DVV16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 522
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DVV16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 522
File number(s): MLG 2723 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 30 June 2022 Catchwords: MIGRATION – Judicial Review – decision of Immigration Assessment Authority - citizen of Sri Lanka – unauthorised maritime arrival – Tamil ethnicity – Hindu religion – whether wrong test applied – whether denied procedural fairness – whether error of law by not properly considering claims – whether failure to consider claims – whether jurisdictional error Legislation: Migration Act 1958 (Cth) Pt 7AA, Div 3, ss 5H, 36, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 476
Immigrants and Emigrants Act 1948 (Sri Lanka)
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2018) 269 CLR 439; (2018) 94 ALJR 928; (2018) 383 ALR 407
AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FedCFamC2G 276
AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83; (2018)361 ALR 227
BRF038 v Republic of Nauru [2017] HCA 44; (2017) 91 ALJR 1197; (2017) 349 ALR 67
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
CKC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FedCFamC2G 314
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
GEQ18 v Minister for Home Affairs [2019] FCCA 3338
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215Minister for Home Affairs v DUA16 [2019] FCAFC 221; (2019) 273 FCR 213
Minister for Home Affairs v DUA16 & Anor [2020] HCA 46; (2020) 95 ALJR 54; (2020) 385 ALR 212
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610; (2015) 89 ALJR 639; (2015) 320 ALR 467; (2015) 146 ALD 480
MZAIBv Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
NWWJ v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; (2017) 91 ALJR 936; (2017) 347 ALR 405
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; (2015) 321 ALR 44; (2015) 145 ALD 577
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 16 November 2021 Place: Perth Solicitor for the Applicant: In person by CISCO Webex, assisted by a Tamil interpreter Counsel for the First Respondent: Ms E Smith by CISCO Webex Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2723 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DVV16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
30 JUNE 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 originating application filed 14 December 2016 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review (“Judicial Review Application”) lodged by the applicant, DVV16, on 14 December 2016 under s 476 of the Migration Act1958 (Cth) (“Migration Act”) to review a decision of the Immigration Assessment Authority (“Authority” and “Authority Decision” respectively) to affirm a decision of the delegate (“Delegate’s Decision” and “Delegate” respectively) of the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant DVV16 a Class XE Subclass 790 Safe Haven Enterprise (“SHE Visa”).
DVV16:
(a)is a 45 year old citizen of Sri Lanka of Tamil ethnicity and of the Hindu religion:
CB 1;(b)arrived in Australia on 10 September 2012: CB 23; and
(c)applied for a SHE Visa on 4 February 2016: CB 26-106.
On 27 October 2016 the Delegate’s Decision was to refuse the SHE Visa application:
CB 122-136.On 30 October 2016 DVV16’s lawyer sent submissions to the Authority: Court Book (“CB”) 148-278. It appears that parts of those submissions provided to the Authority concerned persons other than DVV16: CB 284 at [7]-[8].
On 4 November 2016 the Delegate’s Decision was automatically referred to the Authority for fast track review under Pt 7AA of the Migration Act: CB 137-147.
On 9 December 2016 the Authority Decision affirmed the Delegate’s Decision to refuse the SHE Visa: CB 279-298.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)had regard to the material referred to it by the Secretary of the Department of Immigration and Border Protection (“Department”) under s 473CB of the Migration Act: CB 283 at [3];
(b)noted that parts of the submission made by DVV16’s lawyer made claims that were not made to the Delegate, specifically that DVV16:
(i)was studying for a human rights degree at the University of Colombo in 2013;
(ii)opposes the Sri Lankan government’s lack of human rights practices;
(iii)was perceived to belong to the Liberation Tigers of Tamil Elam (“LTTE”);
(iv)was suspected of having committed a crime;
(v)was sexually abused by the Sri Lankan army (“SLA”);
(vi)was arrested with his brother, who had since sought asylum in Canada; and
(vii)was at risk of harm due to his profile as a media personality and an ex-police officer: CB 284 at [7];
(c)noted that the new claims “significantly differ from those put forward by DVV16 in his SHE Visa application and appear to have no bearing on the claims presented to the delegate in the SHEV interview”: CB 284 at [8];
(d)considered that it was “difficult to relate these new claims to DVV16” and as a result that it “strongly” suspected “these claims relate to another person”: CB 284 at [8];
(e)stated that as the new claims related to events that pre-dated the Delegate’s Decision and that DVV16 had not provided any reason as to why this information was not provided to the Delegate before the Delegate’s Decision was made, it did not have regard to the “new claims” as it was not satisfied that:
(i)these claims represented credible personal information;
(ii)could not have been provided before the Delegate’s Decision was made; and
(iii)no exceptional circumstances existed to justify consideration of the new information: CB at 284 at [8];
(f)summarised DVV16’s claims as set out in the information referred to it: CB 284 at [9];
(g)found there were significant inconsistencies in DVV16’s account at different times: CB 286-287 at [13]-[21] including:
(i)his initial explanation that he had left Sri Lanka because he had been replaced by people of Sinhalese ethnicity at two workplaces;
(ii)that he left Sri Lanka after being abducted and beaten by business competitors who were Sinhalese or from the Sri Lankan Special Task Force (“STF”);
(iii)that he left due to suspicions he was selling vegetables to LTTE brokers; and
(iv)that he was being investigated by the SLA for selling goods to the LTTE,
a claim made in February 2016: CB 288 at [26];(h)did not accept that:
(i)DVV16 had provided goods to the LTTE;
(ii)DVV16 had been abducted, beaten or threatened by the STF or another party in February 2012 as claimed;
(iii)DVV16 fled to India on 3 March 2012 because of safety fears and that his mother received a threatening phone call following his return to Sri Lanka from India;
(iv)the Sri Lankan authorities commenced an investigation into DVV16; or
(v)his family members received threatening phone calls between 2014 and 2016: CB 288 at [26];
(i)was not satisfied that:
(i)if DVV16 were to be returned to Sri Lanka that DVV16 faced a real chance of serious harm from business competitors or rivals who are Sinhalese, the STF or any other government authority, now or in the reasonably foreseeable future: CB 289 at [32];
(ii)DVV16 was at risk of serious harm by virtue of his Tamil ethnicity, referring to country information which indicated that the overall situation for Sri Lankans of Tamil ethnicity had improved considerably since the end of the Sri Lankan civil conflict in 2009: CB 290 at [35]; and
(iii)DVV16 faced a real chance of serious harm due to being a failed asylum seeker if he returned to Sri Lanka: CB 290 at [37], because he was found not to be a person with substantial links to the LTTE or suspected of committing serious crimes: CB 290 at [37];
(j)found that:
(i)DVV16 did not fit any of the risk profiles of the United Nations High Commissioner of Refugees (“UNHCR”) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (“UNHCR Guidelines”) on persons who may warrant protection: CB 289-290 at [33];
(ii)any societal discrimination DVV16 may face due to being Tamil did not constitute serious harm: CB 290 at [34];
(iii)DVV16 would likely be charged if returned to Sri Lanka under the Immigrants and Emigrants Act 1948 (Sri Lanka) (“I&E Act”) and would then be released: CB 291 at [41]; and
(iv)the provisions and penalties under the I&E Act are laws of general application that apply to all Sri Lankans and there was no country information which indicated that the I&E Act is applied in a discriminatory manner: CB 291 at [41];
(k)concluded that DVV16 did not:
(i)meet the requirements of the definition of a refugee under s 5H of the Migration Act; and
(ii)did not meet the requirements of s 36(2)(a) of the Migration Act: CB 292 at [44]; and
(l)in its complementary protection assessment of DVV16 found that it:
(i)rejected all claims that:
(A)DVV16 provided goods to the LTTE;
(B)DVV16 was abducted and mistreated by the STF;
(C)DVV16’s family members received threatening phone calls; and
(D)Sri Lankan authorities have commenced an investigation against DVV16;
(ii)was not satisfied that DVV16 faces a real risk of significant harm on return to Sri Lanka on the basis of his past experiences or future conduct: CB 292 at [41];
(iii)accepted DVV16 may face some level of societal discrimination as a Tamil male, however, on the basis of the county information, there were no official laws or policies that discriminate on the basis of language or ethnicity in Sri Lanka: CB 292 at [48];
(iv)found that Department of Foreign Affairs and Trade (“DFAT”) country information reports and the UNHCR Guidelines do not indicate, in their most recent reporting, that Tamils are at risk of harm in Sri Lanka on account of their race, and for this reason did not consider that DVV16 now faces a real risk of harm on return to Sri Lanka on the basis of being a Tamil: CB 293 at [49]; and
(v)found, after having regard to DVV16’s circumstances both individually and cumulatively, that DVV16 does not face a real risk of suffering significant harm: CB 293 at [53].
JUDICIAL REVIEW APPLICATION
Filed in the Melbourne Registry
DVV16 filed his Judicial Review Application on 14 December 2016 in the Melbourne Registry of the Court (then styled the Federal Circuit Court of Australia). Delays in listing migration judicial review matters before a Judge of the Court in Melbourne are now notorious. As the Chief Judge of this Court observed in AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren it is “common knowledge that the Melbourne Registry of this Court [where this matter was originally filed and listed] has a large backlog”. The position was seemingly much the same in November 2019 when it was said, on an application to transfer a matter from the Sydney Registry of the Court to the Melbourne Registry of the Court, that “delays in the Melbourne Registry of this Court … would mean that it would be likely that the Application would not be heard for some two to three years if transferred”: GEQ18 v Minister for Home Affairs [2019] FCCA 3338 at [7] per Judge Dowdy. More recently, the Court has observed that “there are several thousand migration judicial review applications which have been filed in the Melbourne Registry of this Court and which have not presently been allocated to a Judge of the Court for hearing”: AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FedCFamC2G 276 (“AFN15 (No 2)”) at [27] per Judge Lucev.
On 21 June 2017 orders were made by a Registrar in the Melbourne Registry of the Court which “listed” the matter for hearing on a date to be advised before a Judge in the Melbourne Registry of the Court (“Registrar’s Orders”).
On 11 August 2017 a notice of listing was sent to the parties listing a hearing for 8 October 2019, that is almost three years from the date of the Judicial Review Application.
On 21 August 2019 correspondence was sent to the parties advising that the matter had been listed for a directions hearing on 2 September 2019. On 2 September 2019 orders were made by a Judge in the Melbourne Registry of the Court vacating the hearing on 8 October 2019 and for the matter to be listed for final hearing on a date to be advised, no earlier than 35 days following the outcome of the High Court appeals in Minister for Home Affairs v DUA16 & Anor (VID540/2019) and Minister for Home Affairs v CHK16 & Anor (VID542/2019). On 9 December 2020, the High Court delivered judgment in both these matters in Minister for Home Affairs v DUA16 & Anor [2020] HCA 46; (2020) 95 ALJR 54; (2020) 385 ALR 212 (“DUA16”).
Re-allocated to the Perth Registry
On 18 August 2021 the parties were informed that the matter had been reallocated to be heard by a Judge in the Perth Registry of the Court. The matter was listed for hearing by video link on 16 November 2021 and heard on that date with judgment reserved.
Grounds
The Judicial Review Application contains the following grounds, without alteration:
1. The IAA applied the wrong legal test.
2. The IAA did not afford me procedural fairness.
3. The IAA erred in law by not correctly considering my claims for protection under s 5H(1) of the Migration Act.
4. The IAA erred in law by not correctly considering claims for complimentary protection under s 36(2)(aa) of the Migration Act.
5. The IAA did not consider all of my claims, correctly and accurately. I will provide all the relevant details.
Submissions
DVV16’s submissions
Contrary to the Registrar’s Orders DVV16 did not file any written submissions. DVV16 filed an affidavit with the Court on 14 December 2016 (“DVV16’s Affidavit”) in which he said that:
(a)since his arrival in Australia by boat he was in immigration detention for a period of time where he had no work rights and because of this had no finances of his own;
(b)he was desperate to seek the protection of the Australian government as a result of the circumstances that forced him to flee Sri Lanka;
(c)he had not been successful in the several applications and requests made by him seeking protection from the Australian Government; and
(d)he sought judicial review of the Authority Decision, which decided he was not owed protection obligations by Australia and he believed the Authority erred in applying the wrong legal test to his claims.
At hearing DVV16 was afforded the opportunity to make oral submissions in support of his Judicial Review Application. He submitted (Transcript, pp 3 and 6) as follows:
(a)that if he went back to Sri Lanka he would have problems there and that because of that fear he was staying in Australia;
(b)that he did not accept the Authority Decision;
(c)that there was no proof that he could provide, because when he was abducted he could not ask for any documents and could not get proof of that;
(d)that he had not collected any documents or anything, as he was not thinking at the relevant times that he would come to Australia and that he would need those documents for his case, so he did not collect any documents;
(e)the problem was that the same Government was in power in Sri Lanka, the same Ministers and if he was to go back, they would identify him and he would face the same problem which he faced earlier; and
(f)that he came to Australia for that same reason and that is why he had been here for the last nine years.
Minister’s Submissions
The Minister submitted that:
(a)regarding Ground 1, the Authority had correctly set out the legislative test applicable under s 5H of the Migration Act to the circumstances of DVV16’s claims and that:
(i)the Authority was not satisfied that DVV16 faced a real chance of serious harm, now or in the reasonably foreseeable future, if he returned to Sri Lanka;
(ii)the rejection by the Authority of DVV16’s claims was due to factual inconsistencies in DVV16’s claims;
(iii)the Authority’s conclusion that the poor prison conditions DVV16 would be subject to on return to Sri Lanka was correct, open to it to make and consistent with the meaning of “serious harm” in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610; (2015) 89 ALJR 639; (2015) 320 ALR 467; (2015) 146 ALD 480 (“WZAPN”);
(iv)the Authority correctly set out the legal test for whether Australia has protection obligations towards DVV16;
(v)the Authority’s conclusion that if DVV16 were to potentially be detained on remand pending bail and be subjected to poor prison conditions that this would not constitute “significant harm” was correct, open to it to make and consistent with the approach taken in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; (2017) 91 ALJR 936; (2017) 347 ALR 405 (“SZTAL”); and
(vi)there was no basis for the claim the Authority failed to apply the correct legal test;
(b)regarding Ground 2, there was no error in the Authority’s application of the provisions of procedural fairness provided for in Pt 7AA Div 3 of the Migration Act, and
(i)factually inaccurate information had been found to have been provided to the Authority in other proceedings by the lawyer representing DVV16, and that some of the incorrect personal information contained in the submissions made in other cases was identical to the information contained in the submissions made by DVV16’s lawyer, which the Authority found related to another person: CB 284 at [8];
(ii)the circumstances of DVV16’s case could be distinguished from those of CHK16 in DUA16 and likened to those of DUA16 in DUA16 because it was not unreasonable for the Authority to have disregarded information which it inferred concerned a different person in circumstances where those submissions also addressed the claims made by DVV16;
(iii)the Authority did not fall into jurisdictional error in declining to have regard to the country information provided to the Authority on behalf of DVV16 or referred to in the submissions made by DVV16’s lawyer;
(iv)due to the significant inconsistencies in DVV16’s accounts at different times, the Authority did not accept DVV16’s claim of having been kidnapped;
(c)regarding Ground 3, DVV16 did not identify the basis on which it was asserted that the Authority did not correctly consider his claims for protection, and that the Authority correctly considered each basis for his claims;
(d)regarding Ground 4, DVV16 did not identify the basis on which it was asserted that the Authority did not correctly consider his claims for complementary protection, and that the Authority did correctly consider this issue; and
(e)that as to Ground 5, regarding which DVV16 had stated he would “provide all the relevant details”: CB 302 at [1], no further details had been provided by DVV16, that the ground is vague and failed to identify any failure by the Authority to consider DVV16’s claims and that the Authority correctly and accurately considered this issue.
Consideration
Failure to particularise
The “[t]he failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed”: NWWJ v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; AFN15 (No 2) at [41] per Judge Lucev. In DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J it was held that even where there is an unparticularised ground of review it is necessary for a self-represented applicant to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a review ground: see also AFN15 (No 2) at [42] per Judge Lucev. DVV16 was afforded the opportunity to make oral submissions in these proceedings: see [15] above.
In the Judicial Review Application, in DVV16’s Affidavit filed with the Court and in his oral submissions, DVV16 has failed to particularise his grounds of review and the basis upon which he submits that the Authority Decision fell into jurisdictional error. Of itself, this would, in the Court’s view, be sufficient to warrant dismissal of the Judicial Review Application. The Court, nevertheless, considers below the grounds raised, as best it can.
Ground 1 – wrong legal test
DVV16 does not specify how it is alleged that the Authority applied the wrong legal test.
The Authority set out the legislative test for determining whether a person is a refugee under s 5H(1) of the Migration Act and whether there is a well-founded fear of persecution for the purposes of the Migration Act: CB 288 at [27], and the Authority applied the legislative tests to the circumstances of DVV16’s claim: CB 288-292 at [29]-[43]. The legislative tests set out by the Authority were correctly described and applied, and in particular:
(a)findings that DVV16 does not face a real chance of serious harm from Sinhalese businessmen or rivals, the STF or any other government authority, now or in the reasonably foreseeable future, if he returns to Sri Lanka were based on a rejection of DVV16’s claims because of factual inconsistencies in these claims;
(b)DVV16’s failure to raise a claim was relevant to the Authority’s consideration of DVV16’s credibility: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83; (2018) 361 ALR 227 (“AVQ15”) at [27] per Kenny, Griffiths and Mortimer JJ, as were inconsistencies in his evidence provided that the Authority did so fairly and reasonably, and in a careful and thoughtful manner: AVQ15 at [23] and [27] per Kenny, Griffiths and Mortimer JJ. The Authority assessed the “significance of the inconsistency and the weight to be given to it”: CB 256 at [9] and [10] before finding that certain parts of DVV16’s factual claims were not accepted: CB 288 at [27]-[28];
(c)the conclusion that DVV16 being subjected to poor prison conditions during a short period of detention on return to Sri Lanka would not constitute “serious harm” as defined in the Migration Act: CB 291 at [41] was a conclusion open to the Authority for the reasons it gave, and is consistent with the principles concerning the meaning of “serious harm” established in WZAPN and is consistent with innumerable similar conclusions which have been upheld by the federal courts: see, by way of example, SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; (2015) 321 ALR 44; (2015) 145 ALD 577 at [154] per Robertson, Griffiths and Mortimer JJ; CKC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 314 at [22] per Judge Egan and BRF038 v Republic of Nauru [2017] HCA 44; (2017) 91 ALJR 1197; (2017) 349 ALR 67 at [44] per Keane, Nettle and Edelman JJ;
(d)the Authority set out the correct legal test for whether Australia owed protection obligations to DVV16 under the complementary protection regime in s 36(2)(aa) of the Migration Act: CB 292 at [45]-[46] and correctly applied that test to DVV16’s circumstances: CB 292-293 at [47]-[53]; and
(e)found DVV16 may potentially be detained on remand for a number of days pending bail and be subjected to poor prison conditions on return to Sri Lanka, but that that would not constitute “significant harm” or an intention to inflict pain, suffering, or extreme humiliation: CB 293 at [50]-[51], which was a conclusion open to the Authority and consistent with the approach taken by the High Court in SZTAL at [28]-[29] per Kiefel CJ, Nettle and Gordon JJ.
Having considered the Authority’s Decision in detail the Court is of the view that the Authority did not apply any wrong legal test. It is evident from the Authority Decision that the Authority applied the correct legal tests to its consideration. This ground is not made out and does not establish jurisdictional error in the Authority Decision.
Ground 2: Procedural fairness
No particulars of this ground were provided by DVV16.
Legislative provisions
Section 473DA of the Migration Act provides that Pt 7AA Div 3 (together with
ss 473GA and 473GB of the Migration Act) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. These provisions codify the Authority’s procedural fairness obligations:
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 (“BVD17”) at [33] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon JJ. There was no error in its application of these provisions.Under s 473DB(1) of the MigrationAct, the Authority had to review the Delegate’s Decision on the papers, by considering the review material provided to it under s 473CB of the Migration Act, without accepting or requesting new information and without interviewing DVV16,
unless the Authority exercised its discretion under s 473DC(3) of the Migration Act to request such information.Section 473DD of the Migration Act provides that the Authority could not consider any new information unless it was satisfied as to exceptional circumstances justifying considering new information; and DVV16 satisfied it that the new information was not, and could not have been provided to the Delegate prior to the Delegate’s Decision, or was credible personal information not previously known and had it been known that it may have affected the consideration of DVV16’s claims.
In DUA16, the High Court held that the Authority’s exercise of functions in Div 3 of Pt 7AA of the Migration Act is to be assessed within the bounds of legal unreasonableness, and not by reference to concepts of procedural fairness: DUA16 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ; BVD17 at [15] and [34] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. In DUA16, it was found that the same lawyer that filed the submissions on behalf of DVV16, acting in her capacity as migration agent for applicants DUA16 and CHK16 respectively, had fraudulently provided submissions to the Authority. These submissions were based on template submissions drawn up by the agent which contained information concerning the personal circumstances of a different person: DUA16 at [1] and [5] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
Of the incorrect personal information in DVV16’s submissions, some of it is identical to that made on behalf of DUA16 and CHK16 and which the Authority “strongly suspect[ed]” were “related[d] to another person”: CB 284 at [8].
Legal unreasonableness
In DUA 16 the High Court held that the Authority’s decisions (relating in that case to DUA16 and CHK16) being to affirm the Delegate’s Decision in those matters, were not vitiated by the agent’s fraudulent submissions to the Authority: DUA16 at [4] and [22] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, observing at [22] that:
… the agent’s fraud did not contribute in any adverse way to the exercise of any duty, function, or power by the Authority.
The High Court found that the dissenting judgment in the Full Court of the Federal Court in Minister for Home Affairs v DUA16 [2019] FCAFC 221; (2019) 273 FCR 213 (“DUA16-Full Court”) was correct in holding that the Authority had been aware of the template submissions and the Authority had not proceeded on the basis of a presumption of regularity: DUA16 at [17] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, citing DUA16-Full Court at [78] per Griffiths J, and therefore there was no jurisdictional error in the Authority’s decision concerning DUA16.
In DUA16-Full Court, the ground of contention was that the Authority erred by failing to consider the exercise of its discretion in s 473DC of the Migration Act in relation to both DUA16 and CHK16.
In DUA16 the High Court held that it may be legally unreasonable for the Authority to make a decision on review where an applicant’s submissions appear to concern a different person without the Authority having first exercised its power under s 473DC to invite an applicant to provide further written submissions: DUA16 at [25] and [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. Whether legal unreasonableness is made out is determined by the particular circumstances of each case: DUA16 at [25]-[26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
Section 473DC of the Migration Act provides relevantly as follows:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
In DUA16 the High Court held that it was necessary to consider whether the Authority’s failure to exercise the power in s 473DC to get new information by inviting written submissions was legally unreasonable but noted that:
(a)there is no general obligation upon the Authority to get new information, and that this is so, “even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law”: DUA16 at [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ; and
(b)the power in s 473DC of the Migration Act is still subject to the usual implication that it must be exercised with the bounds of legal unreasonableness: DUA16 at [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
It was not unreasonable for the Authority to fail to get new information or submissions on the basis that the submissions CHK16 and DUA16’s agent submitted on behalf of DUA16 contained some information about another applicant: DUA16 at [34] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. Rather, the High Court found it was open to the Authority to make its decision having regard to the review material which concerned DUA16 and to disregard information which the Authority concluded either concerned a different person and had been included by mistake, or alternatively comprised new claims by DUA16 which the Authority could not consider because the requirements of s 473DD for consideration of new information had not been satisfied, and the agent’s fraud had not stultified the core review function of the Authority: DUA16 at [34] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
By comparison, the Court held that in the case of CHK16 it was legally unreasonable for the Authority to fail to make further inquiries in the “extreme” circumstances where the submissions in their entirety concerned a person other than CHK16: DUA16 at [34] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
The present matter can be likened to that of DUA16, and it was not therefore unreasonable for the Authority to have disregarded information which it inferred concerned a different person to DVV16 in circumstances where the submissions also addressed DVV16’s actual claims. DVV16’s circumstances are also therefore to be distinguished from those of CHK16: DUA16 at [29] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. All material in the submissions that concerned claims related to DVV16’s claims was properly considered and claims that appeared to mistakenly concern another person were disregarded by the Authority. And, in the alternative, the information that appeared to concern another person could not be considered by the Authority regardless, as it did not satisfy the criteria under s 473DD of the Migration Act: DUA16 at [34] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
As to country information, the Authority did not err in declining to have regard to the country information provided to the Authority on behalf of DVV16 or referred to in DVV16’s submissions: CB 283 at [5]-[6]. The Authority correctly found that the country information that was provided to the Authority pre-dated the Delegate’s Decision, and there were no reasons articulated in DVV16’s submissions why that information could not have been provided to the Delegate or was credible personal information not previously known that may have affected the consideration of DVV16 claims, as required by s 473DD of the Migration Act: CB 284 at [8]. In this event, no error was made by the Authority in choosing not to consider this information.
The Authority did not accept DVV16’s claim of abduction due to significant inconsistencies in DVV16’s accounts at different times: CB 288 at [27]-[28]. It was open to the Authority to make a different finding to that reached in the Delegate’s Decision in so doing, the Authority was not required to interview DVV16 merely because the Authority comes to a different view to that in the Delegate’s Decision: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2018) 269 CLR 439; (2018) 94 ALJR 928; (2018) 383 ALR 407 (“ABT17”) at [24] per Kiefel CJ, Bell, Gageler and Keane JJ. The Authority clearly expressed its reasons as to why it had not accepted that DVV16 had been abducted: CB 288 at [13]-[26]. The Authority explained its conclusion on its analysis of DVV16’s differing and inconsistent accounts of the event. This reason can be considered to be a “good reason” for it to form a different view to that drawn in the Delegate’s Decision: ABT17 at [25] per Kiefel CJ, Bell, Gageler and Keane JJ.
The Court finds that the Authority Decision was legally reasonable on the basis of the conclusion it reached on the information before it and the legislative tests correctly applied. Ground 2, whether expressed as a claim of procedural fairness or legal unreasonableness, is therefore not made out, and does not establish jurisdictional error in the Authority Decision.
Ground 3: Whether protection claims correctly considered
There is no identification in the Judicial Review Application of the basis on which it is said that the Authority did not correctly consider DVV16’s claims for protection under s 5H(1) of the MigrationAct. As set out above in answer to Ground 1, the Authority did correctly consider each basis on which DVV16 claimed protection: see above at [20]-[21].
It follows therefore that ground 3 is not made out and does not establish jurisdictional error in the Authority Decision
Ground 4: Whether complementary protection claims correctly considered
The Judicial Review Application also does not identify the basis on which it is asserted that the Authority did not correctly consider DVV16’s claims for complementary protection. The Authority correctly considered this issue: see above at [20]-[21].
It follows therefore that ground 4 is not made out and does not establish jurisdictional error in the Authority Decision.
Ground 5: Whether claims correctly and accurately considered
This ground is vague and fails to identify any failure by the Authority to consider DVV16’s claims, correctly and accurately. Despite the Judicial Review Application stating with respect to this ground that DVV16 “will provide all the relevant details”: CB 302 at [1],
no further details have been provided.As previously observed the Authority did correctly and accurately consider all of DVV16’s claims: see [20]-[21] and [36]-[38] above.
It follows that ground 5 is not made out and does not establish jurisdictional error in the Authority Decision.
Other possible jurisdictional error
In MZAIBv Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) the Federal Court held that where a party is self-represented, the Court must remain alert to the possibility of other jurisdictional error by an administrative decision-maker: MZAIB at [100] and [112] per Mortimer J; see also Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [27] per Judge Lucev.
There is no evidence that the Authority Decision was legally unreasonable nor otherwise affected by jurisdictional error. Each of DVV16’s claims were carefully considered by the Authority and there is no error of law in the conclusions reached in the Authority Decision and there is no otherwise discernible jurisdictional error in the Authority Decision.
Conclusion and orders
The Court has concluded that none of the five grounds of the Judicial Review Application have been made out. No other jurisdictional error is evident in the Authority Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 June 2022
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