EET18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1446
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EET18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1446
File number(s): SYG 2247 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 11 December 2024 Catchwords: MIGRATION – Whether claim made in submissions to Immigration Assessment Authority was new information where subject matter of claim was contained in country information which had been before the delegate Legislation: Migration Act 1958 (Cth) ss 36, 473CB, 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
EEP18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 682
Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Division: General Federal Law Number of paragraphs: 34 Date of hearing: 11 December 2024 Place: Sydney Counsel for the Applicant: In person Solicitor for the Respondents: Mr C Wang, Clayton Utz ORDERS
SYG 2247 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EET18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application filed on 14 August 2018, as amended, is dismissed.
2.The applicant must pay the first respondent's costs and disbursements of and incidental to the proceedings fixed in the amount of $8,371.30.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), orders 1 and 2 above not be entered until the date of publication of written reasons for judgment revised from transcript, which for the avoidance of doubt and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth) will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN
By an application to this Court made on 14 August 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) which is dated 19 July 2018. By its decision, the Authority affirmed a decision of a delegate of the Minister, refusing to grant the applicant a Class XE (Subclass 790) Safe Haven Enterprise Visa (visa). At the time the proceedings were commenced, the applicant was unrepresented. On 6 September 2018, a Registrar of the Court made orders by consent for the preparation of the matter for a hearing.
Background and Procedural History
The applicant is a male citizen of Sri Lanka. The applicant claims to be a Tamil from the Eastern Province of Sri Lanka. He entered Australia on 10 October 2012, after departing from Sri Lanka by boat (CB 144).
The applicant’s claims for protection were, in substance, that:
(a)he is of Tamil ethnicity and lived in an area previously controlled by the Liberation Tigers of Tamil Eelam (LTTE);
(b)he was forcefully recruited by the LTTE and attended a training camp but had escaped;
(c)showed political support for the Tamil National Alliance (TNA) in parliamentary and provincial council elections between 2010 and 2012; and
(d)he had received adverse attention from Tamil men who had visited his house looking for him in 2012 and after he had arrived in Australia.
On 16 March 2018, the delegate refused the applicant's visa application, finding that the applicant did not satisfy any of the criteria for the grant of a protection visa in s 36(2) of the Migration Act 1958 (Cth) (Act) and was accordingly, not a person in respect of whom Australia had protection obligations or a member of the same family unit as a non-citizen in respect of whom Australia had protection obligations (CB 148 to 150).
Broadly, the delegate did not accept that the applicant was of any adverse interest to the Sri Lankan government on account of any real or perceived links with the LTTE, as he did not have any significant or ongoing involvement in the Tamil separatist movement (CB 144 to 146). Moreover, the delegate found that the applicant was of no interest to the Sri Lankan authorities when he left the country (CB 147), and that he was unlikely to be targeted by any persons on account of being a past TNA supporter (CB 148).
On 26 March 2018, the matter was referred to the Authority for review (CB 156). On 19 July 2018, the Authority refused the applicant's application for review and affirmed the delegate’s decision.
The Authority accepted that the applicant had previously been involved with the LTTE (CB 221 to 222). While the Authority also accepted that the applicant used to be a TNA supporter, it did not accept that the applicant had been targeted by any armed Tamil men as a result of his low-level involvement (CB 222 to 224). Having regard to country information, the Authority was not satisfied that the applicant’s links to the LTTE, TNA and/or his Tamil ethnicity would result in him facing a real chance of significant harm upon returning to Sri Lanka (CB 230 to 231). The Authority further was not satisfied that the applicant would likely face any real chance of persecution due to his status as a failed asylum seeker returning to Sri Lanka (CB 226 to 229).
In arriving at its decision, the Authority noted that it had received a submission from the applicant’s representative on 13 April 2018. To the extent the submission responded to the delegate’s decision, the Authority considered it was not new information and accordingly had regard to it (CB 219). As for any new information referred to or contained within the submission, the Authority was not satisfied that there were exceptional circumstances to justify considering it.
Of particular relevance to the application was the following submission (emphasis in original) (CB 210):
Risk of being processed “en masse”
It appears that when Tamil asylum seekers are returned to Sri Lanka they are returned in large groups. More recently 25 Tamil asylum seekers were returned as a group from Australia.
The more recent DFAT report at paragraph 5.19 states: “Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed”
It is submitted that should the applicant be returned to Sri Lanka as part of a larger group of failed Tamil asylum seekers, there could be extensive amount of delays as DFAT states returnees cannot exit the airport until all have been processed.
Should one member of the group of returnees who are processed “en masse” attract adverse attention for whatever reason, members of the group of returnees are likely than not to also be affected which could expose members of the group of returnees processed en masse to be persons of interest. It is my submission therefore that there are risks when processing returnees particularly Tamil asylum seeker returnees en masse. Members of such a group could all be imputed with political opinion they did not hold due to one member of such a group being found to be a person of interest.
The Authority found that, although the fact that Sri Lankan returnees may be subjected to “en masse” processing was not new information as it was contained in the 2017 Sri Lanka country report published by the Department of Foreign Affairs and Trade (DFAT Report) that was before the delegate, the claimed risk of political imputation was not (CB 220).
APPLICATION TO THIS COURT
The applicant commenced the instant proceedings by an application to show cause filed with the Court on 14 August 2018. The proceedings were initially docketed to another Judge of the Court (first primary Judge) with the application to be listed for a callover before the first primary Judge on a date to be advised to the parties. By those orders, the applicant was granted leave to file any amended application by 1 November 2018. He did not do so.
The matter next came before the Court on 6 February 2020 by which time the applicant was represented by Counsel on a direct access basis. On that date, the first primary Judge granted leave to the applicant to file and serve any amended application by 13 February 2020. On 6 February 2020, an amended application was filed for the applicant which had been prepared by his Counsel (Amended Application).
On 6 August 2024, the applicant appeared by telephone for a Registrar of the Court with the assistance of an interpreter in the Tamil language. A fresh timetable was made for the preparation of the matter for hearing. The orders included notations that the solicitor for the Minister would email the applicant a further copy of the court book, which before me this afternoon the application informed me did occur. The second notation indicates that, at least as at 6 August this year, the applicant remained represented by his direct access Counsel. By those orders, the applicant was again granted leave to file any amended application that he wished by a certain date. No further amended application has been received in time, or at all.
The proceedings were later placed in the central migration docket, where they remained until 20 September 2024 when they were docketed to me and on which date I made further orders for the preparation of the matter, including listing it for hearing at 2.15 pm today (September Orders).
From email correspondence received by my Chambers on 7 December 2024 from Counsel who had previously represented the applicant and prepared the Amended Application informed the Court that he was no longer representing the applicant. Accordingly, the Court arranged for an interpreter in the Tamil language to be present at the hearing. At the commencement of the hearing, the applicant and the interpreter confirmed that they could understand each other. The Minister was represented by a solicitor.
The Court Book was tendered and marked by the Court as Exhibit “1R”. The Court provided the applicant a spare hard copy of the Court Book, because he had not brought a copy with him to hearing. The Court explained its jurisdiction and the limitations on what it could decide, including that the Court's jurisdiction extends only to the decision of the Authority, and not to that of the delegate.
By the September Orders, the applicant was granted a further opportunity to amend. He has not availed himself of that opportunity either. Noting that the applicant was not the author of the Amended Application, the Court sought to clarify upon which application he sought to proceed. The applicant confirmed that he was proceeding on the Amended Application prepared by his former Counsel. The applicant did not file written submissions as ordered. The Minister filed written submissions in accordance with the Court's orders.
Ground of review
The Amended Application raises the following ground of review:
The Authority failed to complete the exercise of its jurisdiction as it found that the applicant’s en masse processing at Colombo Airport claim was new information and was subject to s 473 DD of the Act when the claim was not subject to that section as it was based upon the existing pool of information that had been before the delegate.
The applicant confirmed that he had received those submissions and that he had read them. I had the ground interpreted to the applicant and asked him what he wished to say in support of it. The applicant said that:[1]
They did not give me enough time for me to speak.
[1] Transcript 11 December 2024 at T6.5
After some clarification, it became clear that the applicant was referring to the interview that he had with the delegate.
I reminded the applicant that, as had been explained to him at the outset of the hearing, the Court does not have jurisdiction in relation to the delegate's decision. The applicant said he otherwise had nothing to say in support of the ground of review. In those circumstances, the solicitor for the Minister relied on his written submissions. The applicant had nothing to add in reply.
Consideration
The applicant alleges that a claim he made by his submission to the Authority (namely, that an adverse political opinion may be imputed upon him as a result of the en masse processing of Sri Lankan returnees (imputation claim)) ought not to have been characterised by the Authority as being new information, was therefore not captured by s 473DD and ought to have been considered.
The applicant essentially alleges that the Authority’s refusal to consider the imputation claim, having impermissibly applied s 473DD of the Act, constituted jurisdictional error. This ground of review is without merit and should be rejected.
The meaning of “new information” is information “in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the conditions set out in s 473DC(1)(a) and (b)”: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24] per Gageler, Keane and Nettle JJ. Those two conditions are, respectively that:
(a)the information was not before the Minister or delegate at the time of making their decision; and
(b)the Authority considers that the information may be relevant.
Before the Court, the first respondent acknowledges that a submission made by an applicant which only addresses the information already available for consideration by the Authority and which contains no additional factual information does not fit the definition of “new information”, citing Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 at [50] per Flick, Griffiths and Perry JJ. The first respondent says that this appears to be the crux of the applicant’s complaint.
The first respondent submitted that that DFAT Report which was before the delegate did not articulate any information providing a factual basis for the imputation claim, observing that the sole reference to en masse processing for Sri Lankan returnees appears at [5.19] and says as a follows (emphasis added):
Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department. These agencies check travel documents and identity information against the immigration databases, intelligence databases and the records of outstanding criminal matters. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo may meet charter flights carrying involuntary returnees. DIBP has observed that processing returnees at the airport can take several hours, primarily due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed. Individuals who return to Sri Lanka voluntarily and are eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.[2]
[2] "DFAT Country Information Report – Sri Lanka", Department of Foreign Affairs and Trade, 24 January 2017 at 33 to 34.
The first respondent says that while the foregoing paragraph does establish that Sri Lankan returnees are processed en masse (which the Authority accepted was not new information) that does not in and of itself establish the imputation claim. The first respondent says that the remainder of the material given to the Authority under s 473CB of the Act does not disclose any information supporting the premise of the imputation claim.
The first respondent relies on the decision of EEP18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 682 (EEP18) per Raper J at [33] and [58] where her Honour said the following:
The Second Respondent erred in treating the argument at Reasons [5] about ‘imputation’ as new information, when it was not, and then in failing to consider the argument.
…
It is my view that the submission regarding the risk of the appellant being imputed with a political opinion by reason of en masse processing is a combination of a submission and not new information (in the sense that being processed en masse was already before the delegate) and new information (that members of such a group could all be imputed with political opinion they did not hold due to one member of such a group being found to be a person of interest). That new information was not information that was before the delegate nor did it arise from the delegate's findings. By contrast, the submission as to the fact of en masse processing which could lead to the appellant being held at the airport was not new information, had arisen from the DFAT report and was taken into account by the Authority, as acknowledged at [5] of its reasons, extracted at [43] of these reasons above.
Relying on EEP18 the first respondent says that contrary to the applicant’s contention that individuals subject to en masse processing could all be imputed with political opinion they did not hold due to one member of such a group being found to be a person of interest was new information if such a claim was not before the delegate (as it was not). Accordingly, the first respondent says the Authority did not err in finding that the imputation claim was new information.
I have read, and agree with the Minister's written submissions, including, in particular, what is said in relation to the decision of EEP18, and I am satisfied that there is no error as alleged by the ground. I find that this case is relevantly indistinguishable from EEP18, which decision I am bound to follow.
Additional issue
Out of an abundance of caution, and in fairness to the applicant, the Minister has quite properly raised an additional issue, which is whether or not the authority complied with s 473DD as that section is now understood in light of the High Court's decision in 2020 in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17).
In circumstances where:
(a)the applicant was represented by experienced Counsel in this jurisdiction at the time that the Amended Application was filed;
(b)there was a further opportunity, as at August of this year, where the Registrar's notation indicates the applicant remained represented by that Counsel;
I am sufficiently satisfied that if the applicant wished to raise an error of the kind established by AUS17, that he has had ample opportunity to do so while competently represented. However, if I were asked to adjudicate a question as to whether an AUS17 style error arose, I have read and agree with the Minister's written submissions in that regard.
CONCLUSION
In all the circumstances of this case, I am not satisfied that there is a jurisdictional error present in the decision of the Authority. Absent jurisdictional error, the decision is a privative clause decision and must be dismissed. I will so order.
COSTS
Consequent upon dismissal of the application, the Minister seeks an order that the applicant pay some part of his costs fixed in the scale amount and asked whether cost ought follow the event, and if so, in what amount. The applicant said that he does not have the funds to pay the amount sought. The inability of a party to pay the costs is not a basis upon which the Court would, by itself, decline to make an order, where the amount would otherwise represent a fair indemnity of the Minister's costs. In these proceedings I am satisfied that costs should follow the event. I am also satisfied that the amounts order is reasonable, and I will make an order to that effect.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 23 December 2024
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