DYU17 v Minister for Immigration
[2019] FCCA 824
•5 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DYU17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 824 |
| Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Sri Lanka – ethnic Tamil – practising Christian – whether further materials able to be relied upon – where material published after Delegate’s Decision – whether grounds of application particularised – whether jurisdiction properly exercised – whether bias affecting decision – whether wrong issue on a wrong question considered – whether right to legal representation – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), s.56(2) |
| Cases cited: ADX17 v Minister for Immigration & Border Protection [2018] FCA 1967 BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494 DBE16 v Minister for Immigration [2017] FCA 942 |
| Applicant: | DYU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 473 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 December 2017 |
| Date of Last Submission: | 19 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 5 April 2019 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms T Jonker |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 473 of 2017
| DYU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 4 September 2017 the applicant filed an application (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the Immigration Assessment IAA (“IAA Decision” and “IAA” respectively) made on 18 August 2017 in which the IAA affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Safe Haven Enterprise Visa (“Safe Haven Visa”).
The IAA Decision is in the Court Book (“CB”) at 182-196.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 3 November 2012: CB 127;
b)on 14 January 2016 the Minister “lifted the bar” under s.46A of the Migration Act and invited the applicant to lodge a Safe Haven Visa: CB 17-18;
c)on 17 August 2016 the applicant lodged an application for a Safe Haven Visa and made the following claims:
i)he is an ethnic Tamil who practices Christianity: CB 46;
ii)the applicant and his father were both fishermen: CB 68;
iii)the applicant was questioned, detained, harassed and mistreated, and suspected of being a member of the Liberation Tigers of Tamil Eelam (“LTTE”) because he was tall and Tamil: CB 184;
iv)in July 2012 a friend of the applicant, who was a former member of the LTTE, was captured and killed by the Criminal Investigation Department (“CID”): CB 69;
v)later in July 2012 the applicant was taken to a naval camp and was interviewed and interrogated by 12 CID officers in a dark room: they tied him up and beat him with tree branches while they questioned him about his relationship with his friend and suspected him of being a member of the LTTE, though he is not: CB 69;
vi)the applicant moved to India after the latter incident in July 2012 to escape the CID as the Sri Lankan government cannot provide protection from the CID or the Sri Lankan Army (“SLA”) as they are part of the government, and he cannot relocate to another part of the country because his risk of harm extends throughout the country: CB 69; and
vii)he feels if he returned to Sri Lanka he will be persecuted and may be killed, he has heard on social media people involved in the Sri Lankan civil war (“Civil War”) have been killed by injection and the same may happen to him because the CID think he was a part of the Civil War and have already treated him with brutality: CB 69;
d)the applicant attended an interview with the Delegate on 25 January 2017 and provided a number of documents giving character referrals for the Delegate’s consideration, while also taking the opportunity to raise two new claims in support of his Safe Haven Visa application: CB 100 and 119-123, namely that:
i)as soon as he left Sri Lanka the CID went to his home and asked about his whereabouts and about the agent who helped him leave Sri Lanka, and threatened his wife and family; and
ii)Buddhists wanted to be supreme and there is a possibility that anti−religious issues might spread to his home;
e)on 15 February 2017 the Delegate’s Decision was to refuse to grant the applicant a Safe Haven Visa: CB 124;
f)on 21 February 2017 the matter was referred to the IAA: CB 144-147 and 151-152;
g)on 8 March 2017 the applicant provided a written submission (“Applicant’s Written Submissions”) to the IAA stating why he disagreed with the Delegate’s Decision and claiming the IAA process is unreasonable and unfair: CB 165-167; and
h)on 18 August 2017 the IAA Decision affirmed the Delegate’s Decision not to grant the applicant a Safe Haven Visa: CB 179.
The IAA Decision
The IAA Decision confirmed the materials before the Delegate had been obtained and were before the IAA pursuant to s.473CB of the Migration Act: CB 183
In relation to the claims made in the Applicant’s Written Submissions the IAA Decision stated as follows:
a)the Applicant’s Written Submissions briefly restate some of the applicant’s claims and argue about the IAA process, and those submissions are to be regarded as “argument” as opposed to “information”: CB 183 at [4]; and
b)the Applicant’s Written Submissions raised issues with:
i)the short time frame in which he was required to provide submissions;
ii)his requirement for a lawyer and his inability to obtain one;
iii)the Delegate’s Decision was written in English and he has not had the Delegate’s Decision translated; and
iv)hearing (as a consequence of the failure to have the Delegate’s Decision translated), for the first time, the many findings of the Delegate: CB 183 at [5].
On 9 March 2017 the IAA wrote to the applicant referring him to the IAA Practice Direction, available in Tamil, setting out the requirements to be followed by applicants when dealing with the IAA: no correspondence was received by the IAA from the applicant after this date: CB 168 and 183 at [6].
The IAA had regard to the applicant’s interview recordings with the Delegate, and observed that:
a)the applicant appeared to be engaged with the process and capable of clearly responding to the Delegate’s questions;
b)the Delegate put the applicant on notice regarding some issues; and
c)the applicant therefore had an opportunity to present all his information relevant to his protection claims: CB 183 at [7]-[8].
In the IAA Decision the IAA:
a)set out the relevant law for making a refugee assessment and a complementary protection assessment: CB 184-185 at [11]-[12], 191 at [36]-[37] and 193-196;
b)on the consistency and general credibility of the applicant’s evidence and country information suggesting that during the Civil War fishermen were beaten by the Sri Lanka Navy (“SLN”) for having gone fishing without permission in waters controlled by the SLN, accepted that the applicant had experienced a level of harassment and discrimination on the basis of his Tamil ethnicity during the time of the Civil War, and that he and his father were frequently detained and questioned and mistreated by Sri Lankan authorities both when he was on the mainland and when he was fishing: CB 185 at [14]-[15];
c)was satisfied that during the Civil War years the applicant was likely to have been perceived to have supported the LTTE because he was a Tamil: CB 185 at [15];
d)accepted that the applicant worked with a friend who was a former member of the LTTE who disappeared in July 2012, and that the applicant was taken in for questioning by CID officers because of his association with his friend and was interrogated and beaten by the CID officers: CB 186 at [17];
e)found that the CID may have been interested in questioning the applicant regarding his friend and that the CID had visited the applicant’s wife shortly after he had departed Sri Lanka, however, was not satisfied that the CID was aware that the applicant had left Sri Lanka, though the IAA did accept that the CID threatened the applicant's wife and child on their visit: CB 186 at [17];
f)found that nothing further had occurred to the applicant’s wife or family since 2012, and that since the applicant's detention and interrogation regarding his friend in 2012 he has been of no further interest to the Sri Lankan authorities, and was therefore not satisfied that the applicant was involved in any LTTE activities: CB 187-188 at [21];
g)took into account the applicant's personal circumstances, including accepting that he is a Christian and that his family requested help from a priest when he was interrogated in 2012, and country information concerning the role of religion in daily life in Sri Lanka stating there are no official laws or policies that discriminate on the basis of religion, which led the IAA to conclude that the applicant will not face a real chance of serious harm on the basis of religion if he were to return to Sri Lanka: CB 188-189 at [24]-[26];
h)accepted the applicant left Sri Lanka unlawfully, would likely be detained as a part of a routine re-entry investigation, and may be detained for a short period of time, but that that did not amount to a risk of serious or significant harm, nor would those actions be the result of a discriminatory law, rather they were the result of a law of general application that would not amount to persecution: CB 190 at [30]-[31];
i)considered the applicant’s claims under the complementary protection provisions and was not satisfied the applicant would be subjected to “cruel or inhuman treatment” in the sense prescribed by s.5(1) of the Migration Act, nor would any of his claims amount to “degrading treatment or punishment”: CB 191 at [39]-[40]; and
j)held that the applicant did not satisfy the requirements of s.36(2)(a) and (aa) of the Migration Act, and affirmed the Delegate’s Decision not to grant the applicant a Safe Haven Visa: CB 191 at [35] and 192 at [41].
Judicial Review Application
The Judicial Review Application was made on the following grounds:
1. Jurisdictional error.
2. Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3. Identifying a wrong issue on a wrong question
On 11 October 2017 a Registrar of this Court made an order (“Registrar’s Orders”) providing the applicant with an opportunity to file an amended Judicial Review Application “giving complete particulars of each ground of review”, supporting affidavits and an outline of submissions prior to the hearing on 19 December 2017. The applicant did not file an amended Judicial Review Application providing particulars for each or any ground or any written submissions pursuant to the Registrar’s Orders.
On 5 December 2017 the applicant filed an affidavit (“Applicant’s Affidavit”) attaching the following materials:
a)an International Truth and Justice Project (“ITJP”) Press Release dated 14 July 2017 referring to state torture and sexual violence in Sri Lanka still being prevalent during 2016/2017 (“ITJP Press Release”);
b)an excerpt from an online article in the “The Diplomat” titled “Looking at Systemic Torture in Sri Lanka” dated 21 July 2017 concerning an interview with an ITJP coordinator where discussion focussed on the LTTE and the continuing suspicion and harsh treatment faced by Tamils who have only tenuous links to the LTTE (“The Diplomat Article”); and
c)an affirmation (“Affirmation”) stating the following:
2) I seek a remedy by a way of a writ of a mandamus on the basis of a jurisdictional error by the Second Respondent who failed by not exercising proper jurisdiction on the basis of the facts and evidence produced.
3) Specific reference is made to the following paragraphs of the decision handed down by the Second Respondent: 5, 6, 7,9,14,16,17,18 and 19.
4) The Second Respondent failed to examine the country situation in Sri Lanka in a manner consistent with the normal rules of evidence and relying wholly on the report of the Department of Foreign Affairs and Trade.
5) I submit document 1 and 2 to substantiate what I had stated above.
To the extent that the Affirmation may be construed as being a further ground or grounds of review or further submissions, the Court has treated the Affirmation accordingly: see [43]-[50] below.
Applicant’s submissions
At hearing the Court provided the applicant with an opportunity to make oral submissions. The applicant made the following oral submissions (see Transcript, pages 2-6):
a)he has left his family behind at home, he is suffering here because of this, but he cannot go back to Sri Lanka because there are still problems there, and, while everyone says they have stopped, that is not true;
b)his case has been rejected so he needs the Court’s help;
c)he was excited and tense so he could not answer questions properly;
d)he has been in Australia for five years and gone for many interviews and only now he has been given the results and decision;
e)during the interview they do not listen, and the aim is just to send “us back home”, and the evidence is in the “recording” that is “with Immigration”;
f)it is not easy to get documents from Sri Lanka because he has run away from Sri Lanka to safeguard his life, and had been to India and suffered a lot there, and then moved to Australia;
g)he does not have a lawyer and has not “read anything clearly” from the IAA; and
h)because of the situation in Sri Lanka and the problems there he can never go back to Sri Lanka.
At hearing it emerged that the applicant was unaware of the content of his own Judicial Review Application, and he asked the Court to repeat the grounds of the Judicial Review Application (Transcript, page 5). When questioned about how the Judicial Review Application came to be made the applicant said:
a)he did not have a lawyer and had “not read anything clearly” from the IAA;
b)someone from the Tamil Association, a Mr Somasunderam, drafted the Judicial Review Application and the Applicant’s Affidavit and advised him to make the Judicial Review Application in the terms stated and to attach the ITJP Press Release and The Diplomat Article; and
c)when asked if Mr Somasunderam was a registered migration agent replied that he was, but said he had not paid him anything.
The Court notes Mr Somasunderam is also the interpreter who certified the Applicant’s Affidavit for the Court. It is unnecessary for present purposes to consider whether or not Mr Somasunderam might have had a conflict of interest in relation to his professional responsibilities as an interpreter interpreting an affidavit which he was responsible for drafting for the applicant which he did because of his association with the Tamil Association: see the Model Rules in the Recommended National Standards for Working with Interpreters and Courts and Tribunals, Schedule 1, Item 5(2)-(3) referred to in Rogic v Samaan [2018] NSWSC 1464 at [163] per Kunc J.
Minister’s submissions
The Minister made the following submissions:
a)none of the grounds of review are particularised. Failure to particularise grounds alone is sufficient to warrant dismissal of an application: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J; WZATH v Minister for Immigration & Border Protection [2014] FCA 969; AQN15 v Minister for Immigration & Border Protection [2016] FCCA 58 at [33]-[35] per Judge Howard;
b)the IAA identified the correct issues, addressed all of applicant's claims, did not take into account any irrelevant considerations or fail to take into account any relevant considerations. The findings that the IAA made were open to it on the evidence before it, and there is a logical connection between the evidence and the conclusions drawn;
c)there is no evidence to suggest that a lay observer would reasonably apprehend that the IAA did not bring a fair, impartial and independent mind to the determination of the matter on its merits. In the IAA Decision, the IAA addressed each of the applicant's claims and the evidence in support of those claims including the letters submitted on behalf of the Applicant. The IAA gave reasons for why it placed no weight on the letters in support of the applicant's application: CB 186 at [18]; and
d)the issue for the IAA to determine was whether Australia owed the applicant protection. The IAA correctly set out the relevant law at CB 193-196 and addressed the issues that needed to be addressed as a result of the relevant law.
Consideration
Jurisdictional error required
The IAA Decision may be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the IAA may constitute jurisdictional error if the IAA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. The IAA Decision may also be tainted by jurisdictional error where there is a denial of procedural fairness as expressly required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 (“AFK16”) at [12] per Judge Cameron.
The Court does not have jurisdiction to review the merits of a Tribunal Decision, or determine the applicant’s claims for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Further Materials
The Minister objected to the Court having regard to the Affirmation at [5] on the basis that the annexed IJTP Press Release and The Diplomat Article are irrelevant to the present proceedings and were not before the IAA at the time of the IAA Decision.
The Court raised with the Minister why such information, which in general terms can be considered country information, published about a month before the IAA Decision should not give rise to an issue as to whether the IAA considered the most recent country information. The Court questioned why the ITJP Press Release and The Diplomat Article were not considered “new information” under s.473DB of the Migration Act which ought to have been considered by the IAA, given that there have been other IAA decisions before this Court where the IAA has considered the most recent Department of Foreign Affairs and Trade (“DFAT”) report prepared after the Delegate’s Decision as “new information”. Furthermore, if the IAA had made itself aware in other matters of a new DFAT report, why had not the ITJP Press Release and The Diplomat Article been similarly treated?
The Minister referred to the purpose of the “fast track reviewable decisions” under Pt.7AA of the Migration Act as being to provide “a mechanism of limited review that is efficient, quick, free of bias”: Migration Act s.473BA. The Minister further submitted that under s.473CB of the Migration Act the IAA was obliged to consider only the Delegate’s Decision, any other material that is in the Secretary’s possession or control, and the applicant’s contact details, while under s.473DC(2) of the Migration Act the IAA is under no duty or obligation to request or accept new information, including where it is requested to do so by an applicant or anyone else: Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 (“AMA16-FCAFC”) at [19]-[20] per Griffiths J.
It is necessary to set out some further background in relation to the process adopted before and by the IAA as it relates to the question of the tendering of the further materials. The Court notes that:
a)on 22 February 2017 the IAA wrote to the applicant acknowledging the referral of his file from the Department on 21 February 2017 (“IAA Acknowledgement Letter”), and in that letter advised that:
The IAA will proceed to make a decision on your case on the basis of information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.
(CB 151);
b)the IAA Acknowledgement Letter contained information indicating that a translating and interpreting service was available, and it would appear that that information appears in both English and Tamil in that letter: CB 151;
c)the attached factsheet “What you need to know about the Immigration Assessment Authority (English)” also appears in the materials sent to the applicant in a Tamil version: see CB 152 and 153-155 (English version) and 156-159 (Tamil version);
d)the factsheet indicates that the IAA will generally conduct a review of the Delegate’s Decision “solely on the basis of the information provided by the department”: CB 154, and in relation to the provision of new information provides as follows:
Can I provide new information to the IAA?
We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision.
If there is new information you want us to consider, you must also provide an explanation why the information:
• could not have been provided to the department before it made the decision to refuse you a protection visa, or
• is credible personal information that, had it been known to the department, may have affected the department's decision.
This explanation should be no longer than 5 pages and accompany any new information you give us. Any new information we have not requested must be given to us within 21 days of your case being referred to us by the department.
In very limited circumstances, we may invite you to give us new information or comments about your case in writing or at an interview.
e)the relevant IAA Practice Direction was also annexed to the IAA Acknowledgment Letter, and the IAA Practice Direction is in English, but the acknowledgment letter provides details of the translating and interpreting service for the applicant in Tamil, and the IAA Practice Direction provides that new information can only be considered in the circumstances set out in s.473DD of the Migration Act and that the IAA must be satisfied that there are exceptional circumstances to justify the consideration of new information, and that any new information not requested by the IAA must be provided within 21 days of the date on which the case was referred to the IAA by the Department, but also that the IAA may separately invite the applicant to provide new information or to comment on new information adverse to the applicant’s case: CB 162-163.
In response to the IAA Acknowledgment Letter the applicant forwarded to the IAA the Applicant’s Written Submissions dated 8 March 2017, in which the applicant submitted that:
New information: because the IAA does not allow new information except in exceptional circumstances, the IAA is potentially missing country information which is relevant to my case and important for any meaningful assessment of non−refoulement obligations. I believe this process is not a proper review of my case and the IAA is not actually considering all the relevant material. (CB at 166)
The IAA responded on 9 March 2017 advising the applicant that:
The IAA Practice Direction for Applicants, Representatives and Authorised Recipients sets out the requirements to be followed by applicants when dealing with the IAA. These requirements are also outlined in the What you need to know about the Immigration Assessment Authority fact sheet, in Tamil, that was sent to you with the IAA Acknowledgment of Referral letter on 22 February 2017. These documents also outline the reasons for these requirements. It is open to you to submit documents in accordance with the Practice Direction. The rest of your correspondence has been noted.
(CB 168).
The ITJP Press Release and The Diplomat Article were published after the Delegate’s Decision but before the IAA Decision. It appears that the applicant did not provide, or endeavour to provide, the ITJP Press Release and The Diplomat Article to the IAA. The applicant did not otherwise provide any further documents to the IAA: CB 183 at [6]. Thus, the occasion for the exercise of any discretion to consider whether the ITJP Press Release and The Diplomat Article ought to be considered as “new information” by the IAA did not arise in this case.
The accuracy and weight to be afforded to country information is a matter for the IAA to determine as a part of its fact-finding function: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ: ADX17 v Minister for Immigration & Border Protection [2018] FCA 1967 (“ADX17-FCA”) at [31]-[32] per Moshinsky J (dismissing an appeal from ADX17 v Minister for Immigration & Anor [2017] FCCA 2768, and in particular at [43] per Judge Heffernan applying NAHI to an IAA decision with respect to the weight to be afforded to country information). The IAA is entitled to rely on older country information of more relevance to an applicant’s specific circumstances, even where more recent country information of less relevance is available: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) at [74] per Kenny, Griffiths and Mortimer JJ, where the Full Court of the Federal Court stated:
That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant's circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal's reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
In “exceptional circumstances” the IAA may consider new information: Migration Act s.473DD, but s.473DC(2) of the Migration Act is a complete description of the IAA’s obligation to consider new information, namely that it has no duty to seek out other information. In DBE16 v Minister for Immigration [2017] FCA 942 at [61]-[65] per Barker J the Federal Court made it clear that the hearing rule at common law does not apply to fast-track reviews, and the combined effect of ss.473DA(1), 473DB(1) and 473DC(2) of the Migration Act requires the IAA to conduct a hearing on the papers, generally without having regard to additional information: AFK16 at [11]-[12] per Judge Cameron; AMA16 v Minister for Immigration & Border Protection & Ors [2017] FCCA 303; (2017) 317 FLR 141 at [18]-[21] per Judge Riley; AMA16-FCAFC at [20] per Griffiths J.
In this case:
a)the IAA correctly understood the basis of the applicant’s claims in that it:
i)identified the harm the applicant may face as a result of his Tamil ethnicity: CB 183-184 at [9];
ii)considered the applicant’s claims in detail and made appropriate findings: CB 185-188 at [14]-[23] and CB 189-190 at [27]-[34]; and
iii)referred to reports concerning Tamil asylum seekers or other Tamils returning to Sri Lanka who had been detained on arrival at the airport, or upon returning to their villages, who had been mistreated and subjected to torture, and concluded that, on the whole, such reports detail circumstances which are not specific to the applicant’s claims: CB 190 at [33] and fn.20, and individually cited and considered an earlier ITJP press release dated 7 January 2016 as part of the assessment of country information, which included reference to and consideration of other country information including the DFAT Country Information Report on Sri Lanka of January 2017 (“DFAT Report 2017”), UK Home Office reports or bulletins, and reports from the Sri Lanka Mirror, Tamilnet and Freedom from Torture, which led the IAA to observe at CB 190 at [33] as follows:
33. DFAT assesses the risk of mistreatment for the majority of returnees is low. While there are reports of Tamil asylum seekers or other Tamils returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has certain actual or perceived links to the LTTE, merely being a Tamil, or a Tamil from the north, or being an asylum seeker is not enough to give rise to a real chance of harm on return.
b)in circumstances where it had no obligation to enquire or to seek out or accept new information, the IAA was not made aware, and in particular not made aware by the applicant, of any additional material relevant to the applicant’s claim, and it was therefore not in error to do no more than perform its statutory task; and
c)consideration of the ITJP Press Release and The Diplomat Article was not critical to or dispositive of the applicant’s claims to suffer harm as a Tamil asylum seeker with perceived LTTE links, more particularly so in circumstances where the claims made therein were not dissimilar, and may indeed have been to essentially the same effect, as the claims made in some of the other country information considered by the IAA: see [28(a)(iii)] above.
It therefore does not matter that the IAA had not referred itself to the ITJP Press Release, or The Diplomat Article, published approximately one month prior to the IAA Decision, as it had no statutory obligation to do so. Furthermore, the IAA was aware of reports of torture and mistreatment and had weighed those reports in relation to what it may have considered other more reliable sources (including the DFAT Report 2017), as it had the discretion to do: NAHI at [11] per Gray, Tamberlin and Lander JJ; ADX17-FCA at [32] per Moshinsky J. Even where the accuracy of country information relied upon by the IAA may be contradicted in other sources, it is not for the IAA to seek out other sources, nor is the mere fact more recent information is available, or that the IAA could have interpreted the information differently, sufficient to establish jurisdictional error: SZDWK v Minister for Immigration & Multicultural Affairs [2006] FCA 405 (“SZDWK”) at [15] per Moore J; MZZAT v Minister for Immigration & Citizenship [2013] FCA 791; (2013) 137 ALD 20 (“MZZAT”) at [31]-[33] per Dodds-Streeton J; Minister for Immigration & Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [54] per Mansfield, Gilmour and Foster JJ. It is pertinent to observe that both SZDWK and MZZAT were the subject of subsequent unsuccessful applications to the High Court: for special leave to appeal in SZDWK v Minister for Immigration & Citizenship & Anor [2008] HCATrans 105, and in MZZAT v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] HCATrans 291 for constitutional writs and an extension of time.
In all the above circumstances the Court finds that the ITJP Press Release and The Diplomat Article were irrelevant to the IAA’s consideration of the applicant’s claims, and are therefore irrelevant to the Court’s considerations in the present proceedings, and are unable to be considered by the Court as evidence or material in support of the Judicial Review Application: Evidence Act 1995 (Cth), s.56(2).
Particularisation of grounds
Notwithstanding the Registrar’s Orders affording the applicant leave to amend his Judicial Review Application “giving complete particulars of each ground of review”, the applicant did not do so. It has been accepted by both the Federal Court and this Court that a failure to particularise grounds of review may alone be sufficient for a judicial review application to be dismissed: WZAVW at [35] per Gilmour J (and cases there cited); BCJ16 v Minister for Immigration & Anor [2017] FCCA 2943 at [13] per Judge Lucev (but compare now DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [9] per Colvin J where the Federal Court held that it will rarely be appropriate to dismiss a ground of review in a migration case for lack of particularisation where a party is self-represented, and that an applicant ought to be given an opportunity to explain orally the matters with which they take issue). There is, however, sufficient in the Applicant’s Affidavit and the Affirmation to warrant the Court giving fuller consideration to the grounds of the Judicial Review Application and such further possible grounds as might arise from the Applicant’s Affidavit and the Affirmation. Although the Court is not under a duty to inquire in order to discover whether an applicant’s case might be better put or supported by some other evidence: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] and [49] per Keane CJ; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ, where an applicant is a self-represented litigant, the Court must remain alert to the possibility of error in the IAA Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J. More recently, the Federal Court has said that this Court ought “to pursue a more active role in the review it undertakes of … [administrative decisions] … in a manner not necessarily confined to the arguments or concerns raised for resolution by an unrepresented claimant”: EII17 v Minister for Immigration & Border Protection [2018] FCA 1863 at [16] per Flick J.
The Court will therefore address the grounds of the Judicial Review Application having regard to admissible evidentiary material in the Applicant’s Affidavit and Affirmation, those parts of the Applicant’s Affidavit and Affirmation which might be construed as submissions, and the applicant’s oral submissions at hearing.
Ground 1
As a result of the applicant failing to particularise ground 1, or articulate the nature of the jurisdictional error the applicant relies upon, the nature of the alleged jurisdictional error is not specifically identified. To the extent that it is alleged that the IAA Decision was affected by jurisdictional error by reason of the IAA “not exercising proper jurisdiction on the basis of the facts and evidence produced”: Affirmation at [2], no jurisdictional error is evident to the Court in the IAA Decision for the following reasons:
a)the IAA considered the material referred to it under s.473CB of the Migration Act: CB 183 at [3];
b)the IAA had regard to the Applicant’s Written Submissions: CB 183 at [4]-[8];
c)the IAA listed the claims made by the applicant in support of the Safe Haven Visa application and engaged with each of the applicant’s claims, including those raised by the applicant at the interview with the Delegate: CB 183-184 at [9]-[10];
d)the IAA identified and set out the relevant law in detail: CB 184-185 at [11]-[12], 191 at [36]-[37] and 193-196;
e)the IAA applied the relevant law to the applicant’s claims: CB 185-192 at [14]-[41];
f)there is no indication the IAA’s procedural fairness obligations were breached: Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB;
g)the findings and conclusions reached by the IAA were open to it on the evidence and materials available to the IAA: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [37]-[42] per Gummow ACJ and Kiefel J; and
h)there is nothing illogical or irrational in the reasoning in the IAA Decision, and there is an evident and intelligible justification for the conclusions reached in the IAA Decision: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ.
The reference to specific paragraphs in the IAA Decision in the Affirmation at [3] establish no jurisdictional error in the IAA Decision for the following reasons:
a)in the IAA Decision at CB 183 at [5], [6], and [7] the IAA simply refers to the Applicant’s Written Submissions and the applicant’s claims regarding the unreasonable and arbitrary nature of the IAA process. The IAA observed that the Applicant’s Written Submissions were somewhat contradictory, and the interview recordings, to which the IAA had evidently listened: CB 183 at [7], appeared to evidence that the applicant was engaged in the interview process and provided clear and concise responses. There is no jurisdictional error in these paragraphs;
b)the IAA Decision at CB 183-184 at [9] simply summarises the applicant’s claims, and no jurisdictional error is evident therein;
c)the IAA Decision at CB 185-186 at [14], [16], [17] and [18] concerns the IAA’s consideration and findings regarding the applicant’s claims of fear as a young Tamil fisherman in a previously LTTE controlled area. The Court notes that in the IAA Decision at CB 185-186 at [14] and [16] the IAA recounts the applicant’s situation and his claims regarding harm on the basis of his Tamil ethnicity and no findings are made which might found a basis for finding jurisdictional error. In the IAA Decision at CB 186 at [17] and [18] the IAA makes adverse findings as to the credibility of the applicant’s claims in some respects, and the weight to be afforded to documents provided by the applicant. In doing so the IAA gave clear reasons for coming to these findings based on the evidence before it and no jurisdictional error is evident therein; and
d)insofar as it is sought to be asserted that the IAA Decision at CB 187 at [19] relies solely on the DFAT Report 2017 it is trite that the IAA Decision, must be read as a whole: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ, and the IAA Decision, when read as a whole, clearly demonstrates that the IAA considered other relevant information and sources (including reports from the US Department of State, the UK Home Office, the Sri Lanka Mirror, Tamilnet, ITJP and Freedom from Torture: see [28(a)(iii)] above, and CB 187 at [20] at fnn.7 and 9, and 190 at [33] at fn.20) as it was entitled to do, and therefore there is no jurisdictional error on this basis.
In all of the above circumstances, ground 1 does not establish any jurisdictional error in the IAA Decision.
Ground 2
An allegation of bias is a serious matter which must be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”).
The Court has considered the Applicant’s Affidavit and Affirmation when considering if the IAA was either consciously or unconsciously biased because it ignored relevant material. The applicant refers to the ITJP Press Release and The Diplomat Article in support of the assertion the IAA ignored relevant material, however, for reasons already discussed (see [19]-[30] above) the ITJP Press Release and The Diplomat Article are irrelevant for present purposes, and the IAA had no statutory obligation to consider them, and there can be no bias on the part of the IAA in failing to consider them.
The applicant has also referred to a number of paragraphs of the IAA Decision, as well as the reliance the IAA placed on the DFAT Report 2017, in an attempt to support the claim of bias. The specific paragraphs of the IAA Decision the Affirmation referred to, largely concern the situation for Tamil ethnics in Sri Lanka, and while those paragraphs reference the DFAT Report 2017, other sources are also referenced: see, for example, [(28(a)(iii)] and [34(d)] above. Furthermore, merely referencing these paragraphs provides no evidence:
a)that the IAA had a pre-existing state of mind which disabled the IAA from undertaking, or rendered the IAA unwilling to undertake, any proper assessment of relevant materials: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the IAA, might reasonably apprehend that the IAA may not have brought an impartial mind to the assessment of the materials and the relevant issues: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The applicant made an oral submission at the hearing stating the officers who interviewed him, just want to send “us [asylum seekers] back home”: Transcript, page 5. That submission falls within the first limb of Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J: see [38(a)] above. The detailed manner in which the IAA dealt with the applicant’s claims, assessed and weighed the applicant’s own evidence, and referred to country information belies any suggestion of bias in the IAA Decision. The applicant’s assertions that the Delegate was biased at the interview cannot succeed on the Judicial Review Application because the Court does not have jurisdiction to set aside a Delegate’s Decision: Migration Act, s.476(2)(a) and (4), Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J; AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 at [10] per Judge Lucev. Furthermore, the applicant’s assertions are but mere assertions: even if the Court had jurisdiction to set aside the Delegate’s Decision, there is no evidence in these proceedings to sustain any assertion of bias. The interview with the Delegate, which the IAA evidently considered: CB 183 at [7], is not in evidence before the Court, and the IAA Decision is, on its face, a detailed consideration of the applicant’s claims, seemingly unaffected by any bias.
The Court cannot conclude on the material before it there was any bias in the IAA Decision. Ground 2 does not, therefore, establish any jurisdictional error in the IAA Decision.
Ground 3
In circumstances where the applicant has failed to identify where the IAA “identified a wrong issue on a wrong question”, it is not possible to find any jurisdictional error in the IAA Decision on this basis. The IAA was not to ask itself what the correct and preferable decision was, but rather whether the applicant satisfied “the particular criteria which the [Delegate] considered to be determinative”: BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494 at [87] per Charlesworth J. In the Court’s view the IAA did so when it correctly and comprehensively set out the relevant law and Safe Haven Visa criteria, and assessed each of the claims made by the applicant against those criteria.
Ground 3 does not, therefore, establish any jurisdictional error in the IAA Decision.
Further possible grounds
In remaining alert to the possibility of error in the IAA Decision the Court has had regard below to two further possible grounds on which the applicant appears to assert arguable jurisdictional error in the IAA Decision: see [44]-[50] below.
Application of the rules of evidence and reliance on the DFAT Report 2017
In the Affirmation at [4] the applicant refers to the IAA not applying the “normal rules of evidence” and only relying on the information in the DFAT Report 2017.
As is evident from what the Court has said above with respect to the IAA’s reliance on sources of information other than the DFAT Report 2017: see [28(a)(iii)] and [34(d)] above, the applicant’s assertion that the IAA relied only on information in the DFAT Report 2017 is factually incorrect, but, in any event, provides no basis, on its own, for an assertion that the IAA Decision was affected by jurisdictional error, because the choice of, and weight to be attributed to, country information was a matter for the IAA: NAHI at [11] per Gray, Tamberlin and Lander JJ; ADX17-FCA at [32] per Moshinsky J.
The answer to the applicant’s complaint that the IAA did not apply the “normal rules of evidence” lies in s.473FA(2) of the Migration Act which provides that the IAA in reviewing a decision “is not bound by technicalities, legal forms or rules of evidence”. There is, therefore, no statutory obligation imposed on the IAA to apply the rules of evidence when making a decision. Thus, even if there was a failure to apply the rules of evidence (and it is unnecessary to make a finding in relation thereto) it would not constitute a jurisdictional error.
In the above circumstances there is no jurisdictional error in either:
a)the IAA’s approach to the reliance upon country information, including its reliance on the DFAT Report 2017; and
b)by reason of any failure to apply the rules of evidence, which are not binding on the IAA in any event.
Lack of legal representation
It is well accepted there is no right to legal representation in migration review proceedings under the Migration Act (either before the IAA or before this Court): AMF15 v Minister for Immigration & Border Protection & Ors [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 (“AMF15”) at [51] per Flick, Griffiths and Perry JJ; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; WZASY v Minister for Immigration & Anor [2017] FCCA 1623 at [20]-[21] per Judge Lucev. It is not a requirement of procedural fairness for an applicant to have publically funded legal representation, nor is it a reasonable ground for an application or proceeding to be stayed because an applicant does not have such representation: AMF15 at [51] per Flick, Griffiths and Perry JJ.
The Court observes with respect to legal representation that there is no explanation by the applicant as to what, if any, steps he took to obtain legal representation at any stage before the IAA or this Court, and there is nothing to indicate that the applicant (who is not in an immigration detention facility) did not have an adequate opportunity to do so.
Ultimately, and relevantly, no jurisdictional error arises by reason of the applicant not being able to obtain legal representation in relation to the review by the IAA.
Conclusion and orders
The Court has concluded that the IAA Decision is not affected by jurisdictional error. 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-two (52) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 5 April 2019
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