DQS16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 705
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQS16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 705
File number: MLG 2593 of 2016 Judgment of: JUDGE LADHAMS Date of judgment: 30 August 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to raise critical matters with applicant or extend applicant opportunity to comment on adverse information – whether Authority failed to consider a claim or integer of a claim raised by the applicant – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 36, 473CA, 473CB, 473CC, 473DA, 473DB, 473DD, 473DE, 476, 477 Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 23 August 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr C Orchard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2593 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQS16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
30 AUGUST 2022
THE COURT ORDERS THAT:
1.The application 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 LADHAMS:
INTRODUCTION
By way of application filed on 1 December 2016, the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 10 November 2016 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa. The application to the Court is filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The application filed by the applicant raises two main issues:
(a)whether the applicant was denied procedural fairness on the basis that the Authority did not raise critical matters with him or afford him a real opportunity to reply to adverse information; and
(b)whether the Authority failed to consider a claim, or integer of a claim, raised by the applicant, based on his Catholic religion.
For the reasons that follow I find that there is no jurisdictional error in the Authority decision and the application for judicial review should be dismissed.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia by boat at Christmas Island in November 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 3 March 2016 the applicant lodged a valid application for a protection visa. The applicant’s claims for protection were set out in a statement that accompanied his protection visa application. The applicant claimed to fear harm from the Sri Lankan authorities on the basis of his Tamil ethnicity and his political association with the Tamil National Alliance (TNA).
On 26 July 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 26 August 2016 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 10 November 2016 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority accepted that the applicant is of Tamil ethnicity and of Catholic religion and was born in the Northern Province of Sri Lanka, but found that there was no real chance of him being harmed on account of his Tamil ethnicity and place of origin. The Authority found that the applicant had no actual connection with the Liberation Tigers of Tamil Eelam (LTTE) or criminal record and considered that he does not have any other profile that would cause him harm on the basis of his Tamil ethnicity or place of origin.
The Authority accepted that the applicant and his family were displaced during the civil conflict and that the applicant spent several years interned at a camp for displaced persons. The Authority found that, aside from a generalised warning not to become involved in politics, the applicant was not harassed or monitored following his release from the camp. The Authority did not consider that the applicant would be imputed with a pro-LTTE political opinion.
The Authority accepted that the applicant had been a supporter of the TNA and volunteered his assistance to the TNA during election campaigns. The Authority found that the level and nature of assistance the applicant provided to the TNA was that of a low-level volunteer campaign worker rather than that of any senior figure within the TNA, and that he had exaggerated the frequency of instances where he or his family members were intimidated by unknown persons or the Sri Lankan authorities during electoral campaigns between 2009 and 2011. The Authority also did not accept that the applicant would be imputed with a pro-LTTE political opinion on the basis of his low-level support or involvement with the TNA.
The Authority accepted that the applicant would return to Sri Lanka as a failed Tamil asylum seeker. However, the Authority found that the instances of returning Tamil asylum seekers being harmed were directed to people with substantial links to the LTTE or outstanding warrants, and that the applicant did not hold such a profile. The Authority also did not accept that the applicant’s attendance at a Tamil Martyr’s Day ceremony in Australia in 2015 would place the applicant within the risk profile of LTTE fundraisers and propaganda activists or persons perceived to have links to the Sri Lankan diaspora that provided funding and other support to the LTTE.
The Authority found that the applicant had not departed Sri Lanka unlawfully and there was no prospect of him facing adverse attention from the Sri Lankan authorities on account of his departure.
Based on the above findings, the Authority concluded that the applicant did not meet the definition of a refugee in s 5H of the Migration Act and therefore did not meet the requirements of s 36(2)(a).
The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would face significant harm. This complementary protection finding was largely based on the factual findings relied on in relation to the Authority’s assessment under the refugee criteria in s 36(2)(a).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on 1 December 2016. The application was filed within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The application raises the following three grounds:
1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.
2.The Second Respondent failed to consider the Applicant’s claims as a Catholic Tamil male cumulatively; in the alternative, the Second Respondent failed to consider an integer of the claim (being Catholic).
3.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
The applicant did not file any written submissions, despite a Judge of this Court making orders for him to do so. The Minister filed written submissions on 3 February 2022.
CONSIDERATION
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief, the applicant must establish that the Authority decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (emphasis added)
To amount to a jurisdictional error, any error by the Authority must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [45].
Ground 1
The error alleged in ground 1 is that the Authority constructively failed to review the delegate’s decision and denied the applicant procedural fairness by failing to raise critical matters with the applicant and extend to him a real opportunity to reply to adverse information. The applicant has not indicated which ‘critical matters’ were not raised with him or which ‘adverse information’ he was not given an opportunity to comment on.
The Authority clearly considered the information in the material referred to it by the Secretary in accordance with s 473CB of the Migration Act. The Authority also noted at [4] of its reasons that there was no further information obtained by the Authority or received from applicant, and there is no evidence before the Court to indicate that the applicant provided further material to the Authority after the delegate’s decision was made. After considering the material before it, including the applicant’s protection claims, the Authority concluded at [37] and [43] that the applicant did not meet the requirements for a protection visa and affirmed the decision under review. The Authority discharged its obligation in s 473CC of the Migration Act to conduct a review.
The Authority’s procedural fairness obligations are set out in Division 3 of Part 7AA of the Migration Act. Section 473DA(1) of the Migration Act provides that Division 3 of Part 7AA, together with two other provisions that have no application in the present case, ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority’. This exhaustive statement of the natural justice hearing rule leaves no room for the operation of common law rules of procedural fairness in relation to reviews conducted by the Authority: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [31], [33].
Section 473DB(1) of the Migration Act provides that, subject to Part 7AA, the Authority is to review a fast track reviewable decision by considering the review material provided to it in accordance with s 473CB, ‘without accepting or requesting new information’ and ‘without interviewing a referred applicant’. Thus, a review conducted by the Authority will ordinarily be done on the papers.
There is an obligation imposed on the Authority by s 473DE of the Migration Act to give to an applicant, and invite the applicant to comment on, clear particulars of any new information which is to be considered by the Authority pursuant to s 473DD and which would be the reason or part of the reason for affirming the fast track reviewable decision. However, in the present case, the Authority did not consider any new information that was not before the delegate and the obligation in s 473DE did not arise.
There is nothing in Part 7AA which imposes a procedural fairness obligation on the Authority to alert the applicant to any proposed departure from the delegate’s process of reasoning. The Full Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 confirmed at [72] and [76] that the ‘Authority is not required to inform [an applicant] of specific reservations about the [applicant’s] case and to provide the [applicant] with an opportunity to respond’ and that it is ‘open to the Authority to disagree with the delegate’s evaluation of the material without providing the [applicant] an opportunity to respond’.
In any event, the issues before the Authority in the present case were the same as the issues before the delegate and there was therefore no obligation for the Authority to invite the applicant to comment on these issues.
The only materially different finding of fact made by the Authority compared to the findings made by the delegate is that the Authority found that the applicant departed Sri Lanka lawfully, whereas the delegate found that the applicant departed Sri Lanka illegally. The Authority’s finding was based on the applicant’s own consistent evidence, as opposed to the submission made by his representative. There was no procedural fairness obligation on the Authority to invite the applicant to comment before making this different finding, and in the circumstances of this case, in particular noting that the Authority decision is based on an acceptance of the applicant’s evidence, there was nothing unreasonable in the Authority’s decision not to invite the applicant to comment on this issue before making a different finding to the delegate.
Ground 1 is not established.
Ground 2
The applicant alleges by ground 2 that the Authority failed to consider his claims to be a Catholic Tamil male cumulatively, or alternatively that the Authority failed to consider an integer of the claim that he is a Catholic Tamil.
The Authority was required to consider claims expressly articulated by the applicant and any claims which were not expressly articulated but which squarely arose on the materials before the Authority based on established facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18]. The Full Court of the Federal Court explained the relevant principles in AYY17 at [18], where it said (emphasis in original):
It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]–[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration & Border Protection (2016) 241 FCR 214 per Markovic J (at [37]–[38])). In SZUTM, Markovic J said:
37.While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38.Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
The issues that arise for consideration in relation to this ground are:
(a)whether the applicant claimed to fear harm on the basis of his Catholic religion, or whether such a claim clearly emerged from the materials before the Authority; and
(b)if so, whether the Authority considered this claim in its reasons.
The applicant clearly referred to his Catholic religion in the evidence available to the Authority, but he did not claim to fear harm on this basis. This can be seen from the following materials in the court book:
(a)at his arrival interview, the applicant identified his religion as Catholic, but did not refer to his religion as a reason for leaving his country of nationality;
(b)in his protection visa application, the applicant again identified his religion as Catholic, but he did not refer to his religion or make any claims to fear harm on account of his Catholicism in his statement dated 10 February 2016 which set out his claims for protection;
(c)the applicant provided a character reference from a parish priest which referred to the applicant as coming from a ‘good Catholic family’;
(d)the applicant’s solicitor and registered migration agent provided a submission dated 9 August 2016 to the delegate, in which the solicitor set out the reasons why the applicant feared systemic and persecutory harm and those reasons did not include his religion; and
(e)the delegate recorded that at the protection visa interview, the applicant said that he was studying in Sri Lanka to become a priest and that his brother was a Bishop.
When I invited the applicant at the hearing before the Court to identify whether he had raised claims based on his religion before the delegate or Authority, the applicant submitted that he was more emphatic about the political aspects of his claim for protection, but also mentioned his religion and believes that the Authority should have considered religious discrimination too.
I find that the applicant did not expressly claim to fear harm on the basis of his religion. I do not identify any error in the Authority’s statement at [8] of its reasons that ‘[t]he applicant has made no claims to have been harmed on account of his religion’.
Although the applicant referred to his religion in his dealings with the Department, and the Authority accepted that the applicant was of Catholic religion, there does not clearly emerge from the materials any unarticulated claim that the applicant may face harm on the basis of his religion. In reaching this conclusion, I have taken into account the way in which the applicant’s claims were articulated. I have also taken into account that the applicant was represented before the delegate, and no claim based on religion has been referred to in the submission provided by the applicant’s solicitor. Further, I note that the delegate did not address whether the applicant may face harm on account of his religion. After the applicant was provided a copy of the delegate’s decision and the matter was referred to the Authority, the applicant had the opportunity, in accordance with the Authority’s Practice Direction, to provide a written submission addressing why he disagreed with the delegate’s decision and any claim or matter that he presented to the Department that was overlooked in the delegate’s decision. Despite this opportunity, the applicant did not assert to the Authority that he claimed to fear harm on account of his religion, and that this claim should be considered.
In circumstances where the applicant did not expressly or impliedly make any claim to fear harm on the basis of his religion, the Authority was not required to consider whether he would face harm on this basis.
Ground 2 is not established.
Ground 3
Ground 3 is simply a statement that the applicant had applied for legal aid. It does not allege any jurisdictional error and is not a proper ground of application.
Matters raised by the applicant in his oral submissions
The applicant also made oral submissions at the hearing that were not directed to his grounds of review. The applicant submitted that he has a problem in his own country and is pleading for help. He submitted that the Authority erred because the applicant made a claim for asylum which has not been accepted. The applicant submitted that the Authority may not have considered his claim properly and may not have understood the implication and gravity of his situation. He pleaded for the Court to consider his case on humanitarian grounds and give him another hearing. He also said that his lawyers before the delegate did not represent him well. He submitted that his wife has a disability as she only has one hand and he needs to support his wife.
None of these matters establish jurisdictional error. As I explained to the applicant at the hearing, the Court’s role is limited to considering whether there is jurisdictional error in the Authority decision. The Court does not have any power to grant relief to the applicant on humanitarian grounds in circumstances where there is no jurisdictional error in the Authority decision. The applicant’s submission appears to be essentially a complaint that the Authority did not grant him a protection visa. There is no evidence before me that the applicant previously raised concerns about his legal representation before the delegate or his wife’s disability and there is no basis for me to find jurisdictional error in the Authority decision because of these factors.
CONCLUSION
I have found that there is no jurisdictional error in the Authority decision. It follows that the application to the Court must be dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 30 August 2022
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