DMJ17 v Minister for Immigration and Anor
[2020] FCCA 2688
•28 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DMJ17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2688 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority erred in considering the receipt of new information or whether the review was vitiated by the failure by the Secretary to forward several documents to the Authority considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 438, 473CB, 473DD |
| Cases cited: AAL19 v Minister for Home Affairs [2020] FCAFC 114 Ali v Minister for Home Affairs [2020] FCAFC 109 AQU17 v Minister for Immigration (2018) 162 ALD 442 AUH17 v Minister for Immigration [2018] FCA 388 BVD17 v Minister for Immigration (2019) 93 ALJR 1091 BVZ16 v Minister for Immigration (2017) 254 FCR 221 BYA17 v Minister for Immigration [2019] FCAFC 44 CAQ17 v Minister for Immigration [2019] FCAFC 203 CHF16 v Minister for Immigration (2017) 257 FCR 148 CQR17 v Minister for Immigration [2019] FCAFC 61 DHV16 v Minister for Immigration & Anor [2018] FCCA 349 EMJ17 v Minister for Immigration [2018] FCA 1462 EVS17 v Minister for Immigration [2019] FCAFC 20 FET18 v Minister for Home Affairs (No 2) [2019] FCA 1524 Minister for Immigration v BBS16 (2017) 257 FCR 111 Minister for Immigration v CLV16 (2018) 260 FCR 482 Minister for Immigration v CPA16 [2019] FCAFC 40 Minister for Immigration v CQW17 (2018) 264 FCR 249 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZMTA (2019) 363 ALR 599 Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 |
| Applicant: | DMJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2451 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Solicitors for the Applicant: | Siva Logan Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 12 July 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2451 of 2017
| DMJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 July 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male of Hindu faith and Tamil ethnicity, born in 1992 in a named location (location one) in the Western Province of Sri Lanka.
It has not been disputed that prior to his departure from Sri Lanka, he had spent most of his time living in a named location (location two) in the Batticaloa District and Eastern Province.
The applicant arrived in Australia on 21 October 2012 as an “irregular maritime arrival” and, on or about 3 May 2016, applied for a Safe Haven Enterprise Visa (SHEV).
In his statement dated 20 April 2016,[1] the applicant said that during the Sri Lankan Civil War he lived in location two, an area under the control of the Liberation Tigers of Tamil Eelam (LTTE), and that after his father died his mother sent him to live in Colombo to avoid him being forcibly recruited.
[1] Court Book (CB) 68; note that the last page of the statement was not reproduced in the court book.
The statement continues to state that in June 2012 a motorbike was set on fire in front of his family home and, the following day, he and his family were taken to the police station and questioned. The police asked him to sign a statement saying that he had seen certain people light the fire and, when he refused, they accused him of being an LTTE supporter trying to protect the LTTE suspects and threatened to add his name to the list of suspects. The police officers kicked and slapped his mother and sisters and said that they would not stop until he agreed to sign the statement, and he was also beaten.
The applicant said four men subsequently came to his home and put a gun to his head and squeezed his neck, telling him that unless he told them what they wanted him to say his life was in danger.
The applicant fled to a named location (location three) and ultimately to Australia, however he has been told that people continued to come to his family home in search of him.
The applicant said he feared that if he were returned to Sri Lanka he would be targeted because of what happened in the past, because he is a Tamil from the East and left Sri Lanka illegally, and because it will be assumed he had sought asylum overseas and spoken out against the Sri Lankan authorities.
On 24 August 2016, the applicant attended an interview with the delegate and responded to questions with the assistance of an interpreter in the Tamil and English languages.
On 18 November 2016, the delegate found that the applicant did not meet the criteria set out in s.36 of the Migration Act 1958 (Cth) (Migration Act) and refused his application for a SHEV.[2]
[2] CB 130.
The delegate accepted the applicant’s claimed identity and said that it was “possible” the episode, in which the applicant claimed a motorbike was set alight in front of his home, might have occurred. However, the delegate found the applicant’s account of being subsequently targeted by the police and paramilitaries “unconvincing”. The delegate did not accept that the applicant has an elevated profile in relation to the LTTE or is of any adverse interest to the authorities.
The delegate also concluded that, though the applicant faced some degree of discrimination as a Tamil and would be identified upon return as a failed asylum seeker, he did not face persecution or a real risk of significant harm.
The Authority below
A determination was made that the applicant was a “fast track applicant”, and the decision of the delegate a “fast track reviewable decision”; and on 23 November 2016 the decision was referred to the Authority for review under Part 7AA of the Migration Act.
On 12 December 2016, the applicant provided written submissions to the Authority,[3] and on 13 December 2016 he provided further supporting documents to the Authority in the form of:
a)a letter signed by a Pastor of the Church of the Foursquare Gospel in Sri Lanka dated 12 December 2012;[4]
b)three Summonses issued by a Magistrates Court dated 6 August 2012 to the applicant’s sisters at the applicant’s home address in Sri Lanka in relation to the “alleged offence” of “setting fire to a motorbike and gutting it” (collectively, “Summonses”).[5]
[3] CB 150.
[4] CB 154.
[5] CB 155-163.
As noted above, on 12 July 2017, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV.[6]
[6] CB 168.
Under the heading “Information before the IAA”, the Authority stated that it did not consider the 12 December 2016 submissions contained any “new information” for the purposes of s.473DD of the Migration Act and that the Pastor’s letter and the Summonses were “new information”, consideration of which it was not satisfied there were exceptional circumstances to justify. The Authority stated at [6] that “no explanation has been provided regarding the significance of the summonses to his claims”.
The Authority accepted that there was an incident in the applicant’s village in which two police motorbikes were set on fire and was willing to accept that if this happened close to his house he and his family may have been questioned at their home because they may have been witnesses. However, the Authority did not accept that, after the motorbike was destroyed, the applicant and his family were subsequently targeted for harm by the police or associated paramilitary organisations after he refused to provide false information about who the perpetrators were or that he and members of his family were physically assaulted and threatened with death, accused of being involved with the LTTE, or threatened with having his name put on the list of suspects.
The Authority found that if the applicant were to return to Sri Lanka the possibility of the applicant being subject to “random security measures” or spending more than a few days in detention would be “remote” and concluded that he did not face persecution or a real risk of significant harm.
The current proceedings
These proceedings began with a show cause application filed on 2 August 2017. The matter was docketed to Judge Barnes but was recently transferred to my docket. The applicant now relies upon a further amended application annexed to his submissions in respect of which I gave leave for him to rely upon at the trial on 25 September 2020. There are two particularised grounds in the application as thus amended:
1. The second respondent (Authority) failed to give proper, genuine and realistic consideration to the claimed significance of “new information” provided to it.
Particulars
Documents entitled “Summons to a witness to give evidence” dated 6 August 2012
2. Further or in the alternative, the performance of the Authority’s statutory task miscarried due to a failure by the Secretary of the first respondent’s department to forward one or more of the documents the applicant had given to the delegate.
Particulars
a. letter from “[name], Justice of the Peace” dated 14 December 2012;
b. page including handwritten letter dated “2008/10/14” with annotation “UMI/096 Refugee letter by Divisional Sec or Sri Lanka”;
c. handwritten letter dated “2008.10.16”styled “O.I.C Police Post [place]”;
d. page including handwritten letter dated “2008/10/22” styled “[name]”; and
e. page including handwritten letter dated “2008/10/18” styled “[name]”.
In addition to the court book filed on 21 November 2017, I have before me as evidence:
a)the affidavit of Lecia Marie Stark (Stark affidavit) made on 22 March 2018, annexing a transcript of the applicant’s protection visa interview with the delegate;
b)the affidavit of Sai Priya Sivalohan (Sivalohan affidavit) made on 13 April 2018, annexing the applicant’s Notice to Admit Facts and the response from the Minister’s lawyers;
c)the affidavit of the applicant made on 16 April 2018 annexing documents he says he gave the Minister’s Department which were not provided to the Authority;
d)the applicant’s complete protection visa statement which was tendered and became Exhibit A1.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial. I have been assisted by those submissions.
Consideration
Ground 1 – did the Authority fail to give proper, genuine and realistic consideration to new information provided to it?
Applicant’s contentions
Section 473DD of the Migration Act is entitled “Considering new information in exceptional circumstances” and provides:
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.
In Ali v Minister for Home Affairs,[7] the Full Federal Court recently explained the nature of judicial review of subjective jurisdictional facts as follows at [42]:
The shielding of jurisdictional facts from curial review by interposing a subjective deliberation on a matter is a long established legislative drafting technique: The Council of the Municipality of Bankstown v Fripp [1919] HCA 41; (1919) 26 CLR 385 at 403, acknowledged by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (Eshetu) at 651 [130], and repeated by his Honour with McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20/2002) at 1175 [54]. Although the existence of a subjective state of mind is not beyond review by the Court, the grounds upon which it may be “reviewed” are limited. An early identification of those grounds was undertaken by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 (Avon Downs) at 360. Those grounds have been added to and refined over the years: MacCormick v Federal Commissioner of Taxation [1945] HCA 10; (1945) 71 CLR 283; Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118–119 per Gibbs J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at 998 [38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS); EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681. Despite that elaboration in the later cases, the principles on which subjective jurisdictional facts may be reviewed are nevertheless generally referred to as “Avon Downs principles”. That being said, where the state of mind on which the operation or exercise of a provision or power is conditioned is vitiated by an Avon Downs error, any subsequent purported exercise of power will necessarily be affected by jurisdictional error: S20/2002 at 1176 [59].
[7] [2020] FCAFC 109.
The Authority’s state of satisfaction under s.473DD of the Migration Act as to whether or not new information may be considered is such a subjective jurisdictional fact. It determines whether new claims or evidence can be considered by the Authority and thus determines the scope of the review under Part 7AA of the Migration Act. Accordingly, in BYA17 v Minister for Immigration[8] the Full Federal Court held that the failure of the Authority to form a state of satisfaction under s.473DD in respect of whether it should have considered new information provided to it was an error on Avon Downs grounds.
[8] [2019] FCAFC 44 at [55].
Similarly, in Minister for Immigration v CLV16,[9] the Full Federal Court held that the Authority in conducting a review under Part 7AA of the Migration Act is obliged to consider “submissions” made by a referred applicant, as distinct from new “information” or “documents”.
[9] (2018) 260 FCR 482 at [42].
In the present case, the Authority at [6] was not satisfied there were exceptional circumstances justifying consideration of the Summonses because it said “no explanation has been provided regarding the significance of the summonses to his claims”.
The applicant contends, however, that he had explained the relevance of the Summonses. He said that they were relevant to the credibility of his refugee claims,[10] and in any case this is said to have been self-evident that this was so. The applicant had claimed that he and his family had been targeted as potential witnesses to the arson and the Summonses clearly related to that incident and:
a)were contemporaneous documentary evidence;
b)which identified the applicant’s sisters by name;[11] and
c)referred to their home address in location two.
[10] CB 150.7.
[11] For the names of the applicant’s sisters, see CB 38-39.
The applicant asserts that, if accepted, the Summonses showed that, contrary to the Authority at [21], following the event, his family was not just questioned at their home but were pursued further by the authorities.
In the applicant’s submission, the Authority’s failure to consider the potential corroborative significance of the Summonses amounts to a failure to give proper, genuine and realistic consideration to the applicant’s submissions and a failure to form a valid state of satisfaction as to whether the Summonses were “credible personal information” and whether there were exceptional circumstances justifying their consideration.
Resolution
I prefer the Minister’s submissions in relation to this ground.
By this ground, the applicant contends that the Authority fell into jurisdictional error because it “failed to give proper, genuine and realistic consideration to the claimed significance of ‘new information’ provided to it”, namely, the three Summonses.
The applicant does not assert that the Authority contravened s.473DD in the sense described in cases such as BVZ16 v Minister for Immigration,[12] Minister for Immigration v BBS16,[13] CHF16 v Minister for Immigration,[14] AQU17 v Minister for Immigration[15] and Minister for Immigration v CQW17.[16] That is to say, the applicant’s case is not that the Authority adopted an unduly narrow reading of the phrase “exceptional circumstances” in s.473DD(a).
[12] (2017) 254 FCR 221.
[13] (2017) 257 FCR 111.
[14] (2017) 257 FCR 148.
[15] (2018) 162 ALD 442.
[16] (2018) 264 FCR 249.
Rather, the applicant’s point is that the Authority “fail[ed] … to form a state of satisfaction under [s] 473DD in respect of whether it should have considered new information provided to it”. The applicant calls in aid of that contention the judgment of the Full Federal Court in BYA17. That was a case where the Authority had neglected to turn its mind to whether new information that had been given to it met the preconditions in s.473DD.[17] It was in that context that the Full Federal Court found[18] that there was a proper basis for inferring that the Authority had failed “to form a state of satisfaction under s.473DD in respect of whether it should have considered the information in the news reports and, if satisfied that they should be considered in the review, to consider them”.
[17] see at 106 [36], 107 [44].
[18] at 110 [55].
I accept the Minister’s submission that the present case is far removed from the circumstances confronting the Full Federal Court in BYA17. Here, the Authority identified and summarised the content of the Summonses at [4].[19] It correctly noted that none of the Summonses was addressed to the applicant or listed him as a suspect in the motorcycle incident that allegedly took place in June 2012. The Authority went on to record findings in relation to those documents by reference to s.473DD of the Migration Act,[20] as follows:
In relation to the three summonses, given the date which they indicate the witnesses were required to attend to give evidence, I am satisfied that the summonses predate the date of the delegate’s decision. I note that while the applicant’s family name appears on the summonses under name and address of witness, his own name does not appear and while it also appears that the court matter concerns the incident referred to by the applicant (the setting fire to a motorbike) no explanation has been provided regarding the significance of the summonses to his claims. In the circumstances, I am not satisfied that exceptional circumstances exist to justify considering the new information comprising the court summonses.
[19] CB 169.
[20] at CB 169-170 [6].
These findings reveal that the Authority had regard to the content of the information in the Summonses in making a determination under s.473DD. It appreciated that the Summonses called for witnesses, whose family names were the same as that of the applicant, to give evidence in relation to the alleged motorcycle incident in June 2012, and that the applicant was not named as a witness or a suspect in relation to that incident.
I accept that the Authority was correct to say that the applicant had not provided an explanation in relation to the significance of the Summonses to his claims for protection. To say, as the applicant did in his submissions dated 12 December 2016 (to which the Authority had regard[21]), that the documents “give credibility to [his] refugee claims”, does not advance matters. The applicant’s “refugee claims” involved a fear of persecution at the hands of the Sri Lankan authorities, police and paramilitary groups on account of, relevantly, his encounters with the police and others in 2012 following the alleged motorcycle incident.[22] He claimed that, both prior to and after relocating to Colombo, persons were looking for him.[23] He further claimed that, after he left Sri Lanka, persons had come to his house “ask[ing] about [him] and search[ing] [his] house”.[24] The Summonses, however, said nothing as to whether the Sri Lankan authorities had an adverse interest in the applicant (or that they had assaulted him and members of his family in 2012). Indeed, it can comfortably be inferred from the absence of any reference to the applicant in any of those documents that he was not a person of interest to them. It is not, therefore, “self-evident” that the Summonses had significance to the applicant’s claims for protection.[25] The Summonses may have assisted in establishing that the alleged incident in June 2012 had occurred (as to which the Authority was aware in the penultimate sentence at [6] of its reasons), but they went no further than that. The documents did not show that the applicant’s siblings were “pursued further by the authorities”, if by that expression it is suggested that the Sri Lankan authorities had an adverse interest in them. It was no part of the applicant’s case, in either the visa application or merits review processes, that he feared persecution on the basis of orders pronounced by a judicial authority in Sri Lanka requiring at least one of his siblings to attend the Magistrates Court to give evidence as a witness to the alleged June 2012 incident.
[21] CB 169 [3].
[22] CB 73 [38]-[40], 74 [43]-[44].
[23] CB 72 [30]-[33].
[24] CB 72 [35].
[25] Cf DHV16 v Minister for Immigration & Anor [2018] FCCA 349 at [93].
The Authority gave consideration (in the requisite sense) to the Summonses at [4] and [6],[26] including the import (or lack thereof) of the information contained in them. It was not, however, satisfied that there were exceptional circumstances to justify considering them for the purpose of reviewing the delegate’s decision. In reaching that conclusion, the Authority had regard to the relevance (or lack thereof) of the information contained in them. It was a matter for the Authority to form a view about relevance, and it was not required to give reasons for that view.[27]
[26] CB 169-170.
[27] FET18 v Minister for Home Affairs (No 2) [2019] FCA 1524 at [33], [48] per Colvin J.
Importantly, the Authority expressed its conclusion as to s.473DD(a) in the final sentence at [6] of its statement of reasons by reference to “the circumstances”. The Authority did not reason that, because the applicant failed to give an explanation in relation to the significance of the Summonses to his claims, it necessarily followed that exceptional circumstances did not exist. Put another way, it did not make the type of error identified in the cases listed at [34] above. The use of the expression, “[i]n the circumstances”, is significant, as it indicates that the Authority had regard to all of the circumstances in forming an evaluative judgment[28] as to whether exceptional circumstances existed and did not construe s.473DD(a) narrowly. The Authority was under no duty to give reasons for its determination under s.473DD,[29] and, as the plurality observed in CAQ17 v Minister for Immigration,[30] it may well be that the Authority “identified its main concern” as to why exceptional circumstances did not exist but “[i]t does not follow … that it did not consider other matters”.
[28] Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 at 243 [75] per Gageler, Keane and Nettle JJ.
[29] BVD17 v Minister for Immigration (2019) 93 ALJR 1091 at 1096 [16] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.
[30] [2019] FCAFC 203 at [119].
In so far as the applicant may contend that the Authority failed to form a valid state of satisfaction as to the precondition in s.473DD(b)(ii), I reject the submission. The Authority was under no obligation to make a determination as to the precondition in s.473DD(b) in circumstances where it had made a finding adverse to the applicant on the precondition in s.473DD(a).[31] As the Full Federal Court has recognised, the factors in ss.473DD(b)(i) and (ii) are not ones which must be taken into account by the Authority in forming a view about the existence of exceptional circumstances under s.473DD(a).[32] Also, unlike s.473DD(a), s.473DD(b) requires the referred applicant to satisfy the Authority of the matters described in that sub-paragraph. As Mortimer J observed in AUH17 at [33], “[t]hat at least calls for some material from an applicant by way of explanation”. But the applicant gave no such explanation in his submissions dated 12 December 2016 as to why the documents met the requirements of s.473DD(b)(ii).
Ground 2 – was the review vitiated by the failure of the Secretary to forward to the Authority documents the applicant had given to the delegate?
[31] AUH17 v Minister for Immigration [2018] FCA 388 at [34] per Mortimer J.
[32] see, for example, AQU17 at [14], [16] per McKerracher, Murphy and Davies JJ; CAQ17 at [122] per Derrington and Steward JJ; AAL19 v Minister for Home Affairs [2020] FCAFC 114 at [44] per Logan, Markovic and Anastassiou JJ.
Applicant’s contentions
As relevant to the current proceeding, s.473CB(1) of the Migration Act provides:
(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:
…
(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;
…
In EMJ17 v Minister for Immigration, Thawley J stated at [41(5)]:[33]
[33] [2018] FCA 1462.
A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA. It not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority’s decision-making process - cf: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority’s jurisdiction is, through no fault of its own, “constructively unexercised”: SZFDE at [52].
In amplification of the last proposition:
(1) If, for example, in breach of s 473CB(1)(b) the Secretary failed to give to the Authority material provided to the delegate by the visa applicant before the delegate made his or her decision, the Authority might well be prevented from conducting the very “review” which Part 7AA contemplated and jurisdictional error might, accordingly, be established.
(2) A breach of s 473CB(1)(c) might also have that consequence. The statutory scheme contemplates limited merits review on the “review material” provided by the Secretary to the Authority. The “review material” must include material which the Secretary considers to be relevant: s 473CB(1)(c). It is implicit that the statute contemplates that the Secretary’s view as to relevance be reasonably formed on a correct understanding of the law - see: Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36 (Brennan CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [63] (Hayne, Kiefel and Bell JJ). If a critical piece of relevant information were unreasonably treated as irrelevant, it is possible that jurisdictional error could be established because of the effect of that error on the Authority’s decision-making process and whether it conducts a “review” of the kind authorised.
His Honour’s comments were later approved by the Full Federal Court in EVS17 v Minister for Immigration[34] and CQR17 v Minister for Immigration.[35] In the latter case, the Full Federal Court stated that breach is established where the Secretary either does not consider the relevance of documents or where he considers the relevance and unreasonably concludes the documents are not relevant to the review.
[34] [2019] FCAFC 20.
[35] [2019] FCAFC 61.
In the present case, the Minister admits that the following documents were provided to the delegate at the protection visa interview and not provided by the Secretary to the Authority:[36]
a)letter from a named Justice of the Peace dated 14 December 2012 (JP Letter);
b)page including handwritten letter dated “2008/10/14” with annotation “UMI/096 Refugee letter by Divisional Sec of Sri Lanka”;
c)handwritten letter dated “2008.10.16” styled “O.I.C. Police Post” at location two;
d)page including handwritten letter dated “2008/10/22” styled “Grama Niladhari” at location two; and
e)page including handwritten letter dated “2008/10/18” styled “Grama Niladhari” at location two.
[36] The documents appear at Annexure APP-1 to the affidavit of the applicant made 16 April 2018.
In any event, it is noted that:
a)the material is referred to in the transcript;[37]
b)the handwritten pages are endorsed, presumably by the delegate, with the applicant’s full name and Boat ID number in the same handwriting as the other supporting documents on the departmental file;
c)the handwritten pages appear to be the balance of the document at CB 88; and
d)none of the material is listed as having been included with the applicant’s original visa application.[38]
[37] Transcript at page 35 line 6 and following, page 44 line 1 and following.
[38] CB 65.
The applicant contends that the 14 December 2012 JP Letter was relevant because it was personal evidence which corroborated the applicant’s claim of persecution based on his Tamil ethnicity and origination from a former LTTE controlled region of Sri Lanka. In this way, it is said to be comparable with the letter addressed “to whom it may concern”, found by the Full Federal Court to have been material to the Authority’s decision in Minister for Immigration v CPA16.[39] In that case, the Full Federal Court specifically rejected the Minister’s argument that the material not provided to the Authority must be “cogent or centrally relevant”, in the SZRKT sense. The Full Federal Court referred to the High Court’s decision in Minister for Immigration v SZMTA[40] and concluded that, just as an invalid notification by the department to the Administrative Appeals Tribunal under s.438 of the Migration Act could amount (without fault on the part of the Tribunal) to jurisdictional error, so too could a breach by the Secretary of the mandatory obligation to give the Authority material under s.473CB of the Migration Act.
[39] [2019] FCAFC 40 (Yates, Murphy and Moshinsky JJ).
[40] (2019) 363 ALR 599.
The handwritten letters, although only partly written in English are said to have been relevant because they corroborated the applicant’s oral and written testimony regarding his family history, their displacement and the letter he said his mother wrote following the death of his father during the war. They were relevant to the applicant’s generalised claim to be imputed to be an LTTE supporter because of his family history in location two and Batticaloa, that as a Tamil from the East who lived in an LTTE controlled area he would be targeted on the basis of ethnicity and imputed political opinion.
In the applicant’s submission, he was denied the realistic possibility of a favourable outcome because the Authority never had the opportunity to consider evidence which was relevant to the applicant’s generalised claims.
Minister’s contentions
On 16 March 2018, the Minister formally admitted that the documents listed in the particulars to Ground 2 had not been given by the Secretary to the Authority, but that he did not know whether they had been given by the applicant to the Minister’s delegate at the SHEV interview held on 24 August 2016.[41]
[41] Sivalohan affidavit, Annexure SPS-4.
Although the onus is on the applicant to demonstrate jurisdictional error,[42] Ground 2 can be resolved on the assumption that the applicant gave the documents to the delegate but the Secretary did not give them to the Authority in contravention of s.473CB(1)(b). For the reasons that follow, however, the Minister submits that the Secretary’s breach of that provision did not vitiate the Authority’s decision.
[42] Minister for Immigration v SZGUR (2011) 241 CLR 594 at 616 [67] per Gummow J.
The first document listed in the particulars to Ground 2, the JP Letter,[43] did not contain information which, had it been given to the Authority, could realistically have made a difference to the outcome of the review. The first paragraph in the JP Letter records the fact that the author knows the applicant (a fact which can be inferred from a letter that the same author wrote in support of the applicant’s case on 29 December 2012)[44]. The second paragraph in the JP Letter makes no reference to any of the applicant’s claims for protection or his individual circumstances; rather, it refers to the war in Sri Lanka, the fact that people are affected by unemployment and poverty, and the emigration of Tamils from Sri Lanka to other countries because it is “unsafe” in that country and to seek employment. The third paragraph speaks of the international community being aware of the situation in Sri Lanka. The final paragraph “certify[ies]” that the applicant “is also living under th[ese] similar conditions”. But the author had already stated, in his letter dated 29 December 2012 (which was before the Authority), that the applicant was “living under th[ese] similar conditions”, having earlier referred to the alleged motorcycle incident in June 2012 and his having left Sri Lanka on account of “contin[u]ous life threatening” “condition[s]”. Indeed, the letter from PM Selladurai that was given to the Authority was more focused than the JP Letter. The JP Letter did not, contrary to the applicant’s submissions, “corroborat[e] the applicant’s claim of persecution based on his Tamil ethnicity and origination from a former LTTE controlled region of Sri Lanka”; it said nothing about those matters.
[43] Sivalohan affidavit, Annexure SPS-3, page 5.
[44] CB 84.
Further, the Authority was armed with, and took into account, a considerable body of evidence that discussed the situation confronting Tamils in Sri Lanka,[45] some of which supported the applicant’s claims.[46] It is difficult to see what, if anything, the JP Letter could have added to that material.
[45] CB 174-176 [28]-[33].
[46] CB 174-175 [28].
The Minister submits that the second, third and fifth documents listed in the particulars to Ground 2 were not ones which, had they been given to the Authority, could realistically have made a difference to its decision.
The third and fifth documents[47] were written in a language other than English and the applicant did not describe their contents in the interview with the delegate. The words “Letter from Divisional Secretary” appearing at the foot of the fifth document, read in isolation, could not have added anything of substance to the information before the Authority.
[47] Sivalohan affidavit, Annexure SPS-3, pages 7, 9.
The second document[48] was written almost entirely in a language other than English and the applicant did not describe its contents in the interview with the delegate. As with the fifth document, the words “Refugee Letter by Divisional Sec of Sri Lanka” in the second document, read in isolation, could not have added anything of substance to the information before the Authority.
[48] Sivalohan affidavit, Annexure SPS-3, page 6.
The fourth document[49] contained some words in English, but they appear to be making the point that the applicant’s mother was a permanent resident of the author’s “division”. Again, in the Minister’s submission, this information, had it been before the Authority, could not realistically have made a difference to the outcome of the review.
[49] Sivalohan affidavit, Annexure SPS-3, page 8.
The Minister submits that the fact that the handwritten documents were not given by the Secretary to the Authority did not deny the applicant of a realistic possibility of a favourable outcome on review. They did not detail the applicant’s family history, their displacement, the circumstances surrounding his father’s death, his imputed LTTE political opinion or the harm that he feared by reason of his being a Tamil. While the applicant briefly mentioned, during the interview, that one of the letters had been written by his mother, and made passing reference to the death of his father,[50] he did not go further and explain the contents of each of the handwritten documents. In any event, the Authority accepted that the applicant is a Tamil and originated from the Batticaloa district in the Eastern Province of Sri Lanka,[51] that his home area was “under the control of the LTTE”[52] and the evidence that he gave during the interview in relation to the death of his father.[53]
[50] Stark affidavit, Annexure LS-1 at page 43, lines 1-13.
[51] CB 171 [11].
[52] CB 171-172 [12].
[53] CB 172 [12].
Resolution
This ground asserts that the Authority fell into jurisdictional error because the Secretary did not provide to the Authority certain documents in breach of s.473CB(1)(b) of the Migration Act.
In my opinion, the review in this case was vitiated by the Secretary’s breach of the statutory obligation in s.473CB(1)(b) of the Migration Act. There are essentially three reasons for that conclusion.
First, the breach related to not one document but five documents all provided by the applicant to the delegate at the interview with the delegate in support of his claims. The statutory code of procedure under which the Authority operates for most purposes limits the material available to the Authority to that which is provided by the Secretary. If the Secretary withholds a substantial part of the material provided to the delegate by the visa applicant, the review process must be put in peril. It cannot be said that the documents in issue in this case were irrelevant or immaterial to the review. If there is no legal consequence in circumstances where the Secretary withholds a significant body of material on which an applicant relies from the Authority, the integrity of the review process is undermined. The greater the volume of material that is withheld, the more difficult it is for a court to determine the significance of individual documents. The greater the volume of material in issue, the greater the risk that the Court will be led into merits review by attempting to assess the materiality of each document.
Secondly, as is noted in the Minister’s submissions, the second, third, fourth and fifth documents were all written wholly or partly in a foreign language. The Minister’s submissions focus on the elements in those documents that happen to be in the English language and pass over the elements in a foreign language as, in effect, immaterial.
It is true that applicants are under an obligation to translate documents in a foreign language into the English language for the assistance of both the delegate and the Authority. The foreign language of the documents is presumably either Sinhalese or Tamil. Unless the delegate was able to understand those languages, the delegate would not have been able to read the documents written in those languages. In the circumstances, it is entirely a matter of conjecture what the significance of the foreign language portions of the documents was.
The fact that these documents were not provided to the Authority deprived the Authority of the opportunity of considering whether to ask the applicant to provide English translations of the documents. It is not apparent to me whether the applicant retained copies of the documents he provided to the delegate and hence I do not know whether the applicant would have been in a position to comply with either his general obligation or a specific request. He could do so now as they are in evidence.
In circumstances where, for the most part, it is not known what was written in these documents, I am unwilling to reach a conclusion that they were immaterial to the review. Rather, I am drawn to the view that the applicant was deprived of the opportunity for a successful outcome on the review in circumstances where, having provided them to the delegate, the applicant may not have been in a position to provide English language translations of them and, in circumstances where the Authority, not having seen the documents at all, would not have been able to form a view as to what to do with them.
Thirdly, the JP Letter, while it might be described as containing information in the nature of general country information, was apparently from a person “on the ground” who knew both the applicant and the applicant’s local area and the prevailing circumstances. That information should have been weighed in the balance by the Authority with other information bearing upon the applicant’s attribute as a young Tamil male from the East of Sri Lanka who had lived under the control of the LTTE.
I conclude that this ground has been established.
Conclusion
The applicant has succeeding in establishing that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 October 2020
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