Ejy17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 431
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 431
File number: MLG 2101 of 2017 Judgment of: JUDGE RILEY Date of judgment: 2 June 2022 Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority erred in failing to ask the applicant for a legible copy of a letter he had submitted – whether the Authority erred in its treatment of new information – whether the Authority erred in deciding certain information was not relevant. Legislation: Migration Act 1958 s.473DC(1),(2),(3) and 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; (2020) 384 ALR 196; [2020] HCA 37
AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Minister for Immigration and Border Protection v CED16 (2020) 380 ALR 216; [2020] HCA 24
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429; (2009) 83 ALJR 1123; [2009] HCA 39
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 7 April 2022 Place: Melbourne Counsel for the Applicant: Joel Tito Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Daye Gang Solicitor for the First Respondent: Mills Oakley Lawyers Counsel for the Second Respondent: No appearance Solicitor for the Second Respondent: Mills Oakley Lawyers ORDERS
MLG 2101 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJY17
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
2 JUNE 2022
THE COURT ORDERS THAT:
1.The decision of the Immigration Assessment Authority made on 1 September 2017 in matter number IAA17/01920 be set aside.
2.The matter be remitted to the Immigration Assessment Authority for determination according to law.
3.The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s reasons for judgment may be subject to review 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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
BACKGROUND
In his written submissions, the applicant provided the following background to this matter:
A. Claims
2.1 The Applicant is a Tamil Hindu from Sri Lanka. The Applicant arrived in Australia on 13 October 2011 without a valid visa. On 12 June 2016 the Applicant applied for a SHEV.
2.2The Applicant claims to fear harm in Sri Lanka primarily on the basis of his Tamil ethnicity and an imputed association with the Liberation Tigers of Tamil Eelam (LTTE). The Applicant claims he has a known history of involvement with the LTTE, that he was tortured by the Sri Lankan authorities on multiple occasions because of that involvement, and that some of his family members have suffered harassment by the authorities in consequence of their engagement with the LTTE. The Applicant claims to have been in hiding for two years prior to his departure from Sri Lanka.
B. The decision of the delegate of the Minister
2.3 The Applicant participated in a SHEV interview on 9 December 2016 and on 2 February 2017, the delegate refused to grant the Applicant a visa.
2.4 The delegate accepted that the Applicant instructed his lawyer during the SHEV interview to withdraw paragraphs 50 and 51 of his written statement. In its reasons for decision, the delegate said:
…The applicant’s representative indicated her client had instructed her to withdraw paragraphs 50 and 51 of his written statement, being the paragraphs relating to the CID searching his aunt’s home and arresting him. Paragraphs 52, 53, 54, and 55 which describe the applicant’s arrest, reporting requirements, torture and beatings by the CID, and the applicant absconding from reporting to the CID are causally linked to paragraph’s 50 and 51 and I have therefore disregarded them for the purposes of this assessment….
2.5 As a result, the delegate’s decision proceeded on the basis that the Applicant was not claiming to have been tortured in Sri Lanka. The delegate also made adverse credibility findings about the Applicant generally. Those findings were based, at least in part, on the remarks of the Applicant’s representative during the SHEV interview as well as the Applicant’s purported instruction to his representative to withdraw some of the claims made in his written statement.
2.6 On 7 February 2017, the delegate’s decision was referred to the Authority for review.
C. The decision of the Authority
2.7 On 22 May 2017, the Applicant submitted new information to the Authority in the form of two statutory declarations, one by the Applicant and a second by the authorised recipient of the Applicant.
2.8 In the Applicant’s statutory declaration the Applicant sought to affirm the authenticity of his written statement and indicate how and why parts of it came to be purportedly withdrawn. The Applicant claimed:
i. he never instructed his representative to withdraw any part of his written statement;
ii. his representative told him she wanted to withdraw some of the paragraphs from his written statement but did not tell him which paragraphs she wanted to withdraw nor why she wanted to withdraw them;
iii. his representative “confused” him during the interview;
iv. he never received any advice from any third-party regarding what he should say in his written statement or that he should exaggerate the events that took place in Sri Lanka;
v. the written statement supplied to the delegate, including paras [50]-[51] was entirely true.
2.9 In [Mr B’s] statutory declaration [Mr B] denied that he had ever counselled the Applicant to fabricate any of the events relayed in the Applicant’s written statement. [Mr B] affirmed that the Applicant told him that he did not instruct his representative to withdraw any parts of his written statement.
2.10 On 17August 2017, the Authority wrote to the Department observing that the letter from Home for Human Rights (letter) included as part of the review material was illegible. It requested a legible copy of the letter from the Department. On 30 August 2017, the Department responded to the Authority’s request, observing that its copy was also illegible and suggesting that the Authority might instead request a legible copy from the Applicant directly. The Authority did not do so.
2.11 On 1 September 2017, the Authority affirmed the delegate’s decision, finding that the Applicant was not at risk of harm if returned to Sri Lanka. Relevantly, the Authority declined to accept the new information concerning the Applicant’s statutory declaration on the basis of the purported operation of s 473DD of the Act. The Authority declined to accept the new information concerning the [Mr B] statutory declaration on the basis it was not “relevant” under s 473DC(1)(b) of the Act. The Authority’s analysis in respect of why neither para (a) or (aa) of s 36(2) of the Act were met therefore proceeded on the assumption that the Applicant had never been subject to torture nor harassment by the authorities. (footnotes omitted)
MATERIAL RELIED UPON
At the final hearing on 7 April 2022, the applicant relied upon:
(a)his affidavit sworn on 2 October 2017;
(b)the court book filed on 25 June 2018;
(c)his amended application filed on 22 March 2022;
(d)the affidavit affirmed by Gregory John Hanson on 24 March 2022;
(e)the applicant’s written submissions filed on 25 March 2022; and
(f)his affidavit sworn on 6 April 2022.
At the final hearing on 7 April 2022, the Minister relied upon:
(a)his written submissions filed on 4 April 2022; and
(b)the court book filed on 25 June 2018.
The Minister did not seek to cross-examine the applicant or Mr Hanson. Their evidence is not inherently improbable or internally inconsistent. Therefore, I accept the evidence contained in their affidavits.
GROUND 1
The first ground of review in the application filed on 2 October 2017 and amended on 22 March 2022 (“the application”) is:
The Authority fell into jurisdictional error by unreasonably failing to consider a letter from Home for Human Rights.
PARTICULARS
A.Under cover of a letter dated 12 June 2016, the Applicant’s then representative sent documents in support of his application for a Safe Haven Enterprise Visa (SHEV) (CB30).
B.One of the supporting documents accompanying the SHEV application was a letter from Home for Human Rights (Letter) (CB94).
C.Following referral of the Applicant’s case to the Authority under s 473CA of the Migration Act 1958 (Cth) (Act), the Department of Immigration and Border Protection (Department) provided the Authority with the review material under s 473CB of the Act.
D.On 17 August 2017, the Authority wrote to the Department observing that its copy of the Letter was illegible and requesting a more legible copy from the Department (CB203).
E.On 30 August 2017, the Department wrote back to the Authority noting that its copy was also illegible and suggesting that the Authority obtain a copy directly from the Applicant (CB206).
F.In performing its statutory function under s 473CC of the Act, the Authority is obliged to consider the material that was provided to it under s 473CB of the Act.
G.The Authority did not consider the Letter, instead, proceeding to decision on 1 September 2017.
H.In the premises, the Authority erred.
I.Alternatively, the Authority is obliged to consider the integers of an Applicant’s claim and to engage in an active intellectual process with respect to significant and clearly expressed representations by the Applicant.
J.The Letter formed part of the Applicant’s claims.
K.In the premises, the Authority erred.
L.Alternatively, the Authority has the power to exercise its discretion to get new information that was not before the Minister pursuant to s 473DC of the Act.
M.Even if the Letter was not before the Minister, the failure to exercise the discretion under s 473DC of the Act was legally unreasonable.
N.In the premises, the Authority erred.
O.The Authority’s errors described in particulars G, J and M above were material because there is a realistic possibility that if it had received and considered the Letter, the Authority might have reached a different conclusion in relation to the application.
P.The Authority’s errors were therefore jurisdictional.
It was common ground that the applicant attached to his statutory declaration made on 12 June 2016 a letter from Home for Human Rights dated 8 August 2011. The statutory declaration was lodged with the Minister’s department on 17 June 2016 with the applicant’s application of the same date for a Safe Haven Enterprise Visa.
The copy of the letter provided by the Secretary of the Minister’s department to the Authority on or about 7 February 2017 was illegible. The letter is reproduced at CB94. The copy in the court book is illegible. The parties agreed at the hearing before this court that the letter was written in English, except for a few words in the header that are in Tamil and Sinhalese. Only a few of the English words in the letter can be made out, namely, “he was studying”, “bombing” and “people”.
On 17 August 2017, the Authority wrote to the department saying that the letter was illegible and asking for a legible copy. On 24 August 2017, the Authority asked the department to reply to its request of 17 August 2017. On 30 August 2017, the department replied saying:
Our copy is also illegible. You may wish to ask the client to provide the original.
The Authority did not ask the applicant for a legible copy of the letter. On 1 September 2017, the Authority made its decision affirming the delegate’s refusal of the applicant’s visa application.
The difficulty with the first aspect of this ground, regarding the consideration of claims, is that it is not possible for the court to be satisfied that the applicant made any claims in the letter that were not made elsewhere in his materials. That is because the letter is illegible. It is entirely possible that the letter does no more than repeat the claims made by the applicant in his statutory declaration.
The applicant’s affidavit affirmed on 6 April 2022 describes how the letter came to be in the applicant’s possession and what he did with it. However, the applicant did not say in his affidavit or elsewhere what the letter said. The applicant did not say in his affidavit or elsewhere that he made any claims in the letter that he did not make elsewhere. Therefore, it is not possible for the court to accede to the first aspect of this ground.
There was some discussion at the hearing before this court about whether the copy of the letter provided by the applicant to the department was illegible, or whether the illegibility arose when the letter was in the possession of the department. The applicant did not say in his affidavit that the letter was legible when he received it. That is not surprising, as he presumably did not read English at that time. The only direct evidence about the legibility of the letter in the department’s hands is that the department said on 30 August 2017 that its copy (singular) was illegible.
The applicant suggested that the letter may have become corrupted when the department digitised it. However, that seems to me to be very unlikely, as the letter was one page out of about 70 pages that comprised the applicant’s visa application and attachments. None of the other pages are at all illegible. I conclude, on the balance of probabilities, that the letter provided by the applicant to the department was illegible.
The applicant conceded in oral argument that, if he had provided a document in a foreign language to the department, without a translation into English, the department and the Authority would have been under no obligation to do anything to obtain an English version of the document. The applicant conceded that the same applied if he had provided to the department a letter that could not be comprehended. In my view, the letter the applicant provided to the department could not be comprehended because it was illegible.
Nevertheless, the applicant argued that the present situation was different, because the applicant had evinced an intention to rely on the letter, by saying in his statutory declaration that he relied on the letter in support of his claims. That is not a relevant distinction. Moreover, as mentioned above, it is simply not possible to know that the letter contained any claims that were not contained elsewhere in the applicant’s materials. The letter may have been along the lines of, “The applicant told me that …”.
The applicant also argued that it would have been a simple and straightforward matter for the Authority to ask the applicant for a copy of the letter, and that such an enquiry would have satisfied the test in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429; (2009) 83 ALJR 1123; [2009] HCA 39 (23 September 2009). In that case, the High Court said at [25]:
… It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case… (citation omitted)
However, the applicant did not have a copy of the letter at the time of the Authority’s review, in 2017, so he could not have provided it to the Authority himself. The applicant said in his affidavit that:
(a)he received the letter by email from his family while he was in detention in 2012;
(b)he no longer had access to the email account to which the letter was sent;
(c)he printed hard copies of the letter while he was on Christmas Island;
(d)he gave a copy of the letter to an officer of the Australian government on Christmas Island at that time;
(e)he gave a copy of the letter to his lawyer, Ms A, who assisted him with his Safe Haven Enterprise Visa application; and
(f)he did not keep a copy of the letter.
What became of the copy of the letter that the applicant gave to an officer of the Australian government on Christmas Island is unknown.
The visa application lodged by Ms A included the letter. It is unknown whether Ms A kept a copy of the letter, though it may be assumed that, in accordance with proper practice, she did. However, by the time of the Authority’s review, Ms A was no longer acting for the applicant. She withdrew as his lawyer during the interview with the delegate due to what she described as a conflict. At the time of the Authority’s review, the applicant’s authorised recipient was Mr B, who was not a lawyer or migration agent. There is no evidence that the applicant ever gave Mr B a copy of the letter. For the purposes of this proceeding, the applicant is represented by Victoria Legal Aid.
In any event, it seems likely that the Authority could have emailed Mr B, as it did a number of times about other issues, and asked for a legible copy of the letter. If Mr B did not have a legible copy of the letter, he could have asked Ms A for one. Although Mr B was disparaging of Ms A in communications with the Authority, I do not doubt that Ms A would have given Mr B a copy of the letter if he had asked for it. Mr B could have then given it to the Authority. This process was obvious and easy.
However, whether either Ms A or Mr B had a legible copy of the letter is not known. For the purposes of the hearing before this court, the applicant did not obtain a legible copy of the letter from either of his two previous authorised recipients.
Moreover, it is by no means apparent that, in terms of SZIAI, the letter consisted of, or contained, a critical fact, much less a critical fact that the applicant had not separately conveyed to the department and the Authority. As mentioned above, the applicant has not described the contents of the letter for the purposes of this proceeding.
All in all, I am not persuaded that the first aspect of ground 1 has any substance.
As to the second aspect of ground 1, concerning new information, the relevant provisions of the Migration Act 1958 (“the Act”) were as follows:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
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.
The applicant argued that the Authority should have exercised its discretion to get new information, being a legible copy of the letter. The Minister relied on s.473DC of the Act to argue that the Authority was under no obligation to get a legible copy of the letter.
Assuming that a legible copy of the letter was new information, the Authority was under no obligation to get it, pursuant to s.473DC(2) of the Act. Moreover, a legible copy of the letter, on the applicant’s case before this court, could have been provided to the Minister before the Minister made his decision on the visa application. That is because, according to the applicant, the Authority could have obtained a legible copy of the letter if the Authority had asked the applicant for it. It follows that the applicant could have obtained a legible copy of the letter at any earlier time as well.
Of course, the applicant said he did not know that the copy he had previously provided to the department was illegible. However, as discussed above, I consider that the copy of the letter Ms A provided to the department was illegible. It was within her power, and therefore within the applicant’s power, to have known that the letter was illegible and to have corrected the problem before the delegate made his decision. Therefore, the applicant could not have satisfied the Authority that a legible copy of the letter could not have been provided to the delegate before he made his decision, and s.473DD of the Act could not have been satisfied.
The second aspect of this ground is not made out.
GROUND 2
The second ground of review in the application is:
The Immigration Assessment Authority (Authority) fell into jurisdictional error by misconstruing and/or misapplying s 473DD of the Act in respect of the receipt of new information concerning the conduct of the Applicant’s former migration lawyer.
PARTICULARS
A.The new information was provided under the cover of a submission made on 22 May 2017 (CB 196) and was contained in a statutory declaration made by the Applicant (CB189).
B.By his statutory declaration accompanying the submission, the Applicant indicated that the new information was provided in response to the conduct of his representative during an interview with a delegate of the First Respondent on 9 December 2016 in withdrawing aspects of his claims without instructions, making allegations against a person without instructions and, ultimately, withdrawing from the case.
C.In applying the terms of s 473DD of the Act to the new information, the Authority was obliged to:
a.first assess the new information against the criteria specified in ss 473DD(b)(i) and 473DD(b)(ii), that is, whether the information was unable to be provided to the delegate before the delegate’s decision (s 473DD(i)) or is credible personal information which may have affected the delegate’s decision (s 473DD(b)(ii);
b.only then assess the new information against the criterion specified in s 473DD(a), that is, whether there are exceptional circumstances to justify considering the new information, taking into account the matters relevant to the assessment under ss 473DD(b)(i)-(ii).
D.In purporting to apply s 473DD(a) the Authority failed to assess the new information in accordance with the procedure described in Particular D above (CB212-3, [7] – [8]).
E. In the premises, the Authority erred.
F.The Authority’s error was material because there is a possibility that if it had received and considered the new information, the Authority might have reached a different conclusion in relation to the application.
G. The Authority’s error was therefore jurisdictional.
In his written submissions filed on 25 March 2022, the applicant said:
The SHEV interview
4.6The Applicant does not speak English and his evidence at the SHEV interview was provided through an interpreter. His legal representative was also present.
4.7It is clear that communication was difficult during the SHEV interview. At various points, the Applicant (through the interpreter) notes that he did not understand what was being asked of him.33 As a result of the confusion, the delegate himself appears to have also misunderstood some of the evidence that the Applicant was giving. At various points in the interview, the delegate says to the interpreter and the Applicant that he doesn’t understand what is being said to him.34
4.8During the interview, the delegate appears to have taken the view that the Applicant had provided an account of his interactions with the CID that was inconsistent with his written statement.35 After asking the Applicant to clarify the purported inconsistencies, the Applicant offers that any difference in details may be the result of a breakdown of communication with the person who translated his claims for the purposes of the written statement.36
4.9It is at this point that the Applicant’s then legal representative becomes involved in the interview, noting that “this is of serious concern to me”.37 After some further questions and discussion on other issues, the interview appears to be coming to a close. The delegate offers the Applicant the chance to have a discussion with his legal representative to determine whether there was anything else the Applicant wanted to tell the delegate.
4.10After a fifteen minute break, the interview with the delegate recommences. Soon after, the Applicant’s representative is asked whether there is anything that she would like to submit. The Applicant’s representative says:38
[Representative]: Well, I was hoping my client would, but on instructions, we’re willing to withdraw paragraphs 50 of his statutory declaration, paragraphs 51, and I will get instructions about – sorry. This is – sorry. I’m just seriously concerned about the integrity of his statement in parts.
[Delegate]: Okay.
[Representative]: And I’m not sure what to do about it other than to literally sit down with my client and go through chapter and verse and get instructions about what is or isn’t correct. I believe that his LTTE involvement and the evidence that he has provided in support of LTTE involvement and his family’s LTTE involvement, beyond anything that he says, it’s open to you to accept that. In terms of specific details, I also say that it’s open to you to accept his two brothers were sent to rehabilitation centres. He was interned at Ramanathan camp. Sorry. I’m just conscious that Mr Interpreter isn’t interpreting any of this, and it’s important that you do. So for the record, paragraphs 50 and 51 on the statutory declaration need to be withdrawn. They are not true. Given that my client has indicated that he was influenced by the person that interpreted in providing this statutory declaration to also change aspects of other parts of his case, I have concerns about the integrity of this document as a whole.
4.11Shortly after this, the representative says:39
[Representative]: I am at a loss about continuing to represent my client in this application.
[Delegate]: Okay.
[Representative]: I feel like I have a conflict of interest because I believe that there’s things that he’s not – I have a conflict. That’s all I can – that’s as far as I can push it.
[Delegate]: Okay.
[Representative]: I have a conflict.
[Delegate]: Yes.
4.12After another short break, the Applicant’s representative confirms that she will formally withdraw as the Applicant’s representative and the SHEV interview is concluded.
The Delegate’s decision
4.13 Clearly, the incident involving the Applicant’s representative at the SHEV interview influenced not only the way in which the delegate assessed the credibility of the Applicant40 but also what the delegate understood the Applicant to be claiming. So much so is apparent from the delegate’s written reasons:41
The applicant claims that he was required to register with the CID in Killinochchi, and was beaten and tortured by the CID. The applicant also claims that the CID searched his home and found a photo of his cousin who died while fighting for the LTTE, and the applicant was arrested by the CID as a result. The applicant provided inconsistent accounts of this event between his written statement and at interview. When these inconsistencies were put to him, his representative submitted that he had been influenced by a member of the Tamil community to fabricate certain aspects of his claims. The applicant’s representative indicated her client had instructed her to withdraw paragraphs 50 and 51 of his written statement, being the paragraphs relating to the CID searching his aunt’s home and arresting him. Paragraphs 52, 53, 54, and 55 which describe the applicant’s arrest, reporting requirements, torture and beatings by the CID, and the applicant absconding from reporting to the CID are causally linked to paragraph’s 50 and 51 and I have therefore disregarded them for the purposes of this assessment. When I consider the implausibilities in the applicant’s account of his travel from Vavuniya to Killinochchi and Meesalai, his withdrawal of the above paragraphs, and his general lack of credibility (discussed below), I do not accept that the applicant escaped from Menik Farm.
4.14 Accordingly, even putting the credibility issues associated with representative’s conduct in the SHEV interview to one side, the withdrawal of paragraphs 50 and 51 of the Applicant’s written statement was significant because it materially changed the nature of the Applicant’s claims and the way in which the delegate assessed his entitlement to a SHEV.
Statutory declaration
4.15 The delegate refused to grant the Applicant a visa and the matter was referred to the Authority. Upon referral, the Applicant provided a statutory declaration dated 14 May 2017,42 in which he claimed, inter alia, that he never provided instructions to withdraw paragraphs 50 and 51 and that he continued to rely on the evidence in his original statement.
4.16 The Authority declined to accept the statutory declaration, observing s 473DD of the Act precluded consideration of the new information.43 The entirety of the Authority’s consideration of the new information (at [7]) is limited to the questions asked by paragraphs s 473DD(b)(i) and s 473DD(a), and the conclusion it draws at [8] of its reasons is expressed solely in those terms. Nowhere does the Authority turns its attention to the distinct question of whether or not the new information was credible personal information, nor whether the statutory declaration containing the Applicant’s claims meets the tripartite set of elements contained s 473DC(b)(ii).44
4.17Further, the Authority assessed para (a) of s 473DD without factoring into that assessment the satisfaction of either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DC(b)(ii). Such consideration is not only a necessary first step in applying s 473DD, but also forms a necessarily component of the proper assessment of s 473DD(a) itself.45
4.18The Authority’s consideration under s 473DD of the Act therefore miscarried in the way contemplated in AUS17 at [12].
The Authority’s failure to properly apply s 473DD was a material error
4.19 The Applicant’s statutory declaration was credible personal information that was “capable of being accepted by the Authority as truthful (or accurate, or genuine).”46 Not only did it describe the confusion that the Applicant experienced during the interview (and therefore went some distance to explaining any apparent inconsistencies arising out of the interview) but, more importantly, it described the conduct of his legal representative in withdrawing part of his claims without instructions.
:See, for example, Affidavit of Gregory John Hanson affirmed on 24 March 2022, Exhibit GJH1 (transcript) at page 4 of the transcript; transcript at page 5; transcript at page 24.
:See, for example, transcript at page 44; transcript at page 47; transcript at page 54
:Transcript at page 46
:Transcript at page 47.
:Transcript at page 48.
:Transcript at page 58 (emphasis added).
:Transcript at page 61.
:See, for example, CB153-4.
:CB153 (emphasis added)
:CB189.
:CB212-3, [7] – [8].
:Cf AUS17 at [8]; M174/2016 at [33]-[34].
:AUS17 at [11].
:CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 at [41] (Bromberg J).
The Authority said in relation to the request that it consider the new information in the applicant’s statutory declaration made on 14 May 2017:
5.The applicant provided a submission to the Immigration Assessment Authority (IAA) on 22 May 2017. This submission contains a statutory declaration by the applicant and a statutory declaration by a person ("[Mr B]") who assisted the applicant to prepare his SHEV application. Neither statutory declaration was before the Minster. The applicant's statutory declaration is new information, although some of the contents refer to matters in the referred materials. For the reasons I give below, I am not satisfied that [Mr B’s] statutory declaration is relevant to this review.
6.Paragraphs 16-32 of the applicant's declaration refer to claims and issues that were before the delegate and address aspects of the delegate's decision.
7.Paragraphs 3-14 of the applicant's declaration make claims in relation to the interview with the delegate on 9 December 2016 (the interview) and the conduct of the applicant's then migration lawyer. The applicant makes claims that he was confused, and alleges that his lawyer acted in an unprofessional manner, including withdrawing aspects of his claim without instructions and making false accusations against [Mr B]. He alleges that his lawyer's actions in withdrawing from the case due to a conflict of interest have unfairly prejudiced him. I have listened to the audio recording of the interview and I am satisfied that the applicant was assisted by an interpreter and was aware of the withdrawal of the relevant claims. The delegate explained the credibility issues to the applicant, as well as issues arising from the statement prepared with [Mr B’s] assistance. The lawyer explained that she could not continue to act. I am satisfied that these issues were squarely raised with the applicant and although he was invited on a number of occasions to respond or provide further information at the interview, he did not do so. There is no indication in the material that the applicant (or [Mr B]) attempted to contact the Department after the interview.
8.Having regard to all of the above, I am not satisfied that the new information could not have been provided in the two months before the decision was made. I am not satisfied that there are exceptional circumstances to justify considering this new information.
As can be seen from paragraph 8 of the Authority’s reasons for decision, the Authority considered the matters required by s.473DD(b)(i) of the Act (whether the new information could have been provided to the delegate before the delegate made his decision) and considered the matters required by s.473DD(a) of the Act (exceptional circumstances). However, the Authority did not consider, in terms, the matters required by s.473DD(b)(ii) of the Act (credible personal information).
In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; (2020) 384 ALR 196; [2020] HCA 37, a majority of the High Court said:
[10]Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
[11]Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
[12]The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
(footnotes omitted)
Nevertheless, the Minister argued that the Authority had s.473DD(b)(ii) of the Act in mind when it wrote paragraph 7 of its reasons for decision. The Minister argued that the Authority in that paragraph demonstrated that it considered that the applicant’s claims in his new statutory declaration were not credible.
However, if paragraph 7 of the Authority’s reasons for decision can be construed in that way, the Authority made the error identified in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474. In that case, Bromberg J said:
[39]To address the competing contentions, it is necessary to properly understand the basis for the Authority’s conclusion that the new information was not “credible personal information”. It was not in contest that the Authority was engaged in a process of assessing the veracity of the “new information”, not on its face, but by reference to “review material” which had been received by the Authority. By that process, the Authority came to an ultimate or final view that the “new information” was not to be believed and therefore not information that could be received for consideration in accordance with s 473DD(b)(ii). The nature of the assessment made by the Authority indicates that the Authority proceeded on the basis that a condition of engagement of s 473DD(b)(ii) is the Authority’s satisfaction that the “new information” is true. That reflects the sense in which the Authority construed the word “credible”.
[40]An alternative construction for the use of the word “credible” in the phrase “credible personal information”, is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of “credible” when used in that context in Gbojueh v Minister for Immigration & Citizenship [2012] FCA 288 at [79], where I said this:
The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at [17] and see at [20].
[41]In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42]The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration & Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
[43]The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration & Border Protection; Te Puia v Minister for Immigration & Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).
Nevertheless, the Minister argued that any such error was a minor procedural defect which did not affect the outcome. The Minister said in his written submissions:
18.Even if s 473DD(b)(ii) of the Act is found not to have been taken into consideration, it is a minor procedural defect and was not material to the outcome. Unlike the Delegate, the Authority did not make credibility findings on the basis of the withdrawal of claims at the SHEV interview or on the exchange between the Applicant and his legal representative, at [21] of the Authority’s decision. The Applicant did not therefore have to put his statutory declaration before the Authority to avoid adverse credibility findings, or to explain that part of the transcript so that it could be interpreted in his favour. In other words, the statutory declaration was not relevant. In any event, if the Authority had considered the statutory declaration, it would not have improved the Applicant’s credibility before the Authority and would not have strengthened his claims before it.
19.On the evidence before it, the Authority found none of the Applicant’s claims could be made out. The task of the Authority when assessing the criteria in s 36 of the Act is to consider whether, by reference to past events and present information, a “real chance of serious harm” exists in the present or in the reasonably foreseeable future. The claims which were in issue at [50]-[51] of the Applicant’s statutory declaration were events in the past, and the Authority did not rely on the withdrawal of those claims at the SHEV interview in a manner adverse to the Applicant’s credibility. The Authority referred to the Applicant’s own evidence (excluding the claims made in [50]-[51]) to find that he did not face a “real chance of serious harm on the basis of, or from any combination of: any real or imputed association with the LTTE; because of his brothers' or cousin's involvement with the LTTE; his presence in and departure from the displaced person's camp; his previous interactions with the authorities and paramilitaries at check points; the YouTube video; his attendance at a commemoration ceremony in Australia; [or] his visible scarring…” at [45]. Furthermore, the torture claims contained in [50]-[51] were claimed to have happened earlier in time than his other claims. At [22] alone, the Tribunal observed that:
He has not claimed, and there is no evidence before me that the police have ever returned to his aunt's house looking for him, asked questions about him or his links to V, or asked about any other links he may have had to the LTTE. He has not claimed that he was ever stopped, identified or detained during that period, despite remaining in the same district. He was later able to travel to Colombo and depart Sri Lanka using his passport, without any interest by the authorities. Having regard to all of this evidence, I am not satisfied that the authorities had any interest in him apart from identifying him.
20.Put otherwise, it would not have made a difference to the Authority’s reasoning for the Applicant to have explained the circumstances of his legal representative’s withdrawal of the claims detailed at [50]-[51] of his statement. The Authority’s finding was that the police’s lack of reaction or follow-up meant the Applicant was of very little concern to them, and any further violence was opportunistic rather than targeted. On that basis, there was not a “real chance of serious harm” in the present or reasonably foreseeable future. None of those findings were affected by the withdrawal of the claims detailed at [50]-[51] or by the circumstances of that withdrawal.
21.The Authority also referred to a number of country information sources and the Applicant’s own evidence to find that the Applicant did not face a “real chance of serious harm” merely because he was a Tamil, a Hindu, or would be a returned asylum seeker. Again, its findings would not have been disturbed merely because the withdrawal of the claims detailed at [50]-[51] could be adequately explained by the Applicant’s statutory declaration.
22.This is consistent with the “evaluation of the significance of the new information in the context of the referred applicant’s claims more generally”6 that s 473DD(b)(ii) requires. A structured reading of the Authority’s decision shows that the Applicant’s statutory declaration explaining the circumstances of his former legal representative’s withdrawal of the claims detailed at [50]-[51] was not necessary, both because that withdrawal did not result in credibility findings and because the inclusion of his claims in [50]-[51] would not have changed the course of the Authority’s findings in respect of evidence closer in time.
The Minister’s submissions demonstrate that, to accept the point the Minister is making, the court would have to delve deeply into the Authority’s reasoning, and speculate about what the Authority would have decided if X or Y had occurred. That is not the role of this court on judicial review. The Minister’s argument is tantamount to inviting the court to engage in merits review, which is, of course, impermissible. I do not consider that the applicant’s new statutory declaration was so clearly and so totally irrelevant to the Authority’s decision and decision-making process that the error in relation to s.473DD(b)(ii) of the Act can be regarded as immaterial.
Ground 2 is made out.
GROUND 3
The third ground of review in the application is:
The Authority fell into jurisdictional error by misconstruing and/or misapplying s 473DC of the Act in respect of new information in the form of a statutory declaration made by a person ([Mr B]).
PARTICULARS
A.The new information was provided under the cover of a submission made on 22 May 2017 (CB 196) and was contained in a statutory application made by [Mr B] (CB193).
B.The statutory declaration of [Mr B] included new information concerning the conduct of the Applicant’s former migration lawyer.
C. In applying the terms of s 473DC of the Act to the new information, the Authority was obliged to consider whether the new information may be relevant.
D.In purporting to apply s 473DC(1)(b) to the new information, the Authority did not consider that the information contained in the statutory declaration from [Mr B] was relevant (CB213, [9]).
E. In the premises, the Authority erred.
F.The Authority’s error described in particular E was material because there is a possibility that if it had received and considered the new information, the Authority might have reached a different conclusion in relation to the application.
G.The Authority’s errors were therefore jurisdictional.
Mr B’s statutory declaration was made by the applicant’s authorised representative at the time of the Authority’s review. The Authority referred to Mr B’s statutory declaration in paragraphs 5, 7 and 8 of its reasons for decision, which are set out above, and in paragraph 9, which is as follows:
9.The statutory declaration of [Mr B] refers to issues between [Mr B] and the applicant’s former lawyer, as well as issues arising in an unrelated matter. It does not contain any evidence or information relevant to the applicant or his substantive claims. I am not satisfied that it is relevant to this review.
Mr B’s statutory declaration was as follows:
I, [Mr B] of … in the State of Victoria, do solemnly and sincerely declare as follows:
1.I make this Statutory Declaration in relation to the practices of Ms. [A] ….
2.I am a citizen and a professional in Australia and not practicing in the field of Migration Law.
3.I live in Australia for 33 years, since age 5, I have lived in Colombo, Sri Lanka and I do not have much knowledge of Northern and Eastern province of the Country. I have only twice been to Sri Lanka in 1994 and 2010, very short trips.
4.I have been involved in many church and social activities to help those who are in need, such as homeless people, age care and those who have been affected by problems. I have bene involved in Christian Health Care group now provides medicines and services to many pacific countries like PNG.
5.Since 2012, I was helping many refugees find homes, provide their need and even teaching English, now finding jobs with the help of few assistants. We have had over 300 refugees seek our free services on such issues.
6.When refugees were called to apply for Shev 790 application, some of them could not find representatives. I have personally referred nearly 20 applicants to various lawyers.
7.[Ms A] was recommended to me by a close relative and I personally visited with an applicant to see her credentials. As I learned that she is not an agent but a lawyer, I felt comfortable. I visited her twice with two different applicants, but all others went straight to her.
8.She did spend first half an hour talking about her fees and signing necessary forms to obtain information from Dept of immigration. I felt comfortable to recommend few more including [the applicant] and [another person], apparently she has mentioned this applicant’s name to the same interviewer),
9.I am very disappointed to read that she has acted very unprofessionally bringing my name as the reason for discrepancies between the written verdict and the explanation given by the applicant. This is uncalled for and now I realise to make a case for [the other person].
10.I have never provided any advice nor stories to make their case different to what they said. I only translated in English exactly what they said. It was her duty to clarify of any in doubt.
11.Ms. [A], has a habit of receiving many clients and do not see them nor answers any calls of the clients. I constantly received complaints from her clients whom I referred. She always says that “she is in a meeting” but never calls back.
12.I eve emailed and SMS her and she would say, I will contact them. In September 2016, few clients showed disappointment with her. Some of them have fully paid the money but no further applications were made for 7-10 months.
13.As a professional I called her and said this is not satisfactory, you should return the calls of the clients you have received, I do not want them contacting me. Please write or phone and explain the reason for the delay. She was not happy with my call as one of her client was at my office.
14.She promised to contact them directly, but again she did not for further two months. Meanwhile one of them received warning as to not made the application from the immigration office.
15.I have never provided any advice nor made stories or fabricated any stories, as I do not know the areas from where these applicants come. I have only visited the cities when I was very young.
[The applicant].
16.One of the four people she wanted me to translate on her behalf, as I did not have time, I said I can do this only in the late hours. Then she wanted me to listen and write in English. I told her to use an interpreter services, she said these applicants can’t afford.
17.I therefore met these ones, and wrote the exact stories they were saying in English. There was no advice or recommendations made by me as I did not know the migration law and particularly SHEV 790 requirements.
18.I did not receive any cash or gift or any favour from these people. I did tell [Ms A] to read again with an interpreter and ensure that the statements are True and accurate. She said that’s what she does.
19.Re the question on how he left Manik Farm, he only gave a brief summary and I wrote exactly as he said. There was no fabrication of stories here. I have asked now to explain exactly and please refer the applicants statutory declaration to IAA. I am not responsible for discrepancies.
20.[The applicant], does not read English nor clearly understand English, He said that he never advised her to remove any paragraphs. Therefore he was confused.
21.I feel this applicant has been unfairly handles by her representative after having received the full fee to act on his behalf. This is a breach on not representing the client’s interest.
[The different applicant]
22.I happened to visit my Dandenong property to meet an electrician. There I met [the different applicant], who said that his interview is on next day. He wanted me to read and explain what was written.
23.I was leaving to Singapore on a business trip the next day, I told him to contact his lawyer. He said he had called her many times and not responding. I too called her and she did not respond.
24.He wanted me to read and tell him what was written, I said whatever the story you told would have been written. He pleaded me to read but I was very tired,
25.I quickly glanced and explained what was written. He said his brother who was in the jail was released.
26.I told him, that he should bring this to the notice of the lawyer to make amendment accordingly. I told him to keep calling her and explain. I even warned his if you do not correct and if they find out, they will not believe all your stories.
27.Since the interview, [the different applicant] did not tell me what happened and he was avoiding me. I met him once and asked why are you avoiding me. He was telling me that he was busy etc.
28.I met [Ms A] at the immigration office in relation to another client of hers was rejected and he had an interview with the immigration office. She then said that I have not disclosed that [the different applicant’s] brother was out of jail and she had implicated me with Immigration office.
29.I contacted [the different applicant] and asked what was going on why you have falsely accused me as to your brother's release. There were two others were listening. He said "uncle, for all your help to me, will I let you down. It was [Ms A] who mentioned that I have misled him".
30.She then got met sign some papers. I did not advise him nor asked him to hide any information to the Immigration office. I have not met [the different applicant] since that day. I feel [Ms A] has some personal problem with me and she is trying to frame me for no reason. Please listen to these audios and you would realise it was [Ms A] who was confusing the interview and not the applicants.
31.I hope to take this matter to both Law Institute and MARA. I have sent her a warning and to avoid such behaviours in the future.
The Minister argued firstly that, having found that the material in Mr B’s statutory declaration was not relevant, the Authority was not required to consider whether it satisfied s.473DD of the Act. However, the Authority applied the wrong test in deciding that Mr B’s statutory declaration was not relevant. In AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053 at [38], Farrell J explained the enquiry under s.473DC(1)(b) of the Act as follows:
The premise of this ground is that the assessment of whether the new material “may be relevant” under s 473DC(1)(b) is what informs the Authority’s assessment of whether the Authority’s consideration of the “new information” is barred by s 473DD. That premise is wrong, they are separate evaluative judgments:
(1)The assessment required under s 473DC(1)(b) is not a demanding one: the Authority must decide at this stage whether the new material “may” have relevance to the fast track review. The question of relevance under s 473DC(1)(b) does not, as suggested by counsel for the appellant, require a detailed assessment of the material before the Authority to determine whether the information is sufficient to allow identification of whether exceptional circumstances exist under s 473DD(a) or whether s 473DD(b)(ii) is satisfied. I accept the Minister’s submission that, at this level, s 473DC(1) operates in favour of applicants for a visa to catch any material that was not before the delegate which might have relevance to the review of their claims by the Authority. The standard suggested by the appellant would be too exacting to perform that function.
(2)The assessment under s 473DD is a further filter. At this stage, the Authority must only decide if it should receive the “new information” (that is, information which satisfies s 437DC) on the basis that there are extraordinary circumstances justifying its consideration and (if s 473DD(b)(ii) is relevant) it is open to be or capable of being accepted as truthful or accurate, or genuine. It is only at the final, deliberative stage, of its review that the Authority will be required to determine whether or not the “new information” is true: see CSR16 at [41]–[42]. It is this assessment under s 473DD penultimate to the deliberative stage in relation to whether or not the Authority will affirm the delegate’s decision to which DYS16 at [17], CSR16 at [37] and [41], and BVZ16 at [9] relate.
That is, the Authority had to consider whether Mr B’s statutory declaration might have been relevant, not whether it was relevant. If the statutory declaration might have been relevant, the Authority then had to follow the steps required by s.473DD of the Act.
It is not for this court to say, but it appears to have been arguable that Mr B’s statutory declaration might have been relevant, because it went to the question of whether the applicant had fabricated part of his claim.
To similar effect was the High Court’s decision in Minister for Immigration and Border Protectionv CED16 (2020) 380 ALR 216; [2020] HCA 24 at [23] where it was said that:
… the word “relevant” in s 473DC(1)(b) can only sensibly be read as having the same meaning that the word “relevant” has in s 473CB(1)(c). Documentation or information of an evidentiary nature that the Authority considers may be “relevant” is documentation or information of an evidentiary nature that the Authority considers “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision”. (footnote omitted)
That is, the question is whether the material is capable of affecting the decision, not whether it necessarily would affect the decision.
The Minister argued that Mr B’s statutory declaration was irrelevant, because the Authority accepted that paragraphs 50 and 51 of the applicant’s statutory declaration had been withdrawn, and the Authority drew no adverse inferences from the withdrawal of those paragraphs. However, the applicant wanted those paragraphs to remain as part of his case. By excluding them, and Mr B’s statutory declaration that concerned their withdrawal, the Authority did not consider the case that the applicant wanted to put.
The Minister argued that the Authority decided the case on the basis of subsequent events, namely, that the circumstances in Sri Lanka had changed, and the police would no longer be interested in him, regardless of whether they had tortured him previously. That submission rather overstates the Authority’s findings. The Authority certainly found at paragraph 39 of its reasons for decision that, for Tamil males in general, the situation in Sri Lanka had improved. However, the Authority also considered whether the applicant’s particular profile made him more vulnerable than the average Tamil male. That consideration could have been informed by paragraphs 50 and 51 of the applicant’s statutory declaration and Mr B’s statutory declaration.
In any event, for the reasons discussed above, this ground is made out.
CONCLUSION
As two of the applicant’s grounds have been made out, the application will be allowed with costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.
Associate:
Dated: 2 June 2022
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