DUO17 v Minister for Immigration

[2019] FCCA 2746

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUO17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2746

Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – whether a statutory declaration contained new information – whether it consisted principally of submissions – whether the Authority erred in its consideration of whether new information could be taken into account – whether the Authority failed to consider certain claims made by the applicant.

Legislation:
Migration Act 1958, s.473DD

Cases cited:
AQU17 v Minister for Immigration and Border Protection & Anor (2018) 162 ALD 442; [2018] FCAFC 111

Applicant: DUO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File number: MLG 1842 of 2017

Judgment of: Judge Riley

Hearing dates: 26 April & 24 May 2019

Date of last submission: 24 May 2019

Delivered at: Melbourne

Delivered on: 26 September 2019

REPRESENTATION

Counsel for the applicant: John Maloney

Solicitors for the applicant: Victoria Legal Aid

Counsel for the first respondent: Andrew Yuile

Counsel for the second respondent: No appearance

Solicitors for the respondents: Mills Oakley Lawyers

ORDERS

1. The application filed on 24 August 2017 and amended on 9 April 2019 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1842 of 2017

DUO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”). In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

The applicant’s claims

1. The applicant’s claims are summarised in paragraph 9 of the Authority’s reasons for decision as follows:

   ·He is a single, Catholic Tamil male from [district C] in the Northern Province of Sri Lanka, aged 32 years

   ·He was born in [G] which was within an LTTE-controlled area during the war. While he was at school, the LTTE provided training to students about how to avoid shelling. He and other villagers were required to attend LTTE memorial services and meetings from time to time.

   ·In 1999, his family was displaced from their village due to intense shelling by the Sri Lankan army. They relocated to the government-controlled area in [K] and resided at the [L] Refugee camp for two years.

   ·At the camp the applicant’s brother volunteered information to the military that he had sold goods to the LTTE such as kerosene. He was taken into custody and kept at a detention centre for six months. His brother was released following intervention from the Bishop of Mannar.

   ·While living at the camp, the applicant and other Tamils were closely monitored and their movements were restricted. The military visited in white vans at night and took people identified by informants, for questioning. The Muslims in the area worked as informants to the military and informed on people with whom they had a private vendetta. The applicant was never taken for questioning.

   ·After living at the camp, the Bishop of [C] provided church land in [village B] where the applicant and his family resettled. The applicant and other villagers continued to be subjected to intense monitoring and frequent round-ups by the army. The applicant was involved in approximately four round-ups but was never identified as a person involved with the LTTE or arrested.

   ·In June 2006, the applicant travelled to Qatar where he worked for three months until he contracted the chicken pox, returning to Sri Lanka in about September 2006.

   ·On the applicant’s return to Sri Lanka, he was involved in a further two round-ups but was not questioned or arrested. In 2008, four boys from his village the applicant’s age were arrested. Two were badly beaten before being released and two never returned.

   ·One night the applicant was with a group of villagers who stopped a navy truck from entering the village, in order to check if there were ‘greasemen’ present. The navy officers beat the villagers and locked them in the church until the next day.

   ·Army officers harassed the villagers, asked them to buy cigarettes and liquor for them and beat them for no reason.

   ·The applicant left Sri Lanka in July 2008 and remained working in Qatar for about two years.

   ·While the applicant was in Qatar his brother was abducted in [village B] by the military for ransom and mistreated while in custody. In about May 2010, the applicant was told by his mother that the army had searched their house looking for his brother. The applicant’s brother departed Sri Lanka by boat and is residing in Australia.

   ·The applicant returned to his home in [district C] in about August 2010. On a day when he was not at home, two unidentified men came and asked for the applicant. They were not wearing uniforms and did not identify themselves.

   ·The applicant was sent to stay with his sister who lived in [town F] about five kilometres away. He stayed there and opened a business copying documents and assisted his brother-in-law with his fishing business.

   ·The applicant experienced difficulties with being able to fish arising from ongoing dispute between the local Muslim community and the Catholic Tamils about access to fishing. Difficulties included being required to provide a portion of the catch to the navy, paying taxes to the Muslim community to reach the seashore and being attacked by Muslim villagers, and having their fishing boats and property damaged.

   ·At the annual Government cricket match, the Muslim community attacked the applicant’s village team with cricket bats when they won the match.

   ·In 2012, a friend of the applicant’s was arrested by the army and questioned about his brother who had supported the LTTE, just like the applicant’s brother.

   ·On 2 September 2012 the applicant departed Sri Lanka illegally by boat and travelled to Australia.

   ·In about October 2012, the applicant’s family told him that the army had come to the house and asked for him. His parents told the army he had left for overseas.

   ·Animosity from the Muslim community towards the people in the applicant’s village is continuing. On 21 September 2013, villagers were attacked by Muslims when they tried to bring a Tamil National Alliance candidate to the village. The military still holds a strong presence in the north.

   ·Having lived in Australia, he would be suspected of having made connections with the Tamil Diaspora supporting the return of the LTTE.

   ·The Bishop of [C] is very sick and is not able to protect the Tamil Catholics of his village as he had in the past.

The Authority’s reasons

1. The Authority’s reasons for decision are summarised in paragraphs 21 and 22 of the applicant’s written submissions filed on 9 April 2019 as follows:

   21.… the Authority accepted that the Applicant had incidental exposure to the LTTE, and that his brother supported them by supplying them with goods on a regular basis (CB 247-8 [15]). The Authority accepted that the Applicant was displaced and that his brother was arrested, detained and possibly mistreated for supporting the LTTE, and kidnapped in 2010, as claimed (CB 248 [16]-[18])—though not that his kidnapping was for reasons other than financial gain, or that his earlier detention indicated that authorities considered him to constitute ‘a political or security threat’.

   22.The Authority accepted the Applicant was monitored, harassed, beaten and held in a church as claimed (CB 249 [20]). It drew attention to his capacity to travel to and from Qatar, indicating the Sri Lankan authorities did not consider him to be a threat (CB 250 [23]). Regarding the claimed visit by the unidentified men, the Authority accepted that the men may have visited but not that they had adverse intent or were linked with the authorities (CB 250 [24]). The Authority broadly accepted that there was tension between Muslims and Tamils as to fishing rights, but not that this had given rise to harm to the Applicant (CB 250-1 [26]-[27]); like the Delegate the Authority considered that the authorities were willing to intervene to prevent violence between the rival groups (CB 251-2 [28]-[30]). The Authority emphasised the diminished persecution of Tamils (CB 252 [32]), and noted that it was not satisfied that the Applicant’s association with his brother or his having lived in Australia would lead to his being harmed by authorities (CB 253 [33]). The Authority went on to reject the Applicant’s claims to face harm as an asylum seeker or illegal emigrant (CB 254 [37]-[46]). Ultimately the Authority found the Applicant faced neither a real chance of serious harm nor a real risk of significant harm (CB 255-7 [48]-[60]).

Ground 1

1. The first ground of review in the application filed on 24 August 2017 and amended on 9 April 2019 (“the application”) is:

   The Authority determined that a statutory declaration provided by the Applicant dated 17 January 2017 (Statutory Declaration) constituted ‘new information’, and so could not be taken into consideration unless it satisfied the criteria set out in s 473DD of the Migration Act 1958 (Cth)(Act). In fact the Statutory Declaration consisted principally of submissions, which the Authority could and ought to have taken into account without applying the s 473DD criteria.

   Particulars

   The Statutory Declaration is at 232 of the Court Book.  The relevant reasons of the Authority are at [4]-[8] of its reasons, at 244-245 of the Court Book.

2. Following the delegate’s decision, the applicant lodged a written submission and a statutory declaration with the Authority. That was the third statutory declaration that the applicant had lodged in connection with this proceeding. The Authority said in its reasons for decision in relation to the applicant’s third statutory declaration and the written submissions:

   4.The submission contained argument about the basis for the delegate’s findings and decision. Parts of the submission relate to material before the delegate which is also before me and I have considered.

   5.The applicant’s supporting statutory declaration dated 17 January 2017 provides further particularisation of his claims for protection that were discussed with the delegate during the visa interview and raised as part of his visa application. I consider this declaration was not before the delegate at the time of their decision, contains additional details about the applicant’s claims, and is new information.

   6.The applicant’s representative has submitted that the information could not have been provided to the department as it was in response to the delegate’s findings outlined in their Protection Visa decision record. The applicant was represented by a legally qualified registered migration agent at the time of his visa interview and I consider that he would have been able to access legal advice and assistance about presenting his claims for protection. Notwithstanding his representation, the applicant was also informed directly by the delegate during the visa interview of the framework for review of refused decisions by the IAA, the importance of providing complete and accurate information in support of his protection claims as early as possible, and that the department would consider any further information provided after the visa interview and prior to a decision being made. I have listened to the recording of the visa interview and the circumstances of the applicant’s return from Qatar were canvassed by the delegate, as was the basis for why and when unidentified men came to the applicant’s house looking for him. I note that the visa interview occurred on 4 October 2016 and a decision was not made by the delegate until 8 December 2016.

   7. I am satisfied the applicant was on notice about providing complete and accurate information in support of his claims as early as possible, was aware these issues had been raised for discussion during the visa interview and, noting the delegate’s decision was not made until more than two months had passed since the visa interview, had adequate opportunity to provide this opportunity before the delegate’s decision was made. The applicant has not satisfied me that the requirements under s.473DD are met. Given the applicant had opportunity to provide this declaration before the decision was made and the claims included in the declaration were already before the delegate, I am also not satisfied there are exceptional circumstances to justify considering the new information.

3. Ultimately, the parties agreed that, except for the passages set out below from paragraphs 5 and 10 of the third statutory declaration, it did not contain new information. The parties agreed that the second and third sentences of paragraph 5 of the third statutory declaration contained new information. Those sentences were as follows: 

   5. … I was sent to stay with my sister because [village J] is a small, isolated villages [sic] and it is easy for informants in the village to keep watch on the movement of people living in the village. My sister lives in a more urban area and it is more anonymous. …

4. The applicant said the fourth sentence of paragraph 5 of the third statutory declaration did not contain new information, and the Minister said it did contain new information. That sentence was:

   5. … My family believed that by living with my sister I would be less likely to come to the attention of the military or the militia.

5. The applicant said that was not new information because he had mentioned it in his first statutory declaration at paragraphs 16 and 25, which are as follows:

   16.The military search operations were more intense and it was very unsafe for young Tamil men. We were particularly at risk as we were identified as people who had come from the LTTE controlled areas and were believed to have connections with the LTTE. My family particularly feared for my safety due to my brother's arrest and profile as a supporter of the LTTE. My family and many other families with young male children were making arrangements to send their children overseas.

   …

   25.After this incident my mother decided that I should not stay at home any longer. She sent me to stay with my sister. My family believed that this may have been the same people that were looking for my brother. Maybe they were looking for a ransom. It is common for para military groups working with government and the military to forcefully extract money from people.

6. The Minister said that the last sentence of paragraph 5 in the new statutory declaration was new information because it was the applicant’s explanation for his family’s belief, which had not been mentioned previously.

7. I accept the Minister’s submission on this point.  Although the applicant had come very close in his first statutory declaration to stating the content of the last sentence of paragraph 5 of his third statutory declaration, he did not actually do so, with the result that it was new information.

8. The applicant said the third sentence of paragraph 10 of the statutory declaration did not contain new information, and the Minister said it did contain new information. That sentence was:

   10.… The political power exercised by Minister Bathiudeen and the fear of reprisal from him and the Muslim community will prevent the police and other government authorities from protecting me and members of my community i.e. internally displaced Tamil fishermen from violence.

9. The applicant said this information had been given previously in paragraphs 30 to 34 of the applicant’s first statutory declaration, paragraphs 2 to 4 of his second statutory declaration, paragraphs 2 to 3 of a submission dated 17 October 2017, and in the transcript of the interview before the delegate at page 21 line 26 to page 24 line 26.  The Minister said that the claim that Minister Bathiudeen continued to have power, despite losing government, was new.

10. The passages relied on by the applicant are as follows:

    a.  in the first statutory declaration:

    30.However, as displaced people started to return to their original areas it was increasingly difficult for us to continue to access the fishing grounds in [village A]. This was a Muslim area. Initially we would go there, pay the Muslims some money and catch our fish. One day, however, we were informed by the Muslim community that we were no longer allowed to travel through their village. This had severe consequences for us, because it meant that we had no access to the seashore.

    31.For about 1.5 months nobody in our village was able to go out fishing. Then some of the fishermen took it to court and managed to get a court order in our favour. The situation did not change. When we returned to their village to go out fishing, the Muslims from the area attacked us. They damaged our fishing boats and the engine. We had no choice but to leave all our gear behind and run away. The public bus going to [village B] was passing and we got on the bus. We were already in the bus when the Muslims caught up with us. They forced their way in and attacked us. After this attack nobody went fishing anymore.

    32.The Muslims were not happy that we had complained to the authorities and continued to fight against us. They had not only the support of a powerful local MP, but also the local police and the army on their side. Taking it back to court was not an option and the relationship between us and the Muslim community was poisoned.

    33.Our village was surrounded by three Muslim areas and none of us dared to go out on our own anymore. We would pass through Muslim areas in small groups. If people were going out on their own they run a risk of being attacked by Muslims who were working together with the EPDP. The problem is not only the Muslim community. The problem is that they have close relationships to the EPDP. The EPDP supports the Muslims because they also support the government.

    31.(sic) Around that time the Government annual cricket match came up. This event was organised by the District Council and we had to participate. My village team won and this annoyed the Muslim community. The game turned out violent and they attacked us with cricket bats. I was fast and ran away but one of our club members was injured quite severely. He did not report it to the police because he knew that the police would not act on the complaint.

    b.  in the second statutory declaration:

    2.During my interview when I was asked why I fear the Muslim community. I said the Muslim community are the majority community in [district C]. I wish to clarify that the Muslims are the majority community in my area. The Muslim villages of [D] and [E] are within [B], the area of our current residence since displacement. [Town F] is also controlled by Muslim traders. The fishing harbour [village A], where alone we are allowed by the Navy to fish, is also surrounded by Muslim villages. We have not been given permission to launch our boat in any other area.

    3.The Muslims are represented by Minister Rishard Badurdeen. He is very powerful and the local police are fearful of him. He has the support of the Central government. The Army and Navy also support the Muslims as the Muslims helped them during the war as informants and continue to do so. As we are not originally from this area we have no traditional rights to fishing ports and other resources in this area. As we come displaced from the LTTE controlled area of [Area G], we are looked on with suspicion by the Muslims who were treated badly by the LTTE and were forced out of their homes during the war. (emphasis added)

    4.I was also told at interview that the Tamil people are represented in Parliament. The Tamil political parties EPDP and TMVP founded by Karuna are in Parliament. But they were involved in violence against the Tamil people. Members of their groups still continue to extort money and threaten people. They also work with the army against the Tamil people. The TNA is in parliament but as the opposition and do not have the same power that these other parties have. Even though the Tamil members are in Parliament they have not been able to get a satisfactory solution for the Tamil people. The chief Minister of the Northern Provincial Council. has spoken widely of his inability to provide services as the Provincial Council is controlled by the State and the military that is present in large numbers in the North and East of Sri Lanka. The TNA continues to be considered as an LTTE organisation and the chief Minister of the Northern Province is targeted by the media every time he speaks of the Tamil people's issues and is called an LTTE supporter.

    c.  in the submission dated 17 October 2016:

    2.You put to the Applicant that the Muslims were a minority in the country and only few had returned to the North, implying that the Muslims do not have the numerical advantage to engage in persecution or oppressive behaviour towards the applicant. Once again, this statement does not reflect a correct picture of the ground situation in [village B], [district C]. Although Muslims are a minority in the country comprising 7.6% of the population (2012 Census), in certain areas they remain the dominant ethnic community. Their minority status within the larger demographic picture of the country does not in itself adequately reflect the complex relationship that is produced by the brand of politics peculiar to Sri Lanka. The Muslim minority embedded within a Tamil majority region have shown to be oppressive towards the Tamils where the Muslims enjoy strong political patronage. It is the case with the applicant's village of [B]. [Village B] is surrounded by several other villages namely [village D] and [village H] which claim a Muslim majority. This invariably changes the political and social dynamics of the area, when the added factor of a powerful Muslim Government Minister's patronage for the Muslim community comes into play.

    3.You asked the Applicant why Muslims were being protected by police. Since 1990, the year when the whole Muslim population resident in the LTTE controlled Northern regions were ousted by the LTTE, the Muslims have allegedly worked with the Sinhala military and the police as ‘Informants’ against the LTTE and Tamils who lived in the rebel controlled areas. They allegedly harboured a grudge towards Tamils who had formerly resided in the LTTE areas; and they believed that such Tamils had benefited from their exodus (sources). The heavy military presence in these areas and the need for intelligence gathering at local level, gave the Muslims a strong bargaining position. In addition, the presence of powerful Ministers like Rishard Bathuiddeen guaranteed them social and political patronage. The power of the police to act independently diminishes within such a context. (emphasis added)

    d.  in the transcript of interview:

    [DELEGATE]:            In your statement of claims you say that you fear the Muslims in your area. Can you explain that please?

    INTERPRETER:          After we were displaced from our village our main work is fishing. After we were displaced where we were living there's no ocean nearby, so to go to work we have to go [district C] by van and there's a place called (indistinct), Muslim people are living there. So to go through their place we had to pay them taxes to go to work. So we asked to come when we need something for us without paying tax, but the government said it doesn't belong - the water doesn't belong to anyone, it belongs to the government and you don't need to pay taxes to anyone, you can go there freely. So after that when we go through that way we don't pay any tax to them. They say you can't work there anymore but we still went because the government said that we can go and work there. So one night they went and broke the boat and the engines. The next day people who went to work, they were beaten up and they said that we cannot come back there, so we couldn't go to work for about a month and a half. So we went back to court again but the problem hasn't been resolved yet. So just to beat us up they got the Muslims from [district I] area as well, and they came by bus to beat us up and also in my town as well, beaten up, to support the Muslims, there was a minister as well. His name was Rishad Bathiudeen. The problem is still going on and people have still got to work. Some people are - they're asking them money, some people are sort of going to work and some people are actually going for some labour work because of that. They couldn’t go to work. (emphasis added)

    [DELEGATE]:            You say in your statement of claims that you believe the Muslims are connected to the EPDP. Why?

    INTERPRETER:          Muslims are involved with the groups like this, like EPDP and other little groups and they actually take money off people. They take people and torture them. The reason for that is we were displaced and once upon a time LTTE actually sent the Muslims away from those areas. So [they] believed that after they were sent from their areas that we actually occupied their areas. Because of those reasons they're angry with us.

    [DELEGATE]:            Are these Tamil Muslims?

    INTERPRETER:          Yes.

    [DELEGATE]:            Country information says the Muslims in the area [are] a minority, that they as you acknowledged were civilians tricked by the LTTE, forcibly misplaced, and that even today very little have moved back into the northern territory. So a question how they could act with impunity, I guess, in this area. Could you not just go to the police and get help?

    INTERPRETER:          You know the incident that happened, a Navy truck stopped. The reason for that is the police, so the reason for that is there was like an issue going on with the (indistinct) man, because I do know who that was. At night time that person will come and - this was happening in a lot of Tamil villages. So once police had a meeting saying if these incidents happen we can't stop it, you have to look after yourselves or go and into safety. So we actually have to make a group and about five people, we wouldn't sleep at night and we would go around the village to protect the village. And if anything happens we have to go to the temple and ring the bell so all the villagers will come and face the problem. So when this was happening this one truck came into our village around 12.30 or 1 o'clock in the morning. So when this happened that's when we stopped the truck and that's when we were beaten up and sent to the temple.

    [DELEGATE]:            Can I just interrupt you there and bring you back to the question about why would the police I guess - why would the police be protecting the Muslims if they're committing crimes?

    INTERPRETER:          Because that's why I'm talking about it because when this incident was happening, when that happened we called the police, they said they will come but they never came. We don't know why. So that sort of people, how will they support us?

    [DELEGATE]:            I guess there is a difference between - well, I'm just wondering if there is a difference between interrupting the army back in the day when there is a war going on and the army having that ability to act with impunity, versus the police today where there is no war protecting Muslims who you say are committing crimes?

    INTERPRETER:          No, during that time there was no war. They say if anything happens you should call us and they gave us a number. But anyway when that problem happened they could have come and they didn't know if that was army or not, so they didn't do that.

    [DELEGATE]:            Can I ask do you think the Muslims in your area are targeting you specifically?

    INTERPRETER:          Yes.

    [DELEGATE]:            Why?

    INTERPRETER:          The reason for that is my brother was identified as an LTTE supporter and he's not in [district I]. So the issue with the (indistinct) village and our village is a Catholic village. Because of that reason they're always angry with us. So if anyone was involved in that situation, even if they don't attack anyone directly, they use other groups to get to us and a lot of incidents happened during the election time. If anyone do fake (indistinct) that person will be taken and imprisoned. And if that was a Muslim person that person will be released the next day. It's because they had the MP's support and through that they can actually be released. And also they know a lot of people, a lot of influence and for us the other issue is language problems. Most of the Sinhalese - sorry, most of the Muslims can speak Sinhalese and for us we can't speak any other language other than Tamil, and other than northern province, Muslims are living everywhere else but Tamils are in certain areas. They can go anywhere and return and because they know a lot of people, but we don't have that influence.

    [DELEGATE]:            Country information says that there is - Tamils do have representation in the government. You've already shown that you have influence enough with the bishop in the army. There are - there's also influence for Tamils, so I just don't see how the Muslims that are a minority in your area have more influence than Tamils? 

    INTERPRETER:          I don't understand.

    [DELEGATE]:            I'm just putting to you for comment that you say that Muslims in the area have complete influence, that this is the reason why you know – why you feel like you're being targeted. I'm just commenting that Tamils have representation and influence in the area? Sorry, I'll just clarify I said Tamil non-Muslims because I said both Tamil.

    INTERPRETER:          Since the war ended it's almost like (indistinct) and people who were in the LTTE were taken and rehabilitated and they were locked up and like Sinhalese people were fighting as well but they were never rehabilitated. Why didn't the government do something like that? In Sinhalese area, the Sinhalese look at us as that we've been defeated and that we are below them. The government is actually doing some good things as well, I'm not denying that but to bring that into place it takes a long time. There are 24 districts and about only four districts are Tamil people. Within that four districts most of the military is there. The government is saying the war has ended, it's peaceful now, why couldn't they take the military everywhere else and spread them out?

    [DELEGATE]:            So you say that in your area you feel like you're being targeted and in certain claims you say that you are fearful of Muslims in your area. You're educated, single, have lived in other countries, have started your own business, you clearly have capabilities. Why not just relocate somewhere else?

    INTERPRETER:          So if go to any offices in Sri Lanka I have to face Sinhalese people. Even in this country you use an interpreter to talk to us but there we don't even get that in Sri Lanka. So in that situation we cannot go and communicate with anyone and ask about our needs. And so I cannot live anywhere because I can't speak Sinhalese, even if I learn two or three words, they will know that I'm a Tamil. And once they find out that I'm a Tamil they will look at me as a defeated race.

1. The information in bold in the above passages consists of information that the political power of Minister Bathiudeen prevented the police from protecting Tamil fishermen. As such it was not new information when stated in the third statutory declaration. The information that Minister Bathiudeen was no longer in government does not mean that the applicant had not previously given the information in the last sentence of paragraph 10 of the third statutory declaration. By raising the point that Minister Bathiudeen was no longer in government, the Minister in the current proceeding appears to be attempting to address the merits of the case.

2. So, the third statutory declaration contained the following new information:

   5. … I was sent to stay with my sister because [village J] is a small, isolated villages [sic] and it is easy for informants in the village to keep watch on the movement of people living in the village. My sister lives in a more urban area and it is more anonymous. My family believed that by living with my sister I would be less likely to come to the attention of the military or the militia.

3. The applicant’s complaint in ground 1 is that the third statutory declaration consisted principally of submissions, which the Authority could have taken into account without applying the criteria under s.473DD of the Migration Act 1958 (“the Act”). As at least some of the information in the third statutory declaration was new information, the Authority had to apply the s.473DD criteria to that information.

4. To the extent that the balance of the information in the third statutory declaration was a repeat of evidence given by the applicant previously, it could not have been a jurisdictional error not to consider the third statutory declaration, because the applicant at least implicitly accepted that the Authority considered the information that the applicant had given previously.

5. That leaves the question of whether the third statutory declaration consisted principally of submissions. To explain this issue, it is necessary to set out the third statutory declaration in its entirety. It said:

   1.On 23 December 2016, I received a notification from the Department of Immigration and Border Protection (DIBP) dated 9 December 2016 advising that my application for a protection visa had been refused. On 14 December 2016, I received a letter from the Immigration Assessment Authority (IAA) advising that the decision to refuse me a protection had been referred to the IAA for review.

   2.On reading the Decision Record that accompanied the refusal notification, I find that there are aspects of my claim for protection that have been disregarded or misunderstood by the delegate.

   3.In the Decision Record (at page 5) the DIBP delegate states that while I said in the Protection Visa interview (PV interview) that I went to my sister’s house directly on my return from Qatar, in my Statement of Claims I said that only after the men enquired about me was I sent to live with my sister. The DIBP delegate’s statement is not correct.

   4.At my PV interview, I said that my uncle came to collect me from the airport on my return from Qatar in 2010. My uncle lives in [village J], [village B] and I returned with him to [village J] that same day. I said this in the PV interview. However, the same night that I returned from Qatar I also visited my sister [sister 1] who lives in [town F]. [Sister 1] is my eldest sister and as the youngest in the family I am very close to her. Her house is about 20-25 minutes away from [village J] by bus and I wanted to see her after my long absence from home. When I was asked at the PV interview whether I went straight to my sister’s house on my return from Qatar, I answered ‘yes’ for this reason. I had in fact gone to her house the same day that I came back from Qatar but I returned to live at [village B] after visiting her.

   5.I started living with my sister only after the unidentified men came looking for me after my return from Qatar. I was sent to stay with my sister because [village J] is small, isolated villages and it is easy for informants in the village to keep watch on the movement of people living in the village. My sister lives in a more urban area and it is more anonymous. My family believed that by living with my sister I would be less likely to come to the attention of the military or the militia.

   6.At the PV interview, I was asked by the DIBP delegate if I had any theories as to why the unidentified men came to me house looking for me. After the war the military were cracking down on LTTE cadres and any persons who were considered to be LTTE supports. In my case because I was a young, unmarried Tamil male, originally hailing from an LTTE controlled area, who had recently been overseas and with a brother who was a known LTTE supporter whose whereabouts were unknown, I would have been viewed with suspicion by the Sri Lankan government authorities. It was also common at that time for para military groups working with the government and the military to forcefully extort money from persons with my profile. I believe that the unidentified men came looking for me to question me about my brother and about suspected links with the LTTE.

   7.As stated at my PV interview, I don't know who the unidentified men were as they were in civilian clothing but I believe they were involved with the government.

   8.Soon after I left Sri Lanka, my family told me that the army came to our house and asked for me. During the PV interview, I was being asked about the two unidentified men who came looking for me following my return from Qatar and then immediately following that I was asked if Sri Lankan authorities had ever come and asked about me. I thought this question was still about the two unidentified men who came before I left Sri Lanka and I said 'No'. I was then asked if the military or the CID had ever come looking for me and I said 'No just those two unidentified men' because I still believed that that was the incident that we were talking about. I did not realise that this question was also relevant to my family's interaction with the military after I left Sri Lanka.

   9.I fear that if I am returned to Sri Lanka, I will be questioned at the airport while criminal and security checks are undertaken. Since the former LTTE cadres profiles are on Military/Criminal Investigations Division records, my brother's links to the LTTE will come to the attention of the authorities. As a result, I will be detained for an additional time, be made to undergo interrogation and subjected to torture and other degrading treatment. My close proximity to my brother in Melbourne, Australia would be perceived as association with former LTTE members and place me at risk of torture and inhumane and degrading treatment. Even if I an1 released after this, on my return to [district C] I fear that I will be monitored and harassed by Sri Lankan authorities. As a Tamil male displaced from the Northern provinces with family affiliations with the LTTE and as a returned asylum seeker, I will be perceived as a LTTE sympathizer and supporter and subjected to unlawful detention and torture.

   10.If I return to Sri Lanka I will be harassed and attacked by Muslim villagers due to ongoing tension around fishing rights. Despite the change in government, Minister Rishad Bathiudeen continues to exercise excessive political power in [district C]. The political power exercised by Minister Bathiudeen and the fear of reprisal from him and the Muslim community will prevent the police and other government authorities from protecting me and members of my community i.e. internally displaced Tamil fishermen from violence. In any case, the police and other state authorities regard Tamils displaced from LTTE controlled areas with suspicion.

   (errors in original)

6. I do not consider paragraphs 4 to 10 of the third statutory declaration to be submissions. They are a straightforward recitation of facts, and in some cases an attempt to clarify facts as stated to the delegate. Paragraph 1 of the third statutory declaration recites facts to set the scene, as it were. Paragraphs 2 and 3 of the third statutory declaration are submissions in that they assert that the delegate made errors of fact.

7. It was incumbent upon the Authority to consider those submissions. By saying that the third statutory declaration contained additional details about the applicant’s claims, and was new information which did not meet the criteria under s.473DD of the Act, the Authority basically implied that it did not consider anything in the third statutory declaration, including the submissions. That was potentially a jurisdictional error, except for two things.

8. Firstly, the submissions in the third statutory declaration were repeated in the written submissions dated 17 January 2017. There is no reason to doubt that the Authority considered those submissions, to the extent that they did not relate to new information. The Authority said it had done so in paragraph 4 of its reasons for decision and the applicant has not demonstrated otherwise.

9. Secondly, to be a jurisdictional error, the error must be material.  The Authority’s role is not to find error in the delegate’s reasons for decision. The Authority’s role is to decide the matter afresh. Therefore, whether the delegate did or did not make an error of fact, and whether the Authority considered submissions on that issue, is neither here nor there.

10. There may be a question as to whether the Authority made the same error of fact as the delegate is alleged to have made. Generally, factual errors made by an administrative decision maker are within jurisdiction. Sometimes, a factual error is so gross that it can be said that the decision maker did not consider the case that was put. However, the applicant has not suggested that the Authority made an error of that kind.

11. Ground 1 is not made out.

Ground 2

1. The second ground of review in the application is:

   Notwithstanding that the Act did not require the application of s 473DD to the Statutory Declaration, the Authority erred in purporting to apply that provision, in that:

   (a) The Authority’s application of ‘exceptional circumstances’, per s 473DD(a) of the Act, was unduly confined;

   (b) The Authority failed to consider whether the Statutory Declaration satisfied s 473DD(b)(ii);

   (c) The Authority concluded, without foundation, that the information was before, or could have been provided to, the Delegate before the Delegate made its decision under s 65 of the Act, and on that basis concluded that the Statutory Declaration did not satisfy s 473DD(b)(i) of the Act.

   Particulars

   The Statutory Declaration is at 232 of the Court Book.  The relevant reasons of the Authority are at [4]-[8] of its reasons, at 244-245 of the Court Book.

2. Section 473DD of the Act provided as follows:

   Considering new information in exceptional circumstances

   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.

3. The applicant argued that the Authority erred by confining its consideration of whether there were exceptional circumstances to the question of whether the applicant could have provided the new information to the delegate. 

4. As set out above, the new information in the applicant’s third statutory declaration was the information that:

   5. … I was sent to stay with my sister because [village J] is a small, isolated villages [sic] and it is easy for informants in the village to keep watch on the movement of people living in the village. My sister lives in a more urban area and it is more anonymous. My family believed that by living with my sister I would be less likely to come to the attention of the military or the militia.

5. The Minister said that the Authority did not confine its consideration of exceptional circumstances to the question of whether the applicant could have provided the information to the delegate. On the contrary, the Minister said that the Authority considered that:

   a)the applicant was legally represented;

   b)he had been told about the need to provide complete information;

   c)the relevant issues had previously been discussed;

   d)the applicant provided additional submissions to the delegate following the interview; and

   e)the applicant had not sought to raise the new information despite many opportunities.

6. All of the matters mentioned by the Minister were sub-questions of the broader question of whether the new information could have been provided to the delegate. That is, those matters went to the question posed by s.473DD(b)(i) of the Act and did not address at all the question posed by s.473DD(b)(ii) of the Act.

7. That is not necessarily a jurisdictional error. As the Full Court of the Federal Court explained in AQU17 v Minister for Immigration and Border Protection & Anor (2018) 162 ALD 442; [2018] FCAFC 111, it is a misconception that the matters mentioned in both s.473DD(b)(i) and (ii) of the Act must be considered in all cases when determining whether exceptional circumstances existed. Paragraphs 13 to 15 and 17 of AQU17 stated as follows:

   [13]As a matter of construction, it is undoubtedly correct that s 473DD(a) and (b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):

   Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

   The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.

   [14]As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.

   [15]In the present case, the question for the Authority was what, if anything, took the circumstances of the appellant’s case out of the usual or ordinary course to justify consideration of the new information. It was necessary for the Authority to examine whether there was anything about the new information or the appellant’s circumstances which meant that there were exceptional circumstances justifying consideration of the new information. The Authority referred to the fact that at the time of the interview it was expressly put by the delegate to the appellant that she could not understand why the CID did not come looking for him when he did not report back to them, as this was one of the conditions of his release and the Authority considered that the appellant had the opportunity at the interview to advise the delegate of the claim that he did not give the CID his real name. The Authority also referred to the fact that the new information was a contradictory account of what the appellant said had happened when he was detained by the CID in August 2011.

   …

   [17]Although the appellant argued that the Authority took too narrow a view as to what constitutes exceptional circumstances, the appellant was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration. In our opinion, it has not been shown that the Authority took an unduly restricted approach to the question of whether exceptional circumstances existed. The fact that a different account was put to the Authority would not, of itself, constitute “exceptional circumstances” to justify consideration of the new information. Nor, contrary to the appellant’s submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant’s case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant’s case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant’s personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of “exceptional circumstances”. In the present case, as the Authority reasoned, the new information was information which the appellant could have provided the delegate in response to direct questioning on the topic and was information which was inconsistent with the version of events he gave the delegate. In our opinion, it was open to the Authority to decide, having regard to those matters, that it was not satisfied that exceptional circumstances existed.

1. The first two sentences of paragraph 17 of AQU17 are of particular relevance in the present case. The applicant in his submissions to the Authority and to this court argued that he could not have provided the new information to the delegate because the new information was responsive to an error made by the delegate. The Authority expressly noted that argument and rejected it, on the basis that, whether it was responsive or not, the new information was still information that could have been provided to the delegate. As such, the Authority concluded that the circumstances were not exceptional.

2. I consider that line of reasoning was open to the Tribunal. If it were not, practically every time a delegate made a finding contrary to an applicant, he could provide additional details to the Authority and circumvent the restrictions on new information.

3. Except for the argument about the new information being responsive to the delegate’s decision, the applicant’s submissions to the Authority on why the new information should be considered amounted to a summary of s.473DD of the Act. There was no specific argument, other than the responsiveness argument, that the applicant raised. In such circumstances, it was open to the Authority, having dealt with that argument, to say that it was not satisfied that exceptional circumstances existed.

4. Having found that exceptional circumstances did not exist, it was not necessary for the Authority to deal with either 473DD(b)(i) or (ii) of the Act, as s.473DD of the Act cannot be satisfied once it has been found that s.473DD(a) of the Act is not satisfied. That is because s.473DD(a) and (b) of the Act must both be satisfied to meet the requirements of s.473DD of the Act. For present purposes, it is immaterial that s.473DD(b) of the Act can be satisfied if either s.473DD(b)(i) or (ii) of the Act is satisfied.

5. Ground 2 is not made out.

Ground 3

1. The third ground of review in the application is:

   The Authority failed to consider the claim that people had come looking for the Applicant after he left Sri Lanka.

   Particulars

   The Applicant claimed that after he left Sri Lanka, his family told him that the army had come to his house asking after him. The Authority recited this claim (CB 246) but made no finding as to it.

2. The Minister argued that the Authority dealt with this issue in findings of greater generality, being the findings in paragraph 34 of the Authority’s reasons for decision. That paragraph is as follows:

   For reasons already stated, I do not consider the applicant has a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or is considered to be a person of interest to the authorities for any reason, notwithstanding his connection to his brother who was detained and rehabilitated for having provided goods to the LTTE during the war. Given the applicant’s profile, the country information about the change in Sri Lanka’s political and security landscape, I am not satisfied that the applicant would be targeted by the Sri Lankan authorities, including the CID, army or the navy, on return to Sri Lanka.

3. The applicant rejoined that the words, For reasons already stated, meant that the Minister could not rely on that paragraph to show that the issue had been previously considered, in circumstances where the reasons given previously did not deal with the precise issue.

4. However, the Authority did deal with the issue. The Authority noted at paragraph 23 of its reasons for decision that the applicant may, in the past, have experienced some monitoring. The Authority also accepted at paragraph 32 of its reasons for decision that the applicant had been monitored by the authorities. Monitoring is what the visit by the army amounted to, given that the army asked for the applicant, his parents told the army he was overseas and, apparently, nothing further was heard from the army from the time of the visit in about September 2012 until at least October 2016 when the applicant was interviewed by the delegate.

5. The Authority also noted at paragraph 32 of its reasons for decision that the delegate had noted country information to the effect that there had been a decrease in militarisation and monitoring trends. Militarisation and monitoring trends are part of the security landscape that the Authority referred to in paragraph 34 of its reasons for decision.  

6. Without expressly repeating the claim that the army had visited the applicant’s home in about September 2012, the Authority dealt with the claim by saying that the security landscape had changed since then. 

7. Ground 3 is not made out.

Ground 4

1. The fourth ground of review in the application is:

   The Authority failed to consider a claim in finding that the Applicant’s brother was kidnapped in 2010 solely for financial reasons.

   Particulars

   The Applicant submitted, and the Authority accepted, that the Applicant’s brother was affiliated with the LTTE, and had been harmed by the authorities for that reason. However, it concluded that the kidnapping of the Applicant’s brother in 2010 by the authorities was for his kidnappers’ financial gain (CB 249 [18]). It failed to consider the possibility that the kidnapping was a result of other reasons, including the brother’s actual or imputed political opinion as an LTTE supporter.

2. The Authority noted in paragraph 18 of its reasons for decision that the applicant himself said that his brother was abducted by the military for the purpose of a ransom demand. The applicant did not suggest that his brother may have been targeted for Convention reasons, and this is not a point that clearly arises on the materials. 

3. Moreover, the Authority expressly stated in paragraph 18 of its reasons for decision that the applicant’s brother was not abducted because he was perceived to be a security or political threat. In other words, the Authority considered the issue and decided that the applicant’s brother was not abducted because he was or was perceived to be an LTTE supporter. The Authority gave reasons for that conclusion in paragraph 18 of its reasons for decision. Those reasons were that:

   a)although the applicant’s brother had been taken into custody in 1999 after volunteering that he had supplied kerosene to the LTTE, he was released after six months; and

   b)he was not further questioned or detained in the 10 years between 1999 and 2010, when he was abducted.

4. This ground is not made out.

Ground 5

1. The fifth ground of review is:

   The Authority failed to consider the claim that the Applicant would face harm as a failed asylum seeker.

   Particulars

   The Authority (at CB 254 [37]) addressed the Applicant’s claim to face harm as a result of being a failed asylum seeker by saying that there was no information before it ‘to indicate that returnees from Australia are targeted for extortion’. This did not dispose of the Applicant’s claim, which was based, inter alia, on country information regarding the mistreatment of failed asylum seekers by the Sri Lankan authorities (not limited to extortion).

2. It is implicit in the applicant’s submissions that the Authority dealt adequately with the aspect of his failed asylum seeker claim to the effect that he might face extortion. However, the applicant said there were a number of other aspects to his failed asylum seeker claim.

3. The applicant said at paragraph 38 of his first written submission to this court that he had referred to various harms he may suffer, and gave the example of CB160ff. CB160ff is part of a post-interview written submission to the delegate. It is dated 17 October 2016. It is unclear how many of the following pages the applicant wished to rely upon, or what other examples he was thinking of. In any event, CB160ff consists of extracts of country information, which are not tied in any specific way to the applicant. In his first written submissions to this court, the applicant did not nominate precisely what in CB160ff the Authority failed to consider.

4. Suffice to say that CB160 begins by making the general submission that failed asylum seekers are a particular social group. It then said that:

   [the] security forces continue to detain individuals suspected of having links with LTTE, and such perceived supporters of the LTTE continue to be intimidated, harassed, arrested, detained and tortured by the Sri Lankan authorities. 

5. The submission then set out various items of country information to support that basic proposition. In his second written submissions to this court, the applicant identified specific aspects of the pages around CB160 that he wished to rely upon. They are discussed below. In any event, the Authority clearly decided in paragraph 34 of its reasons for decision that the applicant would not face any of the things mentioned at CB160, because he did not have a profile of actual or imputed support for the LTTE. 

6. In the applicant’s second written submission to this court, he set out some other specific claims he said he had made in relation to the general issue of being a failed asylum seeker.

7. Firstly, the applicant said that he had claimed that, because of his time abroad and because he would be a failed asylum seeker, he would be presumed to have been involved in Tamil diaspora activities. The Authority rejected that claim in paragraph 33 of its reasons for decision. 

8. Secondly, the applicant said that he had claimed that there was a heightened interest in people who had been abroad in Western countries. This is a variation on the diaspora claim. Also, a heightened interest falls a long way short of serious or significant harm.

9. Thirdly, the applicant said that he had claimed that Sri Lankan law was misapplied to Tamil returnees suspected of LTTE links. As discussed, the Authority considered that the applicant was not suspected of LTTE links. The Authority specifically considered in paragraphs 38 and following of its reasons for decision that the applicant would be identified on return to Sri Lanka as a failed asylum seeker. The Authority considered, for reasons which it gave, that the applicant would not be treated differently in the application of the usual procedures, which the Authority described. In other words, the Authority did not accept that the law would be misapplied to the applicant because he is Tamil.

10. Fourthly, the applicant said that he had claimed that failed asylum seekers were intimidated, harassed, detained and tortured. The applicant said that claim was made in the written submission to the delegate at CB159 to CB164. At CB159, the written submission said that, since the applicant’s brother’s details were in the CID records, the applicant would inevitably come to the attention of the authorities if he returned to Sri Lanka. However, the Authority considered that, notwithstanding the applicant’s connection to his brother, the applicant would not be targeted by the authorities on his return to Sri Lanka. That sufficiently dealt with that point. 

11. CB160 has already been addressed. CB161 is of a general nature and does not tie in with the present ground. CB162 contains a quotation from country information to the effect that a person had reported that officials were looking for any Tamils returning from abroad to interrogate, abduct, detain and torture them. The submissions to the Authority and to this court did not tie this item of country information to the applicant in any specific way. It was open to the Authority to prefer some country information to other country information. Clearly, the Authority did not accept that the applicant would be targeted for any reason upon return to Sri Lanka. That sufficiently dealt with that point.

12. CB163 contained general country information that was not specifically tied to failed asylum seekers. CB164 contains extracts of an AAT decision in which it was found that residence abroad combined with an actual or perceived association with the LTTE put returnees at risk of serious harm. It is of no relevance in the present case, because the Authority did not accept that the applicant had actual or perceived links to the LTTE.

13. Fifthly, the applicant said that he claimed to be at particular risk at the airport on return to Sri Lanka as a failed asylum seeker and as a Tamil male from a former LTTE controlled area who had spent time in Australia with his brother. The Authority was well aware of the various aspects of the applicant’s circumstances, and concluded that he would not face a real risk of harm in consequence. 

14. I am not persuaded that the Authority failed to consider any of the nominated aspects of the applicant’s claims as a failed asylum seeker.

15. Ground 5 is not made out. 

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed. The hearing occurred on two separate days, and there were two sets of written submission filed by each of the applicant and the Minister. Consequently, I will hear the parties on the question of costs.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  26 September 2019