Dud18 v Minister for Immigration
[2020] FCCA 2506
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUD18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2506 |
| Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – whether the IAA erred in determining that particular information was “new information” – whether error was material – whether the IAA overlooked critical evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, ss.5, 5AAA, 5J, 46A, 55, 65, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB, 476 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 CVV16 v Minister for Home Affairs [2019] FCA 1890 DPH17 v Minister for Immigration & Anor [2019] FCCA 2258 |
| Applicant: | DUD18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 396 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 10 February 2020 |
| Date of Last Submission: | 1 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Guo |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 396 of 2018
| DUD18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in this matter is a Tamil Sri Lankan. He arrived in Australia as an unauthorised maritime arrival on 27 November 2012 (Court Book (“CB”) 60).
On 11 January 2016, the then Minister for Home Affairs (the “Minister”) lifted the bar pursuant to s.46A of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a Safe Haven Enterprise Visa (the “visa”) (CB 21-26).
On 13 March 2017, the applicant applied for the visa (CB 35-94). The applicant claimed to fear harm on the basis of his being a Tamil, because of an actual and imputed political opinion as an alleged member of the Liberation Tigers of Tamil Eelam (the “LTTE”) and supporter of the Tamil people’s fight for self-determination, as a member of a particular social group of Tamil males believed to be affiliated with the LTTE and as a failed Tamil asylum seeker. The applicant provided a statement of claims which provided specific details relating to past events which he said supported his protection claims (CB 102-112).
On 23 August 2017, the applicant attended an interview with a Ministerial delegate. The applicant was assisted by a legal representative (CB 123-224).
On 31 August 2017, the applicant’s legal representative forwarded comprehensive submissions and supporting information to the delegate. Included in this material were a number of documents relating to the applicant’s involvement with the Tamil Eelam Cricket Club in Australia (the “Cricket Club”) and Tamil diaspora activities (CB 123-224). On 5 October 2017, the applicant’s representative forwarded a translation of one of the documents provided in the submissions to the delegate (CB 233-235).
On 12 September 2017, the applicant’s legal representative forwarded a further set of written submissions and accompanying documents to the delegate. These submissions contained further information relating to the Cricket Club (CB 225-232).
On 9 November 2017, the delegate refused to grant the applicant the visa (CB 236-255).
On 14 November 2017, the applicant’s application was referred to the Immigration Assessment Authority (the “IAA”) for review (CB 256-258).
On 5 December 2017, the applicant’s legal representative provided the IAA with written submissions. These submissions provided (by admission) “new information” in the form of the applicant’s Tamil Eelam National Card. The applicant submitted that all other information was “before the Minister” (this issue is the subject of ground 1 in the applicant’s application for judicial review and will be discussed in detail below) (CB 263-271).
On 28 June 2018, the IAA affirmed the decision not to grant the applicant the visa (CB 275-299).
The applicant now seeks judicial review of the IAA’s decision in this Court pursuant to s.476 of the Act. To obtain assistance from this Court, the applicant must satisfy the Court that the IAA fell into jurisdictional error.
The IAA’s Decision
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 limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s 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 the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s.473DC(1). 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. 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.
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, 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 25 pages long and spans 78 paragraphs.
The IAA began by noting that it had had regard to the material given by the Secretary under s.473CB of the Act (at [2]).
The IAA then noted that the submission it had received from the applicant on 5 December 2017 contained two pieces of “new information” (at [4]):
a)information that the Transnational Government of Tamil Eelam (the “TGTE”) is one of the eight remaining organisations still proscribed under the Prevention of Terrorism Act (the “TGTE Information”); and
b)a Tamil National Identity Card.
In relation to the TGTE Information, the IAA found as follows (at [5]):
In relation to the information about the TGTE, it is submitted it is not new information as the UK Home Office March 2017 report “Country Policy and Information Note Sri Lanka: Tamil separatism” was discussed in the post interview submission. I note the report itself makes no mention that TGTE is one of the eight proscribed groups and it only includes a hyperlink to the relevant Gazette. Neither the post interview submission mentioned that TGTE is one of the proscribed terrorist group. As such, I consider the information about TGTE is new information. This new information appears to have existed prior to the delegate’s decision, also noting three post interview submissions were provided which contain extensive arguments and a large amount of materials, the applicant has not satisfied me the above new information could not have been have been provided prior to the delegate’s decision. I am also not satisfied the information is credible personal information which was not previously known and had it been known, may have affected the consideration of the applicant’s claims. The applicant has not satisfied me that s.473DD(b) is met. I am also not satisfied that there are exceptional circumstances to justify considering the new information under s.473DD(a).
In relation to the Tamil Eelam National Card, the IAA:
a)noted that, in the interview with the delegate, the applicant was given notice that he needed to provide his claims in full and had been asked on several occasions whether there was “anything else” he wanted to add in relation to his claims for protection. The applicant was represented and had provided three sets of post-interview submissions with supporting documents relating to his diaspora activities (at [7]);
b)referred to the lack of any explanation about how the applicant had obtained the card, when he applied for it and why it took so long to be delivered. The IAA noted there was no mention of any association with the TGTE at any time and the applicant had not indicated to the delegate that he had applied for a card of this sort (at [8]); and
c)determined that there were “real questions” about the reliability of the document and did not accept that the card was probative evidence that the applicant had political views that were aligned with Tamil separatism. The IAA was not satisfied that there were “exceptional circumstances” to justify considering the new information under s.473DD (at [8]).
The IAA then stated (at [9]):
The submission requests the IAA to accept as credible all of the claims as accepted by the delegate and requests the IAA to invite the applicant for comment or response if it departs from the delegate’s factual findings. It also requests that the applicant be given an opportunity to be heard by the IAA in relation to his claims for protection. Although the Act permits the IAA to get new information, and to consider new information in exceptional circumstances, having reviewed the material, including the audio recordings for both the entry interview and the arrival interview, I am satisfied that the applicant has had ample opportunities to present his case before the delegate. As considered below, I have arrived at a different conclusion in relation to the late claims of the applicant’s claimed political activities in Australia, where the delegate although did not give the letter of support from the Tamil Refugee Council significant weight, accepted that the applicant had low level political activities in Australia. I note the delegate in his decision did raise his concern that the applicant’s political activities in Australia did not form part of his original visa claims and were put forward by his lawyer following adverse information was put to him at the visa interview. The delegate also raised his concern as to the applicant’s overall credibility. I am of the view that the applicant was on notice that his credibility was an issue by the delegate. I note, and also as discussed below in the decision, despite the applicant’s lawyer was aware of that potential adverse influence could be drawn for late provision of evidence, the post interview submissions to the delegate give no explanation why the later claims and supporting evidence were not made or provided earlier. Furthermore, despite the concerns raised in the delegate’s decision of claims not being made earlier, the submission to IAA also provides no explanation to address the delegate’s concerns. I am not satisfied that the circumstances of this case warrant me to obtain further information from the applicant either in writing or by interview.
The IAA then summarised the applicant’s claims (at [10]).
The IAA then considered the applicant’s explanation for why he had indicated in his entry interview that neither he nor any members of his family had ever been associated or involved with any political group or organisation and that he had not received training in preparation for conflict. The IAA noted that this evidence contradicted the claims in the applicant’s visa application. The IAA did not accept that the applicant lied at the entry interview about having any connection with the LTTE because others with him told him not to say anything or because he did not trust the Australian Government. The IAA was not convinced by the reasons given for the applicant not disclosing his, and his family’s, connection to the LTTE, or his training with the LTTE and the related claims (at [12]-[14]).
The IAA considered aspects of the applicant’s evidence to be “significantly problematic” (at [15]). It found some of the evidence to be implausible and inconsistent (at [17] and [19]) and “not believable” (at [18]).
At [20], the IAA stated:
In considering of the above, I am of the view that the applicant fabricated the story of his participation of the LTTE training and that his friends’ deaths/disappearance or his cousin’s death was due to him. I do not accept that applicant participated in LTTE training. I do not accept his friends were killed as claimed or disappeared/abducted or fled due to their training with the LTTE. I do not accept that his family was visited in January 2008 after another friend from the LTTE training course was abducted. I note that the applicant claimed in the entry interview that his cousin was killed by a bomb. While I am prepared to accept that his cousin was killed by a bomb, I do not accept that the bomb was intended for the applicant. I accept it is possible that the applicant was routinely questioned at the airport by a CID officer on arrival in December 2007, but I do not accept the officer claimed that he knew the applicant, the officer threatened the applicant or the attempted sexual assault occurred.
(Without alteration)
The IAA did not accept that the applicant’s parents supported the LTTE in the 1980’s and 1990’s or that he had provided assistance to the LTTE. Nor did it accept that the applicant’s father’s elder brother’s son and his father’s younger brother were LTTE combatants (at [21]).
The IAA had serious doubts about whether the applicant had organised a school rally in 2003. Nonetheless, it was prepared to accept that he had done so. It noted that the applicant was questioned (with several others), received a warning and was not detained further. It was noted that the applicant did not claim that anyone else from the school “got into trouble” (apart from being questioned) and that these sorts of incidents were a regular event. The IAA also did not accept that the applicant was questioned again in 2005 by the Sri Lankan Army about his involvement in a rally in 2003 (at [22]).
It was also noted that there was no credible information to suggest that Tamils from the applicant’s area had been “particularly targeted” (at [23]).
The IAA determined that it was possible that the applicant (as a young Tamil male from Northern Sri Lanka) was subject to questioning and harassment from the Sri Lankan authorities as claimed (at [24]) but determined (at [25]):
However, given my finding that he had no LTTE involvement or connection, and the fact he was never detained, I do not accept he was of any particular interest to the SLA or the CID or he was known to them (I have consider the school rally incident above). I do not accept that he was questioned for reasons of any known LTTE connections as claimed. I do not accept that he used bribes to get around or because he was a student on the occasions as claimed. I do not accept the following claimed incidents occurred: that he was questioned again in 2005 about his involvement in the school rally in 2003; he had to resort to bribe in order to travel to Colombo in 2006, he stayed in Colombo or Vavuniya due to fear his life; he was threaten and assaulted at the airport by the first CID officer in December 2007 and he was threaten by another CID officer on the same day or he bribed him with cigarettes; the SLA cancelled his travel permit and his father had to bribe again or he had to move around to avoid of being located; he left Sri Lanka via Colombo airport in 2008 through bribes.
The IAA did not accept that the Sri Lankan authorities had any interest in the applicant, that he was known to the Sri Lankan authorities or that he was of adverse interest to the Sri Lankan authorities before he departed Sri Lanka in January 2008 (save for the fact that he was a young Tamil male from Valvettihurai of Jaffna region) (at [26]).
The IAA then considered the applicant’s claim to have attended a protest in Singapore against the killing of civilians in Sri Lanka. It was noted that the applicant had signed petitions at this protest and provided photographs that he said appeared on a Sri Lankan Tamil news webpage. The IAA also noted the applicant’s claim that his mother had been visited by the Sri Lankan Army after this event and that threats had been made against the applicant. The IAA noted that the “protest” appeared to be in the nature of a fundraiser. It did not accept that the protest was reported on the Sri Lankan news or that the applicant had signed a petition (at [28]). The IAA found that it was not credible that the applicant’s parents were visited by the Sri Lankan Army (at [29]). In light of the finding that the Sri Lankan authorities had no interest in the applicant when he left Sri Lanka in 2008, the IAA did not accept that the authorities monitored him or that his family received a phone call from the authorities in about May 2009. Further, it did not accept that the applicant’s “friend” was asked by the authorities at the airport about the applicant and was asked to provide the applicant’s mobile number, or that his friend was hurt (at [30]).
The IAA accepted that the applicant was a member of the Cricket Club in Australia and was identified online as a member of the Cricket Club (at [32]). The IAA considered the materials provided in support of this claim, including the fact that the Cricket Club was linked to Tamil separatism (at [33]-[34]).
At [35], the IAA stated:
Based on the materials provided, I accept there has been some media coverage about the club and its founders and players. I accept the team and its player have gained popularity through social media Facebook. I accept the use of Tamil Eelam as part of its name is perceived by some, in particular, social media user and bloggers as controversial and there are people who might have used the cricket club/team to promote Tamil separatism using social media platforms. However, I consider it is clear that the club itself or its founders do not have a pro Tamil separatism agenda and do not promote themselves as such, neither is there any indication that players playing for the club with a view of promoting post conflict Tamil separatism. The reported games played against players made from Sinhalese background further indicate neither the club itself nor the Sinhalese team/players/club views the Tamil Eelam cricket club as a group that supports Tamil Separatism. I do not accept the applicant lawyer’s assertion in the post interview submissions that the Tamil Eelam Cricket Club continues its tradition of promoting international recognition and visibility for the Tamil people’s aims of obtaining a separate Tamil homeland or the club asserts that it is the national team for a minority ethnicity in Sri Lanka.
The IAA noted that the applicant had not provided any credible report that indicated that the Sri Lankan authorities view the Cricket Club as being linked to Tamil separatism. It also attached little weight to the link to the “Transnational Government of Tamil Eelam” located on the Wikipedia page of the Cricket Club as it was of the view that “any user” could have added that link (at [36]). The IAA also gave no weight to a letter from the founder of the Cricket Club that stated that the families of team members of the Cricket Club were harassed, that the applicant’s family was visited by the Sri Lanka authorities in 2015 and that his brother was beaten because of his involvement with the Cricket Club. The IAA noted that no further details were provided by the founder of the Cricket Club about how these circumstances came about or how the founder became aware of these incidents (at [37]).
The IAA did not accept that the applicant’s involvement with the Cricket Club had caused him to be perceived as someone with pro-separatist views or as someone who was against the Sri Lankan Government. The IAA did not accept that the applicant “had drawn any adverse interest” from the Sri Lankan authorities due to his involvement with the Cricket Club (at [38]).
The IAA then considered the applicant’s claims to have been an active participant in Tamil diaspora activities while in Australia. The IAA summarised the evidence provided in relation to the applicant’s involvement in the Tamil Refugee Council (at [39]-[41]). The IAA had serious concerns about the applicant’s claimed engagement in political activities in Australia as they had been “raised late”. The IAA determined that, despite there being “some supporting evidence”, its credibility concerns caused it to reject any of the late claims about the applicant’s political activities in Australia (at [42]-[43]).
Overall, the IAA did not accept that the applicant had been involved in political activities as claimed. While it accepted that the applicant had participated in a protest in January 2017, it considered that he only did so for the purpose of strengthening his claims for protection (at [44]-[47]).
At [49], the IAA summarised its position as follows:
In sum, I do not accept that any of the applicant’s claimed political activities in Australia apart from that he was part of a group of people staged as a protest in front a Consulate of Sri Lanka. I find that he did this for the sole purpose of strengthening his claims for protection. I am not satisfied that he will be involved in similar conduct if he were to return to Sri Lanka. I do not accept that he has voiced against the Sri Lankan authorities or will do so in future. I also find that his family was not approached.
The IAA found that the applicant was not a credible witness and that he displayed a tendency to create and introduce new claims in order to advance a profile that he could be perceived to be against the Sri Lankan authorities or connected to the LTTE (at [50]).
The IAA determined that there was no information to suggest that residing in the applicant’s home area would cause the applicant to be suspected of having links to the LTTE. Further, it determined that the country information did not suggest that merely being a young Tamil male from Northern Sri Lanka would cause the applicant to be suspected of having links to the LTTE (at [56]).
The IAA accepted that the applicant may have been involved in a rally at his school, that he participated in an event in Singapore in 2009 and that he was a member of the Cricket Club in Australia. However, the IAA was not satisfied that any of these activities brought him (or would bring him) to the adverse attention of the authorities. The IAA disregarded the applicant’s participation in a protest in January 2017 pursuant to s.5J(6). The IAA concluded that the applicant did not fit the profile of persons who could be of interest to the Sri Lankan authorities (at [57]-[59]).
The IAA was not satisfied that the applicant had a profile that would be perceived as having any links, even remote or indirect links, to the LTTE or be viewed as a sympathiser of the LTTE. It was not satisfied that persons who have merely sought asylum abroad and lived abroad for a period of time are perceived to have an anti-government or pro-LTTE opinion or are subject to monitoring, arbitrary arrest or detention for that reason (at [60]-[61]).
The IAA then addressed the applicant’s submissions relating to the Counter Terrorism Act (the “CTA”) being considered by the Sri Lankan Government. The IAA considered it speculative that the CTA would be passed in its current form (at [62]).
The IAA then referred to numerous sources of country information relating to mistreatment, torture and discrimination in Sri Lanka (at [61]-[65]).
At [66], the IAA concluded:
On the country information before me and having regard to the applicant’s circumstances as a whole, I am not satisfied there is a real chance the applicant will face harm upon returning to Sri Lanka, for reasons of being a young Tamil male from Northern Sri Lanka, his involvement in a school rally in 2003, an event in Singapore in 2003, his association with the Tamil Eelam Cricket Club in Australia and his extended period outside Sri Lanka.
The IAA then considered “the chance of harm to the applicant” as a returning Tamil asylum seeker. It noted that the applicant did not depart Sri Lanka illegally. It found that, on return to the airport, the applicant might be met by different agencies while being processed but that the country information indicated that returnees were not mistreated during this process. Further, as the applicant did not depart illegally and did not claim to have a criminal record or any pending charges, the IAA was not satisfied that he faced a real chance of harm (at [67]-[69]).
At [70], the IAA found:
Having regard to the applicant’s profile in totality, I am not satisfied that the applicant has a profile to be of adverse interest to the Sri Lankan authorities. I am not satisfied that there is a real chance that the authorities will perceive him as a LTTE supporter or sympathizer, or of being anti Sri Lankan government or pro post conflict Tamil separatism. I am not satisfied that the applicant faces a real chance of harm on the basis of his being a young Tamil male from Northern Sri Lanka, his involvement in organising a school rally, his participation of the event in Singapore, his association with the Tamil Eelam Cricket Club in Australia, his time spent outside Sri Lankan and his returning as a failed asylum seeker.
On the basis of the above, the IAA determined that it was not satisfied that the applicant met the refugee criterion (at [71]).
Based on its findings made in relation to the refugee criterion, the IAA also determined that there was not a real risk that the applicant would suffer significant harm for the reasons claimed (at [74]).
The IAA further considered the applicant’s involvement in the protest in January 2017 and was not satisfied that the authorities would be interested in the applicant for this reason. It noted that, as the applicant participated in the protest for the purpose of bolstering his visa application, he would not participate in similar activities on his return (at [75]-[76]).
The IAA affirmed the decision not to grant the applicant the visa.
Proceedings in this Court
There was extensive material before the Court in relation to this matter, as follows:
a)the applicant’s amended judicial review application dated 20 January 2020;
b)a Court Book (“CB”) numbering 299 pages (marked as Exhibit 1);
c)a clearer copy of Annexure “W” in the Court Book (marked as Exhibit 2)
d)an affidavit of Shaun Wyn Jones affirmed 20 January 2020;
e)an outline of submissions from the applicant filed 20 January 2020;
f)an affidavit of Shaun Wyn Jones affirmed 10 February 2020;
g)an outline of submissions from the Minister filed 3 February 2020;
h)a further outline of submissions from the applicant dated 14 February 2020;
i)a further outline of submissions from the Minister dated 6 April 2020;
j)a further outline of submissions from the applicant dated 1 July 2020;
k)a further outline of submissions from the Minister dated 1 July 2020; and
l)the transcript of the hearing that took place on 10 February 2020.
In an amended judicial review application filed 20 January 2020, the applicant raised two grounds of review. These are addressed in detail below.
The affidavit of Mr Wyn Jones affirmed 20 January 2020 annexed an extract of the United Kingdom Home Office Country Policy and Information Note – Sri Lanka: Tamil separatism dated June 2017 (the “Policy Note”) and a copy of Gazette, No. 1941/44 – 20 November 2015 (the “Gazette”).
Before this Court, the applicant was represented by Mr Guo of Counsel (who appeared by video-link from Melbourne). The Minister was represented by Ms Oliver of Counsel. The Court thanks both Mr Guo and Ms Oliver and their instructors for their considerable assistance in relation to what proved to be a complex matter.
At the hearing, the applicant sought leave to rely on a further affidavit of Mr Wyn Jones affirmed 10 February 2020. This affidavit annexed the full copy of the Policy Note (as opposed to an extract). This is discussed further below.
The Minister opposed leave being granted for the applicant to rely on the affidavit. The Court granted the applicant leave to file in Court and rely upon the affidavit. The parties were granted leave to provide further written submissions addressing the affidavit of Mr Wyn Jones after the hearing. Those submissions were received on 14 February 2020 (from the applicant) and 6 April 2020 (from the Minister).
Following receipt of those submissions, the Court raised concerns that the submissions did not adequately address the issue of “materiality”. Further, after the applicant’s submissions dated 14 February 2020 were received, the Court delivered its reasons for judgment in BHH18 v Minister for Home Affairs & Anor [2020] FCCA 337 (“BHH18”). Arguments similar to those made in BHH18 were made in this case. The Court asked the parties to provide further written submissions on the issue of “materiality” as that issue is canvassed in BHH18. Those submissions were received on 1 July 2020.
Ground 1
Ground 1 of the application for judicial review dated 20 January 2020 provides:
The Immigration Assessment Authority (IAA) erred in excluding consideration of the evidence that:
a. ‘The Transnational Government of Tamil Eelam (TGTE) is one of the eight remaining organisations still proscribed under the Prevention of Terrorism Act (PTA) by the current Sri Lankan government under the relevant Gazette, which accuses the TGTE of ‘Terrorism related activities and Financing Terrorism’; and
b. ‘The very fact that the Tamil Eelam Cricket Club Wikipedia entry links readers to the TGTE entry demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement’.
by incorrectly finding that the above information was ‘new information’.
Particulars
a. The information or claim that the TGTE is proscribed under the Prevention of Terrorism Act is in Gazette, No. 1941/44 – 20 November 2015 which is available at paragraph 6.2.2 of the UK Home Office report titled ‘Country Policy and Information Note Sri Lanka: Tamil separatism’ dated [June 2017]. This report was discussed in the post-interview written submission to the delegate (August Written Submission) (CB 133 [38], 142 [61]) and is not ‘new information’ for the purposes of s.473DC of the Migration Act 1958 (Cth) (Act).
b. A screenshot of the Wikipedia entry for the ‘Tamil Eelam national cricket team’ (containing both the Applicant’s full name and a direct link to the TGTE Wikipedia entry) was before the delegate (CB 211) and is not ‘new information’ for the purposes of s.473DC of the Act.
c. The information or claim that the link from the Tamil Eelam Cricket Club Wikipedia entry to the TGTE Wikipedia entry ‘demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement’ was raised in the August Written Submission (CB 138-141 [51]-[58]) and is not ‘new information’ for the purposes of s.473DC of the Act.
The Applicant’s Submissions in relation to Ground 1
The applicant submitted that the IAA wrongly determined that the submission to the IAA contained the following “new information”:
a)that the TGTE is one of the eight remaining organisations still proscribed under the Prevention of Terrorism Act by the current Sri Lankan Government under the relevant Gazette, which accuses the TGTE of “Terrorism related activities and Financing Terrorism” (this was referred to as the TGTE Information above); and
b)that the very fact that the Cricket Club’s Wikipedia entry links readers to the TGTE entry demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement (the “Sporting Separatism Information”).
The applicant argues that both the TGTE Information and the Sporting Separatism Information were before the delegate at the time the decision was made under s.65 and that the IAA’s “mischaracterisation” of this information as “new information” meant that the IAA failed to consider information that was material to the applicant’s claims.
In relation to the TGTE Information, the applicant argued:
a)the TGTE Information was before the delegate (and thus not ‘new information’) because it is located in the Gazette (which was referenced and hyperlinked at [6.3.1] of the Policy Note). The Policy Note was, in turn, cited in the written submissions to the delegate. In those submissions the applicant explicitly requested “the decision-maker take all of this information (including all websites / documents referenced in footnotes (and any subsequent footnotes or references contained within these footnoted websites / documents)) into account when making a decision on his application”;
b)because of the explicit written request that the delegate take into account all references contained within the documents footnoted in the written submissions, this included the Policy Note and the Gazette (which contained the TGTE Information). The fact that the delegate does not say that the delegate will not accede to the request means that the Court should find that the information was “before the delegate”;
c)if the delegate did not accede to the request, it would have been a breach of s.55 of the Act – which provides that if the applicant gives “any additional relevant information … the Minister must have regard to that information in making the decision”. Hence, the presumption of regularity compels the factual conclusion that the delegate complied with his obligations under s.55 and took the TGTE Information into account;
d)even if the delegate did not physically have the TGTE Information before it, the information was nonetheless still “before” the delegate at the time of the decision. This is not the same as saying that the information was constructively before the delegate. Rather, it is a reflection of how the delegate chose to conduct the assessment;
e)there is no reason in principle to treat an attempt to place information “before” a delegate by way of cross-reference in written submissions differently to an attempt to place information before a delegate by way of tendering a document to a delegate during an interview. It is noted that an interview is not a compulsory part of the visa application process. Hence, the ability to actually physically “show” a document to a delegate may not arise. Hence, a reference in submissions ought to be considered as “placing information before” a delegate; and
f)the use of the word “new” in the term “new information” is also significant. As a matter of statutory construction, there must be some significance attached to the word “new”. The Gazette was not relevantly “new”. The adjectival meaning of “new” is “of recent origin or arrival; made, invented, discovered, acquired, or experienced recently or now for the first time”. The Gazette is not “new” in this sense given its incorporation by reference in the Policy Note.
In relation to the Sporting Separatism Information, the applicant submitted:
a)there are two aspects to the Sporting Separatism Information. The first relates to the “very fact” of the link on the Cricket Club’s Wikipedia page to a page about the TGTE. The second relates to the information that there is “symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement”;
b)the “very fact” of the link on the Cricket Club’s Wikipedia page to the TGTE page could not have been “new information”. The submissions to the delegate annexed a screenshot of the Cricket Club’s Wikipedia page. As is plain, the annexed page showed a link to the TGTE Wikipedia entry;
c)the second aspect of the Sporting Separatism Information was also not ‘new information’ because the written submissions to the delegate highlighted that the “gist” of the claim included the ‘information’ about ‘the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement’.
At hearing, Mr Guo of Counsel for the applicant further argued:
a)the distinction between the TGTE Information and the Sporting Separatism Information is important and a distinction that was not made or recognised by the IAA when it concluded that this was “new information”. The IAA here deals with the information as if it was “one compendious lot”. It is not. There is a distinction;
b)the resolution of whether the information is “new information” does not turn on whether it was open for the IAA to form an opinion as to whether the information was “new”. Rather, it is an objective and pure question of fact. The provision in s.473DC is not phrased in terms of satisfaction. It requires an assessment of whether, as a question of fact, the document or information was before the delegate at the time the delegate’s decision was made;
c)in relation to the TGTE Information;
i)the reference to the Policy Note was made within the specific context of Tamil separatism;
ii)the applicant also requested that documents footnoted in the websites and documents be taken into account. This was not a “catch-all”. It was a request made specifically within the context of the relevant claim and the reference to the Policy Note and the submissions to the delegate had already raised the fact that the TGTE has “put the idea of Eelam at the forefront of separatist politics”;
iii)the Policy Note itself makes it clear that the footnotes are integral to the substance of the document – not just bibliographical references;
iv)it is clear from all of the references in the Policy Note that there is a need to consult the Gazette in order to provide context and meaning to what is being discussed in the Policy Note;
v)the Gazette was incorporated by references throughout the Policy Note itself as well as in the specific request in the applicant’s submissions to the delegate to take into account the footnotes. In the absence of evidence to the contrary, the presumption of regularity applies such that it can be assumed that the delegate did have regard to the Gazette (which contained the TGTE Information) and it was thus not “new information”;
vi)the Minister advances a range of unfocused policy reasons instead of grappling with the evidence. Whether something is new information is a question of fact. It calls for examination of what was before the Minister at the time of the delegate’s decision. It is a purely factual question that is not cut down by any exhortatory principles in pt.7AA about efficiency and the fast track nature of the process;
vii)the TGTE Information was one of a number of pieces of evidence capable of proving that membership in the Cricket Club itself could give rise to the imputation of a political opinion. All the applicant was seeking to do in relying on the TGTE Information was demonstrate that there was information that was capable of giving rise to the real risk of an imputed political opinion; and
viii)CVV16 v Minister for Home Affairs [2019] FCA 1890 (“CVV16”) is on all fours with the present case. There is no reason to distinguish the attempted tender of a document (as occurred in CVV16) with the incorporation of material by reference to information (which is what occurred here).
In post-hearing submissions, the applicant submitted further:
a)the applicant relies on pages 2 and 68 and paragraphs [2.3.32] and [6.3]-[6.3.1] of the Policy Note. These passages show that the Gazette was to be regarded as an integral part of the Policy Note. That is, the Gazette was incorporated by reference (not just because of a hyperlink);
b)to read [6.3]-[6.3.1] alone and disregard the hyperlinked document is to strip those words of all their meaningful substance and is contrary to the way the Policy Note itself said it was to be used. That, however, is what the IAA’s reasons do at [5];
c)given that the Policy Note was before the delegate, the Gazette was also before the delegate. This means the TGTE Information was also before the delegate – if not actually “before” the delegate then because of its incorporation by reference. This is so because of the unrebutted presumption of regularity which presumes, as a fact, that the delegate would have obtained the Gazette because it used the Policy Note in the way that it was meant to be used;
d)even accepting that the written submissions to the delegate did not make any specific reference to the exact passages of the Policy Note, this makes no difference to the purely factual question of whether the Gazette was before the delegate at the time of the decision;
e)DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 (“DTK17”) does not assist the Minister. The applicant’s case is not one where he argues that an Issues Paper written by the Department was “constructively” before the delegate (as was the case in DTK17). Significantly, in DTK17 the delegate was never asked to take the Issues Paper into account (unlike here);
f)the very point of the TGTE Information was that the TGTE had been proscribed by Sri Lankan authorities as a “terrorist” organisation. There was other evidence before the IAA that tended to show a social media connection between the Cricket Club and the TGTE. These two pieces of evidence, when viewed together, would have formed a probative basis for the IAA to find, consistent with the applicant’s claims, that participation in the Cricket Club created a risk of being imputed with a separatist political opinion;
g)the IAA reasoned at [38] that participation in the Cricket Club did not create a real chance of being imputed with a separatist political opinion but it did so without the benefit of the TGTE Information, which tended to suggest that such an imputation could have arisen. The TGTE Information went directly to the central question of whether an imputation could arise;
h)in relation to the Sporting Separatism Information, this was also probative of the risk of being imputed with a separatist political opinion. Had that information been before the IAA, there is every possibility that the IAA may not have rejected the existence of a risk (as it did at [38]);
i)it cannot be said that the IAA would have reached the same decision regardless of whether the TGTE Information or the Sporting Separatism Information (or both) were before it;
j)it does not appear to have been argued in BHH18 that the ‘‘statement referencing the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement’’ had a significance that was independent of the TGTE Information. Here, the Sporting Separatism Information has a separate significance independent of any information about the TGTE;
k)BHH18 does not dictate the outcome in respect of the TGTE Information. The applicant has raised arguments that were not raised in BHH18. Specifically, the applicant has invoked the presumption of regularity which assumes that the delegate complied with his obligations under s.55 and took the TGTE Information into account; and
l)alternatively, BHH18 was wrongly decided and inconsistent with higher authority.
The Minister’s Submissions in relation to Ground 1
The Minister’s submissions in relation to ground 1 can be summarised as follows:
a)determining whether particular information is “new information” is a finding of fact for the IAA within the jurisdiction of the IAA. In this regard, it is well established that no jurisdictional error occurs if the decision maker makes a “mere” error of fact when considering or weighing a piece of evidence in the course of deciding an issue of fact or law arising in the matter;
b)in relation to the TGTE Information, the IAA rejected the applicant’s submission that this was not “new information”. None of the references to the Policy Note in the applicant’s submissions to the delegate referenced [6.3.1] of the Policy Note;
c)the evidence before the Court confirms that the IAA was correct in concluding that the Policy Note did not itself make any mention of the fact that the TGTE was one of the eight proscribed groups. Rather, the Policy Note merely stated that there were eight organisations that were proscribed and provided a hyperlink to the Gazette recording those groups;
d)it was open for the IAA to find that the TGTE Information was not before the delegate and was “new information” in circumstances where:
i)the TGTE Information was not contained in the Policy Note;
ii)the applicant did not cite or otherwise refer to the only relevant paragraph of the Policy Note relating to the TGTE Information in his submissions to the delegate; and
iii)the IAA considered (and rejected) the submissions made by the applicant as to why the TGTE Information was not “new information”;
e)the words “before the Minister” have been held to refer only to material that was physically before the Minister and does not extend to material that the Minister may have constructive knowledge of because of the breadth of the material held by the Department. Similar reasoning apples here;
f)in the present case, the Policy Note was “before the Minister”, as were the portions that were cited in the applicant’s submissions. As to the remainder of the Policy Note, at best this information could only have been constructively before the delegate;
g)insofar as the Policy Note contained a hyperlink that would have taken the delegate to the TGTE Information, it would be wrong for the Court to infer that there was any duty on the IAA to make further inquiries by following that hyperlink. This is particularly so in circumstances where the applicant was represented and had already had an opportunity to advance any claims and/or to put forward any evidence he wished to rely upon. Such an interpretation would directly undermine the fast track scheme established by pt.7AA of the Act, which explicitly provides that the IAA does not have a duty to get, request or accept any new information whether requested to do so by an applicant, any other person, or in any other circumstances;
h)the Court should not find that the Gazette was before the delegate. Such a finding would create an unreasonable burden on decision-makers and would be unreasonable and illogical;
i)in the present case, the delegate had regard to the Policy Note and, as such, did not breach s.55 of the Act; and
j)the cases referred to in the applicant’s submissions are distinguishable from the present case. In each of those cases, the material was squarely before the delegate. Here, the applicant seeks to argue that a reference in a portion of a country information report that was not cited by the applicant in submissions to the delegate was before the delegate. That argument is untenable.
At hearing, Ms Oliver of Counsel for the Minister submitted further:
a)what the IAA and the delegate are required to do is to assess the applicant’s claims as they are made. The applicant never advanced a claim that there was an association between the Cricket Club and the TGTE as he now asserts;
b)it is very clear that the IAA considered the claim of an imputed risk of harm and addressed that claim in its decision. However, the submissions made to the IAA were the first time that the assertion was made in relation to a TGTE link which is why it is “new information”;
c)as for the Sporting Separatism Information, there is no citation for any evidence to support that assertion in the written submissions that were sent to the IAA;
d)here, the IAA gave clear and considered reasons for why it was not satisfied that the TGTE Information was before the delegate. It agreed that the Policy Note was discussed in the applicant’s post-interview submissions to the delegate but found that the Policy Note itself made no mention that the TGTE was one of eight proscribed groups. It only included a hyperlink to the Gazette. There is nothing in the Policy Note that lists the TGTE as being a proscribed group. It only takes you to a link where that information can be found;
e)neither of the paragraphs in the written submissions to the delegate that cited the Policy Note (nor the footnotes to those paragraphs) cited, or in any other way referred to, [2.3.32] and [6.3.1] of the Policy Note (which is the portion that is said to be relevant to this case). While the existence of the Policy Note was arguably before the Minister, it cannot be said that portions of the Policy Note that were not cited or relied upon by the applicant were before the Minister;
f)this is not a case where the Minister is obliged to put on evidence as to whether the delegate had regard to a hyperlink in the Policy Note. Section 473DC(1) cannot possibly be held to extend to material in reports that are not otherwise cited or relied upon;
g)it would be an unreasonable burden to require a decision maker to have regard to documents in documents in circumstances where s.5AAA puts the onus on the applicant to put forward his claims and evidence to establish the claims; and
h)it was entirely appropriate for the IAA to “lump” the TGTE Information and Sporting Separatism Information together because there was no express claim made that the Cricket Club is a vehicle for pro-separatist views.
In the post-hearing submissions, the Minister submitted further:
a)as can be seen from the references to the Policy Note in the applicant’s submissions to the delegate, the Policy Note was relied on in a limited way by the applicant. Significantly, no reference was made in the submissions to the delegate to the TGTE Information. Nor was any reference made to the paragraphs of the Policy Note now cited by the applicant;
b)whilst the IAA agreed that the Policy Note was discussed in the submissions to the delegate, the IAA found that the Policy Note itself made no mention that the TGTE was one of the eight proscribed groups. It only included a hyperlink to the relevant Gazette listing the proscribed groups. The evidence confirms that the IAA was correct when concluding that the Policy Note did not in itself make any mention of the fact that the TGTE was one of the eight proscribed groups. In fact, the TGTE is not referred to at all in the Policy Note. The Policy Note merely stated that there were eight organisations that were proscribed and provided a hyperlink to the Gazette recording those groups;
c)the applicant argues that, by virtue of the fact that the hyperlink to the Gazette is referred to in the Policy Note, the contents of the Gazette was also before the delegate when the decision was made. It is argued that the Gazette became an integral part of the Policy Note and was incorporated by reference. Page 2 of the Policy Note does not incorporate the contents of documents it cites;
d)in relation to [2.3.32], [6.3], [6.3.1] and page 68 of the Policy Note, the references there to the Gazette are within the context of a delegate checking whether a person is a member of a proscribed Tamil group, as listed in the Gazette. In particular, the reference at page 68 confirms the need to consult the official list of proscribed organisations “in claims raising membership of a proscribed organisation”. In the present case, there was no claim made that the applicant was a member of TGTE;
e)insofar as the applicant relies on the presumption of regularity, the use of the word “relevant” in s.55 of the Act is significant;
f)it would be contrary to the legislative scheme to find that particular specified information contained within a country information report that was not identified or cited by an applicant in submissions given to the delegate, and that was not otherwise directly relevant to the claims made by the applicant to the delegate, was “before the Minister” when the decision was made. This would be a remarkable finding and would put a burden on the Minister that is not supported by the legislation and is not reasonable;
g)this matter differs from CVV16 as here no claims had been made before the delegate that the applicant was a member of the TGTE. No claims were made that the applicant was at risk of harm due to a perceived association with TGTE (being a proscribed Tamil group). Finally, no reference was made to the relevant portions of the Policy Note concerning proscribed Tamil groups; and
h)this matter is indistinguishable from BHH18.
Consideration in relation to Ground 1
It is necessary to set out in some detail the evidence and materials before the Court in relation to this ground in order to understand the context within which the IAA’s decision was made.
In his submissions to the delegate (CB 123-156), the applicant referred to the Policy Note in the “substantive content” as follows:
PART B: The Applicant’s involvement with the Tamil diaspora community
…
38. In June 2017, the United Kingdom (UK) published its Country Policy and Information Note on Tamil Separatism in Sri Lanka (UK Country Policy Report) which discussed Sri Lankan asylum seekers fears of persecution or serious harm due to their actual or perceived political opinion based on support for or involvement with Tamil separatist groups. (footnote 51). While the UK Home Office did acknowledge in June 2017 that there have been changes in the security and political situation in Sri Lanka, they found that ‘the situation is not sufficiently different in principle to justify a departure from the Tribunal’s findings in GJ & Others.
…
PART C: Real risk of significant harm if involuntarily returned to Sri Lanka
…
Will the Applicant face a real risk of being detained if he is involuntarily returned to Sri Lanka?
…
61. This country information is supported by the UK Home Office in its June 2017 Country Policy and Information Note on Tamil Separatism in Sri Lanka (UK Country Policy Report) (Footnote 105). The UK Country Policy Report cites information from a UK Fact Finding Mission to Sri Lanka which reported that returning Tamils are subject to screening at the airport and arrest by law enforcement agencies (Footnote 106). That UK Fact Finding Mission found that: ‘it is a given fact that [Tamil returnees] will be questioned’ (Footnote 107).
62. DFAT’s advice and the UK Country Policy Report demonstrate that, if forced to return to Sri Lanka, the Applicant will be detained and interrogated. The Applicant fears that throughout this process, he will – at one stage or another – face:
a. a real chance of persecution; and / or
b. a real risk of significant harm (in the form of torture; cruel or inhuman treatment or punishment; and / or degrading treatment or punishment);
for reasons of his Tamil ethnicity; his imputed/actual pro-LTTE and pro-Tamil Eelam political opinions; and / or his imputed / actual anti-government opinions (as a result of his status as a failed asylum seeker, his activities in the Tamil diaspora in Australia and because he attempted to seek asylum in Australia).
63. The DFAT report and the UK Country Policy Report both confirm that the Applicant will not be able to evade the attention of the DIE, SIS, CID and SLP officials who meet involuntary returns on arrival at the airport, who would then (since he would be arriving on temporary travel documents) liaise with the police in Valvettithurai, Jaffna District. The suspicions of the police in the Applicant’s local area would therefore come to the attention of the officials interviewing him, exacerbating the real risk of harm he would face.
…
Will the Applicant face a real risk of torture, cruel, inhuman degrading treatment or punishment while detained for any amount of time in Sri Lanka
…
73. As recently as June 2017, the UK Home Office confirmed that the UK Upper Tribunal’s advice in this decision remains accurate:
In GJ & Others, the Upper Tribunal found that if a person is detained by the Sri Lankan security services there remains a real risk of ill treatment or harm requiring international protection (paragraph 356 (4)).
The available information does not provide grounds for departing from that finding. Decision makers must make an assessment of the likelihood of the person being detained on return based on the specific facts of the case and taking account of the factors outlined in the preceding sections. [emphasis added] (Footnote 120)
The written submission footnoted the Policy Note on five occasions (as noted above). Relevantly:
a)footnotes 51 and 105 referred to the Policy Note generally;
b)footnote 106 referred to [9.3.5] and [12.1.2] of the Policy Note;
c)footnote 107 referred to [9.3.5] of the Policy Note; and
d)footnote 120 referred to [2.3.40] of the Policy Note.
The applicant’s submission to the delegate also contained the following paragraph (CB 156):
This written submission contains information supporting the Applicant’s claims for protection including a number of sources of relevant country of origin information. The Applicant requests that the decision-maker take all of this information (including all websites / documents referenced in footnotes (and any subsequent footnotes or references contained within these footnoted websites / documents)) into account when making a decision on his application.
(Emphasis added)
The applicant’s submission to the IAA was as follows (CB 267):
8. The Delegate’s claim that the Tamil Eelam National Cricket Team would not be perceived as working for or supporting Tamil separatism is naïve in the extreme. At the very least, the Tamil Eelam Cricket Club’s Wikipedia page automatically links readers to the Wikipedia page for the Transnational Government of Tamil Eelam (TGTE) – one of the eight remaining organisations still proscribed under the Prevention of Terrorism Act by the current Sri Lankan government (under Gazette, No. 1941/44 – 20 November 2015 (Footnote 21)). The Gazette accuses the TGTE of Terrorism related activities and Financing Terrorism’. The very fact that the Tamil Eelam Cricket Club Wikipedia entry links readers to the TGTE entry demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement. The Applicant’s own political views are also aligned with Tamil separatism: annexed hereto and marked “A” is Tamil Eelam National Card issued in the Applicant’s name by the TGTE.
The footnote to this submission (footnote 21) states as follows (CB 267):
UK Home Office, Country Policy and Information Note Sri Lanka: Tamil separatism, March 2017, 8 < _v4_0__March_2017_.pdf> p 17. Note: this document was discussed in detail in the Applicant’s post-interview written submission dated 31 August 2017 and should not be considered ‘new information’.
Ultimately, the IAA found (at [5]) as follows:
In relation to the information about the TGTE, it is submitted it is not new information as the UK Home Office March 2017 report “Country Policy and Information Note Sri Lanka: Tamil separatism” was discussed in the post interview submission. I note the report itself makes no mention that TGTE is one of the eight proscribed groups and it only includes a hyperlink to the relevant Gazette. Neither the post interview submission mentioned that TGTE is one of the proscribed terrorist group. As such, I consider the information about TGTE is new information…
Turning to the Policy Note, the following references to the Gazette are provided:
…
2.3.32 Decision makers must consider whether the person is a member of a proscribed Tamil group, as listed in the amended Gazette, No. 1941/44 – 20 November 2015 (see Proscribed organisations).
…
6.3 Proscribed organisations
6.3.1 Eight organizations and 157 individuals remain proscribed, as listed on the amended Gazette, No. 1941/44 -20 November 2015.
In both of the above paragraphs, the word “Gazette” is hyperlinked.
The hyperlink then takes the reader to the actual Gazette which, relevantly, “designates” the TGTE as a terrorist group, as follows:
EN/CA/2013/05 Name: TRANSNATIONAL GOVERNMENT OF TAMIL EELAM a.k.a TGTE Listed on : 25 Feb 2014, Other Information: Terrorism related activities and Financing Terrorism.
The Gazette
In context, the Court needs to determine whether the Gazette (which is the source of the TGTE Information) was “before the Minister”.
The applicant argues that the “presumption of regularity” operates such that the Minister must prove that the Gazette was not before the delegate. He contends that that arises because of s.55 of the Act, which provides:
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
The applicant further argues that the Gazette was “incorporated” into the Policy Note. It is said that, as the applicant had “shown” the delegate the Policy Note and as the Gazette was incorporated into it, then the Gazette was “before the Minister”.
The Court disagrees.
The Court notes that it considered a similar argument in BHH18. In that matter the applicant argued (having advanced similar submissions to the delegate in that matter as were advanced here) that the Gazette was “before the delegate”. Specifically, in BHH18 the applicant argued that the “footnote” or hyperlink reference in the Policy Note (which was footnoted in the applicant’s submissions to the delegate) was “before the delegate” and, as such, not new information.
In BHH18, the Court found that the Gazette was not before the delegate and was, therefore, “new information”.
In relation to the applicant’s argument that the presumption of regularity is invoked and that the Gazette was otherwise incorporated into the Policy Note, the Court notes the remarks of Justice White in BHL19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 94 (“BHL19”).
In BHL19, Justice White considered whether a statement in submissions to the Minister that “we continue to rely on all evidence and submissions previously provided by or on behalf of our client” amounted to “giving” information for the purposes of s.55 or was “incorporation by reference”.
Without expressing a conclusion, Justice White stated:
7.The appellant’s submission gives rise to two principal issues. The first is whether information is “given” under s 55 if an applicant, instead of providing the information to the Minister, simply refers the Minister to information which may otherwise be available to the Minister.
8.The second is whether, even if so, a statement expressed in the general terms used by the appellant’s migration agents were sufficient as an incorporation by reference of the letter of 8 July 2015.
9.As to the first of these matters, there are some textual and contextual matters in ss 54‑58 of the Act that the information relied on is to be given to the Minister and not just be the subject of a reference.
10.The first is that ss 54‑58 use the word “give” and not a term such as “referred to”. A natural meaning of the word “give” is to deliver, bestow or hand over – see the first meaning of the word in the Macquarie Dictionary. None of the other meanings of the term “give” in the Macquarie Dictionary give it, as a freestanding term, the meaning of “provide a reference to”.
11.The second is that it is natural to understand that, having imposed an obligation on the Minister to have regard to certain information, ss 54‑58 intend that there be some certainty as to the matters which are the subject of the obligation. Certainty of that kind is lacking if it is sufficient for an applicant simply to incorporate other documents by a generally expressed reference of the kind used by the appellant’s migration agents.
12.Related to that consideration is that the structure of ss 54‑58 suggests that the information to which the Minister is required to have regard be of a reasonably readily identifiable kind. That is self‑evidently so in the case of s 54(2)(a) and (b). Moreover, s 56(2) contemplates that the Minister may give an invitation to an applicant to give additional information “in a specified way” which, by s 58(1), may be in writing, at an interview or by telephone. That too seems to connote an actual provision of information in a manner which is readily identifiable.
The Court accepts that Justice White above has indicated that he did not express a “conclusion” per se on the matters relevant to the matter before him as the facts in that case were such that he did not need to do so. The Court also accepts that in BHL19 the reference to “all evidence and submissions” was a reference to information provided in other visa applications (which is not the case here).
Nonetheless, Justice White’s analysis is instructive. Importantly, His Honour’s assessment of s.55 is directed to the breadth of that provision and his observations in that regard are apt to the circumstances of this case.
While His Honour expressed no concluded view in BHL19, the analysis provided is nonetheless persuasive and ought to be followed.
Here, the applicant made a “request” that the delegate take footnotes and subsequent references and footnotes into account. A “request” does not amount to “giving” information as per s.55. At its highest, the applicant has “referred” the Minister to information that might otherwise be available: BHL19 at [10].
The applicant here has referred the Court to the decision in Gajjar v Minister for Immigration & Citizenship [2013] HCA 13 (“Gajjar”). In Gajjar, the applicant provided a reference number for test results (as opposed to the physical results themselves). It was found that providing the reference number (which could give access to the documents) was enough to find that the applicant had “provided” (or “given”) the results to the Department.
Gajjar is not inconsistent with BHL19. The reference number in Gajjar then linked to specific, or as stated in BHL19 “readily identifiable”, information. Here, the applicant made a generally expressed reference that there is “supporting information” in the footnotes and the footnotes to the footnotes. Certainty is required. In Gajjar, there was certainty. Here, the references made to the Policy Note in the submissions do not even reference the paragraphs specific to the Gazette.
Insofar as the applicant relies on CVV16, that case is not helpful.The “showing” of a photograph differs from the mere reference to something by way of a footnote in a submission.
Further, in DTK17, the Full Court held that the phrase “before the Minister” meant “physically” before the Minister and not documents that the Minister may have constructive knowledge of. In DTK17, the applicant argued that an Issues Paper prepared by the Minister’s Department was “before” the Minister and not new information.
The Court does not accept that information incorporated by reference is information that is “physically” before the Minister. To accept the argument advanced by the applicant would mean that any information referred to by the applicant and which might contain other references (which may or may not be related to the case at hand or the issues at hand) would be “before the Minister”. Were that the case, the delegate’s investigative task would be never ending.
While the applicant submits that the “policy reasons” advanced by the Minister are misplaced, the Court does not agree. “Policy reasons” are quite relevant when determining what is or is not required of a decision maker. As noted in DTK17 at [37]:
…The appellant’s construction of “before the Minister” could have the effect that any document published on the internet by the Department on a matter entirely unrelated to the case at hand could be regarded as being “before” the decision-maker. This is not a result which Parliament should be taken to have intended.
The applicant’s submission here extends beyond what was advanced in DTK17. It extends to any document referred to in any material provided by an applicant with unlimited regard to the source of that information, the relevance of that information or the extent of that information. Were this accepted, it would impose an unacceptable burden on the delegate. This is a burden that could never have been intended by Parliament, particularly within the context of a “fast track regime” of the sort seen here.
To provide a practical example, here:
a)the submissions to the delegate contained 188 footnotes. The Court estimates that approximately 40 individual sources (of country information) are cited and links provided to that information. The Court does not have all of those materials in evidence;
b)the Court does have the Policy Note which was one citation in the applicant’s submissions. The Policy Note (which itself is 72 pages) has 167 footnotes. There are, at least, 35 further sources cited in these footnotes. Again, the Court does not have all of these citations before it; and
c)the Court has the Gazette before it, which is one of the footnotes to the Policy Note. The Gazette is 17 pages long.
As can be seen, if accepted, one footnote has the ability to put a further 35 pieces of information “before” the decision-maker.
To suggest that information “before the Minister” goes so far as to include information incorporated by reference is to suggest that legislative intention be ignored or “re-written”. In effect, this argument allows an applicant to “bury” a delegate in information and protract the visa process both before the delegate and the relevant review body (here the IAA). It would also allow an applicant to suggest, on judicial review, that a matter arising from the materials was “not considered” even though that claim or piece of information was not expressly articulated or adverted to with any precision (which is what s.5AAA requires). That possibility is impermissible within the context of the current legislative regime.
The TGTE Information was not before the delegate. It was “new information”. The IAA was correct to find so.
No error arises in this regard.
The Sporting Separatism Information
In effect, the applicant says that the IAA “combined” the TGTE Information and the Sporting Separatism Information and this “was an error” because they are “distinct”.
The Sporting Separatism Information was as follows:
The very fact that the Tamil Eelam Cricket Club Wikipedia entry links readers to the TGTE entry demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement.
The Court agrees with the applicant’s submission that this was not “new information”. The Sporting Separatism Information directed the IAA to the presence of the link to the TGTE Wikipedia page on the Cricket Club’s Wikipedia page. The presence of the link on the Cricket Club’s Wikipedia Page was before the delegate (as a screenshot of the Cricket Club’s Wikipedia page made plainly visible that there was a link to the TGTE Wikipedia Page).
Hence, the “very fact” of the link was not new information. It was plainly visible to the delegate.
The Court also accepts that the “symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement” was not new information. It was akin to a submission directed to an existing pool of factual information or a new argument responsive to the delegate’s decision which drew on information that was already before the delegate: DPH17 v Minister for Immigration & Anor [2019] FCCA 2258 at [46].
At the forefront of the applicant’s claims throughout the visa application was an assertion that the Cricket Club’s online presence demonstrated that it was associated with or aligned to the Tamil Eelam separatist movement. The “gist” of the applicant’s claims and submissions in relation to the Cricket Club was that it was associated or aligned to the Tamil separatist movement and organisations at the “forefront of separatist politics”. The Sporting Separatism Information was simply highlighting, or providing a further example of, this fact.
The IAA erred in finding this to be new information.
However, an error is only jurisdictional if it is material in the sense that it had a realistic possibility of depriving the applicant of a successful outcome: Minister for Immigration & Border Protection v SZMTA [2019] HCA 3. The onus is on the applicant to prove that an error is material.
In this matter, the Court sought further written submissions on the issue of materiality.
The applicant, correctly, submitted that the Sporting Separatist Information was distinct from the TGTE Information. The Court accepts that this is the case.
However, a critical aspect of the Sporting Separatist Information was the “very fact of the link”.
The IAA (at [36]) states that it gave:
…little weight to the link to the “Transnational Government of Tamil Eelam” of the Wikipedia article about ‘Tamil Eelam national cricket team’, as any user could have added that link.
Here, although the IAA’s finding that the “very fact that the Tamil Eelam Cricket Club Wikipedia entry links readers to the TGTE entry demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement” was “new information” was an error, the error is not material. This is so because the IAA gave little weight to the link as constituting evidence of something that imputed the Cricket Club with a pro-LTTE opinion.
On the basis of the above, ground 1 is dismissed.
Ground 2
Ground 2 of the application for judicial review dated 20 January 2020 provides:
The IAA erred in imposing an evidentiary test not supported by the Act, and/or failing to consider the evidence that was central to the claim that membership of the Tamil Eelam Cricket Club presented a real risk of harm by reason of being imputed with a political opinion.
Particulars
a. The IAA imposed an unsupported evidentiary test when it regarded as decisive (at [36] of its reasons) the Applicant not having ‘provided any credible report indicating that the Sri Lankan authorities … view the Perth based Tamil Eelam Cricket Club/team as being linked to Tamil separatism’.
b. The evidence that was not requisitely considered was Annexures U-W, Z-ZF and ZI to the August Written Submission.
The Applicant’s Submissions in relation to Ground 2
The applicant argues that the central issue in relation to ground 2 is whether the IAA properly considered all of the information presented by the applicant in support of his claim that his association with the Cricket Club created a real risk of being imputed with a separatist political opinion. It is contended that there were many pieces of information before the IAA that went to this contention and all were centrally relevant to the claim; however, the IAA’s reasons reflect a failure to engage with the information.
The principal reason the IAA rejected the claim that the applicant would be imputed with a separatist political opinion was that the applicant had not “provided any credible report indicating that the Sri Lankan authorities … view the [Club] as being linked to Tamil separatism” (at [36]). The applicant says that this conclusion reveals that the IAA either erred by imposing an evidentiary test not supported by the Act or by failing to consider all of the evidence put forward by the applicant – evidence, it is argued, that did reveal that there was a real chance that the authorities would impute the applicant with separatist views.
The applicant argues that it provided the following materials to the IAA that, the applicant says, tended to show a real chance of authorities imputing him with separatist views:
a)evidence about the census controversy (in which people were listing Tamil Eelam as their country of citizenship or birth);
b)articles and commentary about the Cricket Club which objectively show a real chance that the applicant, as a member of the Cricket Club, might be imputed with separatist views; and
c)a political advertisement (apparently associated with the Sirisena administration) in which the Cricket Club is referred to as “terrorists”.
In relation to “the census controversy”, the applicant submits:
a)the IAA’s reference to the census controversy at [36] is a perfunctory and inadequate consideration of the whole of the evidence put forward by the applicant in relation to that issue;
b)while the IAA said that it had “considered the controversy”, the IAA did not specifically identify what evidence it had “considered”;
c)when the IAA said it had “considered” the controversy, the IAA was presumably referring to a Sunday Times article annexed to the submissions of the delegate. The applicant accepts that the article itself did not refer to the Cricket Club. However, the article was submitted by the applicant, along with screenshots of pages from a Facebook group for the Cricket Club’s fans that included:
i)a message from the “Government of Tamil Eelam” encouraging the Tamil diaspora to register their displeasure at the Australian Bureau of Statistic’s removal of “Tamil Eelam” from the census (Annexure U of the submissions to the delegate);
ii)another message from the “Government of Tamil Eelam” promoting an SBS story entitled “Non-Tamil Australian voices her dismay at the Australian Bureau of Statistics for removing Tamil Eelam”(Annexure V of the submissions to the delegate);
iii)a post that encourages people to respond to question 12 of the census (asking about country of birth) by writing “Tamil Eelam” (Annexure W of the submissions to the delegate);
d)the context provided by these three screenshots (which show overtly political messages being conveyed by the Cricket Club’s fans) cannot be divorced from the article. When all of these documents are read together, as the submissions to the IAA intended them to be, it is clear that the applicant presented evidence of people connected to the Cricket Club who were re-posting messages connected to what Sri Lankan authorities labelled as a “stunt” connected to “pro-LTTE lobbyists” (and purportedly directly conveyed by the “Government of Tamil Eelam”); and
e)these facts were conveyed by the applicant as facts that should be taken together. They provided a sufficient connection to give rise to a “real chance” of harm.
In relation to the news articles and commentary, the applicant submitted before this Court that it might well be that that the founder of the Cricket Club himself did not want the Cricket Club to be an outlet for political activity. However (it was submitted), in the context of the applicant’s protection claim (being one of fear of an imputed opinion) that is beside the point. This is so because there was evidence before the IAA that the Cricket Club had actually been perceived by others as advancing a separatist agenda (even if this was contrary to the founder’s desire and even despite the Cricket Club’s actual activities). The applicant contends that a large number of articles (Annexures Z-ZF of the submissions to the delegate) reflected that the Cricket Club had an imputed profile.
The applicant further contends that the IAA’s reasons do not refer to the political video (Annexure ZI) that was provided in the submissions to the delegate. This (it is argued) was arguably the most direct evidence revealing the Sri Lankan Government’s apparent attitude towards the Cricket Club and no reference was made to suggest it was even considered.
In relation to the argument that the IAA failed to consider the evidence or claims appropriately, the applicant also submitted:
a)it was wrong for the IAA to conclude that, because there was no “credible report indicating that the Sri Lankan authorities … view the [Club] as being linked to Tamil separatism”, the applicant would not be imputed with pro-separatist political opinion. There were other pieces of evidence that could have satisfied the IAA in relation to this issue;
b)alternatively, the evidence put forward by the applicant was, at the very least, “cumulatively central to and supportive of” the applicant’s claims and the absence of any reference to that evidence by the IAA indicates that the IAA concluded that the “omitted evidence” was not material. Prima facie, the nature of the evidence that was ignored was material;
c)the IAA’s reasoning that there was no “credible report” linking the Cricket Club to Tamil separatism shows that the IAA “did not appreciate the context supplied by critical pieces of evidence”;
d)the distinction between the non-political objectives of the Cricket Club’s founder, and the fact that the term “Tamil Eelam” is nevertheless perceived by others as politically loaded, was directly set out in the written submissions to the delegate. It is the very essence of a claim for imputed opinion “as distinct from actual opinion”. The imputed opinion does not need to be actually held by the person in order for him or her to be a refugee. However, the IAA’s reasoning at [34]-[36] misses the point. While it is correct that the IAA (at [38]) did “state its rejection of the claim in terms of perception of opinion”, that paragraph is conclusory. The apparent failure to properly understand the claim supports the inference that the evidence was not considered;
e)the IAA’s reasons at [35] characterised the proposition that the Cricket Club was continuing its tradition of promoting international recognition of the Tamil people’s aims of obtaining a separate homeland and that it was the national team for a minority ethnicity in Sri Lanka as “the applicant lawyer’s assertion”. This was not an “assertion”. The proposition closely reflected the actual language found in two of the articles submitted as evidence. The IAA’s “mischaracterisation” of the submission as a mere “assertion by the lawyers” strengthens the inference that the IAA did not consider the supporting evidence in the articles; and
f)the IAA never made a finding “one way or the other” on the matters that were advanced.
The applicant submits that all of these reasons demonstrate that the IAA erred in “treating as decisive” the absence of a self-contained “credible report” which indicated that the authorities link the Cricket Club to separatism. These reasons, it is advanced, “comfortably support the inference” that the IAA did not “‘consider’, in the requisite sense”, the substantial evidence that supported the applicant’s claimed fear based on his imputed opinion.
At hearing, Mr Guo of Counsel further submitted:
a)the IAA imposed an evidentiary test not supported by the Act as it regarded as decisive the fact that there was no report which said that the Sri Lankan Government considered the Cricket Club itself to be associated with a separatist opinion;
b)the annexures in the submission cannot be divorced from the critical context of the Sunday Times articles. The IAA ignores the context and its reasoning proceeds on two false premises;
c)it is not to the point that none of the annexures assert any connection between the Cricket Club and the TGTE. The context of Annexure X at least makes the evidence capable of proving the existence of a real risk. Whether or not the IAA accepted this is another matter but the evidence is at least capable of supporting this. When the IAA treats “as conclusive the absence of any self-contained report”, this disables the IAA from recognising that there is evidence which was before the delegate that is capable of proving the existence of a real risk;
d)the proximity of the Cricket Club’s fan pages to the Cricket Club itself makes it self-evident there is a real risk of an imputed political opinion. The fact that the fan pages share articles from the page of the Government of Tamil Eelam is capable of proving a real risk of imputed political opinion; and
e)the “political ad” is not mentioned by the IAA. This was a critical aspect of the evidentiary matrix provided by the applicant. If the IAA does not refer to it, it can be concluded it was not considered. A generalised reference is not enough.
The Minister’s Submissions in relation to Ground 2
In relation to the assertion that the IAA impose and evidentiary burden not supported by the Act, the Minister submitted that, given that the “satisfaction of the decision maker” is a condition precedent to the grant or refusal of a visa application, it is for an applicant to put material before the decision maker that helps the decision maker reach the requisite state of satisfaction. If the decision maker cannot be satisfied on the basis of the material presented that an applicant’s claims are genuine, it does not have any duty to make further inquiries. No jurisdictional error arises in the circumstances of this case as the IAA did not impose an evidentiary burden that was not supported by the Act.
In relation to the assertion that the IAA did not consider the evidence or claims appropriately, the Minister also submitted:
a)none of the annexures the applicant refers to assert any connection between the Cricket Club and the TGTE. Further, whilst some of the articles concerning the Cricket Club make some reference to the oppression of Tamils, there is no evidence that these articles are authored by members of the Cricket Club. Where a member of the team is quoted, they are not quoted as expressing separatist ideals;
b)two of the articles speak positively of a cricket match that occurred between the Cricket Club and a team of Sri Lankan Sinhalese youth. Significantly, the article at annexure ZC describes the Cricket Club as providing “a positive meeting ground for people to come together as Tamils, without political baggage” (CB 201). Similar sentiments are expressed in another article;
c)in the circumstances, the IAA’s finding that there were no credible reports indicating that the Sri Lankan authorities viewed the Cricket Club as being linked to Tamil separatism was clearly open to it on the material before it;
d)it is a matter of common knowledge (that this Court can take judicial notice of) that Wikipedia entries can be edited by anybody. This means that they are not necessarily a credible or reliable source of information. This was a matter that the IAA was aware of and which was significant in its decision to give little weight to the Wikipedia printout;
e)an inference that an issue or evidence has been overlooked should not be too readily drawn where the reasons are otherwise comprehensive and the issue has at least been identified; and
f)the IAA “engage[d] in an active intellectual process directed at that claim or criteria” the applicant claims that the IAA failed to consider.
At hearing, Ms Oliver of Counsel for the Minister submitted further:
a)the IAA reviewed the material and engaged in a very detailed discussion [31]-[38] about whether or not there were any materials that suggested any separatist activities or associations in relation to the Cricket Club. It made a finding (that was open to it) that the Sri Lankan authorities had not, in the past, linked the Cricket Club or any of its founding players to the LTTE or to Tamil separatism or that the Sri Lankan authorities currently consider the Cricket Club or its players to be promoting the LTTE or Tamil separatism;
b)the IAA dealt with the claim as put to it and did not pose any evidentiary burden on the applicant. It was simply not satisfied that there was any evidence before it that supported the claim;
c)the IAA was clearly aware of the claim that the applicant was at risk of harm from an imputed political opinion as a result of his association with the Cricket Club and it dealt with that claim;
d)contrary to the inference that documents were overlooked, the IAA specifically referred to the large amounts of material provided. A review of the annexures identified by the applicant as being overlooked do not assert any connections between the Cricket Club and the TGTE; and
e)when regard is had to the evidence in this case, it is clear that the IAA identified the issues that it needed to determine. It considered them and it made findings that were open to it on the evidence. The IAA explains its reasoning and it deals with all of the assertions put to it. In these circumstances, jurisdictional error does not arise and the applicant is simply challenging factual findings.
In post-hearing submissions, the Minister further submitted:
a)the evidence that the applicant claims the IAA failed to consider was not evidence that did, in fact, establish any connection between the Cricket Club and any pro-separatist agenda. In those circumstances, the evidence did not support the applicant’s argument that membership of the Cricket Club presented a real risk of harm by reason of being imputed with a pro-separatism political opinion;
b)in this case, the IAA rejected the applicant’s claims of links to the LTTE. The IAA:
i)found that the applicant had fabricated his story of training with the LTTE and his claim that his friends’ deaths or disappearances were due to him;
ii)had serious doubts that the applicant was involved in organising his school’s rally and, whilst it was prepared to accept that he had some involvement in his capacity as a prefect, did not accept that the applicant was questioned by the Sri Lankan Army in 2005 regarding the rally;
iii)did not accept that the applicant was of any particular interest to the Sri Lankan Army or Criminal Investigation Department when he left Sir Lanka in 2008;
iv)did not accept that the applicant had been perceived by the Sri Lankan authorities as someone who was against the government or promoting the LTTE or post-conflict separatism;
v)had serious concerns about the late claims as to the applicant’s engagement in political activities in Australia and did not accept any of the applicant’s claimed participation in political activities in Australia (aside from one staged protest in January 2017); and
vi)found that the applicant was not a credible witness and had demonstrated a tendency to create and introduce new claims to build himself a profile; and
c)given the IAA’s findings that the applicant was not a person of interest to Sri Lankan authorities prior to his departure, and given the rejection of his claims to have had LTTE links, there is no basis for the Court to conclude that, had the IAA considered the evidence the applicant claims it did not consider, there would realistically have been a different outcome in the matter.
Consideration in relation to Ground 2
The issues relevant to this ground of review arise from what is said by the IAA at [33]-[38] in its decision, as follows:
33. The applicant submits that his membership of the cricket club would impute him with an association with the LTTE and post-conflict Tamil separatism. The post interview submissions include a large number of Facebook page screenshots. For example, some are from the Tamil Eelam Cricket Club’s Facebook page, showing some users made comments about politics and the tigers/being proud to be Tamil/Tamil Eelam/need for a separate Tamil state and with one user using LTTE uniformed person as a profile picture and a user named ‘TamilsRevolt’. Some are from the TamilsRevolt and Tamils Eelam CricFans’ Facebook pages, which has links to a Wikipedia article about the cricket club, the Government of Tamil Eelam’ Facebook page and articles that appears to promoting Tamil separatism. Also provided are screen shots of search results of Tamil Eelam/Tamil Eelam Cricket showing images linked to the LTTE/separatism, where one link to a Facebook user named ‘Free Tamil Eelam’ promoting the club’s fundraising page.
34. However, the letter from the founder of the club [Mr P] is clear that the club/team was formed to provide a positive and healthy activity for Tamil asylum seekers and other Tamils in the Perth community. He states that the name Tamil Eelam was chosen with the aim of normalising this phase for the Tamil homeland and hopes that it will come to associated with the geographical location it refers to rather than the politicised concept which rose to prominence during the Sri Lankan Civil War. The letter acknowledges the club’s media and social media exposure and its popularity. It also states that their moderators have had to remove abusive comments from people who associate the name Tamil Eelam with the LTTE and Tamil separatism generally. The other articles provided also indicate that the founders’ intention of the club is consistent with what was stated in the letter, for example another co-founder [Mr N] also expressed that the use of the term Tamil Eelam hoping to normalise it as a geographic location and remove its connotations to the Tamil Tigers.
35. Based on the materials provided, I accept there has been some media coverage about the club and its founders and players. I accept the team and its player have gained popularity through social media Facebook. I accept the use of Tamil Eelam as part of its name is perceived by some, in particular, social media user and bloggers as controversial and there are people who might have used the cricket club/team to promote Tamil separatism using social media platforms. However, I consider it is clear that the club itself or its founders do not have a pro Tamil separatism agenda and do not promote themselves as such, neither is there any indication that players playing for the club with a view of promoting post conflict Tamil separatism. The reported games played against players made from Sinhalese background further indicate neither the club itself nor the Sinhalese team/players/club views the Tamil Eelam cricket club as a group that supports Tamil Separatism. I do not accept the applicant lawyer’s assertion in the post interview submissions that the Tamil Eelam Cricket Club continues its tradition of promoting international recognition and visibility for the Tamil people’s aims of obtaining a separate Tamil homeland or the club asserts that it is the national team for a minority ethnicity in Sri Lanka.
36. The applicant’s lawyer in the post interview submission also seek to rely on the dictionary definition of ‘Eelam’, academic papers, discussion forum like Quora, search result entries of ‘Tamil Eelam’, the use of ‘Eelam’ as part of the names of some groups fighting for Tamil independence including TGTE and examples of Palestinian diaspora football club in Chile, the Kurdish football club in Sweden, the West Papuan Warrior Rugby Team and the Tibet National Football Team and argues that sports are being used as a means of expressing nationalist sentiment among the diasporas of ethnic groups who do not possess a sovereign state. I have also considered the controversy surrounding the proposed Australian census question in 2016 of including “Tamil Eelam’ as an optional answer to the question ‘country of birth’ and the reported influence from the Sri Lankan High Commissioner in Australia for its removal from the census. However, despite the media/social media coverages of the cricket club and its team and despite the club has been in existence since 2005, noting the large amount of materials provided, the applicant has not provided any credible report indicating that the Sri Lankan authorities (including the Sri Lankan High Commissioner in Australia) view the Perth based Tamil Eelam Cricket Club/team as being linked to Tamil separatism. I give little weight to the link to the “Transnational Government of Tamil Eelam” of the Wikipedia article about ‘Tamil Eelam national cricket team’, as any user could have added that link.
37. I note that the letter from [Mr P] also states that they have been extremely concerned to learn that families of some of their players whose name or image appear on their Facebook page have experienced harassment from the Sri Lanka authorities in Sri Lanka because of their membership of the club and they are gravely concerned about the possibility that team members could face harm if they were to return to Sri Lanka because of their involvement with the club. However, no further details were provided as to circumstances of the harassment and how he became aware of it. I give no weight to this letter as evidence that his team members’ families were harassed or the applicant’s family was visited by the Sri Lanka authorities in 2015 and his brother was beaten because of his involvement with the Tamil Eelam Cricket Club.
38. I do not accept that the Sri Lankan authorities has in the past linked the club or its founders/players to LTTE or Tamil separatism or it currently considers the club or its players to be promoting LTTE or Tamil separatism. I do not accept the applicant has been perceived by the Sri Lankan authorities as someone who is against the Sri Lankan government or promoting LTTE or post conflict Tamil separatism through his association with the Tamil Eelam Cricket Club. I do not accept that his family was visited. I do not accept that the applicant has drawn any adverse interest from the Sri Lanka authorities due to his involvement with the club.
To the extent that the applicant’s written submissions and oral submissions “suggest” that the IAA misunderstood the applicant’s claims (at [67]), the Court notes that the ground of review before the Court does not contend that a misunderstanding of the claim led to a “failure to consider” it: as per NABE v Minister for Immigration(No 2) (2004) 144 FCR 1 at [63]. Nor was that line of argument pursued before this Court. It is not enough to “suggest” a new ground of review. This leaves the Court in the difficult position of having to speculate about what is or is not being advances.
In any event, the Court does not consider the IAA to have misunderstood the applicant’s claims. The IAA makes explicit reference to the claim relating to “imputation” at [33]. In the paragraphs that follow, it is clear that the IAA clearly understood that it was addressing “perception” or “imputations”. It acknowledged the “views” of the Sinhalese team about the Cricket Club, the fact that some bloggers consider the use of the name to be “controversial” and the evidence that that there was nothing to suggest that the Sri Lankan authorities perceived the Cricket Club to be “associated” with separatism. When read as a whole, the IAA’s reasons demonstrate that the IAA clearly understood the claim to relate to one of “imputed opinion” – as opposed to an “actual opinion”.
Returning to the ground as pleaded, the applicant first suggests that the IAA imposed an impermissible evidentiary onus (i.e., that the IAA would not accept the claim unless the applicant provided a “credible report” that indicated that the Sri Lankan authorities view the Cricket Club as being linked to Tamil separatism).
The Court disagrees.
Contrary to the applicant’s submission, the fact that the applicant did not provide any “credible report” that the Cricket Club was linked to Tamil separatism was not decisive. It is clear from reading [33]-[38] as a whole that the IAA considered a number of evidentiary sources offered by the applicant in support of his claim.
The IAA was not convinced the applicant’s evidence had established that the Cricket Club would be imputed with or linked to Tamil separatism because (at [31]-[38]):
a)on the materials provided, it was clear to the IAA that the Cricket Club, its founders and its players do not have a pro-Tamil separatism agenda and do not promote themselves as supporting post-conflict Tamil separatism. While it is accepted that an imputed opinion does not actually have to be held by the person (or the Cricket Club), the fact that the IAA says that the founder and players do not promote themselves is significant. Further, the IAA observed that the Cricket Club had been depicted in the media and the articles as distancing itself from Tamil separatism and the Cricket Club had consciously removed links to Tamil separatism when they arose. Hence, when the IAA says that it is “clear” that the “club itself or its founders do not have a pro Tamil separatism agenda and do not promote themselves as such”, what the IAA is saying is that it is “clear” to the outside observer that the Cricket Club does not hold any pro-Tamil separatist views and that it is not imputed as holding those views;
b)the reference in the materials to a game against players of a Sinhalese background further indicated the Sinhalese team/players/club do not view the Cricket Club as a group that supports Tamil separatism. Relevantly, another cultural group (which is regarded as being in conflict with Tamils generally) did not view the Cricket Club as being pro-Tamil separatists. The media coverage of this game made it clear that the Cricket Club did not advocate Tamil separatism;
c)despite the fact that the Cricket Club had been in existence since 2005, there was no credible report of the Cricket Club ever being linked to Tamil separatism. There was nothing before the IAA to suggest that the Cricket Club had ever been identified as supporting Tamil separatism (notwithstanding that it had been active for more than 10 years);
d)the association between the TGTE and the Cricket Club on Wikipedia was of limited weight as any user could have added the hyperlink; and
e)no weight could be given to the letter provided by the Cricket Club’s founder that families of players had been harassed as no further details were provided as to the circumstances surrounding the alleged harassment.
Had the IAA considered the “lack of credible reports” to be the decisive factor, it would not have gone into the detail it went into when assessing the other materials before it.
It is for the applicant to advance the evidence in support of their claims: Abebe v Commonwealth (1999) 197 CLR 510. Here, the IAA considered the evidence the applicant had provided but was not satisfied that it established that his involvement with the Cricket Club would lead to an imputed opinion.
It cannot be said here that the IAA imposed an unreasonable or legally unsound evidentiary onus on the applicant. The evidence and materials the applicant advanced were simply not sufficient for the IAA to be satisfied that the Cricket Club, and the applicant’s membership of such, would impute him with a Tamil separatist opinion or bring him to the attention of the authorities.
The applicant also claims that the IAA did not have regard to all of the evidence that was provided. In effect, it is argued that the IAA did not properly, actively and intellectually engage with the evidence.
In Singh v Minister for Home Affairs [2019] FCAFC 3 at [36]-[37] (“Singh”), the Full Court states:
36.The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
37. In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c) a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
These comments affirm what was stated at [52] and [62] of Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114.
Context matters here. The applicant’s submissions to the delegate (dated 31 August 2017, 12 September 2017 and 5 October 2017) contain approximately 40 “Annexures”. All of them relate to the applicant’s involvement in the Cricket Club and his claim relevant to that issue.
The Court accepts that the IAA did not refer to each annexure. However, the Court does not accept that the IAA has not, legally, engaged with the evidence.
The IAA’s reasons are detailed and comprehensive. The IAA does not make a broad, generalised statement that it had had regard to the materials provided by the applicant. Rather, the IAA analyses particular annexures and explains how those annexures form part of its determination of whether the applicant, by virtue of his involvement with the Cricket Club, would be imputed with an association to the LTTE and Tamil separatism.
It is accepted that the IAA is not required to refer to every piece of evidence – only those that are material to the findings made. Here, the IAA has done just that.
The Court does not accept that the materials the applicant says “were not engaged with” were so material to the applicant’s claim that it would be expected that the IAA would explain why it accepted or rejected them. As emphasised in Singh, the materials must be considered in the context of how the materials were presented, what was before the IAA and the IAA’s reasons as a whole.
In relation to Annexures U, V and W, the Court is satisfied that the IAA considered these materials in “context” and as a whole. The materials were submitted to demonstrate that “the applicant’s name and cricket club membership have been associated with posts of the ‘Government of Tamil Eelam’ Facebook page, in particular the group’s campaign to have ‘Tamil Eelam’ listed as a country on the Australian census”.
Paragraph 36 of the IAA’s decision demonstrates that the IAA did consider the materials and considered them within the relevant context. The IAA specifically states that the “media and social media coverage” of the Cricket Club has not been shown to have come to the attention of the Sri Lankan authorities including the Sri Lankan High Commissioner. This acknowledges the connection between the social media posts and the census controversy (which was depicted in Annexures U, V and W) and goes towards a finding that it did not demonstrate an imputed political opinion.
In relation to Annexures Z-ZI, the applicant’s submission to the delegate in relation to these annexures was to the effect that they showed that the Cricket Club had received “attention both online and in the printed press in Sri Lanka and internationally.” Hence, in context, they were presented to address the visibility of the Cricket Club – not to address whether any imputations arose from the materials. The IAA accepted that there had been media coverage about the Cricket Club and the players. In context, the IAA clearly “considered the evidence”.
In any event, the applicant largely relies on a paragraph (or single line) in the annexures to suggest that the IAA has not engaged with the evidence. When one considers the articles as a whole, and in light of the other materials, it is apparent that the Cricket Club was not conveyed in the media (or those articles) as promoting Tamil separatism. Rather, the articles seek to distance the Cricket Club from any political or separatist ideology.
In relation to the political ad (which was attached as Annexure ZI), again, contextually, this was presented to show that the Cricket Club had received “attention both online and in the printed press in Sri Lanka and internationally.” Further, the explanation provided in the applicant’s submission to the delegate regarding the political advertisement was, as follows:
ZI” is a screen shot of a video shared on Vimeo under the title ‘Tamil Eelam Terrorist Cricket Team – World First Terror Cricket Team’, which shows the Applicant in a Tamil Eelam Cricket Club uniform and advertises a Facebook page with the tagline ‘a brighter future’ – whilst the link itself is no longer current, the tagline ‘A Brighter Future’ is still used by the United People’s Freedom Alliance (UPFA), the party of the current Sri Lankan President, Maithripala Sirisena (President Sirisena)
The applicant hardly placed emphasis on the “terrorist” reference. Furthermore, there is nothing in this video to suggest that the Sri Lankan authorities viewed the Cricket Club as “terrorists”. The fact that the IAA did not expressly refer to Annexure ZI is not significant.
In context, and in circumstances where the applicant provided a large volume of material and the IAA’s reasons are detailed, it cannot be said here that central evidence was overlooked. In light of all of the materials that were before the IAA and the context in which they were presented in support of the applicant’s claims, it cannot be said that the IAA did not properly engage with the evidence to determine whether the applicant would be imputed with a Tamil separatist ideology as a result of his involvement with the Cricket Club.
While the materials left it open for the IAA to have found otherwise (i.e., that the Cricket Club did have an imputed pro-separatist opinion), it was also open to the IAA to find that it did not have an imputed pro-separatist opinion. While the applicant (and, indeed, this Court) might disagree with the conclusions reached, that is not the relevant test on judicial review. Here, the IAA’s reasons are sound and flow logically from the materials before it. No error arises in this regard.
Ground 2 is, accordingly, dismissed.
Conclusion
The Court is satisfied that the IAA has not erred as pleaded in the applicant’s grounds of review.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 10 September 2020
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