DTJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 657
•23 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 657
File number: MLG 1817 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 23 July 2024 Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA denied the applicant procedural fairness by failing to raise alleged critical matters with the applicant or extend him a real opportunity to comment on those critical matters – whether the IAA failed to afford the applicant procedural fairness by denying him an opportunity to attend an oral interview – whether the IAA failed to consider the applicant’s protection claims – whether the IAA correctly assessed the applicant’s (lack of) citizenship – no jurisdictional error – request for ministerial intervention encouraged – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5, 46A, 473CB, 473DA, 473DD & 473DE and Part 7AA Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BWE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1087
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FER17 v Minister for Immigration and Border Protection, Citizenship and Multicultural Affairs [2019] FCAFC 106
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of hearing: 25 March 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms M Stone Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1817 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 JULY 2024
THE COURT ORDERS THAT:
1.The application be 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 KENDALL:
BACKGROUND
The applicant was born in India to Sri Lankan parents and claims to have lived in various Sri Lankan refugee camps in India before departing India for Australia (Court Book (“CB”) 10-24, 63, 69-70 & 121).
The applicant arrived in Australia in November 2012 as an unauthorised maritime arrival (CB 121).
On 15 December 2015, the then Department of Immigration and Border Protection (the “Department”) wrote to the applicant to advise that the first respondent (the “Minister”) had lifted the “bar” under s 46A of the Migration Act 1958 (Cth) (the “Act”). The applicant was invited to apply for either a Temporary Protection (Class XD) (Subclass 785) visa or a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHEV”) (CB 25-30).
On 26 February 2016, the applicant applied for the SHEV the subject of this review (the “visa”) (CB 32-68).
In his visa application forms, the applicant indicated that he had received assistance from a migration agent (the “first representative”) and asked the Department to provide all written communication about his application to that first representative (CB 41). With that visa application, the applicant also provided a “statement of claim” document and various identity documents for himself and members of his family (CB 69-90).
The applicant now claims to be stateless. In his arrival interview, however, the applicant claimed to be a citizen of Sri Lanka (CB 12 & 45, 52-53, 63, 70 & 113-114). Further, the applicant’s protection claims (as set out in that application and the accompanying statement of claim document) reference a fear of returning to Sri Lanka for the following reasons (CB 63-65 & 70-71):
(a)he is afraid of the Sri Lankan army and the Criminal Investigation Department (the “CID”) because of his father has links to the Liberation Tigers of Tamil Eelam (the “LTTE”); and
(b)he fears harm from members of the Eelam People’s Democratic Party (the “EPDP”) because of threats made by EPDP members in the Sri Lankan refugee camps in India.
On 14 April 2016, the applicant’s first representative provided the Department with a completed “Form 956” document by email (CB 91-95).
On 15 April 2016, the Department acknowledged receipt of the applicant’s visa application (by way of letter sent to the applicant’s first representative) (CB 96-104). That correspondence also noted that the applicant had provided documentary evidence of his “identity, nationality or citizenship” with that visa application but that those documents had not been translated and asked for “translated and certified copies” of those documents (CB 103).
On 18 April 2016, the applicant’s first representative responded to the Department’s request (via email), as follows (without alteration) (CB 105):
I submit that the above mentioned Applicant was born in India (at refugee camp to Sri Lakan parents) and therefore he does not have any form of photo identity with him (as he was not having any legal status in India).
I am unable to provide identity document of this Applicant for the same reasons mentioned above.
On 27 October 2016, the Department invited the applicant (through his first representative) to attend an interview at the Department’s Melbourne offices on 15 November 2016
(CB 107-109).
On 15 November 2016, the applicant attended a SHEV interview with a delegate of the Minister (CB 107 & 110-111).
On 16 December 2016, the applicant’s first representative provided written submissions and a translation of the applicant’s paternal grandfather’s birth certificate to the Department (via email) in support of the applicant’s visa application (CB 112-117).
On 14 March 2017, a delegate of the Minister refused to grant the applicant the visa (CB 121-135). Importantly, the delegate found that the applicant was a “Sri Lankan National” (noting that country information confirmed that the applicant had “the legal right to acquire Sri Lankan citizenship”) and found that the applicant’s “receiving country” was Sri Lanka (CB 121-123).
In relation to the applicant’s protection claims, the delegate found that the applicant’s father had not been known for any LTTE involvement since 1989 and, on that basis, the delegate did “not consider it plausible that [the applicant] would be perceived as supporting the LTTE owing to his father’s remote involvement” at that time (CB 125). The delegate also did “not accept that the applicant had encountered, or was threatened by, the EPDP in India in 2008 (CB 126).
On 20 March 2017, the matter was referred to the Immigration Assessment Authority (the “IAA”) under Part 7AA of the Act (CB 137).
On 30 March 2017, a different registered migration agent notified the IAA (via email) that they had been appointed to represent the applicant regarding his protection visa claims (the “second representative”) (CB 144-145).
On 10 April 2017, the second representative wrote to the IAA (via email) and provided a signed statement from the applicant regarding his protection claims (CB 148-153).
On 27 July 2017, the IAA invited the applicant (via email and through his second representative) to comment on information that could cause the IAA to conclude that “India [was the applicant’s] country of former habitual residence” and invited the applicant to attend an interview (by video link) on 3 August 2017 to do so (CB 154 and Supplementary Court Book (“SCB”) 1-3).
On 3 August 2017, the applicant attended the interview and, at that interview, raised claims to fear harm if returned to India (CB 162 at [14]-[17]).
On 7 August 2017, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa (CB 160-171).
On 21 August 2017, the applicant applied for judicial review of the IAA’s decision in this Court (CB 1-4). The applicant also filed an affidavit with his judicial review application (annexing a copy of the IAA’s decision) (CB 5-7).
THE IAA’S DECISION
The application before this Court is brought pursuant s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act arguably restricts what this Court can and cannot do when determining whether there is any jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time that decision was made.
The IAA can, however, obtain “new information”, which is defined as information that was not before the delegate and which the IAA considers “may be relevant”: s 473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act, which provides as follows:
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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB of the Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision in this matter is 12 pages long and spans 42 paragraphs. This includes five pages containing extracts of relevant legislative provisions.
The IAA began by accepting that the applicant did “not have a nationality” (noting that, although the delegate correctly identified the process for persons in the applicant’s position to apply for Sri Lankan citizenship on the basis of ancestry, there was no evidence before the IAA to suggest that the applicant had done so) (at [1]-[3]).
The IAA determined that India was the applicant’s “country of former habitual residence” and determined that to be his “receiving country” (at [4]).
The IAA explained that it had had regard to the material referred by the Secretary under s 473CB of the Act and that it had also obtained new country information relating to Sri Lankan Tamil refugees in India. The IAA noted that the delegate had not assessed the applicant’s claims against India and there was thus “little information on this issue in the referred material”. On that basis, the IAA was satisfied that there were exceptional circumstances to justify considering the new country information (at [7]-[12]).
The IAA confirmed that it had invited the applicant to attend an interview on 3 August 2017 to comment on the information outlined above and that it had regard to the responses provided by the applicant at that interview and the statement provided by the applicant to the IAA. The IAA considered the claims raised by the applicant at the interview and in his statement to be “new information” but was satisfied that there were “exceptional circumstances” to justify considering the applicant’s new information (at [13]-[21]).
The IAA then outlined the applicant’s protection claims (insofar as they related to India) and noted that the applicant claimed (at [22]-[24] & [27]):
(a)to have had “problems” with the Key (Q) Branch officers at the refugee camp his family were staying at;
(b)that refugees did not have any legal status, could not get good jobs or obtain anything that required proof of identification (for example, phone SIM cards);
(c)the place he was living had a drought and could not get water and he needed to get permission for everything. He was also not able to travel more than 10 kilometres; and
(d)he had been detained by the police in 2012.
The IAA did not accept that:
(a)the applicant had been detained by police in 2012, noting that the applicant had not referenced his detention in his statement provided to the IAA and, given that it was such a significant claim, the IAA would have expected the applicant to prioritise it over less significant claims. The IAA also noted that there was no country information to support the existence of such a practice (at [27]);
(b)the applicant or his family were the subject of questioning, abuse or mistreatment by Q Branch – noting that the applicant’s family were long term residents of refugee camps, did not have a profile and would not have been of interest to the Q Branch (based on relevant country information in that regard) (at [28]);
(c)the applicant would be punished for leaving India illegally (referencing relevant country information in that regard) (at [30]); and
(d)the applicant had been impacted by drought affecting his ability to obtain water for drinking and sanitation (noting that there was no information before it relating to a drought at or immediately before the applicant’s departure for Australia) (at [31]).
However, the IAA accepted that:
(a)the applicant would be questioned by the Q Branch upon his return to India but considered that his “prior lengthy residence … would lead to his transfer back to a refugee camp without abuse or mistreatment” (at [29]);
(b)the applicant had limited employment opportunities and that movement restrictions interfered with his ability to obtain an education. However, the IAA noted that the applicant had provided evidence that he had completed education “up to year 9” and that he had completed “a catering and computer course” (at [32]); and
(c)restrictions were placed on the applicant’s movement outside of the refugee camps generally and that the lack of identification documents prevented the applicant from obtaining certain things (such as mobile telephone SIM cards) (at [33]).
The IAA noted that the information before it indicated that refugee households were provided with “cash assistance and subsidised rations” and could “access free medical services and educational facilities”. Based on the information before it, the IAA was satisfied that the applicant “would have the capacity to subsist” and would have “access to basic services” upon his return (at [34]-[35]).
Overall, the IAA was not satisfied that the applicant “would experience harm which would amount to serious harm” if he returned to India. For the same reasons, the IAA was also not satisfied that the applicant met the complementary protection criterion (at [36]-[37] & [40]-[42]).
The IAA ultimately affirmed the delegate’s decision refusing to grant the applicant the visa.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 21 August 2017 contains three grounds of review, as follows (without alteration) (CB 3):
1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant’s procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.
2.The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
3.I have made an application for assistance through Victorian Legal Aid and am waiting for a response from them to assist me at the federal circuit court.
On 2 May 2018, procedural orders were made by Registrar Allaway in the then Federal Circuit Court of Australia giving the applicant an opportunity to file an amended application, any supplementary court book and written submissions.
On 8 September 2023, the matter was listed for a directions hearing before this Court. The applicant appeared at that directions hearing (by telephone) without legal representation but with the assistance of a Tamil interpreter.
Noting that the applicant was not represented and that it had been some time since the matter had been filed, the Court explained to the applicant that his matter would soon be listed for a final hearing, that this Court could only turn its attention to the issue of jurisdictional error in the IAA’s decision and that the Court would do so at the final hearing.
The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it could not undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, it was emphasised that this Court cannot grant the applicant the visa that the applicant now seeks (even if the Court strongly disagrees with the IAA’s ultimate findings). Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.
The applicant was advised that his matter would be listed for a final hearing before this Court on 25 March 2024. He was given a further opportunity to file any amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared at the final hearing before this Court via video link on 25 March 2024. He was assisted at that hearing by a Tamil interpreter.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 21 August 2017, a Court Book numbering 171 pages (marked as Exhibit 1), a Supplementary Court Book numbering 3 pages (marked as Exhibit 2) and written submissions filed on behalf of the Minister on 12 December 2023.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court reminded the applicant of the categories of jurisdictional error (previously explained to him at the directions hearing on 8 September 2023 and set out above) and gave him an opportunity to outline orally what he thought the IAA “did wrong” in relation to his matter.
The applicant told the Court that the IAA did not “see [his] claim fully”. He stressed that he “was born in India” but “cannot go back to India”. The applicant also claimed that he cannot go back to Sri Lanka as he has no family in Sri Lanka and does not know what he will do if he goes back there. The applicant also told the Court that he has family in Australia (including one child).
The applicant’s oral submissions, to the extent that they raise any issue of jurisdictional error on the part of the IAA, will be addressed below.
CONSIDERATION
Grounds of review
Ground one
For ease of reference, ground one provides:
1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant’s procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.
As outlined above, the delegate in this matter determined that the applicant was a “Sri Lankan National” (noting that country information confirmed that the applicant had “the legal right to acquire Sri Lankan citizenship”) and found that the applicant’s “receiving country” was Sri Lanka (CB 121-123).
The IAA, on the other hand, determined that the applicant did “not have a nationality” (noting that, whilst the delegate correctly identified the process for persons in the applicant’s position to apply for Sri Lankan citizenship on the basis of ancestry, there was no evidence before the IAA to suggest that the applicant had done so) (at [1]-[3] in the IAA’s written reasons).
Ultimately, the IAA determined that India was the applicant’s “country of former habitual residence” and, on that basis, determined that India was his “receiving country” (at [4] in the IAA’s written reasons).
By doing so, the IAA considered an issue which had not been considered by the delegate (that is, assessing the applicant and his protection claims against a different receiving country, being India).
In order to have regard to this new issue, the IAA was required to consider whether to exercise its discretion to allow the applicant an opportunity to provide new information (pursuant to s 473DC of the Act): Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82]; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 at [80]-[81].
The IAA in this matter first obtained new information in the form of a Department of Foreign Affairs and Trade Country Information Report – India dated 15 July 2015 and an article on Sri Lankan Tamil Refugees in India (published in the Refugee Survey Quarterly) (the “article”) (at [10]-[11] in the IAA’s written reasons). The IAA was satisfied that there were exceptional circumstances to justify considering that new information because there was limited information in the referred material in that regard (noting that the delegate had not assessed the applicant’s claims against India) (at [12] in the IAA’s written reasons).
The information outlined in the article relevantly provided as follows (as detailed at [11] in the IAA’s written reasons):
•Households receive cash assistance under the Tamil Nadu Government’s Infrastructure Development Programme to improve the physical infrastructure of the camps.
•Refugee households received subsidised rations of rice, sugar, kerosene and wheat through the public distribution system.
•Sri Lankan refugees can access free medical services from government hospitals.
•The State Government has been providing free educational facilities to refugee children.
•The restriction of movements outside the camps has been gradually reduced. Sri Lankan refugees were permitted to work between 8 am and 6 pm, but presently they can go to work at any time but they should inform the camp security.
•Sri Lankan refugees are mostly able to obtain casual labour jobs, which mean that they are recruited on a daily basis and paid daily. In one sample, 36 per cent of refugees were in the workforce.
The IAA put the applicant on notice of the information contained in the documents obtained by the IAA and invited the applicant (by letter sent to him through his second representative via email on 27 July 2017) to attend an interview on 3 August 2017 and to comment on that information (SCB 1-3).
That invitation letter relevantly stated (SCB 2-3):
You are invited to comment on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection:
•You claim to be stateless.
•You claim to have been born to Sri Lankan parents in Tamil Nadu, India, and to have spent your whole life in India before coming to Australia.
•I have available to me country information regarding the conditions of Sri Lankan refugees residing in Tamil Nadu. For example, the DFAT Country Information Report – Sri Lanka, dated 24 January 2017, makes the following comments:
Approximately 104,000 Sri Lankan Tamils reside in the southern Indian state of Tamil Nadu, the majority of whom fled from Sri Lanka following the outbreak of conflict in the mid-1980s (or are the descendants of those who did so). The majority (around 70,000) reside within one of approximately 110 Tamil Nadu Government administered camps, with the remainder residing freely outside the camps. The Indian Government supports camp residents, providing education, healthcare, security, livelihoods, social security and amenities. Sri Lankan Tamils have limited work and education rights in India, and do not have a pathway to Indian citizenship.
This information is relevant to your case because it might cause me to conclude that India is your country of former habitual residence, regardless of whether it would be possible for you to return to that country. Country information might also cause me to conclude that there is not a real chance that you would suffer serious harm if you were returned to India now or in the reasonably foreseeable future, and that there is not a real risk that you would suffer significant harm if you were removed to India.
You are invited to attend an interview to provide your comments on the above information.
The applicant attended that interview on 3 August 2017 and, as explained by the IAA, raised the following claims:
14.The applicant stated that it was difficult to study and to work. For example, once a person finds a course they want to do, the course can be finished before the authorities provide the necessary approvals.
15.The applicant stated that when a robbery or theft takes place in the refugee camp, the authorities come and take a number of camp residents into custody. They are only released when the robbers are caught. The applicant was detained in this manner on one occasion, about five to six months before he left for Australia.
16.The applicant stated that his parents experienced trouble in 2015. His parents were told by Q Branch that they would face a lot of problems if the applicant returns.
17.The applicant also stated that he had recently learned that a person returned to a camp in India was taken into custody and assaulted.
The IAA also noted that the applicant had provided a statement to it and set out the following information from that statement (at [19] in its written reasons):
Although I was born in India and lived there all my life, I have no legal rights to reside in India permanently. I was treated as illegal migrants by the Indian people and the government.
My family and I were under regular questioning by the Q Branch (Tamil Nadu state police intelligence service). We were verbally abused during the questioning. Indian authorities have used their power to mistreat me several times.
I had to apply for permits to visit friends/relatives who lived outside the camp.
I had to apply for a permit to go to school. I had to sign in the morning before going to school and sign again in the evening when I return from school.
I cannot return to India because I no legal rights to re-enter and I will be punished for leaving India illegally.
The IAA considered these claims (provided at the interview and in the applicant’s statement as set out above) to be “new information”. The IAA was satisfied that there were exceptional circumstances to justify considering that new information provided by the applicant because it determined that the applicant had not been provided with an opportunity to provide details about his claims in relation to India (because the delegate had focussed on the applicant’s claims relating to Sri Lanka at the SHEV interview) (at [18] & [20]-[21] of its written reasons).
The Court agrees with the Minister (as detailed in written submissions filed in this Court on 12 December 2023 at [20]), that the IAA correctly dealt with the new information obtained by it and the new information provided by the applicant and that no jurisdictional error arises in that regard.
Relevantly, the Court notes that:
(a)the IAA correctly considered s 473DD(a) and s 473DD(b) of the Act in its assessment of the new information provided by the applicant: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (“AUS17”) at [7]-[8] per Kiefel CJ, Gageler, Keane and Gordon JJ;
(b)new country information obtained by the IAA itself was only required to be assessed against s 473DD(a) of the Act and no error arises from the IAA not assessing that country information against s 473DD(b) of the Act: BWE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1087 at [32] and AUS17 at [7]-[8]; and
(c)the new country information obtained by the IAA did not enliven any obligations under s 473(DE)(1) of the Act because it was not information specifically about the applicant himself and was instead information about “a class of persons” of which the applicant was a member and therefore fell within the exception set out in s 473DE(3)(a) of the Act.
The Court is satisfied that the IAA afforded the applicant procedural fairness, raised all critical matters with the applicant and provided him with a proper opportunity to comment on that information.
No jurisdictional error arises in relation to ground one.
Ground two
For ease of reference, ground two states:
2.The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
Ground two fails on a factual level.
As set out above (in the Court’s consideration of ground one), the IAA exercised its discretion to invite the applicant (through his second representative) to attend an interview and the applicant did so on 3 August 2017 (SCB 1-3 & [13] of the IAA’s written reasons).
The applicant also raised new claims before the IAA in relation to his claims to fear harm in India – both at that interview (on 3 August 2017) and in the written statement provided to the IAA (as set out above).
The IAA considered the applicant’s claims in some detail.
In particular, the Court notes that the IAA:
(a)rejected the applicant’s claim to have been detained in 2012 (at [27]);
(b)did not accept that the applicant and his family were the subject of questioning, abuse or mistreatment by Q Branch (at [28]);
(c)accepted that the applicant would be questioned by Q Branch upon his return to India but considered that the applicant’s prior lengthy residence would lead to him being transferred back to a refugee camp without abuse or mistreatment (at [29]);
(d)did not accept that the applicant would be punished for leaving India illegally (at [30]); and
(e)relied on country information about the general situation for Sri Lankan refugees in refugee camps in India and was not satisfied that the applicant would face a real chance of serious or significant harm if returned to India (at [31]-[36] & [40]-[41]).
While this Court might have determined differently, that is not the test on review. Here, the Court is satisfied that the IAA’s findings were open to it on the evidence before it and no error arises in this regard.
The Court is also satisfied that the applicant was given a proper opportunity to present his claims both orally and in writing and no jurisdictional error arises in relation to ground two.
Ground three
For ease of reference, ground three provides:
3.I have made an application for assistance through Victorian Legal Aid and am waiting for a response from them to assist me at the federal circuit court.
Ground three simply references the applicant attempted to obtain legal assistance. The Court is satisfied that the applicant had sufficient time to obtain legal assistance (noting that the application for judicial review was filed in this Court in August 2017). Unfortunately, that assistance was not forthcoming.
Whilst the Court is sympathetic to the applicant’s situation, unfortunately there is no right to legal assistance in this Court: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265.
No jurisdictional error arises in this regard.
Oral submissions
To the extent that the applicant suggests (in oral submissions before this Court) that the IAA failed to consider his protection claims, the Court disagrees for the reasons that follow.
As addressed by this Court in relation to ground two above, the Court is satisfied that the applicant was given a proper opportunity to provide new information and to raise new claims before the IAA.
The Court is also satisfied (for the reasons outlined above in relation to ground one) that the IAA properly considered all of the applicant’s protection claims in relation to the applicant’s fear of harm in India (being the applicant’s receiving country as correctly determined by the IAA).
No jurisdictional error arises in this regard.
Otherwise
Noting that the applicant was self-represented, the Court has also considered for itself whether the IAA has erred in the conduct of its review: as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
The Court was greatly assisted in this regard by the Minister who advanced submissions in relation to whether the IAA was correct in determining the applicant’s citizenship.
The Court agrees with the Minister’s submissions in this regard (set out at [23] in written submissions filed in this Court on 12 December 2023).
In determining the applicant’s citizenship, the IAA was correct to assess whether the applicant had actually taken the steps required in order to become a Sri Lankan citizen.
In this regard, the Court references comments made by the Full Court of the Federal Court in FER17 v Minister for Immigration and Border Protection, Citizenship and Multicultural Affairs [2019] FCAFC 106, as follows (emphasis added):
64.As a matter of textual analysis, applying the ordinary and natural grammatical meaning of their words, we are satisfied that there is no basis on which to construe those provisions as extending to any status that a person does not presently possess. Instead, on their ordinary and natural meaning, the words “national” and “nationality” refer to a status presently possessed. They do not encompass a status capable of being sought and acquired, but which is not presently held.
On the basis of the above, the Court is satisfied that the IAA was correct to determine that, on the material before it, the applicant was not a Sri Lankan citizen and was stateless (noting that there was no evidence to suggest that the applicant had taken any steps to obtain Sri Lankan citizenship) (at [3] in the IAA’s written reasons).
The Court is also satisfied that it was reasonably open to the IAA (based on the applicant’s own evidence) to find that India was the applicant’s receiving country. This is so because the applicant stated that he was born in India and lived there (albeit in refugee camps) until he departed to travel to Australia.
The IAA also correctly noted that, whether the applicant had a right to re-enter India was not relevant to the question of whether this was his receiving country: as per s 5(1) of the Act.
No error arises in the IAA’s reasoning in this regard.
MINISTERIAL INTERVENTION
This is a most unfortunate case.
It is clear that the applicant has suffered significant hardship throughout his life. His future remains uncertain and will undoubtedly be challenging.
Unfortunately, this Court’s jurisdiction in matters of this sort is limited and, in circumstances where there is no evidence of jurisdictional error on the part of the IAA, the Court is unable to assist the applicant.
The Court notes, however, that the Minister does have discretionary powers which can be exercised in cases such as this.
The Court cannot compel or ask the Minister to exercise his discretionary powers. However, the Court notes that the Minister does have broad powers in this regard and can elect to exercise them should he decide that it is appropriate to do so.
Ther Court encourages the applicant to seek Ministerial intervention.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 21 August 2017 have failed to identify any jurisdictional error on the part of the IAA.
This Court is also unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 July 2024
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