DDZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 157
•11 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
DDZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 157
File number(s): SYG 2918 of 2016 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 11 March 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – whether Authority ought reasonably to have contacted applicant to inform applicant that a person whom the applicant had not appointed to be his representative sent an email to the Authority stating it attached submissions and materials the email did not attach – Authority did not act unreasonably – whether Authority failed to consider integer of claim or information – not satisfied Authority so failed – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Migration Act 1958 (Cth) ss 5, 46A(1), 46A(2), 473BB, 473CB(1), 473DC, 473DD, 476
Cases cited: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Division: General Number of paragraphs: 52 Date of hearing: 9 June 2021 Place: Sydney Counsel for the Applicant: Mr G Schipp Solicitor for the Applicant: Australian Presence Legal Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: Minter Ellison ORDERS
SYG 2918 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DDZ16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
BACKGROUND AND CLAIMS FOR PROTECTION
The applicant is a citizen of Sri Lanka, and a Tamil from the Northern Province. He arrived in Australia as an unlawful maritime arrival in 2012.
On 5 September 2013 the applicant, through his lawyer, purported to lodge an application for a Protection visa.[1] Because of s 46A(1) of the Act, the purported application was not a valid application for a visa. By letter dated 30 November 2015, however, a delegate of the Minister informed the applicant that the Minister had exercised the power conferred by s 46A(2) of the Act to allow the applicant to lodge a valid application for either a Temporary Protection (subclass 785) visa, or a SHEV.[2]
[1] CB53
[2] CB137
On 22 December 2015 the applicant, through his lawyer, lodged an application for a SHEV (SHEV application).[3] There is no dispute the applicant is a “fast track applicant” within the meaning of s 5 of the Act, and that the decision the delegate later made not to grant the applicant a SHEV is a “fast track reviewable decision” within the meaning of s 473BB of the Act.
[3] CB144
The applicant stated his claims for protection in a statutory declaration that formed part of the SHEV application.[4] The applicant there claims as follows:
[4] CB187
(a)During the conflict three Sri Lankan Army (SLA) camps were located around 3 kilometres from the applicant’s home. One was a large camp, and the other two camps were smaller. The Liberation Tigers of Tamil Eelam (LTTE) often destroyed these camps, and the SLA would suspect that the applicant’s village supported the LTTE.
(b)At the end of 2008 or in early 2009, while the applicant was home with his mother and his sister, the applicant heard blasts, one of which was large. The applicant, his mother, and his sister went to their yard and laid on the ground. The applicant observed big flashes of light. The flashes and the sounds the applicant heard were coming from the direction of where the large SLA camp was located.
(c)At 5:00 am the following morning SLA officials arrived at the applicant’s village and “conducted a roundup” of all members of the village. Three or four men in uniforms came to the applicant’s house and asked the applicant and his family to report to a common area about 1 kilometre from the applicant’s house, which was around 1 kilometre from the two small SLA camps.
(d)After the applicant and his family reported to the common area, they were required to produce their identity cards, which included national ID cards, birth certificates, and a family card. A Mr T was sitting at a table with other SLA officials. After waiting for other families to be questioned and to produce documents, the applicant and his family were required to go to the tables where the SLA officials were sitting. The SLA officials told the applicant and his family the SLA had a big loss, and that this occurred with the support of the applicant and his family because they were the people who were close by. The applicant and his family told the SLA officials they did not know anything about what happened, but the SLA officials did not believe them. After being held for many hours, the applicant and his family were allowed to leave, but were told they would have to come back.
(e)After this incident the applicant noticed he was being followed. Given what the SLA officials said at the common area, the applicant suspected the persons following him were SLA officials or individuals associated with the SLA.
(f)About one month after the applicant and his family had reported to the common area, the applicant’s father received a letter requiring him to report to a Criminal Intelligence section (CID). The applicant’s father went to the location the letter identified and he returned on the same day. One month later, the applicant’s father returned to that location, but he did not return for one week. The applicant noticed there was something wrong with his father’s leg after he returned, and he was not walking properly. The applicant’s mother told him that when she asked the applicant’s father what had happened the applicant’s father shouted and told her not to ask.
(g)In early 2010 around four men dressed in “civil clothes” came to the applicant’s house. The men handcuffed the applicant, put a blindfold over his eyes, dragged him towards a vehicle, and, after being kicked, placed him into a vehicle. The applicant was taken to a location and, while blindfolded, taken into a room where he was kept blindfolded for a long time. The applicant was then taken to another room where the blindfold was removed.
(h)Later in the evening, two of the four men who had kidnapped the applicant came to the room and questioned the applicant about whether he helped the LTTE obtain information and smuggle weapons. The applicant denied any involvement with the LTTE. The two men did not believe the applicant, and they beat him to the point the applicant lost consciousness. The men returned to the room after the applicant regained consciousness, and they continued to interrogate the applicant. The men repeatedly told the applicant he had not given them the right answer, and there was no chance for the applicant “to be alive”. The men eventually put the applicant back in the van, and dropped him outside his house. The applicant’s mother went to the Human Rights Commission of Sri Lanka to report what had occurred to the applicant.
(i)In July 2012 two men on motorbikes overtook the applicant while the applicant was riding his bicycle, and stopped him. The men asked the applicant where he was going, who the applicant was going to see, and who he was going to help. After the applicant said he was going to do his job, one of the men punctured the applicant’s tyre, and the two men left. The applicant feared these two men were the same people who had kidnapped and interrogated him. The applicant told his mother of this incident, who then reported it to the Human Rights Commission of Sri Lanka.
(j)After these incidents, the applicant realised he could not stay in Sri Lanka. The applicant fears that if he returns to Sri Lanka he will suffer significant harm including arrest, interrogation, detention, torture, or death. He fears the Sri Lankan authorities, including the CID, will harm him.
The applicant submitted the following documents in support of his application for a SHEV:
(a)A letter dated 22 October 2012 purportedly from a Member of Parliament stating the applicant was “assaulted by unidentified persons who came in search his father in 2010”, and that later the applicant was taken by unidentified persons and detained for two days, after which he was released with a death threat.[5]
(b)A letter dated 12 February 2013 purportedly from a parish priest stating that on a date in 2010, while visiting his mother, two unidentified men came into the applicant’s mother’s house and asked the applicant where his father was. The two men scolded and beat the applicant, took him to a vehicle and put him in a dark room where they blindfolded and tortured him.[6]
[5] CB196
[6] CB197
PROCEEDING AND ADDITIONAL CLAIMS BEFORE DELEGATE
By letter dated 23 March 2016 the delegate invited the applicant to appear before the Department of Immigration and Border Protection (as the Department of Home Affairs was then known) (Department) to attend an interview to discuss the applicant’s visa application and the applicant’s claims for protection.[7]
[7] CB220
On 4 April 2016 the applicant’s lawyer, Mr Sinnarajah, sent an email attaching a completed Form 956 in which the applicant appointed him as his migration agent in connection with the applicant’s application for a SHEV.[8]
[8] CB229
Before the delegate the applicant made additional claims that included the following:[9]
(a)Adjoining the applicant’s family home in the village there was a shallow well from which an army man’s body was retrieved during the civil conflict; and it was after this incident that the applicant’s father became a target of suspicion by the authorities.
(b)In 2009, while the applicant’s father had been gone for one week, the applicant’s mother told the applicant that when the applicant was 2 or 3 years old, the applicant’s father went out one morning and did not return for one year.
(c)The applicant’s father left home in a month in 2009 due to problems he had with the CID and the SLA. The applicant’s father’s problems then fell on the applicant.
(d)In addition to the SLA and the CID, the applicant had problems with the People’s Liberation Organisation of Tamil Eelam (PLOTE), being a Tamil organisation that works with the SLA. A gunman from the PLOTE visited the applicant’s aunt’s house, where the applicant was staying one night.
(e)At around midnight, while the applicant was staying at his aunt’s house, a gunman came and demanded the door be opened. The gunman fled, after dropping the gun, and after neighbours raised the alarm.[10]
(f)One night, on his way home from the family farm, the applicant was made to stand on a drum and had a gun pointed to his head. The applicant informed the parish priest, and sometimes stayed at a church for his safety.
(g)The applicant’s mother complained to a Member of Parliament who advised he was unable to provide a letter for a particular individual.
(h)In 2013, after he arrived in Australia, the applicant’s mother told the applicant the CID visited their house and asked after him. Because of this the applicant received counselling at a particular medical centre.
[9] CB241
[10] CB247, [53]
It appears that, before the delegate, the applicant also claimed that after a spate of incidents in his neighbourhood where the SLA went into people’s homes and physically harmed them, the applicant and his neighbours decided one night in 2011 to sit outside and watch what was happening, and if anything did happen, to retaliate. Two men came on a motorcycle and asked them all to go back to their homes. Subsequently, the CID visited the applicant, and questioned him about why he was out that night, hitting him with a baton as they questioned the applicant.[11]
[11] CB246, [49]
The delegate:
(a)accepted that, at times, the applicant’s father did not live with the applicant,[12] and that he had disappeared for a year when the applicant was 2 or 3 years old;[13]
[12] CB244, [38]
[13] CB244, [39]
(b)accepted that in 2012 the applicant’s father expressed a desire to return “home”, because he was no longer of interest to the authorities;[14]
[14] CB245, [40], [43]
(c)accepted the applicant’s father may have been suspected of affiliation with the LTTE and was questioned by the authorities accordingly, although there was insufficient evidence about the reasons for all of the applicant’s father’s absences;[15]
[15] CB245, [41], [42]
(d)found there were inconsistencies in the applicant’s account of his abduction in 2010; and although the country information was consistent with the applicant’s account, it was exaggerated, and it is implausible the applicant’s mother would wait 5 months to complain to the Human Rights Commission of Sri Lanka about the incident;[16]
[16] CB246, [46]-[48]
(e)accepted the applicant was questioned by security forces in the immediate post-conflict period;[17]
[17] CB246, [48]
(f)accepted the applicant’s claim that men on motorcycles questioned the applicant, and that he was then visited and questioned by the CID, but the delegate did not accept this occurred because the applicant was “personally targeted”;[18]
(g)accepted the applicant’s bike tyre was punctured by 2 men on motorcycles, but did not accept this was done in retaliation for lodging a claim to the Human Rights Commission of Sri Lanka, or that the men were from the CID;[19]
(h)accepted the applicant’s mother made complaints to the Human Rights Commission of Sri Lanka, but there were no repercussions;[20]
(i)did not accept the applicant’s claim that he was made to stand on a drum at gunpoint, in part because the applicant’s mother did not make a complaint about it with the Human Rights Commission of Sri Lanka;[21]
(j)did not accept the applicant’s claim that a gunman came to the applicant’s aunt’s house (where he was staying) and dropped his gun;[22]
(k)did not accept that the applicant stayed at a church for his safety;[23]
(l)placed no weight on the purported letter from the Member of Parliament;[24]
(m)did not accept the applicant’s claim that the CID had visited the applicant’s mother in 2013 asking for him;[25]
(n)found the applicant’s profile with the authorities was not such as to be considered a person who presents a risk to the Sri Lankan state or government;[26] or would be of interest to it, or be considered affiliated with the LTTE; and[27]
(o)relying on country information, found that the situation for Tamils in Sri Lanka, including former LTTE members, indicates a “marked improvement”,[28] including for returnees.[29]
[18] CB246, [49]
[19] CB246, [50]
[20] CB246, [51]
[21] CB246, [52]
[22] CB247, [53]
[23] CB247, [54]
[24] CB247, [55]
[25] CB247, [56]
[26] CB256, [97]
[27] CB256, [98]
[28] CB251, [78]
[29] CB253-255, [87]-[96]
Relevant to the second ground on which the applicant relies is the following passage from the delegate’s reasons:[30]
In relation to the applicant’s claim that he received counselling in Australia, he further stated by way of elaboration, that he got upset thinking that neither he nor his father was at home when his mother was visited by the CID after his departure. The applicant could not remember how long he received counselling for, but thought he had sessions about once a week. He stated that at the outset when he was upset, the counsellor offered him more sessions but after a while he stopped attending. As the applicant’s evidence about this claim was vague and lacked detail, and he provided no further documents in support of it, I do not accept that it was in relation to his claimed persecution that he received counselling.
[30] CB248, [58]
On 15 July 2016 the delegate refused to grant the applicant a SHEV. The delegate notified the applicant by post addressed to the applicant’s residential address,[31] as recorded in item 37 of the SHEV application.[32]
[31] CB234
[32] CB162. The applicant also recorded an email address in his SHEV application, but he marked the box next to “no” under the question: “Do you agree to the department communicating with you by fax, email, or other electronic means?”
CORRESPONDENCE WITH AUTHORITY
On 15 July 2016 the Secretary of the Department provided to the Authority information relating to the applicant of the sort identified in s 473CB(1) of the Act.[33]
[33] CB1
The applicant deposes[34] that on about 19 July 2016 he received a letter dated 18 July 2016 from the Authority (Authority Notification Letter) in which it acknowledged that on 18 July 2016 the Department had referred to the Authority the delegate’s decision refusing to grant the applicant a SHEV.[35] The letter was addressed to the address the applicant stated in item 37 of his SHEV application as being his residential address in Australia and, in item 38 of the SHEV application, the applicant stated to be his postal address in Australia. It may be inferred from this that the Authority addressed its letter to this address because the Secretary, as he was required to do under s 473CB(1)(d) of the Act, provided this information to the Authority as the “last known residential or business address provided by the applicant for the purposes of receiving documents”.[36]
[34] Affidavit of applicant 31.05.2021
[35] CB265
[36] CB2
The Authority Notification Letter stated, among other things, that the applicant inform the Authority if the applicant wished to appoint a person to receive correspondence on the applicant’s behalf or act as his representative; and the Authority Notification Letter attached a document titled “Practice Direction for Applicants, Representatives and Authorised Recipients”. The Authority Notification Letter also attached a document titled “What you need to know about the Immigration Assessment Authority” (Authority Information Sheet), and a Tamil translation of that document. The Authority Information Sheet contains information about how the Authority was to communicate with the applicant:
How will the IAA communicate with me?
The IAA will generally communicate with you by email. We may also contact you by telephone.
You can choose to have correspondence sent to yourself, or you may appoint a person to receive correspondence on your behalf (this person is known as your authorised recipient). If you appoint an authorised recipient, we will send all correspondence to them.
If you appointed another person to receive correspondence from the department, that appointment does not apply to the IAA review. If you want another person to receive correspondence from us on your behalf, you will need to advise us of their name and contact details.
You will need to let us know promptly of any change in your contact details and, if you have an authorised recipient, of any change in their contact details. You should also inform your authorised recipient (if you have one) and the department of any change.
You can contact us by email at [email protected] or by telephone on 1800 205 919.
The Authority Information Sheet also contains information about the extent of the Authority’s power to consider “new information”:
Can I provide new information to the IAA?
We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision.
If there is new information you want us to consider, you must also provide an explanation why the information:
·could not have been provided to the department before it made the decision to refuse you a protection visa, or
·is credible personal information that, had it been known to the department, may have affected the department’s decision.
This explanation should be no longer than 5 pages and accompany any new information you give us. Any new information we have not requested must be given to us within 21 days of your case being referred to us by the department.
In very limited circumstances, we may invite you to give us new information or comments about your case in writing or at an interview.
On 18 July 2016 the Authority attempted to send an email to the email address of the applicant (as notified in the SHEV application), but it was returned “undeliverable”.[37] The contents of the email the Authority attempted to send is not in evidence, although a fair inference may be that the email was intended to attach the Authority Notification Letter.
[37] Affidavit of S Kugathas 17.05.2021
The applicant further deposes that:
(a)in the evening of the day he received the Authority Notification Letter he telephoned his lawyer, Mr Sinnarajah, and told him that he had received the “referral” from the Authority;
(b)the applicant told Mr Sinnarajah that when the applicant notified his mother, she was shocked, and his mother told the applicant he cannot return to Sri Lanka because armed men had visited the applicant’s mother’s home searching for the applicant, and that they continue to do so;
(c)the applicant’s mother said she was scared for her and the applicant’s sister’s wellbeing, “so she filed” a complaint at the local police station in Sri Lanka; the applicant requested his mother provide him with a copy of “these documents which she subsequently sent to” the applicant;
(d)the applicant’s mother sent the applicant three “police forms in Sinhalese dated 2 April 2013, 5 February 2016 and 15 February 2016”;
(e)the applicant provided a copy of these documents to Mr Sinnarajah, the applicant being “of the understanding that” Mr Sinnarajah “would organise the translation of these documents”, as the applicant “did not know any Sinhalese translators”;
(f)Mr Sinnarajah told the applicant “he will send these documents to the IAA”, but the applicant does not know whether Mr Sinnarajah sent the documents to the Authority; and
(g)the applicant obtained a translation of the police reports after he commenced this proceeding.
The applicant also deposes that Mr Sinnarajah advised the applicant that the applicant’s mother should provide a statement, and that the applicant himself should provide another statement to the Authority. The applicant and his mother each made a statement in Tamil, and the applicant engaged a NAATI interpreter to translate the statements. This occurred, and the applicant sent the statements to Mr Sinnarajah, who told him that he would send the statements to the Authority.
The (translated) police reports the applicant deposes he received are as follows (Police Reports):
(a)A “Message Form” dated 2 April 2013 purportedly from the “Officer-in-Charge” of the CID to the “Officer-in-Charge” of the “[V] Police Station” requiring that the applicant be notified to attend the CID at 16:00 hours on 5 April 2013.[38]
(b)A “Message Form” dated 5 February 2016 purportedly from the “Officer-in-Charge” of the “[V] Police Station”, to the “Officer-in-Charge” of the “Station”, to notify the applicant to attend the CID in Colombo at 14:00 hours on 9 February 2016.[39]
(c)A document titled “Extract from the Information book of [V] Police Station” dated 15 February 2016. This appears to purport to be a record of a statement the applicant’s mother gave to the “Officer-in-Charge” of the “[V] Police Station”. The document records that in February 2016 a group of people came to “our house” with weapons, and they asked the applicant’s mother where the applicant was. The applicant’s mother said the applicant was not at home at that time. The people “got really angry” and said that if the applicant’s mother would not disclose the applicant’s whereabouts they would kill both the applicant, and the applicant’s mother. The applicant’s mother requested the police investigate who made the threats and punish them and “give us protection”.[40]
[38] Affidavit of applicant 31.05.2021, annexure B2/6
[39] Affidavit of applicant 31.05.2021, annexure B4/6
[40] Affidavit of applicant 31.05.2021, annexure B6/6
The (translated) statement the applicant deposes his mother made is as follows (errors in original):[41]
My son . . . travelled to Australia in 2012 as he faced threats from armed persons.
Nevertheless armed persons keep coming to the house looking for him. Although I made many complaints at many places I am without any assistance.
I assert for sure that if he comes here his life will be in danger.
He said that now his protection visa has been refused.
Therefore I thank for granting protection to my son until now. I humbly request you to grant refuge in future too.
[41] Affidavit of applicant 31.05.2021, annexure C3/3
In the (translated) statement the applicant says he made, the applicant repeated the effect of the claims he had made in his SHEV application and before the delegate.[42] He also stated as follows (errors in original):
In the last few weeks I told my mother that my protection visa application will be heard.
It was then my mother told me that persons with weapons come looking for me. And when she refused to tell they attacked my mother and sister.
She also said that this has been happening many times. Furthermore she also said that some threatening letters have also arrived.
Furthermore she also said that although complaints were made about these problems there was no use.
As a result I am in great fear. Because I know very well that if I am sent back I know what they will do to me. Therefore I humbly request you to protect me. Therefore I humbly request you to grant me a protection visa.
[42] Affidavit of applicant 31.05.2021, annexure C2/3
There are a number of observations that may be made about the applicant’s evidence:
(a)The applicant does not provide any evidence, including documents that show when and how he received from his mother the Police Reports and his mother’s statement.
(b)The applicant does not annex to his affidavit the statements the applicant and his mother made in Tamil.
(c)The applicant does not provide any evidence of the communications between him and the purported translator of the applicant’s and the applicant’s mother’s statements.
(d)The applicant does not provide any evidence about when and how he provided to Mr Sinnarajah the Police Reports and the applicant and the applicant’s mother’s statements.
(e)The applicant does not give any evidence about whether he read the Authority Information Sheet.
(f)The applicant gives no evidence of the basis of his understanding that Mr Sinnarajah was going to arrange for the Police Reports to be translated and forwarded to the Authority.
(g)The Police Reports each contain a seal representing that the translator is a certified translator, gives a serial number, and records “valid to 1/09/2020”, yet the certified translator certifies that he translated each document on 20 May 2021.
(h)The applicant does not give any evidence that he appointed or intended to appoint Mr Sinnarajah to be his representative for the purpose of communicating to the Authority submissions or new information. As will appear later, ground 1 of the applicant’s grounds of application asserts Mr Sinnarajah was not the applicant’s representative.
On 1 September 2016 Mr Sinnarajah sent the following email to the Authority:[43]
I refer to the above matter.
I forward these supporting documents, as [the applicant] instructed me to forward it, in support of review of the IAA and in support of the submission made to the IAA on 7 August 2016.
[43] CB278
There is in evidence a “Case File Note” prepared by an officer of the Authority which records the effect of a telephone conversation between the officer and Mr Sinnarajah on 1 September 2016.[44] The note is as follows:
On 01/09/2016 at 12:50 I contacted other party (RAJAN, Senthil) to advise that his email lacked submissions that were purportedly attached. Other party indicated that the email would be properly resubmitted to the IAA later this afternoon. I clarified with the other party whether they would be representing RA in an official capacity. Other party stated they were uncertain and would clarify with RA before advising the IAA later this afternoon in the aforementioned email. Other party thanked me and I terminated the call.
[44] CB279
There is no dispute the Authority did not take any steps to notify the applicant that Mr Sinnarajah had contacted the Authority; or that the Authority did not receive any submissions on 7 August 2016, as stated by Mr Sinnarajah’s email of 1 September 2016; or that the Authority did not have the “supporting documents” referred to in Mr Sinnarajah’s email. And there is no dispute the Authority did not attempt to follow up with Mr Sinnarajah after the telephone conversation an officer of the Authority had with Mr Sinnarajah on 1 September 2016.
AUTHORITY’S REASONS
The Authority:
(a)accepted the incidents the applicant claimed occurred did occur;[45]
[45] CB286, [18]
(b)accepted as plausible that it was the CID that detained the applicant, and was willing to accept the applicant’s mother complained twice to the Human Rights Commission of Sri Lanka;[46]
[46] CB286, [19]
(c)was not satisfied that the people who harassed the applicant in 2011 and 2012 were the same people who had detained the applicant in 2010, or that they did so in connection with the applicant’s detention in 2010; the later incidents appear to be rather random, and the consequence of the general monitoring of the Tamil population in the post-war period;[47]
[47] CB287, [20]
(d)accepted the applicant’s father was questioned and detained on two occasions in 2009 on suspicion of helping the LTTE because he was a young Tamil male; and that the applicant’s father left the family home in 2009 because of this harassment; but noted the applicant did not claim he was detained in 2010 in relation to his father;[48]
[48] CB287, [21]
(e)accepted the applicant fled Sri Lanka in 2012 out of a genuine fear of continued harassment by the Sri Lankan authorities, but found that recent country information reflects that the security and political situation in Sri Lanka has improved since the applicant fled Sri Lanka;[49]
(f)was not satisfied the Sri Lankan authorities have an adverse interest in the applicant, or his father, due to any perceived association with the LTTE, given that the applicant was not again detained after his brief detention in 2010 on any further suspicion of links to the LTTE, and there being no information to indicate the applicant’s father was further detained since 2009 on suspicion of having links with the LTTE;[50]
(g)accepted the CID questioned the applicant’s mother about the applicant’s whereabouts in 2013; but it was not satisfied it was due to the applicant’s previous detention in 2010 or because of any real suspicion of links to the LTTE, or that the CID sought the applicant’s whereabouts in response to complaints the applicant’s mother made to the Human Rights Commission of Sri Lanka;[51]
(h)was satisfied there is a real chance the CID were seeking the applicant’s whereabouts in the context of monitoring activities of all Tamils in the north;[52]
(i)was not satisfied there is a real chance the applicant will be imputed as being a LTTE member or sympathiser by the Sri Lankan authorities or any organisation because he is a young Tamil male from the Northern Province;[53]
(j)was not satisfied the applicant faces a real chance of harm from the PLOTE or any other paramilitary group on his return to Sri Lanka;[54]
(k)was not satisfied the applicant will face a real chance of discrimination or other harm because of his Tamil ethnicity;[55]
(l)was not satisfied the applicant will face a real chance of harm because he considers himself a Catholic;[56]
(m)was not satisfied the applicant will be perceived to be a LTTE member or sympathiser because he sought asylum abroad, or because he is a young Tamil male from the Northern Province; and[57]
(n)accepted there is a real chance the applicant will be questioned by the Sri Lankan authorities on his return and charged with an offence under the Sri Lankan Immigration and Emigration Act; if the applicant pleads guilty he will be fined; if he pleads not guilty he may be granted bail; there is a real chance the applicant may be held by the police at the airport for 24 hours and, if a magistrate is not available, will be detained in a nearby prison for several days; but it was not satisfied that this would constitute serious harm to the applicant.[58]
[49] CB287-288, [22]
[50] CB288-289, [26]
[51] CB289, [27]
[52] CB289, [27]
[53] CB289, [28]
[54] CB290, [30]
[55] CB290, [31]
[56] CB291, [33]
[57] CB292, [39]
[58] CB292-293, [40]-[43]
GROUND 1
The applicant relies on the two grounds of application stated in the further amended application filed on 18 May 2021. Ground 1 is as follows (errors in original):
The IAA acted unreasonably in the conduct of the review:
Particulars
a)On 18 July 2016 the IAA sent acknowledgment of his review application by email enclosing information about the IAA in English and Tamil and the IAA Practice Direction No. 1 (see court book pag(265-277);
b)On 18 July 2016 the IAA’s email to the applicant was returned undeliverable (See Index item 13, court book page 4);
c)On 1 September 2016 the applicant’s previous migration agent sent an email to IAA without authorisation from the applicant as required by paragraphs 10 to 14 of IAA Practice Directions No. 1 stating he was submitting two documents to support submissions made to the IAA on 7 August 2016 (see court book page 278);
d)On 1 September 2016, the IAA contacted the unauthorised person without attempting to contact the applicant about the missing submissions of 7 August 2016 and the two support documents (see court book page 279). The IAA failed to inform the applicant that someone had contacted the IAA on his behalf without the appropriate authorisation;
e)On 27 September 2016 the IAA affirmed the decision not to grant a protection visa and wrote at paragraph 3 that “No further information was obtained or received” (see court book page 284); and
f)The IAA acted unreasonably in the conduct of the review in failing to notify the applicant of the irregularities that it was aware of with regards to the unauthorised person and the missing submissions and documents.
g)The IAA acted unreasonably by corresponding with the Applicant other than as specified by the Secretary under s473CB(1)(d) and without proper authorization.
h)The IAA acted unreasonably by failing to delay determining the Applicant’s matter until reasonable attempts were made to determine the position as to the Applicant’s representation and contact details.
Parties’ submissions
In his counsel’s written submissions the applicant submits the Authority’s duty to act reasonably required the Authority to contact the applicant by telephone, or by mail at his given address (as the Secretary notified the Authority in its referral of 15 July 2016), or, at the very least, to delay making its decision.[59] The basis of that submission is the “problems in contacting the Applicant by email”, the Authority’s contact with Mr Sinnarajah, the “missing submissions”, and the “missing supporting documents”.
[59] Applicant’s Outline of Submissions, [32]. The applicant submits that the last known address is that stated in the document titled “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist”, at CB2
The particulars to ground 1, and the applicant’s written submissions, appear to assume that the Authority’s unsuccessful attempt to send an email on 18 July 2016 was the only means by which the Authority attempted to communicate with the applicant. That, however, is inconsistent with the applicant’s evidence that on about 19 July 2016 he “received a letter by post from the IAA informing me that my application for a protection visa had been referred to the IAA”.[60] It is also inconsistent with the applicant’s counsel’s submissions that the applicant was not unaware of his rights to provide submissions; and that the applicant “intended to do so, and one can readily infer that he wanted to do so”.[61] Given the applicant’s evidence that he did receive by post the Authority Notification Letter, ground 1, as framed, cannot succeed.
[60] Affidavit of applicant 31.05.2021, [7]
[61] T13.45
At the hearing, however, I took counsel for the applicant to submit that, accepting the Authority posted the Authority Notification Letter to the address the applicant last notified to the Minister, the Authority nevertheless ought to have attempted (again) to contact the applicant, this time to inform the applicant that Mr Sinnarajah had contacted the Authority purportedly on behalf of the applicant; Mr Sinnarajah was not on the record as a representative; the applicant’s email address was incorrect; the submissions Mr Sinnarajah in his email represented had been sent to the Authority had not been sent; and Mr Sinnarajah had not subsequently provided to the Authority the material Mr Sinnarajah in his email said had been attached to the email.[62]
[62] T15.25
The Minister, on the other hand, submits that the relevant power by reference to which the claimed unreasonableness of the Authority is to be assessed is that conferred by s 473DC(3) of the Act which provides that the Authority may invite a person orally or in writing to give “new information”, either in writing or at an interview. The Minister then makes two submissions. First, the Minister submits the applicant has not demonstrated that the Authority did not consider whether it should exercise the power conferred by s 473DC(3) of the Act. The Minister relies on the following passage from the judgment of the plurality in BVD17 v Minister for Immigration and Border Protection:[63]
As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.
The appellant's contention before the Full Court that the Authority failed to consider the exercise of the discretion conferred by s 473GB(3)(b) was based solely on an inference sought to be drawn from the fact that the Authority's statement of its reasons for decision contains no reference to the discretion. The Full Court did not err in rejecting that contention.
Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered. The Authority's specific reference to taking particular country information into account as “new information”, thereby indicating an exercise of discretion under s 473DC(1), lends no added support to the drawing of the inference. Having been before the delegate at the time of the decision under review, the information contained in the documents in the departmental file did not meet the description of “new information”. The Authority's reference to one statutory power having been exercised in respect of one category of information cannot be taken to indicate that the Authority failed to consider the exercise of another statutory power in respect of another category of information.
[63] BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, at [38]-[40]
Second, the Minister submits that, assuming the Authority did consider whether to exercise the power under s 473DC(3) of the Act, and decided not to exercise its power, then, given the information of which the Authority was aware, the Authority did not act unreasonably by taking no further action to contact Mr Sinnarajah or the applicant. The Minister relies on the following matters:
(a)The Act does not require the Authority to send any correspondence to the applicant on the delegate’s decision having been referred to it.[64]
(b)So far as the Authority knew, it had posted the Authority Notification Letter to the address the applicant last notified to the Minister. The Authority, therefore, was entitled to proceed on the basis the applicant had received the Authority Notification Letter and, therefore, was given notice of the opportunity he had to provide submissions and new information to the Authority.[65]
(c)It was entirely appropriate for the Authority to make the enquiry it did of Mr Sinnarajah, and to do nothing further in light of Mr Sinnarajah’s response.
(d)There was nothing to alert the Authority of any irregularity in relation to Mr Sinnarajah, or his appointment, or in relation to the applicant’s address for service.
(e)The applicant does not allege there was any fraud by Mr Sinnarajah.
(f)In any event, the applicant has not discharged his onus of proving that any unreasonable failure to exercise the power under s 473DC(3) of the Act was material, and therefore, jurisdictional.
[64] First Respondent’s Written Outline of Submissions, [24] referring to, among other cases, Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46, at [27]. As the High Court noted in that paragraph, “the power in s 473DC is still subject to the usual implication that it must be exercised within the bounds of legal reasonableness”.
[65] First Respondent’s Written Outline of Submissions, [25]-[28]
Determination
Paragraph (d) of the particulars to ground 1 asserts Mr Sinnarajah was an “unauthorised person”; and Mr Sinnarajah, in his conversation with an officer of the Authority on 1 September 2016, in effect confirmed he had not been appointed the applicant’s agent. There is nothing in the conversation Mr Sinnarajah had with the Authority that could reasonably have suggested to it that Mr Sinnarajah misrepresented that he was not sure whether the applicant had appointed him to be the applicant’s agent. The applicant, nevertheless, submits that the Authority’s receiving from, and having had a conversation with, a person who was not authorised to represent the applicant, ought reasonably to have led the Authority to decide to contact the applicant about the communication and conversation with such person; but the applicant does not explain why, in those circumstances, the Authority ought reasonably to have contacted the applicant. I do not accept that the reasonable exercise of the Authority’s powers required it to consider whether to contact the applicant after it received an email from, and had a conversation with, Mr Sinnarajah and, if so, required it to contact the applicant about the contents of the email and conversation.
There is nothing to suggest the Authority did not accept as true, or that it was not reasonably open to it to accept as true, the statement Mr Sinnarajah made in his telephone conversation with an officer of the Authority on 1 September 2016 that Mr Sinnarajah was not sure if he would be representing the applicant in an official capacity. The inference is available to be drawn, and I find, that the Authority accepted as true Mr Sinnarajah’s statement. Further, there was nothing to suggest to the Authority that the applicant had not received the Authority Notification Letter; if anything, Mr Sinnarajah’s email of 1 September 2016 was a basis on which the Authority could be satisfied, and I find it was satisfied, the applicant received the Authority Notification Letter; for Mr Sinnarajah otherwise could not have been aware that the delegate’s decision had been referred to the Authority for review. In those circumstances the inference is available to be drawn, and I find, that it was reasonably open to the Authority to proceed on the basis, and it did proceed on the basis, that the applicant had received the Authority Notification Letter; the applicant read and understood the Authority Notification Letter, including those parts of the Authority Information Sheet relating to the applicant’s communicating with the Authority, and the applicant’s ability to make submissions and provide new information; and, therefore, the applicant understood that it was open to him, either through a representative, or by himself, to make submissions, and provide new information, to the Authority. It was also reasonably open to the Authority on 27 September 2016, when it made its decision, to proceed, and I find that it did proceed, on the basis that the applicant did not wish to provide any new information to the Authority, and that he had elected not to make any submissions to the Authority.
Assume, however, the Authority ought reasonably to have contacted the applicant and informed him of the matters the applicant contends it ought to have informed him; and the Authority had done so. What then? The applicant, in his counsel’s written submissions, submits the applicant would have taken the opportunity to provide information and make submissions to the Authority.[66] The basis of this submission is what is said to be the applicant’s “prior conduct in appointing a representative”, and “the correspondence from [Mr Sinnarajah] that submissions had been submitted”. [67]
[66] Applicant’s Outline of Submissions, [40]
[67] Applicant’s Outline of Submissions, [40]
There are two difficulties with this submission. First, to the extent it relies on the applicant’s “prior conduct in appointing a representative”, the submission is inconsistent with paragraph (d) of the particulars to ground 1, which refers to Mr Sinnarajah as an “unauthorised person”. It is difficult to see how the applicant’s communicating with a person whom the applicant submits was not authorised to contact the Authority on his behalf can be a basis for rationally inferring that the applicant intended to provide new information and submissions to the Authority. Second, and decisively, the applicant is unable to demonstrate that, had the Authority contacted the applicant, as the applicant contends it ought to have done, there is a realistic prospect the Authority could have made a decision favourable to the applicant.
The information the applicant appears to submit he would have provided to the Authority, had the Authority contacted him, is the information contained in the documents the applicant annexed to his affidavit of 31 May 2021, and which he says he had sent to Mr Sinnarajah and which, the applicant further says, Mr Sinnarajah said he would send to the Authority. The applicant, however, does not give any evidence of the submissions he says Mr Sinnarajah had prepared, or submissions the applicant would have provided, or would have instructed Mr Sinnarajah to provide, to the Authority, had the Authority contacted the applicant. Nor does the applicant give evidence of submissions he or Mr Sinnarajah intended to make or could have made in relation to the conditions of which the Authority would have had to be satisfied before it could consider the new information the applicant forwarded to Mr Sinnarajah, those conditions being the matters specified by s 473DD of the Act. That means there is no evidence of the submissions and evidence the applicant says he would or could have provided, or which he would or could have instructed Mr Sinnarajah to provide, to the Authority, had the Authority contacted the applicant, in relation to whether:
(a)there were exceptional circumstances to justify the Authority considering the Police Reports and the information contained in the applicant’s and the applicant’s mother’s statements (as provided for by s 473DD(a) of the Act); and
(b)the Police Reports or the information contained in the applicant’s and the applicant’s mother’s statements could not have been provided to the Minister before the day on which the delegate made his decision (as provided for by s 473DD(b)(i) of the Act) or, to the extent the information contained in the documents could be characterised as “credible personal information”, was not previously known and, had it been known, may have affected the consideration of the applicant’s claims for protection (as provided for by s 473DD(b)(ii) of the Act).
It is therefore impossible to find that, had the Authority contacted the applicant, as the applicant claims it ought to have done, that “could realistically have resulted in a different decision”.[68] There is no material before me on the basis on which it could rationally be inferred that the conditions specified in s 473DD of the Act could have been satisfied, and therefore the Authority could have considered the Police Reports, and the information contained in the applicant’s and the applicant’s mother’s statements, and, consequently, the Authority could have made a decision favourable to the applicant.
[68] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]
For these reasons, ground 1 fails.
GROUND 2
Ground 2 is as follows:
The IAA failed to determine an integer of the Applicant’s claim, or alternatively failed to take into account relevant information, being the Applicant’s mental health and treatment.
Parties’ submissions
In his counsel’s written submissions the applicant submits it is clear from the material the applicant was suffering from a psychological condition. That material consisted of the applicant’s evidence that he received counselling from a particular medical centre, and the delegate’s referring to this evidence in his reasons for decision. The applicant submits that, had the Authority considered the evidence, it “may have obtained more information under s 473DC” of the Act;[69] and that is because mental health issues are relevant in three ways: first, they could have revealed the applicant suffered from a potential vulnerability arising from his experiences; second, the mental health condition of the applicant could have been a ground for considering whether there are substantial grounds for believing that if the applicant were to return to Sri Lanka there is a real risk he will suffer significant risk given his mental health issues; and third, the applicant’s mental condition could have impacted on his ability to present his case and answer questions.
[69] Applicant’s Outline of Submissions, [46]
The Minister appears to accept that the Authority did not refer to the evidence the applicant gave before the delegate that he had obtained counselling, or to the delegate’s having referred to the applicant’s evidence that he received counselling. The Minister submits, however, that the Authority did not fail to consider an integer of the applicant’s claims, or relevant information.
Determination
Although ground 2 claims the Authority did not consider an “integer” of the applicant’s claims, the applicant does not submit there arose on the material before the Authority a claim to the effect that the applicant’s mental condition rendered him more vulnerable than he otherwise would be in facing the conditions the Authority accepted the applicant would face on his return to Sri Lanka; or a claim to the effect that, given the applicant’s mental condition, there were substantial grounds for believing he would suffer significant harm if he were to return to Sri Lanka; or the applicant suffered from a mental condition that affected or could have affected his ability to present his case and answer questions. The applicant’s case is that the Authority did not consider the evidence relating to the applicant’s mental condition but, had it done so, the Authority may have considered exercising its power under s 473DC of the Act to obtain further information.
It is true the Authority did not refer to the applicant’s evidence; but that by itself does not mean the Authority did not consider it. A decision maker who is required by statute to consider a claim or other mandatory criteria is not obliged “to refer in the reasons for decision to every piece of evidence and every contention made by an applicant”;[70] and one reason a decision maker may not do so is because the information is either irrelevant or immaterial, and the decision maker considers it to be irrelevant or immaterial. I find that the evidence the applicant gave in relation to his mental state and the counselling he says he received is information of this nature.
[70] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, at [45]
Before the delegate the applicant said that after his mother told him the CID had come looking for him, the applicant got upset because the applicant’s mother “is in this place”, the applicant’s father “is not at the house”, and the applicant is “not there”. The applicant said he had been through some counselling; he was in a very “sad state of affairs”; the applicant identified the place at which he had obtained counselling, noting that “[a]fter some time I did not meet”; and the applicant attended counselling about once a week, but he could not remember how many times he went.[71] This evidence, by itself, is incapable of giving rise to any reasonable claim, a point recognised by the applicant in his counsel’s written submissions which goes no further than submitting that, had the Authority considered the matter, it may have considered exercising its power under s 473DC of the Act to obtain further information.
[71] Transcript at 57.10-59.5. The transcript is annexed to the affidavit of S Kugathas made on 31.05.2021.
For these reasons, I am not satisfied the Authority did not consider the evidence the applicant gave in relation to his sadness and his obtaining counselling, or the delegate’s reference to this evidence.
Assume, however, the Authority failed to consider this evidence. The applicant does not say what information the Authority ought to have considered obtaining, from where the Authority would obtain such information, the prospects of its obtaining the information, and how the Authority’s obtaining and considering such information “could realistically have resulted in a different decision”.[72] Thus, even if the Authority failed to consider the evidence the applicant gave in relation to his sadness and his obtaining counselling, the applicant would not be able to show that such failure was material.
[72] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]
For these reasons, ground 2 also fails.
DISPOSITION
I propose to order that the application be dismissed.
Counsel for the parties agreed that costs should follow the event, and that I should fix costs provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). Costs are now governed by Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The relevant amount is $7,853, being the amount specified in item 3 of Part 2. I also propose, therefore to order that the applicant pay the Minister’s costs set in the amount of $7,853.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 11 March 2022
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