EEY17 v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 905
•16 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EEY17 v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 905
File number: MLG 2014 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 16 September 2024 Catchwords: MIGRATION – decision of the Immigration Assessment Authority – whether the IAA misunderstood or misapplied the “real chance test” – whether the IAA failed to understand what was required of it when assessing the applicant’s credibility – whether the IAA erred in its assessment of evidence and country information – whether the IAA erred by unreasonably refusing to allow the applicant’s representative a further opportunity to provide revised submissions in accordance with the relevant Practice Direction – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 5, 5J, 36, 46A, 473CB, 473DA, 473DC, 473DD, 473FB, 473GA, 473GB & 476 and Division 3 of Part 7AA Cases cited: ACA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1213
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189
BUU18 v Minister for Home Affairs [2019] FCA 457
CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146
CRG16 v Minister for Home Affairs [2019] FCA 374
DAK16 v Minister for Immigration and Border Protection [2019] FCA 68
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Division: Division 2 General Federal Law Number of paragraphs: 108 Date of hearing: 22 April 2024 Place: Perth Counsel for the Applicant: Prof. K Karunadasa Solicitor for the Applicant: TAI Lawyers Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2014 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EEY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
16 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent dated 25 August 2017.
3.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Sri Lanka (Court Book (“CB”) 2-3, 6-7, 19 & 46-47). He arrived in Australia in September 2012 as an unauthorised maritime arrival (CB 3).
On 6 November 2013, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “invalid protection visa application”) (CB 34-102). With that application, the applicant provided a statutory declaration outlining his protection claims (CB 67-73). That visa application was found to be invalid (CB 104).
On 27 October 2015, the then Department of Immigration and Border Protection (the “Department”) wrote to the applicant to advise that the first respondent (the “Minister”) had lifted the “bar” under s 46A of the Migration Act 1958 (Cth) (the “Act”). The applicant was invited to apply for either a Temporary Protection (Class XD) (Subclass 785) visa or a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHEV”) (CB 104-110).
On 16 June 2016, the applicant applied for the SHEV the subject of this review (the “visa”) (CB 112-159). As part of that visa application, the applicant provided a further statutory declaration (referencing his statutory declaration dated 6 November 2013 provided with his invalid protection visa application) (CB 154-155).
On 12 July 2016, the Department acknowledged receipt of the applicant’s visa application and asked for “documentary evidence of [the applicant’s] identity, nationality or citizenship” (CB 160-169).
On 16 November 2016, the Department invited the applicant to attend a SHEV interview at the Department’s Melbourne offices on 7 December 2016 (CB 170-179).
One 7 December 2016, the applicant attended that SHEV interview with a delegate of the Minister (CB 250).
On 17 January 2017, a delegate of the Minister refused to grant the applicant the visa (CB 183-195). The Court notes that the delegate’s decision record in the Court Book appears to have the incorrect date of 17 January 2016 (CB 191).
On 20 January 2017, the matter was referred to the Immigration Assessment Authority (the “IAA”) under Part 7AA of the Act (CB 197).
On 9 February 2017, the applicant’s solicitor and migration agent (the “representative”) sent an email to the IAA notifying it that they now acted for the applicant and providing a completed “Appointment of Representative” form and a new Department of Foreign Affairs and Trade (“DFAT”) country information report (DFAT Country Information Report on Sri Lanka, dated 24 January 2017) (CB 206-247).
On 10 February 2017, the applicant’s representative sent a further email to the IAA attaching the following documents (CB 249-302):
(a)written submissions (CB 250-284);
(b)a signed statutory declaration from the applicant (285-289);
(c)a letter of support from the Head of the Priesthood in Mannar district (290);
(d)a letter from the applicant’s general practitioner providing medical evidence in relation to the applicant’s mental health (291); and
(e)a news article from TamilNation.org titled “Sri Lanka Army continues to rape and murder Tamils in Tamil Eelam, this time in Vankalai, Mannar” dated 9 June 2006 (CB 292-302).
On 13 February 2017, the IAA wrote to the applicant’s representative (by email) advising that the submission provided did not comply with the Practice Direction issued by the President of the Administrative Appeals Tribunal (the “Practice Direction”) (which only allowed for a submission of up to five pages). The IAA asked the representative to provide a revised, concise written submission by 17 February 2017 (CB 303).
On 17 February 2017, the applicant’s representative provided the IAA with a revised written submission and a “new information explanation” (CB 304-317).
On 25 August 2017, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa (CB 323-340).
On 20 September 2017, the applicant applied for judicial review of the IAA’s decision in this Court. The applicant also filed an affidavit with his judicial review application (annexing a copy of the IAA’s decision).
THE IAA’S DECISION
The application before this Court is brought pursuant s 476 of the Act.
To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act arguably restricts what this Court can and cannot do when determining whether there is any jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time that decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and which the IAA considers “may be relevant”: s 473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act, which provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB of the Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision in this matter is 18 pages long and spans 64 paragraphs (CB 323-340). This includes four pages containing extracts of relevant legislative provisions (CB 337-340).
The IAA began by explaining that the applicant had lodged a valid application for the visa on 16 June 2016 and noted that, on 17 January 2017, a delegate of the Minister had refused to grant the applicant the visa (at [1]).
The IAA also confirmed that it had had regard to the material given to it by the Secretary (pursuant to s 473CB of the Act) and explained that it had obtained new information in the form of a new DFAT country report for Sri Lanka which was published on 24 January 2017 (noting that the IAA was satisfied there were exceptional circumstances to justify considering the new country information) (at [2]-[3]).
The IAA continued:
4.On 10 February 2017 the IAA received a 35 page submission on behalf of the applicant, which did not comply with the IAA’s ‘Practice Direction’ and it was returned to the representative. On 17 February 2017 the IAA received a “revised submission”, largely consisting of argument addressing the delegate’s decision. To that extent I do not consider it to be new information. However, when the non-standard margins are taken into account, the revised submission amounts to almost ten pages. Even when the new country information contained in the submission (discussed below) is taken into account, the submission is well over five pages.
5.The revised submission begins with arguments as to why the submission should be considered, even though it is longer than five pages. The representative argues that the applicant did not have legal representation at his SHEV interview, that due to the nature of the delegate’s reasoning a submission in excess of five pages was necessary in this case, and that her revised submission is as concise and as brief as possible. The representative has also requested that if the IAA is inclined not to consider it, due to its length, then it should inform her accordingly and afford her the opportunity to provide further revised submissions.
6.I have carefully considered the representative’s arguments about this, and her request, and am not satisfied that the applicant’s lack of representation at the SHEV interview, or any aspect of the delegate’s reasoning, necessitates a submission that exceeds the five pages specified in the Direction. I do not accept that the revised submission is as concise as possible. Furthermore I am satisfied that the applicant’s representative, who is a registered migration agent, was put on notice regarding this issue and was given adequate time to provide a revised, concise submission in compliance with the Practice Direction. In all the circumstances I have decided to make the following decision without consideration of the revised submission.
The IAA then discussed new country information referenced in the revised submissions (noting, in particular, that ten of the eleven sources predated the delegate’s decision). The IAA was not satisfied that the country information could not have been provided prior to the delegate’s decision, that the information was “personal in the relevant sense” or that there were “exceptional circumstances to justify their consideration”. The IAA was satisfied, however, that there were exceptional circumstances to justify considering the 2017 DFAT country information report on Sri Lanka and had regard to excerpts from that report (as contained in the revised submission) (at [7]-[9]).
The IAA then considered five documents provided with the revised submission (which were not before the delegate – thus being “new information), starting with the applicant’s statutory declaration dated 9 February 2017 (at [10]).
The IAA explained as follows:
(a)the statutory declaration contains claims which were not before the delegate (at [11]), relating to:
(i)the murder of the applicant’s relatives which occurred in June 2006 (not at the end of 2007 as claimed in his visa application) and the Navy taking photos of the applicant and other men who stopped them entering the murder victims’ house; and
(ii)the incident where the applicant was spied on by the Navy whilst taking a bath in a public pond (occurring weeks before his departure from Sri Lanka in August 2012 and not weeks after his return from Saudi Arabia in February 2012);
(b)given its date, the statutory declaration was not in the applicant’s possession prior to the delegate’s decision and the applicant claims he did not understand the importance of responding to the delegate’s concerns at that time (at [12]); and
(c)the IAA was satisfied that the delegate put concerns it had to the applicant during the SHEV interview and, while the IAA had regard to the applicant’s evidence about his mental health issues (including trouble recalling past events in detail), the IAA was not satisfied that the applicant could not have provided the statutory declaration prior to the delegate’s decision or that exceptional circumstances exist to justify its consideration (at [13]).
The IAA then determined whether it should have regard to the other material it considered to be new information, noting, in particular, that:
(a)it was satisfied that, given the date, the letter of support was not in the applicant’s possession before the delegate’s decision;
(b)the letter notes that some of the applicant’s friends were “taken in” and remained missing;
(c)it was not satisfied that the applicant could not have sought such a letter of support earlier or that exceptional circumstances existed to justify its consideration (at [14]);
(d)the letter from the applicant’s doctor in Victoria stated that the applicant suffered from depression and anxiety and had been receiving counselling for his condition (with a mental health care plan in place). Given the length of time the applicant had been a patient of the doctor (being four years), the IAA was not satisfied that the letter could not have been provided prior to the delegate’s decision or that there were exceptional circumstances to justify consideration of the letter (at [15]);
(e)the news articles related to the murder of a family of four in the Mannar District and the IAA found that they were “new information” which predated the delegate’s decision (at [16]); and
(f)it noted that the applicant had said (during the SHEV interview) that he would obtain corroborative evidence relating to the murder from his Sri Lankan contact. However, no such evidence was provided to the delegate and the IAA was not satisfied that the news articles could not have been provided before the delegate’s decision (at [17]).
The IAA then summarised (in detail) the applicant’s claims for protection (at [18]).
The IAA set out some legislative provisions and definitions relating to the refugee assessment and confirmed that it was satisfied of the applicant’s identity. Further, it concluded that the applicant’s receiving country, for the purpose of the assessment before it, was Sri Lanka (at [19]-[21]).
The IAA continued:
22.Overall, as discussed below, I found the applicant’s oral evidence at SHEV interview to be inconsistent with his written statement and at times lacked credibility. During the SHEV interview the applicant stated several times that he suffers from memory problems and that his mind is not sound. I accept the applicant has psychological vulnerabilities, however these do not overcome my concern regarding the inherent lack of credibility of some of the applicant’s claims. I note the applicant had no apparent difficulty understanding the delegate’s questions at interview, and provided prompt and coherent answers to all the delegate’s questions via the interpreter.
The IAA then considered whether the applicant would be imputed with pro-LTTE or anti-Sri Lankan government political opinion.
The IAA accepted:
(a)that there were a number of military camps in the applicant’s home area of Mannar and that a Navy camp was located within several hundred metres of his home;
(b)the applicant’s claim that the Navy would often stop him in the street and harass him because of his Tamil ethnicity (at [23]);
(c)the applicant’s claim that the Navy thew him into a boat in 1998 resulting in a scar on his chest (at [24]);
(d)that, when waiting in a yearly line to obtain a fishing pass, he was beaten by the Navy on several occasions for talking and joking with his friends;
(e)that the applicant was required to show his fishing pass every time he went fishing, that the applicant (and other Tamil fishermen) were restricted in work hours and could only put out nets for two hours and that if they did not comply with those rules, the Navy would beat them;
(f)that there were a number of official and unofficial policies discriminating against Tamil fishermen (including the applicant) (at [25]);
(g)that the applicant moved to Colombo in order to avoid problems with the Navy and accepted that while working in his uncle’s seafood business, the applicant travelled to LTTE-controlled areas;
(h)that the applicant (as a Tamil travelling in and out of LTTE-controlled areas) would have been monitored closely by Sri Lankan authorities, however, the applicant’s evidence indicated that his interactions at checkpoints were routine and he was not harmed;
(i)that police at Colombo harassed the applicant (including slapping him and threatening him with torture) until he paid them a bribe (at [26]); and
(j)that the applicant returned to Mannar in 2006 and in 2007 a family of four were murdered (with the wife/mother of the family being the applicant’s second cousin) (at [27]).
The IAA was prepared to accept that the applicant’s cousin and her family were murdered and that there was a confrontation the following day between the authorities and the villagers outside their residence (at which the applicant was present). However, the IAA found that there was insufficient evidence to conclude that the Navy were responsible for the murders or that they had tried to enter the house to dispose of evidence. Given that the murders had taken place ten years prior, the IAA considered the applicant’s claim that no charges were laid because the investigation was active and ongoing to be implausible (at [29]-[30]).
The IAA determined that the applicant’s evidence given in his SHEV application and evidence given at the SHEV interview regarding the murders and his departure to Saudi Arabia was inconsistent. The IAA was not satisfied that the applicant went into hiding after the murders or that he publicly prevented the Navy entering the house of the victims, that he accused the Navy of committing the murders or that the Navy recorded his details. The IAA did accept that the applicant’s friends had disappeared but was not satisfied that their disappearances were linked to the murders or to the applicant’s own situation (at [31]-[32]).
The IAA also had concerns about the applicant’s evidence that, several months after his return from Saudi Arabia, the Navy “came looking for him” at his home. The IAA concluded that, if the applicant was a person of interest to the Navy for any reason, it would have been within the Navy’s capacity to locate him if they wished to do so. On the evidence before it, the IAA determined that the Navy had had sufficient opportunity to identify the applicant as a person of interest. The IAA was not satisfied that the applicant was a person of interest to the Navy prior to his departure in August 2012 or that the CID visited the applicant’s home in September 2012 searching for him. The IAA also confirmed that it had had regard to the applicant’s claimed mental health issues but was not satisfied that they accounted for the applicant’s “changes in evidence” (at [33]-[38]).
The IAA also discussed UNHCR Guidelines and information and, based on that information, did not consider that the applicant would be restricted to working in the fisheries sector upon his return to Sri Lanka (at [39]-[43]).
The IAA further noted that it accepted that the applicant had a scar on his chest from mistreatment by the Navy but noted that neither the 2015, nor the current DFAT country report, made any reference to Tamils with scarring being more likely to come to the attention of Sri Lankan authorities. The IAA was not satisfied that the Sri Lankan authorities would impute the applicant as having a pro-LTTE political opinion because of his Tamil ethnicity, origins, his trips to LTTE-controlled areas, his family connections or his scarring. The IAA was also not satisfied that the applicant was of any interest to the authorities for any reason related to the 2007 murders of his cousin and her family or that the applicant faced a real chance of harm upon his return to Sri Lanka (at [44]-[46]).
The IAA then considered whether the applicant would face harm as a returning asylum seeker, accepting that the applicant had left Sri Lanka illegally in August 2012. The IAA noted that the relevant DFAT country information assessed the risk of mistreatment for most returning asylum seekers to be low and explained that, while the applicant might face penalties (including imprisonment and fines) upon his return, in practice, any penalties were discretionary and could be paid “by instalment”. The IAA also noted that some illegal returnees are held for a short period of time. The IAA accepted that there was a real chance the applicant would be questioned, fined and held briefly as part of his re-entry process. However, the IAA did not accept that the applicant would face greater scrutiny than other returnees. The IAA was not satisfied that the payment of a fine or being held in detention for a period of 24 hours cumulatively amounted to “serious harm”. The IAA was also not satisfied that, even if the applicant pleaded not guilty, he would be detained for any longer than a brief period. The IAA ultimately found that the treatment the applicant would face as a returning asylum seeker would not amount to persecution within the meaning of s 5J(4) of the Act (at [47]-[55]).
The IAA then considered the applicant against the complementary protection criterion. The IAA accepted that the applicant had had previous interactions with the Sri Lankan authorities and accepted that the applicant’s uncle (Uncle A) may have had LTTE connections, Cousin S and her family were murdered in 2007 and later some of the applicant’s acquaintances disappeared. However, the IAA was not satisfied that the applicant (as a Tamil asylum seeker with scarring) would face a real chance of harm or significant harm for those reasons upon his return (at [57]-[59]).
The IAA accepted that the applicant would be returning to Sri Lanka as a failed asylum seeker and that he may be held in detention for a short period. However, on the evidence before it, the IAA was satisfied that the applicant did not face a real risk of a custodial sentence. The IAA also noted that a fine might be imposed and that conditions in prisons did not meet international standards but was not satisfied that either imprisonment for a short period of time or the imposition of a fine would amount to arbitrary deprivation of life, the death penalty or torture, pain or suffering that is cruel or inhuman in nature, severe pain or suffering or extreme humiliation (at [60]-[62]).
The IAA did not accept there were substantial grounds for believing that the applicant would be at real risk of significant harm if removed from Australia to Sri Lanka and, as such, found that the applicant did not meet the requirements set out in s 36(2)(aa) of the Act (at [63]-[64]).
On the basis of the above, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa.
APPLICATION TO THIS COURT
On 20 September 2017, the applicant filed an application in this Court seeking review of the IAA’s decision.
On 19 September 2023, an updated notice of address for service was filed on behalf of the applicant by a solicitor, Professor Kamal Karunadasa (“Professor Karunadasa”) from TAI Lawyers.
On 4 October 2023, orders were made by this Court (by consent) giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence.
On 2 April 2024, an amended application was filed on behalf of the applicant. That amended application contained three particularised grounds of review, as follows (without alteration):
Ground 1
The Authority erred by not taking into proper consideration of the Applicants’ well-founded fear of persecution.
Particulars
(a)The Authority failed to apply the appropriate test by placing substantial weight on its finding regarding the harm suffered by the applicant. (Para 23-24 of the Decision of the Authority).
(b)The Authority failed to assess the Applicants claim objectively based on the refugee criteria, instead made conclusions on her beliefs. (Para 34 & 35 of the Decision of the Authority).
Ground 2
The Authority erred by engaging in irrational or illogical reasoning in making its findings regarding the credibility or probity of the Applicant’s evidence.
Particulars
(a)The Authority concluded that the Applicant was not credible, and evidence was not consistent, in circumstances where those “inconsistency” findings were either
(i) Made without hearing evidence from the Applicant;
(ii) not reasonably open to the Authority;
(iii) minor;
(iv) (not further assessed for significance in accordance with law.
(b)The Authority made findings concerning the Applicant’s credibility based on inconsistencies between his evidence and other evidence, which were determined to be fabricated without allowing him to give further evidence. (Para 22 of the Decision of the Authority).
(c) The Authority made unwarranted assumptions about
(i) regulatory frameworks or the compliance therewith; and
(ii)standards of institutional professionalism and formality in the Applicant's country;
(d)The Authority applied a logically inconsistent approach to assessing inconsistencies in the Applicant's involvement in local activities and his occupational evidence.
(e)The Authority made adverse findings regarding the Applicant’s credibility without allowing the Applicant to give further evidence.
(f)The Authority used illogical or unassessed minor inconsistencies and trivial errors to make adverse findings as to the Applicant’s credibility, where that credibility finding was critical to the Authority's decision that it was not satisfied that the Applicant met the criteria for the grant of a visa.
(g)The Authority failed to consider explanations for the inconsistencies found that were
(i) given by the Applicant; or
(ii) reasonably available.
Regarding some explanations, it did consider, however, that it could have done so in a particular manner.
(h)The Authority failed to consider the effect of relevant information (which it had expressly acknowledged) in arriving at conclusions on which that information would have a precise bearing. It relied on information of objectively lesser significance in arriving at those conclusions.
Ground 3
The Authority committed jurisdictional error by failing to have regard to relevant considerations or otherwise failing to carry out its statutory task.
Particulars
(a)The Authority had determined that country information against the Applicant was not relevant to its task or decision and determined not to have regard to that information. (Para 43 of the Decision of the Authority).
(b)The Authority wrongly assessed the risk of harm that the Applicant faced from the Sri Lankan Authorities security forces in rejecting the Applicant's claim. (Para 41 & 42 of the Decision of the Authority).
The materials before this Court include a Court Book numbering 340 pages (marked as Exhibit 1), an amended application and written submissions filed on behalf of the applicant on 2 April 2024 and written submissions filed on behalf of the Minister on 15 April 2024.
Professor Karunadasa appeared (via video link) at the hearing of this matter (on 22 April 2024) on behalf of the applicant. Mr Jonathan Barrington of counsel (“Mr Barrington”) appeared at that hearing (also via video link) on behalf of the Minister.
The Court expressed concerns about Professor Karunadasa’s written submissions, noting that they appeared to ask the Court to engage in impermissible merits review. However, the Court allowed Professor Karunadasa to clarify (in oral submissions) any concerns he had with the IAA’s decision as those concerns relate to whether the IAA fell into jurisdictional error.
The written and oral submissions provided by Professor Karunadasa were somewhat limited. The Court’s usual practice in circumstances where applicants are not represented is to interpret the concerns raised on behalf of the applicant as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391). In the circumstances of this matter and noting the Court’s concerns, the Court followed that practice here and reviewed for itself whether the IAA fell into jurisdictional error.
Mr Barrington demonstrated considerable patience in this regard. The Court thanks him for his cooperation and the assistance he provided to the Court in his capacity as a model litigant.
CONSIDERATION
Amended grounds of review
Ground one
As outlined above, ground one provides as follows:
Ground 1
The Authority erred by not taking into proper consideration of the Applicants’ well-founded fear of persecution.
Particulars
(a)The Authority failed to apply the appropriate test by placing substantial weight on its finding regarding the harm suffered by the applicant. (Para 23-24 of the Decision of the Authority).
(b)The Authority failed to assess the Applicants claim objectively based on the refugee criteria, instead made conclusions on her beliefs. (Para 34 & 35 of the Decision of the Authority).
In oral submissions before this Court, Professor Karunadasa seemed to argue that the IAA had overlooked or had not properly evaluated the “relevant test”.
Although not entirely clear, the Court understands Professor Karunadasa to be alleging that the IAA misunderstood what is commonly referred to as the “real chance test”.
An applicant will have a well-founded fear of persecution for one or more of the grounds set out in s 5(J)(1)(a) of the Act if there is a “real chance of persecution”.
In Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22 (“Guo”), the High Court assessed the “real chance test” as follows:
57.Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
In this matter, the IAA (correctly) explained the term “well-founded fear of persecution” as follows:
20.Under s.5J of the Act ‘well-founded fear of persecution’ involves a number of components which include that:
•the person fears persecution and there is a real chance that the person would be persecuted
•the real chance of persecution relates to all areas of the receiving country
•the persecution involves serious harm and systematic and discriminatory conduct
•the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion
•the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and
•the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
The IAA then considered (in detail) whether, on the evidence before it, the applicant would be imputed as being pro-LTTE or anti-Sri Lankan government (at [23]-[46]). In doing so, the IAA accepted a number of the applicant’s claims about past incidents, including harassment the applicant had received at the hands of the Navy and resultant scarring (see for example [23]-[24] in the IAA’s reasons).
After a lengthy consideration of the evidence given by the applicant in this regard, the IAA ultimately made the following findings:
43.Country information before the delegate indicates that while there are still ongoing issues in Sri Lanka’s fishing industry, the situation for Tamil citizens’ land and fishing rights in the north and east have also improved since the applicant was last in Sri Lanka. Moreover the applicant has demonstrated experience working in several other industries besides fishing, including five years as a supervisor in the seafood transport business and four years for a cleaning company in Saudi Arabia. I consider he is not restricted to working in the fisheries sector should he return to Sri Lanka.
44.I have accepted the applicant has a scar on his chest as the result of mistreatment from the Navy in 1998. However I note that neither the 2015 DFAT report, nor the current DFAT report, make any reference to Tamils with scarring being more likely to be the subject of attention from the Sri Lankan authorities.
45.In 2016 the UK Home Office assessed that: “A person being of Tamil ethnicity would not in itself warrant international protection. Neither in general would a person who evidences past membership or connection to the LTTE unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport.”
46.I am not satisfied the Sri Lankan authorities will impute the applicant to have a pro-LTTE political opinion because of his Tamil race, his origins, his business trips to LTTE-controlled areas, his family connections (including with his uncle A) or his scarring. I am also not satisfied the applicant is of any interest to the authorities for any reason related to the 2007 murders of cousin S and her family, the subsequent disappearance of his acquaintances or any other reason. Based on the applicant’s personal circumstances, and the greatly improved country information, I am not satisfied the applicant faces a real chance of harm as a Tamil fisherman, or for any of the above reasons, should he return to Sri Lanka.
As was stressed by the High Court in Guo, without making findings about the applicant’s past relationship with the Navy or with the Sri Lankan authorities, the IAA would have had no rational basis from which it could assess whether there was a real chance that the applicant might be persecuted for a Convention reason if he were returned to the Sri Lanka.
The IAA’s reasoning in this regard was correct and entirely orthodox and no jurisdictional error arises in relation to ground one.
Ground two
Ground two relevantly states:
Ground 2
The Authority erred by engaging in irrational or illogical reasoning in making its findings regarding the credibility or probity of the Applicant’s evidence.
Particulars
(a)The Authority concluded that the Applicant was not credible, and evidence was not consistent, in circumstances where those “inconsistency” findings were either
(i) Made without hearing evidence from the Applicant;
(ii) not reasonably open to the Authority;
(iii) minor;
(iv) (not further assessed for significance in accordance with law.
(b)The Authority made findings concerning the Applicant’s credibility based on inconsistencies between his evidence and other evidence, which were determined to be fabricated without allowing him to give further evidence. (Para 22 of the Decision of the Authority).
(c) The Authority made unwarranted assumptions about
(i) regulatory frameworks or the compliance therewith; and
(ii)standards of institutional professionalism and formality in the Applicant's country;
(d)The Authority applied a logically inconsistent approach to assessing inconsistencies in the Applicant's involvement in local activities and his occupational evidence.
(e)The Authority made adverse findings regarding the Applicant’s credibility without allowing the Applicant to give further evidence.
(f)The Authority used illogical or unassessed minor inconsistencies and trivial errors to make adverse findings as to the Applicant’s credibility, where that credibility finding was critical to the Authority's decision that it was not satisfied that the Applicant met the criteria for the grant of a visa.
(g)The Authority failed to consider explanations for the inconsistencies found that were
(i) given by the Applicant; or
(ii) reasonably available.
Regarding some explanations, it did consider, however, that it could have done so in a particular manner.
(h)The Authority failed to consider the effect of relevant information (which it had expressly acknowledged) in arriving at conclusions on which that information would have a precise bearing. It relied on information of objectively lesser significance in arriving at those conclusions.
Professor Karunadasa’s oral submissions in relation to ground two appeared to suggest that the “evaluation of evidence” by the IAA was incorrect or improper (essentially asking the Court to engage in impermissible merits review). Professor Karunadasa otherwise seemed to suggest that the IAA did not understand what was required of it in relation to assessing the applicant’s credibility.
Findings of credibility are generally findings of fact par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. However, they are not immune from judicial review. Indeed, in CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 the Full Court of the Federal Court outlined those circumstances where a credibility finding may be recognised as having been affected by jurisdictional error, including on grounds of illogicality or unreasonableness (at [36]-[44]).
In Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210, Wigney J stated:
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
In this matter, the IAA’s main credibility concerns provide as follows:
22.Overall, as discussed below, I found the applicant’s oral evidence at SHEV interview to be inconsistent with his written statement and at times lacked credibility. During the SHEV interview the applicant stated several times that he suffers from memory problems and that his mind is not sound. I accept the applicant has psychological vulnerabilities, however these do not overcome my concern regarding the inherent lack of credibility of some of the applicant’s claims. I note the applicant had no apparent difficulty understanding the delegate’s questions at interview, and provided prompt and coherent answers to all the delegate’s questions via the interpreter.
The applicant’s “inconsistent evidence” was also addressed elsewhere in the IAA’s reasons (see, for example, at [31] and [38]). In particular, the Court notes that the IAA raised concerns in relation to the applicant’s evidence about the timing of the Navy’s interest in the applicant following the murders of four people (see [31] in its reasons) and the applicant’s claim that it was “too risky for his wife to … even go shopping” (noting that the applicant also gave evidence that his wife still attended church services and spent some time at home) (see [38] in its written reasons). These “inconsistencies” were of concern to the IAA.
To the extent that the applicant might now suggest (through his solicitor) that he was not notified in advance of the possibility of any adverse credibility findings or given an opportunity to respond or provide additional evidence (despite those findings being different to the view taken by the delegate), the IAA is not required to give the applicant any such notice: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72].
Insofar as the applicant might also now suggest that the IAA failed to consider the explanations provided for the inconsistencies, this fails on a factual level. The IAA expressly stated, in its reasons, that it had had regard to the applicant’s claimed mental health issues. However, the IAA was not satisfied that those issues satisfactorily accounted for the changes in the applicant’s evidence (see, for example, [13], [22] and [38] in the IAA’s reasons).
The Court also notes comments made by the Full Court of the Federal Court in BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 (“BJO18”) (citing AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83) as follows:
156.The appellant complained that the IAA did not “expressly assess” what significance should attach to the existence of each of the inconsistencies or anomalies that contributed to its ultimate finding. By that failure, it was suggested that the IAA had been drawn into a species of error to which this court referred in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83, 93 [28] (Kenny, Griffiths and Mortimer JJ). There, it was said that:
…even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
157.Again with respect, I do not accept that the IAA should be understood not to have turned its mind to any of the considerations listed in the passage above. The basis or bases upon which this court might infer such failures were not explored beyond assertion. The appellant’s contention that the IAA did not “expressly assess”—that is to say, record in its written reasons any assessment of—the significance that it attached to the existence of the relevant evidential inconsistencies may readily be accepted. I am unable, however, to see how that alone might suffice as a basis upon which this court might, on appeal, draw the inferences that the appellant would have us draw. To the contrary, the IAA appears very much to have turned its mind to whether or not the presence of the relevant evidential anomalies was significant enough to warrant its rejection of the appellant’s narrative. Reasonable minds might differ as to whether they did; but I am unable to accept that the IAA might be said, in this case, to have relevantly misunderstood the nature of its task, much less performed it unreasonably or unfairly, or otherwise in a way unauthorised by the Act.
The circumstances of this matter are very similar to those arising in BJO18. Whilst the IAA in this present matter did not necessarily “expressly assess” the significance that it attached to the evidential inconsistencies, the IAA does appear to have turned its mind to whether the anomalies were significant enough to warrant rejecting the applicant’s evidence and did so. The fact that this Court (or another decision maker) might have assessed the evidence and discrepancies differently is not the relevant test upon review.
The Court is satisfied that any discrepancies upon which the IAA relied in reaching its conclusions about credibility were “logically and rationally capable of informing that finding”: BJO18 at [158].
No jurisdictional error arises in relation to ground two.
Ground three
Ground three provides as follows:
Ground 3
The Authority committed jurisdictional error by failing to have regard to relevant considerations or otherwise failing to carry out its statutory task.
Particulars
(a)The Authority had determined that country information against the Applicant was not relevant to its task or decision and determined not to have regard to that information. (Para 43 of the Decision of the Authority).
(b)The Authority wrongly assessed the risk of harm that the Applicant faced from the Sri Lankan Authorities security forces in rejecting the Applicant’s claim. (Para 41 & 42 of the Decision of the Authority).
By ground three, the applicant appears to take issue with the IAA’s assessment of the evidence before it and the relevant country information.
In this regard, the Court notes that the following paragraphs in the IAA’s written reasons:
41.The applicant made a brief reference in his written statement to two of his cousins being forced to leave Colombo because their lives were in danger. On the basis of the very limited information before me I am not satisfied this is linked to the applicant’s situation.
42.I note five years have elapsed since the publication of the UNHCR Guidelines and more recent country information before me indicates the situation for Tamils in the north and east has improved substantially since the applicant was last in Sri Lanka. The Sirisena government has replaced the military governor of the Northern Province with a civilian administration as a confidence-building measure to address the grievances of the Tamil community. The requirement for Tamil residents of the former LTTE strongholds of Jaffna and Kilinochchi to register with the military ceased in 2011 (prior to the applicant’s departure from Sri Lanka), and monitoring of individual citizens in the north and east of the country, while still occurring, has reduced. Furthermore, there are no restrictions on freedom of movement throughout the entire country, and significant military checkpoints in the north have been dismantled.
43.Country information before the delegate indicates that while there are still ongoing issues in Sri Lanka’s fishing industry, the situation for Tamil citizens’ land and fishing rights in the north and east have also improved since the applicant was last in Sri Lanka. Moreover the applicant has demonstrated experience working in several other industries besides fishing, including five years as a supervisor in the seafood transport business and four years for a cleaning company in Saudi Arabia. I consider he is not restricted to working in the fisheries sector should he return to Sri Lanka.
To the extent that the applicant takes issue with the country information the IAA had regard to, it is well established that the choice of country information, the weight afforded to country information and any consideration regarding the accuracy of country information is a matter for the decision-maker: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]-[13]; DAK16 v Minister for Immigration and Border Protection [2019] FCA 68 at [27] and CRG16 v Minister for Home Affairs [2019] FCA 374 at [56]. Further, this Court would be engaging in an impermissible merits review if it made its own assessment of country information: NAHI. The choice and interpretation of country information is also a factual matter for the IAA alone: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 and NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419.
Insofar as the applicant claims that the IAA erred in assessing the risk of harm or the applicant’s evidence in relation to the applicant’s claim regarding his cousins leaving Colombo, the Court disagrees for the reasons that follow.
The IAA was not required to accept the applicant’s claims uncritically or look for rebutting evidence before holding that an assertion was not made out: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; Guo at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70. Further, it was a matter for the IAA to determine what weight to give the applicant’s evidence: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48. Here, the IAA simply determined that the information provided was so limited that it was not satisfied that the cousins’ departure was in any way “linked to the applicant’s situation” (at [41] in its reasons).
No jurisdictional error arises in relation to ground three.
Issues raised by the Minister in his capacity as a model litigant
In written submissions filed in this Court on 15 April 2024 on behalf of the Minister, Mr Barrington raised a number of issues for the Court’s consideration as part of his obligations as a model litigant. These issues were not raised by Professor Karunadasa.
The Court thanks Mr Barrington for his considerable assistance in this regard. His conduct throughout these proceedings was what the Court expects (but, unfortunately, does not always see) from a model litigant. Others would do well to emulate Mr Barrington’s approach in this regard.
One of the issues raised by Mr Barrington goes to the IAA’s refusal to accept or to consider the revised submission (totalling eight pages) provided to the IAA (via email) on behalf of the applicant on 17 February 2017 (CB 306-313).
In the revised submission, the applicant’s representative acknowledged that the revised submission was longer than the five-page suggested limit (emphasis added) (CB 306):
We provide this revised submission in response. It is our view that the submission is now concise and identifies the issues. In our submission, the submission complies with the Practice Direction and should be taken into account despite being longer than 5 pages. We note that the Practice Direction states that a submission ‘must be concise’ and ‘should be no more than 5 pages’, such that the 5 page limit is not an absolute requirement. There are many aspects of the delegate’s reasoning requiring response. Mr Borgia did not have legal representation at his interview such that legal submissions in support of his claims have not previously been able to be made. It is our submission that in the circumstances, these submissions are concise and as brief as possible.
If the IAA considers that these revised submissions still do not comply with the Practice Direction, we note that the IAA nonetheless has the ability to consider the longer the submissions. We submit that it would be unreasonable to decline to take the submissions into account, in view of the circumstances outlined above. If the IAA is inclined to conclude that our revised submissions do not comply with the Practice Direction and intends not to consider them, we respectfully request that we be advised of that issue and given the opportunity to provide further revised submissions.
We also wish to make clear that we are providing this revised submission on the request of the IAA, without in any way conceding the legality of the Practice Direction or its application. We reserve our client’s right to challenge the validity of the Practice Direction and do not accept that confining the applicant to a 5 page submission is consistent with the requirements of procedural fairness under Division 7AA of the Migration Act 1958 (Cth) (‘Migration Act’) or more generally. Nor do we concede that the Practice Direction is a valid exercise of power under s 473FB of the Migration Act.
The IAA’s reason for refusing to accept the revised submission was that the submission exceeded the five page limit set out in the Practice Direction.
The IAA relevantly stated as follows:
4.On 10 February 2017 the IAA received a 35 page submission on behalf of the applicant, which did not comply with the IAA’s ‘Practice Direction’ and it was returned to the representative. On 17 February 2017 the IAA received a “revised submission”, largely consisting of argument addressing the delegate’s decision. To that extent I do not consider it to be new information. However, when the non-standard margins are taken into account, the revised submission amounts to almost ten pages. Even when the new country information contained in the submission (discussed below) is taken into account, the submission is well over five pages.
5.The revised submission begins with arguments as to why the submission should be considered, even though it is longer than five pages. The representative argues that the applicant did not have legal representation at his SHEV interview, that due to the nature of the delegate’s reasoning a submission in excess of five pages was necessary in this case, and that her revised submission is as concise and as brief as possible. The representative has also requested that if the IAA is inclined not to consider it, due to its length, then it should inform her accordingly and afford her the opportunity to provide further revised submissions.
6.I have carefully considered the representative’s arguments about this, and her request, and am not satisfied that the applicant’s lack of representation at the SHEV interview, or any aspect of the delegate’s reasoning, necessitates a submission that exceeds the five pages specified in the Direction. I do not accept that the revised submission is as concise as possible. Furthermore I am satisfied that the applicant’s representative, who is a registered migration agent, was put on notice regarding this issue and was given adequate time to provide a revised, concise submission in compliance with the Practice Direction. In all the circumstances I have decided to make the following decision without consideration of the revised submission.
Mr Barrington (on behalf of the Minister) argued that a failure to accede to a request made by an applicant to provide a submission over 5 pages in length could not constitute a denial of procedural fairness. In this regard, Mr Barrington cited ACA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1213, which provides as follows:
40.First, any failure by the Authority to accede to or respond to any request made by the applicant to provide submissions in excess of five pages could not constitute a denial of procedural fairness. Section 473DA provides that Division 3 of Part 7AA of the Act that provides for a fast track review process in relation to certain protection visa applications, together with ss 473GA and 473GB of the Act, is an “exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Review Authority”. Accordingly, the failure to comply with the Practice Direction in the manner alleged by the applicant does not give rise to a breach of procedural fairness.
Mr Barrington also argued that there was “real doubt” that the IAA can act legally unreasonably in refusing to accept a submission which fails to comply with the Practice Direction. In that regard, Mr Barrington cited BUU18 v Minister for Home Affairs [2019] FCA 457 (“BUU18”), as follows:
21.Where Pt 7AA contains no provisions dealing with ability of an applicant to make a submission (contra ss 423 and 425 of the Act for reviews conducted under Pt 7 of the Act) and s 473DA makes the regime an exhaustive statement of what procedural fairness requires, I entertain considerable doubt as to whether the Practice Direction can add to the procedures contained in Pt 7AA itself. Further, given that legal unreasonableness is not a freestanding concept but rather an implication of legislative intention (Li at 362 [63]), it is unclear against which statutory discretionary power the reasonableness of refusing to receive submissions purportedly out of time is to be assessed.
The Court notes that the circumstances which arose in BUU18 differed to those in the case currently before the Court. In BUU18, the issue related to whether the IAA was required to act “reasonably” when refusing to extend the time period for provision of a submission. In the present matter, however, the issue relates to whether the IAA is required to act “reasonably” when refusing to accept a submission that is longer than the 5 pages.
There is very little jurisprudence available in this regard, particularly as it relates to legal unreasonableness relating to a refusal on the part of the IAA to accept submissions exceeding 5 pages in length (as specified in the relevant Practice Direction).
The Court refers to the following additional passage from BUU18 which states:
22.Notwithstanding these reservations, cl 22 appears to contain an assumption that the Authority may extend the 21 day deadline in cl 21. Assuming that an assumption in a clause in a practice direction can be a source of statutory authority, I do not think it can be said that the refusal in this case was unreasonable or irrational in the relevant sense. One can imagine perfectly sensible reasons why a decision maker in the position of the Authority might have refused to extend the time. Consequently, one cannot say that the decision to do so is unreasonable on its face. Nor can I discern in the refusal some process of reasoning which defies comprehension. This argument therefore fails.
What can be seen from [21]-[22] in BUU18 (set out above) is that the IAA may still (arguably) fall into jurisdictional error if a decision not to extend the time frame within which submissions are provided is not made reasonably or rationally.
In the absence of any jurisprudence to the contrary, this Court considers that the same must also be true of a decision to refuse to accept a submission exceeding 5 pages in length.
The Court also notes the contents of cl 21 in the Practice Direction which relevantly provided as follows (emphasis added) (CB 204):
21.Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.
As can be seen from the extract in the Practice Direction above, the IAA may return submissions which are longer than the requisite number of pages (being 5 pages).
Here, the applicant’s representative provided a 35 page written submission to the IAA (by email) on 10 February 2017 (CB 249-284).
On 13 February 2017, the IAA asked the applicant’s representative (by email) to provide a “revised, concise written submission” and allowed the applicant’s representative until 17 February 2017 to do so (CB 303).
The applicant’s representative provided a more concise submission to the IAA on 17 February 2017 (and within the extended time period) via email (CB 304-313). That revised submission was eight pages long and the majority of the first page included an explanation in relation to why the revised submission was slightly longer than the requisite five-page limit (and asked to be advised if this was still an issue so that a further revised submission could be provided if required) (CB 306).
In the circumstances of this matter, noting that the applicant’s representative provided the revised submission within the requisite time period (being within four days) and essentially agreed to provide a further revised submission if required, the Court considers that the IAA acted unreasonably in refusing to allow the representative time to provide a further revised submission. This is particularly so given the very short time period the IAA provided for the revised submission to be provided and given the serious, arguably extreme, consequences for the applicant of a visa refusal.
As to whether any such error is material, as explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (“LPDT”), the appropriate test is “whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error”: LPDT at [14] (emphasis in original). The Court considers that, had the IAA had regard to revised submissions provided on behalf of the applicant, the outcome in this matter could have been very different.
The IAA has fallen into jurisdictional error by unreasonably refusing to allow the applicant’s representative an opportunity to provide a further revised submission for consideration.
Given that jurisdictional error has been identified, it is unnecessary for the Court to consider the other issues raised by the Minister (as model litigant). The Court does, however, again thank Mr Barrington for his considerable assistance in this regard.
CONCLUSION
For the reasons outlined above, jurisdictional error has been identified in part by the Minister (as a model litigant) and, in part, by the Court itself.
The IAA’s decision will be set aside and the matter will be remitted to the IAA for reconsideration.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 16 September 2024
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