CRE19 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2024] FedCFamC2G 708

•

8 August 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CRE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 708

File number(s): ADG 244 of 2019
Judgment of: JUDGE LUCEV
Date of judgment: 8 August 2024
Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka of Tamil ethnicity – whether decision inconsistent, illogical or unreasonable – where ground of review makes claims not made before the decision-maker – where ground of review contrary to applicant’s evidence before the decision-maker – whether merits review sought – whether material jurisdictional error
Legislation: Migration Act 1958 (Cth) ss 473CB, 473DD, 474, 476
Cases cited:

ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196

AYC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1502

CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203; (2019) 274 FCR 477

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

SGBB vMinister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
Division: Division 2 General Federal Law
Number of paragraphs: 34
Date of last submission/s: 31 July 2024
Date of hearing: 31 July 2024
Place: Perth
Applicant: In person by telephone with the assistance of an interpreter
Counsel for the First Respondent: Ms L Helsdon
Solicitor for the Respondents: Sparke Helmore Lawyers
Second Respondent: Submitting appearance, save as to costs

ORDERS

ADG 244 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CRE19

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read “Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts”.

2.The originating application filed on 4 July 2019 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

  1. Before the Court is an application for judicial review (“Judicial Review Application”) filed on 4 July 2019 and made under s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”). The applicant, CRE19, seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority”) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate”) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) to refuse to grant CRE19 a Safe Haven Enterprise visa (“SHE Visa”).

  2. The Authority Decision appears in the Court Book (“CB”) at CB 231-251.

    BACKGROUND AND CLAIMS

  3. The background to this matter and the claims made by CRE19 are as follows:

    (a)on 27 August 2012 CRE19 arrived in Australia as an unauthorised maritime arrival: CB 75;

    (b)on 9 June 2017 CRE19 applied for a SHE Visa and advanced the following protection claims: CB 151-155:

    (i)he is a Tamil from a village in the Northern Province of Sri Lanka;

    (ii)in 2004 CRE19’s brother did not return home after being asked by six CID officers to collect something from their office, and his brother’s dead body was found the next day;

    (iii)a court case ensued in which CRE19 was a major witness. CRE19 identified the six CID members. The court case continued for many years. The CID officers eventually admitted to having killed CRE19’s brother because he was allegedly an LTTE member;

    (iv)at a court hearing on 18 September 2010 the Judge asked the CID officers to provide evidence as to why they killed CRE19’s brother;

    (v)on 18 September 2010:

    (A)when CRE19 was travelling home on a bus after the court hearing, the bus was stopped by the Sri Lankan Army (“SLA”) at a checkpoint and CRE19 was forcibly removed by the six CID members who had killed his brother; and

    (B)CRE19 was held at a nearby SLA camp for 1.5 hours, was interrogated, tortured, and told he would be killed if he attended the next court hearing (“September 2010 Incident”);

    (vi)CRE19 was hospitalised for three months after the September 2010 Incident;

    (vii)after the September 2010 Incident CRE19 went to Malaysia on a tourist visa;

    (viii)whilst CRE19 was in Malaysia he was told that:

    (A)another of his brothers had been abducted; and

    (B)the court case concerning his brother’s death had been adjourned and was unlikely to resume in the near future;

    (ix)in June 2011 CRE19 decided to return to Sri Lanka;

    (x)after CRE19 returned to Sri Lanka he went to a police station to inquire about his missing brother. The police detained, tortured and beat CRE19 in an attempt to get him to admit his brother was an LTTE member;

    (xi)the next day CRE19 was taken to a court and asked to sign a document he believes was a declaration his brother was an LTTE member. CRE19 refused to sign the document and was ordered to report to a police station every day;

    (xii)on the evening of 7 June 2012 CRE19 saw several SLA soldiers approaching his home. CRE19 fled through the back door and spent a night at a relative’s house, where he learnt that the SLA was searching for him;

    (xiii)CRE19 left Sri Lanka in August 2012;

    (xiv)since leaving Sri Lanka CRE19’s family home has been looted and burned down by government authorities and the police have been searching for his family; and

    (xv)CRE19 fears that if he returns to Sri Lanka he will be arrested, tortured and killed by the Sri Lankan authorities;

    (c)on 3 April 2019 the Delegate’s Decision was to refuse the SHE Visa application: CB 175-192, following which the matter was referred to the Authority: CB 193-195;

    (d)on 29 April 2019 CRE19 provided new information to the Authority: CB 201-218; and

    (e)on 7 June 2019 the Authority Decision was to affirm the Delegate’s Decision: CB 231-251.

    AUTHORITY DECISION

  4. In the Authority Decision the Authority:

    (a)had regard to the material given to it by the Secretary under s 473CB of the Migration Act: CB 232 at [3];

    (b)was satisfied that there were exceptional circumstances to justify considering new information provided by CRE19 concerning bombings in Sri Lanka on Easter Sunday in April 2019 (“2019 Easter Sunday Bombings”) that occurred after the Delegate’s Decision: CB 232 at [5];

    (c)obtained for itself new country information concerning the 2019 Easter Sunday Bombings and the actions taken by the Sri Lankan government to stabilise the security situation and identify those responsible for the 2019 Easter Sunday Bombings: CB 232-233 at [6];

    (d)did not consider there were exceptional circumstances to justify considering other new information provided by CRE19 on the basis that the material was country information that predated the Delegate’s Decision and was not satisfied that either of the factors in s 473DD(b) of the Migration Act were met in relation to that information: CB 233 at [7];

    (e)accepted CRE19 was a Sri Lankan citizen of Tamil ethnicity from the Northern Province of Sri Lanka: CB 235 at [11];

    (f)found that CRE19 had provided inconsistent information regarding his employment in Sri Lanka, whether he ceased that employment, and if he did cease employment, the reasons for that occurring, and further found that inconsistencies in CRE19’s evidence in relation to his employment reflected poorly on CRE19’s credibility: CB 235-236 at [13];

    (g)found CRE19’s evidence concerning the circumstances of his brother’s death and the court case in relation to it to be inconsistent, vague, unconvincing, and, ultimately, not believable: CB 236-237 at [14]-[16];

    (h)accepted that the death certificate for CRE19’s brother was genuine and that his brother died on the date specified therein (2 June 2000) and that he died from a gunshot: CB 238-239 at [20], but concluded that the most likely version of events concerning CRE19’s brother’s death was that the Sri Lankan Navy (“SLN”) killed the brother whilst he was out fishing, and that the events CRE19 said occurred after the brother’s death were fabricated to further CRE19’s SHE Visa application: CB 239 at [21];

    (i)concluded that CRE19 had fabricated his evidence concerning his abduction to support his claims for protection: CB 237 at [17];

    (j)found that it was implausible that the CID would wait ten years (after the brother’s death) before apprehending and threatening CRE19 because they would have had ample opportunities to do so in the ten years after the brother’s death: CB 239-240 at [23];

    (k)accepted that CRE19’s other brother was abducted in February 2011 but did not accept that CRE19 was at risk of harm as a result of that abduction which occurred over eight years ago: CB 240 at [24];

    (l)did not accept that SLA soldiers approached CRE19’s house as alleged: CB 240-241 at [25];

    (m)was not satisfied that CRE19 was of any adverse interest to any Sri Lankan authority or any other person or group when he left Sri Lanka in August 2012: CB 241 at [27];

    (n)was not satisfied that there was a real chance CRE19 would suffer serious harm from attacks like the 2019 Easter Sunday Bombings, now or in the reasonably foreseeable future: CB 242 at [31];

    (o)considered whether CRE19 would face harm on the basis of his Tamil ethnicity, Northern Province origins, or imputed anti-government political opinions: CB 242 at [32], and was not satisfied there was a real chance of CRE19 being seriously harmed on those bases: CB 242-244 at [33]-[40];

    (p)was not satisfied that CRE19 faced a real chance of persecution on account of him having departed Sri Lanka illegally: CB 244-245 at [41]-[44];

    (q)was not satisfied CRE19 has a well-founded fear of persecution: CB 246 at [46]-[47];

    (r)in considering the complementary protection criterion, relied on its earlier findings to conclude that there was not a real risk that CRE19 would suffer harm, including insignificant harm, should he be returned to Sri Lanka: CB 247 at [51]-[52];

    (s)affirmed the Delegate’s Decision to refuse the grant of the SHE Visa: CB 247.

    JUDICIAL REVIEW APPLICATION

    Material jurisdictional error

  5. For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the High Court said that:

    15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

    16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

    Not merits review

  6. The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The “line between judicial review and merits review … must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and the reasons of the Authority are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.

    Grounds

  7. The grounds of the Judicial Review Application are as follows (reproduced without amendment):

    1.        The IAA decision was inconsistent, illogical and so unreasonable

    Particulars

    a.        The applicant claimed his brother was a colonel in the LTTE

    b.The IAA wrongfully made an assumption that the application brother was not died by military

    c.I will provide more details and information once the court book is prepared

    2.        Ground

    3.The decision was inconsistent. Illogical and so unreasonable to not accept the information associated in processing enmasse

    4.The IAA was not satisfied that there are exceptional circumstances to consider this information

    Hearing

  8. At hearing CRE19:

    (a)initially claimed that he had not been able to provide evidence of the 2019 Easter Sunday Bombings to the Authority because his son (in Sri Lanka) had been deeply affected by the 2019 Easter Sunday Bombings, and consequently he had had to spend time making arrangements concerning his son, rather than providing evidence to the Authority, but in reply submissions CRE19 withdrew this submission as in the Minister’s oral submissions it was pointed out that CRE19 had in fact filed new information concerning the 2019 Easter Sunday Bombings which was accepted and considered by the Authority (and that the Authority had had regard to new information that the Authority itself had sourced concerning the 2019 Easter Sunday Bombings); and

    (b)said that he had not been able to provide sufficient evidence to prove that certain things had happened, and that had he been able to do so his claim for a SHE Visa would have been accepted.

    Consideration - ground 1

  9. Ground 1 contends that the Authority Decision was “inconsistent, illogical and so unreasonable”, and relies upon three particularised matters (as set out at [7] above].

  10. For the Authority Decision to be found to be affected by jurisdictional error on the ground of unreasonableness or illogicality, the Authority Decision must be one that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [130], [131] and [135] per Crennan and Bell JJ. Further, in order for jurisdictional error to be found a finding must reach a threshold of “extreme illogicality”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 (“DAO16”) at [4] and [30] per Kenny, Kerr and Perry JJ.

    First particular

  11. CRE19 never claimed that his brother was a colonel in the LTTE. In a statutory declaration accompanying CRE19’s SHE Visa application CRE19 said that “[a]s far as I know my brother was not involved with the LTTE”: CB 94. The Authority was entitled to, and did, proceed on the basis of that evidence: CB 236 at [14]. The Authority did not err by failing to consider a matter that was not raised and which directly contradicted evidence CRE19 gave on the relevant topic: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [55] and [68] per Black CJ, French and Selway JJ, or to put it a little differently, the Authority’s function was to respond to the case that CRE19 advanced: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [78] per Kirby J; SGBB vMinister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J.

    Second particular

  12. In relation to the second particular, CRE19’s complaint, in essence, is that the Authority should have reached a different conclusion on the basis of the material before it. There was sufficient evidence and country information to support the Authority’s conclusion that “it [is] most likely the version of events provided [by CRE19] during the Entry interview [that] is what actually occurred, that his brother was killed by the … [SLN] whilst out fishing”: CB 239 at [21]. To differ from that conclusion, which is what the second particular seemingly invites the Court to do, because it “made an assumption that … [CRE19’s] brother was not died by military” is no more than an invitation to the Court to engage in impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

    Third particular

  1. The third “particular” is not a particular but a statement of intent by CRE19 to provide further particulars after the CB was filed. It alleges no error on behalf of the Authority. In any event the Court notes that:

    (a)the CB was filed on 9 September 2019 (so almost five years ago);

    (b)following the matter being docketed to the presently presiding Judge in February 2023 a directions hearing was held on 31 March 2023, attended by CRE19 (via CISCO Webex), and at which the Court made orders (“Court’s March 2023 Orders”) that allowed CRE19 to file any amended Judicial Review Application, further affidavits and an outline of submissions by 20 September 2023; and

    (c)notwithstanding (a) and (b) above, CRE19 has not provided further particulars or any amended Judicial Review Application, or otherwise sought to file any further documents in these proceedings since the filing of the Judicial Review Application and an affidavit annexing the Authority Decision, both filed on 4 July 2019.

    Conclusion – ground 1

  2. To adopt the language used in SZMDS at [135] per Crennan and Bell JJ, it cannot be said that the Authority’s reasons “were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision”. In relation to legal unreasonableness it is fair to likewise observe that the Authority’s reasoning was not unintelligible or illogical, and that its findings fell within the area of decisional freedom afforded to an administrative decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [28] per French CJ; see also at [66] per Hayne, Kiefel and Bell JJ.

  3. CRE19 has not shown that the Authority Decision was one which no reasonable decision-maker could make on the same evidence, nor that any particular finding made in the Authority Decision was illogical, let alone extremely illogical: DAO16 at [4] and [30] per Kenny, Kerr and Perry JJ. Rather, the Authority Decision was based upon the Authority’s assessment of country information and the implausibility and unbelievability of, and inconsistencies in, CRE19’s claims.

  4. For the reasons set out above the findings made in the Authority Decision were logical and reasonable and involved no inconsistency, and it cannot be said that there was a constructive failure (or any failure) to exercise jurisdiction by the Authority. Ground 1 does no more than seek to impermissibly cavil with findings of fact and the weighing of country information made by the Authority, particularly at CB 239 at [16]-[21]: AYC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1502 at [63] per Banks-Smith J.

  5. It follows that ground 1 of the Judicial Review Application does not establish jurisdictional error in the Authority Decision.

    Ground 2

  6. Ground 2 is self-evidently not a ground of review and does not establish jurisdictional error in the Authority Decision.

    Grounds 3 and 4

  7. Grounds 3 and 4 comprise a single complaint concerning the Authority’s treatment of new information sought to be provided to the Authority by CRE19 in relation to en masse processing of failed asylum seekers returning to Sri Lanka.

  8. The High Court considered the nature of the procedural duties under s 473DD of the Migration Act in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”). In AUS17 the High Court held that performance of the procedural duty in s 473DD of the Migration Act requires:

    (a)the Authority:

    (i)first, to assess new information against the criteria specified in ss 473DD(b)(i) and (ii) of the Migration Act; and

    (ii)if satisfied that one or both criteria are met, to take the outcome of that assessment into account in its assessment of exceptional circumstances under s 473DD(a) of the Migration Act: AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J; and

    (b)that if neither criterion under s 473DD(b) of the Migration Act is met, that the Authority is prohibited from considering the new information and that there is no need to assess that information against the criterion in s 473DD(a) of the Migration Act: AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J.

  9. No “formulaic consideration” of s 473DD was required: ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 at [64] per Wigney J, and the Authority was under no obligation to provide reasons for the formation of the states of satisfaction required by s 473DD of the Migration Act: CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203; (2019) 274 FCR 477 at [119] per Derrington and Steward JJ.

  10. CRE19 asked the Authority to consider country information that pre-dated 2016, but which was not put before the Delegate: CB 233 at [7]. The Authority noted that there was other more recent and credible country information in the review material dealing with the issues addressed in CRE19’s documents: CB 233 at [7]. This newer and more credible country information was considered by the Authority when dealing with the issues addressed in CRE19’s rejected material, namely, the manner in which CRE19 would be processed upon his return to Sri Lanka: CB 244-245 at [42]-[44].

  11. CRE19 failed to satisfy the Authority that the new information met either limb of s 473DD(b) of the Migration Act and, in all the circumstances, the Authority was also not satisfied there were exceptional circumstances to justify considering the new information: Migration Act, s 473DD(a). In the circumstances it was open to the Authority to determine that there were not exceptional circumstances for considering the information on this basis. The reasoning in the Authority decision on this issue was coherent, logical and compliant with the principles set out in AUS17 in relation to the nature of the procedural duties under s 473DD of the Migration Act.

  12. It follows that grounds 3 and 4 do not therefore establish jurisdictional error in the Authority Decision.

    Matters raised at hearing

  13. At hearing CRE19 asserted that he had not been able to provide evidence of the 2019 Easter Sunday Bombings to the Authority, but that assertion was withdrawn in his reply, because CRE19 had in fact filed new information concerning the 2019 Easter Sunday Bombings which was accepted and considered by the Authority: CB 232 at [5]. The Court does not therefore need to further deal with this issue.

  14. CRE19’s assertion that he had not been able to provide sufficient evidence to prove that certain things had happened, and that had he been able to do so his claim for a SHE Visa would have been accepted, is not due to any fault or error on the part of the Authority (or the Delegate). It was for CRE19 to provide whatever evidence and materials he thought necessary to support his case: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 at [76] per Heerey, Conti and Jacobson JJ.

  15. To the Delegate CRE19 provided:

    (a)completed Forms B and C as part of the SHE Visa application;

    (b)identity documents; and

    (c)a written “Statement of Claims” prepared with the assistance of the Refugee Advocacy Service of SA Inc: CB 151-155,

    and CRE19 appeared before the Delegate to give evidence about his claims: CB 165, 169 and 177.

  16. To the Authority CRE19 provided new information, some of which was:

    (a)accepted, and in particular, new information on the 2019 Easter Sunday Bombings: CB 232 at [5]); and

    (b)not accepted, and in particular, new country information as to the processing of returnees to Sri Lanka: CB 232 at [7], and as to which the Court has found there was no jurisdictional error in failing to accept that new information for the reasons set out at [19]-[24] above.

  17. CRE19 was provided with, and took advantage of, the opportunity to provide evidence and materials to both the Delegate and the Authority. Whether the evidence and materials provided by CRE19 was sufficient to prove the claims made by CRE19 was a matter for assessment by, for present purposes, the Authority. As is evident from the Authority Decision the Authority undertook that task having regard to the materials before it, which included the materials before the Delegate. It is not now for CRE19 to say that he can provide more evidence and materials: this Court cannot consider further evidence and materials going to the merits of CRE19’s claims as to do would be to engage in impermissible merits review contrary to longstanding legal principle:  Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and the Authority cannot further consider the matter unless the Court remits the matter to the Authority because the Authority Decision is affected by jurisdictional error. In this case the Authority Decision is not affected by jurisdictional error for the reasons otherwise set out in these Reasons for Judgment, and the matter cannot therefore be remitted to the Authority.

  18. It follows that the matters raised at hearing by CRE19 do not give rise to any jurisdictional error in the Authority Decision.

    Jurisdictional error otherwise

  19. The Court is cognisant that CRE19 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.

    CONCLUSION AND ORDERS

  20. CRE19 has failed to establish any jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.

  21. There will also be an order that the name of the first respondent be amended to read “Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts”.

  22. The Court will hear the parties as to costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       8 August 2024

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