DRB16 v Minister for Immigration

[2018] FCCA 2155

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRB16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2155

Catchwords:
MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A(1), 65, 473CB, 473GA, 473GB, 473DA(1), 473DB, 473DC(1), 473DD, 476(1)

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 136 ALR 481

Applicant: DRB16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 587 of 2016

Judgment of: Judge Kendall

Hearing date: 21 May 2018

Date of Last Submission: 14 May 2018

Delivered at: Perth

Delivered on: 21 May 2018

REPRESENTATION

The Applicant in Person

Counsel for the Respondent: Ms S Oliver

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7,328.

FEDERAL CIRCUIT
COURT
OF AUSTRALIA
AT PERTH

No. PEG 587 of 2016

DRB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. By application filed in this Court on 27 November 2016 the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “Authority”) dated 14 November 2016.

2. The Authority’s decision affirmed a decision of the delegate of the first respondent, the Minister, dated 28 September 2016. The Authority affirmed the delegate’s decision to refuse the applicant’s application for a Safe Haven Enterprise Visa (a “SHEV”) made on 1 April 2016. 

3. The applicant now seeks review of the Authority’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Authority.

4. In his judicial review application to this Court the applicant relies on three grounds of review:

   1.   Jurisdictional error.

   2.   Bias based on conscious or unconscious prejudice by ignoring relevant materials.

   3.   Identifying a wrong issue on a wrong question.

5. The three grounds of review were supported by an affidavit filed on 28 November 2016.  That affidavit produced a copy of the Authority’s decision.  It also attached a document which both the Minister and the Court accept is a submission.  Under four sub points, (a), (b), (c) and (d), the applicant attempts to clarify for the Court what type of jurisdictional error occurred.  The applicant also referred to specific paragraphs in the Authority’s decision.  In those submissions, the applicant states:

   2.The Immigration Assessment Authority committed jurisdictional error by failure to exercise its proper jurisdiction by:

   (a)Failure to examine in a proper manner the provisions of the Prevention of Terrorism Act of Sri Lanka under which I am perceived to be a supporter of the Tamil cause.

   (b)The Immigration Assessment Authority failed to examine the real situation faced by Tamils like me within a social group perceived to have had links with the LTTE, in the context of the army control of the traditional homelands of the Tamils situated in the North and East of Sri Lanka.

   (c)The Sri Lankan government and the armed forces have committed and are continuing to commit human rights abuses against young Tamils like me which is being investigated by the UNHCR and have been commented upon by organisations like the Amnesty International and Asia Watch.

   (d)The Second Respondent did not exercise its proper jurisdiction as a prudent body in my case and thereby fell into jurisdictional error.

   3.In this regard reference is made to the following paragraphs of the decision of the Immigration Assessment Authority: 7, 8, 10, 13, 15, 16, 27, 28, 29, 32, 36, 37, 39, 40 and 43.

6. Before this Court the applicant also submitted a slightly amended version of that document (“amended document”).  It does not differ substantially from the original submission. The Court accepts the amended document as further evidence.

7. The applicant has not filed any further amended application or submissions.  He was permitted to do so by order of this Court on 23 February 2018. 

8. The applicant was not legally represented before the Court.  He spoke through an interpreter in the Tamil language.  The Court thanks the interpreter for her considerable assistance. 

9. The Court had before it a Court Book (“CB”) numbering 195 pages.  The Court also had detailed written submissions from the Minister dated 14 May 2018. 

Synopsis

1. For the reasons that follow this application for judicial review fails and is, accordingly, dismissed.

2. The Court will hear the parties in relation to costs. 

Background

1. The Court adopts the factual and procedural background outlined at paragraphs 5 – 9 in the Minister’s written submissions.  These background facts were not disputed and provide, relevantly, as follows.

2. The applicant is a citizen of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 13 April 2013 (CB 137). The Minister exercised his power to lift the bar in s.46A(1) of the Act. The applicant then lodged an application for a SHEV (CB 31-84). He did so on 1 April 2016.

3. The SHEV application included a statement by the applicant in which he claimed (CB 72-76):

   1.   I am a citizen of Sri Lanka. I do not have a right to citizenship or a right to reside in any other country.

   2.   I am Tamil and a Roman Catholic.

   3.   I was born on […] 1967 in […] Sri Lanka

   4.   My identity documents include my National ID card, Drivers Licence, Birth certificate and a copy of my passport. I have provided certified copies of my National ID card and drivers licence and will provide the other documents when I receive them from Sri Lanka.

   The country to which I fear returning

   5.   I fear returning to Sri Lanka.

   6.   In around 2005 and 2006 while I was working as a taxi driver I used to drive through […] where there were disputes between the Karuna group and the LITE. One day in approximately 2005 I was asked to get some supplies for the Karuna group by the person in charge of the group's finances. He was the finance director and he gave instructions to the stores manager who was in the LITE. He told the stores manager what to order.

   7.   The finance director and the stores manager wanted me to get some food supplies and take them to their camp. I did as they asked and delivered the food as requested. I was able to travel around freely to do this work because the army recognised me as a local taxi driver and they were not suspicious of my movements.

   8.   I did this work because I needed the money and the Karuna group paid me well.

   9.   I don't know the name of the Karuna group member who asked me to do the work but I know that his younger brother was shot dead by the LTTE in 2006. After that there was tension between the finance director and the stores manager because of the growing split between the LTTE and the Karuna group and the finance director believed that the stores manager was responsible for the death of his younger brother. There was a lot of shooting going on between the two groups but I don't know exactly why this shooting occurred.

   10. After the death of his younger brother I was confronted by the finance director who said that he knew the stores manager had killed his brother. He said that the stores manager had disappeared and he believed I knew where he had gone. He wanted me to tell him where the stores manager was hiding. He thought that I would know because I delivered things regularly to the stores manager.

   11. I said that I didn't know anything about it but he didn't believe me. He started to threaten me. He said that I should tell him otherwise he would shoot me.

   12. After this I stopped working in that area because I felt scared. I started working in other areas so that I could avoid the Karuna group finance director.

   13. About two weeks after the incident two people came in a van to my house. I was not at home but they asked where I was and threatened my father. My wife was still living in Colombo because she had work there as an accountant so she wasn't in my house at the time.

   14. The next time they came I was also not at home and they threatened my father again.  He said it was the same people who came each time but he could not see exactly who was in the van. This happened three times.

   15. Then in April 2007 they came again, it was in the morning around 10am and this time I was at home.

   16. We never used to lock our door so it was easy for them to come into the house. Two men came in and grabbed me by the neck. One of them was the finance director. They pushed me into the van and drove me to their camp. It took about 3 or 4 hours to drive to their camp which was outside town somewhere in the jungle.

   17. When we arrived at the camp they tied me up. I was tied to a tree. There were other people tied up as well. I wasn't tied to a tree all the time and after about 2 or 3 hours I was untied and placed in the camp under guard. I was held for about 15 days.

   18. I was beaten and tortured during the time they kept me. My right arm was broken by being hit with a baton.

   19. After 15 days there was some conflict in the camp and I escaped when the guards were distracted. I was not the only one who escaped. I think there were 25 of us all together. 

   20. It took nearly two days to get away from that place. There were some people with me who had been in the LTTE and they knew the area well so they guided the rest of us out. It was very hard because we had no food except for coconuts but we survived on eating coconuts and drinking the coconut water.

   21. I went home and stayed for one day. The next day I moved to the […] hospital […] because I was able to hide there.

   22. When my wife heard what had happened she came to […] to find me.

   23. A week later the Karuna people came again to my house looking for me. My father became angry and shouted at them. They went away but they came back the next day and attacked my father. They grabbed him and pushed him into their van. We don't know where they took him. He has been missing since that time and we don't know what happened to him.

   24. After that I stayed in the […] hospital. The hospital was run by catholic nuns and they allowed me to stay there so that I would be safe. I explained to them what had happened and why I needed to hide there. My aunt […] had worked at the hospital so she arranged for me to stay there.

   25. My wife and children came to live with me in the hospital. I worked in the hospital helping the nuns doing their nursing work. I wasn't paid for my work because they let me live there for free with my family and gave us food.

   26. I was scared all the time I lived in the hospital because the Karuna group still have a lot of weapons and they continued to look for me. I know they are still looking for me now and I was lucky to be able to remain hidden in the hospital.

   27. When I left Sri Lanka my wife came to […] with me and she stayed there with her parents. She is still living there now with my children.

   28. Since I have been in Australia I have been receiving counselling from ASSETTS in Perth because of the trauma I suffered after my father disappeared.

   29. This is a full account of my fear of persecution and my claims for protection.

   What I fear may happen to me, by who and why, if I return to that country

   30. I fear being targeted for harm by members of the Karuna group if I return to Sri Lanka. Even though I have managed to remain hidden from the Karuna group for a long time, I fear that they will find me and want to silence me if I return to Sri Lanka.

   31. I have explained in my statement why I fear harm from the Karuna group.

   32. I fear that I could be subject to a high degree of violent retribution in an attempt to make me reveal information which I do not have. I fear that this treatment could include abduction, torture or arbitrary killing.

   33. The harm I fear could occur anywhere in Sri Lanka because the Karuna group is active throughout the country.

   Why I think the authorities of that country cannot or will not protect me if I were to go back to that country

   34. The authorities will not protect me because they are not interested in protecting Tamils. If I go to the police I will be ignored and if the Karuna group know I have gone to the police it will only make matters worse. If I reveal myself to the police I will have to disclose my identity and where I am hiding and the Karuna group will be able to access that information.

   Why I think relocation to another area in my country would still befall me to the same harm

   I cannot relocate to any other place in Sri Lanka because it is likely that the Karuna group will find me.

4. On 26 July 2016, the applicant attended an interview with a Ministerial delegate (the “delegate”) to discuss the applicant’s SHEV application.  He was assisted by a Migration Agent (CB 94-97). Following the interview, the applicant’s representative provided detailed written submissions to the delegate on 4 August 2016 (CB 104-132).

5. On 28 September 2016, the delegate refused to grant the SHEV (CB 133-154).

6. The applicant appealed the delegate’s decision to the Authority.  The Authority affirmed the delegate’s decision on 14 November 2016.

The Authority’s Decision

1. The Authority’s decision appears at pages 180 – 195 in the Court Book. 

2. It is important to note that the applicant’s application was processed as a “fast track” application.  This is important because it affects what the Authority can and cannot do and determines, for proceedings in this Court what is and is not jurisdictional error for the purposes of an Authority review.

3. Pursuant to s.473DB of the Act the Authority is required to review a fast track reviewable decision without accepting or without requesting new information and without interviewing the referred applicant. However, s.473DC(1) of the Act permits the Authority to access any documents or information that were not before the Minister when the Minister made the decision under s.65 of the Act if the Authority considers they may be relevant. However, the Authority cannot consider this new information unless there are “exceptional circumstances” to justify considering the new information: s.473DD of the Act.

4. These provisions provide as follows:

   Section 473DC(1)

   Getting new information

   (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

   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.

5. Division 3, Part 7AA of the Act deals with the conduct of reviews by the Authority. Section 473DA(1) of the Act stipulates that this division, together with s.473GA and s.473GB, is taken to be an exhaustive statement of the requirements of natural justice in relation to reviews conducted by that Authority.

6. In relation to this matter, the Authority had regard to the information referred to by the Secretary in accordance with s.473CB of the Act (CB 181 at [3]). That section reads as follows:

   Section 473CB

   Material to be provided to Immigration Assessment Authority

   (1)  The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a)  a statement that:

   (i)  sets out the findings of fact made by the person who made the decision; and

   (ii)  refers to the evidence on which those findings were based; and

   (iii)  gives the reasons for the decision;

   (b)  material provided by the referred applicant to the person making the decision before the decision was made;

   (c)  any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)  the following details:

(i)  the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)  the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)  the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)  if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)  if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)  The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

1. The Authority also had before it a lengthy and detailed submission filed on behalf of the applicant dated 31 October 2016 (referred to at paragraph 4 of the Authority’s decision appearing in the CB at pages 168 – 174). 

2. At paragraph 5 in its decision, the Authority explains that it must not consider any new information from an applicant unless satisfied exceptional circumstances justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant's claims.

3. The Authority reviewed the applicant’s submissions and made the following findings (as summarised accurately by the Minister at paragraph 14 of his written submissions):

   a)The Authority found that the submissions addressed the delegate’s decision and findings, and to that extent could be referred to as argument rather than ‘new information’. The Authority therefore had regard to the sections of the submissions that address the delegate’s decision and findings (CB 181, [6]);

   b)The Authority noted that the submissions referred to reports from Amnesty International (dated 7 October 2014) and the International Truth & Justice Project (dated September 2015), both of which were before the delegate and therefore were not ‘new information’ (CB 181, [7]);

   c)The Authority noted that the submissions referred to version 3 of the UK Home Office report, Sri Lanka: Tamil Separatism, dated August 2016. The Authority found that this version of the report was not before the delegate, although version 2 of the report (dated 19 May 2016) was before the delegate. The Authority noted that the quoted extract in the submissions from version 3 of the report was identical in both reports, and therefore the Authority found that this was not ‘new information’ – except in so far as the August 2016 report indicated that the situation remained the same three months later (CB 181, [7]); and

   d)The Authority noted that the submissions cited country information from the Immigration and Refugee Board of Canada (dated 20 August 2011) and the Human Rights Law Centre (dated October 2014). The Authority found that this information pre-dated the delegate’s decision and was not before the delegate (CB 181, [9]). The Authority was not satisfied that this country information contained credible personal information. Nor was the Authority satisfied that the information could not have been provided before the delegate’s decision (CB 181-2, [9]). The Authority therefore did not consider this ‘new information’ (CB 182, [9]).

1. The Authority also had regard to the following ‘new information’ pursuant to s.473DD of the Act:

   a)information received from the applicant’s representatives in the submissions received on 31 October 2016 regarding the applicant’s use of social media, including copies of five Facebook post shared by the applicant.

2. The Authority found that these Facebook posts were published after the date of the delegate’s decision and therefore could not have been provided to the delegate prior to the SHEV decision. The Authority found that there were exceptional circumstances to justify having regard to this ‘new information’ (CB 181 at [8]).

3. The Authority then offers a detailed and extensive overview of the applicant’s claims at paragraphs 10 and 11 in its decision, as follows:

   10.The applicant's claims are contained in the information referred and subsequently given to the IAA. They can be summarised as follows:

   ●     The applicant is a Catholic Tamil born in […] Sri Lanka. He later moved to live in […].

   ●     The applicant was working as a taxi driver from 2005. At this time the Karuna group was active in the area and was still closely linked to the LTTE. The applicant was tasked by the Karuna group finance manager to deliver supplies to the stores manager.

   ●     Tensions between the Karuna group and the LTTE developed throughout 2005/2006. In 2006 the brother of the Karuna Group finance manager was shot dead by the LTTE. The Karuna group finance director believed that the stores manager, who was associated with the LTTE, was responsible for the death of his brother.

   ●     The Karuna group finance manager approached the applicant for details about the store manager. The applicant was physically assaulted and threatened by the finance manager.

   ●     People came to the applicant's home two or three times in search of him. He was not home on the first occasion/s and the people threatened his father. On the last occasion in April 2007 he was at home and was abducted and taken to a camp. He was held in the camp for approximately 15 days. He was kept under guard, assaulted and tortured and his arm was broken. During a distraction at the camp he took the opportunity to escape with a number of other detainees. He walked for a number of days, eating coconuts and drinking coconut water for sustenance.

   ●     After this escape the applicant decided not to remain living in the area and moved to live and work as a volunteer in a […] hospital on […] where his wife and children joined him. The hospital was remote and he remained there until 2013.

   ●     The Karuna group visited his father's house to look for the applicant. His father was abducted and is still missing.

   ●     The applicant obtained a passport in 2013 and departed Sri Lanka, leaving via Colombo airport, for Indonesia on his way to Australia.

   ●     The applicant's representative contends that the applicant would be returning to Sri Lanka as a failed asylum seeker and he would be subject to questioning on return which will reveal his role transporting goods for the Karuna group in 2005/2006 and he will be imputed with an LTTE and anti-government  profile as a result .

   ●     The applicant has shared posts on Facebook that could be used by the Sri Lankan authorities as evidence of his imputed political opinion.

   ●     The applicant has been receiving trauma counselling in Australia.

   ●     The applicant fears being targeted and harmed by members of the Karuna group who are still active in Sri Lanka.

   ●     The applicant's fear extends to all of Sri Lanka as the Karuna group would be able to find him. He cannot obtain protection from the Sri Lankan authorities.

   11.The applicant's representative has advanced that the  applicant has a well-founded fear of persecution for the following reasons:

   ●     Imputed Political Opinion as a result of the applicant's work as a taxi driver delivering supplies to the LTTE stores manager and as someone being willing to accept payment from the Karuna Faction.

   ●     Race as a Tamil male who is imputed with taking a position of resistance against the dominant Sinhalese ethnic group.

   ●     Membership of the Particular Social Group of Tamil men who are suspected of providing support to the LTTE and who have sought asylum in a foreign country.

   ●     Membership of the Particular Social Group of Tamil men who have spent extensive periods of time overseas and who will be suspected of past links to the LTTE on return to Sri Lanka.

   ●     Membership of the Particular Social Group of failed asylum seekers returning from a western country.

4. The Authority then made factual findings at paragraphs 12 to 31 in its decision.  As part of that analysis the Authority undertook an extensive overview of the country information that it deemed to be relevant, and the country information which it determined it could look at. 

5. The overview provided by the Authority was accurately summarised by the Minister, as follows:

   a)the applicant was living and working in Sri Lanka when the Karuna group was active (CB 183, [14]);

   b)the applicant was contracted by the Karuna group to transport goods for them (CB 183, [14]);

   c)having regard to the country information, it was plausible that a person associated with the Karuna group (the finance manager’s brother) was shot by the LTTE at the time that the relationship between the Karuna group and the LTTE began to deteriorate (CB 184, [18]);

   d)the applicant was present in Batticaloa at the time of considerable upheaval, that the Karuna group terrorised the local population and it would have been traumatic for the applicant (CB 186-187, [29]). The Authority accepted that, from the applicant’s experience living in the area at that time, the applicant had a subjective fear of harm from the Karuna group (CB 186-187, [29]);

   e)the applicant and their family had moved from the Batticaloa area in 2007 to live on the small island of Mantheevu until 2013 (CB 186, [28]);

   f)there was significant evidence demonstrating that the Karuna group, or its current entity the TMVP, continued to operate in Sri Lanka and that it was largely engaged in criminal activities (CB 189, [39]);

   g)the applicant had shared material published by others on Facebook, and that whilst the materials had not been translated into English, accepted that such materials could be seen as critical of the government’s treatment of Tamils (CB 189, [40]); and

   h)with reference to the country information, there had been reports of mistreatment of returned asylum seekers who had an actual or imputed profile or LTTE links (CB 189-190, [41]).

6. The Court notes the Authority’s summary at paragraphs 15, 16 and 17 in relation to whether or not the applicant was a person of interest to the LTTE and the evidence that showed that the applicant was able to obtain a passport and travel in 2013.  The Authority’s concerns in that regard are outlined at paragraph 17.

7. Paragraphs 15 – 17 provide as follows:

   15.The current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka advises that former LTTE supporters involved in transporting goods for the LTTE may fall within a risk group requiring protection. In assessing whether the applicant would be of interest to the authorities now because of the events in 2005/2006 transporting goods, I have taken into account the lack of interest in the applicant from the authorities to date. I note that the applicant was living on […] in 2009 at the end of the civil war, and while this was remote, I do not accept that if he was imputed with an LTTE profile that he did not come to the attention of the authorities at that time.

   16.At the end of the civil war the security authorities maintained a strong military presence in the Eastern Province and actively pursued people imputed with LTTE links. Thousands of people, mostly Tamils, were questioned and those found to have links of concern were detained in rehabilitation camps. At this time registration was compulsory for Tamils and their daily lives were highly regulated by the authorities. I do not consider it plausible that the applicant would not have come to attention at this time if he was of interest for having transported goods for the LTTE in 2005/2006.

   17. I have had regard to DFAT advice about the security checks at the airport and I consider it highly unlikely that the authorities would issue the applicant a passport, or allow him to depart the country, if they had a concern that he had LTTE links. I give significant weight to the DFAT information which demonstrates the Sri Lankan security authorities maintain sophisticated systems at Colombo airport to detect people of concern. DFAT advise of “stop” and “watch” electronic databases which record "names of those for whom Sri Lankan security services consider to be of interest, including for separatist or criminal activities". If the applicant had been of interest to the authorities I find it implausible that he was issued a passport and was able to avoid detention as he travelled via Colombo airport. I do not accept that the applicant was imputed with an LTTE or anti-government profile.

   (citations removed)

8. Given significant inconsistencies in the applicant’s evidence, the Authority did not accept the applicant’s claims that he had been abducted, questioned for information by the finance manager and targeted by a Karuna group following the shooting of the finance manager’s brother (CB 184, [18]; CB 185, [23]-[24]). The Court notes the inconsistencies as outlined at paragraphs 19, 20, 21 and 22 in the Authority’s decision as follows:

   a)the applicant did not know the finance manager’s name or alias (CB 184-185, [19]). The Authority considered that, if the finance manager was as well-known and influential as the applicant had claimed, and given dealings with him, the applicant would have known his alias (CB 184-185, [19]). The Authority found the applicant’s account to be implausible (CB 184-185, [19]);

   b)the applicant had continued to work for a number of weeks before the claimed abduction, and only took limited steps to avoid the finance manager and the Karuna group (CB 185, [20]). The Authority considered that the fact the applicant continued to work in the region, when he had the option of moving to Colombo to be with his family, belied his claim to have been threatened by the Karuna group and be living in fear of harm from them (CB 185, [20]);

   c)the Authority considered the applicant’s evidence of having been visited at home by the Karuna group, and as to his abduction and detention, to be implausible (CB 185, [21]). The Authority noted that the applicant had said he had received numerous threats of harm and death, yet no action was taken against him by the Karuna group for some weeks (CB 185, [21]); and

   d)the applicant had given differing accounts of whether the finance manager was part of the abduction group (CB 185, [22]).

9. The Authority did not accept that the applicant and his family had moved in 2007, because the applicant was in hiding from the Karuna group, as the applicant had claimed (CB 186, [28]).

10. The Authority also did not accept that the disappearance of the applicant’s father was linked to the applicant and to his transportation of goods for the Karuna group (CB 186 at [25], [26] and [27]).

11. The Authority provided an overview of the legislation it was required to examine at paragraph 32 and 33.  It also looked at the relevant country information at paragraph 35 and did so in detail.

12. The Authority was not satisfied that the applicant would be imputed with an LTTE profile, outlining its findings at paragraphs 36 and 37.  Nor did the Authority accept that the applicant would be targeted upon his return to Sri Lanka by paramilitary groups.  At paragraphs 39 and 43 the Authority concluded that it was not satisfied that the applicant faced a real chance of harm. 

13. Having regard to the country information, the Authority was not satisfied (at paragraph 40) that the Facebook activity would result in harm or that the applicant would be imputed with LTTE links (at paragraph 41). Nor did the Authority accept that the applicant would be subject to scrutiny on his return (at paragraph 42). 

14. The Authority’s overall conclusions appear at paragraph 44, as follows:

    I have considered the applicant's circumstances as a whole I am not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future because of his:

    ·    Imputed Political Opinion as a result of the applicant's work as a taxi driver delivering supplies to the LTTE stores manager and as someone being willing to accept payment from the Karuna Faction.

    ·    Race as a Tamil male who is imputed with taking a position of resistance against the dominant Sinhalese ethnic group.

    ·    Membership of the Particular Social Group of Tamil men who are suspected of providing support to the LTIE and who have sought asylum in a foreign country.

    ·    Membership of the Particular Social Group of Tamil men who have spent extensive periods of time overseas and who will be suspected of past links to the LTIE on return to Sri Lanka.

    ·    Membership of the Particular Social Group of failed asylum seekers returning from a western country.

15. Ultimately, at paragraph 46, the Authority did not accept that the applicant met the requirements of the definition of a refugee. 

16. The Authority then undertook an assessment of complementary protection requirements and determined, on the basis of the above findings, that the applicant did not meet s.36(2)(aa) of the Act.

Decision

1. The Court explained to the applicant that this Court could not undertake what is referred to as a “merits review”. Rather, the applicant must show that the Authority’s decision was affected by jurisdictional error. 

2. The Court took the applicant through some possible grounds of jurisdictional error. 

3. It was explained to the applicant and outlined by counsel for the Minister that the three grounds of review articulated by the applicant are, perhaps, best described as vague.  They do not offer concrete particulars. 

4. The Court finds that the two sets of written submissions provided by the applicant are at least an attempt on his part to offer more information to the Court.  The Court was also conscious that the applicant was not legally represented. Accordingly, the Court was prepared to give the applicant an opportunity to present his arguments in more detail and to do so orally.  Counsel for the Minister did not object to that approach. The Court thanks her for her assistance and cooperation as a model litigant. 

Ground 1

Jurisdictional Error

1. In relation to ground 1 which the applicant says is “jurisdictional error”, this is clarified in the applicant’s written statements.  That ground of review is to be read in conjunction with paragraph 2 of the applicant’s written statement filed on 28 November. That statement relevantly provides:

   2.The Immigration Assessment Authority committed jurisdictional error by failure to exercise its proper jurisdiction by:

   (a)Failure to examine in a proper manner the provisions of the Prevention of Terrorism Act of Sri Lanka under which I am perceived to be a supporter of the Tamil cause.

   (b)The Immigration Assessment Authority failed to examine the real situation faced by Tamils like me within a social group perceived to have had links with the LTTE, in the context of the army control of the traditional homelands of the Tamils situated in the North and East of Sri Lanka.

   (c)The Sri Lankan government and the armed forces have committed and are continuing to commit human rights abuses against young Tamils like me which is being investigated by the UNHCR and have been commented upon by organisations like the Amnesty International and Asia Watch.

   (d)The Second Respondent did not exercise its proper jurisdiction as a prudent body in my case and thereby fell into jurisdictional error.

   3.In this regard reference is made to the following paragraphs of the decision of the Immigration Assessment Authority: 7, 8, 10, 13, 15, 16, 27, 28, 29, 32, 36, 37, 39, 40 and 43.

2. The applicant was asked to explain what he means when he writes that the Authority failed to examine the Prevention of Terrorism Act and the real situation faced by Tamils like him.  He explained, in effect, that the Authority did not accept what he said, particularly as it related to the leprosy hospital. 

3. It is also arguable that what the applicant is saying is that the Authority ignored relevant material.  The Court rejects that assertion and accepts the Minister’s submissions at paragraph 26, which provide as follows:

   26. In so far as the material referred to in paragraph 2 of the annexure Marked II to the affidavit of the Applicant was not ‘new information’ to which the IAA could not have regard (which is discussed further below), the First Respondent submits that the IAA did in fact have regard to available country information and gave careful consideration to the possible risk of harm the Applicant, as Tamil man with imputed links to the LTTE, may face if returned to Sri Lanka (see CB 189-190, [34]-[45]), including consideration of the degree of monitoring the Applicant may face ….

4. It is clear that the Authority did review the evidence it had before it in relation to the claims that the applicant was making.  There is nothing to suggest that the Authority failed to consider relevant material or focused on irrelevant material. 

5. Within the specific statutory context of a fast track proceeding, and in particular s.473DD, the Authority considered the country information it could look at, made credibility findings in relation to the applicant’s evidence, attached weight to that evidence as it thought appropriate and, after assessing and weighing up all of that information found that the applicant could safely return to Sri Lanka. On the evidence those findings were entirely open to the Authority.

6. In relation to the assertion that the Sri Lankan Government and the armed forces have committed and are continuing to commit human rights abuses, in effect what the applicant is suggesting is that he rejects the Authority’s conclusions.  What the applicant is asking the Court to do today is undertake a merits review of the Authority’s findings.  He does so in the hope that this Court will come to a different conclusion and give him the visa that he seeks.  This Court cannot do that.  It cannot review the merits of the Authority’s decision or determine the applicant’s claim for protection.  As outlined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 136 ALR 481 at 491:

   These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

1. In relation to the applicant’s assertion that the Authority did not exercise its proper jurisdiction as a prudent body in his case and therefore fell into jurisdictional error, again, unfortunately, this statement lacks clarity.  The applicant was asked to explain.  Unfortunately, the answer given was not useful.  It did not clarify the applicant’s position. 

2. It is arguable that what the applicant is suggesting here is that the Authority failed to adhere to its statutory requirements and failed to follow its required procedures. 

3. Counsel for the Minister canvassed this in extensive detail at paragraphs 30, 31, 32, 33, 34, 35, and 36, 37, 38, 39, 40 and 41 to 44. The Court has examined the Minister’s submissions in detail and notes paragraphs 30 – 37 in particular, as follows:

   30.…. the IAA had jurisdiction to review the decision of the delegate under section 473CC, Part 7AA, of the Act. In exercising that jurisdiction, the combined effect of sections 473DA(1), 473DB(1) and 473DC(2) of the Act, is that the IAA was required to conduct a review of the delegate’s decision on the papers.

   31.It is clear that the purpose of Part 7AA is to provide a mechanism for a limited review of fast track reviewable decisions. Division 3 of Part 7AA and section 473DA of the Act make clear that the Division is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA. The common law rules of procedural fairness do not govern the way in which reviews by the IAA are to be conducted under Part 7AA of the Act (CCW16 v Minister for Immigration and Border Protection [2017] FCCA 2 at [69]).

   32.Despite the fact that the IAA was obliged to review the fast track reviewable decision by considering the review material without accepting or requesting new information, and without interviewing the referred applicant (section 473DB(1); DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [69]), in the present case, the IAA did accept and have regard to new information provided by the Applicant.

   33.The IAA had the power to accept and consider ‘new information’, provided it was satisfied that the requirements of section 473DD had been met. Section 473DD provides:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)     the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)     the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

   34.The requirements in section 473DD(a) and (b) are cumulative requirements – the IAA must not consider new information unless it is satisfied that both paragraph (a) and paragraph (b) of section 473DD are satisfied (Plaintiff M174/2016 v Minister for Immigration and Border Protection and another [2018] HCA 16 at [31]; BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [9]). It self- evidently follows from the fact that the requirements in paragraphs (a) and (b) of section 473DD are cumulative that if one of those requirements does not exist, then the IAA must not consider the new information (BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]).

   35.In the present case, the IAA found that the following information was ‘new information’ for the purposes of section 473DD of the Act:

   (a)the information in the submissions provided to the IAA by the Applicant’s representative, as to the Applicant’s use of social media and the accompanying copies of five Facebook posts shared by the Applicant; and

   (b)the references in the submissions to country information from the Immigration and Refugee Board of Canada (dated 20 August 2011) and the Human Rights Law Centre (dated October 2014).

   36.The IAA sets out the basis upon which it was satisfied the requirements of sections 473DD(a) and (b) had been met in relation to the information about the Applicant’s social media use and the five Facebook printouts (CB 181, [8]), finding that the information could not have been provided before the delegate’s decision (the posts post-dating the delegate’s decision) (section 473DD(b)(i)), and finding that there were exceptional circumstances to have regard to them (section 473DD(a)). There is no jurisdictional error in the IAA having regard to this new information, given it was satisfied that the requirements of section 473DD of the Act had been met.

   37.The IAA was not satisfied that the submissions provided on behalf of the Applicant, insofar as they discussed country information from the Immigration and Refugee Board of Canada (dated 20 August 2011) and the Human Rights Law Centre (dated October 2014), met the requirements of section 473DD(b) of the Act (CB 181-182, [9]). The IAA was not satisfied that the information contained credible personal information (section 473DD(b)(ii)), or that the information could not have been provided prior to the delegate’s decision being made (section 473DD(b)(i)). Given that the requirements of section 473DD(b) were not satisfied in this case, the IAA could not have regard to the new information.

4. The jurisprudential and statutory overview provided by counsel for the Minister and her instructors is jurisprudentially sound.  On the evidence, there is nothing to suggest that the Authority failed to do what it was required to do given the specific statutory powers it was operating under. 

5. Indeed, it is evident that to the extent that the Authority could assist the applicant it did so, noting that it allowed information related to his Facebook postings that had not previously been assessed. 

6. Overall, ground 1 accordingly fails. 

Ground 2

“Bias based on conscious or unconscious prejudice by ignoring relevant material”

1. In relation to ground 2, the Minister contended at paragraph 27 that this is a quite serious allegation which must be made out firmly and distinctly. 

2. At paragraph 28 in his written submissions the Minister also submitted that there is nothing in the decision that would cause a fair-minded and informed person to reasonably apprehend that the Authority might not have brought an impartial mind to bear. 

3. The Court agrees with this assessment. 

4. The applicant was asked in Court to identify what, on the evidence, he thought amounted to bias.  He was unable to do so and simply stated that he did not know.  There is nothing before this Court that evidences bias or anything that might be deemed to be bias. 

5. Further, insofar as the second part of ground 2 suggests that the Authority ignored relevant material, for the same reasons articulated above by the Court in relation to ground 1, that suggestion is also rejected. 

6. Accordingly, ground 2 fails.

Ground 3

“Identifying a wrong issue or a wrong question”

1. In relation to ground 3 the Court notes the Minister’s submissions at paragraphs 29 and 43 in his written submissions, as follows:

   29.In relation to ground 3, the Applicant contends that the IAA identified a wrong issue or asked itself the wrong question. Without particularisation, this ground is meaningless.

   43. The First Respondent submits that, in this case, the IAA correctly identified the relevant law to be applied (CB 187, [32]-[33]; and CB 190-191, [46]-[50]; and Annexure), accurately identified the Applicant’s claims (CB 182-183, [10]-[11]) and correctly applied the law in its consideration of this matter. It is submitted that no error is apparent in the IAA’s decision.

2. In relation to these submissions the applicant simply contended “nothing like that”.  Unfortunately, that “clarification” did not assist the Court. 

3. Overall, the Court does not find that the Authority incorrectly identified the issues before it or asked itself the wrong questions. The Authority clearly identified the applicant’s claims, was guided by the law relevant to determinations of this sort, forensically addressed the evidence before it within the context of the applicant’s claims, and looked at the country information it could look in accordance with s.473DD of the Act and the specific limitations imposed on the Authority as a result of this application being a fast track application.

4. Overall, the applicant has failed to show that the Authority fell into jurisdictional error.  The Court sees no legal error and nothing that can be referred to as illogical or irrational.  All findings were open to the Authority and were reached on valid grounds.  A complete analysis was provided.  The Authority’s reasons demonstrate an evident, transparent and intelligible justification for its decision. It cannot be said that the decision is legally unreasonable. 

5. To the extent that the Authority refused to look at country information and other evidence put before it, it made that assessment within the context of a very strict statutory provision in 473DD.  In that context its determination was entirely open to it. 

6. Ground 3, accordingly, fails.

Conclusion

1. For the reasons outlined above, the application is dismissed.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Date: 8 August 2018