lived in Trincomalee, parts of which were previously controlled by the LTTE. However, as the UNHCR Guidelines note, mere residence in a former LTTE controlled area does not in itself give rise to a need for protection. The applicant, whether due to his residence in a possible LTTE controlled area, the 2007 round up, his 2011 detention by the TMVP or for those reasons together, does not have a profile that country information suggests he is at risk of harm. I do not consider that the authorities or the TMVP would have had any adverse interest in the applicant had he remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities or the TMVP on return.
37. I am satisfied that the applicant will not face a real chance of persecution from the Sri Lankan authorities or the TMVP due to any imputed political opinion on return to Sri Lanka now or in the reasonably foreseeable future.
In relation to the claim that the applicant would be harmed because he was a failed asylum seeker who departed Sri Lanka illegally, the Court notes the Authority’s findings at paragraphs 42 − 43 and 45 – 49 as follows:
42. Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure is suspected, are charged under the IE Act. DFAT understands that in most cases, these individuals have been arrested at Colombo International Airport. As part of this process, most returnees will be fingerprinted and photographed. They are transported by police to the closest Magistrates Court at the first available opportunity once investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a Magistrate not be available before this time - for example, because of a weekend or public holiday - those charged may be held at a nearby prison. DFAT rates general prison conditions in Sri Lanka as not meeting international standards because of a lack of resources, overcrowding and poor sanitary conditions.
43. DFAT understands that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the Magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser or facilitator of a boat venture. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures.
45. I accept that the applicant will be considered a failed asylum seeker on his return. DFAT reports that there have been thousands of asylum seekers returned to Sri Lanka since 2009, including 1500 from Australia, with relatively few allegations of torture and mistreatment and assesses the risk of harm for the majority of returnees as low. While DFAT notes there are a small number of reports of mistreatment upon return by asylum seekers, they cannot verify these reports, which are often anonymous and made to third parties. Country information containing such reports was considered by the delegate. I accept that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. As discussed above, I found that the applicant and his family have no actual links with the LTTE and he was not of interest to the Sri Lanka authorities and the TMVP after his release by the TMVP in June 2011. Taking into account those findings and the country information, I do not accept that the applicant, as a young Tamil male from the east who left Sri Lankan illegally, will be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka or by the TMVP after he returns home.
46. I am not satisfied that there is a real chance that the applicant would face serious harm on his return as a failed Tamil asylum seeker.
47. I accept that the applicant, if returned to Sri Lanka, will face action under the IE Act. The country information confirms that the applicant is likely to be detained and questioned at the airport, possibly up to 24 hours, before being conveyed by the police to the nearest Magistrates Court.
48. Once before the Court, and if not dealt with on the spot if the applicant were pleading guilty, the applicant would ordinarily be released unconditionally or be bailed to return to Court at a later date. If a Magistrate is not available at that time, for example due to the weekend or a public holiday, the applicant could be held in a nearby prison for a short time. Although the maximum penalty includes five years imprisonment, the country information indicates custodial sentences are not imposed on returnees who were merely a passenger on a people smuggling boat but that fines are issued to act as a deterrent.
49. The applicant's evidence is that he was only a passenger on the boat. I find, based on the country information discussed above that the applicant may be detained and questioned at the airport for up to 24 hours, faces a fine for breaching the IE Act and, depending on the availability of a Magistrate at the time he is charged under that Act, may face a short period of being held in prison.
(Citations removed)
The Authority also considered whether the applicant was owed complementary protection (at [57] to [66]). It found, largely for the same reasons that it had rejected the applicant’s refugee claim that the applicant would not be at risk of harm amounting to significant harm as defined.
What Amounts to Jurisdictional Error?
The applicant seeks orders in this Court for the issue of constitutional writs. In order for these writs to be issued the applicant needs to demonstrate that the Authority fell into jurisdictional error.
The possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, they most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198].
b)Where the decision maker ignores relevant material: Craig at [198].
c)Where the decision maker relies on irrelevant material: Craig at [198].
d)Where the decision maker fails to follow mandatory procedures: SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208].
e)Where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22].
f)Where the decision maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17].
g)Where the decision is illogical, irrational or unreasonable: see Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44].
As noted above the applicant in these proceedings was not legally represented. The concept of jurisdictional error means little to an unrepresented applicant whose English is poor and who appears without the assistance of a lawyer. The applicant seemed to suggest today that he needed more time within which to prepare. On one level he seems to suggest that he needed more time to file evidence of the sort that cannot be considered by this Court as it goes to merits review. On another level it is at least arguable that what he wanted was more time to get legal assistance.
While the Court is sympathetic to the concerns raised by this applicant and, indeed, all applicants who appear before this Court without legal assistance, the Court does note that the application for judicial review was filed almost two years ago. The Court notes that, in the circumstances, the applicant has had sufficient time within which to prepare and seek the assistance that he arguably needs.
Aware, however, that the applicant was not legally represented, the Court explained to the applicant today that when one strips away all of the “law talk”, for lack of a better expression, what one really needs to look at today is whether or not the Authority did “something wrong”. The applicant’s answers in relation to this question are addressed in detail below.
Did the Authority fall into Jurisdictional Error?
As noted above, this Court is in effect asked to examine two grounds of review. One refers to an error of law. The other refers to procedural fairness.
On 15 March 2017, this Court made orders programming the matter to a final hearing. Those orders required the applicant to file and serve any amended application giving complete particulars of each ground of review as well as any affidavit containing any additional evidence and written submissions 28 days prior to the hearing date. The applicant did not particularise his grounds in his application for judicial review. Nor did the applicant file and serve any amened application. Nor did the applicant file and serve any further affidavits or any written submissions.
This lack of information lead the Minister to submit as follows in his written submissions at paragraphs 14 and 15:
14. In respect of Ground 1, the applicant provides no particulars or explanation of what the alleged error of law is. Without submissions or further explanation, the ground is meaningless. There is now ample authority for the proposition that the failure to particularise a ground of review is a sufficient basis for it to be dismissed. The first respondent submits that Ground 1 should be dismissed.
15. In respect of Ground 2, again no particulars are provided to explain how it is that the applicant failed to receive procedural fairness. It should be dismissed for that reason alone.
In relation to whether or not the applicant should be dismissed because the grounds are not particularised the Court rejects the suggestion that this is an appropriate case in which to do so. While the authorities referred to by the Minister make sense within the context of an applicant who is legally represented, it would be most unfair to dismiss an application in circumstances where an applicant both does not speak English and is not legally represented. In those circumstances an applicant should, at a minimum, be given an opportunity to explain to this Court what his grounds of review actually mean. In effect, the applicant should be given an opportunity to particularise and make any submissions that he wishes. In that regard the Court notes the recent decision of Justice Colvin in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9].
Accordingly, the applicant was asked to explain what he meant in relation to the grounds of review. He provided further information as follows.
Ground 1
The decision of the Immigration Assessment Authority was affected by an error of law.
In relation to ground 1, which refers to “an error law”, the applicant was asked to explain what he meant. In effect, the applicant told the Court that the country information relied on by the Authority did not accurately reflect the actual situation of a young man like himself in Sri Lanka.
The Minister, in turn, argued that this goes to weight and that the weight to be attached to country information is a matter for the Authority. Counsel for the Minister also submitted that what the applicant was really seeking was for this Court to undertake merits review.
The Court explained to the applicant that it could not undertake merits review. In effect, this is what ground 1 is seeking.
Further, with regard to what the Authority can and cannot do in relation to country information, this Court notes the recent decision of Judge Wilson in DV117 v Minister for Immigration & Border Protection & Anor [2018] FCCA 241. His Honour’s observations about the use of country information can be summarised as follows:
a)The accuracy of country information is a matter for the tribunal, not a court, because a court would be engaging in an impermissible merits review.
b)The choice and interpretation of country information is a factual matter for the authority or tribunal alone.
c)This Court cannot review the merits of the Authority’s decision in that regard.
d)And finally, there is no error of law in the tribunal making a wrong finding of fact.
In relation to sub-point (d) above, it is not suggested here that the Authority did in fact make a wrong finding of fact, and the Court does not find that to be the case here.
No jurisdictional error can be seen here in relation to Ground 1.
Ground 2
The Immigration Assessment Authority failed to afford the applicant procedural fairness.
In relation to ground 2, the applicant was again asked to explain what he meant. He responded, in effect, that the Authority did not look at his personal information.
The Court rejects that suggestion. It is clear on the evidence that the Authority analysed all of the claims that the applicant had put before it and also referenced submissions put before it by the legal representatives for the applicant.
The Minister in turn argued:
16. In addition, it is well established that the fast track framework in Part 7AA of the Act is different to the framework and procedural fairness rules that apply in Part 7 Tribunal proceedings. By s 473DA, Division 3 of Part 7AA is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In the present matter, no new information was obtained or received that may have enlivened any obligation to put new information to the applicant under s 473DE. Further, the Authority properly considered the submissions received from the applicant and made reasoned findings in respect of the information presented.
There is no evidence that procedural fairness was not afforded here. This is an extremely restrictive regime and the Act provides an exhaustive statement of the requirements of the natural justice rule in relation to matters of this sort. The Court is not satisfied based on the material before it that the Authority failed to comply with its statutory obligations. It is the Court’s view that the applicant was given an opportunity to put his case to the Authority to the extent that the statute allows.
Further, as for any assertion that the conclusion reached by the Tribunal was “unreasonable”, illogical, irrational or arbitrary, the Court rejects that assertion.
In SZMDS, Crennan and Bell JJ set out the test for irrationality or illogicality at [131] as follows:
the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogically (see also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [34]-[36]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 1 at [30]).
Crennan and Bell JJ added in SZMDS at [135] that:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
On the evidence before it, the Court does not accept that the Authority acted in any way that can be described as unreasonable, illogical, irrational or arbitrary.
In terms of the categories of jurisdictional error, the Court also does not find that the Authority incorrectly identified the issues before it or asked itself the wrong questions. The Authority clearly identified all of the applicant’s claims, was guided by the law relevant to fast track determinations of this sort and forensically addressed the evidence before it within the context of the claims and importantly the relevant country information and those relevant sections of the Act as they pertain to a fast track application.
No criticism can be directed at the Authority for a decision made on the evidence and the way in which it came to that decision. The Authority’s decision in this matter was formed entirely on a rational basis.
Conclusion
Having assessed the applicant’s grounds of review, the Court does not accept that the Authority fell into jurisdictional error.
The application for judicial review is dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 3 September 2018
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Natural Justice
-
Statutory Construction
-
Costs
12
2