DSG17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 155
•23 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DSG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 155
File number: SYG 2609 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 23 February 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether Authority misapplied s 473DD of the Migration Act 1958 (Cth) – whether Authority applied the wrong test for ‘well-founded fear of persecution’ – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5J, 473CA, 473DD, 476, 477 Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958
CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477; [2019] FCAFC 203
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of last submission: 5 October 2023 Date of hearing: 29 August 2023 Place: Perth Counsel for the Applicant: Mr A Silva Counsel for the First Respondent: Mr T Young Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
SYG 2609 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSG17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister made a decision not to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority) on 3 August 2017. The applicant seeks judicial review of the Authority decision, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on an amended application that raises three grounds. Two of the grounds assert jurisdictional error on the basis that the Authority misapplied s 473DD of the Migration Act in relation to new country information provided by the applicant. The third ground asserts that the Authority applied the wrong test in determining whether the applicant had a well-founded fear of persecution.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error and I therefore dismiss the application to this Court.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia by sea in September 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant lodged a valid application for a protection visa on 30 May 2016.
On 4 November 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection. Following the interview, on 9 November 2016 the applicant provided further information to the Department, in response to matters raised with the applicant at the interview.
A delegate of the Minister made a decision on 29 November 2016 refusing to grant the applicant a protection visa. The matter was then referred to the Authority for review in accordance with s 473CA of the Migration Act.
The applicant, via his representative, provided new information to the Authority. Where relevant to this application, the new information is discussed in greater detail below.
On 3 August 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. It is unnecessary for the purposes of this judgment to summarise the whole of the Authority decision. Rather, relevant parts of the Authority decision are referred to below in the consideration of the grounds.
JUDICIAL REVIEW APPLICATION
The applicant filed his application to this Court on 18 August 2017 and therefore made his application within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application which asserts the following grounds (reproduced without alteration):
Ground 1
The IAA committed jurisdictional error since it breached s473DD of the Act by declining to consider a critical document on country information provided by the applicant.
Particulars
(a)At [4] (CB280) the IAA stated that there are no exceptional circumstances exist to consider the UN Special Rapporteur’s preliminary report dated 7 May 2016.
(b)Although the IAA stated that the delegate considered other, similar country information in her decision, it did not identify what they were.
(c)The IAA did not consider whether critical issues pointed out by the second representative had material bearing upon the IAA’s consideration as to whether it was satisfied of the requirements under s 473DD.
(d)The IAA appears to use template findings and not consider all the matters relevant to s473DD properly.
Ground 2
The IAA committed jurisdictional error since it breached s473DD of the Act by declining to consider two further critical documents on the latest country situation around the applicant’s home area.
Particulars
(a)At [11] (CB 281) the IAA stated that there are no exceptional circumstances exist to consider the two articles given on 20 March 2017.
(b)The IAA used s473DD(b)(ii) criteria in place of S473DD(a) criteria in spite of the fact that the s473DD(b)(i) criteria was already satisfied.
(c) The IAA failed to take all relevant matters in its consideration.
Ground 3
The IAA made jurisdictional error in that it applied the wrong test for well-founded fear
Particulars
(a)At [25] (CB284) the IAA stated that it does not accept that the [Sri Lankan Army (SLA)] genuinely intended to take action against the applicant.
(b)At [31] (CB285) the IAA found that the threats made by the SLA in July 2012 were while frightening, they were empty threats.
(c)The error the IAA made was that it misunderstood the objective assessment. That is instead of considering whether an applicant in the nature of this particular applicant who had experienced whatever the IAA accepted that he experienced, would fear that there is a real chance that the SLA intended to take action, the IAA considered simply whether the SLA intended to take action.
The evidence before the Court comprises the court book filed by the Minister on 31 October 2017 and an affidavit of the applicant affirmed on 12 November 2017, annexing a transcript of his protection visa interview.
SECTION 473DD OF THE MIGRATION ACT
Grounds 1 and 2 both in substance assert jurisdictional error in the Authority decision on the basis that the Authority misapplied s 473DD of the Migration Act. Before considering those grounds, it is appropriate to consider the requirements of s 473DD of the Migration Act.
In conducting a review of a fast track reviewable decision, the Authority must not consider new information that was not before the delegate unless the requirements of s 473DD are 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.
In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17), the High Court held that in applying s 473DD in respect of new information provided by an applicant, the proper approach is to first consider the criteria in both s 473DD(b)(i) and (ii), and if either or both of those criteria are met, take into account the findings in relation to those criteria in determining whether there are exceptional circumstances to justify considering the new information for the purposes of s 473DD(a): see AUS17 at [11] and [12] (per Kiefel CJ, Gageler, Keane and Gordon JJ).
In a separate judgment, Edelman J said at [24] (footnote omitted):
My only departure from the joint reasons is that I do not consider that such a reasoning procedure is demanded by the logic of s 473DD. In my view, an alternative approach that is equally open to the Authority as a matter of law is to consider s 473DD(a) first. …. This alternative approach also recognises that there will be some cases where the criteria in s 473DD(b) might not be relevant to s 473DD(a). One of those cases might be where new country information is provided to the Authority either by the Secretary or by the referred applicant. In considering whether exceptional circumstances exist, the Authority is not required to ask itself whether the country information is “credible personal information” within s 473DD(b)(ii). Plainly, country information is not personal information, which in broad terms is “information or an opinion about an identified individual, or an individual who is reasonably identifiable”.
In considering the judgment in AUS17, Markovic J said in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (APH17) at [79]:
As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
The High Court (Gageler, Keane and Nettle JJ) in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 said of the phrase ‘exceptional circumstances’ at [30] (footnote omitted):
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
The Federal Court (White J) considered the meaning of exceptional circumstances in s 473DD(a) of the Migration Act in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958 and said at [41]-[43]:
41.Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]‑[26] (Rares J); Hasim v Attorney‑General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).
42.The proper construction of the term “exceptional circumstances” in s 473DD should take account of the context in which the term is used. The scheme of Pt 7AA of the Migration Act is to provide a means of “fast track” review of the refusal of certain applications for a protection visa. Particular elements of the scheme are that all “fast track reviewable decision[s]” are to be referred to the IAA as soon as reasonably practicable after the decision is made (s 473CA), the task of the IAA is, prima facie, to review the decision on the papers and without accepting or requesting new information and without interviewing the applicant (s 473DB) and, while the IAA has a discretion to “get” new information, it may consider it only in the limited circumstances specified on s 473DD. Plainly, applicants for a protection visa are expected to present all their claims and all available evidence to the Minister in relation to the decision under s 65.
43.Further, account must be taken of the reference to the exceptional circumstances being such as to “justify” consideration of the new material. In this respect, account should also be taken of the purpose of the IAA decision, namely, to affirm the refusal of the visa or to remit for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC). That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances.
In that case, White J found that the Authority took an unduly narrow interpretation of the term ‘exceptional circumstances’ by confining its consideration of whether there were exceptional circumstances to the appellant’s explanation for not having provided the information earlier: at [46]-[47].
The consideration of whether the requirements of s 473DD are met takes place at an anterior stage of the review directed at whether new information should be received by the Authority and considered at the deliberative stage: see CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41].
GROUND 1: DID THE AUTHORITY MISAPPLY S 473DD OF THE MIGRATION ACT IN RESPECT OF A REPORT FROM THE UN SPECIAL RAPPORTEUR?
New information provided by the applicant to the Authority
The applicant provided to the Authority a report dated 22 December 2016 titled ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka’ (UN Special Rapporteur report). In a submission to the Authority dated 2 March 2017, the applicant’s representative said in relation to this report (emphasis in submission to the Authority):
The Applicant also requests the Authority take into account the Report of the Special Rapporteur dated 22 December 2016 on his mission to Sri Lanka from 29 April to 7 May 2016. The Report found that citizens of Sri Lanka continue to live without minimal guarantees of protection against the power of the State, in particular, its security forces (Part II.8). The Report also found that although Sri Lanka has been increasingly open to engagement with the international community and civil society in the advancement of human rights since the change of government in 2015, the reform process is still fragile and necessary mechanisms are still required to be set up to remedy past large-scale human rights violations and prevent their recurrence (Part II.9 and II.10). The Special Rapporteur urged the international community to ‘Ensure that the principle of non-refoulement is upheld by not returning to Sri Lanka persons, in particular Tamils, who may be at risk of torture or ill-treatment, in accordance with article 3 of the Convention against Torture (Recommendation 122(b)).
It is submitted that the Authority may and should take this new information account. The Report was published after the Department’s decision on the Applicant’s [Temporary Protection Visa (TPV)] application and there are exceptional circumstances as it is a significant, detailed, independent and recent report by a UN-appointed expert.
Reasoning of the Authority in relation to whether the UN Special Rapporteur report met the requirements of s 473DD of the Migration Act
The Authority considered whether the UN Special Rapporteur report met the requirements of s 473DD at [4] of its reasons. In that paragraph, the Authority said:
The IAA submission refers to a report from the UN Special Rapporteur, dated 22 December 2016, regarding his mission to Sri Lanka of that same year. I am satisfied the report is new information which postdates the delegate’s decision. The report assesses the post-war situation for Tamils in Sri Lanka, and I note the delegate considered other, similar country information in her decision. The delegate also advised the applicant that the IAA is a limited form of review and can only consider new information in exceptional circumstances. The applicant, who was represented during his TPV interview, confirmed he understood this information. One week after the applicant’s TPV interview his then representative provided a written submission, which referred to similar sources of country information, including the UN Special Rapporteur’s preliminary report on the same mission, dated 7 May 2016. I am not satisfied exceptional circumstances exist to justify considering this report.
Submissions made by the parties to the Court
Both parties submitted that the Authority’s finding that the UN Special Rapporteur report is new information that postdates the delegate’s decision amounts to a finding that s 473DD(b)(i) of the Migration Act is satisfied. The focus of the parties’ submissions in relation to this ground was on the Authority’s finding that there were not exceptional circumstances to justify considering the new information and therefore s 473DD(a) was not met.
The applicant submitted that the Authority’s reasons for finding that there were not exceptional circumstances to justify considering the new information were undermined by the following reasons:
(a)The transcript of the protection visa interview does not support the proposition that the delegate appraised the applicant of the limited nature of reviews conducted by the Authority, and this might suggest that the Authority had a template response to s 473DD issues or copied its reasons from another decision.
(b)The UN Special Rapporteur report of December 2016 was the latest information. The most recent information referred to by the delegate was dated May 2016. In oral submissions, Counsel for the applicant submitted that the date of the UN Special Rapporteur report was close to the date of a report of the Department of Foreign Affairs and Trade published in January 2017, which the Authority relied on.
(c)The delegate did not refer to the UN Special Rapporteur preliminary report of May 2016 and therefore there is a presumption that the delegate did not consider that report in reaching the s 65 decision. Counsel for the applicant submitted that any statement by the Authority to the effect that the delegate considered similar country information is ambiguous, particularly given that the whole of the preliminary report was not before the delegate.
(d)The matters in the UN Special Rapporteur report highlighted by the applicant’s representative in submissions to the Authority were different to the matters in the UN Special Rapporteur preliminary report highlighted by the applicant’s representative in submissions to the delegate.
(e)The applicant’s representative addressed the significance of the UN Special Rapporteur report in her submissions to the Authority.
The applicant submitted that the Authority did not consider the importance of the new information to the applicant’s claims and took too narrow a view of what constituted exceptional circumstances. Counsel for the applicant submitted that the report was important, being a report on a special mission to Sri Lanka by a representative of the United Nations on issues critical to the refugee determination, and that the report was credible and comprehensive.
Counsel for the applicant submitted that where a review applicant provides the Authority with a country information report which post-dates the delegate’s decision, is relevant to the applicant’s case, is from a respected source and is comprehensive, the Authority has no choice but to accept that the report meets the criterion in s 473DD(a) of the Migration Act.
The Minister submitted that to the extent that the applicant contends that the country information before the delegate was not known, the contention should be rejected at a factual level because the delegate clearly referenced the material before them. The Minister submitted that, although brief, it is clear from the Authority’s reasons that it did not consider the contents of the UN Special Rapporteur report to represent a significant departure from the earlier country information before the delegate that would result in a situation that is unusual, special or uncommon.
The Minister further submitted that the choice and the assessment of the weight to be given to country information is a matter for the Authority. Counsel for the Minister in oral submissions acknowledged that, at the anterior stage of the review, the Authority is not required to undertake a deeply comprehensive or evaluative examination of the country information before it and decide what information it prefers.
In oral submissions, Counsel for the Minister submitted that it was open to the Authority to consider the information already before the Authority in the review material and to find that the new information in the UN Special Rapporteur report did not significantly depart from that existing information in finding that there were no exceptional circumstances to justify considering the new information.
Resolution
In resolving this ground, it is important to remember that the complaint of the applicant relates to whether the Authority misapplied s 473DD(a) of the Migration Act. There is no dispute that the Authority made a finding for the purposes of s 473DD(b)(i) and the applicant does not assert that the Authority failed to consider s 473DD(b)(ii), presumably on the basis of Edelman J’s observations in AUS17 in respect of country information, as set out above.
There is no suggestion that the Authority did not take into account its findings on s 473DD(b)(i) in reaching a conclusion on s 473DD(a) of the Migration Act.
Rather, the applicant asserts that the Authority misapplied s 473DD(a) on the basis that the Authority took too narrow a view of what can amount to exceptional circumstances and because the applicant considers the Authority’s reasons to be factually wrong and the outcome of the assessment to be wrong.
It is therefore convenient to start with a consideration of the reasons the Authority gave. In assessing the Authority’s reasons, it is important to be mindful that the Authority was not obliged to give reasons for procedural decisions, such as on whether new information met the requirements of s 473DD: see, for example, BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [16]. That does not mean that the reasons cannot disclose error. Rather, in assessing the reasons given by the Authority, brevity or lack of details in the reasons does not of itself disclose jurisdictional error: see, for example, CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477; [2019] FCAFC 203 at [119]-[120].
One reason given by the Authority in reaching its conclusion that there were not exceptional circumstances to justify considering the UN Special Rapporteur report was that the report assesses the post-war situation for Tamils in Sri Lanka and the delegate considered other similar country information in her decision. While Counsel for the applicant submitted that this reason of the Authority was ambiguous, that submission appears to have been made focusing on the words ‘other, similar country information’ out of context. When the Authority’s sentence is read as a whole, it is apparent that the ‘other, similar country information’ is a reference to other country information about the situation for Tamils in post-war Sri Lanka.
It was open to the Authority to have regard to the information already before it in assessing whether there were exceptional circumstances to justify considering the UN Special Rapporteur report. There was some debate between the parties as to how far the Authority could or was required to go in this exercise. Although not referred to by either party, I am guided by the observations of Mortimer and Jackson JJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159, where their Honours said at [72] (emphasis in original):
Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
Based on this, the Authority was entitled to reflect upon and assess the country information already before it for the purposes of deciding whether the requirements of s 473DD were met in relation to the UN Special Rapporteur report. It did not need to conduct or set out in its reasons a detailed comparison of the information in the UN Special Rapporteur report with the information already before it. It was not, however, open to the Authority at the anterior stage to determine the choice of, or weight to be attributed to the content of, country information for the purposes of assessing the applicant’s protection claims. There is nothing in the Authority’s reasons to indicate that it did that here, and I am satisfied that the Authority did not, at the anterior stage, make findings in respect of country information that can only be made at the deliberative stage of the review.
It was open to the Authority to take into account that there was, already in the review materials before it, other similar country information, being other country information that addressed the situation for Tamils in post-war Sri Lanka. It is apparent from a review of the delegate’s decision and the country information cited in both the delegate’s decision and the Authority decision that there was other information already before the Authority in relation to the situation post-war in Sri Lanka.
The Authority’s observation that the delegate advised the applicant that the Authority is a limited form of review and can only consider new information in exceptional circumstances does not appear to be supported by the transcript of the applicant’s protection visa interview that is in evidence before the Court.
There were observations made to the applicant about the need to provide all information about his claims for protection and a caution that if his application is refused, he may not have a further opportunity to provide further information to support his claims. This can be seen in the following comments made by the interviewer at various stages of the protection visa interview (emphasis added):
… it is your responsibility to raise all your claims for protection and provide evidence in support of those claims.
…
It is extremely important that you provide the department with complete, accurate and personal protection claims as early as possible, including during this interview. If you do not give the department all the relevant information about your protection claims and your application is refused you may not have another change to provide further information to support your claims. If you have not provided some information to the department or if you wish to correct some information provided previously then please do so now.
…
So it is your responsibility to specify your claims for protection and provide sufficient evidence to establish your claims.
At the conclusion of the protection visa interview, the interviewer asked the applicant, ‘have you put forward all your information in relation to your protection visa application other than the submission your agent will provide?’ to which the applicant responded ‘[y]es, I have’.
It can be seen from the transcript of the protection visa interview that the delegate did not expressly advise the applicant that a review conducted by the Authority is a limited form of review and that the Authority can only consider new information in exceptional circumstances, but the delegate did advise the applicant that if his application is refused, he may not have a further opportunity to provide further information to support his claims. There is an inaccuracy in the expressions used in the Authority’s reasons. However, contrary to the applicant’s submissions, this does not indicate that the Authority may have copied reasons from a different decision. Rather, at most, the Authority made a mistake of fact by attributing to the delegate a more precise explanation that the Authority can only consider new information in exceptional circumstances, in place of the simpler and more general explanation actually given by the delegate, namely, that the applicant may not have another chance to provide further information if his protection visa application is refused by the delegate. Counsel for the applicant properly acknowledged at the hearing that the reason advanced by the Authority, based on the delegate’s representations at the interview, would not on its own give rise to jurisdictional error.
The third reason given by the Authority is that the applicant’s representative provided a written submission after the protection visa interview that referred to similar sources of country information, including the UN Special Rapporteur’s preliminary report of May 2016 on the same mission. The significance of this to the consideration of whether exceptional circumstances exist to justify considering the new information is not fully explained in the Authority’s reasons. It is apparent that the Authority took into account that the applicant had and exercised an opportunity to provide country information to the delegate, including the preliminary report. It is not obvious, although it may be implicit, from the Authority’s reasons that the Authority may have taken into account that the applicant’s representative put forward any relevant information from the preliminary report in the submission to the delegate, and if there were further parts of the report that were relevant, the representative had the opportunity to put them to the delegate at that time. In any event, it was acceptable for the Authority to take into account, in determining whether there were exceptional circumstances to justify considering the new information, the provision of what it considered to be similar country information to the delegate.
The applicant’s challenges to the reasons given by the Authority for finding that there were no exceptional circumstances do not disclose any jurisdictional error in the Authority’s finding in relation to s 473DD(a) of the Migration Act.
I then turn to consider the other matters the applicant referred to in submissions, which he says the Authority ought to have taken into account.
Insofar as the applicant submitted that the UN Special Rapporteur report contained the most recent information, the Authority was clearly aware of the date of the report, having referred to it in its reasons and having acknowledged that the report postdates the delegate’s decision. The Authority was also clearly aware of the source of the information given that it described the report in its reasons as a report from the UN Special Rapporteur. I do not consider that the Authority failed to have regard to these matters in considering whether there were exceptional circumstances to justify considering the new information.
The applicant’s submission that the delegate did not refer to the preliminary report and therefore it should be presumed that the delegate did not consider the preliminary report does not assist his case. Those parts of the preliminary report that were referred to in the applicant’s representative’s submissions to the delegate comprised part of the review material before the Authority and could be considered by the Authority irrespective of whether the particular passage of the report referred to in the submissions was cited in the delegate’s decision.
I do not consider that anything turns on the fact that the applicant’s representative highlighted certain parts of the UN Special Rapporteur report in the submissions to the Authority. The applicant provided the whole of the report to the Authority and asked the Authority to consider the report as new information. The Authority referred to the submissions advanced on behalf of the applicant, without going into detail. Given the submissions addressing this report comprise only two paragraphs and the Authority expressly referred to the submissions it can be presumed that the Authority understood which parts of the UN Special Rapporteur report the applicant was highlighting. I acknowledge that the representative referred to different parts of the preliminary report in the submissions advanced to the delegate. However, that was not the only country information referred to in the applicant’s submission to the delegate and it is clear from the Authority’s reasons at [4] that it considered that the applicant had already provided similar country information to the delegate.
Aside from highlighting certain parts of the report, the submission did not detail how the report was relevant to the claims advanced by the applicant. The applicant’s representative submitted to the Authority that the report was ‘significant, detailed, independent and recent’ but offered no explanation as to how this report was significant to the applicant’s claims or why the information in this report was more relevant or significant than the existing information already before the Authority, including that referred to in the applicant’s submissions to the delegate.
I do not accept that the Authority took too narrow an approach to determining what could amount to special circumstances or that it misconstrued s 473DD(a) of the Migration Act or constructively failed to carry out its task.
Finally, I do not accept the applicant’s submission that where a review applicant provides the Authority with a country information report which post-dates the delegate’s decision, is relevant to the applicant’s case, is from a respected source and is comprehensive, the Authority has no choice but to accept that the report meets the criterion in s 473DD(a) of the Migration Act. It is a matter for the Authority to determine whether the requirements of s 473DD are satisfied and it is not for the Court to say that the Authority must in all cases where the circumstances identified by the applicant are met find that there are exceptional circumstances to justify considering new country information.
Ground 1 is not established.
GROUND 2: DID THE AUTHORITY MISAPPLY S 473DD IN RELATION TO TWO NEWSPAPER ARTICLES?
New information provided to the Authority
On 20 March 2017 the applicant’s representative provided two newspaper articles to the Authority. In the covering email to the Authority attaching the articles, the applicant’s representative said:
Our client, the review applicant, has requested that we send you the attached news articles about the February 2017 shooting of the Director of the Batticaloa Land Reforms Commission…
It is indicated by the news reports that he was shot because of his vocal opposition to land grabs by the Sri Lankan military. Our client submits that the incident supports his claims, being an example of the Sri Lankan army targeting a person for serious harm because of their opposition to the army’s actions.
Reasoning of the Authority in relation to whether the newspaper articles met the requirements of s 473DD of the Migration Act
The Authority considered the two new articles the subject of ground 2 at [11] of its reasons, where it said:
On 20 March 2017 the IAA received two news articles from the applicant regarding the February 2017 shooting of the Director of the Batticaloa Land Reforms Commission in the applicant’s home area … because of his opposition to the SLA’s forced acquisition of land in the area. The applicant submits that this incident is an example of the SLA targeting a person who is against their interests. As this incident occurred after the delegate’s decision, I am satisfied this new information could not have been provided the delegate’s decision. While I accept the applicant had an altercation with three SLA members … in July 2012, I do not consider these articles constitute credible, personal information about the applicant, or represent a potential change in the applicant’s personal circumstances outside the control of the applicant. I am not satisfied exceptional circumstances exist to justify considering the two news articles.
Submissions of the parties to the Court
The applicant submitted that the Authority’s approach of focusing on the articles not constituting credible personal information about the applicant and not representing a potential change in the applicant’s circumstances beyond his control was erroneous because the new information did not need to be about the applicant. The applicant submitted that the Authority’s approach could mean that it focused only on s 473DD(b)(ii) of the Migration Act, rather than s 473DD(a). It should have considered whether s 473DD(a) was satisfied, considering all relevant circumstances, and not just s 473DD(b)(ii). Counsel for the applicant submitted that the Authority misunderstood its task and applied the s 473DD(a) criterion too narrowly.
The applicant submitted that it was necessary for the Authority to examine whether there was anything about the new information or the applicant’s circumstances which meant that there were exceptional circumstances to justify considering the new information. The applicant submitted that the following circumstances were relevant and would have caused him to have greater fear after the shooting of the Director of the Batticaloa Land Reforms Commission:
(a)his brother-in-law disappeared in 2008 and is still missing; and
(b)the Chief of the nearby Sri Lankan Army (SLA) camp did not help and the army personnel would have been upset and angry at the applicant that he had reported them to the Chief.
The Minister submitted that the applicant’s complaint is misconceived and fails to engage with the Authority’s reasoning at [11] of its decision. The Minister submitted that the Authority first, and correctly, satisfied itself as to whether either of the requirements of s 473DD(b) were met. Upon being satisfied that the media articles comprised information that could not have been provided to the delegate, the Authority considered whether exceptional circumstances existed. In so doing, the Authority considered whether the articles constituted credible personal information or represented a potential change in the applicant’s personal circumstances that were outside of his control and, upon finding that it was not so satisfied, concluded that there were not exceptional circumstances to justify considering the articles.
The Minister submitted that it was not an error to assess the new information against both of the criteria in s 473DD(b) and then to take that assessment into account in considering s 473DD(a). The Minister submitted that it is clear from the Authority’s reasoning that, in reaching its state of satisfaction as to exceptional circumstances, it considered the potential impact of the new information against the applicant’s claims and extant country information and was not satisfied that the information rose to the level of ‘exceptional’ such that it could be considered by the Authority.
Resolution
As I understand the applicant’s submission, the applicant is not asserting that the Authority misapplied s 473DD(b)(ii) of the Migration Act, but rather that the Authority adopted too narrow a focus for the purpose of assessing whether the requirement in s 473DD(a) of the Migration Act was met. In particular, the applicant asserts that the Authority erred by focusing only on the matter in s 473DD(b)(ii) without taking into account other potentially relevant circumstances, including that the personal information did not need to be specifically about the applicant.
The Authority in its reasons correctly identified the nature of the new information in the articles, being information about the February 2017 shooting of the Director of the Batticaloa Land Reforms Commission because of his opposition to the forced acquisition of land in the area by the SLA. The Authority acknowledged the purported significance of the information as provided by the applicant, being an example of the SLA targeting a person who is against their interests, and it is implicit from the Authority’s reasons that the Authority understood the applicant to be providing the information on the basis that it could be relevant to the assessment of his claims to be targeted as a person of interest to three members of the SLA. The Authority then observed that the articles do not contain credible personal information about the applicant or represent a change in the applicant’s personal circumstances outside of his control. It was open to the Authority to take these things into account for the purposes of assessing whether the requirement in s 473DD(a) was met, including that the personal information did not relate to the applicant. I do not accept that this represents an unduly narrow approach on behalf of the Authority.
The applicant’s submission that the newspaper articles comprised information relevant to the applicant’s claims because they could cause him to have greater fear, based on the disappearance of his brother-in-law in 2008 and that the Chief of the SLA camp near the applicant did not help when the applicant requested his help in 2012, does nothing to establish jurisdictional error in the present case. The applicant did not make any such submissions to the Authority, and to the extent that he refers to these matters in submissions to the Court, they appear to be factors that would be relevant only to impermissible merits review. While the Authority was not confined to considering matters advanced in the applicant’s submission in determining whether there were exceptional circumstances to justify considering new information, the new information the subject of this ground is not obviously relevant to any assessment of whether the applicant faces a real chance of serious harm or a real risk of significant harm based on his brother-in-law’s disappearance in 2008. The relevance of the new information to any assessment of the applicant’s claim that he faces a real chance of harm from three individuals within the SLA as a consequence of refusing to make them covers for an army vehicle is tenuous at best. It is not something so obvious that the Authority was required to consider it for the purposes of assessing the significance of the new information to the applicant’s claims.
Ground 2 does not establish jurisdictional error.
MATERIALITY IN RELATION TO GROUNDS 1 AND 2
The parties filed additional submissions after the hearing in relation to materiality, including the approach that the Court should take in assessing the materiality of an error in the application of s 473DD of the Migration Act. The submissions of both parties were clear and comprehensive and contained a detailed analysis of recent High Court and Federal Court authorities. I thank the parties for providing these submissions.
However, in circumstances where I have found that there is no error in the Authority’s approach to s 473DD, it is unnecessary to address those submissions in this judgment or make findings in relation to materiality.
GROUND 3: DID THE AUTHORITY APPLY THE WRONG TEST FOR ‘WELL-FOUNDED FEAR OF PERSECUTION’?
By his third ground, the applicant asserts that the Authority misapplied the objective element of the test for a ‘well-founded fear of persecution’ in relation to whether the applicant has a well-founded fear of persecution by the SLA. The applicant asserts that an error arose because the Authority considered whether the SLA intended to take action against the applicant, rather than whether an applicant in the nature of this particular applicant, who had experienced whatever the Authority accepted he had experienced, would fear that there is a real change that the SLA intended to take action.
The applicant’s claims and the Authority’s reasons
The applicant claimed to fear harm from members of the SLA if he returned to Sri Lanka. He claimed that he operated an upholstery business and in 2012 three SLA members asked the applicant to make them a vehicle cover out of expensive material, threatening to harm him and his shop if he did not do it. The applicant reported the incident to the Chief of the SLA camp who advised the applicant that he had no control over the three SLA members. The applicant feared that if he did not make the cover the SLA members would seriously harm him or accuse his of being a supporter of the Liberation Tigers of Tamil Eelam (LTTE), and he heard rumours that the members of the SLA were searching for him. In view of the threat, he closed down his business.
The Authority addressed these claims at [23]-[25] of its reasons, where it said:
23.I accept that in July 2012, three SLA members asked the applicant to do the upholstery work for an army vehicle using a particularly expensive textile. The applicant’s claims in this regard were largely consistent between his 2013 Protection visa (PV) and 2016 TPV written statements, and his evidence to the delegate during his TPV interview. I accept that on this occasion the applicant told the SLA that he was not able to undertake the work without payment, and so they pushed the applicant to the ground, threatened to destroy his shop and then left. I accept the following the day the applicant spoke to the chief of the nearby SLA camp and unsuccessfully requested his assistance.
24.I accept that the applicant was afraid and between July and his departure from Sri Lanka … he stayed at home and only opened his shop on two occasions to complete orders for customers. The applicant claimed that the SLA members did not follow up because his shop was closed, but if he had continued with his business without completing their order, they would have carried out their threats. However I note the applicant also advised the delegate that on one of the two occasions his shop was open, he saw the three SLA members outside, and that they crossed the street and stared at him.
25.However, given the SLA members knew where the applicant’s shop was, and saw him in there on one occasion after the incident, I do not accept they genuinely intended to take action against the applicant. Nor do I accept the applicant heard rumours that the SLA members were looking for him. I note the applicant did not come to any harm between the July 2012 incident and his departure from Sri Lanka, despite the fact his family home and business were both located in [place].
The Authority then said at [31]-[33] and [36]:
31.I have considered the evidence before me, including the applicant’s lack of profile, and the SLA’s failure to take any action against him before his … departure, despite having the opportunity to do so. On the basis of the applicant’s evidence I consider that the threats the SLA members made in July 2012, while frightening for the applicant, were empty.
32.Nor is there any credible reason before me to indicate why the SLA would search for the applicant in 2016, four years after he departed Sri Lanka, as he claimed during his TPV interview. While I have considered the applicant’s explanation for not including this detail in his TPV application, I do not accept his family would not have told him about an incident of this significance, until just before his TPV interview.
33.Overall I do not find it credible the SLA or any other group have been searching for the applicant since his departure from Sri Lanka and do not accept this has occurred. Nor do I accept the applicant’s family have been moving around since his departure to avoid the SLA.
…
36.The applicant has claimed that there are still SLA camps in [place] and if he returns to Sri Lanka the three SLA members will kill him … because of his refusal to work for them in 2012. While I accept there may still be SLA camps in the applicant’s home area, I do not accept that the SLA have any interest in pursuing the applicant. I am satisfied that if the applicant was of any ongoing interest to the Sri Lankan authorities, then they had sufficient opportunity to detain or charge him prior to his departure in 2012. I do not accept the applicant’s claim that because he is the only upholstery worker in his home area he will have a high profile with the authorities, or anyone else, upon his return; noting he has now been outside Sri Lanka for five years.
The Authority then assessed the ongoing risk of harm to the applicant at [39]-[40] of its reasons, where it said:
39.Based on the applicant’s personal circumstances, and the greatly improved country information, I am not satisfied the applicant faces a real chance of discrimination or mistreatment amounting to serious harm, such that would threaten his ability to subsist, as a Tamil business owner.
40.I do not accept that the applicant’s work for the LTTE on one occasion in 2003, and refusal to work for the SLA on one occasion in 2012 has resulted in any ongoing risk of harm from the SLA or some of its members. On the evidence before me I am not satisfied the applicant was of interest to the SLA, any other Sri Lankan authority or associated paramilitary, at the time of his departure, or would be on return. I find the applicant does not face a real chance of suffering serious harm for any of these reasons, should he return to Sri Lanka.
Well-founded fear of persecution
The phrase ‘well-founded fear of persecution’ is defined in s 5J of the Migration Act. It is not necessary for the purposes of this judgment to set out the whole of the section. The relevant subsection for the purposes of seeing the subjective and objective elements of the test is s 5J(1), which provides:
For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
The ‘persecution’ must, amongst other things, involve ‘serious harm’ to the person: s5J(4)(b) of the Migration Act.
The applicant, in advancing his submissions on this ground, did not refer to s 5J of the Migration Act, other than in response to a question from the Court, and instead relied on the High Court’s decision in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan). In particular, the applicant relied of the following observations of the High Court in Chan:
(a)per Dawson J at 396:
The phrase “well-founded fear of being persecuted” has occasioned some difference of opinion in the interpretation of the relevant Article of the Convention. Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear;
(b)per Toohey J at 406:
The use of the adjectival expression “well-founded” must be taken as qualifying in some way the “fear of persecution”. It is hard to conceive of a fear which has no objective foundation at all as well-founded, no matter how genuine the fear might be. If the test were entirely subjective, the expression “well-founded” would serve no useful purpose. On the other hand, it is fear of persecution of which Art. 1A(2) speaks, not the fact of persecution. So it is apparent that while the requirement is not entirely subjective, it is not entirely objective. Both elements are present. There must be a fear on the part of the applicant and that fear must be of persecution. But what is meant by “well-founded”?
His Honour then considered authorities before concluding at 407 that the test should be that of a ‘real chance’; and
(c)per McHugh J at 429:
The decisions in [Reg. v. Home Secretary; Ex parte Sivakumaran [1988] AC 958 (Sivakumaran)] and [Immigration and Naturalization Service v. Cardoza-Fonseca (1987), 480 U.S. 421 (Cardoza-Fonseca)] also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though the persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as “well-founded” for the purpose of the Convention and Protocol.
Submissions made by the parties to the Court
The applicant submitted that the substance of the Authority’s finding is that it was not satisfied that the applicant had a well-founded fear of persecution at the time of the decision because:
(a)it was not satisfied that at the time he left Sri Lanka he had a well-founded fear of persecution; and
(b)the country situation had greatly improved.
The applicant referred to Chan to support the proposition that the phrase ‘well-founded fear’ has both an objective and a subjective element, and requires an objective examination of the facts to determine whether the fear is justified.
The applicant submitted that the correct way to consider whether there is a well-founded fear is:
(a)to consider whether the applicant subjectively feared that there was a real chance that the SLA intended to take action; and
(b)to consider, objectively, whether an applicant in the nature of this particular applicant who had experienced whatever the Authority accepted he experienced, would fear that there is a real chance that the SLA intended to take action.
The applicant submitted that the Authority misunderstood the objective assessment because, instead of considering whether an applicant in the nature of the particular applicant, who had experienced what the Authority accepted he experienced, would fear that there is a real chance that the SLA intended to take action, the Authority simply considered whether the SLA intended to take action. The applicant submitted that the focus of the objective test was on the applicant’s fear and whether it was justified.
In response to a question from the Court at the hearing, Counsel for the applicant accepted that s 5J(1)(b) of the Migration Act now represents the objective element of whether an applicant has a ‘well-founded fear of persecution’.
The Minister submitted that the applicant invites the Court to participate in an overly narrow examination of the Authority’s reasons. The Minister submitted that the applicant’s contentions that the Authority simply considered whether the SLA intended to take action should be rejected. The Authority rejected at a factual level the claims discussed at [25] of its reasons and its conclusion at [31], properly characterised, is an objective assessment of its conclusion regarding the applicant’s claims to fear harm from the SLA as being without foundation. The Minister submitted that the Authority’s decision record clearly sets out its findings in respect of the claims raised by the applicant, its consideration of country information and its conclusion that the applicant did not face a real chance of suffering serious harm on his return to Sri Lanka. The Authority asked itself the correct question and applied the correct statutory test in assessing whether the applicant had a well-founded fear of persecution within the meaning of s 5J of the Migration Act.
Resolution
My understanding of the applicant’s primary submission in relation to this ground is that the objective element of the test for a well-founded fear of persecution is directed to the rationality of the applicant’s subjective fear, taking into account his past experiences. In other words, it is concerned with whether there is a plausible and understandable basis for the applicant’s subjective fear, taking into account the past experiences of the applicant as found by the Authority. I do not accept this submission accurately explains the objective element of the definition of ‘well-founded fear of persecution’.
Section 5J(1)(b) of the Migration Act makes clear that the objective element of the definition of ‘well-founded fear of persecution’ is directed to whether there is a real chance that the person would be persecuted. If there is a real chance that the person would be persecuted, then objectively it follows that the applicant’s subjective fear of persecution for one of the five reasons in s 5J(1)(a) is well-founded. The focus is not on whether, taking into account a person’s past experience, there is an understandable reason why they would fear harm. Even where a person has faced harm in the past, the assessment of whether they have a well-founded fear of persecution is forward-looking. Past experience may be a guide as to whether a person may face a real chance of harm in the reasonably foreseeable future, but it is not determinative. For example, the situation within a country may have significantly improved since a person faced past harm. Conversely, a person may never have experienced harm in their home country, but may still have a well-founded fear of persecution because there has been a detrimental change of circumstances in their home country since they left.
Even if one looks at the reasoning in Chan, the applicant’s submission, as I understand it, would appear not to be supported. For example, Dawson J explained at 397:
But “well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him, to have no foundation. It is clear enough that the object of the Convention is not to relieve fears which are all in the mind, however understandable, but to facilitate refuge for those who are in need of it.
Looking at the Authority’s reasons as a whole, I am satisfied that the Authority did not misunderstand or misapply the definition of ‘well-founded fear of persecution’ in s 5J of the Migration Act.
I make the following observations about the reasons of the Authority extracted above.
The Authority’s findings at [23]-[25] of its reasons are findings of fact in relation to the applicant’s claims about the event that was said to cause his fear of harm. The Authority’s reasons at [31]-[33] and [36] represent findings of fact made by the Authority in relation to the seriousness of the threats made against the applicant in July 2012, with the Authority finding that the threats were ‘empty’, and in relation to the applicant’s profile and ongoing interest (or lack thereof) to the SLA.
The Authority’s assessment of the objective element of the test in s 5J(1)(b) can be seen at [39] and [40] of the Authority’s reasons, and that assessment is informed by the earlier findings of fact made by the Authority. It is clear from [39] and [40] that the Authority:
(a)was not satisfied that the applicant would face a real chance of discrimination or mistreatment amounting to serious harm as a Tamil business owner;
(b)did not accept that the applicant’s refusal to make the upholstery covers for the SLA in 2012 resulted in any ongoing risk of harm to him from the SLA or some of its members;
(c)was not satisfied that the applicant was of interest to the SLA or other authorities at the time of his departure from Sri Lanka, or that he would be on return; and
(d)found that the applicant did not face a real chance of suffering serious harm should he return to Sri Lanka.
These findings and reasoning show that the Authority correctly understood and applied the definition of ‘well-founded fear of persecution’ in s 5J of the Migration Act and show that the Authority was not satisfied that the objective element of the definition was satisfied. There is nothing in the Authority’s reasons to suggest that it did not appropriately understand the standard of a ‘real chance’ as explained in Chan.
Ground 3 does not establish jurisdictional error.
CONCLUSION
The applicant has not established that the Authority made any jurisdictional error in reaching its decision. The application for judicial review must therefore be dismissed.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 23 February 2024
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