Eai16 v Minister for Immigration

[2020] FCCA 397

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAI16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 397

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse to grant to the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa – applicant claimed that Immigration Assessment Authority committed jurisdictional error in not giving to the applicant information pursuant to s.473DE of the Migration Act 1958 (Cth) in relation to statements provided by the applicant in support of an earlier unsuccessful visa application which was claimed to be information not before the Minister for Immigration and therefore new information for the purposes of s.473DC of the Migration Act 1958 (Cth) – earlier statements of the applicant found to have been before the Delegate of the Minister for Immigration and in any event did not contain a rejection, denial or undermining of the applicant’s claims – applicant fails to establish any jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 46A, 91K, 473CA, 473CB, 473DA, 473DC, 473DE

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
DTK17 v Minister for Immigration and Border Protection (2018) 265 FCR 538
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534

Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Ridsdale v Clifton (1877) 2 PD 276

Applicant: EAI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3686 of 2016

Judgment of: Judge Dowdy

Hearing date: 13 November 2018

Date of Last Submission: 7 March 2019

Delivered at: Sydney

Delivered on: 27 February 2020

REPRESENTATION

Counsel for the Applicant: Mr R. Chia of Counsel

Counsel for the First Respondent: Mr C. Lenehan of Counsel

Solicitors for the First Respondent: Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Amended Application filed in this Court on 6 October 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3686 of 2016

EAI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Sri Lanka of Tamil ethnicity aged 31 years.  

2. By Amended Application filed in this Court on 6 October 2017 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 8 December 2016 under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 24 August 2016 refusing to grant to him a Safe Haven Enterprise (Subclass 790) visa (Protection visa).

Background

1. The Applicant left Sri Lanka by boat on 6 September 2012. That boat was intercepted on 22 September 2012 and the Applicant was detained at Cocos Island on 26 September 2012.

2. On 5 September 2013 the Applicant lodged an application for a Protection (Class XA) (Subclass 866) visa under cover of a letter dated 16 August 2013 from his migration agents, Playfair Visa and Migration Services (Playfair). However, this visa application was invalid by force of ss.46A and 91K of the Act (invalid Protection (Subclass 866) visa application). Included within his invalid Protection (Subclass 866) visa application was a Statement of the Applicant dated 8 August 2013 (August 2013 Statement) comprising 20 paragraphs. At [5] – [7] it was claimed that “in about 2005 when the Applicant was 17” and studying for his O-Levels at secondary school there was a round-up by the Sri Lankan Army (SLA) of Tamil boys under the suspicion that they belonged to the Liberation Tigers of Tamil Eelam (LTTE). They were taken to the SLA camp, tied up and cruelly treated and constantly interrogated for 15 days, but were then released. Paragraphs [6] and [7] claimed:

   [6]The SLA members requested our personal information and details and used the information we provided to undergo checks about us. After this, we were released but we were told we must report back to the SLA whenever requested to do so.

   [7]After this time, I was constantly asked to report back to the same SLA camp and this occurred for about three weeks then ended. I then took my O-Level exams but did not pass due to the disruption to my studies that had occurred.    

3. On 13 August 2015 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making his application for the Protection visa through Playfair on 21 December 2015. Included within the Protection visa application was a further Statement of the Applicant dated 9 November 2015 (November 2015 Statement), which in connection with the round-up of the Tamil boys by the SLA at [16] – [18] claimed:

   [16]The SLA members took our personal information and checked if what we said was true. They called our parent’s and accepted we were students.

   [17]We were released but we were told we must report back to the SLA whenever requested to do so.

   [18]After this, my parent’s had to report to the SLA every week. I was expected to report every fortnight. I tried to take my O-Level exams but did not pass due to disruption to my studies which had occurred. To go to school I had to pass the army camp. I was constantly scared of what they would do and if they would detain me again. I found it impossible to focus on my studies.

4. The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:

   a)who entered Australia after 13 August 2012 but before 1 January 2014;

   b)who was not taken to a regional processing country;

   c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and

   d)who made, as he did, a valid application for a Protection visa.

5. Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.

6. I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 per Griffiths J at 538 – 541 [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Claims for Protection

1. The Applicant’s claims to protection were summarised at [3] of the Decision Record of the IAA, as follows:

   [3]•        [The Applicant] fears harm from the Sri Lankan Army (SLA), the Karuna Group and associated groups if returned to Sri Lanka because of:

   •his Tamil ethnicity;

   •his imputed political opinion due to the significant financial support he and his named uncle (V) provided to the Liberation Tigers of Tamil Eelam;

   •his imputed political opinion as a young Tamil male who resided in the Eastern Province during the war and who was previously suspected as being involved with the LTTE;

   •his imputed political opinion as someone who wishes to facilitate the emergence of the LTTE while living abroad due to his attendance at martyr’s day celebrations and posting on Facebook;

   •his imputed political opinion due to his complaints given to the Human Rights Commission (HRC); and

   •his being a failed Tamil asylum seeker; having spent a considerable amount of time abroad and engaged in political activities; his suspected previous involvement with and funding of the LTTE and as a young Tamil male from the Eastern Province of Sri Lanka.

2. The Applicant’s claims were also summarised in a post-Delegate interview submission dated 27 May 2016 from a solicitor of Playfair, as follows:

   Summary of Claims

   Our client raised a number of reasons why [the Applicant] is perceived as having links to the LTTE, which need to be considered cumulatively and cannot be dismissed in isolation. A background of his claims are as follows:

   • He was born on 29 August 1988 in Paddiruppu, Kaluwanchikudy, Batticaloa, Eastern Province, Sri Lanka.

   • Growing up as a young Tamil man, he was exposed to continual harassment and ill-treatment at the hands of the Sri Lankan army (‘SLA’).

   •In 2005, he was rounded up by the SLA, along with other Tamil males, under suspicion of being LTTE. They were held for 15 days and were continually interrogated and beaten and subjected to inhuman and degrading treatment or punishment by being stripped naked and beaten. This incident resulted in [the Applicant] becoming injured and being knocked unconscious.

   • After this incident, he was forced to report fortnightly to the SLA.

   • Upon finishing school, he worked for his uncle, [V], who owned his own company called Rova Group of Companies. The Rova Group, held government contracts to build schools and hospitals and roads within the area. He worked as his uncle’s close associate and supervised his uncle’s business when his uncle was unavailable.

   • While working for his uncle, he became involved with facilitating his uncle’s financial support of the LTTE. He would sign checks on behalf of his uncle that went towards financing the LTTE and assisted his uncle’s company in providing the LTTE with food, vehicles, materials needed and construction equipment.

   • While working for his uncle, the Karuna Group began extorting his uncle’s business for financial support. On one occasion, the extortion demands were complied with, however on a second occasion the money demanded was not paid.

   • On one occasion, he witnessed his uncle being abducted by individuals associated with the Karuna Group and the SLA, in response to failing to comply with the extortion demands.

   • Upon seeing his uncle abducted he phoned his family and then went to the family home to discuss the incident. Later that day, he returned to the office to lock up. Upon returning, he encountered members of the Karuna Group and the SLA at the office. He learnt his uncle had escaped from them and the SLA/ Karuna Group members were questioning him as to where his uncle was.

   • The SLA/Karuna Group Members confiscated computers at the office, as well as other materials and vehicles, which belonged to the company.

   • The applicant was beaten and then taken back to the family home, where he along with other family members remained under house arrest for 9 days, while his uncle was being searched for.

   • After 9 days, the applicant was taken to the Karuna camp and beaten while being interrogated as to his uncle’s whereabouts. He was forcibly detained for a period of three days.

   • The applicant fearing for his life and personal safety, made arrangements with his uncle [R], to secure a passport and a visa and fled to Malaysia, along with his other uncle, [V] and his wife. Upon not having a long visa validity period and being fearful of being detained by the Malaysian authorities, he was forced to return to Sri Lanka.

   • Upon returning, he remained more or less in hiding at his uncle, [R]’s house in Kochikadai until he was able to depart Sri Lanka again. During this time he was advised by his family that the Karuna Group were questioning his family about his and his uncle’s whereabouts, which eventually culminated in the CID looking for the applicant and his uncle.

   •Fearing for his life, he was able to secure a visa to the UAE and safely remain out of Sri Lanka until August 2012 when he mistakenly believed that the situation had improved and it was safe to return.

   • Within a short time of returning, the applicant was told by his mother that individuals showed up at the family home and were questioning as to his whereabouts. They mentioned that they had knowledge that the applicant had returned to Sri Lanka and if found, they would shoot the applicant.

   • Fearing for his life, he made immediate arrangements to depart Sri Lanka and save his life.

   • Since coming to Australia, he has discovered that his uncle had returned to Sri Lanka and was arrested in May 2014 under the anti-terrorist Act (most likely the PTA) and is currently being held in Poosa Prison in Colombo.

   • Since being in Australia, the applicant has engaged in activities which would be viewed adversely by the Sri Lankan government, such as attending martyr’s day celebrations that commemorate fallen LTTE cadres, as well as posting videos on Facebook that are critical of the Sri Lankan government and accuse them of committing war crimes and genocide.

   (emphasis added)

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 12 May 2016.

2. It is chronologically convenient for me at this point to make the following findings of fact relevant to my consideration below of the first Ground relied upon by the Applicant, namely:

   a)that the Delegate who made the decision to refuse to grant a Protection visa to the Applicant had as his first name “John”, held the Login ID of “PRJMSC” and Position No. “6019080” within the Department of the Minister (Department);

   b)that the Department held an electronic file bearing File No. “CLF2013/220766” in relation to the Applicant’s invalid Protection (Subclass 866) visa application;

   c)that the Department does not maintain paper files with numbered folio entries for fast track reviewable matters;

   d)that included in the electronic file of the Applicant’s invalid Protection (Subclass 866) visa application was the visa application and supporting documents lodged with the Department under cover of the letter from Playfair dated 16 August 2013 (reproduced at Court Book  37 – 101) and which included the August 2013 Statement (see [4] above); and

   e)that on 11 May 2016 at 2:17pm, being the day before his scheduled interview with the Applicant on 12 May 2016, the Delegate accessed and viewed the electronic file of the invalid Protection (Subclass 866) visa application.

3. In light of these findings I am of the view that the August 2013 Statement was, for the purposes of s.473DA(2) of the Act, “before” the Delegate when he made his decision, and it therefore did not have to be given to the Applicant by the IAA. 

4. Further, the August 2013 Statement was not “new information” as defined by s.473DC(1) of the Act nor did it have to be given to the Applicant under s.473DE(1).

5. The word “before” is a plain English word and in the present statutory context bears at least the sixth sense given to it by the Oxford English Dictionary Online, of:

   In front of “a person” as a field of action or a resource; at the disposal of. 

6. This sense accords with the meaning given in the opinion of the Judicial Committee of the Privy Council in the vestment ritual case of Ridsdale v Clifton (1877) 2 PD 276, where at 342 Lord Selborne LC regarded the words “before the people” as equivalent to “in the sight of the people”. Likewise and most importantly, the Full Court of the Federal Court of Australia comprised of McKerracher, Gleeson and Burley JJ in DTK17 v Minister for Immigration and Border Protection (2018) 265 FCR 538 held that the words “before the Minister” in s.473DC(1) of the Act mean documents or information physically before the Minister.

7. Such was the case here. On 11 May 2016 the Delegate must have been standing or sitting before a computer terminal which had access and linkage to the Applicant’s electronic file of the invalid Protection (Subclass 866) visa application which contained the letter from Playfair dated 16 August 2013 and all of the documents enclosed within it, including the August 2013 Statement: see [13(d)] above. In my view the electronic file was literally in front of, before and in the sight of the Delegate as much as if the documents in the electronic file would have been in front of, before and in his sight if in hard copy paper form placed on his desk.

8. In his Decision Record the Delegate considered the Applicant’s claims to fear harm under the following headings:

   a)Tamil ethnicity;

   b)Political profile;

   i)Activities in Australia;

   ii)LTTE;

   c)Illegal departure; and

   d)Failed Asylum seekers and returnees.

9. In short the Delegate found that the Applicant had not been harmed previously in Sri Lanka on the basis of his Tamil ethnicity and that there was not a real chance of persecution on that basis if he returned to Sri Lanka. Further, given his lack of a political profile, the Delegate was of the view that the Applicant’s activities in Australia “would not be viewed as Tamil separatism” and he would not “be subject to a real chance of persecution on the basis of his attendance at a Martyr’s Day ceremony in Australia or his Facebook posts should he return to Sri Lanka”.

1. I note for the completeness that the logic of the first paragraph of the Delegate’s decision appearing at Court Book 246 means that the negative “not” should be read before the word “mean” in the third sentence, which would then read:

   I consider that his attendance at a Martyr’s Day ceremony in Australia would [not] mean that the applicant possesses an adverse political profile.

2. The Delegate went on to find that the Applicant would not be imputed with LTTE connections, that DFAT reports indicated that the LTTE no longer existed as an organised force in Sri Lanka and recorded that the Applicant had confirmed that he was not a LTTE member and that he would not be persecuted in Sri Lanka on account of any links to the LTTE.

3. The Delegate also considered that the Applicant would not suffer persecution in Sri Lanka due to his illegal departure from Sri Lanka or as a failed asylum seeker returnee to Sri Lanka.

4. Having considered the claims individually and cumulatively, together with independent country information, the Delegate was not satisfied that the Applicant was a person to whom Australia owed protection obligations under ss.36(2)(a) or 36(2)(aa) of the Act and refused to grant to him a Protection visa.

IAA Decision

1. On 25 August 2016 the Minister, pursuant to s.473CA of the Act, referred to the IAA the Delegate’s refusal to grant the Protection visa to the Applicant. I find that on the same date at 2:27pm a PDF file containing the contents of the Applicant’s electronic file of the invalid Protection (Subclass 866) visa application (which included the Playfair letter of 16 August 2013 and enclosed supporting documents, including the August 2013 Statement) was uploaded to a network accessible by the IAA.

2. At [2] of its Decision Record the IAA noted that it had had regard to the material referred to it by the Secretary under s.473CB of the Act.

3. At [3] of its Decision Record the IAA summarised the Applicant’s claims to protection (see [10] above), and at [4] – [20] set out its factual findings on the material before it.

4. From [5] – [19] of its Decision Record the IAA considered the claimed problems of the Applicant in Sri Lanka. At [5] it stated as follows:

   [5]The applicant states that in about 2005, when he was 17 and studying for his O-levels at school, there was a round up in his area by the SLA of Tamil boys. He and other students were attending a maths tuition class after school when the SLA arrived and detained them on suspicion of belonging to the LTTE. They were taken to the SLA camp; questioned about LTTE involvement; tied up, beaten and treated cruelly; they were threatened with death; and were detained for about 15 days and released after the SLA contacted their parents who confirmed they were students and their other personal details. For a short period (Footnote 1: See paragraph 7 of the applicant's 8 August 2013 statement) afterwards he and his parents were required to report regularly to the SLA. He attributes his failure to pass his O-level exams to the disruption and fear caused by his detention.

   (emphasis added)

   I observe that the last emphasised sentence of this paragraph appears to accept the first sentence of [18] of the November 2015 Statement and [7] of the August 2013 Statement: see [4] – [5] above. The IAA continued at [6] of its Decision Record:

   [6]He says he started working for his uncle, V, in 2006. V owned a construction company that had government contracts to build schools, hospitals and roads. He worked as a supervisor, allocating workers to the various job sites and acting in his uncle's place whenever V was absent or there was a need. V, through his company provided support to the LTTE in the form of money and sometimes medicines, clothing and the like. The applicant sometimes signed the cheques for the LTTE on his uncle's behalf. He said the last time the company made a payment to the LTTE was around August 2006. He and his family were not members of the LTTE.

5. Then at [15] of its Decision Record the IAA stated the claims of the Applicant which it had accepted based upon his evidence, in the following terms:

   [15]Based on his generally consistent evidence on the incidents and the country information, I am prepared to accept the following claims. I accept that he was taken along with several other school students by the SLA in a round up in 2005, detained and mistreated on suspicion of LTTE links for 15 days before he was released under a short reporting requirement; that he worked at V's company from 2006 to January 2007 as a supervisor and took charge in V's absence or as required; that V's company provided money and sometimes medicines, clothes and the like to the LTTE up until August 2006; that the applicant sometimes signed the company cheques that were for the LTTE; that V had previously paid money, when demanded, to the Karuna Group; that V was detained, but escaped from, the Karuna Group on 3 January 2007 when V could not pay the 25 lakhs they demanded; that the applicant and his family were kept under house arrest for nine days while the Karuna Group waited for V to return; that after the house arrest the Karuna Group detained and questioned the applicant for three days about his uncle's whereabouts and threatened to shoot him or force him to join them if V did not return; shortly after the Karuna Group released him he went to Malaysia for a month with V and V's wife; he returned to Sri Lanka and lived in Colombo for about a year with his uncle R; that the Karuna Group visited his home on occasion when he was in Colombo looking for him and V; that he went to the UAE on a working visa from April 2008 to August 2012; that he attended a protest in 2008 in Abu Dhabi; after he returned to Sri Lanka in August 2012 he remained for 15 days before leaving for Australia; and he attended Martyrs' Day and posted two videos on his Facebook page in Australia.

   (emphasis added)

6. Nevertheless, from [16] – [19] of its Decision Record the IAA summarised concerns which it had about the truthfulness of the Applicant’s other claims, a number of discrepancies in his evidence, and other incidents which it found had been fabricated by him to boost his claims for protection.

7. Then at [33] of its Decision Record the IAA stated:

   [33] I accept that area where the applicant's family home was in Batticaloa may have been LTTE controlled at times during the war; that he was detained and mistreated for a period of 15 days by the SLA in a round up in 2005 and when released was under a short reporting requirement; that his uncle V's company provided money and sometimes medicine, clothes and the like to the LTIE until August 2006 and on occasion the applicant signed the company cheques to the LTTE; and that the paramilitary Karuna Group held the applicant and his family in house arrest for nine days, the applicant to a further three days of detention, mistreatment and threats, in January 2007, due to the Karuna Group's interest in V. Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant to be at risk of harm now or in the reasonably foreseeable future for a number of reasons. First, on the evidence residing in a LTTE controlled area of itself does not give rise to a need for protection. Secondly, the only time the applicant was detained by the Sri Lankan authorities was during a general round up in 2005, he was not specifically targeted by the SLA for any LTTE links. Thirdly, although the applicant occasionally signed company cheques to the LTTE, it was the company and not the applicant that was providing money and other materials to the LTTE. Fourthly, on my findings, since the round up in 2005, and the short reporting period immediately afterwards, the applicant was not subject to any further questioning, detention or other adverse interest from the Sri Lankan authorities. Fifthly, on my findings, the applicant was able to travel to and from Malaysia and the UAE legally through Colombo airport without encountering any difficulties with the Sri Lankan authorities. I am not satisfied that the authorities would have had any adverse interest in the applicant if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities on return. Given the above factors, and the country information, I consider any risk of harm to the applicant from the authorities based on his profile, including as a young Tamil male from the east, to be remote.

   (emphasis added)

8. In the result the IAA found that the Applicant did not face a real chance of persecution for the purposes of the Refugees Convention criterion because of any links to the LTTE, from the Karuna Group, any other anti-government activity since he had left Sri Lanka or as a failed asylum seeker and illegal departee from Sri Lanka, nor was there any risk that the Applicant would suffer significant harm for any of these reasons under the complementary protection criterion. Accordingly, the IAA affirmed the Delegate’s decision not to grant a Protection visa to the Applicant.

Grounds of Attack on IAA Decision in this Court

1. At the hearing Mr Chia of Counsel appeared for the Applicant and Mr Lenehan of Counsel appeared for the Minister. Ground 2 of the Amended Application was not pressed, so the Grounds relied upon were as follows:

   1.The second respondent (“Authority”) failed to comply with the mandatory requirements of section 473DE of the Act.

   Particulars

   The Authority had considered that information, contained in the applicant’s statement dated 8 August 2013, which had not been before the delegate when he made his decision under section 65 of the Act, may be relevant and would be part of the reason for affirming the delegate’s decision.

   The Authority did not give the applicant particulars of, explain the relevance of, or invite the applicant to give comments on the above information.

   3.Further or in the alternative to 1 and 2, the Authority failed to consider the applicant’s claim made at the protection visa interview that he had himself provided help and assistance to the LTTE.

Consideration

Ground 1

1. This Ground contends that [7] of the August 2013 Statement was “new information” that the IAA was required, but failed, to “give the Applicant” under s.473DE of the Act.

2. To be even arguably successful this Ground requires a finding that the August 2013 Statement was not “before” the Delegate, but I have found at [13(d) and (e)], [14] and [18] above that the August 2013 Statement had been before the Delegate when he made his decision.

3. Accordingly it follows that Ground 1 must fail in the first instance because it is based on the proposition, which I have rejected, that the August 2013 Statement “had not been before the delegate when he made his decision under section 65 of the Act”.

4. Mr Chia disavowed any suggestion that the fact that the Delegate did not have a hard paper copy of the August 2013 Statement meant that he did not have that document “before” him. However, Mr Chia argued at the hearing that the fact that the Delegate had access to the Applicant’s electronic file of the invalid Protection (Subclass 866) visa application on 11 May 2016, some 90 days before the date of his decision on 24 August 2016, meant that it was not “before the Minister when the Minister made the decision”. Nevertheless, I reject this submission. The Delegate responsibly prepared for the interview which he was scheduled to have with the Applicant on the following day. He accessed the electronic file and made himself conversant with a body of evidence which would make the interview with the Applicant on 12 May 2016 meaningful. The Delegate would have been at liberty to take any notes of the material in the electronic file of the invalid Protection (Subclass 866) visa application, for use either at the interview or subsequently at the time of writing his decision. In my view there is nothing in Mr Chia’s point that the Delegate accessed the electronic file on 11 May 2016, but did not make his decision until 24 August 2016. On this argument the Delegate would not have had “before” him the information that he had obtained from the Applicant at the interview on 12 May 2016, because that information was received some 90 days prior to his decision of 24 August 2016.

5. Mr Chia pointed to the fact that the Delegate, as Attachment A to his Decision Record, recorded the material before him which did not include a reference to the electronic file of the invalid Protection (Subclass 866) visa application or the August 2013 Statement, as evidencing that the August 2013 Statement was not “before” the Delegate. In light of the strong body of evidence that does show that the electronic file of the invalid Protection (Subclass 866) visa application was “before” the Delegate, the fact that he omitted to refer to it in his list of material does not establish that it was not “before” him. After all, he had expressly referred to the August 2013 Statement in footnote 1 to [5] of his Decision Record: see [28] above. In other words, the list of material is not to be taken as exhaustive of the material he had “before” him.

6. Further, this Ground would fail even if the August 2013 Statement had been “new information” within the meaning of s.473DC(1) of the Act. This is because s.473DE(1) would still not have been relevantly engaged, in that the August 2013 Statement would not have been considered in advance by the IAA to be, for the purposes of s.473DE(1)(a)(ii), “the reason, or part of the reason, for affirming the fast track reviewable decision” in that:

   a)nothing in the August 2013 Statement constituted a rejection, denial or undermining of the Applicant’s claims to protection, but rather if anything supported and was meant to support the Applicant’s claims for protection; and

   b)the August 2013 Statement was merely information which might be relied upon to find inconsistency with other material submitted by the Applicant, rather than a rejection, denial or undermining of his claims.

   In this connection I note that the majority comprised of Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 223 [9] found that:

   [9]… For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa…

   (footnotes omitted)

7. In such circumstances, s.473DE of the Act would not have been engaged in relation to the August 2013 Statement even if it had been new information in the hands of the IAA, which I have found that it was not.

8. Finally and in any event, even if the August 2013 Statement and [7] thereof did constitute “new information” which should have been given to the Applicant by the IAA, any failure in that regard was immaterial and the giving of the August 2013 Statement to the Applicant would not have resulted in the making by the IAA of any different decision or led to any different outcome: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134 – 135 [29] – [30] per Kiefel CJ, Gageler and Keane JJ:

   [29]That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance.  

   [30]Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.  

   (footnotes omitted)

9. The August 2013 Statement was the Applicant’s own evidence in support of his claims and not the document of a third party which he had never seen. At the hearing Mr Chia compared on the one hand [7] of the August 2013 Statement (see [4] above), which in its reference to a reporting requirement of “for about three weeks”  was seemingly accepted by the IAA at [5] and [33] of its Decision Record as being a reporting requirement “for a short period” and as “a short reporting requirement”, and on the other hand [18] of the November 2015 Statement (see [5] above) which referred to the Applicant being “expected to report every fortnight”, without any finite end period being stated.

10. However, in my view any inconsistency or discrepancy, if such there be, is entirely insignificant in terms of the IAA’s overall findings. It was quite immaterial whether the Applicant was required to report to the SLA for three weeks, as asserted by the Applicant at [7] of the August 2013 Statement, or for a period without a finite end as suggested by [18] of the November 2015 Statement. The Applicant never made any suggestion that he was still required to report to the SLA during the period after he had finished school in 2005 and started working for his uncle V in 2006. The IAA accepted at [33] of its Decision Record that he had been rounded up, detained and mistreated by the SLA in 2005 for a 15 day period and had to report for a short period thereafter. There was no material or significant importance to how long the period of reporting extended. Based on a range of far more significant factors, including country information, the IAA was satisfied (as also stated at [33] of its Decision Record) that the Applicant was not of adverse interest to the Sri Lankan authorities and the length of the reporting period to the SLA discussed above would have made no difference to the IAA’s general finding that he was not of interest to the Sri Lankan authorities. With great respect, this argument strains at a gnat.

11. Accordingly, Ground 1 fails to establish that the decision of the IAA is affected by jurisdictional error.

Ground 3

1. This Ground complains that the IAA failed to consider the Applicant’s claim “that he had himself provided help and assistance to the LTTE”.

2. The first thing to note is that at bullet point three to [3] of its Decision Record the IAA expressly recognised that one of the Applicant’s claims was:

   [3]•    His imputed political opinion due to the significant financial support he and his named uncle (V) provided to the Liberation Tigers of Tamil Eelam (LTTE).

3. At [6] of its Decision Record the IAA recorded the Applicant’s claim that after he had started working for his uncle V and the uncle’s construction company, the Rova Group of Companies (Rova Group of Companies), in 2006 the company provided support to the LTTE “in the form of money and sometimes medicine, clothing and the like” and that the Applicant “sometimes signed the cheques for the LTTE on his uncle’s behalf”.

1. At [15] of its Decision Record the IAA accepted that the Applicant had “worked at V’s company from 2006 to January 2007 as a supervisor and took charge in V’s absence or as required; that V’s company provided money and sometimes medicines, clothes and the like to the LTTE up until August 2006; that the applicant sometimes signed the company cheques to the LTTE”.

2. Then at [33] of its Decision Record the IAA again noted its acceptance that “his uncle V’s family provided money and sometimes medicine, clothes and the like to the LTTE until August 2006 and on occasion the applicant signed the company cheques to the LTTE”, but that “it was the company and not the Applicant that was providing money and other materials to the LTTE”.

3. I now turn to the Applicant’s claims in this regard. In his August 2013 Statement at [8] he claimed that in January 2007 while working for his uncle V the Karuna Group had come and demanded money and that “previously, the Karuna group had demanded money from my uncle and he had paid. I knew of this because my uncle V had asked for me to arrange for the payment of the money to the group on this previous occasion”. Then in answer to question 85 of his Protection visa application form the Applicant stated that he had worked for the Rova Group of Companies from some time in 2006 to January 2007 as an Administrative Duties and Projects Supervisor and was in charge of designating people to the right worksite, and that he acted on behalf of his uncle when the uncle was absent.

4. The Applicant had confirmed at [8] of his November 2015 Statement that his uncle V had owned a company called the Rova Group of Companies, and at [20] – [21] claimed as follows:

   [20]The Karuna Group was a splinter group of the LTTE. My uncle has previously helped the LTTE and supported them by paying them money. I too had signed cheques for the LTTE on behalf of my uncle. I was better educated than my father. I became my uncle’s close associate and supervised his business in his absence or as he needed.

   [21]The Karuna Group had also previously demanded money from my uncle. I knew of this because he had asked for me to arrange for the payment of the money to the group on an occasion. I know my uncle hadn't wanted to do this because he knew the money was going to go to the government and not LTTE supporters.

5. Finally, in Playfair’s letter of 27 May 2016 with reference the Applicant’s uncle V and the Rova Group of Companies, it had been claimed in the sixth bullet point (see [11] above) as follows:

   • While working for his uncle, he became involved with facilitating his uncle’s financial support of the LTTE. He would sign checks on behalf of his uncle that went towards financing the LTTE and assisted his uncle’s company in providing the LTTE with food, vehicles, materials needed and construction equipment.

6. It is therefore the case that a fair statement of the Applicant’s written claims made prior to the IAA’s decision was that whilst he had provided help and assistance to the LTTE, such help and assistance was always in connection with, and related to, his uncle V and the Rova Group of Companies. There was no “substantial, clearly articulated claim or argument” made “that he had himself provided help and assistance to the LTTE” independently of, and not associated with, his uncle V and the Rova Group of Companies.  

7. At the hearing Mr Chia tendered a transcript of the Applicant’s interview with the Delegate in support of this Ground, but in my view no claim was made by the Applicant at the interview that he, independently and divorced from his uncle V and the Rova Group of Companies, had rendered help and assistance to the LTTE. The relevant parts of the transcript are as follows:

   Department Officer:      Okay I just want to speak briefly about your employment in Sri Lanka. Okay, now I understand you worked for a company called Rover Group of Companies. Okay, do you know roughly for how long that was, when you started? What you, and if you can tell me briefly about what your job was

   Interpreter:  Two thousand six or seven, I was ah supervisor there. Sorry two thousand and six (2006).

   Department Officer:      Two thousand slix, six sorry, two thousand six slash seven was supervisor.

   Interpreter:   Yes

   Department Officer:      Do you know when you started?

   Interpreter:   Two thousand six (2006).

   Department Officer:      Can you recall, excuse me, how many people were in this company?

   Interpreter:  Actually umm, the company is improving, so developing, they started the forty (40) people, then April they recruit some extra people. Like.

   Department Officer:      Besides supervising, did you have any other role?

   Interpreter:  Actually the company owned by uncle. If uncle is not available then I have to, I had to be in charge.

   Department Officer:      Okay. Is this company still operating now?

   Interpreter:  No

   Department Officer:      When did it cease operating?

   Interpreter:  Ah two thousand seven (2007) they close.

   Department Officer:      Did you do any other work in Sri Lanka?

   Interpreter:   No

   Department Officer:      Did this company have any association with the L-T-T-E?

   Interpreter:  Yes.

   Department Officer:      Can you explain that?

   Interpreter:   Yeah so we do help the L-T-T-E because the L-T-T-E fighting for the Tamil people so we do provide money, food and everything.

   Department Officer:      Okay, was there anything else?

   Interpreter:  Okay we help L-T-T-E if they need any clothing or if need a building construction material or they need any vehicles or whatever help they need, just we provide, we’ll help them out.

   Department Officer:      Okay anything else besides providing like basic support and, and materials?

   Interpreter:   No

   Department Officer:      Okay. Now most Tamils who have lived in the North and the East of Sri Lanka are likely to have paid taxes and provided low level support to the L-T-T-E during the conflict. DFAT assesses that you may be monitored as a result of this but that you are at a low risk of being detained or prosecuted on that basis.

   Interpreter:  So I, ah sorry I missed the front.

   Department Officer:      [indecipherable]

   Interpreter:   Okay actually the what he is saying is a lot of people helping L-T-T-E generally they're helping the L-T-T-E but what we did was a little bit further like we went there and helped in war, injured in the war, on the war, so we help, we helped them in medical help and actually we gave a lot of help than normal people. So but I didn't take the weapon to fight for them but I we do help them, I did help them. Like who are injured in the war, so who are disability or had some medical help, that bit more than the normal average people.

   Department Officer:      Are you talking about yourself or are you talking about the, the role the company played?

   Interpreter:  Yeah actually the company belongs to my uncle, it's my family business, he got some rights in the company as well. He had some shares in the company as well

   Department Officer:      Alright, was there anything else you wanted to say about that?

   (TP14.15 – 16.12)

   Department Officer:      Now you did speak previously about some support work that was carried out for the L-T-T-E. Which included providing some money. You mentioned also providing some help in terms of helping the injured. Now are, are you umm a doctor or in any way have any medical qualification?

   Interpreter:  So what I meant is, some medications not available in that area, so my area [indecipherable] I carry, just supply.

   Department Officer:      Okay. Is there any other work or support you provided to the L-T-T-E?

   Interpreter:   Actually my family is supporting L-T-T-E when I was a student, then I did that.

   Department Officer:      When was the last time you engaged in any support work or paid any money to the L-T-T-E?

   Interpreter:   August two thousand and six (2006). Approximately.

   (TP25.14–26)

8. In my view the Applicant’s claim to have provided help and assistance to the LTTE both in writing and at the interview before the Delegate were consistent and always associated with his uncle V and the Rova Group of Companies. The IAA did not fail to give a proper, genuine and realistic consideration to any substantial, clearly articulated claim or one which clearly emerged from the materials to the effect that he had himself independently and without reference to his uncle provided help and assistance to the LTTE, if that is what this Ground is meant to suggest.

Conclusion

1. The Applicant has failed to establish that the decision of the IAA is affected by jurisdictional error and the Amended Application filed in this Court is to be dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  27 February 2020