Din16 v Minister for Immigration

[2019] FCCA 1150

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIN16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1150

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority erred in failing to consider the exercise of its discretion under s.473BC of the Migration Act 1958 (Cth) to invite the applicant to provide further evidence – whether the Immigration Assessment Authority erred in failing to apply s.473DD of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 31, 36, 65, 473BA, 473BC, 473CA, 473CC,

473DA, 473DB, 473DC, 473DD, 473EA, 474, 476

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Minister for Immigration v Li (2013) 249 CLR 332

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

CYO16 v Minister for Immigration and Border Protection [2019] FCA 2

Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780

Applicant: DIN16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3069 of 2016

Judgment of: Judge Emmett

Hearing dates: 19 March 2019, 20 March 2019

Date of Last Submission: 20 March 2019

Delivered at: Sydney

Delivered on: 2 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Richard Chia

Counsel for the Respondents: Mr Bora Kaplan

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3069 of 2016

DIN16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 11 October 2016 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 29 July 2016 refusing the applicant a Safe Haven Enterprise (Subclass 790) visa (“Safe Haven Visa”).

2. The applicant is a Sri Lankan citizen of Tamil ethnicity and of the Hindu faith, who fears harm from the Karuna Group, the Sri Lankan authorities, his employer’s brother-in-law and groups of Sinhalese men.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of his visa, a summary of the decision of the Delegate, and a summary of the Authority’s review and decision.

Background

1. The applicant departed Sri Lanka illegally by boat. On 20 September 2012, the applicant arrived in Australia (via the Cocos Keeling Islands) and was transferred to North West Point Immigration Detention Centre.  

2. On 14 January 2016, the applicant lodged an application for a Safe Haven Visa with the Department of Immigration and Border Protection (“the Department”).

3. On 29 July 2016, the Delegate refused the applicant’s application for a Safe Haven Visa.

4. On 1 August 2016, the Delegate’s decision refusing the applicant a Safe Haven Visa was referred to the Authority.

5. On 11 October 2016, the Authority handed down its decision affirming the decision of the Delegate not to grant a Safe Haven Visa.

6. On 8 November 2016, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative Framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Safe Haven Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm”.

7. Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:

   “Simplified outline of this Part

   This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

   Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

   Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”

8. Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.

9. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

12. Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:

    “Material to be provided to Immigration Assessment Authority

    (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

    (a) a statement that:

    (i) sets out the findings of fact made by the person who made the decision; and

    (ii) refers to the evidence on which those findings were based; and

    (iii) gives the reasons for the decision;

    (b) material provided by the referred applicant to the person making the decision before the decision was made;

    (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

    (d) the following details:

    (i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

    (ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

    (v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

    (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

13. Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.

14. The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:

    “Exhaustive statement of natural justice hearing rule

    (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

15. Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.

16. Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:

    “Getting new information

    (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

    (a) were not before the Minister when the Minister made the decision under section 65; and

    (b) the Authority considers may be relevant.

    (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a) in writing; or

    (b) at an interview, whether conducted in person, by telephone or in any other way.”

    Section 473DD of the Act provides as follows:

    “Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

The applicant’s application for a Safe Haven Visa

1. The applicant provided a statement in support of his Safe Haven Visa application in which he stated:

   “1. I am a 20 year old male citizen of Sri Lanka born in Batticaloa, Eastern Province, Sri Lanka.

   COUNTRY TO WHICH I DO NOT WANT TO RETURN

   2. I am afraid to return to Sri Lanka.

   WHY I LEFT THAT COUNTRY, INCLUDING DETAILS OF PRIOR HARM

   3. Between the periods of 2008 to 2012 I worked in Colombo as an apprentice goldsmith, employed by a man named Varatharaja.

   4. Varatharaja was a very wealthy Tamil and well known businessman in the community.

   5. On 24 August 2012, I went to buy dinner on Bankshall Street with Varatharaja’s son, Pravinth. Bankshall Street was located 1 km from my workplace.

   6. When we were returning from collecting dinner, after walking halfway a white van pulled up alongside Pravinth and I. Four men occupied the van with two jumping out, grabbing Pravinth.

   7. In seeing the men, I recognised that one of the men present in the van was Varatharaja's brother-in-law (Pravinth’s uncle). The men also attempted to take me however, I managed to escape running to the main bus station.

   8. In my fear, I boarded a bus travelling to Negombo. I went to a relative’s home (Ramalingam) to hide however, did not disclose to Ramalingam what events had taken place.

   9. That night I called my sister who was at the time staying with our aunt whilst she attended school. I told her what had occurred and advised that I was not going to return home.

   10. The next day, I received a call from my sister who advised that she was made aware that five Singhalese men had visited the family home where I usually lived. The men realised no one was home and enquired with the neighbours as to my whereabouts.

   11. In not being able to locate me, the men returned each day for three days looking for me. In receiving this information from my sister I knew that I could not remain in Sri Lanka.

   12. I knew that I could not approach the police as they are corrupt and would not protect me from the Singhalese men that had been looking for me. I also have no parents to protect me.

   13. I enquired with an acquaintance, Ramesh, in whom I knew, had potential involvement with people smuggling. I advised Ramesh of my situation and began to arrange to flee Sri Lanka.

   14. I asked my sister to send me the money from my savings (400,000 Rupees) so that I could pay for my departure. I paid Ramesh and on about 3 September 2012 I boarded a boat.

   Oct 2012 to Jan 2013: Singhalese men speak to sister and neighbours

   15. After my departure from Sri Lanka whilst I was in immigration detention I called my sister on a regular basis. In speaking with her, on numerous occasions I was informed that the group of Singhalese men had returned to my sister’s home to look for me. When the men were unable to find my sister, they would look for me at the neighbour's houses.

   16. I was informed by my sister that the men had come looking for me five times.

   17. Whenever I received this news from my sister, I would inform my case worker at the detention centre. I reported this news to my case workers at Christmas Island and at Curtin Immigration Detention Centre.

   18. Due to the visits of these men, my sister and I decided it was not safe for her to remain at her current residence and she has gone into hiding with a family relative in Batticaloa.

   WHAT I FEAR MAY HAPPEN IF I RETURN TO THAT COUNTRY

   19. If I am forced to return to Sri Lanka I fear that I will be detained and killed.

   WHO I THINK WILL HARM / MISTREAT ME IF I WAS FORCED TO RETURN TO THAT COUNTRY

   20. I fear that Varatharaja's brother-in-law will detain me and kill me.

   21. I fear the Singhalese men will detain me and kill me.

   WHY I THINK I WILL BE HARMED / MISTREATED IF I RETURN TO THAT COUNTRY

   22. If I am forced to return to Sri Lanka, I fear I will be harmed I mistreated by Varatharaja’s brother-in-law and the Singhalese men that were searching for me.

   23. If I am forced to return to Sri Lanka, I fear I will be detained and killed by Varatharaja’s brother-in-law and the Singhalese men that were searching for me.

   WHY I THINK THE COUNTRY'S AUTHORITIES WILL NOT PROTECT ME IF I AM FORCED TO GO BACK TO THERE

   24. I fear the authorities including the police and the CID - they will not protect me. The authorities are corrupt and will offer me no protection from Varatharaja’s brother-in-law and the Singhalese men that were searching for me.”

The Delegate’s decision

1. On 13 May 2016, the applicant attended an interview with the Delegate.

2. The Delegate set out the applicant’s migration history, the validity of the application and the material before it. The Delegate then summarised the applicant’s claims made both in writing and during the visa interview on 13 May 2016.

3. The Delegate raised concerns it had with the applicant’s evidence, including that the information he provided in relation to his harassment in Batticaloa was vague.

4. The Delegate explored the applicant’s alleged abduction in August 2012 with him. The Delegate put to the applicant that the incident of abduction in August 2012 appeared to be a criminal matter and the sort of incident that could also happen in Australia. It was also put to the applicant that there is effective state protection in Sri Lanka to which he responded that the protection is inadequate.

5. The Delegate then made findings in the following terms:

   a)   The applicant is an ethnic Tamil Sri Lankan of the Hindu faith who originates from Batticaloa, Eastern Province, Sri Lanka.

   b)     The applicant resided in Batticaloa from birth until 2008 when he travelled to Colombo to reside for work purposes. He resided in Colombo from 2008 until 2012.

   c)     In 2008, the applicant was harassed by the Karuna Group (a paramilitary group) in Batticaloa. After being detained for one day on suspicion of links to the LTTE, he was investigated and subsequently released.

   d)     The applicant is not of ongoing adverse interest to any paramilitary group in Sri Lanka. However, paramilitary groups continue to operate in Eastern Province.

   e)     The applicant was not involved with the LTTE. There is no information before me to indicate that either the applicant or any other close family members were ever arrested and/or imprisoned by the Sri Lankan authorities on account of actual or perceived links to the LTTE. The applicant was not of any ongoing adverse interest to the authorities in Sri Lanka on account of actual or perceived links to the LTTE.

   f)   The applicant was employed as a goldsmith in Colombo. His employer (Varatharaja) was a wealthy, well-known businessman and a Tamil who originated from the applicant’s place of origin in Batticaloa.

   g)     In 2012, Varatharaja’s son, Pravinth, was a victim of abduction in Colombo by a group of masked, armed men in a van. At the time of the incident, the applicant was walking on the street with Pravinth. Pravinth was abducted but the applicant was able to run away and escape from the abductors. The applicant fled from Colombo to Negombo where he stayed with an acquaintance for about six-seven days. He then departed Sri Lanka illegally with the assistance of people smugglers.

   h)     The day after Pravinth was abducted the applicant received a telephone call from his sister who advised him that five Sinhalese men visited the applicant’s home. The men returned each day for three more days. From October 2012 to January 2013, the Sinhalese men continued to seek the applicant at his sister’s home five more times.

   i)   The applicant does not know what happened to Pravinth following the abduction and he has not seen him since the incident. Nor has he had any contact with Pravinth’s father or Pravinth’s uncle and he does not know their current circumstances.

   j)   It is unclear as to who was responsible for the abduction of Pravinth and the motivation for the crime. On the evidence presently before me and in light of my assessment above, I cannot be satisfied that the applicant was of adverse interest to any individual(s) and/or group(s) or continues to be of adverse interest to any individual(s) and/or group(s) in relation to the abduction. Nor do I accept as credible that the applicant’s sister has been harassed in Batticaloa by any individual(s) and/or group(s) searching for the applicant in relation to Pravinth’s abduction.

   k)     I accept that the applicant has a subjective fear that he will be harmed by the authorities on return to Sri Lanka on the basis of his Tamil race and because of his past experiences as a young Tamil male who originates from Eastern Province;

   l)   The applicant departed Sri Lanka illegally and if returned to Sri Lanka, he could be viewed by the Sri Lankan authorities as a failed asylum seeker.

1. The Delegate went on to make an assessment of the applicant’s claims under the refugee criterion. 

2. The Delegate was satisfied that the applicant feared persecution for reasons of his race, political opinion and his membership of a particular social group.

3. The Delegate had regard to various country information reports before being satisfied that the applicant would not be harmed by the Sri Lankan authorities, or paramilitary groups or anyone else upon return to Sri Lanka in the reasonably foreseeable future on the basis of his Tamil ethnicity alone. The Delegate therefore found that there was not a real chance of persecution on the basis of the applicant’s Tamil ethnicity if he was returned to Sri Lanka.

4. The Delegate considered the applicant’s claims in regard to his harassment by paramilitary groups and had regard to relevant country information. The Delegate found there was no evidence before it to indicate that members of a paramilitary group were searching for the applicant.

5. The Delegate was not satisfied that the applicant was of adverse interest to any individual or group or continued to be of adverse interest to any individual or group in relation to the abduction.

6. The Delegate considered the applicant’s claims relating to his illegal departure from Sri Lanka. The Delegate had regard to country information reports. The Delegate was not satisfied, on the information before it, that the applicant’s illegal departure from Sri Lanka combined with his asylum claims in Australia would result in the applicant facing harm amounting to persecution if he returned to Sri Lanka. The Delegate therefore found that there was no real chance the applicant would face persecution under those grounds.

7. The Delegate was not satisfied that there was a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act in the receiving country. Having assessed the applicant’s claims both separately and cumulatively, the Delegate found the applicant was not a refugee as defined in s.5H of the Act and that the criterion in s.36(2)(a) of the Act was not satisfied for this reason.

8. In relation to the complementary protection criterion in s.36(2)(aa) of the Act, the Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there was a real risk the applicant would suffer significant harm.

9. On 29 July 2016, the Delegate refused the applicant’s application for a Safe Haven Visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Authority’s review and decision

1. On 1 August 2016, the Delegate’s decision refusing the applicant a Safe Haven Visa was referred to the Authority.

2. The applicant provided further documents in support of his review, being a United Nations report regarding human rights in Sri Lanka and a submission from the applicant’s representative, Michaela Byers.

3. The Authority summarised the applicant’s claims as contained in the information referred to it from the Department and the submissions of the applicant’s representative.

4. The Authority went on to make an assessment of the applicant’s claims against the refugee criterion.

5. The Authority considered the applicant’s claims in relation to the abduction in Colombo in August 2012. The Authority found aspects of the applicant’s evidence to be inconsistent and implausible. While the Authority accepted that the abduction in 2012 occurred, and that the applicant may have been chased, threatened or shot at during the incident, it had considerable doubts about the applicant’s claims that his employer’s brother-in-law was involved in the incident, or that a group of unknown Sinhalese men continued to seek him out in relation to the incident. The Authority found that the applicant’s evidence about his actions in the aftermath of the abduction were not credible and not plausible.

6. While the Authority accepted that criminal acts occur in Sri Lanka, on the basis of the applicant’s low profile and having regard to the country information, the Authority found the prospect of the applicant falling victim to abduction or ransom or other criminal act was remote. Accordingly, the Authority found there to be no real chance of the applicant suffering serious harm on that basis.

7. The Authority went on to consider the applicant’s fear of harm in respect of any links to the Liberation Tigers of Tamil Eelam (“LTTE”).

8. The Authority noted that in the applicant’s visa application he stated that he was detained and questioned for a day by the paramilitary Karuna Group in 2008 as he was under suspicion of having links to the LTTE.

9. The Authority was satisfied that after the incident in 2008 the applicant came under no further scrutiny from the Karuna Group. The Authority noted that the evidence before it did not indicate that the applicant was ever otherwise suspected of connection to the LTTE.

10. The Authority also had regard to country information reports in respect of the overall situation for Tamils in Sri Lanka after the end of the Sri Lankan civil war in 2009.

11. The Authority was satisfied that the applicant has no political opinion, profile or connection to the LTTE, whether actual or imputed, or that there was any real chance of him being targeted for harm on those bases by any person or group if he returned to Sri Lanka in the reasonably foreseeable future.

12. The Authority considered the applicant’s claims that he would be harmed by the Sri Lankan authorities because he had departed Sri Lanka illegally. The Authority accepted that the applicant departed Sri Lanka without a passport when he came to Australia and for that reason had committed an offence under the Immigrants and Emigrants Act “(I&E Act”).

13. The Authority had regard to country information and set out the likely processes the applicant may face upon return to Sri Lanka having departed illegally. The Authority noted that the provisions and penalties of the I&E Act were laws of general application that applied to all Sri Lankans equally. The Authority was not satisfied that any processes or penalties the applicant may face as a person who left Sri Lanka illegally would amount to serious harm upon return.

14. The Authority was therefore satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purposes of the Act.

15. The Authority found that the applicant would not face a real chance of serious harm on return to Sri Lanka as a result of the incident in August 2012 or anything that followed, abduction or extortion generally, on the basis of his ethnicity or as a Tamil male from the East, due to any actual or imputed profile or connection to the LTTE, or as a result of departing Sri Lanka illegally and/or for seeking asylum in Australia.

16. Accordingly, the Authority concluded that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and therefore did not meet the s.36(2)(a) of the Act.

17. The Authority went on to assess the applicant’s claims against the complementary protection criterion. The Authority considered the applicants’ illegal departure, any discrimination and the balance of his claims before finding that the applicant would not suffer significant harm for the reasons claimed.

18. The Authority concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to his receiving country, there was a real risk that the applicant would suffer significant harm and therefore did not meet s.36(2)(aa) of the Act.

19. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Authority affirmed the decision under review.

The proceeding before this Court

1. By consent, the applicant was given leave to file in Court and rely upon the grounds in a Second Further Amended Application as follows:

   “1. The failure of the second respondent (“Authority”) to consider exercise of its discretion under section 473DC of the Migration Act 1958 (“Act”) to invite the applicant to provide evidence on whether he could be subject to abduction or ransom attempts was legally unreasonable.

   2. Further or in the alternative, the Authority failed to apply section 473DD of the Act to the applicant’s submission, and supporting country information before the Authority, that the Sri Lankan authorities were known to use “white vans” in abductions.”

2. The applicant was represented at the hearing by Mr Richard Chia, of counsel.

Ground 1

1. Ground 1 asserts that the Authority failed to consider exercising its discretion under s.473DC of the Act by failing to invite the applicant to provide evidence on whether he could be subject to abduction or ransom attempts. In this respect, the applicant contended that the conduct of the Authority was legally unreasonable.

2. Counsel for the applicant contended that the information regarding the applicant’s personal risk of abduction or ransom was new information and that, accordingly, the Authority should consider whether to exercise its discretion to invite the applicant to give new information; and, whether in failing to do so, the Authority acted in a legally unreasonable manner (see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 at [82] per Robertson, Murphy and Kerr JJ (“CRY16”)).

3. Counsel for the applicant submitted that the Authority’s decision raised a new factual issue that had not been the subject of the Delegate’s decision or discussion at the interview with the Delegate.

4. Relevantly, in its decision record the Authority stated as follows:

   “21. I accept that criminal activities occur in Sri Lanka, including abductions and extortion/ransom attempts and that the motive is usually political or business-related. The applicant is not an obviously wealthy person (he was an apprentice goldsmith) and he has no political or other profile that the country information would indicate may elevate his potential to be adducted or extorted. While I accept criminal acts occur in Sri Lanka, on the basis of his low profile and having regard to the country information before me, I find that the prospect of the applicant falling victim to abduction or ransom or other criminal act is remote. Accordingly, I find there is no real chance of him suffering serious harm on this basis.”

5. Counsel for the applicant submitted that having held that the applicant was not obviously wealthy and had no profile that would elevate his potential to be abducted or extorted, the Authority should have given the applicant an opportunity to address that issue. Counsel for the applicant submitted that this was because the Authority did not have any information regarding the applicant’s family’s perceived wealth or whether the applicant could be perceived to be wealthy. Counsel for the applicant submitted that those were matters that were never explored and that the failure to do so by the Authority was legally unreasonable.

6. It is common ground that s.473DC(3) of the Act gives the Authority the discretion to invite a person such as the applicant to give new information.

7. Section 473DC(2) of the Act states that the Authority does not have a duty to get, request or accept any new information.

8. Section 473DC(1) of the Act has the effect of defining new information as information that was not before the Delegate and that the Authority considers may be relevant.

9. Section 473DD of the Act provides that the Authority must not consider any new information unless the Authority is satisfied that there are exceptional circumstances to justify doing so; and, that the new information was not and could not have been provided to the Delegate; or, is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims.

10. I accept the submission of counsel for the first respondent, Mr Kaplan, that the applicant appears to rely solely on the fact that the Authority did not refer to any consideration by it as to whether it should exercise its powers under s.473DC(3) of the Act to invite the applicant to give new information on his family’s perceived wealth. I accept that the fact that the Authority did not refer to the exercise of those powers does not by itself support the inference that it failed to consider the exercise of those powers. Section 473EA(1) of the Act makes clear that the Authority is not required to give reasons as to whether it has made or considered making a procedural decision in the course of a review.

11. In any event, and unlike in CRY16, the Delegate found that there was no information before it to indicate that the applicant is wealthy or would be perceived to be wealthy and therefore a potential target for extortion.

12. I accept the first respondent’s submission that had the applicant wished to challenge that finding by the Delegate, the applicant could have done so in his submissions to the Authority, dated 1 September 2016. The applicant failed to do so.

13. In those circumstances where the applicant failed to challenge that finding by the Delegate, it is not legally unreasonable for the Authority to fail to invite the applicant to give new information on the subject of his family’s wealth (see Minister for Immigration v Li (2013) 249 CLR 332 at [82]).

14. The Authority’s conclusion that the applicant did not face a real chance of serious harm by falling victim to abduction, ransom or other criminal acts was based not only on his lack of obvious wealth, but also because the applicant had no political or other profile that country information indicated may elevate his potential to be abducted or extorted. The Delegate referred to that lack of profile as follows:

    “There is no information before me to indicate the applicant is wealthy or would be perceived as such and therefore a potential target for extortion. I have also taken into account that the applicant does not have a profile listed as of potential adverse interest to paramilitary groups, for example, he is not a human rights or civil activists or journalist.”

15. The applicant also contended that the Delegate found the motivation for the 2012 abduction of the applicant’s boss’s son to be unclear. Counsel for the applicant submitted that the Delegate only considered whether the applicant would be pursued or harassed as a consequence of that event. Counsel for the applicant submitted that the Authority accepted that the applicant’s boss’s son had been targeted due to his family’s wealth or for other reasons.

16. Counsel for the applicant submitted that the Authority should have asked itself in the paragraph referred to at [65] above whether the applicant could himself be subject to abduction or extortion attempts.

17. The Authority, looking at the totality of the circumstances, accepted that the applicant witnessed the abduction of his former employer’s son and that his son may have been targeted for his wealth or for other reason. The Authority stated that it did not accept that the perpetrators had any motive or ability to arrange for a group of Sinhalese men to visit the applicant’s home in Batticaloa and ask questions about his whereabouts the day after the abduction. The Authority made the express finding that the applicant was “an unwitting witness to criminal act, and other than in the immediate moments after the abduction occurred, no person or group had any interest in finding or harming the applicant”.

18. I accept the submission of counsel for the first respondent that by the applicant’s own admission to the Authority he could not take the question of the motive of the perpetrators any further than he did during the visa application process.

19. In the circumstances, the Authority’s finding that the applicant’s former employer’s son may have been targeted for his family’s wealth, or for other reasons, was little more than speculation to which the applicant was unable to add. In any event, the Authority accepted the claim as made by the applicant of witnessing the abduction and that the abduction may have been because of the son’s family’s wealth “or for other reasons”. That speculation by the Authority is consistent with the statement by the Delegate that “it is possible, as the applicant suggests, that (the former employer) and his son could have been targeted in this crime because (the former employer) was wealthy”.

20. In the circumstances, I am not satisfied that the information relied upon by the applicant in relation to Ground 1 is in fact new information. In those circumstances, there was no obligation on the Authority to consider whether to exercise its discretion under s.473DC of the Act in relation to the applicant’s risk of abduction or extortion and the motivation behind the former employer’s son’s kidnapping. The Delegate made findings in respect of both matters and the applicant took neither of those matters further before the Authority.

21. Accordingly, in the circumstances the Authority’s findings on these matters were open to it on the evidence and material before it and for the reasons it gave. Those findings were based on probative evidence and were not without an intelligible justification. The findings were not legally unreasonable (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

22. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Authority failed to apply s.473DD of the Act to the applicant’s submission and supporting country information provided to the Authority that the authorities were involved in white van abductions.

2. Counsel for the applicant contended that the applicant provided new information through the applicant’s legal representative in submissions to the Authority that Sri Lankan authorities use white van abductions and were “somehow involved in the abduction the applicant witnessed.” Counsel for the applicant submitted that this was new information because the applicant had never previously claimed that the authorities were involved in the 2012 abduction. 

3. Counsel for the applicant also submitted that the United Nations General Assembly’s Comprehensive Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, dated 28 September 2015 and provided in support of the submissions, was also new information because it had not previously been provided to the Delegate or to the Department.

4. The applicant contended that the Authority rejected the new information without applying the requirements of s.473DD of the Act. Counsel for the applicant submitted that the Authority did not ask whether there were exceptional circumstances for considering the new information and whether the new information could not have been provided to the Delegate or was credible personal information which could have affected the consideration of the applicant’s claims.

5. The Authority stated that it was satisfied that the applicant’s representative’s submissions, dated 2 September 2016 and the country information referred to, did not contain new information. Accordingly, the Authority had regard to that material in weighing the applicant’s case.

6. In relation to the involvement of the Sri Lankan authorities, the applicant’s legal representative in submissions, dated 1 September 2016, stated as follows:

   “It is well documented that Sri Lankan authorities use white vans to abduct people. The authorities were somehow involved in the abduction the applicant witnessed and he was not privy to the motivation for the abduction and therefore cannot adequately answer any such questioning on motivation.”

7. This was asserted by the applicant to be new information. However, the Delegate made specific reference to white van abductions in the following terms:

   “In relation to ‘white van’ abductions, a 2015 US Department of State Overseas Security Advisory Council (OSAC) crime and safety report on Sri Lanka notes that kidnappings in Sri Lanka ‘occur infrequently and mainly within the local community’. The motive was ‘usually political or business-related rather than an organized kidnap and ransom enterprise. Victims and victims’ families have also blamed kidnappings on security services (extrajudicial detentions or arrests, known as “white van” kidnappings)’. Whilst I acknowledge that ‘white van’ abductions do take place in Sri Lanka, I do not consider that a person with the applicant’s particular profile faces a real chance of persecution by the authorities or anyone else in Sri Lanka.”

1. In relation to the applicant’s claim in particular, the applicant had given evidence that the applicant’s former employer’s son’s uncle was associated with Sri Lankan authorities and was instrumental in the abduction.

2. The Authority rejected that applicant’s claim that the uncle was involved in the abduction in circumstances where it was the son’s uncle whom the applicant claimed had connections to the Sri Lankan authorities.

3. In the circumstances, I accept counsel for the first respondent’s submission that if the applicant’s claim about the uncle was rejected (as it was) then the applicant’s claim about involvement of the authorities could not be maintained.

4. In relation to this claim, the Authority stated as follows:

   “I do not accept that P’s uncle was involved. For the same reasons, I also do not accept the very late claim made to the IAA that the authorities may have been involved in the abduction. This too is speculative and unsupported by any evidence before me.

   …

   As I have not accepted that P’s uncle was involved in the abduction, there is no apparent explanation for how the applicant could have been identified as a witness, let alone have his identity tracked to his family home in Batticaloa. In that context, his claims again appear unsupported on the evidence.”

5. Accordingly, I am not satisfied that the applicant’s legal representative’s submission in relation to van abductions by authorities was new information. Accordingly, there was no enlivenment of the Authority’s obligation to consider s.473DD of the Act in relation to that claim.

6. In relation to the country information provided by the applicant’s representative in the submission, dated 1 September 2016, the first respondent concedes that that information was new information. The first respondent contends that even though that country information was new information, the Authority’s failure to apply s.473DD to that information was not a jurisdictional error. That is because the first respondent submits that the country information could not possibly have operated unfairly to the applicant and it in fact did not do so. The country information provided by the applicant’s legal representative was intended to be supportive of the applicant’s claims for protection. The country information was described as being a comprehensive report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka. Certainly, the country information was not held against the applicant in any adverse manner.

7. The first respondent referred to CYO16 v Minister for Immigration and Border Protection [2019] FCA 2, which I accept is apt to this case where Farrell J said at [47] as follows:

   “... [T]here is a level of absurdity in the [applicant] relying on the fact that the IAA did not reject the [country information] on the basis that it was ‘new information’ when it was the [applicant] who asked for that [information] to be taken into consideration.”

8. In the circumstances, I am not persuaded that the Authority’s error in considering the new information was of any material effect and did not operate unfairly to the applicant. I accept the first respondent’s submission that if the Authority had not had regard to the information no different outcome would have occurred (see Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at [30] and [72]).

9. Ultimately, it was the applicant’s lack of profile that the Authority found to be the reason why he would not be at risk of harm in Sri Lanka from the authorities or any other person as he was of no interest to them. That conclusion was based largely on country information before it. In relation to the applicant’s claim to fear harm because of witnessing the abduction in 2012, the Authority found the applicant to be an unwitting witness to a criminal act and that following the immediate moments of the abduction, no person or group had any interest in harming the applicant.

10. In the circumstances, the Authority’s error in failing to apply s.473DD of the Act to the country information provided by the applicant’s legal representative, I find to be an error within jurisdiction.

11. Even if the error was a jurisdictional error, having regard to the utility in any remitter, the Court would not exercise its discretion to grant the applicant relief. I am satisfied that the result of the review could not possibly be different if the Authority had turned its mind to s.473DD of the Act in relation to the country information identified by the applicant’s legal representative and the Authority’s decision that it was precluded from having regard to the country information.

12. Accordingly, Ground 2 is not made out.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.

2. The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 2 May 2019