DBR16 v Minister for Immigration
[2018] FCCA 1181
•10 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBR16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1181 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority properly considered whether exceptional circumstances existed in relation to new information provided by the applicant – whether the Immigration Assessment Authority properly considered all the applicant’s claims – no jurisdictional error – application dismissed. |
| Legislation: Treaties: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A |
| Cases Cited: BVZJ 6 v Minister for Immigration and Border Protection [2017] FCA 958 |
| Applicant: | DBR16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2846 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 10 May 2018 |
| Date of Last Submission: | 10 May 20118 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Elodie Cheesman, Clayton Utz |
| Counsel for the Respondents: | Mr Ashok Kumar |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2846 of 2016
| DBR16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
On 26 September 2016 the applicant filed an application in this court for judicial review of a decision of the Immigration Assessment Authority (“Authority”) which had affirmed a decision of a delegate of the First Respondent (“the Delegate”) to refuse to grant the applicant a Temporary Protection visa (“TPV”).
The background, the applicant’s claims and the Authority’s findings are summarised in the written submissions of the First Respondent as follows:
“Background
4. The applicant is a citizen of Sri Lanka who arrived in Australia on 17 September 2012. On 30 September 2015 he lodged an application for a TPV. On 1 August 2016, the Delegate refused to grant the TPV. On 26 September 2016, the IAA affirmed the Delegate's decision.
5. On 18 October 2016, the applicant commenced the current proceedings.
The applicant's claims
6. The applicant is a Tamil Hindu from the Jaffna district, northern province, Sri Lanka. The applicant claimed to fear harm arising from:
(a) disputes he had with the Sri Lankan Anny (SLA) arising from their reclaiming, and occupation of his land;
(b) his Tamil ethnicity; and
(c) as a failed asylum seeker returning illegally from Sri Lanka.
7. The applicant claimed to fear harm from the SLA, the Criminal Investigation Department (CID) and the Sri Lankan authorities.
The IAA' s findings
New information
8. The IAA noted that it received a submission and further information from the applicant's representative on 1 September 2016. To the extent the submission discussed material which was before the Delegate and responded to the Delegate's decision based on that material, the IAA considered that this did not constitute new information and had regard to it. To the extent the submission consisted of references to articles and reports not before the Delegate, the IAA found that s 473DD(b) of the Act was not satisfied because the applicant did not provide any explanation as to why the new information:
(i) was not, and could not have been provided to the Delegate; or
(ii) why it may be regarded as credible personal information that was not known, and had it been known, may have affected the consideration of the applicant's claims.
9. The IAA considered the two untranslated documents provided by the applicant and described in the submission as "immigration documents in relation to the applicants eldest son in France". The IAA noted the applicant's submissions that: the Delegate failed to realistically consider why one of the applicant's sons had fled Sri Lanka and was currently seeking protection in France; the applicant had not had an opportunity to explain and give evidence in regard to this matter; and the information was credible personal information which was not previously known.
10. The IAA examined the two documents, and concluded that in their untranslated state they did not assist it in determining whether there were any protection claims by the applicant's son, and only appeared to confirm that he was in France. It was not satisfied that there were exceptional circumstances that justified it considering that information.
Findings of fact
11. The IAA accepted that:
(a) the applicant is a Tamil and Hindu from the Jaffna District, Northern Province of Sri Lanka;
(b) having regard to country information, part of the applicant's land was seized by the SLA during the war to form part of the SLA camp at Allarai and that land was still held by the SLA;
(c) the applicant's eldest son was in France. However, the IAA did not accept that his son left Sri Lanka due to the CID looking for the applicant;
(d) based on the applicant's evidence, his wife was not involved in any action in the District Court in Sri Lanka concerning the sale of his land; and
(e) the applicant would be considered an illegal departee and failed asylum seeker on return to Sri Lanka.
12. On the evidence before it, the IAA had serious concerns about the credibility of the applicant and the truthfulness of his evidence relating to the seizure of his land by the SLA, noting in particular
the inconsistencies in the applicant's evidence as to: where his family was living; the parts of his land alleged to have been reclaimed by the SLA and the dates when it was reclaimed; and what occurred when the applicant was allegedly detained on 5 and 22 August 2012.
13. The IAA also noted that the applicant changed his evidence many times as to when he asked for his land back, where he was living at the relevant time, and made exaggerated claims. The IAA rejected as fabrications that:
(a) the applicant approached the SLA camp to request the return of his land;
(b) the applicant was beaten by the commander of the SLA camp sometime in early August 2012;
(c) the CID visited his house in August 2012; and
(d) the CID subsequently visited his family seeking the applicant's whereabouts.
Refugee claims
14. After considering the applicant's evidence and the country information, the IAA was not satisfied that the applicant faced a real chance of persecution now or in the reasonably foreseeable future for any of the claimed reasons.
15. Tamil male from the North, and imputed political opinion: The IAA referred to country information indicating that monitoring in the north and east of Sri Lanka had significantly decreased and the situation had generally improved for Tamils. It referred to a DFAT report indicating that there was a moderate level of societal discrimination between ethnic groups resulting largely from the war. However, it also observed that the applicant was living in Jaffna and, despite the SLA seizing part of his land during the war, was able to support himself and his family by working as a farmer and labourer until he left Sri Lanka. It concluded that there was not a real chance that the applicant would, as a Tamil male from the north, face serious harm upon his return to Sri Lanka, now or in the reasonable future.
16. The IAA also noted that the applicant did not claim, and it accepted, that he did not have any actual or perceived link to the LTTE (which on the country information might have given rise to a need for international refugee protection). It also noted that while the Jaffna district was, for a time during the war, controlled by the LTTE, mere residence in a former LITE-controlled area does not give rise to a need for protection. The IAA concluded that the applicant was never involved in any adverse incidents with the Sri Lankan authorities, including the SLA, and that he did not have a profile that country information suggested would give rise to a risk to harm. The IAA did not accept that the authorities or current SLA would have any adverse interest in the applicant on his return.
17. Land seizure claims: Although the I.AA did not accept that the applicant approached the SLA camp for the return of his land prior to his departure from Sri Lanka, it was prepared to accept that he may seek the land back from the SLA if he were to return to Sri Lanka. However, based on the Sri Lankan government's policy of returning some land held by the military and the availability of legal avenues to challenge seized land, the IAA found that the chance that the applicant would experience any harm for asking for his land back now, or in the reasonably foreseeable future would be remote.
18. Failed asylum seeker and illegal departure from Sri Lanka: The IAA referred to country information outlining the procedures adopted by the SLA upon the return of citizens of Sri Lanka, and the penalties for offences under the Immigrants and Emigrants Act 1949 (IE Act). It accepted that the applicant, if returned to Sri Lanka: (i) would face action under the IE Act; (ii) was likely to be detained and questioned at the airport, possibly up to 24 hours, before being taken by the police to the nearest Magistrates Court; (iii) once before the court, and if not dealt with on the spot (if the applicant were to plead guilty) would ordinarily be released unconditionally or be bailed to return to court at a later date; and (iv) if a magistrate was not available, for example due to the weekend or a public holiday, the applicant could be held in a nearby prison for a short time. The IAA concluded, having regard to the applicant’s risk profile that there was not a real · chance that he would face serious harm on return to Sri Lanka as a person who departed Sri Lanka illegally.
19. Even having regard to the generally poor prison conditions, the IAA did not consider that a brief period of 1 to 3 days in detention would constitute a necessary level of threat to his life or liberty or to significant physical harassment or ill treatment under section 5J(5) of the Act or otherwise to amount to serious harm to the applicant. Similarly, whether considered separately or together with a brief period of detention, the IAA did not consider any likely questioning of the applicant by any of the authorities, including the CID, at the airport on arrival, any surety imposed, or the imposition of a fine under the IE Act, to constitute a threat to his life or liberty, or to be significant physical harm or ill treatment under section 5J(5) of the Act or otherwise amount to serious harm. The IAA also found that the evidence did not support a conclusion that the IE Act was selectively enforced. It found that the investigation, prosecution and punishment of the applicant under the IE Act would be the result of a law of general application and did not amount to persecution for the purpose of section 5H(l) and 5J(l) of the Act.
20. Considering the applicant's circumstances as a whole, the IAA was not satisfied that he faced a real chance of persecution now, or in the reasonably foreseeable future, whether because of his illegal departure, having made a claim for asylum in Australia, as a person who may seek the return of land held by the SLA, or as a Tamil male from the north, or any combination of those factors.
Complementary protection claims
21. The IAA then considered each of the applicant's claims by reference to the complementary protection criteria. It was satisfied that none of those claims gave rise to a real risk that the applicant would suffer significant harm for the purposes of the Act. In particular, the IAA was not satisfied that the applicant would face a real risk of significant harm during any questioning and processing at the airport or during a brief period of detention. Having regard to its acceptance that the applicant may face some level of societal discrimination as a Tamil male from the north, it specifically found that such discrimination as the applicant may face did not amount to significant harm as defined in sections 36(2A) and 5 of the Act.”
(Footnotes Omitted)
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.
…”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“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.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
Section 473DD of the Act provides as follows:
“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.”
The Proceeding before this Court
The applicant was represented before this Court by Mr Ashok Kumar, of counsel. Mr Kumar confirmed that the applicant relied on Grounds 1, 2, 3, 5 and 6 of the Application filed on 18 October 2016. Mr Kumar confirmed that Ground 4 was not pressed. The Grounds are as follows:
“Ground 1
The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [2] - [5]); failed to ask correct questions and I or asked incorrect questions and irrational / illogical and / or denied procedural fairness and erred in the consideration of whether the submitted documents be considered and the issue of exceptional circumstances.
3. Particulars
1.1 The Authority ignored the information.
1.2 The Authority failed to take into account the information.
1.3 The Authority failed to properly classify that the information was new information;
1.4 The Authority failed to consider whether the section s 473DD was applicable in the circumstances.
1.5 The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).
1.6 There were exceptional circumstances which was ignored.
1.7 The Authority committed jurisdictional error.
Ground 2
The Authority has failed to give realistic consideration regarding the Applicant's claim of the Applicant's son fleeing to France.
Particulars
(a) The Applicant's son fled to France owing to fear of harm from the authorities.
(b) The Authority failed to give realistic consideration to the claims.
(c) The link between the son's claim and the Applicant's claim has not been sufficiently considered.
(d) The Authority fell into error when it asked itself the correct question or failed to address an integer of claim I claim.
(e) The Authority committed thereby jurisdictional error.
Ground 3
The Authority fell into error by failing to assess the actual link between the Applicant's claim that Army (SLA) has taken the Applicant's land and retain possession of the land. The Authority's consideration of the Applicant's claims thereby resulted in jurisdictional error.
4. Particulars
3.1 The Authority ignored the claims regarding the continued holding of the Applicant's land.
3.2 The Authority consideration is illogical I irrational were the Applicant to demand the return of his land and whether the Applicant was at risk because of the link to his land.
3.3 The Authority failed to consider whether the Applicant was at risk because of the link to his land.
3.4 The Authority committed jurisdictional error.
[..]
Ground 5
The Authority committed jurisdictional error when it applied the wrong test and I or failed to address an integer I claim regarding the detention claim upon return to Sri Lanka.
5. Particulars
(a) The Authority found that the Applicant would be detained for illegal departure.
(b) The Authority addressed whether there would be risk to the Applicant owing to the SLA taking his land;
(c) The Authority failed to address together with other activities of the Applicant the Applicant would be risk of harm for this is reason. This claim has not been addressed.
(d) The Authority failed to address whether the Applicant would be at risk owing to the role of SLA in taking the land and whether it would heighten the risk of harm (convention and I or complementary protection) upon return and whether he would be interrogated and whether it would make a target of harm.
(e) The Authority fell into error in ignoring the activities in Australia.
(f) The Authority fell into error when it asked itself the correct question or failed to address an integer of claim I claim.
(g) The Authority committed thereby jurisdictional error.
Ground 6
The Authority fell into jurisdictional error in failing to give consideration to the Applicant’s claims regarding the Applicant’s ability to subsist upon return from Australia. Alternatively, the Authority misconstrued and/or applied wrong test under s.5J of the Act and/or s.91R of the Act.
Particulars
6.1 The Authority did not give consideration to the Applicant's ability to return to any occupation or his former occupation to subsist in Sri Lanka as he would be denied rights to subsistence in the circumstances that the Applicant who was a farmer had his land taken away by SLA.
6.2 The Authority committed jurisdictional error.”
Ground 1
Ground 1 asserts that documents given to the Authority by the applicant’s migration agent concerning the applicant’s son having fled to France were construed too narrowly by the Authority in considering whether “exceptional circumstances” existed. Section 477DD of the Act provides relevantly that the Authority must not consider any new information unless the Authority is satisfied that there are exceptional circumstances to justify considering the new information.
The documents provided to the Authority were not translated. In relation to the two untranslated documents, the Authority noted that the first document appeared to be a card issued in the name of the applicant’s eldest son and showed a card number, date and photograph. The Authority noted that the second document appeared to be an identification document issued in the name of the applicant’s eldest son containing a photograph, details of address, citizenship, parents’ names and various dates.
The Authority found that “In their untranslated state the documents do not assist in determining whether there are any protection claims by the son, they only appear to confirm that he is in France. I am not satisfied that there are exceptional circumstances that justify considering the information.”
Exceptional circumstances will be those which are “unusual or out of the ordinary course”, in the context of the “fast track” review scheme: see BVZJ 6 v Minister for Immigration and Border Protection [2017] FCA 958 at [38] - [43] per White J.
There was no general duty on the Authority to obtain translated copies of documents or accept untranslated copies of documents. The applicant had been advised that any documents he provided to the Delegate in a language other than English should be accompanied by a certified English translation.
In the circumstances, the Authority’s finding that there were not exceptional circumstances to justify considering the information that was both untranslated and appeared to relate only to the identity of the son, was open to it for the reasons it gave.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Authority failed to give “realistic consideration” regarding the applicant’s claim of his son fleeing to France.
The Authority’s decision record notes the applicant’s claim that CID officers threatened to harm his son, causing his son to flee to France. The Authority also noted that the applicant said that the only problems he encountered with the Sri Lankan Authorities were in relation to the SLA’s occupation of his land.
The Authority noted that in his 2013 written statement, the applicant stated that his eldest son was threatened with harm by the CID, causing his son to travel by plane to France soon after the applicant left Sri Lanka. The Authority then noted that at his February 2016 TPV interview, the applicant said his eldest son went missing shortly after he left Sri Lanka in 2012 and that it was not until after he spoke to his son in 2015 that he found out he was in France.
The Authority then found that due to “changes, contrasts and inconsistencies” in the applicant’s evidence, viewed cumulatively, the applicant was not a credible witness. The Authority referred to findings made by it that the applicant had exaggerated some claims and fabricated others.
However, the Authority was prepared to accept that the applicant’s eldest son was in France but did not accept that the applicant’s son left Sri Lanka due to the CID looking for the applicant.
In the circumstances, it is clear from the Authority’s decision record that it understood the claims made by the applicant in relation to his son and gave proper consideration to those claims. Essentially the Authority’s finding had the effect that it rejected any claim by the applicant to fear harm because of the conduct of his son. Ultimately, the Authority’s finding that it did not accept that the applicant’s son left Sri Lanka due to the CID looking for the applicant was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 asserts that the Authority erred in failing to assess the link between the applicant’s claim that the SLA had taken his land and retained possession of the land. The applicant submits that the Authority’s consideration was limited to its finding that the applicant could seek redress via the courts.
The Authority found that part of the applicant’s land was seized and remains held by the SLA. The Authority did not accept that the applicant had approached the SLA for the return of his land. However, the Authority accepted that the applicant may seek his land back from the SLA should he return to Sri Lanka. The Authority referred in detail to Department of Foreign Affairs and Trade reports and other country information that suggested that various actions were commenced in the Sri Lankan Supreme Court and Court of Appeal in relation to land seizures.
The Authority found that the fact that the Sri Lankan government was returning some land held by the military and the availability of legal avenues to challenge seized land, the chance that the applicant would experience harm for asking for his land back now or in the reasonably foreseeable future was remote. Both findings were open to the Authority on the evidence and material before it and for the reasons it gave.
The applicant’s assertions in Ground 3 mischaracterise the Authority’s findings.
Accordingly Ground 3 is not made out.
Ground 5
Ground 5 asserts that the Authority failed to consider whether the applicant would be at risk of harm upon return by reason of his detention for illegal departure from Sri Lanka and return as a failed asylum seeker; and that his risk of harm may be heightened due to the role of the SLA in taking his land.
The Authority’s decision record makes clear that it considered whether the applicant was at heightened risk due to his profile. Based on country information, the Authority accepted that a failed asylum seeker with actual or perceived links to the LTTE may be at risk of harm. However, the Authority found that the applicant had no actual or perceived links to the LTTE and was otherwise not of interest to authorities in Sri Lanka at the time he left. Based on those findings the Authority concluded that the applicant would not be at risk of adverse attention from the current Sri Lankan authorities when scrutinised on arrival in Sri Lanka.
A fair reading of the Authority’s decision record makes clear that the Authority considered in some detail whether the applicant would be at risk of harm as an illegal departee and failed asylum seeker in the context of having some of his land taken by the SLA. Again, the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 5 is not made out.
Ground 6
Ground 6 asserts that the Authority failed to consider the applicant’s ability to subsist upon return from Australia and did not give consideration to his ability to return to any occupation as he would be denied rights as a farmer who had his land taken away by the SLA.
However, the Authority found that despite the SLA seizing part of the applicant’s land, the applicant had been able to support himself and his family by working as a farmer and labourer until he left Sri Lanka. The Authority also referred to country information that indicated that there have been significant positive developments for Tamils in the country’s politics and the situation has generally improved.
Ground 6 also asserts that the applicant had mental health issues and the Authority failed to give any consideration to the ability of the applicant “to enter into meaningful employment”. However, a fair reading of the Authority’s decision record and the applicant’s migration agent’s submissions do not disclose such a claim. I accept the submission of the first respondent that the migration agent’s submission in relation to the mental health issues of the applicant were part of a submission seeking to explain concerns the Authority expressed with regard to the applicant’s evidence.
Moreover, the mental health issues were not supported by any medical evidence or otherwise advanced before the Authority as part of his claims.
However, the Authority noted that in assessing the applicant’s evidence, the Authority had taken into account “difficulties of recall over time, the scope for misunderstanding in interpreted material, cross-cultural communication issues and problems people who have lived through trauma may experience in presenting their story in a cohesive narrative.” The Authority went on to state that nevertheless, having considered the applicant’s written statement and his evidence, the Authority had serious concerns about the credibility of the applicant and the truthfulness of his evidence.
Again, the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 6 is not made out.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support, including post hearing submissions. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 10 May 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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Statutory Construction
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