DZQ16 v Minister for Immigration
[2019] FCCA 2609
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZQ16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2609 |
| Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (Authority) affirming decision of delegate not to grant applicant Safe Haven Enterprise Visa – whether Authority considered particular intent of evidence – whether Authority construed s.473DD(a) of the Migration Act 1958 (Cth) too narrowly. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36(2)(aa), 430, 473BB, 473CA, 473DD, 473EA, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | DZQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3660 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 August 2018 |
| Date of Last Submission: | 30 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Clark |
| Solicitors for the Applicant: | Varess |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the First Respondent: | HWL Ebsworth Lawyers |
ORDERS
The decision of the second respondent (Authority) made on 18 November 2016 affirming the decision (delegate’s decision) of a delegate of the first respondent made on 17 August 2016 not to grant the applicant a Safe Haven Enterprise Visa (SHEV) is quashed.
The Authority review according to law the delegate’s decision.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3660 of 2016
| DZQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) raises two questions. The first is whether the second respondent (Authority), in affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (Class XE) visa (SHEV), failed to consider evidence in relation to a claim and, for that reason, made a jurisdictional error. The second question is whether the Authority construed too narrowly the expression “exceptional circumstances” in s.473DD(a) of the Act and, for that reason, also made a jurisdictional error.
To be in a position to assess these two questions, it will be necessary first to set out the applicant’s claims for protection, the delegate’s reasons for refusing to grant the applicant a SHEV, the course of the review before the Authority, and the Authority’s reasons for affirming the delegate’s decision.
Claims for protection
Although the applicant stated his claims for protection on a number of occasions, it would be convenient first to set out the claims he made in a statutory declaration that accompanied his application for a SHEV.[1] Those claims may be summarised as follows:
[1] CB15-23
a)The applicant is a citizen of Sri Lanka, and a Tamil. He was born in Jaffna in the Northern Province of Sri Lanka, and his family home was in Jaffna District.
b)In about 1996 the applicant and his family were forced to relocate to a refugee camp in the Jaffna District. The camp was controlled by the Liberation Tigers of Tamil Eelam (LTTE). The applicant’s family remained there for about four years until they returned to the family home.
c)In about 2000 the (person who became the) applicant’s auntie’s husband, Mr S, was part of the LTTE. He had a big boat which formed part of the LTTE navy. Mr S left the LTTE in 2004, after he married the applicant’s auntie, but he remained supportive of the LTTE.
d)In 2007, while the applicant was on the boat owned by Mr S, Mr S assisted the LTTE by taking two persons from another boat and bringing them to shore. Shortly after this occurred, Mr S came to the attention of the Sri Lankan authorities for his involvement with the LTTE, and he was forced to leave Sri Lanka. The applicant believes Mr S went to India, but the applicant’s family is not sure where Mr S is.
e)One evening in or around November 2009 four officers from the Sri Lankan Army (SLA) came to the applicant’s home when the applicant was not there. The SLA officers told the applicant’s mother they believed the applicant was involved with the LTTE. The officers told the applicant’s mother to inform the applicant that he was required to attend SLA headquarters at 9:00 am the following day.
f)The applicant attended the SLA camp the following day with his mother and father. The applicant was dragged away from his parents into a room with one chair. There were two SLA officers and two CID (Criminal Investigation Department) officers; and they told the applicant to sit on the chair. The officers questioned the applicant about Mr S and his involvement with the LTTE; they told the applicant they believed he supported Mr S in his support of the LTTE. The applicant told the officers he had no knowledge of the activities of Mr S; he only helped Mr S as a fisherman. The officers also asked the applicant whether he knew anyone in the village who was associated with the LTTE. The applicant said he did not, but the officers asked how he could not know given he was from the village. The officers beat the applicant, in response to which the applicant said Mr S went to India sometime in 2007. After further interrogation the officers released the applicant.
g)About one week later the applicant was again requested to attend the SLA camp. The applicant did so with his father. The applicant was asked the same series of questions, and he was beaten. He was released but “they” told the applicant he was not allowed to go anywhere as they would be checking up on him.
h)The applicant’s parents decided it was safer for the applicant to go offshore, and that the best way was for the applicant to escape to Malaysia where he could seek refugee protection through the UNHCR.[2] It took about six weeks for the applicant to obtain a passport.
i)In the meantime, the applicant’s troubles continued. When passing through the naval checkpoint navy officers stopped the applicant and asked him questions. They told the applicant they knew he, his uncle, and the whole of the applicant’s family were supporters of the LTTE. The applicant was again required to report to the SLA camp where he was interrogated and beaten. That occurred on about six occasions.
j)In about February 2010 the applicant obtained his passport. He travelled to Colombo and, through an agent whom the applicant’s parents had engaged, the applicant travelled to Singapore with the intention of then travelling to Malaysia. The applicant, however, was denied entry at Singapore because the authorities did not believe the applicant had adequate funds to enter the country. The applicant returned to Colombo two days later, and the applicant immediately applied to have his passport reissued because there was a mistake in his name. The applicant remained in Colombo.
k)In March 2010 the applicant travelled to Bangkok as soon as he received his reissued passport. He stayed there for two days and then travelled to Malaysia by motorbike. He entered Malaysia with the assistance of a people smuggler. The applicant travelled to Kuala Lumpur where he stayed for four months. He there applied to the UNHCR for refugee status. The applicant received an UNHCR Asylum Seeker Certificate, but had not received a determination. The applicant decided to return to Sri Lanka because the applicant had no rights in Malaysia, and his parents could not afford to pay for him to stay in a hotel.
l)The applicant returned to Sri Lanka in the middle of 2010. He did not bring with him the UNHCR Asylum Seeker Certificate because “it would cause me further problems”. The applicant was interrogated for about six hours at Colombo airport by the CID. When the applicant said he was from Jaffna “they hit me”. The applicant was released after he signed a lot of forms.
m)Within three days of arriving in Sri Lanka, the applicant received a call from the M police station with a request he attend that station. The applicant attended, and he was again questioned about his uncle, where the applicant had been, and about the applicant’s involvement with the LTTE. The applicant was required to “come and sign an assurance every month”.
n)About two weeks later the applicant and his father went to the navy camp and discovered that the applicant’s fishing pass had been given away. The following day the applicant went to collect his pass, but he was initially told to go away and come back the following day. The applicant returned the following day to collect his pass and was again interrogated about how he was helping the LTTE, and where he had been. “They” hit the applicant, and scolded him for leaving the country.
o)Over the years and months that followed this interrogation life became unbearable. The applicant’s family had no money to help the applicant escape, and the authorities continued to keep a close watch on the applicant. Every six weeks or so that applicant “would be taken in, beaten, and interrogated by the SLA”. The applicant and his brothers had “problems with forced labour”. The Navy took “all the money and our fish”, and forced the applicant and his brothers to chop palm trees and transfer palm tree branches to the navy camp.
p)Eventually the applicant’s mother sold “our property” to raise enough money to enable the applicant to pay his way to Australia. The applicant knew it was not safe for him to remain in Sri Lanka, and that it was only a matter of time before the authorities would end his life.
q)In around September 2012, after the applicant left Sri Lanka, the SLA questioned the applicant’s younger brothers about the applicant’s whereabouts. The younger brothers informed the SLA the applicant was in Australia.
[2] That is, the United Nations High Commissioner for Refugees
The applicant was interviewed by the delegate on 1 June 2016. According to the delegate’s reasons for decision, the applicant brought with him a number of original documents.[3] Two are documents that are relevant to the grounds on which the applicant relies. One is described by the delegate as a letter from Savalkattu Rural Fisheries Organisation (SRFO) dated 6 June 2013 (SRFO Letter). The delegate states that this letter “indicated that they had been asked by the Army and Navy for the whereabouts of” the applicant.[4] There is in evidence before me two letters dated 6 June 2013 purportedly from SRFO, and both purportedly signed by the president of that organisation. It appears that the delegate intended to refer to the SRFO Letter, which states as follows (errors in original):[5]
[3] CB133-134, [20]
[4] CB134, [20], last dot point
[5] The letter is at CB291. The other letter purportedly from SRFO which is also dated 6 June 2013 is at CB119 and CB380. It states the applicant “fishing as employment for the last few years, left to Australia by Boat in May 2013 by the Boat due to the fear in Sri Lanka. The Security Forces are searching for him. He is unable to stay in Sri Lanka. Please help him as far as possible.”
My name is [name of president]. I am employed . . . Savalkattu Rural Fisheries Organization.
Mr [name of applicant] (Pass No. . . .) who did not go for fishing have been watched by 2Army &1 Navy in [day in 2012] Wednesday 10.am came to my Fisheries office.
They had the pass No . . . . with them.
The Army & Navy asked where is Mr [applicant’s name] & the answer Came that He has gone to Australia They asked me whether you Know this. I said I don’t anything.
They asked to give any information if it is possible. The Army inquired the brother of [the applicant] regarding this matter. The brother answered [the applicant] has gone to Australia.
The Army is having [the applicant] pass No . . . . with them.
If [the applicant], Comes back to Sri lanka don’t Know what will happen..?
The other document the delegate noted the applicant brought to the interview is a “Fishing Pass issued 20/10/2010 in the name of [name stated] – issued by the Sri Lankan Navy and bearing a photograph of the applicant”.[6] That appears to be a reference to a document that has writing on each side.[7] What appears to be the front of the document is headed “SRI LANKA NAVY FISHING PASS – MANDATIVU”. It contains a photograph on the top right hand corner. On the left, there is printed the words “Card No”, “Entry/Exit”, and “Boat No.” next to each of which there is handwritten numbers and letters. Under “Boat No” there is a three digit number written by hand, and it is the number that the SRFO Letter states is the pass number the army had with them. On the right of that number are the printed words “COMMANDING OFFICER” over which there is a seal, and above which there is a signature. On what appears to be the reverse side of the document there are printed on separate lines the words “Address”, “Name”, “NIC No”, and “Date of Issue”. On the right of each of these printed words there is handwriting providing an address, a name, a “NIC No”, and the date of issue, namely, “20-10-2011”.[8]
[6] CB134, [20], third dot point. The delegate appears to have made an error that the fishing pass was issued on 20.10.2010. Later in her reasons for decision the delegate states the fishing pass was dated “20/10/2011” - CB141, [87]
[7] CB368-369
[8] The delegate noted there are some “minor differences of the spelling” of the applicant’s name on the identity documents. That is the case with the name stated in the fishing pass. The delegate “considered these to be variances as a result of transliteration” – CB135, [38]
Delegate’s reasons
The delegate accepted or found that the applicant’s place of origin is the Jaffna District; the applicant’s four siblings and parents continue to live in this area; the applicant’s family derives an income from fishing and no harm has come to them; the applicant and his family were displaced during the civil conflict as stated by the applicant and relocated to an LTTE controlled refugee camp in Jaffna District from 1996 to 2000; the applicant, along with others, performed clearing operations after the civil conflict, as directed by the SLA; the authorities have made no enquiries about the applicant since approximately one month after the applicant left Sri Lanka in September 2012; the applicant is a Tamil and of the Catholic faith; and the applicant travelled to Singapore and to Malaysia.
The delegate, however, did not accept the applicant travelled to Singapore or Malaysia because he feared harm, because the applicant returned to Jaffna District, and this was inconsistent with his stated fear of harm. The delegate found the applicant travelled to Singapore and then to Malaysia to seek employment. The delegate did not accept that after he returned from Malaysia the applicant was picked up for any reason other than routine monitoring. The delegate did not accept the applicant was suspected of using his family’s boats to transport LTTE members because he had been issued with a fishing pass dated 20.10.2011, and it is implausible the Sri Lankan navy would have issued the applicant such a pass if they suspected him of using the family’s boats to transport LTTE members. The delegate also did not accept as credible that the applicant was or continues to be of adverse interest to the Sri Lankan authorities.
Proceeding before Authority
There is no issue that the delegate’s decision is a “fast track reviewable decision” within the meaning of s.473BB of the Act. As required by s.473CA, therefore, the delegate’s decision was referred to the Authority for review. That occurred on 17 August 2016.
By letter dated 28 September 2016 the applicant’s representative provided submissions to the Authority.[9] Those submissions address a number of aspects of the delegate’s decision. Relevant to the grounds on which the applicant relies is the submission made in relation to the delegate’s finding that she did not accept that the authorities in Sri Lanka have any further interest in the applicant, “given that they have not visited his home and made enquiries about him since 2012”, and given his “his family carry out their daily tasks without interest from the authorities”.[10] The representative submitted that it is unsurprising that the authorities were only interested in the applicant and his uncle, because the applicant claimed it was only the applicant and his uncle who were on the boat which picked up LTTE personnel. The representative further submitted it was not surprising the authorities made no further inquiries about the applicant after 2012 because the authorities knew he was overseas. The representative submitted this is confirmed by the SRFO Letter. The representative submitted the delegate failed to have regard to that letter.
[9] CB496-503
[10] CB499, [12], referring to the delegate’s reasons at CB138, [60]
Also relevant to the grounds on which the applicant relies is a further statutory declaration the applicant made, a draft of which the applicant’s representative provided to the Authority at the time the representative provide the submissions.[11] The statutory declaration deals with two matters. The first concerns fishing passes (fishing pass system information). The applicant states there were two fishing passes issued to him. They were identical except one was black and white, and the other was in colour. Each day the applicant went fishing he handed the black and white pass to the authorities, and the authorities gave the applicant the colour fishing pass “which I needed to order fish”. The applicant further states that it was after he did not show up to fish that the applicant came to the authorities’ attention, “and when they used the colour version of my Fishing Pass to make enquiries about my whereabouts”. The second matter with which the statutory declaration deals is the applicant’s attending an Anzac day parade in Brisbane and observing Sri Lankan police who were present as part of an international peace keeping force.
[11] CB502-503
Authority’s reasons
The Authority first identified the information that was before it, and whether any of it was “new information”. The Authority here referred to the applicant’s further statutory declaration, noting that it contained an additional two claims. As to the first of these two claims – the fishing pass system information – the Authority was satisfied this constituted information the applicant could have been provided to the delegate, and therefore did not meet the requirement of s.473DD(b) of the Act.[12] (I consider s.473DD of the Act later in these reasons.) Further, the Authority was not satisfied there are exceptional circumstances to justify its considering the fishing pass system information. The Authority relied on the applicant’s having been placed “squarely on notice to provide all details he considered to be relevant to his claims”. The Authority said that it was not open to consider as an exceptional circumstance that if it does not consider the fishing pass system information it will result in the applicant as a person to whom Australia owes protection obligations being returned to Sri Lanka.[13]
[12] CB528, [12]
[13] CB528, [13]
The Authority then set out in some detail the applicant’s claims for protection.[14] Among the matters set out in this part of the Authority’s reasons is the applicant’s claims that, after he departed Sri Lanka by boat in August 2012, in or around September 2012 the SLA questioned his younger brothers about his whereabouts, and his younger brothers informed them the applicant was in Australia.[15] Of relevance to the grounds on which the applicant relies is the absence from this part of the Authority’s reasons of any reference to the SRFO Letter, or to the matters stated in that letter.
[14] CB529-532, [20]
[15] CB532, [20], fourth-last dot point
In the next part of its reasons the Authority set out its findings of fact. The Authority accepted the following matters:
a)The applicant is a Tamil, and a Catholic; the applicant’s home village and place of origin in the north of Sri Lanka is an area that was under the military and administrative control of the LTTE for significant periods during the civil conflict in Sri Lanka ending in 2009; and the applicant and his family experienced relocation in around 1996 during the civil war by being forced to relocate to a refugee camp in Jaffna District.[16]
b)The applicant has an uncle who was a member of the LTTE between 2000 and 2004; during that period the uncle used his boat as part of the LTTE “Navy Tigers”; the uncle’s involvement ceased in 2004 when he married the applicant’s aunt; and after 2004 the uncle supported the LTTE, and from time to time provided assistance to the LTTE at sea using his boat.[17]
c)The uncle assisted the applicant with fishing techniques and skippering boats; in 2007 the applicant was present on the boat when the uncle transported two LTTE cadres to shore, and that shortly after this time the uncle departed Sri Lanka illegally to India to escape the attention of the Sri Lankan authorities.[18]
d)The applicant faced routine questioning by the authorities as a Tamil fisherman during the conflict and for a period afterwards; he was from time to time questioned by the authorities about his connections to his uncle between 2007, when his uncle departed for India, until November 2009 when he was formally interrogated in relation to his uncle.[19]
e)Between December 2009 and January 2010 the applicant was interrogated and mistreated on about a further six occasions, and questioned about his connection to his uncle and suspected links to the LTTE.[20]
f)In February 2010 the applicant applied for and was issued a passport through lawful means, that he applied for a new passport after he noticed that his name had been spelled incorrectly on the passport that had been issued to him; and that the applicant only used the second passport to travel, first to Singapore (where he was refused entry), and then to Malaysia through Thailand; and the applicant returned to Sri Lanka in June 2010.[21]
g)The applicant was questioned in the manner he claimed after he returned from Malaysia.[22]
[16] CB532, [21], [22]
[17] CB532, [23]
[18] CB532-533, [24]
[19] CB533, [26]
[20] CB533, [27]
[21] CB533, [28], [29]
[22] CB534, [32]
The Authority, however, did not accept that during the period 2010 to 2012 the applicant was taken in every six weeks and continuously beaten and interrogated, or that he was regularly made to report to the local police. In this part of its reasons, the Authority relied on one reason for not being satisfied; and that is it considered that, had the Sri Lankan authorities maintained any serious concerns in relation to the applicant’s LTTE connections, including his uncle, he would have faced more serious consequences, including but not limited to detention in one of the many rehabilitation camps set up by the Sri Lankan government for persons suspected of having had a significant connections to the LTTE.[23] The Authority was “accordingly not prepared to accept the applicant’s claim that around a month following his departure his younger brothers were questioned about his whereabouts by the SLA and at that time advised the applicant was in Australia”.[24]
[23] CB534-535, [37]
[24] CB535, [38]
Having made these findings, the Authority considered whether the applicant was a “refugee” within the meaning of s.5H(1) of the Act. First, it considered whether the applicant had a well-founded fear of persecution based on an imputed connection to the LTTE due to the applicant’s ethnicity, his place of origins, and his uncle’s activities. After referring to country information, including the UNHCR’s current Eligibility Guidelines for Sri Lanka, and those aspects of the applicant’s claims it accepted, the Authority repeated the finding it had already made that it did not accept that, from 2010 until his departure from Sri Lanka the applicant continued to be questioned or be the subject of attention by reference to his uncle. The Authority relied on the following:[25]
a)The Authority considered it significant the applicant was issued with passports through lawful means in February and March 2010, and that the applicant had been able to travel to and from Singapore, and then depart for Thailand in March 2010 without incident.
b)Had the Sri Lankan authorities maintained any ongoing interest in the applicant as a person with suspected LTTE connections, “he would not have subsequently been reissued a Fishing Pass by the SLN in October 2011, taking into account available information concerning the Fishing Pass system”.
[25] CB538, [51]
The Authority further concluded that, to the extent it found the Sri Lankan authorities had concerns about the applicant’s LTTE connection, “any such concerns [on the part of Sri Lankan authorities] had been dispelled and the applicant would not have either been issued with passports enabling travel or a renewed Fishing Pass, had the applicant continued to be of adverse interest in this regard”.[26]
[26] CB538, [52]
The Authority then considered whether the applicant had a well-founded fear of persecution because of his religion, or because he would be considered a failed asylum seeker, or because he departed Sri Lanka illegally and, for reasons it is not necessary to set out in the reasons, the Authority answered those questions adversely to the applicant. The Authority also considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. Again for reasons it is unnecessary to set out here the Authority, relying on findings it had already made, was not satisfied the applicant met the complementary protection criterion.
Ground 1
The applicant relies on two grounds of application. The first ground is as follows:
The Authority engaged in a jurisdictional error by failing to consider the applicant’s evidence.
Particulars
a.The applicant claimed to fear harm from military authorities in Sri Lanka owing to his perceived ties to the LTTE.
b.There was evidence before the Delegate that military authorities in Sri Lanka had sought to locate the applicant after he had fled Australia in the form of a letter from the Savalkattu Rural Fisheries Organisation dated 6 June 2013 referring to an incident in November 2012.
c.Submissions were made to the Authority by explicit reference to this letter stating that it supported the claims made by the applicant and was not considered by the Delegate.
d.The Authority found that the applicant was not of interest to military authorities after approximately 2010.
e.In making its finding, the Authority failed to consider the letter.
Parties’ submissions
In his written submissions the applicant submits the SRFO Letter was highly relevant and important to the applicant’s claims. More particularly, he submits the letter constituted evidence that was clearly “relevant, cogent and important”. First, it corroborated the applicant’s claims that in around September 2012 his younger brothers were questioned by the SLA about the applicant’s whereabouts and they informed the SLA the applicant was in Australia. Second, it was evidence of an additional incident of the authorities making enquiries of the applicant’s location after he left Sri Lanka. The applicant further submits the Authority did not consider the SRFO Letter and, by failing to do so, the Authority made a jurisdictional error of the sort found in Minister for Immigration and Citizenship v SZRKT.[27]
[27] [2013] FCA 317, at [111]-[112]
In his oral submissions counsel for the applicant relied on passages from the judgment of the Full Federal Court in Minister for Immigration and Border Protection v SZSRS,[28] which considered the circumstances in which it is legitimate to infer from evidence not being referred to in a written statement given under or purportedly under s.430 of the Act that the decision maker did not consider that evidence. Counsel submitted that the principles stated in SZSRS for determining whether the absence of a reference to evidence may ground a finding that the evidence was not considered applies equally to the Authority. Counsel submitted that, under those principles, from the Authority’s not having referred in its reasons for decision the SRFO Letter it should be inferred the Authority did not consider the letter.
[28] [2014] FCAFC 16, at [34]
In his written submissions, the Minister accepts the Authority did not in its reasons refer to the SRFO Letter. The Minister also accepts it is open to infer from the Authority’s not expressly referring to the SRFO Letter that the Authority did not consider the letter to be material to its decision.[29] The Minister submits, however, that the question whether an inference should be drawn that the Authority did not consider the SRFO Letter to be material is different from the question whether an inference should be drawn that the Authority did not consider the SRFO Letter at all.[30] The Minister submits it should not be inferred the Authority did not consider the SRFO Letter but, instead, it should be inferred the Authority did not refer to the SRFO Letter because it did not consider it to be material.[31]
[29] Submissions of the First Respondent, [12]. The Minister refers to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
[30] Submissions of the First Respondent, [12]
[31] Submissions of the First Respondent, [13]
In support of his submission that it should not be inferred the Authority did not consider the SRFO Letter the Minister relies on the Authority having expressly referred to the applicant’s representative’s submission which, in turn, refers to the SRFO Letter.[32] In support of his submission that it should be inferred the Authority did not refer to the SRFO Letter because it did not consider the letter material, the Minister relies on the following:
a)The applicant claimed enquiries had been made of him by the authorities after the applicant left Sri Lanka, and the Authority addressed that claim.[33]
b)The Authority’s focus in rejecting the applicant’s claim that was of interest to the Sri Lankan authorities when he departed in 2012 was based on the Authority’s findings about the events in 2010 to 2012 before he left Sri Lanka.[34]
c)Any additional evidence of events occurring after the applicant left Sri Lanka did not logically bear on the Authority’s assessment of whether the applicant was of interest to the authorities at the time he left Sri Lanka.[35]
d)The Authority did not reject the applicant’s claims on the basis that he was generally not a credible witness, which assessment might have been influenced by the SRFO Letter.[36]
[32] Submissions of the First Respondent, [14]
[33] Submissions of the First Respondent, [15(a), (b)]
[34] Submissions of the First Respondent, [15(c)]
[35] Submissions of the First Respondent, [15(d)]
[36] Submissions of the First Respondent, [15(e)]
The Minister further submits in his written submissions that, even if the Authority overlooked the SRFO Letter, the Authority did not make a jurisdictional error.[37] Here the Minister relies, or appears to rely, on the following matters:
a)That the Authority did not expressly refer to the SRFO Letter does not mean it did not consider it.[38]
b)It cannot be said that the Authority overlooked the claims to which the SRFO Letter might have been relevant.[39]
c)The significance of the SRFO Letter has to be considered in the context of the Authority’s findings. While the letter potentially supports a claim that enquiries were made about the applicant after he left Sri Lanka, that evidence cannot logically have born on the question whether the applicant was continuously beaten and interrogated between 2010 and 2012.[40]
d)Unlike the facts in SZRKT, the Authority did not draw adverse credibility findings against the applicant.[41]
[37] Submissions of the First Respondent, [17]
[38] Submissions of the First Respondent, [17]
[39] Submissions of the First Respondent, [19]
[40] Submissions of the First Respondent, [20]
[41] Submissions of the First Respondent, [22]
In his oral submissions, counsel for the Minister submitted that I ought not to infer the Authority did not consider the SRFO Letter. He further submitted, however, that even if I so infer that I should find that even if the Authority had considered the SRFO Letter, it would have made no difference to the Authority’s decision, having regard to the manner in which the Authority in fact reasoned. And here, counsel relied on the Authority’s not being prepared to find that about one month before the applicant departed from Sri Lanka the authorities enquired of the applicant’s brothers about the whereabouts of the applicant.
From these competing submissions, two issues arise. Did the Authority overlook or fail to consider the SRFO Letter? Assuming the Authority did overlook or fail to consider that letter, did the Authority make a jurisdictional error?
Did the Authority overlook or fail to consider the SRFO Letter?
Both parties accept that, by itself, the Authority’s not referring to the SRFO Letter in its reasons for decision does not necessarily mean the Authority overlooked or failed to consider it. That is so because there might be a number of possible reasons why the Authority did not refer to the SRFO Letter in addition to the Authority’s simply having overlooked or failed to consider it. It is possible, for example, that the Authority was aware of the SRFO Letter but it did not consider it to be relevant and, for that reason, decided not to refer to it; or it may have considered the SRFO Letter and found it to be relevant but decided not to accept it, and it did not consider that it was required to record this finding in its reasons, or it simply, through oversight, failed to include such finding in its reasons.
In determining the most reasonable, and therefore, most probable, explanation for the Authority’s having failed in its reasons to refer to the SRFO Letter, there are at least three matters that may be relevant to consider. One is whether there exists a provision that prescribed the matters the Authority ought to have set out in its decision. That is relevant because it is reasonable to assume the Authority would be aware of such provision, and would be willing to comply with the obligations imposed by such provision. From that it may reasonably be open to infer that the Authority did not include in its reasons for decision a particular item of evidence or other information because it understood it was not required to do so. This process of reasoning is supported by the authorities, and, in particular, by the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf.[42]
[42] [2001] HCA 30; (2001) 206 CLR 323. Gleeson CJ agreed with their Honours reasons but made a number of additional comments.
Yusuf concerned s.430(1) of the Act which applied to decisions made by the Refugee Review Tribunal (RRT) (and now applies to decisions made by the Administrative Appeals Tribunal (AAT)) when reviewing decisions of the Minister of or his delegate refusing to grant an applicant a protection visa. Subsection 430(1) as it then stood required the RRT, when making a decision on a review, to make a written statement that set out the decision of the RRT on review; set out the reasons for the decision; set out the findings on any material questions of fact; and referred to the evidence or any other material on which the findings of fact were based. The Full Federal Court in a number of decisions had construed “material facts” in s.430(1) to mean facts that were in an objective sense material to an applicant’s claims, and had held that s.430(1) required the RRT to set out such material facts in its written statement and that the RRT will have acted contrary to s.430(1) of the Act if it failed to do so. McHugh, Gummow and Hayne JJ (with whose reasons Gleeson CJ agreed) disapproved of Full Federal Court’s construction of s.430(1) of the Act. Their Honours said:[43]
Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. . . . But it is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
[43] [2001] HCA 30; (2001) 206 CLR 323, at [68]
Although their Honours found s.430(1) of the Act only required the RRT to set out what it considered to be the material facts, their Honour observed that it would be permissible to infer from the RRT’s not having made a particular finding of fact that it did not consider that the existence or non-existence of such fact was material.[44]
The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
[44] [2001] HCA 30; (2001) 206 CLR 323, at [69] (emphasis in original)
It may be observed that Yusuf was concerned with only one of the requirements provided for by s.430(1) of the Act, namely, the setting out in a statement of the RRT’s actual findings of material fact. Subsection 430(1), however, required the RRT (and in its current form requires the AAT) to include other matters in the statement it required the RRT to make. One is the requirement that the RRT refer to “the evidence or any other material on which the findings of fact were based”. Just as it may be open to infer that any matter not mentioned in the s.430(1) statement was not considered by the RRT to be material, so too it may be open to infer that any evidence or material not mentioned in a statement made under s.430(1) of the Act was not evidence or material on which the RRT’s findings were based.
Section 430 of the Act does not apply to the Authority. There is, however, an equivalent provision, namely, s.473EA(1) of the Act. Under that subsection if the Authority makes a decision on a review under Part 7AA, it must make a “written statement that (a) sets out the decision of the Authority on the review; and (b) sets out the reasons for the decision; and (c) records the day and time the statement is made”. This subsection must be read with s.25D of the Acts Interpretation Act 1901 (Cth) which provides that where “an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”.
A second matter that may be relevant to determining whether the Authority overlooked or failed to consider the SRFO Letter is what questions of fact the Authority considered to be material. If, for example, the Authority considered a particular question to be a material question of fact, it made a finding of fact in relation to that question of fact, the SRFO Letter was relevant to the determination of that question of fact, but in making a finding in relation to that material question of fact it referred to some evidence that was relevant, but not to the SRFO letter, that may be a basis for inferring that the Authority overlooked the SRFO Letter or did not consider it.
A third matter that may be relevant to determining whether the Authority overlooked or failed to consider the SRFO Letter is the degree of relevance, if any, it has to what the Authority considered to be a material question of fact. If, for example, the SRFO Letter has a high degree of apparent relevance, particularly when compared to evidence the Authority has considered when making a finding on that material question of fact, the higher would be the likelihood the Authority did not refer to the SRFO Letter because it either overlooked or did not consider it.
In the light of this discussion, I now consider whether, as submitted by the applicant, the Authority overlooked or failed to consider the SRFO Letter. The starting point is the Authority’s finding that it was not satisfied that around a month after he departed Sri Lanka the SLA questioned the applicant’s younger brothers about the applicant’s whereabouts and the applicant’s brothers told the SLA the applicant was in Australia.[45] From the Authority’s having made this finding it is reasonably open to infer, and I do infer, that the Authority considered the question whether the SLA approached the applicant’s brothers to be a material question of fact. In determining that question, the Authority considered three items of relevant evidence – the applicant’s evidence that the SLA did approach the applicant’s brothers, evidence that the applicant was lawfully issued with a passport on two occasions, and evidence that the applicant was issued with a fishing pass. The SRFO Letter, however, if accepted as authentic, was also apparently relevant to whether the SLA had approached the applicant’s brothers: if accepted it was reasonably capable of supporting the applicant’s evidence that the SLA approached his brothers. Given the Authority referred to and considered three items of apparently relevant evidence when determining it did not accept the SLA approached the applicant’s brother, the likely explanation for its not also having referred to a fourth item of apparently relevant evidence – the SRFO Letter – when considering that question is it either overlooked or did not consider that letter.
[45] CB535, [38]
That the Authority considered the question whether the SLA approached the applicant’s brother does not imply, as the Minister submits, that the Authority did not overlook or otherwise did not consider the SRFO Letter. When considering that question the Authority identified and considered three items of apparently relevant evidence. That implies that this is the only evidence the Authority considered when determining that question, which in turn implies the Authority overlooked, or otherwise did not consider, a fourth item of apparently relevant evidence, namely, the SRFO Letter.
Further, I do not accept the Minister’s submission that the question whether the SLA approached the applicant’s brothers after the applicant left Sri Lanka did not logically bear on the Authority’s assessment of whether the applicant was of interest to the authorities at the time he left Sri Lanka. If the SRFO Letter were accepted as authentic, and if the statements made in it were accepted as true, this could reasonably have supported the applicant’s claims that from 2010 until 2012 when he left Sri Lanka the applicant was taken in every six weeks and continuously beaten. How? The SRFO Letter could reasonably support the inference that the SLA had an interest in the applicant after he left Sri Lanka because it had an interest in the applicant before he left Sri Lanka; the nature of the interest the SLA had shown in the applicant before he left Sri Lanka is that which the applicant claimed it was, namely, a suspicion that the applicant was linked to the LTTE; and, given the nature of their interest in the applicant, the SLA took in the applicant every six weeks and interrogated and beat him.
I find, therefore, that the Authority overlooked or otherwise failed to consider the SRFO Letter.
Jurisdictional error?
Whether the Authority’s overlooking or otherwise not considering the SRFO Letter has the consequence that the Authority made a jurisdictional error may be approached in two ways. One is to rely on the principle that has been applied to decisions of the RRT that the failure by the RRT to consider evidence may constitute a jurisdictional error if, as a consequence, it cannot fairly be said that the RRT’s decision is one that was made after considering the evidence and arguments advanced by the applicant. This principle has been stated in a number of authorities. It is sufficient if I refer to two. One is the following passage from the judgment of the Full Federal Court in WAEE v Minister for Immigration and Indigenous Affairs (emphasis added):[46]
It is central to the exercise of the dispositive powers conferred by s 415 that the tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426.
[46] [2003] FCAFC 184, at [44]. This passage was quoted with approval by the Full Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, at [49]
The second authority is the following passage from the judgment of Gummow and Gaudron JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj:[47]
The function of the Tribunal was to conduct a review of the delegate’s decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument. And it is implicit from the terms of s 368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced against the cancellation of Mr Bhardwaj's visa.
The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a “decision on review” for the purposes of ss 367 and 368 of the Act.
[47] [2002] HCA 11; 209 CLR 597 at [42] (emphasis added) (McHugh J agreeing [63])
A second way to approach the question whether the Authority made a jurisdictional error by overlooking or otherwise failing to consider the SRFO Letter is by applying the principles stated in the following passage from the judgment of Robertson J in SZRKT:[48]
In my opinion there is no clear distinction in each case between claims and evidence . . . . The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[48] [2013] FCA 317; (2013) 212 FCR 99, [111]
On either approach the Authority’s overlooking or otherwise not considering the SRFO Letter led it into jurisdictional error. Had the Authority considered the SRFO Letter, it is conceivable it could have accepted its authenticity and also the truth of the matters stated in the letter. Had the Authority accepted the authenticity of the SRFO Letter and the truth of the matters stated in it, that, in turn, could have led the Authority to give credit to the applicant’s claim that from 2010 to the time he departed Sri Lanka in 2012 he was taken every six weeks and continually beaten and interrogated, and that he was regularly made to report to the local police. That is so for reasons I have already given: the SRFO Letter could reasonably support the inference that the SLA had an interest in the applicant after he left Sri Lanka because it had an interest in the applicant before he left Sri Lanka; the nature of the interest the SLA had shown in the applicant before he left Sri Lanka is that which the applicant claimed it was, namely, a suspicion that the applicant was linked to the LTTE; and, given the nature of their interest in the applicant, the SLA took in the applicant every six weeks and interrogated and beat him.
Seen in this light, the SRFO Letter was material that was important to the proper exercise of the Authority’s function. It was material the Authority ought to have considered with a view to determining whether the SRFO Letter was authentic; and whether, if authentic, the statements contained in it were true. And if the Authority were to accept the statements contained in the SRFO Letter were true, it ought to have weighed its acceptance of the truth of the statements made in the letter with all other evidence to determine whether it was satisfied the applicant met the criteria for the grant of a SHEV.
To say that the Authority could have accepted the authenticity of the SRFO Letter and the truth of the statements contained in it, had the Authority considered the SRFO Letter, is not to suggest it is likely the Authority would have so decided had it considered the SRFO Letter. The significance of the SRFO Letter, however, was a matter for the Authority to consider and assess in the context of the other evidence that was before it and findings it made, many of which favoured the applicant. The jurisdictional error lies in the Authority’s failure to consider the SRFO Letter. This is not a case where I am satisfied that, had the Authority considered the SRFO Letter, that could not have made any difference to the outcome of the applicant’s case before the Authority. On the contrary, it is a case where I am satisfied that, given the findings it had made, Authority’s considering the SRFO Letter could realistically have resulted in the Authority making a different decision.[49]
[49] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]
For these reasons ground 1 is made out.
Ground 2
Ground 2 is as follows:
The Authority engaged in jurisdictional error by failing to comply with s 473DD of the Act.
Particulars
a.The applicant swore a statutory declaration and provided it to the Authority in relation to the Authority’s review of the Delegate’s Ddecision [sic].
b.In that statutory declaration the applicant provided evidence of how a fishing card system operated which was relevant to support evidence he had given that military authorities had sought to locate him after he had fled Sri Lanka.
c.The Authority found that the information was new information and thus s 473DD applied.
d.The Authority refused to consider the evidence on the basis that s 473DD(b)(i) was not made out in the circumstances.
e.The Authority failed to consider whether s 473DD(b)(ii) applied to the evidence.
In his written submissions the applicant said that ground 2 “is now put that the Authority fell into error by too narrowly considering the scope of “exceptional circumstances: in s 473DD(a) of the Act”.[50] The applicant submitted as follows:[51]
In this case, it appears that the Authority considered the fact that the information could have been provided earlier as determinative of its finding that there were no exceptional grounds for considering the information. While the Authority then went on to reject one of the arguments put forward by the Applicant; “Furthermore, the new argument …”, this does not alter the fact that the basis on which the Authority rejected the information was, in essence, for the same reasons that it considered that s 473DD(b)(i) of the Act was not made out.
[50] Applicant’s Outline of Submissions, [16]
[51] Applicant’s Outline of Submissions, [23]
I do not accept the applicant’s submission. The applicant set out in his statutory declaration which contained the new information the matters which he claimed gave rise to exceptional circumstances to justify the Authority’s considering the new information. Counsel for the applicant did not submit there were matters other than those the applicant identified in his statutory declaration that could reasonably have been considered by the Authority to constitute exceptional circumstances. As submitted by counsel for the Minister, the Authority addressed and considered each of the matters on which the applicant relied as constituting exceptional circumstances.[52]
[52] The Authority did so at CB528, [13]
Ground 2, therefore, fails.
Disposition
Given the applicant has succeeded on ground 1, I propose to order that the Authority’s decision be quashed, and that the Authority consider the application according to law. I propose to deal with the question of costs when I pronounce my orders.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 20 September 2019
Key Legal Topics
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Administrative Law
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Immigration
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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Jurisdiction
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