Dco17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1020
•13 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DCO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1020
File number(s): SYG 2188 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 13 August 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority’s review miscarried because the Authority failed to consider an integer of the applicant’s claims or because the Authority made findings lacking a logical basis or because the Authority failed to comply with s 473DD or s 473DC of the Migration Act 1958 (Cth) considered – no jurisdictional error Legislation: Migration Act 1958 (Cth), ss 5AA, 46A, 473DC, 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007
BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683
BXT17 v Minister for Home Affairs [2021] FCAFC 9
CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477
DTP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 56
DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 95 ALJR 54
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
1 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Number of paragraphs: 82 Date of last submission/s: 27 May 2021 Date of hearing: 13 May 2021 Place: Sydney Solicitor for the Applicant: Mr D Taylor of Sydney West Legal and Migration Counsel for the Respondents: Mr B D Kaplan Solicitor for the Respondents: Minter Ellison ORDERS
SYG 2188 of 2017 BETWEEN: DCO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
13 AUGUST 2021
THE COURT ORDERS THAT:
1.The further amended application the subject of leave granted on 13 May 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 June 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from initial submissions filed on behalf of the Minister on 29 April 2021.
The applicant is a citizen of Sri Lanka who entered Australia as an “unauthorised maritime arrival”, as that phrase is defined in s 5AA of the Migration Act 1958 (Cth) (Migration Act), on 18 October 2012.[1]
[1] Court Book (CB) 123
Following the exercise by the Minister of his power in s 46A(2) of the Migration Act to permit the applicant to apply for a protection visa,[2] the applicant made an application for a Safe Haven Enterprise Visa (SHEV) on or about 19 May 2016.[3] In support of that application, the applicant made a statement dated 15 April 2016 in which he set out his claims for protection.[4] Those claims included that the applicant feared being harmed at the hands of the Sri Lankan Army (SLA) and intelligence units for reason of being suspected of being associated with the Liberation Tigers of Tamil Eelam (LTTE).[5]
[2] CB 14-18
[3] CB 27-77
[4] CB 72-77
[5] CB 75-76 [22]-[26]
The delegate refused the grant of a visa in a decision made on 2 December 2016.[6]
[6] CB 123-134
On 7 December 2016, the Minister’s decision was referred to the Authority for review under Part 7AA of the Migration Act.[7]
[7] CB 140-141
The applicant gave to the Authority submissions and new information on 28 December 2016.[8] The applicant advanced some new claims for protection, including that he was active on social media, expressing pro-LTTE/Tamil political opinions and criticising the Sri Lankan government.[9] In support of that claim, the applicant provided to the Authority screenshots of four Facebook posts, only one of which was in English.[10]
[8] CB 159-166
[9] CB 161-162
[10] CB 165-166
On 23 June 2017, the Authority affirmed the delegate’s decision.[11] Those of the Authority’s findings that are relevant to the grounds of review will be discussed below.
[11] CB 174-192
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 12 July 2017. The application has been amended several times since then. It was originally docketed to former Judge Barnes but was subsequently transferred to my docket. On 29 July 2020 I granted the applicant leave to rely upon an amended application filed on 22 July 2020. I also granted leave for the applicant to rely on certain affidavit evidence.
At the trial of this matter on 13 May 2021, I granted the applicant leave to rely upon a further amended application and additional evidence. The further amended application was attached to an affidavit by the applicant’s solicitor filed on 2 May 2021 and contains three grounds:
The Authority’s task to review the decision under review miscarried because:
1.The Authority [at 18] failed to consider an integer of the applicant’s claims, that the kidnapping and enforced disappearance of the applicant’s cousin was connected to the membership of the banned youth organization;
Particulars:
i.The Authority failed to make a finding on the applicant’s claim that the reason why his cousin was abducted was because of membership of the banned youth group.
ii.The Authority’s findings that the applicant’s claim that another member of the youth group had been abducted and two others shot was speculation, failed to intellectually engage with his evidence.
iii.The Authority did not consider the claim that the persons who assailed him and his family on 9th May 2008 were Sri Lankan Army i.e. Sri Lankan authorities
iv.The Authority did not consider the claim that the persons who abducted his cousin and came to his house thereafter were CID, i.e. Sri Lankan authorities
v.The Authority did not consider the information within the ICRC document that his family alleged that his cousin was arrested and that hence the abductors were from the Sri Lankan authorities.
vi.The Authority did not consider the applicant’s claim that the person who assaulted and seriously injured his father was thought to be possibly army from the same group who came and assailed the family on 9th May 2008.
2.The findings of the Authority that the persons who assailed the family on 9th May 2008 were unknown persons and that the motivation was an opportunistic criminal act unrelated to the applicant or his cousin, lacked a logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40].
Particulars
i.The applicant repeats sub-paragraphs iii. and vi. of ground 1 above.
473DD and 473DC Ground.
3.The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by a jurisdictional error of the type identified in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, in that the Authority [at 5] failed to comply with s 473DD of the Act
Particulars
a. The Authority [at 5] found that the information was new information and thus s473DD applied, but refused to consider the evidence on the basis that s 473DD(a) was not made out in the circumstances;
b. The Authority failed to consider whether s 473DD(b)(ii) was satisfied and hence whether this could affect the consideration of whether … s 473DD(a) was satisfied
c. The Authority failed to apply s.473DD (b)(ii) in that it misunderstood the date of publishing on the applicant’s facebook wall of his new information, and or additionally failed to conduct an obvious enquiry about a critical fact by clicking on the hypertext link provided to his facebook account.
d. In failing to click on the active personal hypertext link the Authority failed to recognise the link itself as a piece of “new information”, in that its functionality and the private or public status of the posts, as at the date of review, was evidence which could only be observed by clicking on the link.
e. The error was material in that the facebook posts contained material which it was claimed in submissions [CB161-163] would give rise to adverse attention by the authorities upon return through accessing or monitoring his facebook profile:
We include screenshots from [the applicant’s] Facebook page which show [the applicant] sharing links to articles which would be viewed as either critical of the government or as pro-Tamil separatism. [The applicant] is active on Facebook and his profile is accessible to the public as it is not set to private. His profile can be accessed using this link: [redacted]
The screen shots show:
1. SBS 2015 Report on the use of torture by the Sri Lankan government, specifically the CID, shared on [the applicant’s] Facebook wall.
2. A report on the meeting between buddhist monk [redacted] and ministers of parliament in Sri Lanka. [The monk] has been know[n] to express anti-Tamil sentiments and the article is critical of the fact that only Sinhalese news agencies were allowed to cover the meeting. The article expresses lack of government accountability and the systematic exclusion of Tamils in general.
3. News report on the SLA having previously set up a camp in a Tamil property in [redacted] but are refusing to fully vacate the area and return the property to its Tamil owners even though the camp is no longer in use.
4. A post that encourages people to choose the LTTE flag over the Sri Lankan flag as their flag.
s.473DC
f.In the alternative to the above the decision was affected by jurisdictional error through the unreasonable failure to consider exercising the power under s.473DC to get new information by clicking on the hypertext link provided in the submissions linking to the applicant’s public facebook profile.
In addition to the court book filed on 12 October 2017, I have before me the following evidence:
(a)the affidavit of Joshua Chelliah made on 27 July 2020, to which is annexed a transcript of the applicant’s interview with the delegate;
(b)affidavits of the applicant’s solicitor made on 20 July 2020 and 22 July 2020, to which are annexed a bundle of social media posts said to bear upon the third ground; and
(c)a further affidavit by the applicant’s solicitor made on 13 May 2021 annexing a social media post depicting a person holding a placard.
The solicitor for the applicant filed written submissions on 22 July 2020, 13 May 2021 and 27 May 2021. Written submissions on behalf of the Minister were filed on 29 April 2021 and 26 May 2021.
Both the applicant and the Minister also made extensive oral submissions through their representatives at the trial on 13 May 2021. The evidence and submissions filed after the hearing was by leave, directed to the third ground.
CONSIDERATION
Ground 1 – did the Authority fail to consider an integer of the applicant’s claims?
I prefer the Minister’s submissions concerning the first ground.
By this ground, the applicant variously asserts that the Authority failed to consider the following integers of his claims:
(a)the reason why his cousin was abducted was because of membership of a banned youth group;
(b)another member of the youth group had been abducted and two others shot;
(c)the persons who assailed him and his family on 9 May 2008 were SLA (ie Sri Lankan authorities);
(d)the persons who abducted his cousin and came to his house thereafter were the Sri Lankan authorities;
(e)the information within the International Committee of the Red Cross (ICRC) document that his family alleged that his cousin was arrested and that hence the abductors were from the Sri Lankan authorities; and
(f)the person who assaulted and seriously injured his father was thought to be possibly SLA from the same group who came and assailed the family on 9 May 2008.
The relevant reasoning of the Authority is set out at [12]-[21] of its statement of reasons.
The Authority referred to,[12] and accepted[13] the applicant’s claim that his cousin had been abducted by unknown men in June 2008. It had earlier found at [14][14] that the applicant’s cousin was a member of a Tamil youth association and had been beaten and harassed by the Sri Lankan authorities on suspicion of being associated with the LTTE. The Authority’s acceptance of the claim about the applicant’s cousin’s abduction occurred in a context where it had found that, during the war in Sri Lanka, “disappearances and ‘white van’ abductions of suspected LTTE supporters … were perpetrated by the state”.[15] Read with that sentence, the Authority’s conclusion, in the next sentence, about the applicant’s claim cannot sensibly be understood as a finding other than that he was abducted because of a perception that he was associated with the LTTE.
[12] CB 177 [8]
[13] CB 180 [17]
[14] CB 179
[15] CB 180 [17] (penultimate sentence)
This claim was addressed at [21][16] and rejected. The Authority there found that there was “no other information before [it] to indicate that the other members of the youth association were harmed because of their involvement in the association and [it] consider[ed] the applicant’s evidence about what happened to each of them speculation”.
[16] CB 181
The applicant recounts the alleged incident on 9 May 2008 at [11][17] of his statement accompanying his visa application. There, the applicant said that on 9 May 2008, “[a] van suddenly arrived outside [his] house with 5 people in civilian clothing”. No reference was made to the SLA.
[17] at CB 73
In the transcript of the interview between the applicant and the delegate, the following appears at pages 21-23 (errors in original, emphasis added):
Case officer: Now, you said there was an incident that happened at your home, on the 9th of May, of 2008. Can you tell me about that?
Interpreter: After that incident, which happened in the camp, that day 9th we were eating from home, at home. My parents, myself, and my cousin while we were eating at home, around five people came in a van, and stopped in front of our house. During that period, there was no electricity, we got light from a generator at the time. One out of that five, one came and knocked at the door, when he knocked at the door, it was my mum who opened the door. They show to my mum, a photograph of myself and my cousin, and they asked for my mum where are these people. Then mum answered saying that they have been eating inside. They all of a sudden, they, put our sisters into a room and locked the room, and then took us, my cousin, myself and my parents out. One asked us, asked me and my cousin to kneel down, and he was holding a gun. Then after, they beat me, my dad very much. In our village, there was no, there was power cut, only in our house there was a generator, and as a result, there was light in our house, late, but around surrounding the area all were in dark. One of that five people went to the generator and pulled that wire out so that there was no power. Out of that five people, one was, they were speaking in Sinhala, and one was having a mask, he has closed his mouth and, [clarifies with Applicant in Tamil] he has been tying with a cloth, tying his mouth with a cloth. He’s the one who translated into Tamil, when these people were speaking in Sinhala, he was translating into us in Tamil. Then, the four people got together and spoke to themselves, and asked my father to take the generator, and keep it into the van. You know, in our village, the houses are joining, adjoining houses. People from the adjoining houses, came out and were watching. The generator was very heavy, when they asked us to take it and keep it in the van, it was very difficult to lift that. Then, he beat, the army beat us, beat my father and another person, and put the generator onto his head, onto the head of my father, and he was asked to take it and keep it in the van. When my father was carrying that generator, his cloth, his lungi, or sarong, started to fall down. By the time my mum went to help him, and then, my mum also was beaten by the army. Then I ran to my mum to help her, by the time, they hit me and pushed me, and I fell down. There is a scar, it’s still I have, on my back. After the generator was placed into the van, the one who was with the mask and who was speaking in Tamil, told me that they would come back. And saying so, they left the place. The next-door neighbours came running and asked from us what happened.
Case officer: So, did they say, they said they were after you and your cousin, did they say why they were after you?
Interpreter: No, they did not say anything about me and my cousin. But already, one member got abducted, they had already abducted a member.
…
Case officer: Okay, thank you for that. So, did you know these other men? Had you seen them before?
Interpreter: No.
In its reasons for decision, the Authority found at [15][18] that on 9 May 2008, “some unknown people one of whom was masked and acted as interpreter, came to the applicant’s home and took their generator”. After recounting the applicant’s evidence in his interview with the delegate, the Authority accepted that “unknown persons came to [his] house and seized the generator” and that the applicant’s parents and the applicant himself were beaten. Nonetheless, the Authority was “not satisfied that the target of the men in the incident on 9 May 2008 was the applicant and his cousin”. The Authority considered that, given the applicant’s evidence that his was the only house in the village that had electricity when the power went off, “the incident was simply an opportunistic, criminal act of theft which was unrelated to the applicant and his cousin, and their involvement with the temple association and failure to attend at the SLA camp for cleaning”.
[18] CB 179
With that context in mind, I reject the assertion of error for the following reasons.
First, having regard to the applicant’s accounts of the events of 9 May 2008 in his statement and in his interview, the better interpretation of the interpreter’s use of the word “army” was that it was used synonymously with “mob” or “gang”. That interpretation is consistent with the applicant’s claim that the men were “in civilian clothing” and the absence of any reference to the “SLA” at [11]-[12][19] of his statement or to the “army” in the introduction to the claim in his oral evidence. The applicant did not, for example, say that “around five people from the army came in a van, and stopped in front of our house”. Indeed, it would be an odd construction of the applicant’s evidence to treat the word “army” as a reference to the identity of the agents of harm where their identity was not canvassed anywhere in the applicant’s evidence, particularly at the commencement of his oral account of the events of 9 May 2008.
[19] CB 73
Secondly, even if the word “army” is read as a reference to the SLA, the Authority did not fail to consider the substance of the applicant’s claim. While the Authority referred to the alleged persecutors as “unknown people” at [15],[20] it had regard to the substance of the evidence and made findings in the applicant’s favour.
[20] CB 179
As to the motivations of the people who attacked the applicant and his family, the Authority was not satisfied that their actions were related to him and his cousin and their involvement with the temple association and “failure to attend at the SLA camp for cleaning”, given that theirs was the only house in the village “which still had light when the power went off”. In the light of those findings, I accept that the identity of the criminals was not of any relevant consequence for the Authority. The applicant gave no evidence that he was targeted by the SLA on 9 May 2008, let alone because of his involvement with the temple association or failure to attend the camp for cleaning. That the agents of harm took the generator strongly suggests that their motivations were, as the Authority found, opportunistic.
Thirdly, even if the findings at [15][21] as to the motivations of the perpetrators of harm could have been affected by a finding that the perpetrators of the harm were members of the SLA, the outcome of the review could not realistically have been different. That is because the Authority had already found at [14][22] that the applicant was viewed with suspicion by the Sri Lankan authorities on account of his membership of the youth association; he was photographed and beaten in May 2008 for failing to attend a new camp; and the youth association was subsequently banned by the SLA. In the face of those findings, it is difficult to see how a finding to the effect that the SLA attacked the applicant on another occasion in May 2008 could have affected the Authority’s determination of his LTTE/Tamil/imputed political opinion claims when what drove it to reject those claims were:[23]
(a)the absence of any evidence to suggest that, at the time that he left Sri Lanka, he was a person of interest to the authorities;[24] and
(b)the country information which showed that conditions in Sri Lanka had improved since his departure for Australia.[25]
[21] CB 179
[22] CB 179
[23] at CB 184 [33]
[24] see at CB 182 [24], 184 [33] final sentence
[25] at 182-184 [26]-[32], 184 [33] final sentence
I reject the first part of the applicant’s assertion that the Authority failed to consider the claim that the persons who abducted the applicant’s cousin were the Sri Lankan authorities, for the reasons given above.
I also reject contention 16(d) above. The claim about the Sri Lankan authorities looking for the applicant after his cousin had been abducted was identified at [8].[26] Detailed consideration was given to the circumstances confronting the applicant’s family members while he was living with his uncle between June 2008 and February 2012 at [18]-[20].[27] In particular, at [20],[28] the Authority found that those who had asked about the applicant’s whereabouts and assaulted his father were security forces (ie the Sri Lankan authorities).
[26] CB 177
[27] CB 180-181
[28] CB 181
The applicant further contends that the Authority failed to consider the information in the ICRC document that his family alleged that his cousin was arrested and that, therefore, his abductors were the Sri Lankan authorities.
The Minister gives two responses to this contention, which I accept.
The first is that there is no reference in the ICRC document to the identity of those who abducted the applicant’s cousin.
The second is that, in any event, as set out above, the Authority implicitly accepted that the Sri Lankan authorities had abducted the applicant’s cousin.
As to assertion 16(f), the applicant made no claim that the person who assaulted his father was from the group that had stolen his family’s generator on 9 May 2008; rather, the applicant merely claimed that those who had assaulted his father were from “the SLA and intelligence units”.[29] That claim was identified at [8][30] and dealt with at [20].[31] The Authority found that those who had beaten up the applicant’s father were from “the security forces”, which is broad enough to include the SLA and intelligence units.
Ground 2 – did the Authority make a finding that lacked a logical basis and was material to the outcome?
[29] CB 74 [17]
[30] CB 177
[31] CB 181
In my view, the second ground fails for similar reasons as those given in relation to the first ground. The applicant notes that the Authority accepted that his father was harmed by “unknown people”. This is said to be illogical.
The issue concerns a factual event on 9 May 2008. There is an issue of interpretation at the hearing before the delegate whether the word “army” mean “gang” or “mob”. The SLA had not been mentioned by the applicant in this context initially. Neither is there any reference to the “army” in the applicant’s written claims at [11]-[12].[32] Neither was any claim made that the attack was due to the applicant’s membership in the youth association.
[32] CB 73
In any event, any error by the Authority is immaterial because it accepted the applicant’s youth group claims. The applicant’s claims were ultimately rejected because of the Authority’s view that he was not of interest to the Sri Lankan authorities at the time of the Authority decision. Further, the Authority’s reasoning at [18] must be read with its reasoning at [17]. The Authority accepted that the “unknown persons” he referred to were linked in some way or another to the Sri Lankan state. At [14] and [17] the Authority also accepted that the applicant’s cousin had been abducted because of his suspected association with the LTTE and his ethnicity.
Further, at [20] the Authority accepted that the applicant’s father was assaulted by the Sri Lankan security forces.
In my view, having regard to the above and my reasons in relation to the first ground, I am not persuaded that the Authority’s reasoning was in any way irrational.
Ground 3 - did the Authority err in considering the receipt of new information or due to its failure to get new information?
Applicant’s contentions
The delegate’s decision was made on 2 December 2016.
On 12 December 2016 the applicant reposted onto his Facebook wall a 2015 SBS report on the use of torture by the Sri Lankan authorities.[33] On 20 December 2016 the applicant posted onto his Facebook wall about the SLA refusing to vacate Tamil land in a named location. Other posts were made by the applicant in the period after 2 December 2016 and before the Authority decision on 23 June 2017, some of which are now defunct links.
[33] CB 161, 165 and the affidavit of the applicant’s solicitor made on 20 July 2020 at [4]
The applicant provided an active hypertext link to his Facebook account,[34] descriptions of some of the anti-government political content he had posted to his Facebook wall (which, it is established by the evidence, was posted after the delegate’s decision), and what are admittedly very low quality screenshots said to be reproductions of some of those articles reproduced on his Facebook wall.
[34] CB 161
In rejecting the new information, the Authority is said to have incorrectly assumed that the posts were posted in 2015 because the underlying SBS report was posted in 2015. The applicant asserts that the Authority did not access the link to the applicant’s Facebook account, which was submitted to the Authority, and indicated to be publicly accessible.[35]
[35] CB 161
The applicant submits that if the Authority had clicked onto the active hypertext link provided for that purpose it would have acted on the correct information which was that the Facebook posts post-dated the delegate’s decision rather than pre-dating the decision.
The Authority is said to have acted on a misunderstanding of the evidence, assuming that since the SBS report was said to have initially been aired in 2015, this must be the same date that it was republished to the applicant’s Facebook wall. The applicant submits that such an assumption was erroneous. This error is said to infect the decision of the Authority concerning whether to consider the new information, resulting in jurisdictional error.
The applicant contends that the hypertext link was not provided as a link to non-personal country information, but was evidence itself. The Minister’s Department has a Facebook account with which it regularly checks visa applicants’ Facebook accounts online as public users. The applicant’s Facebook account was readily available evidence submitted to the Minister’s Department in the form of the hypertext link and the description. All it took was a simple click on a mouse to open the page and get the correct date of the republishing by the applicant onto his Facebook wall of this political content.
The applicant submits that the Authority’s decision is therefore affected by a failure to make an obvious inquiry about a critical fact sufficient to give rise to jurisdictional error, being a constructive failure to exercise jurisdiction.[36]
[36] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]
The ABC report (apparently linked by SBS Tamil) from 2015, reposted by the applicant on 12 December 2016, some ten days after the delegate’s interview, contained disturbing material about torture by the Sri Lankan authorities of Tamil persons. It was “highly controversial”.
The applicant submits that it was clearly a claim which post-dated the delegate’s decision. As the Authority acted on the assumption that the post pre-dated the delegate’s 2 December 2016 decision, because the video itself was first produced in 2015, the decision is said to have been based on a misunderstanding of a jurisdictional fact. The Authority refused to consider the new information because there was no evidence as to why it had not been provided to the delegate. However the post did not exist prior to the delegate’s decision and so it could not have been provided to the delegate. The decision is therefore said to have been affected by a significant error, and if the error had not occurred, the Authority would have considered the content of the identified posts, as well as the subsequent anti-government political postings, until the decision on 23 June 2017. The decision could therefore have been different if this information was taken into account.
The applicant submits that it is also notable that there is apparently no political content predating the delegate’s decision.
The Minister concedes that the Authority’s assumption that the post was shared in 2015 was an error, however contends (paraphrasing):
(a)that the error of the Authority was caused by the applicant’s migration agent noting only the date of the “SBS 2015 Report”;[37] and
(b)that the error of the Authority was caused by the applicant’s migration agent referring to s 473DD(b)(ii) rather than s 473DD(b)(i).
[37] CB 161
The applicant replies that it is irrelevant why the error occurred, what matters rather is the materiality of the error. In any case it is not conceded that the error was the fault of the applicant and/or the drafting of the submission. Rather the error is said to be as a result of the Authority jumping to the conclusion that the year of the SBS Report was the year when it was shared by the applicant, when it was not.
The Minister further states that the Authority was right for the wrong reason that the applicant was posting on Facebook prior to the delegate’s decision of 2 December 2016, in the sense that the applicant had posted an article which was incompletely reproduced due to being cut between pages 59 and 60 of the Facebook “print to pdf” annexed to the affidavit of the applicant’s solicitor made on 22 July 2020.
The Minister indicates that somehow the post of 3 December 2015 sharing a post from Settlement Services International, SSI[38], shows a Christian minister holding a placard:
[Page 59] WE STAND AGAINST … [Page 60] VIOLENCE #16 DAYS
[38] “SSI is a community organisation and social business that supports newcomers and other Australians to achieve their full potential. We work with all people who have experienced vulnerability, including refugees, people seeking asylum and culturally and linguistically diverse (CALD) communities, to build capacity and enable them to overcome inequality”
The full post published on the applicant’s Facebook account states:
WE STAND AGAINST GENDER VIOLENCE #16 DAYS
The full Facebook post referred to by the Minister in argument referring to pages 59-60 of the 22 July 2020 affidavit, was reproduced in evidence.[39]
[39] See annexure to the affidavit of the applicant’s solicitor made on 13 May 2021
Unfortunately due to an artefact of the Microsoft “print to pdf” function, the photograph has been split into two parts with the result that the word “Gender” had not been reproduced when the image was split between pages 59-60 of the print output annexed to the affidavit of 22 July 2020.
I accept that the Facebook post from Settlement Services International shared on 3 December 2015 shows a Christian minister, standing with a placard against gender violence, has apparently nothing to do with a pro LTTE or Tamil separatist, or anti-government profile.
The applicant’s posts from 12 December 2016 are said to be of such a character having a pro‑LTTE or Tamil separatist, or anti-government profile.
The applicant contends that as a result of the error, the Authority did not consider the submission made on behalf of the applicant that he would be at future risk of harm as a result of his anti-government, pro-LTTE or Tamil separatist, or anti-government profile.[40]
[40] at CB 162
Finally, the Minister submitted that the applicant only submitted information about the four referenced articles and not their content, or the content of other Facebook posts shared by him.
The applicant responds that even if that were so, the Authority had a duty to consider whether s 473DD(b)(i) and/or (ii) were satisfied in making a finding as to whether there were exceptional circumstances under s 473DD(a).
The applicant further contends that the submission was clearly an invitation to the Authority to click on the link to check that the link was in fact live and publicly accessible. Whether the link worked for a public user is said to have been the test of whether the information was “credible personal information”, being his publicly accessible Facebook wall.
The applicant contends that the Authority made an error which was material and resulted in the failure to consider a claim of the applicant. The outcome of the Review could have been different had the new information been considered. The decision is said to have been affected by jurisdictional error.
Contrary to the submissions of the Minister, it is said to be irrelevant what the cause of the error was, whether that was caused by a reasonable misunderstanding or otherwise. This Court regularly overturns decisions of a decision making authority on the basis that unbeknown to the decision maker, some intervening event occurred which vitiated the exercise of jurisdiction.
Resolution
While I accept that the Authority made a factual error in relation to the timing of the sharing of the Facebook post in question, I do not accept that the error goes to jurisdiction, either in relation to s 473DD or s 473DC.
In its reasons for decision, the Authority found as follows:[41]
The submission also included the new claims that the applicant has been active on social media expressing pro-LTTE/Tamil political opinions and criticising the Sri Lankan government, and that since his departure in 2012, his family has received subsequent threatening phone calls. Neither of these claims was raised before the delegate and I am satisfied they are new information
The submission included screen-shots of four Facebook posts by the applicant and states that his profile is accessible to the public as it is not set to private. A link to his Facebook profile was included. With the exception of the first post which the submission states dates from 2015, no information was provided about when the other material was posted. The screen-shots are otherwise of relatively poor quality and the commentary is in Tamil; no direct translations have been provided although the submission sets out a summary of each of the posts. The submission states that the IAA should consider this new information because it is credible personal information that was not previously known at the time of the delegate’s decision and had it been known, would have affected the delegate’s assessment of whether there is a real chance that the applicant will be of interest to the Sri Lankan authorities if returned. Even if I could be satisfied that the remaining three Facebook posts were dated after the delegate’s decision, the fact that the first of the posts dates from 2015 indicates that the applicant has been active on social media since that time. It was therefore open to the applicant to raise this claim either in his written statement dated 15 April 2016 or in his SHEV interview on 4 November 2016. He did not. As noted above, the applicant has been assisted by a registered migration agent who would, in my view, have been aware of the importance of the applicant raising all of his claims with the delegate and the limitations on the IAA’s ability to consider new information. In the circumstances, I am not satisfied that exceptional circumstances exist to justify considering this new claim.
[41] CB 175-176 [4]-[5]
There are three responses to this ground.
First, in exercising its powers under Part 7AA of the Migration Act, the Authority is not under an obligation to make inquiries. The observations made in SZIAI at [25] have no direct application to reviews conducted by the Authority.[42] At least for this reason, the affidavit made by the applicant’s solicitor on 22 July 2020, which appears to go to the results of inquiries had they been carried out, is said by the Minister to be inadmissible in these proceedings. I nevertheless received it as evidence of what the Authority might have found.
[42] DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at 88 [72] per Collier, Middleton and Rangiah JJ; BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683 at [109] per Wigney J; DTP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 56 at [60] per Wigney J
The Minister concedes that in Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16,[43] the High Court upheld an argument advanced by CHK16 that the Authority unreasonably failed to exercise the power in s 473DC to get new information by inviting written submissions from him in circumstances where the submissions that had been provided concerned a different person and none of the personal information in those submissions related to CHK16. Having observed that the Practice Direction indicated that “submissions that were too long would be returned with an opportunity given to provide new information”, the High Court observed, at 61 [28], that those circumstances “reflect[ed] the observation” at [20] of SZIAI that the failure by an administrative decision maker “to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority” may expose legal unreasonableness. It went on to observe, at 62 [31], that, in the circumstances of that case, no reasonable decision maker would have decided the review “without making further inquiry”.
[43] (2020) 95 ALJR 54
The High Court should not be understood to be suggesting that the Authority is under a duty to inquire, or to be overruling the authorities concerning a lack of such a duty. Rather, the point is that the Authority can, in some cases, fall into jurisdictional error by unreasonably failing to exercise the power in s 473DC to get new information. That is an orthodox proposition.[44]
[44] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 227 [21] per Gageler, Keane and Nettle JJ
Secondly, even if the error is put as an unreasonable failure by the Authority to get new information under s 473DC(1), the Authority in my view had a reasonable basis for not exercising that power. It was for the applicant to give new information for the Authority to consider. The applicant could have, but failed to, provide to the Authority a legible copy of his entire Facebook history since his arrival in Australia. The applicant made no submission about the dates on which he created the four Facebook posts, screenshots of which appear in the written submissions to the Authority. No such steps having been taken by the applicant, and given that the SBS article was published in 2015, it was not an unreasonable inference for the Authority to draw from the submissions that the first post, which shared the SBS article, was created in 2015. I accept that the reasonableness of the non-exercise of the power in s 473DC(1) falls to be determined not on the contents of the solicitor’s affidavit, but on the evidence before the Authority.
Thirdly, if it is assumed that the Authority came under a duty to make inquiries (ie to access the applicant’s Facebook page, assuming it was publicly accessible), on the applicant’s case, the Authority would have discovered a critical fact that supplied a link to the outcome of the review. Therefore such a failure to conduct the inquiry (accessing the Facebook page) is said to amount to a jurisdictional error in the decision. The critical fact is said to be that the post which shared the SBS article was created after the delegate’s decision, albeit that the article pre-dated the decision.
The information in the applicant’s Facebook history from the date of his arrival in Australia to the date of the delegate’s decision (2 December 2016) relevantly establishes that the SBS article, though published in 2015, was shared in a post created by the applicant on a date after the delegate’s decision.
Assuming this is correct, the Authority was wrong to find that the post which shared the SBS article “date[d] from 2015”. However, that error is not material. Had the Authority accessed the applicant’s Facebook page, it would not, in my view, have reached a different conclusion on the performance of its procedural duty in s 473DD (and, it follows, the Authority’s decision on review could not realistically have been different). The new information which the applicant sought to have the Authority consider was the new claim that he had been active on social media expressing pro-LTTE/Tamil political opinions and criticising the Sri Lankan government (by sharing articles on Facebook). That information could have been, but was not, given to the delegate.[45]
[45] the applicant could have posted the SBS article in 2015 and shared it with the delegate
If that much is accepted, the Authority’s finding on the criterion in s 473DD(b)(i) could not realistically have been different. As to the criterion in s 473DD(b)(ii), it is implicit in the Authority’s acceptance that the applicant was active on social media since 2015 that it did not question the credibility of the new information (i.e. the claim).[46] Those findings then fed into the Authority’s assessment of exceptional circumstances, evident from the Authority’s use of the phrase, “[i]n the circumstances”.[47] The fact that the Authority’s findings on the criteria in s 473DD(b) can be supported on the basis of the applicant’s other Facebook posts is of no relevant consequence, as those posts (including the SBS article) were merely illustrative of his new claim that he was active on social media.
[46] CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477 at 486 [37] per Mortimer J; see also BXT17 v Minister for Home Affairs [2021] FCAFC 9 at [146] per Markovic, O’Callaghan and Anastassiou JJ.
[47] AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 at 1010 [11] per Kiefel CJ, Gageler, Keane and Gordon JJ
The Minister does not dispute that the relevant SBS article posted on the applicant's Facebook account[48] was, in fact, shared by him following the decision of the delegate. However, the Minister only makes that concession on the evidence which has now been received before the Court. Contrary to the applicant's submission, I accept the Minister’s submission that the circumstances as to why any error arose are relevant and are to be considered on the basis of the evidence that was before the decision maker.[49] I find that it was not unreasonable for the Authority, on the evidence that was before it, to come to the conclusion that the Facebook post was shared before the delegate made a decision on the applicant’s visa application. The mistake arose because of the terms of the agent’s submission and the applicant’s use of a hyperlink which, under the Authority’s current Practice Direction, would be unacceptable.
[48] CB 165
[49] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ
The applicant submits that the provision of the applicant's Facebook account via the link[50] was so that the Authority could access his profile and view posts other than those reproduced in the submissions.[51] He also submits that if the Authority had accessed his Facebook account via the link that was provided,[52] then it would have been able to ascertain that the relevant post was shared in 2016 and not 2015. I accept the Minister’s submission that the link was not provided in support of a claim that the applicant was active on Facebook; that was done by the provision of the particular Facebook posts extracted in the submissions to the Authority.[53] Nor was the link provided to have the Authority consider each and every post that the applicant may have made and whether any further potential new information satisfied s 473DD of the Migration Act and could ultimately give rise to a real chance of harm. Further, the Authority was under no duty to inquire by accessing the link and undertaking its own review of the applicant's Facebook profile in order to ascertain the date of any particular post.
[50] CB 161
[51] CB 165–166 (see [61]-[63] above)
[52] CB 161
[53] CB 161
In his submissions to the Authority, the applicant's representative relevantly argued the following as to why the Facebook posts were credible personal information that, had it been known, may have affected the consideration of his claims (s 473DD(b)(ii) of the Migration Act):[54]
We submit that given the credible reports of the Sri Lankan authorities monitoring the movements of Tamils abroad and the credible reports of those same persons being abducted, detained and tortured on return to Sri Lanka because of their pro-LTTE and anti-SLA activities abroad, that there is a real chance that [the applicant] will face serious harm if returned to Sri Lanka for his activities in Australia on social media expressing his sympathies for the Tamil people affected by the oppressive activities of the SLA.
(emphasis added)
[54] CB 162
The Minister concedes that the applicant, according to the material produced in the affidavits of the applicant’s solicitor, was not sharing expressly pro-LTTE or anti-SLA posts before the decision of the delegate. However, the material shows that the applicant was sharing content, particularly from SBS Tamil, regarding asylum seekers in Australia.[55] Further, although the post identified by the Minister in argument has now been revealed to not expressly be content that is anti-SLA, it nonetheless shows that the applicant was sharing content, like the SBS Tamil articles, which referred to people who had been affected by the Sri Lankan authorities and sought asylum. Moreover, the applicant appears to have been a follower of the Facebook page of the Tamil National Youth Organisation and was sharing their content.[56]
[55] See pages 42–43, 45 and 48 of the affidavit of the applicant’s solicitor made on 22 July 2020
[56] See page 65 of the affidavit of the applicant’s solicitor made on 22 July 2020
In those circumstances, the Authority would in my view still have come to the same conclusion, in its performance of the duty in s 473DD, that the applicant had been active on Facebook before the delegate’s decision was made and that he could have raised the crux of his claim in either his protection visa statement or interview.[57]
[57] CB 175–176 at [5]
CONCLUSION
I conclude that the applicant has failed to establish that the decision of the Authority was affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 13 August 2021
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