CRW16 v Minister for Immigration - [2017] FCCA 984

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRW16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 984

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the IAA failed to consider a particular social group – whether the IAA failed to consider the applicant’s parents’ refugee status – whether the IAA failed to consider an integer of the applicant’s claims – whether the IAA failed to disclose information to the applicant – whether the IAA made an inference that was not open to it – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473FB, 476

Immigrants and Emigrants Act 1949 (Sri Lanka)

Cases cited:

SZTAL v Minister for Immigration & Border Protection 243 FCR 556

Applicant:

CRW16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESMENT AUTHORITY

File Number:

SYG 2560 of 2016

Judgment of:

Judge Street

Hearing date:

15 May 2017

Date of Last Submission:

15 May 2017

Delivered at:

Sydney

Delivered on:

15 May 2017

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu

Hodges Legal

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Minter Ellison

ORDERS

Leave is granted to the Applicant to rely upon the second amended application and the Court dispenses with the need for the electronic filing of the same.
The second amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2560 of 2016

CRW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 31 August 2016 affirming the decision of the delegate not to grant the applicant a protection visa.

Migration history

The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was born in the Northern Province of Sri Lanka and moved to India after he was a few months old until he was four. The applicant then lived in a particular location for almost five years and then travelled to Malaysia on his passport and obtained a two-month tourist visa on arrival in Kuala Lumpur, and overstayed his visa for another six months. In May 2009, the applicant was issued a one-way travel document and was returned to Sri Lanka. The applicant then continued to live with his family and attended an IT course until May 2010. In May 2010, the applicant went to Colombo to study English and then returned back to a particular location in Sri Lanka in November 2010. The applicant left Sri Lanka by boat in August 2012 and arrived in Australia as an unauthorised maritime arrival.

The Delegate’s Decision

The applicant lodged an application for a Safe Haven Enterprise visa on 19 November 2015.

Applicant’s claims for protection

The applicant claimed that he and his family experienced difficulties with his father as a member of the Tamil Eelam Liberation Organisation (“TELO”) from the time he and his family left Sri Lanka to live in India as refugees between 1989 and 1993.
The applicant alleges on return to Sri Lanka, his home region was controlled by the LTTE and his father ceased being active with the TELO and worked as a fisherman, and that there had been animosity between the TELO and the LTTE. The applicant claims that due to fears of being forcibly recruited by the LTTE, the applicant’s family arranged for him to go overseas after completing high school, and he was sent to Malaysia and then returned. On return, the applicant alleges that his family experienced a number of difficulties including an incident with policemen that resulted in him being detained at an army base for three nights and beaten. The applicant alleges that he was subsequently required to regularly report to the army and was beaten again. The applicant alleges that because of these incidents he left his home village for Colombo and then fled to Australia. The applicant claims to fear harm from the authorities of Sri Lanka if he is returned because of the incident with the policemen, because he is considered to be a Tamil troublemaker, because he failed to report to the army, and because of his family’s associations with the LTTE.
On 20 July 2016, the delegate refused the applicant’s application.

The Authority’s Decision

Information before the Authority

By letter dated 22 July 2016, the Authority wrote to the applicant and informed the applicant that the matter had been referred to the Authority for review. The letter identified that the Authority could only consider new information in limited circumstances and provided a practice direction fact sheet providing the applicant with an opportunity to provide new information and to put on submissions.
The Authority received an email on 1 August 2016 indicating that the applicant’s representative had made an FOI request for information in order to respond to the decision. On 5 August 2016, the Authority sent the applicant’s representative a letter referring to the request for additional time to provide submissions and new information. The letter provided a further opportunity up until 22 August 2016 to put on information, either new information or submissions.
The applicant provided submissions and a statutory declaration to the Authority, both dated 11 August 2016. Reference was made to the fact that the request was made for information and access to documents and that the request was yet to be processed. The submissions identified that as a matter of procedural fairness, the applicant requires a copy of all information for the Authority to properly answer his case. The submissions asserted that the Authority’s unreasonably short timeframe for lodging submissions and the inability to process the FOI request as a matter of urgency should not be allowed to hinder the applicant’s ability to properly present his case to the Authority. The submissions then identified why the applicant disagreed with the adverse findings of the delegate. The submissions then addressed the applicant’s risk profile and fears as a failed Tamil asylum seeker, and maintained that the applicant was a refugee within the meaning of s.5H(1) of the Act.
On 20 August 2016, a further submission was sent on behalf of the applicant to the Authority referring to the submission on 11 August 2016 and providing a translation of the applicant’s refugee ID card, a copy of which was submitted to the Authority on the 11 August 2016. It was submitted that the card was a relevant consideration as to whether there was a real opportunity the applicant could experience persecution or significant harm if he returns to Sri Lanka due to the fact his immediate family fled Sri Lanka and are claiming protection overseas. The representative identified that the information in relation to the applicant’s protection claims already have been raised with the Department and it was submitted that the delegate had failed to consider the totality of the applicant’s circumstances, and it was submitted that there were exceptional circumstances to receive the information.
After 11 August 2016, no further submission was put in relation to the Freedom of Information request or when that information was provided, nor was any step taken in these proceedings to identify any information provided under the Freedom of Information request that could be said to be of any relevance to the putting of submissions to the Authority or the advancing of new information.
The Authority identified the applicant’s background and the referral of material under s.473CB of the Act. The Authority made reference to the submission received on behalf of the applicant dated 11 August 2016, as well as the information provided on 20 August 2016. The Authority had regard to the information provided dated 11 August 2016 and then made reference to the refugee card provided on 20 August 2016 being new information.
The Authority turned to consider whether or not there were exceptional circumstances to justify having regard to the refugee card. The Authority found that, on the face of it, the refugee card appears to be a critical document and that the applicant had consistently made the claim his parents are in India and was satisfied that there were exceptional circumstances that justify having regard to the refugee card of the applicant’s parents.
The Authority made reference to the applicant’s submission that the applicant had a Freedom of Information application pending since 3 August 2016 and that, as a matter of procedural fairness, the applicant required a copy of all the new material to properly answer the case.
The Authority also made reference to the submission that the time frame for lodging submissions in the practice direction was unreasonable. The Authority made reference to the submission that the inability of the Department to process the FOI information should not be allowed to hinder the applicant’s capacity to present his case to the Authority. The Authority noted that the submission did not request that the Authority forego making a decision until the FOI was finalised. Nonetheless, the Authority drew the inference that that was the request that was being made. In that regard, the Authority noted that on 4 August 2016, the IAA gave to the applicant the materially relevant documents and recordings from the review material outside the FOI scheme.
In the circumstances it is apparent that the applicant had the material available for the purpose of putting submissions and new information at the time that submissions were provided. No identification of any deficiency in respect of that information was advanced on the evidence before the Authority or before this Court. The Authority identified in the circumstances the Authority considered it reasonable to proceed to make a decision on the evidence currently before the Authority.

Consideration of applicant’s claims

Refugee assessment

The Authority identified the applicant’s claims. The Authority identified problems with the applicant’s explanations in relation to implausible aspects of his claims and found that that undermined the credibility of the applicant’s claims. The Authority found the applicant’s explanations in relation to the claims unpersuasive, and found the applicant’s evidence regarding the harassment of his father and mother and detention and release of his brother to be contradictory and difficult to accept as credible.
The Authority made reference to the applicant’s claims concerning his parents being harassed in his absence and observed that his evidence on that was vague and that he did not state who harassed or threatened his parents, and the nature of the harm, where, or when it happened. The Authority made reference to the refugee card the applicant provided stating that his parents arrived in India by plane. The Authority concluded that the parents had departed Sri Lanka by plane and therefore found that the parents would have brought themselves to the attention of the Sri Lankan authorities at the time they departed Sri Lanka. The Authority found that it was implausible that the applicant’s parents were genuinely wanted by the Sri Lankan authorities in circumstances where they would have been able to fly out of Sri Lanka to India. The Authority found that these were inconsistencies and implausibilities in the applicant’s claims, further undermining the applicant’s credibility.
The Authority found the applicant had fabricated his claims in relation to alleged connections with the LTTE and found that that undermined his credibility generally.
The Authority was not satisfied the applicant or his family had suffered any harm in the past from the Sri Lankan authorities. The Authority rejected that ten men had a fight with the armed white van men. The Authority rejected that the army came to the applicant’s home village because of the white van men. The Authority rejected that the ten men reported to the army camp were detained for three days or beaten.
The Authority rejected that the applicant was accused of being connected to the LTTE because of his uncle or his father. The Authority rejected that the ten men had to report weekly to the army. The Authority rejected that the applicant ceased reporting at the army base because he went to Colombo. The Authority rejected the applicant’s brother was harassed or detained or that his father was harassed because the applicant failed to report to the army base.
The Authority rejected the applicant was abducted in a white van after he returned to his home village from Colombo. The Authority rejected that the applicant departed Sri Lanka because he feared harm from the army. The Authority rejected that after the applicant’s departure from Sri Lanka his brother and his parents were harmed because the applicant ceased reporting to the army camp. The Authority found the applicant had fabricated those claims as a basis upon which to apply for a protection.
The Authority found that there was not a real chance of serious harm to the applicant from the Sri Lankan authorities or from greasemen because he was in a nightwatch now or in the reasonably foreseeable future if he returns to Sri Lanka.
The Authority was not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities because his father was a former member of the TELO or Mr D, his uncle, is a leader of TELO now or in the reasonably foreseeable future if the applicant returns to Sri Lanka.
The Authority was not satisfied that the applicant faced a real chance of serious harm from the Sri Lankan authorities, from imputed pro-LTTE or anti-Sri Lankan government political opinion and/or because he is a Tamil or because he comes from the Northern Province and/or because he lived in an area of Sri Lanka that once was under LTTE control now or in the reasonably foreseeable future if he returns to Sri Lanka.
The Authority was not satisfied there was a real chance the applicant would be harmed by the Sri Lankan authorities because he applied for asylum in Australia. The Authority was not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities due to being a failed asylum seeker now or in the reasonably foreseeable future if he returns to Sri Lanka.
The Authority found that the applicant had departed Sri Lanka without a passport when he came to Australia and had committed an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the IAEA”). Whilst the Authority accepted that the applicant was questioned on return to Sri Lanka from Malaysia, the Authority rejected that he was detained for three days, assaulted, or that he was released after the intervention of his uncle, and rejected that he had to report to the CID. The Authority did not accept the submission that the applicant would be facing a second offence under the IAEA.
The Authority was satisfied on the information before the Authority that the applicant has no identification concerns or criminal or security records that would raise the concern of the authorities. Whilst the Authority accepted that the applicant had failed to comply with the CID requirements he report to them, the evidence before the Authority was that the applicant never had a warrant issued against him and was not charged with any offence. The Authority did not consider the applicant’s failing to report to the CID would cause him to be a security concern to the Sri Lankan authorities.
The Authority found the applicant would not face any chance of imprisonment, but it is likely that he would be fined. The Authority rejected as not credible the applicant’s claim that he is the subject of an inquiry by the army or that he has failed to report to the army camp. The Authority found, in the absence of any evidence that would elevate the penalty to which the applicant would face, that there is not a real chance the applicant would face such a period of detention or imprisonment.
The Authority found the questioning and detention the applicant may experience would be brief and would not constitute serious harm as defined under the Act. The Authority was satisfied that the provisions and penalties of the IAEA are laws of general application that apply to all Sri Lankans equally.
The Authority found the law is not discriminatory on its terms, nor is there country information before the Authority to indicate that the law is applied in a discriminatory manner or that it is selectively enforced.
The Authority was not satisfied that any process or penalties that the applicant may face as a person who left Sri Lanka illegally and returned to Sri Lanka would amount to serious harm. The Authority found that any process or penalty the applicant may face on return to Sri Lanka would not constitute persecution for the purpose of the Act.
The Authority made reference to having considered the applicant’s claims individually and cumulatively as well as considering the personal circumstances of the applicant and was not satisfied the applicant has a well-founded fear of persecution from the Sri Lankan authorities or paramilitaries for reasons or a combination of reasons in s.5J(1)(a), now or in the reasonably foreseeable future, if he returns to Sri Lanka.
The Authority made reference to an alleged fishing dispute referred to by the applicant at the time of his entry to the effect that the Sri Lankan police and army fired upon boats in his home area, that a Muslim minister was involved, and that there was a case about that. The Authority noted that no reference was made to those claims in the statement in support of the Safe Haven Enterprise visa or in the statement made in support of the submissions to the Authority.
The Authority noted that the applicant told the delegate that his father operated a transport business and he repeated that claim in his statement to the Authority. The Authority noted that the applicant’s evidence elsewhere was that he had never worked other than what he had told the delegate, he occasionally helped with the accounts at his father’s business when his father was unavailable.
The Authority was willing to accept that there was a fishing dispute in the applicant’s home area and that it involved a Muslim minister. The Authority was not satisfied the applicant has ever worked as a fisherman and was not satisfied the applicant’s claims are credible that the Sri Lankan army or police fired upon boats or that he has a case about that. The Authority found on the evidence before it that the Authority was not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities or the Muslim minister because of a fishing dispute now or in the reasonably foreseeable future if he returns to Sri Lanka.
The Authority found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and did not meet the criteria under s.36(2)(a) of the Act.

Complementary protection assessment

In considering the issue of complementary protection, the Authority was not satisfied that the brief detention, questioning, and fine or other penalty would amount to significant harm as defined under the Act. The Authority found there was no real risk that the applicant would be arbitrarily deprived of his life or tortured.
The Authority made reference to the detention conditions being poor but found there is no intention to inflict pain or suffering or extreme humiliation. The Authority found the poor prison conditions in the circumstances to which the applicant may be subject do not of themselves constitute significant harm as defined under the Act. The Authority is not satisfied, individually or cumulatively, that any processes or penalties the applicant may encounter under the IAEA would constitute significant harm as defined in the Act.

The Authority found there were not substantial grounds for believing as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka there was a real risk of the applicant suffering significant harm, and found the applicant did not meet the criteria under s.36(2)(aa) of the Act.

Proceedings before this Court

Grounds of the Application

The grounds of the second amended application are follows:
Ground 1
The Immigration Assessment Authority (IAA) failed to consider a claim put forward by the applicant namely that he was a member of a particular social group of persons who were involved in a fishing dispute with a Muslim Minister who “have put a case in about this".
Particulars
1. At [CB 203, 41] the IAA accepted that there was a fishing dispute in the applicant's home area and that it involved a Muslim Minister on the basis of a claim that was raised by the applicant during his entry interview [CB 22].
2. At [CB 22], the applicant made the following claims,
a. The “Ministry told us not to fish in the area”.
b. The “Minister is a Muslim and we Christian”.
c. “The Sri Lankan army and police fired on our boats”.
d. “This was in the paper”.
e. “We have put a case in about this”.
3. At [CB 195] the IAA misconstrues an integer of a claim raised during the entry interview, as the IAA states that the applicant claimed that he “...made a case about this issue”.
4. At [CB 203, 41] the IAA did not accept that the applicant

“has a case about that”.
5. The applicant did not claim that he filed a case about the fishing dispute rather that those involved in the dispute in the

“applicant's home are” have initiated legal proceedings.
6. The applicant further claimed that those involved in the dispute in the applicant's home area are “Christian”.
7. The IAA therefore erred in failing to consider a claim made out on the material.
Ground 2
The Immigration Assessment Authority (IAA) failed to consider the applicant's parents' residence and their status in India (i.e. refugee).
Particulars
1. At [CB 194, 8], the IAA stated “The delegate made no finding regarding the applicant's parents' residence in India, so it is arguable had the applicant provided the refugee card consideration of the refugee card may have affected consideration of the applicant's claims.”
2. At [CB 198, 18] the IAA considered the applicant's parents' refugee card.
3. At [CB 194, 7] the IAA states that the refugee card appears to be a “credible document”.
4. The reason the applicant provided his parents' refugee card was to assist the IAA in curing an error made by the delegate (i.e. failing to make a finding regarding the applicant's parents' residence in India).
5. The IAA was concerned in the manner the applicant's parents', departed Sri Lanka and as the parents departed by plane formed the view that the parents were not “genuinely wanted” by the Sri Lankan authorities [CB 198, 18].
6. The IAA was of the view that had the delegate considered the applicant's parents' residence in India this may have affected consideration of the applicant's claims.
7. The IAA submission at [CB 182] states “Attached is a copy of the applicant's parents' ID card indicating that they currently reside in a refugee camp in India.”
8. The IAA made no finding regarding the applicant's parents' residence in India and the fact that the applicant's parents were residing as refugees in a refugee camp in India.
Ground 3
The IAA's findings at [CB 204, 46] is consistent with legal errors alleged by the applicants in SZTAL. Judgement is to be delivered by the High Court of Australia on 20/05/2017. The outcome of the matter could positively affect the applicant's case.
PARTICULARS
(i) At [CB 204, 46] the IAA states “…I accept the applicant may experience poor prison conditions during his detention. ... While the conditions are poor, I find there is no intention to inflict pain or suffering or extreme humiliation. In these circumstances, the poor prison conditions to which he applicant may be subject do not of themselves constitute significant harm .... ".
(ii) The outcome of SZTAL would determine if the IAA was correct in stating that

“intention” needs to exist in order that any pain or suffering or extreme humiliation that the applicant may experience during any period of detention amounts to significant harm.
(iii) As the judgement in SZTAL would be delivered in May, it is apt to adjourn the instant matter.
Ground 5
The IAA failed to consider if the applicant faced a real risk / real chance of significant harm as the applicant failed to comply with the CID's reporting requirements.
PARTICULARS
(i) At [CB 201, 33] the IAA states “While I accepted above, the applicant has failed to comply with the CID's requirements he report to them ... ".
(ii) The IAA did not consider the applicant failing to report to the CID will cause him to be a security concern to the Sri Lankan authorities as the applicant “never had a warrant issued against him, nor was he charged with any offence”.
(iii) The IAA failed to consider if the applicant faced a real risk of significant harm due having failed to comply with the CID's reporting requirements.
Ground 6
The IAA committed jurisdictional error as it failed to give the applicant “relevant documents and recordings from the review material outside the FOI scheme”, that it said it had given to the applicant on 4 August 2016.
Particulars
I. The IAA drew the inference that the applicant's representative had requested that the IAA forgo making a decision until the FOI application is finalised [CBI 94, 8].
2. The IAA states that it had given the applicant on 4 August 2016 “the materially relevant documents and recordings from the review material outside the FOI scheme” [CB 194, 8].
3. The IAA proceeded to make a decision after having satisfied itself that the materially relevant documents and recordings had been given to the applicant.
4. The court book does not contain any evidence of documents having been given by the IAA to the applicant on 4 August 2016.
5. The IAA does not state how the materially relevant documents and recordings were given to the applicant.
Ground 7
The IAA committed jurisdictional error as it was not open to infer that the applicant departed Sri Lanka by plane on the basis of the English translation of the Indian refugee card [CB 198, 18].
Particulars
1. The English translation of the Sri Lanka Refugees Identity Card [CB 185] states that the applicant's parents' mode of arrival into India was by plane.
2. The IAA states at [CB 198, 181 that if the applicant's parents were genuinely wanted by the Sri Lankan authorities they would not have been able to fly out of Sri Lanka to India.
3. It was not open for the IAA to make a finding that the applicant's parents departed Sri Lanka by plane on the basis of the Sri Lanka Refugees Identity Card (issued by the Indian authorities) which states the applicant's parents arrived into India by plane.
4. The Sri Lanka Refugees Identity Card did not state / indicate that the applicant's parents departed Sri Lanka by plane.
5. The inference made at [CB 198, 18] is founded on the IAA's own subjective opinion.
6. It was also not open for the IAA to make a finding that the applicant's parents departed Sri Lanka by plane on the basis of an English translation of the Sri Lanka Refugees Identity Card which has been completed by a non-NAA TI accredited translator (refer Ground 8),which does not meet paragraph 25 of the Practice Direction published by the IAA [C 165,25].
Ground 8
The finding at [CB 198, 18] has been made by the IAA on the basis of an English translation [CB 185].
The translation ought to have been treated as an invalid document / translation as the translator's credentials failed to meet Paragraph 25 of the IAA's Practice Direction [CB 165, 25] .
Particulars
1. Sri Lankan Refugee Identity Card [CB 198, 18] has been translated by an “untested” “recognised translator”.
2. Practice Direction published by the IAA states at paragraph 25 “All documents that are not in English should be translated into English by a translator with a 'Translator' level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI)”.
3. The English translation of the Sri Lanka Refugees Identity Card [CB 185] states that the applicant's parents' mode of arrival into India was by plane.
4. The document put forward by the applicant [CB 185] failed to meet paragraph 25 of the Practice Direction and for this reason the IAA ought to have disregarded the English translation.
5. Therefore the finding made by the IAA at [CB 198, 18] that the applicant's parents “arrived in India via plane” could not have been made and could not have been relied upon by the IAA.
The Court notes that ground 4 was fully abandoned by Mr Tambimuttu, the solicitor for the applicant.

Ground 1

Mr Tambimuttu took the Court to the statement by the applicant that his father gave up his fishing business as well as making reference to the identity card that identified his father as having arrived in India by plane on 16 January 2013, which included reference to his religion being Christian. Mr Tambimuttu took the Court to the findings of the Authority in relation to the fishing dispute and the reference in Part C of the applicant’s safe haven visa application to being told by the Ministry not to fish in the area, and that, “the minister is a Muslim and we are Christian”, and that “the Sri Lankan army and police fired on our boats,” and that “this was in the paper here in Australia”, and “we have put a case in about this.”
Mr Tambimuttu argued that the Authority had misunderstood the applicant’s evidence by reason of the reference to him not having a case about that and maintained that the claim was one which did not depend upon whether or not the applicant was a fisherman. The Authority’s reasons are not to be read with a keen eye for error. The reference to “he has a case about that” clearly is a reference that refers to the applicant’s claim referable to “we have put in a case about this,” which was rejected by the Authority as not being credible.
That the applicant was found not to be a fisherman was a finding referable to the applicant’s claim in relation to the alleged fishing dispute, and it was open on the material before the Authority. I do not accept that there was a case that was advanced on the material and that arose on the material that the applicant was a member of a social group of persons who were in a fishing dispute. It is apparent that the Authority did address the applicant’s claim that was advanced in relation to the fishing dispute and made findings that were open to it. There was no failure by the Authority to consider a claim put forward by the applicant. The applicant’s claim of being involved in a fishing dispute was clearly considered by the Authority in the subject of adverse findings that were open. No jurisdictional error of the kind alleged in ground 1 is made out.

Ground 2

In relation to ground 2, Mr Tambimuttu took the Court to the reasoning of the Authority in relation to considering whether the refugee card was new information and the finding that the refugee card was credible, and submitted that there had been no proper consideration given to the nature, content, and quality of that document.
It is apparent that the Authority took into account the refugee card, in relation to the applicant’s parents being able to depart Sri Lanka legally and not being of concern to the authorities. The inference drawn by the Authority that the parents had departed by a claim in circumstances where the card supported that they had arrived by plane was clearly open on the material and cannot be said to lack an evident and intelligible justification.
On the face of the Authority’s reasons, the Authority considered that credible information, being the refugee card as identified by the Authority, in saying that it had regard to it as well as in its reasons making reference to that refugee card.
Mr Tambimuttu submitted that the Authority should have made findings about why the parents were given the refugee card and their refugee status and refugee claims. It was the applicant’s claims that the Authority was required to address. There was no request upon the Authority to make such a finding. There was no failure by the Authority to consider the applicant’s claims and evidence adduced in relation to his parents. No jurisdictional error is made out by ground 2.

Ground 3

In relation to ground 3, Mr Tambimuttu sought an adjournment on the basis of the pending decision in the appeal from SZTAL v Minister for Immigration & Border Protection 243 FCR 556. Mr Tambimuttu accepted that this Court is bound by the decision of the Full Court in that regard. The request for an adjournment was not consented to by the first respondent.
The Authority in the present case made findings in respect of the conditions not being intentional, and this Court is bound by the decision in SZTAL. I am not satisfied that the pending determination by the High Court of Australia identifies any proper basis upon which the Court should adjourn the determination of this matter. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.
It is for these reasons that the adjournment application was refused. In relation to ground 3, as this Court is bound by the decision of the Full Court of the Federal Court in SZTAL. No jurisdictional error is made out by ground 3.

Ground 5

In relation to ground 5, Mr Tambimuttu took the Court to paragraph 33 of the Authority’s reasons and argued that the Authority did not consider the applicant failing to report to the CID will cause him to be a security concern to the Sri Lankan authorities, and that the Authority failed to consider if the applicant faced a real chance of significant harm due to having failed to comply with the CID reporting requirements.
The Authority made reference to the applicant’s claims that on return to Sri Lanka he was questioned at the airport and detained for three days, and released after an intervention of his uncle and had to report to the CID. The Authority made a reference to those claims being vague and that there was no claim that the applicant was charged with any offence or that he attended court. The Authority made reference to the applicant not explaining why he was required to report to the CID if he was not charged with any offence or was on bail.
The Authority observed due to those difficulties with his claims the Authority considered this to be a further example of the applicant fabricating claims of past harm from Sri Lankan authorities.
The Authority expressly identified that it accepted that the applicant was questioned on return to Sri Lanka from Malaysia, but rejected that he was detained for three days or that he was released after intervention of his uncle, and rejected that he had to report to the CID. In those circumstances there was no failure by the Authority to consider whether the applicant faced a real risk or a real chance of significant harm as alleged in ground 5. Ground 5 fails to make out any jurisdictional error.

Ground 6

In relation to ground 6, Mr Tambimuttu identified that the freedom of information material had not been provided at the time the submissions were made, and that there had been a request for further time because of that freedom of information request.
Mr Tambimuttu referred to the Authority’s observation that the materially relevant documents and recordings from the review were provided outside the FOI scheme. The nature of the impact or materiality of the information raised by ground 6 is not clearly apparent. There is no suggestion that the Authority did not provide the information identified in its reasons.
Insofar as the error is said to be one in not awaiting the completion of the freedom of information request, the Authority considered the request in that regard and explained that the relevant material had been provided by the Authority to the applicant’s representatives. The Authority provided an evident and intelligible justification for the decision to proceed with the determination. No step was taken to identify that there was a relevant document not provided by the Authority or that there was some information provided under the Freedom of Information request that would in any way have impacted on the submissions advanced or new information advanced to the Authority. The decision to proceed with the review by the Authority was reasonable. No jurisdictional error is made out by ground 6.

Ground 7

In relation to ground 7, Mr Tambimuttu took issue with the inference drawn by the Authority that the parents of the applicant had left India by plane simply because they arrived by plane.
That inference was open to the Authority on material before the Authority and cannot be said to lack an evident and intelligible justification. The inference that they departed from Sri Lanka was an obvious inference and was not speculation or an impermissible conclusion. The inference was not an unreasonable finding. No jurisdictional error is made out by ground 7.

Ground 8

In relation to ground 8, Mr Tambimuttu sought to adduce evidence to identify that the person who had engaged in the making of the translation which the applicant’s lawyers had provided did not have a relevant qualification as was required under the practice direction.
Mr Tambimuttu contended that there had been a breach of the practice direction in relation to the accreditation of the person and that that breach was of significance because of the reasoning of the Authority about the applicant’s parents having departed Sri Lanka by plane.
No step was taken to identify any error in the translation or to prove that there was some consequence that flowed from a translating error. The Court was not persuaded that the evidence sought to be adduced by the applicant at this hearing for want of accreditation was relevant because on the face of the material before the Court, no step had been taken to identify any translation error or any consequence alleged to have flowed from the alleged breach of the accreditation requirements in the direction.
Mr Tambimuttu did not identify any basis upon which the noncompliance with the practice direction could be said to have had any significance in the reasoning of the Authority.
The Court rejected the accreditation evidence in the circumstances of the present case by reason of being irrelevant in breach of the practice direction by the applicant as it is not a ground that could give rise to any jurisdictional error. Section 473FB(3) does not afford that breach of the directions amounts to a jurisdictional error.
The want of accreditation of the translator is not a matter in the present case that has given rise to any identified consequence in respect of the review by the Authority. No jurisdictional error is made out by ground 8.

Conclusion

The second amended application is dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 June 2016