DVR17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 545

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DVR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 545  

File number(s):

SYG 2692 of 2017

Judgment of:

JUDGE EGAN

Date of judgment:

7 July 2022

Catchwords:

MIGRATION – Whether new claim constituted new information required to be considered under s. 473DD of the Act – whether non-consideration of information was material – no jurisdictional error established – application dismissed.

Legislation:

MigrationAct1958(Cth) s. 473DD

Cases cited:

Minister for Immigration and Border Protection v SZMTA(2019)264CLR421

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 

Division:

Division 2 General Federal Law

Number of paragraphs:

20

Date of last submission/s:

4 April 2022

Place:

Sydney

Date of hearing:

4 April 2022

Solicitor for the Applicant:

Mr M Jones

Counsel for the First Respondent:

Mr T Reilly

Solicitor for the First Respondent:

Australian Government Solicitor

The Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 2692 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DVR17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	7 JULY 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.The Further Amended Application for Review filed on 12 October 2020 be dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,206.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Egan

Introduction

1. The applicant was a citizen of Sri Lanka who arrived in Australia on 19 November 2012 as an unauthorised maritime arrival.

2. On 4 May 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV).

3. On 25 November 2016, a delegate of the Minister refused to grant the visa. The matter was accordingly referred to the Immigration Assessment Authority (the Authority) for review.

4. On 9 August 2017, the Authority affirmed the decision of the delegate.

5. At [11] of its reasons, the Authority recorded the applicant’s claims for protection as follows:

   •“He was born in the [omitted] village in Jaffna in 1986. In 1992 owing to problems and military operations he and his family evacuated and lived in Manipay. In 1996 he and his family moved again to [omitted] in the Vanni. They stayed there several years and he did some schooling there. In 2003 they returned to their home area believing there was peace. He studied in Manipay, completing his A levels. He was unable to continue studying as there was full scale war between the army and the LTTE. He worked doing fishing with his father.

   •He later assumed the role of secretary in the Fishermen Association in their village. They faced many problems because their village was located within the high security zone of the Navy. It was difficult to do their work. They were subject to a pass system with work and time restrictions. Fishing was allowed only in certain areas. The Navy committed many atrocities.

   •He and the association brought this to the attention of the Tamil National Alliance and to his friend, an editor for the newspaper 'Valampuri'. The Navy and the associated armed groups found this out and killed him.

   •Later, one day when he and his father were returning to shore after fishing, four navy personnel came with his photo. They took him, beat and tortured him. They released him when his father came with the Priest and took him to stay with his relatives. He received treatment but still gets pain in the back of his head. That night unidentified persons came to their house and called out his name.

   •He lived in fear from then on. His father sent him to Malaysia and in May 2008 he also came. After he arrived in Malaysia, they visited his family frequently to make enquiries. They threatened his father, younger sister and younger brother.

   •In July 2008 his younger brother who returned from fishing was arrested at the army check point and is still missing. When his father approached the navy they denied knowledge. When his father tried to make a complaint to the

   •Human Rights Commission he received threats that he should not tell anyone. Therefore his father did not inform anyone.”

6. At [14] - [18] of its reasons, though accepting that the applicant had been beaten and harmed during an interrogation by government security forces, and further accepting that a friend of the applicant had been killed due to his having a pro LTTE/anti-government and journalistic/media profile, the Authority did not accept that any interest in the applicant by government authorities was other than low level, or that it continued beyond the end of the war in 2008.

7. As to the nature of the applicant’s friendship with his journalist friend, and as to the applicant’s level of profile, at [15] – [16] of its reasons, the Authority specifically found as follows:

   “[15]The applicant confirmed at the SHEV interview that he had never assisted the LTTE but that his friend who had published the newspaper report was connected with the LTIE. He claims his friend had written favourably about the LTTE and against the army and that in 2005 his friend was involved in organising LTTE events such as Martyrs Day events. He claims he used to go places with his friend but did not go to many of his friend's LTTE related activities. I have considered the plausibility of the applicant's friend, a pro-LTTE journalist organising LTTE events and publishing pro- LTTE stories in Jaffna, an army controlled area, in the final years of the Sri Lankan war. However while the situation was volatile, the government and LTTE had been engaged in peace talks just prior, with the government abrogating the Ceasefire Agreement in January 2008.5 The applicant's claims about his friend's pro-LTTE activities and journalism are not implausible when considered with the varying political and security landscape in Sri Lanka in the time leading up to January 2008. I also accept the applicant's friend published an article about the Navy's fishing restrictions against Tamils and that he was subsequently shot. The applicant has described the article as exposing the Navy's 'atrocities' however when questioned about what these atrocities were, the applicant responded it was mainly about the fishing pass, restrictions on the time and limitations on the areas they could fish within. On the basis of the applicant's response I am satisfied this article did not raise allegations beyond the unfair fishing restrictions. I do not accept the article was perceived as having revealed atrocities. In previous years his friend had organised and attended LTTE events and in addition to the fishing article had written other favourable articles about the LTTE and against the government. I consider the extensiveness of the friend's other activities (preceding and in addition to the fishing article) to be relevant. Country information that was before the delegate supports that in the final years of the war and its aftermath, persons with certain LTTE links, human rights activists and journalists/media professionals received threats and faced elevated risks. Taking his friend's overall profile into account and the country information regarding the risks faced by persons with such profiles and that he had written other adverse reports against the government and demonstrated LTTE support in other ways, I am not satisfied the applicant's friend was killed due to the article about fishing restrictions. Rather, I find he was killed due to his overall pro LTTE/ anti-government and journalist/media profile.

   [16] At the SHEV interview the applicant stated his problems with the Navy stemmed from the newspaper article and his connection to his friend and also because he raised complaints and issues with the Tamil National Alliance (TNA), bringing issues out into the open. I accept this. He confirmed that his interaction with the TNA arose through his role as Secretary for the fishing cooperative as they sought representation on relevant issues through the TNA. I am satisfied he was not otherwise engaged with the TNA and there is no information before me to suggest that he has previously been accused of helping the TNA, or has previously been perceived by anyone to be a supporter. I am not satisfied he has been imputed with a pro-TNA profile. Additionally while I am satisfied the authorities took issue with the complaints that had recently been aired and that they identified him as the source of the complaints, I am not satisfied the authorities perceived him to be an anti- government activist.”

   Grounds of Review

8. On 28 August 2017, the applicant filed an Originating Application for Review. At the hearing before the Court, the applicant relied upon a Further Amended Application for Review filed on 12 October 2020, the one ground of which was as follows:

   “1. The Authority erred by treating as “new information” information that had been given to the delegate before the decision was made.

   Particulars

   The Authority stated at [5] that a claim in the representative’s submissions made after the delegate’s decision that a friend of the Applicant was an “LTTE cadre” was new information and declined to consider it under s 473DD. In fact the Applicant had claimed at the interview with the delegate that his friend was “connected to the LTE (transcript p 19) and his representative had claimed that the friend was a member of the LTTE (transcript p 29).”

9. Paragraph [5] of the reasons of the Authority was as follows:

   “[5] The applicant has also provided a photograph purportedly of this friend in his LTTE uniform, accompanied by the explanation that his friend was an LTTE cadre. The applicant had previously stated this friend had been involved in LTTE related activities such as organising and attending events and that he had written newspaper articles favourable to the LTTE and against the government. However he had not previously claimed his friend was an LTTE member or cadre and nor had he previously provided this photograph. I find the photograph and claim of his friend's LTTE member/cadre profile to be new information. I consider it implausible that the applicant would not have previously known his friend was an LTTE member/cadre. I do not accept that this information about his friend, or the photograph only became available to the applicant following the decision. I am not satisfied they could not have been provided prior to the decision. I have also had regard to the authenticity of the photograph. There are no identifying features in the photograph which support the claim that the person in the photograph is the applicant's friend and no other photographs of the friend have been provided which may allow for facial comparison. Given these considerations and my concerns about the implausibility of the applicant not previously being aware of his friend's LTTE membership, I am not satisfied the claim that the applicant’s friend was an LTTE cadre/member or the photograph amounts to credible personal information. I am not satisfied that s473DD(b)(i) or (ii) is met and nor am I satisfied there are exceptional circumstances to justify considering the information.”

10. On 19 December 2016, in submissions made to the Authority after the decision of the delegate, the applicant claimed that his friend who was shot and killed was an “LTTE” cadre, and that such specific evidence had only become available to him after he had received the delegate’s decision. [1]

    [1]           Submission from Sentil Solicitor & Barrister of 19 December 2016 – Court Book (CB) – pp. 143 -145

11. In the light of the findings of the Authority at [5] of its reasons, it was submitted on behalf of the applicant that the Authority had erred by failing to consider the claim that the applicant’s friend had been an LTTE cadre because it found that such claim was new information which did not fall within the provisions of s. 473DD of the Migration Act 1958 (Cth) (the Act). Section 473DD relevantly provided as follows:

    “473DD 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.”

12. The Authority had accepted that the applicant’s friend was a member and supporter of the LTTE, and that he had written pro LTTE articles in his capacity as a journalist. The Authority well appreciated that such activity would have brought the applicant’s friend to the attention of government authorities, and that severe punishment might have been expected to have been meted out to him as a result. The introduction of evidence by the applicant to the effect that the friend was a uniform wearing cadre in the LTTE was something that could have been introduced in his claims made before the delegate. It was also something which could have been the subject of clearly articulated claims before the delegate. It was open for the Authority to find that such claims constituted new information which did not fall under s. 473DD of the Act.

13. In any event, even if the Authority ought to have considered such claim, any such consideration could not realistically have resulted in a different decision being arrived at. The Authority well appreciated that government authorities at the time were ruthless in their crackdown against LTTE members. [2] The Authority relied upon relevant country information in its assessment as to whether or not the applicant was owed protection obligations. At [37] – [39] inclusive of its reasons, the Authority addressed such question, finding as follows:

    “[37]DFAT and other sources considered by the delegate advise that returnees are treated according to the standard airport procedures, regardless of their ethnicity and religion and that they are not subject to mistreatment during processing. Reporting from the UK indicates that as the LTTE is now considered a spent force and there have been no terrorist incidents in Sri Lanka since the war's end, the Sri Lankan government's objective has shifted to identify activists in the Tamil diaspora who are working for Tamil separatism and to destabilise the Sri Lankan state. I did not accept the applicant was previously considered an activist and nor do I accept he would be perceived as such upon return. I am satisfied that the applicant would not be perceived as an LTIE sympathiser or a threat to the integrity of the Sri Lankan state. I am not satisfied there is anything in the applicant's profile that would bring him to the adverse attention of authorities, either during the airport processing procedures, after he has returned to his home region. I do not accept the applicant faces a real chance of harm as a failed returned asylum seeker.

    [38]The applicant has committed an offence under the Immigration and Emigration Act 1988 (I&E Act) in departing Sri Lanka other than via an approved port of departure. According to DFAT, returnees who have been charged under the I&E Act can remain in police custody at the airport for up to 24 hours after arrival and should a magistrate not be available before this time –for example, because of a weekend or public holiday - those charged may be held at a nearby prison. Information from DFAT does not indicate that detention is selectively applied, that returnees are processed in any discriminatory manner or that those who committed an offence under the I&E Act face a higher risk of torture or other mistreatment.

    [39]I find that while being questioned and processed at the airport the applicant will face a brief period of detention. The information before me indicates there is a possibility he may be detained more than a day while awaiting an opportunity to appear before a magistrate. While I am satisfied that this would be dependent on the timing of his arrival and that such a period of detention is likely to be remote, I accept that if the applicant's detention did extend to more than a day that it may occur in a Sri Lankan prison. I have considered the submissions from the applicant's representative and the country information provided about the conditions the applicant may face while held in detention. Information that was before the delegate indicates that conditions in Sri Lankan prisons are poor, however I am satisfied on the information that this is due to economic and resourcing conditions and old infrastructure, not a result of any systematic or intentional conduct by the Sri Lankan authorities. The country information before me indicates that any such detention would only continue until the applicant was given an opportunity to appear before a magistrate, and I find this would likely be bribed.”

    [footnotes omitted]

    [2]           [30] of the reasons of the Authority.

14. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:

    “[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

    [46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”

15. The Court finds that even if the Authority had considered claims that the applicant’s friend was a cadre, it would not have altered the Authority’s appreciation of that person – namely someone who was in great danger from the government authorities because of his activism in promoting pro-LTTE causes – or of the fact that the applicant was his friend. The Authority appreciated that the friend had a high profile, as compared with the applicant’s low profile.

1. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130]In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

2. Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision- maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

3. The applicant has failed to establish jurisdictional error on the part of the Authority.

4. The Further Amended Application for Review is without merit and is dismissed.

5. The Court will hear the parties as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       7 July 2022