Dnu20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1069
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1069
File number(s): MLG 107 of 2023 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 24 November 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – consideration of whether the Authority failed to alert the applicant to new issues arising before the Authority – finding that Authority afforded applicant procedural fairness in relation to new information – consideration of whether Authority denied applicant procedural fairness due to departing from delegate’s reasoning – where Authority’s findings were more favourable to the applicant than those of the delegate – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473FA, pt 7AA
Migration Regulations 1994 (Cth), reg 4.41
Cases cited: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
DKY16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at [71]
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Division: Division 2 General Federal Law Number of paragraphs: 117 Date of last submission/s: 21 August 2023 Date of hearing: 21 August 2023 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr M Hosking Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 107 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DNU20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 23 January 2023 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 21 December 2022. By its decision, the Authority affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).
BACKGROUND
The applicant is a citizen of Sri Lanka of Tamil ethnicity.[1] He arrived in Australia as an Irregular Maritime Arrival in around November 2012.[2]
[1] Court book at page 53.
[2] Court book at page 60.
Irregular Maritime Arrival Entry Interview on 26 December 2012
The applicant participated in an Irregular Maritime Arrival Entry Interview on 26 December 2012 at Christmas Island.[3] The interview records that the applicant stated that he left Sri Lanka because:
My dad is a member [of] the movement called PLOT and he was a candidate of the election of MBA and since my dad [was] in the election I had to enrol in the election and because of these reasons my Dad and I had problems.[4]
[3] Court book at page 1.
[4] Court book at page 11.
In response to a question about what political group or organisations he or his family had been involved in, the applicant listed ‘PLOT’, which he stated was very similar to the Tamil National Alliance. This is a reference to the People’s Liberation Organisation of Tamil Eelam (‘PLOTE’), a Tamil political party. The applicant further indicated that he had been detained twice by police or security organisations during the 2010 election and had been questioned for a day.
Application for SHEV on 12 February 2017
On 12 February 2017, the applicant lodged his application for a SHEV.[5] Attached to the application is a statutory declaration dated 22 October 2016 in which the applicant sets out his reasons for claiming protection.[6]
[5] Court book at page 99 and following.
[6] Court book at pages 82 to 87.
On 20 April 2017, the applicant was invited to attend an interview with the delegate, scheduled for 11 May 2017.[7] The interview proceeded with the delegate as scheduled.
[7] Court book at page 153 and following.
On 23 May 2017, the applicant was notified by letter that his application for a SHEV had been refused by the delegate.[8]
[8] Court book at page 167 and following.
Referral to Authority on 26 May 2017
On 29 May 2017, the applicant was notified by letter that the delegate’s decision of 23 May 2017 had been referred to the Authority for review on 26 May 2017.[9]
[9] Court book at page 184.
Between 15 June 2017 and 22 June 2017, the applicant’s legal representative at the time corresponded with the Authority on a number of occasions in respect of certain documents requested by the applicant for the purposes of preparing written submissions.[10]
[10] Court book at pages 196 to 228.
On 23 June 2017, the applicant, via his legal representative, submitted written legal submissions in support of his review at the Authority.[11]
[11] Court book at page 229 and following.
On 15 September 2017, the applicant appointed a new migration agent.[12]
[12] Court book at page 236.
On 12 March 2018, the applicant was notified by letter that the Authority had decided to affirm the decision under review to refuse the applicant a SHEV.[13]
[13] Court book at page 247 and following.
First proceedings in the Federal Circuit Court in 2020
On 8 May 2020, orders were made in the Federal Circuit Court, as it then was, extending the time for filing the application to judicial review, quashing the Authority’s decision of 12 March 2018, remitting the decision back to the Authority for reconsideration and requiring the first respondent to pay the applicant’s costs.[14]
[14] Court book at pages 273 to 274.
First remittal to the Authority in 2020
On 19 June 2020, the Authority wrote to the applicant, via his legal representative, confirming that it would proceed to reconsider his case following the remittal from this court.[15]
[15] Court book at page 277.
On 9 July 2020, the Authority wrote to inform the applicant that it had decided to affirm the decision not to grant him a SHEV.[16]
[16] Court book at pages 287 to 298.
Proceedings in the Federal Court in 2022
On 1 September 2022, the Full Court of the Federal Court made orders quashing the Authority’s decision of 9 July 2020, remitting the decision back to the Authority for reconsideration and requiring the first respondent to pay the applicant’s costs.[17]
[17] Court book at pages 303 to 305.
Second remittal to the Authority in 2022
The applicant obtained ‘once off’ legal assistance following this remittal to the Authority. On 25 September 2022, his legal representative wrote to the Authority, providing written submissions, a statement from the applicant, two letters of support and two pieces of country information.[18] In his cover email to the Authority, his legal representative also indicated that the Authority should communicate with the applicant directly going forward.
[18] Court book at page 314 and following.
On 18 October 2022, the Authority wrote to the applicant confirming that it would proceed to reconsider his case following the remittal from the Federal Court.[19] This correspondence was delivered to the applicant by hand by the Immigration Detention Centre in which the applicant was being detained.[20]
[19] Court book at page 334.
[20] Court book at page 333.
On 28 November 2022, the Authority wrote again to the applicant, inviting him to comment on a range of matters including:
·new country information obtained by the Authority;
·information about claims made in the applicant’s screening interview; and
·information about CID visits.[21]
[21] Court book at pages 342 to 344.
Attached to this correspondence were copies of the country information referred to in the Authority’s letter and upon which the Authority had invited the applicant to comment.[22]
[22] Court book at pages 345 to 581.
The Authority indicated in this letter that a response was required by 1 December 2022, but that it would not make a decision until after 12 December 2022 and may consider any information received prior to that date. The correspondence further indicated that if the Authority did not receive the information by the specified dates, the Authority may make a decision on the review without taking any further action to get the information.[23]
[23] Court book at page 344.
This correspondence was also delivered to the applicant by hand by the Immigration Detention Centre in which he was being detained.[24]
[24] Court book at page 341.
On 12 December 2022, the Authority wrote to the Immigration Detention Centre, attaching a record of invitation, confirming that the Authority had telephoned the applicant that day inviting him to an interview to provide new information in response to the letter of 28 November 2022. The interview was scheduled for 15 December 2022 and arrangements had been made for the applicant to be assisted by a Tamil interpreter.[25] The Authority requested that the Immigration Detention Centre print the said correspondence and provide it to the applicant at its earliest convenience.[26]
[25] Court book at page 583.
[26] Court book at page 582.
The Authority’s subsequent decision record indicates that the applicant was invited to this interview in circumstances where the applicant had advised the Authority’s staff in telephone conversations that he could not read the letter of 28 November 2022 and had been unable to find legal assistance to respond to the letter in the required timeframe.[27]
[27] Authority decision record dated 21 December 2022 at paragraph [11].
On 19 December 2022, following his interview with the Authority, the applicant sent an email to the Authority, attaching four video files.[28]
[28] Court book at page 585.
On 21 December 2022, the Authority wrote to the applicant advising him that it had decided to affirm the decision under review to refuse him a SHEV.[29]
[29] Court book at page 586 and following.
AUTHORITY DECISION
The Authority’s decision record of 21 December 2022 is at pages 588 to 607 of the court book.
At paragraphs [1] to [3] of the decision record, the Authority summarises the background to this matter, including the two previous remittals to the Authority following orders made in the Federal Circuit Court and Federal Court in 2020 and 2022 respectively.
Consideration of new information
At paragraph [4] and following, the Authority went on to consider new information before it given by the Secretary, including new country information reports and the applicant’s screening interview, which the applicant had also been invited to comment on in the Authority’s letter of 28 November 2022.
At paragraph [9] onwards, the Authority outlined the material provided by the applicant to which it had regard in making its decision. This included:
(a)written legal submissions prepared by the applicant’s previous legal representatives dated 23 June 2017;
(b)the new information provided by the applicant to the Authority on 25 September 2022 (‘2022 submissions’), being the written legal submissions, the applicant’s personal statement, two supporting letters and additional country information;
(c)the information provided by the applicant at the interview with the Authority on 15 December 2022 in response to the matters raised in the letter of 28 November 2022;
(d)the second and third videos provided by the applicant to the Authority on 19 December 2022, being a speeches in the UK parliament and by a Canadian MP.
At paragraph [13], the Authority declined to consider the first and fourth videos provided by the applicant to the Authority on 19 December 2022, which related to a ‘form’ of media reporting which was in Tamil and for which no translation was provided. The Authority accepted that the videos post-dated the delegate’s decision and therefore could not have been provided before the delegate’s decision was made. However, in circumstances where the content and context of those videos were not clear, the Authority was not satisfied that there were exceptional circumstances to justify considering them for the purposes of section 473DD(a) of the Migration Act 1958 (Cth) (‘the Act’).
At paragraphs [15] and [16], the Authority considered a request made in the 2022 submissions that the Authority obtain a copy of recordings of conversations the applicant had with his mother whilst in custody. It was submitted on the applicant’s behalf that the recordings were relevant in circumstances where it would substantiate the applicant’s claims that his mother told him about continued CID visits to her home following his departure to Australia, and as recently as April 2022. Ultimately, the Authority determined to proceed to make a decision in relation to the application without interviewing the applicant’s mother or otherwise obtaining any further new information, noting that it did not have the power to compel production of documents including of the recordings of phone calls between the applicant and his mother.
Consideration of the applicant’s claims
At paragraph [17], the Authority summarised the applicant’s claims before it.
At paragraphs [18] to [19], the Authority outlined the legislative criteria to which it must have regard when determining applications for a protection visa.
At paragraph [20], the Authority accepted the applicant’s claimed nationality, identity and ethnicity. At paragraph [21], the Authority found that the applicant’s claims had been broadly consistent since his arrival in Australia in late 2012. Notwithstanding some variation in dates and details around his various relocations in Sri Lanka, the Authority did not draw any adverse inferences from this.
At paragraph [22] and following, the Authority went on to accept many aspects of the applicant’s claims as being plausible, including that:
(a)the applicant had experienced harassment due to his ethnicity during the civil war;[30]
(b)the applicant’s father had a long-term involvement with the PLOTE and stood as a candidate for the PLOTE around March or April 2010 in the parliamentary elections;[31]
(c)the applicant had assisted his father in his 2010 campaign;[32]
(d)around a month after the elections, the applicant had been taken in a van by the CID, beaten, threatened and detained for a number of hours until he was released from detention through his father’s influential contacts;[33]
(e)the applicant was taken a second time, approximately a month later in around August 2010, detained for a similar period and questioned again;[34]
(f)the applicant had been detained by the CID on suspicion of his LTTE connections and for questioning about his involvement in his father’s campaign;[35]
(g)the applicant was a Tamil male in his late teens living in northern Sri Lanka, and accordingly, may have had peers which included former LTTE cadres;[36] and
(h)some of the boys that the applicant worked with on the election subsequently went missing, although did not accept that such disappearances were related to the election activities and could have been for other reasons, such as extortion or ransom.[37]
[30] Authority decision record dated 21 December 2022 at paragraph [22].
[31] Authority decision record dated 21 December 2022 at paragraph [23].
[32] Authority decision record dated 21 December 2022 at paragraph [24].
[33] Authority decision record dated 21 December 2022 at paragraph [24].
[34] Authority decision record dated 21 December 2022 at paragraph [24].
[35] Authority decision record dated 21 December 2022 at paragraph [24].
[36] Authority decision record dated 21 December 2022 at paragraph [28].
[37] Authority decision record dated 21 December 2022 at paragraph [29].
At paragraph [27], the Authority indicated that it did not share the delegate’s view that it was implausible that the CID would arrest or harass the applicant because of his father’s PLOTE membership given that the group was government aligned, or that it was implausible that the applicant’s father would have influential contacts that he could call upon to assist in having the applicant released from CID detention.
Ultimately, at paragraph [30], the Authority indicated that it generally accepted the applicant’s claims about his experiences leading up to his second detention by the CID in August 2010.
However, the Authority indicated that it had concerns about the applicant’s claims about the ongoing interest in him by the Sri Lankan authorities after August 2010. It did not accept that the reason why the applicant had not been detained again after August 2010 was because of his father’s influential contacts,[38] or because the CID could not locate him as he moved between houses after his release and until he departed for Australia.[39]
[38] Authority decision record dated 21 December 2022 at paragraphs [30] and [31].
[39] Authority decision record dated 21 December 2022 at paragraphs [32] and [33].
The Authority also did not accept that the applicant’s father had been of interest to the authorities in the period following election, nor that the applicant was being sought by authorities in lieu of his father.[40]
[40] Authority decision record dated 21 December 2022 at paragraph [31].
In respect of the CID’s potential ongoing interest in the applicant, the Authority noted the applicant’s own evidence that his only activity for PLOTE was campaigning during the time of elections, which ceased in 2011, and that his father’s own political activity also ceased around this time. In those circumstances the Authority considered it ‘most remote that some further information about the applicant might have come to light which would have increased or reignited interest in him after his departure’.[41]
[41] Authority decision record dated 21 December 2022 at paragraph [34].
The Authority further found the applicant’s claims that the CID continued to visit the applicant’s mother’s home for more than 10 years following his departure for Australia implausible. This is particularly so in circumstances where it had failed to locate the applicant in the period between him being released from detention in August 2010 and departing for Australia in 2012.[42] The Authority noted that even if it accepted that the CID had continued to visit the applicant’s mother’s home over the past 10 years, this did not necessarily mean that the visits had been because of any ongoing adverse interest in the applicant.[43]
[42] Authority decision record dated 21 December 2022 at paragraph [35].
[43] Authority decision record dated 21 December 2022 at paragraph [36].
The Authority noted that the applicant’s father was now deceased and found that the applicant had not been politically active since 2011, nor did he express any genuine desire or motivation to publicly express his political views in the future.[44]
[44] Authority decision record dated 21 December 2022 at paragraph [37].
At paragraph [38], the Authority went on to consider the relevant country information.
At paragraphs [39] and [40], the Authority found that the country information did not support a finding of any ongoing risk to the applicant on the basis of his or his father’s past involvement with the PLOTE or because of the time he spent with former LTTE members some 12 years ago.
At paragraph [41], the Authority accepted that there was continued monitoring of the Tamil community in the north and east of Sri Lanka but went on to say that the country information indicated that targeted monitoring and harassment was generally directed towards activists associated with politically sensitive issues and that the applicant did not have a profile of this kind. The Authority otherwise noted DFAT’s assessment that ‘ordinary’ Tamils living in the north were at low risk of official harassment.
At paragraphs [43] and [44], the Authority considered the applicant’s claim to fear harm because of his period of asylum in Australia. The Authority noted the lack of country information that returnees from Australia were subjected to mistreatment in police custody, as well as the fact that the country information otherwise indicated that most returnees are not actively monitored on a long-term or ongoing basis. The Authority accepted that the applicant may face penalties for illegal departure,[45] but did not otherwise consider that ‘returning Tamil asylum seekers, including those who have left the country illegally, are imputed with pro-LTTE or other adverse opinions or face any harm for that reason…’.
[45] Authority decision record dated 21 December 2022 at paragraph [45].
The Authority also considered the applicant’s criminal history in Australia. It noted that there was no evidence to substantiate his claim that the Australian government would disclose his criminal record to the Sri Lankan government upon removal to Sri Lanka. It further noted that even if this information were made available to the Sri Lankan government, there was nothing to indicate that it would have an adverse interest in the applicant for this reason.[46]
[46] Authority decision record dated 21 December 2022 at paragraph [46].
At paragraph [47], the Authority summarised its findings with respect of the applicant’s claims as follows:
47.I have found that the applicant was not a person of any adverse interest to Sri Lankan authorities at the time of his departure and am not satisfied that he has become of such interest in the intervening years. Considering his history and background in light of the country information above, I consider it remote that he would be imputed as a supporter of the LTTE or Tamil separatism or otherwise be perceived as being of adverse interest to Sri Lankan authorities because of his or his father’s past activity with PLOTE, previous association with former LTTE members, on the basis of his Tamil ethnicity (including his build and as a young male), his political views, because he claimed asylum, his criminal history in Australia or any combination of these factors. I am not satisfied there is a real chance of the applicant being harmed for any of these reasons, whether on his immediate return or otherwise in the reasonably foreseeable future.
At paragraph [42], the Authority outlined country information which indicated systematic discrimination against Tamils in some areas. Accepting this to be the case, the Authority went on to find that whilst it accepted that the applicant may experience a degree of discrimination, this would not rise to the level of serious harm within the meaning of the Act. Nor did the Authority accept that the applicant would be subject to monitoring rising to this level, for the reasons outlined earlier.
The Authority accepted the applicant’s claims that he would be impacted by the difficult economic conditions in Sri Lanka upon return, including due to his family’s circumstances.[47] However, it did not accept that the applicant would be disproportionately affected as a Tamil or that he would experience hardship to the extent that it would threaten his capacity to subsist.[48]
[47] Authority decision record dated 21 December 2022 at paragraphs [49] and [50].
[48] Authority decision record dated 21 December 2022 at paragraph [51].
At paragraph [53], the Authority considered the applicant’s claims in relation to his poor mental health and the difficulty that he would experience in accessing medication to address his mental health conditions in Sri Lanka. Although the Authority accepted that the applicant had previously taken medication for his mental health, it did not consider that there was a real chance that the applicant would be denied access to medication in Sri Lanka if returned.
At paragraph [54], the Authority accepted that having left Sri Lanka illegally, the applicant, on return, would likely be charged with an offence, taken to court and fined, but that there was nothing more than a remote chance that he would be detained for more than several days at most. The Authority did not consider that the applicant would experience serious harm in this process in circumstances where it found that the applicant did not otherwise have a profile of interest, even taking into account the applicant’s mental health and the fact that he may spend a brief period in airport detention. The Authority otherwise found that the applicant could pay his fine in instalments and the onerous effects of having to pay a fine would be ameliorated by being able to pay it over a period of time.[49]
[49] Authority decision record dated 21 December 2022 at paragraph [56].
Considering all of the applicant’s circumstances, the Authority concluded at paragraph [57] that it was not satisfied that there was a real chance that the harm that the applicant would experience upon return to Sri Lanka, including in relation to processing and questioning at the airport and the likely penalties he would receive for his illegal departure, would amount to persecution either individually or cumulatively. For each of these reasons, the Authority found that the applicant did not meet the refugee criterion under the Act.[50]
[50] Authority decision record dated 21 December 2022 at paragraph [58].
The Authority then went on to consider the complementary protection criterion. After outlining the relevant legislative criteria to which it must have regard, the Authority re-iterated its previous findings and concluded that any difficulties that the applicant would face on his return to Sri Lanka would not amount to significant harm for the purposes of Australia’s complementary protection obligations. The Authority therefore found that the applicant also did not meet the complementary protection criterion under the Act.[51]
[51] Authority decision record dated 21 December 2022 at paragraphs [59] to [68].
For each of these reasons, the Authority determined to affirm the delegate’s decision not to grant the applicant a SHEV.
PROCEEDINGS IN THIS COURT
The applicant filed the present application for judicial review in this court on 23 January 2023, accompanied by a supporting affidavit attaching the Authority’s decision.
Hearing on 29 May 2023
The matter was subsequently listed for hearing before me on 29 May 2023.
On 12 May 2023, the applicant wrote to my chambers requesting an adjournment to enable him time to obtain legal representation. The matter remained listed for 29 May 2023 in circumstances where the first respondent did not consent to the adjournment.
On 29 May 2023, when the matter came before me for hearing, the applicant appeared on his own behalf and was assisted by a Tamil interpreter. The applicant pressed his application for an adjournment, re-iterating that he was seeking an adjournment to allow him to obtain legal representation. For the reasons briefly articulated on that occasion, I granted the adjournment and the hearing was postponed to 21 August 2023.
Noting also that the applicant had not filed any further material upon which he sought to rely in accordance with the orders of Registrar Carney dated 27 February 2023, I made further orders for the applicant to file and serve any amended application, affidavit material and written submissions upon which he sought to rely by 31 July 2023. The Minister was also granted a right of reply in the event that the applicant filed the material as permitted by the orders.
Hearing on 21 August 2023
When the matter returned for hearing before me on 21 August 2023, the applicant continued to represent himself. He advised the court that he had been unable to obtain legal representation, nor had he filed any further material upon which he sought to rely in accordance with the orders of 29 May 2023.
In those circumstances, the hearing proceeded before me and the applicant was again assisted by a Tamil interpreter.
GROUNDS OF REVIEW
In his application for judicial review presently before the court, the applicant sets out and relies upon three grounds of review. I will consider each ground in turn.
Ground 1
By ground 1, the applicant claims that:
1.The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware, and in the alternative the Second Respondent denied procedural fairness because the Authority’s reasoning departed from the Department’s reasoning, resulting in a practical injustice to the Applicant.
As noted by the Minister, the applicant has not identified the particular ‘new issues’ of which he was not notified.
Leaving aside the question as to whether this lack of particularisation is sufficient for this ground to fail, for the following reasons, I find that there is no proper basis upon which it could be said that the Authority failed to afford the applicant procedural fairness.
This matter arose for determination under Part 7AA of the Act which provides a limited form of review of certain decisions. Relevantly, section 473CC of the Act provides:
(1)The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
Section 473DA of the Act further provides that Division 3 of Part 7AA is, for present purposes, an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
Section 473DB of the Act then provides that:
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2)Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
It is against this context that section 473DC then deals with the circumstances in which the Authority may obtain and consider new information. Relevantly, section 473DC provides:
(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 then sets out the circumstances in which the Authority may consider new information, or put another way, limitations on those circumstances. Relevantly, section 473DD states:
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.
Section 473DE sets out the circumstances in which the Authority is required to give the referred applicant ‘new information’. Relevantly, that section provides:
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i)has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii)at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
Regulation 4.41 of the Migration Regulations 1994 (Cth) relevantly provides:
For paragraph 473DE(3)(c) of the Act, new information given to the Immigration Assessment Authority by a referred applicant for the purposes of the Authority’s review of a fast track reviewable decision in relation to the referred applicant is prescribed.
Section 473DF then deals with the nature of the invitation to a referred applicant to provide new information or comments in relation to new information.
Section 473FA further provides:
(1)The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).
Note:Under section 473DB the Immigration Assessment Authority is generally required to undertake a review on the papers.
(2)The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence.
In the present matter, having regard to the significant delay between the date on which the delegate’s decision was initially made and the date on which the Authority ultimately considered the review, the Authority had regard to information which was not before the delegate. This consisted largely of country information and information provided by the applicant. In addition, the Authority also had regard to the screening interview that the Secretary of the Department provided to the Authority in October 2022.
The Authority afforded the applicant procedural fairness in relation to this new information. It initially sought the applicant’s views in relation to the new information by letter, in which it advised the applicant that it had obtained new country information and clearly set out that country information in detail and also invited the applicant to provide new information in relation to his review application.[52]
[52] See Court book at page 342 and following.
The Authority also set out the preliminary conclusions that it had reached based on that country information, namely that it ‘suggests that you would not face a real chance of persecution or real risk of significant harm’.[53] The Authority then invited the applicant to provide new information in response to those reports.
[53] Court book at page 343.
The Authority also set out information contained in the applicant’s screening interview, attached a copy of that interview and invited the applicant to respond to that information.[54]
[54] Court book at pages 343 to 344.
Finally, the Authority noted that the applicant had invited it to obtain copies of recordings of conversations that he had had with his mother whilst in custody about the CID’s continued visits to his family home. The Authority advised that it did not have the power to compel ‘any body to provide information’.[55] The Authority also noted that the applicant had referred to a statutory declaration he had provided to the Federal Court, but the Authority did not have any such declaration before it.[56]
[55] Court book at page 344.
[56] Court book at page 344.
The Authority then invited the applicant to respond to each of these matters.
As stated, when it became apparent that the applicant was unable to read this letter and provide a written response, given his poor English, the Authority exercised its discretion and invited the applicant to an interview at which time the information was put to him and, with the assistance of an interpreter, he was given an opportunity to respond.[57]
[57] Authority decision record dated 21 December 2022 at paragraph [12].
At paragraph [12] of the Authority’s decision record, the Authority noted:
12.… Much of the information given by the applicant in relation to his claimed past experiences in Sri Lanka, and the ongoing CID interest in him, was repetitive of what he said earlier. In responses to questions about claims made at the screening interview, he confirmed his earlier evidence and provided additional detail or clarification. He added a new claim that persons he had worked on the elections with had subsequently gone missing which is an expansion of but not inconsistent with his earlier claims. …
The Authority had regard to the new information provided by the applicant in the course of the hearing. In addition, as noted at paragraph [13] of the Authority’s decision record:
13.The applicant was given time following the interview to submit any further information he wished to rely on. I advised him that if he submitted material that was not in English, I may not be able to understand that information, beyond what might be evident from pictures or videos. …
The Authority then considered the additional material provided, having regard to some but not all of that information for the reasons outlined earlier in these reasons.
The applicant did not provide any further information in relation to the claim regarding the CID’s ongoing interest in him since leaving Sri Lanka.
At paragraph [16], the Authority dealt with this issue in the following way:
16.As indicated in the IAA’s invitation letter to the applicant of 28 November 2022 and at the interview, the IAA does not have the power to compel production of documents such as the recordings of phone calls and was not given any information the applicant may have given to the court. Even assuming the recordings of these phone calls (which would likely be in Tamil) evidence the applicant’s mother telling him of CID visits and becoming emotional as claimed, this would not necessarily demonstrate that the visits took place, or that they were for the reasons the applicant claims. … I accept the applicant’s explanation that he did not mean that the CID had attended the house literally every month, as understood by the delegate. I also accept his claim that he was viewed in the company of ‘LTTE boys’ who had been released from detention. The applicant has had the opportunity to submit new information to the IAA about his claims including at the interview, and I have taken much of the information he has provided into consideration. At the IAA interview he indicated that he had asked his family to video the CID visits, but they refused as it was too dangerous. He has not indicated any other specific additional information his mother or he may be able to provide beyond what has already been given. Considering all of these matters, I have decided to proceed to a decision without interviewing the applicant’s mother, or otherwise obtaining any further new information. (emphasis added)
The applicant has not established, nor is there, respectfully, any proper basis for finding, that the Authority failed to afford him procedural fairness in the manner in which it dealt with his claim.
The Authority’s decision not to interview the applicant’s mother, in circumstances where he had been invited to provide additional information after the hearing, and in circumstances where it did consider the information that the applicant had provided about his interactions with his mother, does not give rise to a failure to afford the applicant procedural fairness. Not only did the Authority meet its statutory obligations, but it considered and decided to provide the applicant a hearing and a further opportunity to put before it any further evidence or submissions that he wished to.
Moreover, to the extent that the applicant asserts that he was denied procedural fairness in that the Authority came to a different view than the delegate, this too must fail. This is not a case in which the Authority came to an adverse view on a matter decided in his favour by the delegate. To the contrary, to the extent that the Authority came to a different conclusion than that reached by the delegate, this was a more favourable one for the applicant.
For example, the delegate had found that the applicant’s claim about his father’s membership and rank within the PLOTE was inconsistent with country information.[58]
[58] Court book at page 172.
The Authority concluded at paragraph [27]:
27.Overall, I consider the applicant’s claims about his and his father’s activities and experiences credible. While the delegate found it implausible that the CID would arrest or harass the applicant because of his father’s PLOTE membership given the group was government aligned, I do not share these concerns. … In contrast to the delegate, I do not consider it implausible that through his political work the applicant’s father (or other members of the PLOTE) may have had influential contacts able to assist in having the applicant released, despite not being in government.
Similarly, in relation to the applicant’s claims about the CID continuing to visit the applicant’s mother after he departed Sri Lanka, the delegate had accepted that the CID went to his home to enquire about his whereabouts after he departed Sri Lanka, but found the suggestion that the CID had continued to go to his house each month and question the applicant’s mother about his whereabouts implausible.[59]
[59] Court book at page 173.
When considering this issue, the Authority had regard to the applicant’s clarification as to the frequency of the CID visits to his mother’s home since he left Sri Lanka. At paragraph [16], the Authority ‘accept[ed] the applicant’s explanation that he did not mean that the CID had attended the house literally every month, as understood by the delegate’.
Ultimately, the Authority concluded at paragraph [35] that it was ‘implausible that the CID would have continued to pursue the applicant over these matters for a period of ten years after his departure, even if those visits were infrequent’.
The Authority therefore did not make adverse findings contrary to those made by the delegate. Indeed, as outlined above, it accepted many aspects of the applicant’s claims, some of which had not been accepted by the delegate.
In any event, there was no obligation on the Authority to advise the applicant if it had come to a different view to that expressed by the delegate. As noted by the Full Court of the Federal Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551:
72. In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant with an opportunity to respond.
…
75.There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
76.It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
For each of these reasons ground 1 is not made out.
Ground 2
By ground 2, the applicant alleges that:
2.The Second Respondent constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.
As with ground 1, there are no particulars of the matters which the applicant says should have been put to him which were not.
But in any event, there is no proper basis upon which the court could conclude that the applicant was not fully on notice of the issues relevant to the review in this case. For reasons explored in relation to ground 1, the Authority went beyond what is required in a review under Part 7AA in this case.
The Authority considered whether to, and in fact did exercise its discretion to, obtain new information. Furthermore, it put this information to the applicant and invited him to comment on it and provided him with an opportunity to do this orally, as well as a further opportunity to make post-hearing submissions.
To the extent that this ground relates to the Authority’s refusal to obtain further information from the applicant’s mother or to seek access to recordings of the mother’s telephone calls with the applicant, this does not evidence a failure by the Authority to exercise its powers under section 473DC of the Act. That section permits, but does not compel, the Authority to obtain new information.
Moreover, in this case, the Authority did consider whether to obtain further information relating to the applicant’s claims that the CID had continued to seek him out at his mother’s home in Sri Lanka. Insofar as the applicant invited the Authority to obtain recordings of his telephone calls with his mother whilst in custody, as outlined above, the Authority explained that it did not have the power to compel the production of those documents.
But in any event, even if it did or could have requested those recordings, the Authority reasoned that firstly, those conversations were likely to have been in Tamil and therefore absent a translation would have been incomprehensible to the Authority. Moreover, the Authority reasoned that even if those phone calls did contain evidence of the applicant’s mother indicating that the CID had attended her home looking for the applicant and the mother becoming distressed, that would not have been evidence of the reason for the CID’s attendance at the applicant’s mother’s home.
In those circumstances, the Authority considered the applicant’s request and decided, for reasons which were both evident and intelligible, that it would not exercise its discretion to obtain that further evidence.
It is conceded for the Minister that the discretion in section 473DC of the Act must be exercised reasonably.[60] As noted by the Full Court of the Federal Court in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (‘CRY16’) at paragraph [82]:
82.The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably.
[60] Minister’s Outline of Submissions filed on 15 May 2023 at paragraph [51].
Unlike the facts in CRY16, in this case, the decision not to pursue further information about the content of the telephone calls between the applicant and his mother or to interview the mother, had both an ‘evident and intelligible’ justification. The Authority was careful to ensure that the review was conducted fairly given the significant time which had passed between the delegate’s decision and the Authority’s determination.
Having regard to the totality of the material, the Authority correctly applied the law and appropriately considered the claims made by the applicant. The findings made by the Authority were reasonably open on the material before it and no jurisdictional error arises.
The applicant in this case had an opportunity to advance evidence and submissions to support his case and there is no suggestion that the Authority ‘disabled’ itself from considering an issue in this matter.[61]
[61] Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; DKY16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at [71].
For each of these reasons, ground 2 is not made out.
Ground 3
By ground 3, the applicant simply states:
3. I am getting legal advice and will provide further particulars in new course.
As outlined earlier in these reasons, the applicant was granted an adjournment to allow him an opportunity to obtain legal representation. Ultimately, the applicant did not obtain legal representation and the hearing proceeded before me on 21 August 2023.
Moreover, orders were made by Registrar Carney on 27 February 2023, which provided a timeframe in which the applicant could provide any further particulars upon which he sought to rely. As stated, this timeframe was extended by the orders made on 29 May 2023. Furthermore, although the applicant did not file any further material, he was given a further opportunity to provide particulars and elaborate upon his grounds of review at the hearing before me, with the assistance of a Tamil interpreter.
For each of these reasons, ground 3 does not identify any jurisdictional error and therefore does not give rise to a ground of review.
CONCLUSION
As none of the applicant’s grounds of review have been made out, I make the orders as set out at the commencement of these written reasons for judgment.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 24 November 2023
0
3
2