DSU16 v Minister for Immigration

[2018] FCCA 874

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSU16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 874

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Authority misunderstood the applicant’s claims or overlooked integers of the applicant’s claims considered – whether the Authority decision was affected by a failure by the Secretary of the Minister’s Department to refer certain information to the Authority considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473CC, 473DB, 473DC, 473DD

Cases cited:

AKK17 v Minister for Immigration &Anor [2017] FCCA 2486

NACA v Minister for Immigration [2002] FCA 551

Applicant: DSU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3455 of 2016

Judgment of: Judge Driver

Hearing date: 27 March 2018

Delivered at: Sydney

Delivered on: 9 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu of Hodges Legal

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application as amended on 26 March 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3455 of 2016

DSU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 14 November 2016.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties. 

3. The applicant is a citizen of Sri Lanka who arrived at Christmas Island on 12 October 2012. On 4 February 2016 he applied for a Safe Haven Enterprise Visa (SHEV). The applicant claimed to fear harm if returned to Sri Lanka for reason of:

   a)his Tamil ethnicity;

   b)an imputed political opinion in connection with the LTTE;[1] and

   c)being a returned failed asylum seeker and having departed Sri Lanka illegally.

   [1] Liberation Tigers of Tamil Eelam

4. On 18 August 2016 the delegate refused to grant the applicant a SHEV.[2] On 22 August 2016 the applicant’s matter was referred to the Authority.[3]

   [2] Court Book (CB) 315

   [3] CB 346

5. On 7 September 2016 the applicant, through a RACS[4] caseworker, provided further information to the Authority in the nature of two additional claims.[5]

   [4] Refugee Advice and Casework Service

   [5] CB 350-351

6. The applicant’s claims, as summarised by the Authority, include the following:[6]

   [6] CB 354-358

   a)between 1978 and late 2006 the applicant lived in Jaffna, at which time he moved to Kilinochchi where he lived until his departure from Sri Lanka;

   b)between the years 2000 and 2012 when he departed Sri Lanka, the applicant has owned and operated two kinds of businesses, interrupted only by a period of time spent with his family in a camp for internally displaced persons[7] following the conclusion of the civil war in May 2009 until the end of 2010;

   [7] IDP

   c)over the applicant’s business career he has at different times owned and operated both a restaurant and a grocery retail business;

   d)the applicant stated that from 2001 onwards he sourced all of his stock from Seran Vanibhan, who was a wholesaler in charge of ordering stock and supplies for the LTTE in the applicant’s area;

   e)at his arrival interview, the applicant stated that as the owner‑operator of two businesses he had been pressured to pay more money over time to a group of armed men. He did not know the name of that group but every time when they came and asked for money, they said to give them the money or they would kidnap him. He never paid them, but when they came and bought groceries they never paid;

   f)in his declaration submitted with his protection visa application, the applicant stated that in 2006 while working in his Jaffna based shop with a friend, two men carrying guns approached them. He believes they were connected with the CID[8] of the Sri Lankan Police, because they were armed, as is common for members of the CID, to “hassle” civilians in this way;

   [8] Central Intelligence Department

   g)the applicant believes the men targeted his shop because they suspected he was sourcing his stock from the LTTE members, and it was known his shop did well and he had earned a lot of money by running it. It was likely they suspected the money from his shop was going to the LTTE as he sourced his stock from an LTTE connected wholesaler;

   h)the applicant saw one of the men aim the gun in his direction and shoot, but he missed and instead shot his friend. His friend was badly wounded and died shortly after he was shot;

   i)the applicant was very shaken and scared after this experience and as a result, in 2006 he moved to the LTTE controlled Vanni region with his family to set up a new shop. He decided to move to the Vanni region because he believed that it was safe and he could afford to buy land there;

   j)in the period between 2006 and 2009, there was a lot of fighting between the LTTE and Sri Lankan armed forces in Vanni. He tried to keep his family safe and run his shop without drawing attention to himself or his family;

   k)when Vanni region was captured by the government in 2009, he and his family were taken to live in a camp controlled by the government. In this camp, they lived off government rations and were not able to go outside the camp.  He and his family were released at the end of 2010 and were allowed to go back to his home town;

   l)he started a new shop business in his home town and tried to rebuild his life for his family;

   m)in early 2011, a few men came to his shop with guns. He believes that they were associated with the CID because they were carrying guns and he was aware that members of this department would often interrogate civilians at random times, as they did to him. They asked him questions about who owned his house, who owned his shop and how much money he made. He answered them because he was scared of what would happen if he did not;

   n)he suspected that the CID were suspicious of where he was getting his money from, and he believes they may have suspected he was still sourcing his stock from members of the LTTE;

   o)the same men asked the same questions two to three times throughout 2011. He was too scared not to answer them as they had guns and he did not know what would happen if he did not answer them;

   p)in late 2011, the men again came into one of his shops with guns and forced him to go outside with them. The men pushed him against a tree and threatened to hit him if he did not give them five lakhs.[9] When he refused to give them the money, they told him that they knew he had five lakhs in his bank account and threatened him again. He believes they were suspicious of the source of his money and if he was still sourcing items from those associated with the LTTE. The men gave him a deadline of 10 days to give them the money or they would come back and kidnap him and harm him;

   q)after this incident, he was very scared and worried for himself and his family. He was too scared to work and stayed at home for a week. During this time the men who had come to his shop went to his house and asked his family whether he was there. His family told them he was not at home and they gave an address of a place to which he should bring the money;

   r)the applicant moved away from his family and moved to his mother’s house, two hours away. Whilst living at his mother’s house, he made arrangements to leave Sri Lanka to come to Australia. During this time, the men who threatened him would go to his house and ask his wife where he was. His wife told him that they would come two to three times a month and sometimes would stand in front of his shop;

   s)the applicant departed Sri Lanka on 19 July 2012 and travelled through Colombo and Malaysia to reach Australia;

   t)on 15 March 2015, the men who threatened the applicant previously went to his house and asked about him. His wife told him that they forced her to go to his shop and demanded that she give them his number. They threatened to kidnap his children when she said she did not know where he was, and his wife then started making arrangements to leave the family home;

   u)his wife relocated from the family home to the area of Kandavalai, about 25 kilometres away, due to the ongoing threats made in connection with the applicant;

   v)the applicant also provided evidence to the Authority concerning information from his wife that the SLA[10] have unearthed videos of his wedding which had been organised by the LTTE.  Army personnel showed that they had video clips of this wedding; and

   w)during the protection visa interview the application raised a new claim that he had in fact been a member of the LTTE since 2003. His role was to supervise a specific area and report to the LTTE if any strangers were in the area. The applicant had been afraid to disclose this previously due to the fear that Sri Lankan intelligence organisations operate in Australia.

   [9] A lakh is a unit in the Indian numbering system equal to 100,000

   [10] Sri Lankan Army

Authority’s decision

1. On 14 November 2016 the Authority affirmed the decision under review.[11]

   [11] CB 353

2. The Authority considered whether the two additional claims raised by the applicant in his submission to the Authority dated 7 September 2016 were “new information” for the purposes of s.473DC(1) and s.473DD of the Migration Act 1958 (Cth) (Migration Act). It decided that the claims were new information, and was satisfied by reference to the requirements of s.473DD that it was not prohibited from considering the new information.[12]

   [12] CB 354-355 at [6]-[13]

3. The Authority accepted that the applicant owned and operated a restaurant and a grocery store, first in Jaffna and then in Kilinochchi, and that from time to time he sourced stock from a wholesaler connected with the LTTE.[13] It accepted that the applicant and his family had been interned in an IDP camp from the end of the civil conflict until the end of 2010.[14] The Authority noted the applicant was not identified during his time in the camp as an LTTE supporter and found it implausible that had the applicant been an LTTE supporter, he could have avoided detection even with the assistance of the United Nations.[15]

   [13] CB 358 at [18]-[19]

   [14] CB 359 at [20]

   [15] CB 359 at [21]

4. The Authority rejected the claim that the applicant had been involved in the Intelligence Wing of the LTTE from 2003.[16] The claim was raised late. The Authority did not accept that the applicant was ever a member of the LTTE intelligence wing, and it stated that this claim was fabricated recently in order to enhance the applicant’s prospects on his application.[17]

   [16] CB 359 at [23]

   [17] CB 360 at [25]

5. In relation to the applicant’s claims to have experienced threats and extortion, while the Authority accepted that the applicant was recognisable as a Tamil businessperson and would have been perceived as wealthy, it did not accept the claim in relation to the incident in 2006 involving armed men approaching him in his shop in Jaffna and firing a gun, and injuring a friend of his who later died.[18]  The Authority was prepared to accept that the applicant had been approached by unidentified persons during 2011 as claimed by the applicant but in light of country information the Authority was not satisfied the unidentified persons were CID or agents of the Government, but rather were criminal elements.[19]  The Authority was not satisfied the applicant would face harm now or in the foreseeable future if he returned to Sri Lanka as a wealthy businessman.[20]

   [18] CB 360-361 at [27]-[30]

   [19] CB 361 at [33]

   [20] CB 361 at [35]

6. The Authority did not accept that the applicant would be imputed with any pro-LTTE political opinion due to having been married in Jaffna, or on the assumption the authorities were in possession of footage of his wedding.[21]  This was because country information indicated that at the height of its influence, the LTTE controlled and administered 76 per cent of the northern and eastern provinces of Sri Lanka, such that all persons living in those areas necessarily had contact with the LTTE and its civilian administration in their daily lives, including in Jaffna.[22]

   [21] CB 361 at [36]

   [22] CB 362 at [37]

7. The Authority rejected the applicant’s claims for protection on the basis of his Tamil ethnicity.[23]

   [23] CB 632-364 at [38]-[49]

8. The Authority further rejected the applicant’s claims for protection for being a returned failed asylum seeker and for having departed Sri Lanka illegally.[24]

   [24] CB 364-365 at [50]-[56]

9. The Authority concluded the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act, and therefore did not meet the requirements of s.36(2)(a). For similar reasons, the Authority concluded the applicant was not entitled to complementary protection under s.36(2)(aa) of the Migration Act.[25]

   [25] CB 366 at [65]

The current proceedings

1. These proceedings began with a show cause application lodged on 6 December 2016. The applicant now relies upon an amended application filed on 26 March 2018. There are three particularised grounds in that application:

   Ground 1

   The IAA’s assessment is founded on a wrong assumption of an integer of a claim.  The [IAA] failed to understand the claim that was put forward by the applicant.

   PARTICULARS

   1. Following the delegate’s decision the applicant made the following claims [5].

   “In around June 2016 the applicant’s wife and children were forced to relocate from their home area to another area some 25 km away in order to avoid ongoing threats:

   Information that the Sri Lankan [A]rmy have unearthed videos of the applicant’s wedding which had been organised by the LTTE, which the applicant found out about around two months ago;

   2. The IAA considered the new information provided at [5].

   3. The IAA was of the view that the LTTE as de facto civil administrators of the areas they controlled would have had responsibilities in relation to civil affairs such as marriage [10]

   4. At [37] the IAA stated “I therefore do not consider that the wedding footage, if available to the Sri Lankan authorities, would in any way add to the applicant’s profile or the risk of harm the applicant would face upon return to Sri Lanka or in the foreseeable future.

   5. At [36] the IAA states “I further do not accept that the applicant will be imputed with any pro LTTE political opinion on account having married in Jaffna during a period when the LTTE exercised military and civil administrative control in the area…”

   6.At [37] the IAA acknowledges that “all persons” living in the LTTE controlled areas had contact with the LTTE and its civilian administration in their daily lives including in matters such as Jaffna.

   7. It is submitted that the IAA accepted that the applicant’s “wedding footage” may be available to the Sri Lankan authorities.

   8. As the IAA did consider that the applicant’s wedding footage may be available with the Sri Lankan authorities (and in the absence of any clear findings to the contrary), it is submitted that the IAA impliedly also accepted the manner the wedding footage became available to the Sri Lankan authorities (i.e. Sri Lankan [A]rmy unearthed the wedding videos) [5].

   9. The applicant claimed that the [A]rmy have unearthed videos of the applicant’s wedding which had been organised by the LTTE and as a result the applicant’s wife and children were forced to relocate from their home area to another area some 25 km away in order to avoid ongoing threats.

   10.      The IAA failed to consider the nature of the claim as unlike “all persons” who may have contact with the LTTE and its civilian administration the applicant claimed that it was the LTTE that had organised the wedding.

   11. If the LTTE had organised the applicant’s wedding this cannot be interpreted as part of the LTTE’s civil administration process.

   12. Further if the Sri Lankan [A]rmy had unearthed the applicant’s wedding videos, and as a result the applicant’s family had to relocate due to threats, it is not open to infer as the IAA did at [37] that this finding would not “in anyway add to the applicant’s profile” or place him at risk of harm.

   Ground 2

   The IAA committed jurisdictional error at [CB 361, 36] and [CB 362, 37], in that it failed to consider essential integers of the applicant’s claims that formed part of the new information as part of its assessment of future harm.

   PARTICULARS

   1. The applicant put forward new information to the IAA [CB 350].

   2. The IAA accepted the claims to be credible personal information [CB 355, 11].

   3. The new information contained the following essential integers of claims [CB 350].

   a. The Sri Lankan Army “unearthed videos” of the applicant’s wedding.

   b. The wedding was “organised” by the LTTE.

   c. The Sri Lankan Army personnel were searching for the applicant.

   d. The Sri Lankan Army personnel “showed video clips” of the applicant’s wedding in an effort to find him.

   e. The wife and children relocated “because of increased threats against them as a result of suspicions against…” the applicant.

   4. The IAA inferred that even if the Sri Lankan authorities were in possession of footage of the applicant’s wedding he will not be imputed with pro LTTE political opinion [CB 361, 36] or “would in any way add to the applicant’s profile or risk of harm that applicant would face upon return to Sri Lanka” [CB 362, 37].

   5. The IAA’s finding at [CB 361, 36] and [CB 362, 37] failed to consider that the applicant had come to the adverse attention and was sought after by the authorities after the videos had been unearthed.

   Ground 3

   The Secretary failed in his statutory obligation to provide information that was “relevant” that had been received or produced by the First Respondent upon which a decision to grant the applicant PAIS was based.

   Particulars

   1. The applicant was identified by the First Respondent as an asylum seeker who was eligible to receive PAIS [CB 199].

   2. A particular document published by the department titled “Additional guidance on PAIS eligibility criteria and assessment process” refers to four Criterions an asylum seeker must meet to be considered eligible for PAIS assistance.

   3. This document (referred at 2 above) states “that a person must either satisfy criteria 1 and 2 and 3 OR may satisfy criterion 4 alone”.

   4. Criterion 3 appears to have 2 limbs namely,

   a. PAIS “assistance is in the best interests of government if it facilitates applications from non-citizens at risk of a protracted period of detention following the lifting of the application bar.”

   b. PAIS “assistance is also in the best interests of government where individuals are identified as exceptionally vulnerable…”

   5. The s46A bar was lifted by the First Respondent, for the purpose of allowing the applicant “to make a valid application for a Safe Haven Enterprise (subclass 790) visa” - [CB 263].  It would appear therefore that following “the lifting of the application bar” the applicant was not at risk of a protracted period of detention.  On the basis of the evidence contained in the Court Book, it could not be said that PAIS assistance was provided to the applicant because following the “lifting of the application bar” the applicant was at risk of a protracted period of detention.

   6. Therefore PAIS assistance was offered to the applicant in the best interests of government because the applicant was identified as exceptionally vulnerable.

   7. This information concerning the applicant being considered exceptionally vulnerable and the basis upon which to grant the applicant PAIS does not appear to have been before the Authority.

   8. This information (referred at 7 above) is “relevant information” that was in the Secretary's possession or control that was considered by the Secretary (at the time the decision is referred to the Authority) - s473CB(1)(c). This is so, because the decision to grant the applicant PAIS has been referred to at [CB 199], [CB 197) and [CB 205] however the information concerning the applicant being considered exceptionally vulnerable and or the basis upon which to grant the applicant PAIS was not referred to the IAA under s473CB(1)(c) of the Act.

   9. Due to the Secretary having failed to comply with his statutory obligation in referring relevant information / documents, the review process before the Authority had been disabled.

1. In addition to the court book filed on 14 March 2017, I received as evidence documents concerning a scheme known as the “Primary Application Information Service”[26] under which it is common ground that the applicant obtained assistance.

   [26] PAIS

2. The applicant and the Minister filed pre-hearing submissions and made oral submissions through their representatives at the trial of this matter on 27 March 2018. 

Consideration

Ground 1 – did the Authority misunderstand the applicant’s claim?

1. In Ground 1, the applicant asserts that the Authority’s assessment was founded on a wrong assumption of an integer of a claim. Specifically it is asserted that the Authority misinterpreted the applicant’s claim that the LTTE organised his wedding.  The applicant submits that “[i]f the LTTE had organised the applicant’s wedding this cannot be interpreted as part of the LTTE’s civil administration process”.[27]

   [27] as particular 11 to Ground 1

2. The Authority was of the view that the LTTE, as de facto civil administrators of the areas they controlled, would have had responsibilities in relation to civil affairs such as marriage.[28]

   [28] [10]

3. At [37] the Authority stated:

   I therefore do not consider that the wedding footage, if available to the Sri Lankan authorities, would in any way add to the applicant’s profile or the risk of harm the applicant would face upon return to Sri Lanka now or in the foreseeable future.

4. At [36] the Authority stated:

   I further do not accept that the applicant will be imputed with any pro LTTE political opinion on account having married in Jaffna during a period when the LTTE exercised military and civil administrative control in the area…

5. At [37] the Authority acknowledges that “all persons” living in the LTTE controlled areas had contact with the LTTE and its civilian administration in their daily lives, including in areas such as Jaffna.

6. The applicant submits that the Authority accepted that the applicant’s “wedding footage” may be available to the Sri Lankan authorities.

7. As the Authority did consider that the applicant’s wedding footage may be available to the Sri Lankan authorities (and in the absence of any clear findings to the contrary), the applicant submits that the Authority “impliedly” also accepted the manner in which the wedding footage became available to the Sri Lankan authorities (i.e. Sri Lankan authorities “unearthed” the wedding videos).[29]

   [29] Tribunal decision at [5]

8. The applicant claimed that the army have unearthed videos of the applicant’s wedding which had been “organised” by the LTTE and as a result the applicant’s wife and children were forced to relocate from their home area to another area some 25 kilometres away in order to avoid ongoing threats.

9. The Authority is said to have failed to consider the nature of the claim as unlike “all persons” who may have contact with the LTTE and its civilian administration the applicant claimed that it was the LTTE that had organised the wedding.

10. The applicant asserts that if the Sri Lankan army had unearthed the applicant’s wedding videos, and as a result the applicant’s family had to relocate due to threats, it is not open to infer as the Authority did at [37] that this finding would not “in anyway add to the applicant’s profile” or place him at risk of harm.

11. It is not clear what the applicant meant by claiming that the LTTE “organised” his wedding.  He made no claim that LTTE leaders or officials were guests at the wedding or that the videos showed LTTE operatives at the wedding.  He made no claim that the LTTE paid for or provided the venue, or food, or musicians or anything else to do with the wedding.  The Tribunal appears to have proceeded on the basis that “organised” meant something like “authorised”, consistently with the LTTE’s role in local civil administration at the time.

12. Further, as the Minister submits, the Authority did not accept as a fact that the authorities had taken possession of the applicant’s wedding footage, or even (as submitted by the applicant) that the authorities “may” have taken possession of the footage.  Rather, it assumed for the purposes of addressing the claim that the authorities had the footage.[30] In any event, the Authority did not misunderstand the claim as advanced.

    [30] CB 361-362 at [36], [37]

13. There is no error in the Authority’s decision as contended by the applicant. It was open to the Authority to consider that the applicant’s reference to the LTTE arranging his wedding was a function performed by the LTTE within the civil administration of the region at the relevant time.  It is untenable for the applicant to contend that the organisation of a wedding by the LTTE “cannot” be interpreted as part of the LTTE’s civil administration process. The Authority’s findings are not indicative of a failure to understand or properly consider the applicant’s claim.

14. To the extent that the applicant attempts to connect, for the purposes of his argument, the applicant’s claim that the authorities had unearthed footage of his wedding, with the claim that his family had moved 25 kilometres away in response to threats,[31] no such connection was made between the claims as advanced on behalf of the applicant in his submission to the Authority.[32] The Authority did not accept the claim that the applicant’s family had since his arrival in Australia been approached by persons on account of the applicant’s perceived wealth or that his wife relocated on account of the need to avoid threats of harm.[33]

    [31] see [12] of the applicant’s submissions

    [32] CB 350

    [33] CB 361 at [34]

Ground 2 – did the Authority overlook integers of the applicant’s claims?

1. In Ground 2, the applicant contends that the Authority failed to consider essential integers of the applicant’s claims advanced as new information. The error sought to be illustrated in the second ground is predicated upon essentially the same claims and findings the subject of the first ground, addressed above. The Minister contends that the Authority did not misapprehend the claim advanced by the applicant concerning the unearthing of his wedding footage and that the LTTE organised his wedding (Wedding Claim).

2. The submission to the Authority stated:[34]

   The Sri Lankan Army have unearthed videos of my wedding which was organised by the LTTE. I only found out about this about two months ago. The Army personnel are searching for me and they showed video clips of my wedding which the LTTE organised.

   [34] CB 350

3. The Authority stated:[35]

   Nor do I consider it inherently implausible that video footage of the marriage may have been taken and may have become available to the Sri Lankan authorities.

   [35] CB 355 at [10]

4. The Authority was satisfied that the new information[36] was credible personal information that may have affected the primary decision had it been known by the delegate[37] and for this reason was satisfied that there were exceptional circumstances to justify considering the new information.[38]

   [36] CB 354 at [5]

   [37] CB 355 at [11]

   [38] CB 355 at [12]

5. Having made a finding that the new information was credible personal information, the applicant submits that it was not open to the Authority to infer that the wedding footage that the SLA “unearthed” would not in any way add to the applicant’s profile or the risk of harm the applicant would face upon return to Sri Lanka.

6. The claim that was made and accepted by the Authority was that the wedding was “organised” by the LTTE and that the SLA personnel were “searching for” the applicant and had “showed clips” of the applicant in an effort of finding him. These are said to have been essential integers of the applicant’s claims that formed part of the new information that was accepted by the Authority as credible personal information.

7. The Authority appears to suggest that all persons residing under LTTE control necessarily had contact with the LTTE and its civilian administration,[39] and therefore the applicant would not be imputed with any pro-LTTE political opinion even if the Sri Lankan authorities “are now in possession of footage of the applicant’s wedding”.[40]  

   [39] CB 362 at [37]

   [40] CB 361 at [36]

8. The applicant submits that the Authority’s assessment is affected by jurisdictional error for the following reasons:

   a)the Authority’s assessment at [36][41] and [37][42] failed to consider the essential integers of the applicant’s claims (that formed part of the new information that the Authority had considered) that the Authority ought to have considered when assessing if the wedding footage now in possession of the Sri Lankan authorities would add to the applicant’s risk profile or risk of harm should the applicant be returned to Sri Lanka. These integers of the claims are said to be:

   i)the SLA “unearthed” the videos;

   ii)the LTTE “organised” the wedding; and

   iii)the SLA were searching for the applicant; 

   b)the Authority’s assessment is founded on a “wrong assumption of an essential integer of the applicant’s claim that formed part of the new information”. The wrong assumption is said to be that the fact that the LTTE “organised” the wedding must be interpreted as a marriage that took place in an environment “when the LTTE exercised military and civil administrative control in the area”,[43] implying that the applicant’s wedding, despite the explicit claim he had made, was a normal wedding that was performed as part of the LTTE’s civil administrative procedure;  

   c)the applicant submits that the new information provided to the Authority[44] fairly read could not be interpreted in the manner the Authority has done at [36][45] and [37],[46] as the fact that “the wedding was organised by the LTTE” should be read and considered with the other integers of the claim that formed part of the new information; and

   d)it is said to be illogical to have accepted the new information in its entirety as credible and personal information and then state that the applicant faces no risk of harm or that he does not have an adverse profile.

   [41] CB 361

   [42] CB 362

   [43] CB 361 at [36]

   [44] CB 350

   [45] CB 361

   [46] CB 362

9. I prefer the Minister’s submissions on this ground. I am not persuaded by the applicant’s argument that, having determined, in the applicant’s favour, that the Wedding Claim constituted or was comprised of “credible personal information” when it was considering whether it could consider the new information by reference to s.473DD, it was not then open to the Authority (or it was “illogical” for the Authority) to infer that the wedding footage unearthed would not in any way add to the applicant’s profile or risk of harm. The requirements of s.473DD, through which door any advanced new information must pass in order to be considered by the Authority, neither involve, require or invite the Authority to make pre-determinations about whether the information establishes that a person has protection obligations under the Migration Act, nor does it relate to the weight to be given by the Authority to the “new information” once it is found to meet the requirements in the section such that it can be considered by the Authority for the purpose of the review. The Authority did not, at [10]-[11], make findings of such a nature. Rather, for the purpose of determining whether it was permitted to consider “new information”, the Authority determined that the Wedding Claim information was credible, and that it was personal information that may have affected the primary decision had it been known by the delegate. It was not contrary to the statutory scheme for the Authority, having determined in favour of the applicant that it would consider the Wedding Claim information, to proceed then to find that it did not establish that the applicant had a relevant profile or risk of harm.

10. In relation to the applicant’s assertion that the Authority failed to consider the integers of the Wedding Claim, such that the army “unearthed” the wedding footage, that the LTTE “organised” the wedding, and that the army was searching for the applicant, it is apparent that the Authority considered the applicant’s claim in its entirety, by reference to its findings.[47]

    [47] CB 316-362 at [36]-[37]

Ground 3

1. Section 473CB(1)(c) states that “any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review” must be given to the Authority.

2. It is not in dispute that, whether certain material falls within this provision depends upon a subjective state of mind formed by the Secretary (or his or her delegate) as to the relevance of the material to the review.

3. When a determination is made by the Secretary whether certain material may fall within s.473CB(1)(c) provisions, notwithstanding the fact that for such a determination to be made the subjective state of mind formed by the Secretary (or his or her delegate) would suffice, the Secretary however would need to act in a “reasonable manner”.[48]

   [48]NACA v Minister for Immigration [2002] FCA 551 at [41]

4. On 19 March 2018 a subpoena was issued by the applicant requesting the Minister to produce certain documents the applicant considers to be relevant for the purpose of advancing his case.

5. The Minister subsequently filed a Notice of Objection on 23 March 2018 on the basis of insufficient time to produce the requested documents and that there was no legitimate forensic purpose in the production of the documents sought in Item 4 (being “Primary document or documents received or produced by the First Respondent upon which a decision to grant the applicant PAIS eligibility was based”) of the Schedule to the subpoena and the request for such documents amounted to an abuse of process.  At the trial on 27 March 2018, I required the Minister to comply with the subpoena, which resulted in documents being produced.

6. The applicant has been determined by an officer of the Minister’s Department to be eligible to receive the primary application and PAIS.[49]

   [49] CB 197

7. The fact that there are documents in existence which have been used to determine that the applicant is PAIS eligible is not in dispute. What is in dispute is whether these documents referred to in the subpoena are relevant documents and therefore it might be said that the Secretary had failed in his statutory obligation to provide the documents to the Authority.

8. In AKK17 v Minister for Immigration &Anor,[50] I distinguished at [59] the authorities relating to the provision of information to the Administrative Appeals Tribunal in comparison to the Secretary’s obligation under s.473CB:

   In my opinion, those authorities can be distinguished readily (and in any event, are not strictly binding upon me) because the Court is here dealing with a different statutory regime. Reviews conducted by the AAT follow an application by a visa applicant for review of a decision by a delegate. The review applicant has the opportunity to submit more material and, if a favourable decision cannot be made on the papers, is entitled to a hearing where issues can be addressed, including the material that was before the delegate and is before the AAT. The review by the Authority, in contrast, is completely different. The process is not initiated by a visa applicant but by an automatic referral from the Minister’s Department. Generally, the Authority is restricted to the material that was before the delegate which is referred by the Secretary. Generally, the visa applicant cannot provide new information to the Authority and is not entitled to a hearing. Generally, reviews are undertaken on the papers which are made available by the Secretary. In my opinion, just as a Tribunal review may be disabled by fraud by a migration agent, so also a review by the Authority may be disabled by the failure of the Secretary to refer to the Authority material that was before the delegate. This is because such a failure can prevent the Authority from performing its obligation under s.473CC of the Migration Act consistently with s.473DB.

   (footnote deleted)

   [50] [2017] FCCA 2486

9. The applicant submits that any such document/s received or produced by the Minister (upon which a decision to grant PAIS eligibility was based) would form part of the assessment process or assessment of the applicant’s application for protection visa, particularly as the applicant may have provided documents or information to the Minister’s Department through his PAIS provider for the purpose of determining the applicant’s eligibility for PAIS.[51]  The applicant also agreed with the statement at CB 205 that:

   the Department of Immigration and Border Protection may provide the PAIS provider or their agents with copies of documents, information and statements supplied by me to the Department, if it is likely that these documents, information and statements are relevant to my claims for protection.

   [51] CB 205

10. In respect of this ground, I accept the Minister’s contention that there was no evidence of torture or trauma having been suffered by the applicant.  The Authority was aware that the applicant was receiving assistance under the PAIS.  This case can be distinguished from my decision in AKK17. The torture claim said to have been made in the submission reproduced at CB 305 was never developed, nor put in any relevant context requiring consideration by the Authority.  The documents produced under subpoena are of no consequence, and did not need to be referred to the Authority by the Secretary.

Conclusion

1. The applicant is unable to establish that the decision of the Authority is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  9 May 2018