DRR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 30
•10 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
DRR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 30
File number(s): SYG 3413 of 2016 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 10 September 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming a decision not to grant a Safe Haven Enterprise (subclass 790) visa – whether Authority acted unreasonably or illogically in relying on country information to conclude the applicant did not have a risk profile that would expose him to serious risk of harm – whether Authority failed to consider an integer of applicant’s claim – whether Authority made a jurisdictional error in failing to disclose invalid certificate purportedly issued under s 473GB(5) of the Act. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(a), 36(2)(aa), 473DC(3), 473DD, 473GB(5), 476
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 11 November 2020 Place: Sydney Solicitor for the Applicant: Mr R Selliah of Rasan T. Selliah & Associates, by telephone Solicitor for the First Respondent: Mr L Dennis of Minter Ellison, by telephone ORDERS
SYG 3413 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DRR16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,000.
THE COURT NOTES THAT:
3.These orders are the orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV).
CLAIMS FOR PROTECTION
The applicant stated his claims on a number of occasions. It would be convenient to set out the claims the applicant made in a statutory declaration that forms part of his application for a SHEV;[1] and these are as follows:
[1] CB63-65
(a)The applicant is a national of Sri Lanka, a Tamil, and a Hindu. He was born in 1996.
(b)In 2008 and 2009 the Liberation Tigers of Tamil Eelam (LTTE) were in the applicant’s area; and because of this he “had no freedom”.
(c)Due to the presence of the LTTE, the Sri Lankan Army (Army) attacked the area.
(d)It was difficult for the applicant to attend school. “You cannot go to school and even if you do, the army catch you and keep you for a day or two or three days”. The applicant had to do a lot of work in the Army camp. Sometimes the applicant’s mother would come to the camp and cry, and then the applicant could leave. Other times the Army would let the applicant leave only after he completed his work.
(e)In 2008 and 2009 members of the Army stopped the applicant on his way to school and asked him questions about his sister because “they had bad intentions”.
(f)In 2011 and 2012 there were many problems with the Army. They raped a girl, which caused problems in the village.
(g)The Army would intercept the applicant when he was in the village and hit him. On one such occasion, in 2011, he was hit and his arm was broken because he “didn’t listen to the army.”
(h)His mother and other villagers went with him to the police station to report that the applicant’s “hand had been broken by the army”, but the police did nothing.
(i)It is not possible to relocate within Sri Lanka as most parts of Sri Lanka are inhabited by Sinhalese people who cause problems for Tamils.
(j)The Army will know that he came to Australia. If forced to return he will be subjected to “harm including death”, and will be imprisoned by the Army who “may shoot and kill” him for departing Sri Lanka illegally and travelling to Australia.
(k)As a Tamil he cannot seek help from the authorities “because all the authorities are Sinhalese”.
(l)He fears he will be subject to harm “including arbitrary deprivation of life, the death penalty, torture and punishment” because he is Tamil and came to Australia.
In July 2016 the Minister’s delegate interviewed the applicant (SHEV Interview). The applicant made the following additional claims:[2]
(a)When the applicant was ten years old there was an LTTE camp in his area.
(b)The Army detained the applicant for eight or nine days in December 2011. The applicant claimed that officials from the Army came and spoke to him in Sinhala, which the applicant could not understand, or in poor Tamil, and he kept quiet and did not speak to the officials. The applicant’s mother complained to the police. The police gave the applicant’s mother a letter; and the Army released the applicant after his mother produced the police letter.
(c)The Army slapped the applicant and broke his harm when they detained him in December 2011. The applicant also claimed, however, that his arm was not broken when he was in detention, but was broken in another incident when he argued with Army men.
(d)The Army visited his mother asking for his whereabouts after the applicant left Sri Lanka.
(e)In 2016 the applicant’s mother told the applicant she used to cook meals for the LTTE, the applicant’s uncle was a member of the LTTE, and the applicant’s mother protested for the Army to move out of the area.
[2] CB130
In written submissions provided to the delegate after the SHEV Interview, the applicant claimed protection because details had been “leaked by the department” (Data Breach Incident). The applicant said that, as a result of the Data Breach Incident, he “would now imagine the Sri Lankan government would have accessed my information”[3] causing danger to his life. The applicant also provided the following additional information in support of his claims:[4]
(a)The LTTE had a camp in his village from when he was 10 to 15 years old. On two or three occasions during that time, LTTE members took him to their camp and gave him “a lot of training”.
(b)The Army knew that he had been trained by the LTTE and “mistreated” him because of this.
(c)After his departure from Sri Lanka, the Army visited his mother and asked that she hand him “over to them if and when” he returns.
[3] CB123
[4] CB123-124
On 13 October 2016, after the delegate decided not to grant the applicant a SHEV, the applicant, through his representative, provided submissions to the Authority (October Submissions).[5] The applicant there repeated his claims for protection, provided country information, and addressed a number of the delegate’s findings.
[5] CB155-160
AUTHORITY’S REASONS
The Authority identified the information that was before it, and considered whether any of the information was “new information” within the meaning of s 473DD of the Act. Section 473DD prohibits the Authority from considering 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.
The Authority first referred to the October Submissions. The Authority treated as argument, rather than as “new information”, the submissions that were made about the circumstances in which the applicant prepared his SHEV application, and other submissions that related to the claims the applicant made before the delegate.
The Authority then referred to country information identified in the October Submissions. The Authority identifies those items of country information that were before the delegate, and those that were not. The delegate was not satisfied that the items of country information that were not before the delegate could not have been provided before the delegate made his decision. Nor was the Authority satisfied these items of country information contained credible personal information, or that there existed exceptional circumstances that would justify the Authority considering that information. The Authority, therefore, decided it would not have regard to this information.
The Authority next turned to the applicant’s claims to the extent they related to whether the applicant is a “refugee” within the meaning of s 5H of the Act.
(a)The Authority accepted the applicant could have undertaken training with the LTTE, even though he would have only been 13 years of age; and the Authority accepted the applicant’s claims about his mother’s and uncle’s involvement with the LTTE.[6] The Authority also accepted that, under the current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, former LTTE combatants and members, and their family members, may be at risk of harm.[7] The Authority noted, however, that the applicant did not come to the attention of the authorities in 2009 when they were rounding up people with real and imputed LTTE associations and, for that reason, the Authority concluded there was no interest in the applicant at that time.[8] The Authority also noted there is no indication that in 2009 the applicant’s mother came to the adverse attention of the authorities, either because of her activities or because of the activities of her brother; and on that basis, the Authority concluded that at that time the authorities had no interest in the applicant or in his family based on the applicant’s training with the LTTE, or because of his mother’s or uncle’s involvement with the LTTE.[9]
[6] CB171, [16]
[7] CB171, [16]
[8] CB171, [17]
[9] CB171, [17]
(b)The Authority accepted the applicant’s mother was involved in a protest against the Army, but the applicant did not claim any harm to her and, for that reason, the Authority was not satisfied there is a real chance of harm to the applicant on the basis of that claim.[10]
(c)The Authority accepted the applicant was regularly harassed by the Army, particularly when passing security checkpoints; the Army maintained a strong military presence in the Eastern province, despite the end of civil war hostilities; and that the Army stopped the applicant and other students, and bullied the applicant and students into carrying out menial tasks.[11] The Authority did not accept, however, that this occurred to the applicant because he had trained with the LTTE; had the Army been aware of the applicant’s LTTE training it is likely the Army would have taken action to detain him in 2009 rather than occasionally harass him as he travelled to and from school. The Authority, therefore, was not satisfied the applicant was personally targeted by the Army or by other authorities, or is of specific interest to the authorities.[12]
(d)The Authority accepted the applicant, as a Tamil, was harassed by the Army, he sustained an injury from the Army, and that he may have been detained for a period; but the Authority was not satisfied the applicant has an imputed LTTE profile, or would be believed as having links to the LTTE. The Authority relied on country information that showed that in 2009 the Army actively pursued people they viewed as having LTTE links, and that immediately after the civil war and during 2009 thousands of people with real and imputed LTTE links were arrested, interviewed, and assessed for rehabilitation; but the applicant did not come to the attention of the authorities as being of interest at that time, and as such it is implausible the applicant would have come to the attention of the authorities in 2011 because of any actual or imputed links to the LTTE.[13]
(e)In making the findings in (d) the Authority said it had regard to the applicant’s account he gave at the SHEV Interview about his detention, noting that the applicant was not questioned about any activities or asked about any LTTE involvement when he was not in detention. The Authority set out what the applicant claimed at the SHEV Interview, namely, that officials from the Army came and spoke to him in Sinhala, which the applicant could not understand, or in poor Tamil, and he kept quiet and did not speak to the officials, and that the applicant was released on the intervention of his mother who involved the police. The Authority also noted that the applicant was not charged with any offences, and was not required to report to the Army or police after his release.[14]
(f)The Authority did not accept the applicant’s claim that, after he left Sri Lanka, the police and the Army came to the family home to enquire about him, and that they asked his mother to “hand him over”. The Authority relied on its findings that the applicant did not have a profile, based on his own activities, or those of his uncle and mother, that would attract the adverse attention of the authorities. The Authorities also relied on the applicant not having claimed any ongoing interest from the authorities beyond 2011.[15]
(g)The Authority accepted the applicant has a subjective fear of harm on the basis of his being a Tamil and from the east of Sri Lanka. The Authority, however, was not satisfied the applicant’s fear is well-founded. The Authority relied on its findings that the applicant does not have an imputed LTTE profile, and on country information which showed the general easing of harassment of Tamils in Sri Lanka.[16]
(h)The Authority appeared to accept that the applicant, as a Tamil who does not speak Sinhala, will face ongoing discrimination from the Sri Lankan authorities, and from the Sinhalese people; but the Authority found that such treatment does not amount to “serious harm” as defined in s 5J of the Act. The Authority, therefore, was not satisfied the applicant faces a real chance of serious harm on the basis of his Tamil ethnicity.[17]
(i)The Authority accepted the applicant left Sri Lanka illegally as a consequence of which it is likely the applicant will, on his return to Sri Lanka, be charged, face a short period of detention, and be fined. The Authority, however, was not satisfied this would amount to serious harm, and found the harm that he would face would be based on a law of general application. For these reasons the Authority found the applicant’s being charged, detained, and fined because he left Sri Lanka illegally do not constitute persecution for the purpose of s 5H(1) and s 5J(1) of the Act.[18]
(j)The Authority found it could not discount that the Sri Lankan government may have access to the applicant’s details following the Data Breach Incident. The Authority, however, was not satisfied there is a real chance the applicant would face any harm as a returning failed Tamil asylum seeker.[19]
(k)For these reasons, the Authority concluded the applicant is not at risk of experiencing serious harm in Sri Lanka, now or in the foreseeable future, and further concluded it was not satisfied the applicant has a well-founded fear of persecution.[20]
[10] CB171, [18]
[11] CB172, [19]
[12] CB172, [19]
[13] CB172, [21]
[14] CB172, [20]
[15] CB172-173, [22]
[16] CB173, [23], [24]
[17] CB173-174, [25]
[18] CB174-175, [26]-[33]
[19] CB175, [34]
[20] CB175, [35]
The Authority then considered whether the applicant met the complementary protection criterion provided for by s 36(2)(aa) of the Act.
(a)The Authority repeated the findings it had already made that there is not a real chance the applicant faces serious harm on the basis of being a young Tamil, being from the east of Sri Lanka, or from his training with the LTTE, or from the LTTE links of his mother and uncle, or because he is someone who sought asylum and whose details may have become known to the Sri Lankan authorities because of the data Breach Incident. After noting that the Full Federal Court had held that the “real risk” test for complementary protection is the same standard as the “real chance” test, the Authority concluded that, based on the same information, and for the reasons it had already given, the Authority was satisfied there is not a real risk the applicant will face significant harm because the applicant is a young Tamil, from the east of Sri Lanka, or because he trained with the LTTE, or because of his mother’s and his uncle’s links with the LTTE, or because he is someone who sought asylum and whose details may have become known to the Sri Lankan authorities.[21]
(b)The Authority accepted the applicant will be returning to Sri Lanka as a person of Tamil ethnicity, and that he feared discrimination on that basis; and it accepted country information that shows societal discrimination remains evident in Sri Lankan society at a moderate level. The Authority noted, however, Sri Lanka does not have official laws or policies that discriminate against Tamils in relation to access to education, employment, or housing. The Authority was not satisfied that any discrimination the applicant will face would amount to a real risk of significant harm in Sri Lanka because of his Tamil ethnicity.[22]
(c)The Authority accepted that because he had left Sri Lanka illegally he would be detained for a short period in poor prison conditions; but the Authority was not satisfied this would constitute significant harm.[23]
(d)For these reasons the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm, The Authority, therefore, concluded the applicant does not meet the requirements of s 36(2)(aa) of the Act for complementary protection.
[21] CB176, [39], referring to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
[22] CB176, [40]
[23] CB177, [43]
GROUND 2 OF THE AMENDED APPLICATION
The applicant relies on the grounds set out in the amended application. It contains three grounds which are identified as grounds 2, 4, and 5. Ground 2 is as follows:
(a) The Second Respondent committed jurisdictional error by arriving at a conclusion that was legally unreasonable. The reasoning process was illogical or irrational. Further, the jurisdictional fact for its exercise did not exist as the purported state of mind was reached on the basis of illogicality or irrationality in the fact finding process.
(b) The Second Respondent’s failure to invite the applicant to an interview pursuant to its power under s 473DC(3) of the Migration Act 1958 (‘the Act’), or consider doing so, was unreasonable in the legal sense. The Second Respondent should have exercised this power in this case because the Minister’s delegate’s reasoning for rejecting the applicant’s LTTE profile is different to the Second Respondent’s reasoning process and it is material to the outcome of the decision.
Particulars
2.1 The Second Respondent made a conclusion at paragraph 21 stating that “I accept that as a Tamil he was harassed by the army, and that he sustained an injury form [sic] the army; I am willing to accept that he may have been detained for a period. However, I am not satisfied that the applicant has an imputed LTTE profile or would be viewed as having links to the LTTE. I am not satisfied there is a real risk of harm to the applicant on the is [sic] basis”.
2.2 The Second Respondent arrived at this conclusion based on two factual findings at paragraphs 17, 20, 21. Firstly, at paragraph 20, it states that the applicant said he was not questioned about any activities or asked about any LTTE involvement while held in detention. However, the applicant said that Army officials came and spoke to him in Sinhala which he could not understand, or poor Tamil, and that he kept quiet and did not speak to them. The applicant also stated in the supplementary submission that he was questioned about the LTTE training. Secondly, at paragraph 21, and 17, the Second Respondent stated that the authorities actively pursued people they viewed as having LTTE links immediately after the war and during 2009, thousands of people with real and imputed LTTE links were arrested, interviewed and assessed for rehabilitation; this was according to a DFAT report dated 18/12/2015. However, while these matters related to suspects in the Vanni region, the applicant’s situation related to the Batticaloa region where the situation was different. The Second Respondent not only relied on this country information to reject the applicant’s factual claim, but also wrongly and incorrectly paid attention to the applicant’s claim by way of country information. The applicant was not aware that the Second Respondent relied on this country information for this dispositive issue.
Parties’ submissions
The particulars show that ground 2 is directed to the Authority’s conclusion at paragraph 21 of its reasons that it was not satisfied the applicant has an imputed LTTE profile, or that he would be viewed as having links to the LTTE. The particulars appear to identify three grounds for claiming this conclusion is irrational or unreasonable. The first is the Authority’s noting that, although the applicant was not questioned about his detention during the SHEV Interview, the applicant said that Army officials came and spoke to him in Sinhala, which the applicant could not understand, or in poor Tamil, and he kept quiet and did not speak to them. The second is the Authority’s reliance on country information. The particulars contend that the country information to which the Authority relied, being the “DFAT Country Information Report – Sri Lanka” of 18 December 2015 (DFAT Report), only applied to suspects in the Vanni region, which had different conditions from those in the Batticaloa region, being the area from which the applicant came. The third ground the particulars identify is the contention that the Authority relied on the DFAT report for the purpose of making its decision in circumstances the applicant was not aware the Authority would do so.
The applicant repeats these contentions in his written submissions, and he there reproduces paragraphs 3.42 and 3.43 of the DFAT Reports, as follows:[24]
3.42 In addition to a relatively small number of high-profile LTTE members, many thousands of LTTE members have been arrested and detained in rehabilitation centres since the end of the conflict. Generally, this includes former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military material support to the LTTE during the conflict.
3.43 DFAT assesses that, although the great majority of these low-profile (‘low-risk’) former members have already been released following their detention, any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centres. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted.
[24] Outline of Submissions for the Applicant, [27] (pages 5-6)
The applicant refers to the expression “since the end of the conflict” that appears in these passages, and submits that, given the Sri Lankan Civil war ended in the northern Vanni region, not in the Eastern Batticaloa region, the “treatment of LTTE members in the northern Vanni region, which is where the conflict ended, cannot be rationally probative of how the LTTE members were treated in the Eastern Batticaloa region, which is where the applicant is from”.
At the hearing before me I formulated my understanding of the applicant’s submissions in relation to ground 2 which Mr Selliah, who appeared for the applicant, accepted correctly reflected the applicant’s case on ground 2:[25]
HIS HONOUR: Yes, thank you. So let me just try and summarise it. In broad terms, what the ground is directed at is the Authority’s not accepting the authorities had any interest in the applicant on account of any connection with the LTTE, and the reasoning you say the Authority used was to rely on country information as to how people suspected of LTTE links were treated in the northern part of Sri Lanka. And you claim its relying on information that refers to treatment in the north is logically – is not probative of how ‑ ‑ ‑
MR SELLIAH: Yes, your Honour.
HIS HONOUR: ‑ ‑ ‑ they might be treated in the eastern province which the applicant is from.
MR SELLIAH: Yes.
HIS HONOUR: And part of . . . your irrationality or an unreasonableness claim is that it ought to – this is the Authority – ought to have, at the very least, considered whether it should invite the applicant to make some submissions about that. Is that the essence of it?
MR SELLIAH: That’s it. Yes, your Honour.
[25] T15.30
In his written submissions, the Minister submits the DFAT Report was before the delegate; the DFAT report did not give rise to any dispositive issue that would render unreasonable the Authority’s approach to its discretion under s 473DC(3) of the Act; and the applicant’s submissions misrepresent the contents of the DFAT report because the extract from that report on which the applicant relies says nothing about the difference between the Vanni region and the Batticaloa region.
Determination
The first question is whether the passages form the DFAT Report on which the applicant relies ought reasonably to have been understood by the Authority to suggest that the assessments contained in the passages on which the applicant relies were limited to a particular region of Sri Lanka. The applicant’s submission that the assessments are limited to the northern area of Sri Lanka is based on two things: the words “since the end of the conflict”; and the factual assertion that the war ended in the north of Sri Lanka.
I am not satisfied the passages on which the applicant relies are reasonably capable of suggesting that the assessments contained in them are limited to the area in which the civil war ended, or to any other area of Sri Lanka. On the contrary, I find that the passages on which the applicant relies cannot reasonably be read as being limited to LTTE members from the north of Sri Lanka, or from any other area of Sri Lanka. The assessments refer to the treatment of LTTE members, including former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support during the conflict. The assessments refer to all LTTE members and persons who had some connection with the LTTE; and the assessments refer to such connection “during the conflict”; that is, during the conflict as a whole, not during any part of the conflict, or in relation to any specific territory in which the conflict occurred.
For this reason alone, the Authority did not act irrationally or unreasonable in relying on the assessments contained in the DFAT report to find it was not satisfied the applicant has an imputed LTTE profile or would be viewed as having links to the LTTE. Further, given that the passages from the DFAT Report on which the applicant relies cannot reasonably be read as being restricted to any particular area of Sri Lanka, there was nothing before the Authority that ought reasonably to have caused it to consider whether it should exercise the power under s 473DC of the Act.
Ground 2, therefore, fails.
GROUND 4 OF THE AMENDED APPLICATION
Ground 4 of the amended application is as follows
(a) The Second Respondent committed jurisdictional error by failing to consider a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it.
(b) The Second Respondent misconstrued and misapplied s 5J of the Act.
Particulars
4.2 In paragraph [25] of its decision regarding the applicant’s “Refugee assessment”, the IAA accepted that the applicant, as a Tamil and not Speaking Sinhala, would face ongoing discrimination from the authorities and Sinhalese people, but concluded it would not amount to serious harm under s 5J of the Act. However, while conducting its “Complementary protection assessment” from paragraphs [37] to [45], the IAA failed to consider and make a finding regarding its previously accepted claim of whether the applicant, as a non-Sinhalese speaking person of Tamil ethnicity facing discrimination, would suffer significant harm. The authority misconstrued and misapplied the relevant law.
Parties’ submissions
Ground 4 claims the Authority assessed the applicant’s claim of discrimination based on his being a Tamil without reference to the Authority’s finding that the applicant did not speak Sinhala. From his written submissions, it is apparent the applicant relies on the Authority’s failing to refer in paragraph 25 of its reasons to the applicant’s inability to speak Sinhala.[26] In that paragraph the Authority said:
The applicant fears that as a Tamil, and not speaking Sinhala, he faces ongoing discrimination from the authorities and Sinhalese people. However, I find that such treatment does not amount to serious harm as defined under s 5J of the Act which inexhaustively defines serious harm as defined under s.5J of the Act which inexhaustively defines serious harm as including such treatment as loss of life or liberty or significant physical harassment or ill treatment, the inability to subsist or the inability to earn a livelihood. Accordingly, I am not satisfied that he faces a real chance of serious harm on the basis of his Tamil ethnicity.
[26] Outline of Submissions for the Applicant, [22] (page 8)
In his written submissions the applicant submits that, when assessing the applicant’s claims against the complementary protection criterion provided for by s 36(2)(aa) of the Act, the Authority “completely failed to consider” the “applicant’s claim that he would face ongoing discrimination from the authorities and Sinhalese people as a non-Sinhalese speaking Tamil”.[27] Mr Selliah repeated the substance of the submission in oral address. The Minister, in his written submissions, submits the Authority did consider the applicant’s claims that he wold be discriminated “in the context of the refugee and complementary protection criteria”.
[27] Outline of Submissions for the Applicant, [23] (page 8)
Determination
It is the case that, when considering whether the applicant’s claims for discrimination against the complementary protection criterion provided for by s 36(2)(aa) of the Act, the Authority did not specifically refer to the applicant’s claim that he could not speak Sinhala. The Authority, however, did consider what it accepted was the applicant’s inability to speak Sinhala when it considered, against the refugee criterion provided for by s 36(2)(a) of the Act, the applicant’s claim based on discrimination. In those circumstances, I am not prepared to infer from the Authority’s not specifically referring to the applicant’s inability to speak Sinhala when assessing the applicant’s discrimination claims against the complementary protection criterion indicates a failure to consider that fact. On the contrary, I find the Authority did consider the applicant’s not speaking Sinhala when it assessed that claim. Such a conclusion is to be inferred from the Authority’s having specifically addressed the applicant’s inability to speak Sinhala when the Authority assessed the applicant’s claims against the criterion provided for b s 36(2)(a); and from the Authority having referred to DFAT’s assessment that “there are currently no official laws or policies that discriminate on the basis of ethnicity or language.”[28]
[28] CB176, [40]
Ground 4, therefore, also fails.
GROUND 5 OF THE AMENDED APPLICATION
Ground 5 is as follows:
The Second Respondent committed a jurisdictional error by relying on an invalid certificate and the information contained in the attached certificate under s 473GB of the Act which was material to its decision. Further, it failed to exercise its discretions under s 473DC(3) and 473GB(3)(b) in the circumstances of this case and the failure to consider doing so, pursuant to s 473DC(3) and 473GB(3)(b), was unreasonable in the legal sense.
5.1 On 20 September 2016, an Assistant Director of the Temporary Protection Visa Assessment Branch gave a “Notification Regarding the Disclosure of Certain Information Covered by Section 473GB of the Migration Act 1958” to the Senior Reviewer of the IAA. This notified the IAA that s 473GB applied to a document or information in the document titled “85663261365 – NAN054 – Age Determination Outcome – MINOR’, and stated that the document or information should not be disclosed to the applicant nor his representative because it is an internal departmental working document (CB 140). This notification is, therefore, invalid, as an internal departmental working document is not a valid reason for non-disclosure.
5.2 The IAA then acted on the information regarding the applicant’s age contained in this document by using the applicant’s age as a basis for its finding at both paragraphs [14] and [16] of its decision.
Parties’ submissions
This ground is based on a delegate of the Minister having issued a certificate dated 20 September 2016 purportedly pursuant to s 486GB(5) of the Act in relation to a document the certificate described by reference to a string of numbers and letters followed by “Age Determination Outcome – MINOR”. The Minister accepts the purported certificate is invalid, and that the Authority did not give the applicant notice of the purported certificate. The Minister submits, however, that the applicant is unable to show the Authority’s failure was material to the Authority’s decision; and the Minister, in any event submits the Authority’s failure to disclose the purported certificate was not material because the applicant claimed he was a minor at the time he left Sri Lanka, and the Authority assessed the applicant’s claims on that basis.
In his written submissions the applicant submits the Authority relied on the document that was covered by the purported certificate by accepting the applicant was 13 years of age when the conflict ended, and its decision not to disclose the documents covered by the purported certificate was unreasonable. The basis of that submission is that, by accepting the applicant was a minor, the Authority reduced its assessment of the “imputed degree of the applicant’s involvement in the LTTE to mere plausibility rather than certainty”.[29] The applicant further submits that the applicant’s “young age and resultant immaturity would have caused communication issues and thus affected his inability to adequately articulate the circumstances of his non-day detention”; and that giving the applicant the opportunity to respond to the purported certificate “would have given an essential opportunity for the applicant to more adequately affect the consequences surrounding his age and, as a result, may have eliminated the [Authority’s] doubts”.[30]
[29] Outline of Submissions for the Applicant, [43] (pages 12- 13)
[30] Outline of Submissions for the Applicant, [44] (Page 13)
Determination
It may be accepted the Authority relied on the document covered by the purported certificate, at least to some extent, in accepting the applicant was a minor at the time he left Sri Lanka, as the applicant had claimed. In those circumstances it is difficult to see how the Authority’s disclosing the purported certificate and the document to which it referred could have made any material difference to the Authority’s review of the delegate’s decision. The applicant claimed he was born in 1996, and the Authority accepted that claim, and assessed the applicant’s claims on that basis.
The applicant’s real complaint appears to be the contention that the Authority had concerns about the applicant’s credibility; that its concerns were in part based on what the applicant said or did not say during the SHEV interview; and, for those reasons, the Authority ought to have considered whether to obtain further information from the applicant to explore with him the evidence he gave during the SHEV interview about the circumstances in which he claimed he had been detained. There are a number of things that may be said about these contentions. First, the Authority accepted, or at least was prepared to accept, the applicant had been detained in December, as the applicant claimed. Second, although the Authority accepted, or was prepared to accept, the applicant was a minor at the time he claimed to have been detained in December 2011, the applicant was not a minor on 29 July 2016 when he attended his SHEV Interview. Thus the applicant’s being a minor could not have been available as a factor relevant to assessing the evidence the applicant gave at the SHEV interview. Third, the document covered by the purported certificate appears to have related only to the applicant’s age. The applicant has not suggested that the purported certificate and the document covered by it ought reasonably to have suggested to the Authority that in the SHEV Interview the applicant did not give as full or as accurate an account of what he claimed occurred when he was detained in December 2011.
For these reasons, ground 5 also fails.
CONCLUSION AND DISPOSITION
The applicant has failed in each of the grounds of application on which he relies. I propose, therefore, to order that the application be dismissed.
As for costs, Mr Dennis, who appeared for the Minister, and Mr Selliah agreed that costs should follow the event. Mr Dennis submitted that if the Minister were to succeed I should set the minister’s costs in the amount of $7,000. I am satisfied $7,000 represents a fair indemnity of the costs the Minister has incurred in defending this application. I propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $7,000.
I will also note in the orders I propose to make that the orders are those of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOAAct), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”. Section 8 of the FCFCOA Act continues the existence of two federal courts and renames them. The first federal court the FCFCOA Act continues is the Court that, before 1 September 2021, was named the “Family Court of Australia”, and s 8(1) renames that Court the “Federal Circuit and Family Court of Australia (Division 1)”. The second federal court the Act continues is this Court which, before 1 September 2021, was named the “Federal Circuit Court of Australia”, but which s 8(2) of the Act renames the “Federal Circuit and Family Court of Australia (Division 2)”.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 10 September 2021
0
0
2