DNJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 785
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DNJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 785
File number(s): SYG 2489 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 27 August 2024 Catchwords: MIGRATION – Whether Immigration Assessment Authority erred in decision regarding whether to consider new information – whether error in not accepting particular claim Legislation: Migration Act 1984 (Cth) ss 5AAA, 36, 473DD, 476 Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Djokovicv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150
Division: General Federal Law Number of paragraphs: 76 Date of hearing: 19 February 2024 Place: Sydney Counsel for the Applicant: Mr G Foster Solicitor for the Applicant: Sentil Solicitor Solicitor for the Respondents: Mr J Pinder, Mills Oakley ORDERS
SYG 2489 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DNJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
27 AUGUST 2024
THE COURT ORDERS THAT:
1.The application filed on 4 August 2017, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application made pursuant to s 476 of the Migration Act 1984 (Cth) (Act). The applicant seeks review of a decision of the Immigration Assessment Authority (Authority) dated 12 July 2017, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant him a Safe Haven Enterprise visa (visa).
BACKGROUND
The following background and summary are primarily derived from the written submissions of the parties and, unless otherwise indicated, do not appear to be in dispute. Certain details of the applicant’s claims have been generalised in these reasons for judgment, so as to limit the possibility that they may cause him to be identified.
On 25 November 2015, the applicant applied for the visa with the assistance of a migration agent who was also a solicitor (CB 1 to 39 and 57). The applicant claimed to fear serious harm in Sri Lanka for the following reasons:
(a)he was a member of the Eelam Revolutionary Organisation of Students (EROS) party and in 2012 had campaigned for his father-in-law, who was a candidate in district elections (of a particular place), and the applicant was threatened by members of “opposing parties” (CB 34). The applicant said he reported one of the threats to the police but that “members of the parties came to know of this”. He then went into hiding at his sister-in-law’s house and, after armed men went to his marital home asking about his whereabouts, the applicant left Sri Lanka because he was afraid that they would find and kill him (CB 34 to 35);
(b)the applicant feared that “members of the opposing parties” and “members of Pillaiyan’s [sic] TMVP and Karuna’s SFP” would harm him because of his involvement in his father-in-law’s campaign, and for reporting a particular incident to the police (CB 34); and
(c)members of the parties referred to above continued to come to the applicant’s marital home asking about his whereabouts, even after he left Sri Lanka (CB 34). The applicant said his wife lodged police reports about those visits, but the police took no action (CB 35).
In support of his application, the applicant provided various supporting documents (CB 47 to 55), including a translated police report dated 29 October 2015 (2015 police report) which was said to detail a complaint made by the applicant’s wife alleging that she had been threatened and abused by four men who had come to their house looking for the applicant (CB 48 to 49).
At the interview with the delegate on 9 August 2016 (SHEV interview), the applicant claimed the Pillayan and Karuna Groups were aware that he was questioned by the Sri Lankan authorities in 1998 on suspicion of supplying fuel to the Liberation Tigers of Tamil Eelam (LTTE) and that they had threatened to “create problems for him” (CB 85).
On 17 November 2016, the delegate refused to grant the applicant the visa (CB 82 to 96).
The delegate accepted that the applicant was suspected of supplying fuel to the LTTE in 1998, but noted he had not claimed to have experienced any issues with the Sri Lankan authorities, despite continuing to live and work in Sri Lanka in the following 14 years (CB 90 to 91). The delegate also accepted that the applicant campaigned for his father-in-law in 2012 as a member of the EROS party and that he was harassed by members of the Tamil Makkal Viduthalai Pulikal (TMVP) and Karuna groups (CB 91). While accepting that unknown men came to the applicant’s house looking for him in August 2012 (CB 91), the delegate was not satisfied that the applicant was of ongoing interest to the TMVP given the passage of time since the 2012 provincial elections. The delegate found that the applicant’s risk of harm based on his political activities in 2012 and opposition to the TMVP was remote (CB 93).
The Authority’s decision
The delegate’s decision was referred to the Authority for review on 23 November 2016 (CB 102).
On 14 December 2016, the applicant provided a written submission to the Authority (December submission) (CB 114 to 118) together with three internet articles which had been published on TamilNet (CB 119 to 123).
The December submission commenced with a paragraph by which the applicant gave explanations for why new claims (which he then went on to make), had not previously been made. By paragraph [1] of the December submission the applicant said as follows (CB 114 and CB 115) (anonymisation added, errors in original):
I arrived in Australia by illegal boat passing through treacherous sea which made me to fear for my life till I landed in Australia. I have never in my life travelled by boat in the mid sea risking my life. The fear I experienced during my sea travel increased when I landed in Australia and I felt like a prisoner after I was taken to the detention centre. As I hail from a fairly rich family from [a place] in Sri Lanka, I couldn’t adjust in the detention centre but rather than to face torture by the Sri Lankan authorities and to spend rest of my life in Sri Lankan prison, I was determined to face any trials and tribulations during my detention. When I was asked to provide the reason to flee from Sri Lanka, I became concerned and feared that I could be sent back to Sri Lanka to face persecution. I am not a qualified person to understand what the outcome and implications arising there from my statement to the department. I feared to relate all the incidents that I experienced in Sri Lanka in fear of deportation back to Sri Lanka to face persecution. At the same time the inmates of the detention centre were speaking about their fear to tell their experience to the department as many Sri Lankan were deported. This is the reason why my statement of claims did not include the serious facts which I avoided in fear of deportation. I will provide below the facts that I omitted.
Thereafter, the applicant made the following new claims:
(a)in 1995, when troops were sent to control a particular place the applicant was working at his uncle’s business there. The business was situated on the border between LTTE controlled and Sri Lankan Army controlled areas, and had dealings with the LTTE (CB 115);
(b)in 2000, the applicant was abducted by the LTTE and held until he agreed to work for them as an intelligence officer, after which he fled to Qatar. When he returned and got married, the applicant worked for (and was protected) by his father-in-law, but people still believed he was an LTTE intelligence officer (CB 115);
(c)paramilitaries found a document which the applicant had signed after his arrest in 1998, in which the applicant acknowledged being an LTTE member. The paramilitaries threatened to arrest him, but this was prevented by his father-in-law who was politically influential and intervened (CB 116);
(d)after the LTTE was “captured” in 2009, the applicant said the Pillayan and Karuna Groups wanted to kill him as they believed he was an LTTE intelligence officer. The applicant’s father-in-law allegedly used his political power to convince the police not to trust the paramilitaries but, despite this, the Criminal Investigation Department (CID) arrested the applicant during the 2012 election campaign and ordered him to stop canvassing for the “PLOT party” (CB 116);
(e)the applicant was interrogated by the CID and asked to sign papers accepting that he was an LTTE intelligence officer. When the applicant heard that the authorities were planning to prosecute him, he fled the country illegally by boat (CB 116); and
(f)in November 2016, the applicant’s wife told him that CID officers in civilian clothes had visited her to question her about the applicant’s involvement in the LTTE. The applicant’s wife said she had been ordered to hand him over to authorities if he returned to Sri Lanka, and that there were many witnesses who could testify to his involvement in the LTTE (CB 117).
On 12 July 2017, the Authority affirmed the delegate’s decision (CB 126 to 138).
New information
The Authority did not accept the applicant’s explanation for not providing the new information prior to the delegate’s decision being made (CB 128 at [7]). Given that two of the applicant’s grounds of review in this Court turn on the Authority’s treatment of the new information, paragraph [7] warrants being set out in full:
In assessing whether there are exceptional circumstances that justify the consideration of this new information I note that the applicant’s SHEV application was prepared with the assistance of a solicitor and registered migration agent. It is reasonable to assume that the applicant’s legal representative explained the importance of providing all his claims and that the information he provided would be kept confidential. I also note that in the SHEV interview the applicant was expressly told by the delegate that the interview was his opportunity to provide all his claims for protection and that he may not have another opportunity to provide additional claims. He was also advised that all information about his claims for protection were confidential and would not be divulged to Sri Lankan authorities. I therefore do not accept the applicant’s reasons for not providing this information before the delegate’s decision was made.
The Authority found aspects of the new information to be inconsistent with the claims made in the visa application (CB 128 at [8] to [9]). It also found that, if the applicant had been considered to be an LTTE intelligence officer, the claim that his father-in-law was able to prevent him from being arrested was implausible because the Sri Lankan Prevention of Terrorism Act permitted the detention of LTTE suspects without charge (CB 128 at [10]).
The Authority found the new information did not constitute credible personal information which was not previously known to the applicant, and it was not satisfied that there were exceptional circumstances to justify considering it (CB 128 at [11]).
While the new information constituted by the claim that the CID visited the applicant’s wife in November 2016 might have post-dated the delegate’s decision, the other aspects of new information which had already been found by the Authority to be of concern, were found to undermine the credibility of that new claim. Accordingly, the Authority and was not satisfied that there were exceptional circumstances to justify its consideration (CB 128 at [12]).
The Authority was also not satisfied there were exceptional circumstances to justify the consideration of the TamilNet articles because it had already accepted that Tamils who were previously associated with the LTTE continued to be “actively suppressed” in Sri Lanka (CB 129 at [13]).
Applicant’s claims
The Authority accepted that from January 1996 until January 1999, the applicant worked at his uncle’s business located in a particular place. It also accepted that the applicant was suspected of supporting the LTTE because he provided them with fuel and was detained by the Special Task Force, interrogated, tortured and then released (on the same day) after his uncle intervened. The Authority accepted that the authorities made a record of the applicant’s detention and interrogation, and that this experience was a motivating factor for the applicant’s travel to Singapore and Malaysia from January to July 1999 (CB 131 at [18]).
The Authority considered country information about the necessity for Tamil civilians in LTTE controlled areas to interact with the LTTE. The Authority found that the fact the applicant was not arrested or detained for more than one day, indicated that he was not suspected of being a member or an active supporter of the LTTE (CB 132 at [22]).
The Authority had regard to:
(a)the fact that the applicant had been able to depart, and return to Sri Lanka using a valid passport without any difficulty in 1999 (CB 132 at [23]);
(b)the applicant’s ability to obtain another passport in June 2003 and travel to Qatar in 2004 without any difficulty (CB 132 at [23]); and
(c)the absence of any claims that the applicant experienced further harm from the Sri Lankan authorities because of his suspected LTTE involvement while he was living and working in Sri Lanka from July 1999 to September 2012 (CB 132 at [24]).
Based on the aforementioned matters, the Authority was satisfied that the Sri Lankan authorities (including the CID) did not regard the applicant as a person with LTTE links, nor as an advocate for Tamil separatism, and found he faced no real chance of harm based on any imputed political opinion as an LTTE supporter (CB 132 at [25]).
The Authority accepted that the applicant’s father-in-law had been a candidate in particular elections and that the applicant was an EROS/Eelavar Democratic Front (EDF) party member who actively supported his father-in-law’s campaign (CB 133 at [26] to [28]). The Authority was prepared to accept that in August 2012, men from a paramilitary group threatened members of the applicant’s family because of his father-in-law’s political campaign and the party’s office was petrol-bombed (CB 133 at [29]). The Authority further accepted that the applicant was threatened by members of the TMVP and the Karuna group in an effort to prevent him from continuing to campaign for the EROS/EDF party, that his father-in-law and wife complained to the police about the threats, and that the paramilitaries became aware of those complaints (CB 133 at [30]).
The Authority had difficulty accepting that people had continued to seek out and threaten the applicant in 2013, 2015 and 2016 (CB 134 at [31]). It did not accept that the 2015 police report related to a genuine complaint (CB 134 at [32]) and found, based on the applicant’s own evidence, that his father-in-law and other family members continued to live in the same area as the applicant’s wife and children, and had not been harmed. The Authority found that, having departed Sri Lanka in September 2012, the applicant was no longer actively involved politically and was “no longer visible” (CB 134 at [33]).
In assessing the applicant’s future risk of harm based on his membership of the EROS/EDF party, the Authority was satisfied that the threats against the applicant had ceased in 2012, and that the reasons for the previous threats no longer existed (CB 134 at [35]). Relying on country information about changes to the political landscape in Sri Lanka following the election of the Sirisena Government in 2015, the Authority found that the TMVP did not operate with the same support and level of impunity they were afforded under the previous Rajapaksa government which was in power in 2012 (CB 134 to 135 at [36] to [37]). The Authority observed that previous leaders of groups (which were precursors to the TMVP) had reportedly renounced paramilitary activities and were under investigation for crimes committed during the reign of the previous Rajapaksa government. Further, it noted that the Department of Foreign Affairs and Trade (DFAT) advised that incidences of extra-judicial killings, abductions and disappearances by paramilitary groups had “fallen considerably” since the end of the conflict. On the evidence before it, the Authority was not satisfied the applicant faced a real chance of harm from paramilitary groups such as the Karuna group or the TMVP, or other opposition party members (CB 135 at [38]).
The Authority then turned to consider whether the applicant was at risk of harm because he departed Sri Lanka illegally and would be returning as a failed asylum seeker, and also whether the record of his detention and interrogation in 1998 would lead to him being harmed while going through immigration, security and character checks on his return (CB 135 at [39]). By reference to country information about the processes and penalties that applied to persons who had departed Sri Lanka unlawfully under the Sri Lankan Immigrants and Emigrants Act (IE Act) (CB 135 at [40] to [41]), the Authority accepted that the applicant would be held on remand for up to “a number of days” if he arrived on a weekend or public holiday before either being fined and discharged or released on bail (if he pleaded not guilty to charges brought under the IE Act) (CB 135 to 136 at [42]).
The Authority accepted that the Sri Lankan authorities might assume the applicant had sought protection in Australia but found the country information did not support a finding that failed asylum seekers were imputed with a pro-LTTE opinion or suspected of supporting the LTTE merely because they were Tamil and had sought asylum. The Authority relied on DFAT’s assessment that the risk of torture or mistreatment faced by the majority of returnees, including those suspected of offences under the IE Act, was low (CB 136, [43]).
Given the applicant had not been questioned by the Sri Lankan authorities at any time since his detention (for only one day) 19 years earlier, the Authority was satisfied that he would not be detained for a lengthy period of time, subjected to harm or imputed with any pro-LTTE or anti-government profile whilst he underwent “routine processing” on his return to Sri Lanka as a failed asylum seeker who departed illegally (CB 136 at [44]). The Authority found that the procedures under which the applicant would be dealt in such circumstances, and any penalties he faced, would not amount to persecution as they would be applied on a non-discriminatory basis under a law of general application (CB 136 at [46]).
As the “real risk” test and the “real chance” test involved the same standard, the Authority relied on its earlier findings against the refugee criterion to conclude that the applicant did not face a real risk of significant harm based on his detention and interrogation in 1998 on suspicion of supporting the LTTE, his membership of the EROS/EDF political party, his involvement in his father-in-law’s election campaign in 2012 or as a failed Tamil asylum seeker (CB 137 at [51] to [52]). The Authority was also not satisfied that any penalties or processes the applicant faced as a consequence of his unlawful departure from Sri Lanka would involve significant harm as defined in s 36(2A) of the Act (CB 137 to 138 at [53]).
APPLICATION TO THIS COURT
By an application to show cause filed with the Court on 4 August 2017, the applicant commenced the present proceedings. At the time the proceedings were commenced, the applicant was unrepresented.
The proceedings were initially docketed to another Judge of the Court (first primary Judge). On 16 November 2017, a Registrar made orders by consent which included a grant of leave to the applicant to file and serve any amended application by 29 January 2018. The proceedings were listed for callover before the first primary Judge on a date to be administratively advised to the parties. The proceedings were later placed in the central migration docket where they remained until being docketed to me on 2 March 2023, shortly after which I made orders for preparation of the matter for final hearing on 26 September 2023. The applicant was again granted leave to amend his application, this time by 11 August 2023.
On 11 August 2023, a Notice of Address for Service was filed for the applicant, which had the effect of appointing his current solicitor as his legal representative. On the same date, an Amended Application, written outline of submissions and a list of authorities were filed for the applicant. The hearing date was also changed to 9 February 2024. At hearing, the applicant was represented by Counsel and the first respondent was represented by a solicitor. The Court Book was tendered by the first respondent and received by the Court as Exhibit “1R”.
GROUNDS OF REVIEW
The Amended Application was filed within the time allowed. The effect of the Amended Application was to abandon grounds 1 to 5 of the originating application and raise the following 3 grounds of review in their stead (particulars omitted):
Ground 6. The IAA erred when it did not accept the Applicant’s reasons for the Applicant not having provided new information before the delegate’s decision.
Ground 7. The IAA erred when it was not satisfied there are exceptional circumstances to justify consideration of the new information, when it found the new information is inconsistent with the Applicant’s previous evidence and was known to the Applicant but not provided before the decision was made, and that it was not credible personal information which was previously known.
Ground 8. The IAA erred when it had difficulty in accepting the Applicant’s claim that people continued to seek out and threaten the Applicant in 2013 and again in 2015 and 2016 as claimed.
While sequentially numbered grounds 6 to 8, given the abandonment of the previous grounds, it is convenient to re-number the new grounds as grounds 1 to 3 (respectively).
Ground 1
Ground 1 alleges that the Authority misapplied s 473DD of the Act in respect of its decision to not consider the claims made by the December submission.
More specifically, ground 1 alleges that the Authority erred by failing to accept the applicant’s reasons for not having provided the new information to the delegate, which are particularised as follows:
(a)the applicant’s fear during his sea journey and upon arriving in Australia;
(b)the applicant feeling like a prisoner in the detention centre;
(c)the applicant’s inability to adjust to the detention centre;
(d)the applicant’s concern and fears that he could be sent back to Sri Lanka to face persecution;
(e)the applicant’s lack of sufficient qualifications to understand the outcomes and implications of his statement to the Department;
(f)the applicant’s fears relating to the incidents he experienced in Sri Lanka;
(g)other detainees in immigration detention also fear telling their experiences;
(h)“deportation” of many Sri Lankans; and
(i)the applicant’s inability to understand which information should and should not be provided at the time he first made his claims.
The applicant error is said to arise from [7] of the Authority’s decision, which is set out in full at [13] above. The applicant alleges that the only matter the Authority specifically considered at [7] (said in any event to have been only an assumption on its part) was that the applicant had been “warned or instructed”[1] about making all his claims at once, such that the Authority then ignored the reasons given by the applicant for why he had not done so. The applicant says that in rejecting all his explanations for not having provided the information to the delegate, the Authority failed to actively engage in an intellectual process and unreasonably failed to actually consider the explanations he proffered. This is said by the applicant to amount to jurisdictional error.
[1] Applicant’s written submissions filed 11 August 2023 at [4]
The first respondent says that the applicant’s complaint about there being no evidence that his representative had explained to him the importance of providing all of his claims at the outset, and that they would remain confidential, is incapable of establishing jurisdictional error. The first respondent says that the Authority did not make a positive finding that such a situation occurred but rather, the Authority drew an inference which was not unreasonable given the applicant had been assisted throughout the visa application by his migration agent (who was also a solicitor). The first respondent contends that, as such, it was open to the Authority to infer that the applicant had likely been given information by his representative about the need to present all of his claims to the delegate.
The Authority’s inference in that regard is said to be strengthened by correspondence sent to the applicant by the Department, in advance of the applicant’s protection visa interview. Included in that correspondence were the following statements (CB 73):
It is important that you present all your claims for protection during your protection visa interview. If a refusal decision is made on your visa application and your application is reviewed, you may not be able to raise new claims to be considered at that review.
The first respondent also points to the Authority as having relied on the fact that the delegate expressly informed the applicant at the protection interview that it was that occasion which was his opportunity to detail all his claims for protection, that he may not have another opportunity to provide additional claims, and that any information provided would be treated confidentially. Lastly, the first respondent says that despite having been given the opportunity to do so by the Court, the applicant has not advanced any evidence to challenge the accuracy of the Authority’s account of what was said at the protection visa interview.[2]
[2] A copy of which was before the Authority as part of the review material
Consideration
The particulars to ground one which are referred to at [35] above have been enumerated as separate matters. However, it is relevant to consider the terms in which they were expressed to the Authority by the December submission (see [10] above).
While the particulars to ground one give the impression that each of the particulars were separate bases for why the applicant failed to raise claims earlier, a fair and contextual reading of the submission (see [10] above) does not bear that out. Rather, the reasons advanced for why the new claims had been omitted can be fairly characterised as falling into two categories, namely:
(a)the circumstances surrounding the applicant’s journey to Australia and initial detention which, by the December submission, the applicant says give rise to an overall fear that he would be “deported” to Sri Lanka (see [36(a)] to [36(d)] (inclusive) and [36(f)] to [36(h)] (inclusive) above) (fear of return explanation); and
(b)his alleged inability to understand which information should and should not be provided at the time he first made his claims and the implications of statements he made to the delegate (see [36(e)] and [36(i)] above) (lack of understanding explanation).
The two explanations are linked, in the sense that the applicant can be understood as saying that he was unaware that he should make all his claims in detail and at an early stage and, when coupled with a fear that doing so might result in him being returned to Sri Lanka, he did not do so.
So understood, [7] of the Authority’s reasons does in fact address both of the explanations referred to in paragraph [44] above, not only the lack of understanding explanation. Aspects of the reasoning which clearly engage with the fear of return explanation include the Authority’s observation that the delegate informed the applicant that all information about his claims for protection were confidential and would not be divulged to Sri Lankan authorities. I also accept the submission of the first respondent at [39] above.
Given that the Authority considered the broader fear of return explanation (which it did not accept), I am not satisfied that the Authority was required to address each of the individual points which are now separately enumerated at [35] above in order to have actively engaged in an intellectual consideration of that explanations. Nor am I satisfied that by not addressing each of the sentences which make up paragraph [1] of the December submission, that the Authority failed to consider the explanations the applicant proffered.
To the extent that the lack of understanding explanation relies upon the applicant’s assertion that he was unaware of his obligations, it is relevant to consider s 5AAA of the Act, which provides as follows:
5AAA Non‑citizen’s responsibility in relation to protection claims
(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2) For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a) the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4) To remove doubt, the Minister does not have any responsibility or obligation to:
(a) specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
The obligation to comply with s 5AAA applies to all applicants, whether they are represented or not. It is a fortiori that in circumstances where an applicant was not only represented, but represented by a solicitor, it was reasonable for the Authority to assume that he was likely to be aware of the importance of making all of his substantive protection claims early and that those claims should be advanced in as much detail as possible. In any event, the applicant is said to have been told by the delegate of the importance of doing so, and these matters are not challenged by the applicant (see [44] above). I accept the submissions of the first respondent that the reasons given by the Authority at [7] of its reasons for decision were open to it. To the extent that there were inferences or assumptions which grounded those findings, they were also available on the material to the Authority.
It is also unsurprising that the Authority did not undertake a formal, staged analysis in the manner identified in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494, given that its decision predates that judgment. However, where the precise statutory language of the statute has not been used, it is still possible to infer from the substance of the decision that the requisite provisions were applied (see APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] per Markovic J). I agree with the submissions of the first respondent that, in substance the Authority’s findings at [7] and [11] reflect its consideration of each of ss 473DD(b)(i) and (ii). As such it can also not be said (as the applicant alleges) that the Authority failed to consider the applicant’s claims pursuant to s 473DD(b)(ii) of the Act.
By rejecting the applicant’s “reasons” (noting this to be expressed by the Authority in the plural), I am satisfied that the Authority did consider each of the two broad explanations advanced by the applicant (see [42] above) for his failure to make the new claims at the delegate stage. The applicant has not established the error alleged by ground 1.
Ground 2
By ground 2, the applicant alleges error on the part of the Authority constituted by it not being satisfied that there were exceptional circumstances to justify consideration of the new information. This ground takes issue with the Authority’s findings at [11] (CB 128) where it said:
The new information provided by the applicant is inconsistent with his previous evidence, was known to the applicant but was not provided before the decision was made, and is not credible personal information which was not previously known.
The applicant contends that the Authority’s findings at [8] to [10] were “based on unreasonable conclusions or relied upon minor matters which did not justify the findings”. Specifically, the applicant says that:
(a)the inconsistencies between aspects of the new information contrasted with previous information provided by the applicant relating to the circumstances of his release from the Special Task Force (STF) were minor, and did not justify the Authority’s findings (CB 128 at [8]);
(b)there was no basis for the Authority to view the applicant’s failure to mention the PLOT party in a negative light. The applicant says that the omission did not amount to an “inconsistency” on his part (CB 128 at [9]);
(c)the Authority’s finding that the applicant’s father-in-law was a “very minor player in a minor political party” appeared to suggest he would have been unable to carry out the protective measures asserted by the applicant, was without basis (CB 128 at [10]); and
(d)the Authority’s finding that the making of the new claims, at a late juncture, undermined the credibility of those claims should be given no weight because the Authority had already erred by discounting the new information.
The first respondent submitted that the applicant’s complaint about the Authority’s reliance on minor matters is misguided, and that the Authority’s task in considering whether the new claims were “credible” within the meaning of s 473DD(b)(ii), was to consider whether it was credible personal information, which was not previously known and that may have affected consideration of the referred applicant’s claims. The first respondent submits that the role of the Authority was not to consider the truth of the new information, citing CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [40] to [43] per Bromberg J and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 at [55], [72] to [73] per Mortimer J (as her Honour then was) and Jackson J.
The first respondent contends that the Authority’s findings indicate that, even if the new claims were considered as part of its substantive assessment of the applicant’s claims, they would have been rejected and, therefore, could not realistically have resulted in the making of a different decision: ABH18 v Minister for Home Affairs [2020] FCA 620 at [45] per Charlesworth J, EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657 at [58] per Wheelahan J and CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345 at [39] to [41] per Markovic J.
Consideration
In essence, this ground seeks merits review. The suggestion that the findings in question were based on unreasonable conclusions or relied upon minor matters which did not justify them is really an attempt to ask the Court to re-assess the nature of the evidence and reach its own findings: see Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [59] per Allsop CJ, Griffiths and Wigney JJ. That is no part of this Court’s jurisdiction.
In relation to particular (a) to this ground, the applicant accepts the inconsistencies are extant, but says that they were de minimis, such that the finding is unwarrantable. The fact remains that the inconsistencies were present and the Authority’s conclusion at [10] makes plain that the inconsistencies were but one component of the bases upon which the Authority found that the requisite factors were not present to warrant consideration the new information. They were however, open on the material.
In relation to the issue of whether it was the applicant’s father-in-law or his uncle who intervened to secure his release, I agree with the submissions of the first respondent that the findings of the Authority about the incident not giving rise to a real chance of harm did not turn on the identity of by whom he had been assisted in being released. Rather, the conclusions relied on the ability of the applicant to both renew his passport without difficulty and, thereafter, to enter and to exit Sri Lanka freely, and without being questioned again (CB 132 at [23] to [24]).
In respect of particular (b) to this ground, which alleges that there was no basis to view the omission of the claim in a negative light, this appears to misunderstand the finding at [9] of the Authority’s decision by which the Authority recorded that no explanation was given as to the relationship between the PLOT and the EROS/EDF party, being the party of which the applicant had previously claimed to be a supporter. As a factual matter, the applicant had previously claimed to support one party and was now claiming to support another. I accept the first respondent’s submissions that an explanation capable of providing the bridge between those two parties (or two claims) was likely necessary. The Authority’s reasoning simply records that the bridging explanation was not provided. There is not a finding adverse or otherwise. The matter was simply unexplained by him, and the Authority said so.
The Authority, like the delegate beforehand, accepted the applicant’s claims in this regard but found that the harm arising from those claims was not well founded. Accordingly, even if the claim to have supported PLOT was a new claim, I accept the first respondent’s submission that it could not have affected consideration of the applicant’s claims overall because it added no weight to the original claims, which had already been accepted.
In relation to the suggestion that there is an error in the finding of the Authority at [10] pertaining to the applicant’s father-in-law being a very minor player in a minor political party, this is again an attempt to have the Court reach a different conclusion than did the Authority. That description by the Authority was a factual finding, open to it on the material before it.
In respect of particular (d) to this ground, it must fail on the basis that it relies on there being error established by ground 1, which has already been rejected above.
Accordingly, ground 2 is not made out.
Ground 3
The final ground contends that the Authority erred at [31] to [32] (CB 134) of its reasons when it rejected the applicant’s claim that people continued to seek him out and threaten him in 2013, 2015 and 2016. Specifically, at [32] the Authority found:
The wording in the document refers to the applicant not heeding the threats previously made by these assailants; however, he did heed their threats. He left the country. He has not continued to campaign for his father-in-law or the EROS / EDF or any other political party. For these reasons I do not accept that this document relates to a threatening event which actually occurred.
In oral submissions, it was contended for the applicant that the Authority’s finding extracted above that “he did heed their threats, he left the country” was based on a misunderstanding of the 2015 police report (CB 48 to 49). The applicant said that, even after having received threats, he continued to engage in electioneering activities, and that he should therefore be taken to have “still not heeded those threats”, despite having left the country on or about 2 September 2012.
The applicant says that the Authority ought to have accepted the 2015 incident as lending support to the new claim, namely, that the Authority’s rejection of the 2016 incident was unreasonable, and constituted jurisdictional error.
The first respondent submitted that properly and contextually understood, there is no evident error in the Authority’s treatment of the 2015 police report, nor the conclusions expressed in respect of it. That context includes that the Authority had accepted the August incident as having occurred (CB 128 at [29]), as well as that the party’s office had been petrol-bombed and the applicant found out about it through a phone call from his father-in-law. There was no finding made by the Authority, nor any evidence placed before the Court by the applicant as to whether the applicant had continued electioneering between 2 September 2012, being the date of the purported threat, and 8 September 2012, being the date of the applicant’s departure to Australia. Nevertheless, the first respondent submitted that this small period of time was not the Authority’s concern. Rather, what was of central relevance was the approximately three years which had passed during which the applicant was not active as a result of no longer being in his home country.
Consideration
The threshold for establishing legal unreasonableness is a high one: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ and Djokovicv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [3] and [29] to [30] per Allsop CJ, Besanko and O’Callaghan JJ. The High Court has described the test for unreasonableness as being stringent and extremely confined: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.
The 2015 police report records the applicant’s wife as saying (anonymisation added) (CB [48]):
…one person came near me and said: you woman! Your father [NAME] is the one who contested the 2012 Provincial Council Elections under EROS. Your husband [DNJ17] did a lot of campaigning for him. Although we threatened him, he did not heed/listen.
The Authority rejected the 2015 police report as relating to a genuine incident which had actually occurred and found it implausible that the applicant would have been threatened when he had been absent from Sri Lanka since September 2012 (CB 134 at [32]).
The applicant says that the Authority misunderstood the 2015 police report because:
(a)from the perspective of the assailants, the applicant’s misdeed had been his continuing to campaign for his father-in-law before the 2012 elections, and their visit to him was retribution for having ignored the earlier threats made in the lead up to the 2012 election;
(b)the Authority erroneously assumed that the assailants were aware that the applicant had been absent from Sri Lanka since 2012; and
(c)the Authority recorded the applicant’s evidence as being that his wife and children had remained living at the same address unharmed since the claimed incident on 28 October 2015. The applicant says that cannot be a relevant basis upon which to discount the 2015 Police report, because the unidentified persons were not interested in killing or harming the wife or children in any event.
I agree with the first respondent that the Authority did not assume that the assailants were aware that the applicant had been absent from Sri Lanka since 2012.
Rather, the Authority found as follows (emphasis added) (error in original) (CB 134 at [33]):
Also the applicant left Sri Lanka in September 2012 and was therefore no longer actively involved politically and no longer visible.
This is a finding that, from the perspective of the alleged assailants, the applicant was no longer active in a political way and therefore was not visible as being active. It was a cessation of political activity by the applicant which had been demanded by his alleged assailants. Accordingly, the observation of the Authority that “he did heed their threats” can be understood as being that the applicant ceased his political activity. That this had been achieved by his leaving Sri Lanka is not the actuating part of the finding. I agree that it was, therefore, plainly open to the Authority to find it implausible that the assailants would maintain an interest in the applicant on account of his political activities in 2012 when he had not been seen being politically active for almost three years. The factual circumstances as to why he had not been seen was not the operative part of the reasons, and the Authority did not impute any particular knowledge to the alleged assailants as to the cause of the inactivity.
In relation to the applicant’s argument above that the Authority was mistaken as to the contradictory evidence about the applicant’s wife and children remaining in the family home, this is itself a misunderstanding of the applicant evidence. According to the 2015 Police report, threats were made against the applicant’s wife and family including (CB 48 to 49) (errors in original):
(a)“Otherwise you and these persons will fact very serious difficulties. If you do not listen to our talk extensively we will kill.”;
(b)“They threatened me”;
(c)“When we come [DNJ17] will have to be at home. Otherwise you will face serious repercussions. Your husband will not be alive. We will take you.”; and
(d)“You should not tell the Police. If we find that police have been informed we will kill everyone”.
I agree with the first respondent that the applicant’s evidence at the 2016 SHEV interview contradicted the alleged threats and feared harm arising from the earlier 2015 Police report. As such, it cannot be said that those matters were not relevant.
There is no error as alleged by ground 3 or at all.
CONCLUSION
The applicant has not established the errors alleged and the application, as amended, must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 27 August 2024
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