DOJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 588
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DOJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 588
File number(s): MLG 1715 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 18 July 2023 Catchwords: MIGRATION – Whether Authority erred in application of s 473DD – where article pre-dated delegate’s decision by two days Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 473DC, 473DD, 473EA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
BIL18 v Minister for Home Affairs [2020] FCA 1367
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
FBR18 v Minister for Immigration and Border Protection [2019] FCA 1620
FGC17 v Minister for Home Affairs [2019] FCA 559
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
SZSZW v Minister for Immigration and Border Protection [2015] FCA 562
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 20 February 2023 Place: Sydney Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: AUM Lawyers Pty Ltd Counsel for the Respondents: Mr J Barrington Solicitor for the Respondents: Mills Oakley ORDERS
MLG 1715 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
18 July 2023
THE COURT ORDERS THAT:
1.The application filed on 7 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:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 July 2017, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant a Safe Haven Enterprise (subclass 790) visa (visa) to the applicant under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The background to this matter is derived from the written submissions of the parties and does not appear to be in dispute, unless otherwise indicated.
The applicant is a male Tamil Hindu citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 20 September 2012. The applicant worked as a labourer in Sri Lanka (Court Book (CB) 44 to 46), where he was married, had two daughters as well as a niece who lived with his family (CB 69).
On 6 September 2016, the applicant made the visa application (CB 27 to 72) and set out his claims in an accompanying Statutory Declaration made by him on 30 August 2016 (2016 Statutory Declaration) (CB 73 to 76). The applicant also provided letters of support including from a former Member of Parliament (CB 80), a reverend (CB 81), the police (CB 82) and a parish priest (CB 83).
THE APPLICANT’S CLAIMS FOR PROTECTION
The applicant’s claims for protection were set out in his entry interview (CB 12 and 15 to 16), the visa application (CB 73 to 76), the oral evidence given by him at the interview with the delegate (CB 101), additional supporting documents provided to the delegate (CB 79 to 88 and 120 to 141) and submissions and documents sent to the Authority (CB 175 to 232).
The applicant claimed to have become a supporter of the Tamil National Alliance (TNA) in 2005. By the 2016 Statutory Declaration the applicant stated that (anonymisation added) (CB 73 to 74):
7. I supported the party from that time. I would help by giving some of the party members transport in a three wheeler and in election campaigns I would help with general administrative and set up duties for events. This would include putting up posters, erecting stages and attending meetings.
8. On or about 31 March 2007, I went to a [named place] with a … relative of my wife and a three wheel driver. We attended the temple for an annual festival.
9. During the festival some armed men came and started chasing [the relative]. He was chased and shot. I fled because I was afraid. I later found out that [he] had been shot and that he had died. I am not sure why he was targeted and killed.
10. I had been using [his] three wheeler for a few months before he was killed. … I think that the group who were after [him] would have seen me using his scooter. They also would have seen me with [him] on the day that he was killed at the temple.
11. In 2008 another one of my wife's relative's was abducted. He was also a three wheel driver. To date I do not think that he has been released and so I am fearful that he may have been killed.
12. Around this time, I was afraid for my life. I was afraid that I would be targeted because of my political associations with the TNA and because two relatives who had also driven three wheelers had been abducted and killed, respectively. Because I was afraid for my life, I left the family home and lived in my mother's home for a period of time.
13. Then in 2009 when the elections started I had some more problems when I was supporting the TNA again. Some members of an armed pro government group threatened me. They said that I would be killed or abducted if I continued to support the TNA. This happened on two occasions …..
14. In 2012 the elections took place. Once again, I was involved in supporting the TNA. During the period before the election I was again involved in campaign meetings and putting up posters as before.
15. Whilst helping on the campaign I was again threatened by an armed pro government group. They threatened me again and said that if I continued to support the TNA I would be abducted or killed.
16. In or about early September 2012, during the campaign and before the election, a group of three men who I suspect were part of a pro government group came to my home. I suspect this because they were armed. I had returned to the family home by this time.
17. The men had come to the front door and I saw them through the window. I saw that they were trying to cover their faces and that they were armed. I was afraid and thought they were after me given the previous threats that I had received whilst working for the TNA. I fled out the back of my house and went to my mother's house where I hid out for a few days.
18. After a couple of days hiding out I returned to work because I needed to provide for my family. On my first day back at work, I was discussing with a friend what had happened to me. He said that he could arrange for me to leave Sri Lanka safely.
19. I then left Sri Lanka by boat on 22 September 2012.
To the delegate, the applicant provided information about the situation of Tamils in Sri Lanka, including an article dated 21 September 2016 which referred to “a wave of arbitrary arrests, interrogations, and torture while in custody” (CB 121). There was also an article relating to a protest in Sri Lanka in September 2016 and the treatment of Tamils which said that Tamils felt fear in the face of the army which was not accountable to anyone, that police were corrupt, and that lack of accountability covered acts of violence, including sexual violence and murder (CB 123). An additional report of indeterminable authorship entitled “Supporting Country Information –Sri Lanka” referred to forced disappearances and the torture of Tamils, saying that “Torture is part of the day-to-day operation of the Sri Lankan State…the perpetrators enjoy de facto impunity” (CB 130 to 131 at [10]), citing reports to the UN. That same report referred to election-related violence (CB 132).
On 18 May 2017, the delegate refused to grant the applicant the visa (CB 148 to 161).
The delegate’s decision
The delegate accepted the main aspects of the applicant’s claimed history, including that he was a Hindu Tamil, born in the Eastern Province and had no involvement with the Liberation Tigers of Tamil Eelam (LTTE). The delegate accepted the applicant’s claim to have supported the TNA (CB 150) and that he had been of interest to the authorities since he left Sri Lanka. However, the delegate went on to find (CB 150) that:
I am more inclined to view any claimed visit from the authorities was because of his illegal departure, and not because of any adverse profile, with some country information indicating that the Sri Lankan officials are working to manage illegal departures.
The delegate also noted (CB 150):
The applicant claimed at interview that since he left the country the authorities have continued to watch his house, and his wife has told him that their neighbours have been approached by the authorities and questioned about the applicant’s whereabouts.
Ultimately, the delegate was not satisfied that the applicant had a real chance of suffering persecution or serious harm as a Tamil, for his imputed support of the LTTE, as a supporter of the TNA, or as an asylum seeker who had departed Sri Lanka illegally (CB 150 to 156).
On 23 May 2017, the delegate’s decision was referred to the Authority for review.
On 5 July 2017, the applicant’s representative made a written submission to the Authority which addressed the delegate’s interview and decision, and made additional submissions in relation to the applicant’s claims (July submission) (CB 175 to 181). The July submission referred to, and apparently attached, the following country information:
(a)an article called “Tamils of Sri Lanka – The quest for human dignity” dated March 2006 (CB 222 to 232);
(b)a document which is described[1] in the July submission as being:
A statement by Movement for Equal Rights issued in all 3 Sri Lankan languages warning of the well-orchestrated and racially motivated violence to be brought about imminently, throwing all promised efforts into disarray, creating a continuing persecutory environment, like in 1977, 1983 and 1986[2].
(c)a report by the International Crisis Group entitled “Sri Lanka’s transition to nowhere” dated 16 May 2017 (ICG report) (CB 182 to 220); and
(d)a statement by the Transnational Government of Tamil Eelam (TGTE) on the Joint Declaration by Australia and Sri Lanka dated 1 July 2017 (CB 221).
[1] CB 177 (third bullet point)
[2] A copy of this document does not appear to be in the Court Book, and accordingly its publication date it is independently indeterminable by the Court. However, by reference to the Authority decision (at [5] (CB 263), which is summarised above at [17]), there does not appear to be a dispute that this information pre-dated the delegate’s decision.
The Authority’s decision
On 10 July 2017, the Authority affirmed the delegate’s decision to refuse to grant the visa (CB 237 to 251).
The Authority said that it had regard to the material referred by the Secretary under
s 473CB of the Act (CB 263 at [3]). In relation to the July submission, the Authority took the view that, to the extent that it did not contain new information, regard would be had to it.The Authority noted that the July submission also contained country information which had not been before the delegate. With one exception (being the TGTE statement referred to at [13(d)] above), the Authority observed that the country information submitted for the applicant pre-dated the delegate’s decision and was, apparently, publically available prior to that date of that decision (CB 263 at [5]).
The Authority recorded the explanation provided by the applicant as to why this information was not placed before the delegate. The applicant asserted that he had not been assisted at the SHEV interview, that there was no follow up after the interview, and that the Department of Foreign Affairs and Trade report relied on by the delegate (DFAT Report)[3] was principally motivated by foreign policy considerations (CB 263 at [5]). The Authority was not persuaded that this explanation amounted to exceptional circumstances which justified the information being considered (CB 263 at [5]). The Authority found that the applicant had the opportunity to obtain, and provide, any country information upon which he wished to rely at the SHEV interview (CB 263 at [5]).
[3] See [37] below
The Authority summarised the applicant’s claims, including as detailed in the 2016 Statutory Declaration as follows (CB 264 at [8]):
(a)the applicant first became involved in the TNA in 2005. He would help with transport and general administration in election campaigns;
(b)in 2007 the applicant went to a Hindu temple in Trincomalee with a relative of his wife. Armed men shot the relative o and the applicant fled;
(c)another of the wife’s relatives was abducted in 2008;
(d)during the 2009 election campaign, the applicant was threatened by members of an armed pro-government group. He was told he would be killed or abducted if he supported the TNA. This happened on two occasions when he was putting up posters;
(e)during the 2012 election campaign, the applicant was again threatened by members of an armed, pro-government group;
(f)in or about September 2012, three armed men came to the applicant’s home and he fled;
(g)following which the applicant left Sri Lanka by boat on 22 September 2012;
(h)in late 2012, after the applicant came to Australia, a group of men came to the applicant’s house and asked his wife about the applicant’s whereabouts; and
(i)the applicant fears harm due to his association with, and work for, the TNA and due to him having left Sri Lanka unlawfully.
The Authority noted that at the entry interview the applicant claimed to be a supporter of the Tamil National United Party (CB 264 at [10]).
The Authority observed the delegate had accepted the applicant was a supporter of the TNA who had volunteered his assistance during election campaigns, however the Authority came to a different conclusion and did not accept the applicant’s claims to have volunteered assistance to the TNA to be credible (CB 265 at [18]).
The Authority found that the applicant’s credibility had been undermined from the outset by his misidentification of the political group of which he claimed to be a supporter. The Authority considered it fundamental that the applicant would have been able to correctly name political party which he supported, and to which he claimed to have volunteered assistance (CB 265 at [19]).
The Authority found the applicant’s credibility to be further undermined by his inconsistent evidence as to the timing of the claimed attack on him by armed men. Specifically, the applicant had given differing dates in his 2016 Statutory Declaration and SHEV interview. This discrepancy caused the Authority to doubt whether the applicant had ever been threatened or attacked by armed men (CB 266 at [20]). The Authority expected that the applicant would have been able to provide more detail about the party’s policies and his reasons for supporting it (CB 266 at [21]).
Given the Authority found that the applicant’s evidence about volunteering for the TNA lacked credibility, and because of the prevalence of document fraud in Sri Lanka, the Authority placed no weight on the letters of support about the applicant’s political activities (CB 266 at [23]). The Authority did not accept that the applicant had volunteered with the TNA, nor that he had been threatened by anyone in either 2009 or 2012 (CB 266 at [24]).
The Authority found that the applicant had fabricated these claims in order to create a profile to seek protection. It did not accept that a group of men came to the applicant’s house after he left for Australia, to ask about his whereabouts (CB 266 at [23] to [24]).
The Authority accepted that a relative of the applicant’s wife was killed in 2007 and that another relative had been abducted in 2008. However, the Authority was not satisfied that either person had any relationship with the applicant or wife, nor that the applicant had been harmed or threatened with harm as a result of the alleged killing and/or abduction of the wife’s relatives (CB 266 at [26]). The Authority was prepared to accept that the applicant was summonsed in 2008 but, on the applicant’s own evidence, found that he did not respond to the summons, and noted that he made no further claims in this regard (CB 267 at [27]).
The Authority accepted that the applicant had a pro-TNA political opinion, but was not satisfied that the applicant faced a real chance of serious harm from Sri-Lankan authorities or opponents of the TNA due to pro-TNA political opinion now or in the reasonably foreseeable future (CB 266 at [28]).
The applicant claimed to fear harm from the Sri Lankan authorities because of imputed pro-LTTE or anti-Sri Lankan government political opinions (CB 267 at [29]). The applicant stated that he was not involved with the LTTE and had not claimed any links with the LTTE (CB 267 at [32]). The Authority was not satisfied that the applicant faced a real chance of serious harm from the Sri Lankan authorities due to an imputed pro-LTTE or anti-Sri Lankan government political opinion due to the applicant being a Tamil and/or his residence in a former LTTE-controlled area (CB 267 at [30] to [33]).
The Authority considered the risk of harm to the applicant because of discrimination against him as a Tamil on return and found, based on the applicant’s past history and the country information that it had before it, that it was not satisfied the applicant would be subjected to discrimination or economic hardship which would threaten his capacity to subsist, or other treatment which may be regarded as serious harm for the purposes of s 5J(5) of the Act (CB 268 at [34] to [36]).
The Authority considered the risk of harm to the applicant on the basis of his religion as a Hindu on return to Sri Lanka. In this regard the applicant had claimed that Sinhalese people attempted to stop him from going to one Hindu temple but that he was able attend one closer to his home. The Authority was not satisfied the applicant faced a real chance of serious harm on return by reason of being Hindu now, or in the reasonably foreseeable future (CB 268 at [37] to [38]).
In relation to the applicant’s claim to fear harm if he were to return to Sri Lanka because he departed Sri Lanka illegally, the Authority accepted that the applicant departed Sri Lanka without a passport and therefore has committed an offence under the Immigrants and Emigrants Act (IAE Act). The Authority accepted that the provisions and penalties of the IAE Act are laws of general application which apply to all Sri Lankans equally. The Authority found that the IAE Act was not itself discriminatory and there was no information before it to indicate that it was applied in a discriminatory manner, or selectively enforced. The Authority considered, singularly and cumulatively, that any processes or penalties that the applicant may face on return would not amount to serious harm (CB 269 at [39] to [46]).
The Authority also considered the risk of harm to the applicant if he returned to Sri Lanka as a failed asylum seeker. Having referred to country information and, in particular, the same DFAT Report to which the delegate had regard, the Authority was not satisfied that the applicant faced a real chance of serious harm due to being a failed asylum seeker, now or in the reasonably foreseeable future (CB 269 to 270 at [47] to [50]).
The Authority turned to the complementary protection assessment criteria. Considering the applicant’s illegal departure from Sri Lanka, societal discrimination and the balance of the applicant’s claims, the Authority found there were not any substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka there was a real risk that the applicant will suffer significant harm. The Authority therefore concluded that the applicant did not meet s 36(2)(aa) of the Act (CB 270 to 271 at [52] to [58]).
Proceedings before the Court
The applicant commenced the present proceedings on 7 August 2017 by an application to show cause. At the time the proceedings were commenced the applicant was unrepresented and the application contained 2 grounds of review. On 18 April 2018, the applicant appeared before a Registrar of the Court at a directions hearing at which orders were made, by consent, for a procedural timetable for preparation of the matter and listing it for final hearing before another Judge of this Court (first primary Judge) on a date to be advised.
On 6 April 2022 the matter was listed for a callover before a Registrar of this Court on which occasion there was no appearance by, or on behalf of, the applicant and the matter was re-listed for a further callover on 4 May 2022. On 4 May 2022 there again being no appearance by or for the applicant, the matter was dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and the applicant was ordered to pay the first respondent’s costs.
On 2 June 2022, the applicant’s newly-appointed representative filed an Application in a Proceeding with an accompanying Affidavit seeking that the orders of the Registrar dated 4 May 2022 be set aside under r 17.05(2)(a) of the Rules, and an order that the proceedings be reinstated. That application in a proceeding was docketed to another Judge of the Court (second primary Judge). On 20 June 2022, by consent, the Court ordered that the application filed on 7 August 2017 be reinstated, and listed for final hearing. A proposed Further Amended Application was filed for the applicant on 30 June 2022.
Due to the unavailability of the second primary Judge, the matter was subsequently transferred into my docket on 9 November 2022, on which date I made orders listing the matter before me for final hearing on 20 February 2023. As the legal representatives were located in Melbourne, the hearing proceeded online using the Microsoft Teams platform.
At the commencement of the hearing leave was sought, and granted, for the applicant to rely upon the proposed Further Amended Application referred to at [35] above. The Court Book was tendered by the applicant and marked Exhibit “1A”. For the applicant was also read an Affidavit of his solicitor, Attila Ulas Mete, sworn on 28 October 2022 (Mete Affidavit). Annexure “AUM-1” to the Mete Affidavit is the DFAT Report dated 24 January 2017 referred to at [17] and [31] above.
GROUNDS OF REVIEW
By the Further Amended Application the applicant raises the following three grounds (omitting particulars):
1.The decision of the Second Respondent (“the Authority”) was affected by jurisdictional error in that the Authority erred in interpreting or applying the law.
2.The Authority fell into jurisdictional error in that it was legally unreasonable.
3.The Authority fell into jurisdictional error in that it did not consider relevant considerations.
The applicant’s written submissions were filed on 28 October 2022 and the first respondent’s written submissions were filed on 4 November 2022. I have been assisted by the submissions made for both parties both in writing, and at hearing.
Ground 1
By particular (a) to Ground 1, the applicant contends the Authority erred in the manner identified in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [5] to [12] per Kiefel CJ, Gageler, Keane and Gordon JJ, by considering only s 473DD(a) of the Act but neither of the of s 473DD(b) requirements in respect of certain items of information (primarily the ICG report), which had been provided with the July submission (CB 236 at [5] to [6]).
The applicant says that if the Authority had properly applied s 473DD of the Act this could, realistically, have resulted in a different outcome in relation to the information and a different decision being made and, therefore, the error is material.
It was submitted for the applicant that in the course of considering whether there were exceptional circumstances to justify considering the new information, the Authority gave only a “cursory consideration” to the dates of the items of new information, noting that only one item was dated after the delegate’s decision. In doing so the Authority is said to have failed to acknowledge that the ICG report was dated only two days before the delegate’s decision.
Relying on the Authority having made no explicit finding about whether the requirements of either ss 473DD(b)(i) or (ii) were met, the applicant highlights the following finding of the Authority at [5] (CB 238):
In my view, the applicant had adequate opportunity and means to engage a migration agent prior to the SHEV interview should he have wished to do so. As a corollary to this, he had the opportunity to obtain and provide any country information he wished to rely on at the SHEV interview.
Based on this finding, the applicant contends the Authority considered the fact the applicant was working to mean that he would have been able to afford representation before the delegate and, as such, apparently concluded that the applicant ought therefore to have had representation in order to find, and provide, any additional information before the date upon which the delegate’s decision was made.
The applicant submits that the material in question was important to his protection claims and was responsive to the reasons of the delegate. The applicant contends that had the Authority acted within the bounds of reasonableness as required,[4] it ought to have found that the material was not, and could not have been, provided to the delegate before the delegate’s decision. Specifically the applicant contends that the ICG report ought to have been found to satisfy
s 473DD(b)(i). The applicant also says the new information was important and went to the factual background of his claims such that the Authority could not reasonably have failed to consider that there were exceptional circumstances for considering it, under s 473DD(a), bearing in mind the task of the Authority under ss 36(2)(a) and 36(2)(aa) of the Act.[4] see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [86] per Gordon J (citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332)
The first respondent places reliance on the Authority’s description of the information in question as being “country information”. The first respondent says that by applying this descriptor the Authority should be taken to be assessing the information against
s 473DD(b)(ii). The first respondent cites AUS17 (supra) per Edelman J at [24] where his Honour observed that “[p]lainly, country information is not personal information”, in support of a contention that, by reason of it being country information, the Authority impliedly considered the information could not meet the criterion in s 473DD(b)(ii).
The first respondent submits that the Authority should be taken to have found that country information which pre-dated the delegate’s decision met neither of the s 473DD(b) criteria. As such, the Authority’s consideration of s 473DD(a) is said to have been otiose on the basis of the dates simpliciter because, by pre-dating the delegate’s decision, the information could never meet s 473DD(b)(i) and, to the extent that it was country information the first respondent relies on the submission set out in the preceding sub-paragraph and AUS17.
Specifically, in relation to the ICG report the first respondent submitted there was no reason why the Authority ought to have found that s 473DD(b)(i) was met. The first respondent relies on the fact that the ICG report was dated 16 May 2017, which is unarguably two days before the delegate made their decision. The first respondent observes that the Authority found the ICG report was “publicly available prior to [the delegate’s] decision” and that, in those circumstances, the information could have been provided to the delegate. The first respondent submits that the applicant has never disputed that fact (noting that he bore the onus of satisfying the Authority that the information could not have been provided to the delegate before it made the decision).
In relation to the material which post-dated the delegate’s decision (addressed by the Authority at [6]) the first respondent says that the fact the Authority separated the country information into two tranches for the purpose of its reasons (namely information pre-dating the delegate’s decision and that which post-dated it) demonstrates it was aware of, and considered, the effect of s 473DD(b)(i).
The Court is urged to draw this inference on the basis of the structure of the Authority’s reasons for decision.
The first respondent says that the Authority went on to consider whether, in respect of the country information which post-dated the delegate’s decision, there were exceptional circumstances that justified considering the new information. In doing so, the Authority is said to have observed that the information dealt largely with claimed failures by Australia to address the plight of Tamils, and contained scant detail about the position of Tamils after the end of the war. The Authority said this information offered “minimal assistance” (CB 263 at [6]). The first respondent says that the Authority should be taken by this to have found that there were not exceptional circumstances to consider the information, and that such a conclusion was plainly open to it.
By particular (b) to ground 1 the applicant contends that the Authority erred by giving no weight to supporting documents, without first extending to the applicant an opportunity to comment on the issue of document fraud.
The applicant contends that while the Authority was entitled to consider information relating to document fraud, it was not open to it to reasonably conclude that any (and all) documents proffered by the applicant should necessarily be discounted on that basis, without first seeking information about the documents pursuant to s 473DC of the Act and without putting said information to the applicant for comment.
The applicant contends (and repeats in relation to ground 2) that the Authority had no reasonable basis to find adversely in relation the credibility of his claim to have worked for the TNA and, accordingly, that there was also no lawful basis for it discounting the corroborative material (CB 241 at [23]).
The first respondent submitted that the Authority was entitled to take a different, adverse, view of material which had been considered and accepted by the delegate, without inviting the applicant to comment, citing DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (DGZ16) at [72] per Reeves, Robertson and Rangiah JJ and DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59] per Barker J.
The first respondent contends that the argument advanced by the applicant in respect of particular (b) to ground 1 is relevantly analogous to the case of BIL18 v Minister for Home Affairs [2020] FCA 1367 (BIL18) where there was no “information gap” between the delegate and the Authority. In BIL18 the Authority made factual findings which differed from the findings made by the delegate. Specifically, the delegate had accepted the appellant’s claims to have been arrested, questioned and charged by the Iraqi police and to have appeared before a criminal court. The Authority found that the claims lacked credibility and gave a document purportedly from that criminal court, little weight including by reason of the prevalence of document fraud in Iraq. On appeal, BIL18 argued that the Authority had acted unreasonably by failing to exercise the s 473DC discretion to get new information so as to allow him to respond to credibility concerns regarding the authenticity of the document from the criminal court.
Relying on BIL18, the first respondent submits it was not unreasonable for the Authority to elect to not invite comment from the applicant, noting that it had accepted the principal facts asserted by the letters of support regarding the death of a particular person (CB 80), and the abduction of another (CB 80 to 81). The first respondent submits that the Authority had separate reasons for not accepting the content of those letters other than the country information, including that the applicant’s underlying claims were not credible. Accordingly, the first respondent says it was reasonable for the Authority to proceed in the way it did and that the evidence to which weight was not given was relatively important in the context of the Authority’s decision. Even if an error were to be found, the first respondent says that it was not material.
By particular (c) to ground 1 the applicant says that the Authority erred by misinterpreting or misapplying the real chance and real risk tests, and in its assessment of whether the applicant had a well-founded fear of persecution pursuant to ss 5H, 5J and 36(2) of the Act. This is said to be demonstrated by the findings that there was not a real chance, or real risk, of harm in detention on return to Sri Lanka, despite the Authority having information before it that persons in detention had been tortured or abused, including the DFAT Report. The applicant also relied on other material submitted for him, including the ICG report.
The applicant notes that the DFAT Report said:
4.15 DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.
4.16 In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.
The first respondent submitted that particular (c) to ground one is no more than a thinly disguised attempt at merits review and that it was for the Authority to assess the country information, and draw its own conclusions based on that material.
Consideration
Ground 1 alleges jurisdictional error arising from the manner in which the Authority dealt with new information. The error is alleged in various ways.
Particular (a)
Section 473DD of the Act provides as follows:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In AUS17 (supra) at [11] to [12], [16] and [18], Kiefel CJ, Gageler, Keane and Gordon JJ found that the Authority must assess:
(a)firstly whether new information obtained from a referred applicant met one or both criteria in s 473DD(b)(i) and (ii); and
(b)thereafter, whether there were exceptional circumstances under 473DD(a) to warrant considerations of it.
If either (or both) of the s 473DD(b)(i) or s 473DD(b)(ii) criteria are met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) of the Act.
As noted at [13] above, the applicant submitted various documents to the Authority. The delegate’s decision was made on 18 May 2017, being 2 days after the ICG report is dated and approximately 6 weeks before the TGTE statement was released.
The Authority was correct to observe (CB 238 at [5]) as a matter of fact that only one item of the material submitted for the applicant with his submission to the Authority (being the TGTE statement), post-dated the delegate’s decision.
In relation to ground 1(a) as it pertains to the ICG report the applicant, in essence, urges upon the Court an interpretation of s 473DD(b)(i) which is not available. The applicant seeks to add a subjectively qualitative assessment of diligence to whether a document “could not have been, provided” to the delegate. This is implicit within the submission that while the ICG report technically pre-dated the delegate’s decision, it would not have been realistic to expect that in that limited time the applicant could have become aware of the report and provided it to the delegate. It is open to infer that if the legislature intended such a qualification, it would have included this within the text of s 473DD(b)(i) of the Act.
Whether the document could or could not have been provided to the Authority was a finding of fact for it to make. The Authority in this case did so by reason of both the date of the document and the fact that it was publicly available at the time. There was a clear basis for its factual finding and that basis was open to the Authority on the material before it.
To the extent that the applicant relies on the statement by the Authority at [5] as giving rise to an error because it briefly analysed the applicant’s circumstances, including the means to engage a migration agent, there is no error arising from this finding. By this passage, the Authority was assessing the applicant’s own explanation as to why he was unable to find and provide materials at the SHEV interview, as being an explanation for why the material was not provided to the delegate. The Authority was entitled to consider the full array of information before it as to the applicant’s circumstances as part of considering that explanation.
As to the allegation pertaining to AUS17 it is unsurprising that, without the benefit of the High Court’s reasons for decision in AUS17 which was decided years after the Authority’s decision in the instant case, the Authority did not strictly comply with the staged assessment which has now been clarified as requisite by AUS17. The question for this Court raised by particular (a) to ground 1 of the Further Amended Application is whether, in substance, the Authority did undertake such an assessment. I agree with the submissions of the first respondent that the Authority did so.
In particular, I agree with the submissions of the first respondent at [46] to [48] above, including as to the analysis of the material as country information. From a full and contextual reading of the Authority’s reasons for decision, it is open to infer, and I do, that the Authority was aware of, and considered in substance, the effect of s 473DD(b)(i). There is no basis to conclude that the Authority failed to apply s 473DD in the manner contended for by ground 1(a).
Overall, particular (a) to ground 1 does not disclose error as alleged, or at all.
Particular (b)
By this particular the applicant alleges the Authority erred by being determined to discount corroborative material without a reasonable basis. The Authority is said to have extended a general observation made regarding document fraud, to an array of documents which the applicant sought to advance. Alternately the Authority is said to have erred by failing to seek new information to bridge an “informational gap” about the specific types of documents being advanced. The applicant relies on the High Court’s decision in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 where the Court found the Authority to be in error where it had failed to seek new information to bridge such an “informational gap” in relation to the demeanour of the applicant. The applicant maintains that in the present case while the subject matter of the “informational gap” was different, the matter is relevantly indistinguishable from ABT17. I disagree.
In DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 per Reeves, Robertson and Rangiah JJ, the Full Federal Court found that the Authority was not required to provide the applicant with an explanation of specific reservations which it held about his case and provide the applicant with an opportunity to make a fuller or better case: see also FBR18 v Minister for Immigration and Border Protection [2019] FCA 1620 at [45] per Farrell J. In ABT17 (supra) at [24], the majority cited DGZ16 stating that:
The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
In BIL18 at [54] to [55] Wigney J held that:
…there is nothing in the statutory scheme in Pt 7AA of the Act to suggest that the Authority is obliged to notify a referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. It must follow that the mere fact that the Authority is considering taking a different view of the material before the delegate does not oblige the Authority to request, or consider requesting, new information from the referred applicant. The “requirement for legal reasonableness is not a vehicle for effectively mandating the exercise of s 473DC in every case which involves the Authority overturning a positive finding made by a delegate on an issue that is dispositive to its review”: FGC17 v Minister for Home Affairs [2019] FCA 559 at [40].
…
it is not entirely clear that the Authority made an unequivocal finding that the appellant had committed “document fraud”, though it is clear that the Authority doubted the authenticity of the relevant document for various reasons. Even putting that issue to one side, the mere fact that the Authority is considering making a serious adverse factual finding against a referred applicant would not alone oblige the Authority to obtain new information about the subject matter of that adverse finding. That is all the more so where that subject matter was addressed before the delegate, where there is nothing to suggest that the referred applicant was able to give any additional information about that subject matter that was not given to the delegate, and where there is nothing to suggest that the Authority was in any way “disadvantaged in comparison with the delegate” in relation to making a finding about the relevant factual issue: FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [39] .
In the present case, I am not satisfied that there was no informational gap arising between the between the materials considered by the delegate and the Authority. Rather, the Authority concluded differently than the delegate in respect of the same information, to a different outcome, but these conclusions were open to it and it was not required to presage the findings to the applicant for comment. Accordingly, I find there was no error as alleged by ground 1(b).
Particular (c)
Finally in respect of ground 1, the applicant alleges that the Authority misapplied the real chance and real risk tests when considering whether or not the applicant would be harmed on return, if detained. I agree with the submission of the first respondent that the applicant is, in essence, seeking to engage the Court in merits review. The Court is urged to find that the Authority ought to have concluded differently as to the risk of harm which the applicant might face if detained on return, based on material in the relevant DFAT report. It is no part of this Court’s jurisdiction to make that determination for itself. There is no discernible misapplication of the relevant statutory tests demonstrated in the manner alleged by ground 1(c) and I find that this particular, and overall, the ground fails.
Ground 2
Particular (a) to this ground repeats particular (a) to ground 1. For the reasons given above, it was also not unreasonable of the Authority, based on the factual findings which underpinned its assessment of the s 473DD(b) criteria to not find that there were exceptional circumstances to consider the new information.
At hearing, the parties addressed particulars (b) and (c) to this ground together.
In short, the delegate found the applicant to be a supporter of the TNA. The applicant says that, by contrast, the finding of the Authority that the applicant’s claim to have assisted the TNA was a fabrication (CB 240 at [18] to [21]) was unreasonable. The applicant says the Authority rejected this claim on three bases, namely:
(a)inconsistent evidence as to the name of the party. The Authority made reference to the entry interviewer having “carefully clarified” the name of the party with the applicant at interview with the assistance of an interpreter (CB 241 at [19] by reference to CB 2, and CB 12 at Q1). The entry interview records the applicant as claiming to fear harm by reason of his support of the “Tamil National United Party”. In contrast, the Authority noted the applicant had claimed by his visa application to have supported the TNA. The applicant says that these conclusions failed to consider that the entry interview was “conducted through an interpreter for over 1 hour and 15 minutes, and therefore there was less than about 40 minutes for communication of approximately 60 questions and answers”.[5] The Authority’s decision is also said to fail to consider that the Entry Interview was conducted with the applicant who at that time had no language other than Tamil. That fact was recorded by the 2016 Statutory Declaration provided with the visa application was interpreted by a different interpreter from the Entry Interview (CB 73 at [1] and CB 75). As such, the applicant says that different interpretations of the name of the political party were not a reasonable basis to reject the TNA claim as a fabrication;
[5] Applicant’s written submissions at [42]
(b)The Authority’s view (CB 241 at [20]) that:
The applicant’s credibility is further undermined by his inconsistent evidence relating to when he was attacked by armed men. In his statutory declaration, he made a specific claim that armed men came to his home in early September 2012. However, at the SHEV interview, he stated that the last time he was threatened was in June/July/August 2012.
in respect of which the applicant submits as follows. Firstly, that by his 2016 Statutory Declaration he said: “In or about early September 2012, during the election campaign….” (CB 74 at [16]). Consequently, the applicant says that because the 2016 Statutory Declaration was made in August 2016 (being about 4 years after the claimed events) and the interview was six months thereafter, the difference between the descriptors “June/July/August 2012” and “In or about early September 2012… ” was not a logically probative basis for a conclusion that there was inconsistent evidence such as to reasonably found the conclusion that the applicant’s credibility was further undermined;
(c)the Authority in its a reasons for rejecting the applicant’s claimed involvement in the TNA, said (CB 241 at [21]):
Further, when the applicant was asked why he supported the TNA, he gave a very general and brief answer that he supported the party because they wanted to see solutions for the Tamils. I would have expected the applicant to have been able to provide considerably more detail about the party’s policies and why he supported it if he had spent four to five hours per day volunteering for the party over a period of several weeks as claimed; and
(d)that given the applicant’s level of education and vocational training as a labourer, his possessing only a simple and general idea about the TNA supporting Tamils was not a logically probative basis to reject the claim he supported the TNA. By hypothetical analogy it was submitted that even in a country like Australia many people might support a party generally considered to be aligned with workers’ rights, yet not be able to give a detailed account of said party’s policies.
The applicant submits that neither separately, nor together, were the matters outlined at [80] above a reasonable basis upon which to reject the claim that the applicant was a supporter of the TNA and that he gave practical assistance to the TNA. Consequently, it is said that these are not reasonable bases to reject as fabrication the claims that the applicant was threatened by armed men for this reason nor that after he left Australia men came to his house, asking where he was (CB 241 at [25]).
The first respondent submitted the Authority was justified in placing weight on the incident as detailed first in the difference in timing applicant’s 2016 Statutory Declaration and the interview. The first respondent notes that while it is true that the 2016 Statutory Declaration said the incident with the armed men occurred “in or about early September 2012”, it is evident from the timing of the claim summarised at [16] to [19] (CB 74). The applicant said he went into hiding for a few days after the incident, returned to work for one day and then fled Sri Lanka on 22 September 2012. The first respondent says therefore that a timeline which is limited to only few days, in what must have been mid to late September 2012, is not consistent with an incident happening as early as June 2012.
The first respondent also submits that there was nothing unreasonable about the Authority’s observation that the applicant, who had claimed to volunteer for the TNA four to five hours a day for several weeks, would be expected to have some more detailed knowledge of the party’s policies beyond wanting “to see solutions for the Tamils”.
By particular (d) to ground 2 the applicant says it was unreasonable for the Authority to reject his claimed support of the TNA without first seeking additional information from him. In response the first respondent again says that the Authority is not required to give the applicant an opportunity to comment merely because it came to a different conclusion to the delegate.
By particular (e) to ground 2 it is contended for the applicant that the Authority acted unreasonably by failing to seek further information from the authors of the letters of support offered by the applicant (CB 241 at [22] to [23]).
In opposition, the first respondent relies on Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 per French CJ, Gummow, Hayne, Crennan, Kiefel (as her Honour then was) and Bell JJ. In SZIAI at [26] the plurality found that:
The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
Consideration
The threshold for establishing legal unreasonableness is high: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [135]. As adverted to by the first respondent, the High Court has also described the test for unreasonableness as being stringent and extremely confined (Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541). Further, legal unreasonableness is to be judged at the time the power is exercised: see Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 852 per Downes J at [65], citing Minister for Home Affairs v DUA16 (2020) 385 ALR 212 and Minister for Home Affairs v CHK16(2020) 385 ALR 212 at [26].
Applying the well-established principles in relation to an assessment of whether the Authority reasoned in a way which was legally unreasonable, ground 2 is not made out. Ground 2 (a) has been addressed at [78] above. In addition to the matters addressed at [78] above, I find as follows.
In relation to the matters alleged by grounds 2(b) and (c), I prefer the submissions of the first respondent. There was an evident and intelligible basis for the Authority’s findings in relation to the TNA claims. In particular it was open to the Authority to conclude as it did that the error in naming the political party was a matter of moment. While there was some possibility that an error in interpretation might have accounted for the inconsistency this has not been established, nor advanced beyond mere conjecture. It was certainly open to the Authority to conclude, for the reasons that it did, that the applicant had given inconsistent information. The Authority was not required to confirm the standard of interpretation for itself, and the applicant has proffered no evidence to support such an assertion.
In relation to the timeline of events in 2012, I accept the submission of the first respondent that the proximity of the alleged incident involving armed men, to the applicant’s departure from Sri Lanka was not consistent with the version of events later proffered. The effluxion of time between the 2012 incident and the making of the 2016 Statutory Declaration does not, in my view, explain that inconsistency when regard is had to the connection of the event to the applicant’s departure, said to be only days later. In those circumstances, and by reference to the departure date of 22 September 2012 the finding of the Authority in that regard was not unreasonable.
Each of grounds 2(d) and (e) allege unreasonableness on the basis that the Authority did not give the applicant the opportunity to comment upon, or provide further information. In FGC17 v Minister for Home Affairs [2019] FCA 559, Steward J found the following at [40]:
the confluence of the appellant’s request to be heard, the “silencing” effect of the Practice Direction, and the overturning of the delegate’s positive finding did not give rise to an obligation on the part of the Authority to exercise its power. Moreover, the requirement for legal reasonableness is not a vehicle for effectively mandating the exercise of s 473DC in every case which involves the Authority overturning a positive finding made by a delegate on an issue that is dipositive to its review. To adopt such a broad proposition would defeat the statutory goal of efficiency inherent in the fast track review process in Pt 7AA.
The observations in FGC17 are apposite to the instant case. Specifically in relation to the contention raised by ground 2(e), namely that the Authority ought to have sought information from the authors of letters of support submitted by the applicant, I agree with the submission of the first respondent that, as the High Court found in SZIAI (supra) at [26], there was limited probative information to be gained from contacting the details which the letters bore on their respective faces. Doing so would not have enabled the Authority to establish the genuineness of the letters, nor their authorship.
Accordingly, I find that it was not unreasonable for the Authority to proceed as it did, and the error alleged is not established.
Ground 3
By his final ground, the applicant contends that the Authority failed to consider, and make a determination about, an “explicit submission” at (CB 178) that the:
TNA was created by the LTTE to capture the parliamentary base in the North and East. It is well known as a front and outfit of the LTTE. Every member elected (during the existence of the LTTE as a formidable group) obeyed the directives of the LTTE.
It is even seen today as a front of the LTTE taking forward the cause of Tamil liberation and self-determination minus the violence adopted by the LTTE. They therefore are targets of the armed forces, in their watchful eye of resurgence for agitation for Tamil self-determination, and in that interpretation, it will be the resurgence of the LTTE, as they fear.
The applicant says that in the context of this ground, case law pertaining to the regime contained in Part 7 of the Act, is largely applicable to review by the Authority, under Part 7AA of the Act. In particular the applicant submits that the Authority must consider each necessary and relevant integer of a claim, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J (as his Honour then was) at [19] and SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 per Perry J at [13] to [18].
The applicant refers to the obligation contained within s 473EA of the Act which requires the Authority to make a written statement which, inter alia, sets out its decision and the reasons for that decision. The applicant says that an omission of a question or finding from its s 473EA statement may demonstrate that the Authority failed to consider material, leading to jurisdictional error. Specifically, the applicant says that while it was a matter for the Authority to determine for itself the material questions of fact, it could not ignore a clearly articulated claim which it is alleged to have done in the context of considering the applicant’s claimed support for the TNA, yet failing to deal with the submission referred to at [94] above.
The first respondent submits that the applicant has not established that the submission in question was not considered simply by pointing to the absence of a reference to it in the Authority’s reasons. Rather, the first respondent says that the submission referred to above formed part of the broader written submission made by the applicant to the Authority. As such, the first respondent says that when the Authority recorded itself as having had regard to the broader submission (CB 238 at [4]), subsumed within that regard was a consideration of the specific submission in question.
Rather than inferring that the Authority failed to consider the submission, the first respondent says the better inference to be drawn by the Court is that the Authority (having considered the submission) simply did not advert to because it was immaterial.
Consideration
Overall, I prefer the submission for the first respondent in relation to this ground. I am not satisfied that the extract relied upon in this ground did make a sufficiently articulated claim for protection that it required express consideration by the Authority.
Next, it can be accepted that the Authority did make reference to having considered the submission, such that I am prepared to infer that this submission was considered within the totality of that review and assessment.
To the extent that the Authority did not specifically consider the extract now sought to be relied upon warranted individual mention and consideration, that is unsurprising having regard to my finding at [99] above, but moreover because the applicant’s submission to the Authority continued (CB 179) with the following:
Therefore, any known supporters of TNA at whatever level are seen with suspicion, as a separatist and potential to the re-emergence of LTTE, by the security forces in the Tamil areas.
I agree with the submission for the first respondent that, by this finding, the Authority can be taken to be expressing its preference for the available country information which contradicted the above position. I accept that the Authority did not refer to the summarised position of the situation in Sri Lanka in the written submission, because it preferred other country information.
In my view the error as alleged by ground 3 is not made out.
CONCLUSION
The applicant has not succeeded in establishing error by reference to any of the grounds raised. I find that the decision of the Authority is not affected by jurisdictional error. As such, it is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 18 July 2023
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