Ekr17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1011
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1011
File number: SYG 3050 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 9 November 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority unreasonably failed to exercise its discretion in s 473DC of Migration Act 1958 (Cth) to invite applicant to attend an interview – whether Authority failed to accept relevant evidence – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5J, 36, 473CA, 473DB, 473DC, 473DD, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 1 November 2023 Place: Perth (by Microsoft Teams) Applicant: In person Counsel for the First Respondent: Mr C Hibbard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 3050 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKR17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister decided not to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority) on 8 September 2017. The applicant seeks judicial review of the Authority’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant raises a sole ground of application alleging that the Authority acted unreasonably in failing to exercise or consider the exercise of its discretion under s 473DC(3)(b) of the Migration Act to invite the applicant to comment on adverse findings at an interview. The applicant also raised additional matters in his oral submissions to the Court and in an affidavit filed on 6 October 2023.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error and his application to this Court is dismissed.
VISA APPLICATION AND DECISIONS
The applicant arrived in Australia by sea in November 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant applied for a protection visa on 25 July 2016. His claims for protection advanced in his statement of claims provided with his visa application included that:
(a)he was a fisherman and was targeted by Sinhalese men for his fishing activities and because he is a Sunni Muslim and from an ethnic minority known as the Tamil speaking Muslims;
(b)he was suspected of being a member of the Liberation Tigers of Tamil Eelam (LTTE); and
(c)he fears torture by Sinhalese people and by the Sri Lankan Army (SLA) if he returns to Sri Lanka because of his religion, his illegal departure from Sri Lanka and his participation in a protest in Australia.
On 5 December 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection (protection visa interview). The applicant’s representative provided a post-interview written submission on 23 December 2016.
On 13 March 2017 the delegate refused to grant the applicant a protection visa and the matter was then referred to the Authority for review in accordance with s 473CA of the Migration Act.
The Authority received a written submission on behalf of the applicant on 6 April 2017, which partly referred to claims before the delegate and partly raised new information.
On 8 September 2017 the Authority affirmed the delegate’s decision.
SUMMARY OF AUTHORITY DECISION
The Authority accepted that the applicant is Muslim and that the applicant encountered problems from the Sinhalese as a result of being a Muslim. The Authority also accepted that the applicant was a fisherman and fished as a means of employment from 1991 to 1998 and 2004 to 2007.
The Authority did not accept that the applicant was attacked by a group of Sinhalese men, and a particular man referred to as S, at a refugee camp in 2005 or at a harbour and did not accept that the applicant was continuously targeted by these men since 2005 or that these men threatened his daughter. The Authority also did not accept that any Sinhalese men approached and threatened to kill the applicant in 2012, or that the applicant was extorted to pay a ransom.
The Authority accepted that the applicant was harassed and intimidated by the Sri Lankan Navy (SLN) in 2006 and 2007 because of his ethnicity and religion. However, the Authority was not satisfied that the applicant was involved in any LTTE activities and did not accept that the reason the applicant was harassed by the SLN was because he was viewed as having connections to the LTTE or having pro-LTTE views. The Authority was not satisfied that the applicant would have been imputed to have supported the LTTE on the basis of being a fisherman.
The Authority considered that approximately 10 years had passed since the applicant faced incidents in 2006 and 2007 on account of his religion and, based on country information, found that there was now a low risk of political or religious violence for Muslims in Sri Lanka.
The Authority considered whether the applicant may be subject to harm on account of being perceived as being Tamil and was not satisfied that he would face a risk of serious harm as a result of being perceived as a Tamil or as a Tamil speaking fisherman.
The Authority accepted that the applicant participated in a protest in Australia in 2014, but was not satisfied that the applicant participated in the protest other than for the purpose of strengthening his protection claims and therefore disregarded the applicant’s conduct pursuant to s 5J(6) of the Migration Act.
The Authority was not satisfied that the applicant would face a real chance of serious harm if he were to return to Sri Lanka on the basis of his religious beliefs, his ethnicity, being a fisherman, his imputed association with the LTTE, his support for the United National Party or threats of ransom now or in the reasonably foreseeable future.
The Authority accepted that the applicant departed Sri Lanka illegally. The Authority considered country information relating to the treatment the applicant may expect to face as a result of breaching the Immigrants and Emigrants Act (Sri Lanka) and found that this treatment would not constitute serious harm and, in any event, was the application of a law which applied to all Sri Lankans and which is applied in a non-discriminatory manner.
Based on these findings, the Authority found that the applicant did not satisfy the refugee criterion in s 36(2)(a) of the Migration Act.
The Authority largely relied on similar factual findings in concluding that the applicant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act. It also found that the risk of the applicant coming to the attention of the Sri Lankan authorities as a result of his participation in a 2014 protest in Australia was remote and was not satisfied he would face a real risk of significant harm as a result of this. The Authority found that the treatment the applicant could expect to face for breaching the Immigrants and Emigrants Act did not amount to significant harm.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 3 October 2017, which is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The application contains the following ground of application:
The IAA’s failure to invite the applicant in writing or at an interview to put findings to the applicant for comment, or to consider doing so, as was within its power pursuant to s473DC(3)(b) of the Act, was unreasonable in the legal sense.
Particulars
a.On 6 April 2017 the IAA received a submission from a registered migration agent on behalf of the applicant comprising of the following information:
i.At paragraph 5 the IAA considered the documents pertaining to the applicant’s wife and children moving out from [place reacted] to [place redacted] and school certificate regarding his daughter attending school in [place redacted] in 2015. The IAA was not satisfied as to the matters in s473DD(b) not satisfied that circumstances existed to justify considering this new information. This finding was not put to the applicant for comment;
ii.At paragraph 6 the IAA considered a new claim that the applicant was part of the crew. The IAA was not satisfied that the applicant could not have provided this information to the delegate before a decision was made or that there are exceptional circumstances exist to justify considering this new information;
iii.At paragraph 7 the IAA considered a new claims that the applicant feared harm from Nil Balakaya, a Sinhalese nationalist group. The IAA did not accept that the applicant could not have provided this information to the delegate prior to a decision being made and also the IAA was not satisfied that exceptional circumstances exist to justify this new information;
iv.At paragraph 8 the IAA considered 2 articles and photos about Nil Balakaya attacking people. The IAA was not satisfied that the articles could not have been provided to the delegate before a decision was made or that they are credible personal information that may have affected consideration of his claims and was not satisfied that there were exceptional circumstances for considering the articles;
v.At paragraph 9 the IAA considered a translation of a transcription of a video from newsfirst.lk. The IAA failed to see the relevance of the article to the applicant’s claims and did not consider the information;
vi.At paragraph 10 the IAA considered a news report from Sinhala.adaderana.lk. The IAA was not satisfied that the information was credible personal information that may have affected consideration of his claims or that it could not have been provided to the delegate prior to a decision being made and was not satisfied that there were exceptional circumstances for considering the article.
b.The IAA found at [7] and [9] that it was not satisfied that he May 2016 International Crisis Group report and that the applicant was from an area formerly controlled by the LTTE were credible personal information;
c.The IAA found at [8] that it was not satisfied that the applicant was unaware of the importance of providing all relevant information prior to the delegate making the decision with regards to the new claims that he was arrested and tortured and as a result of the incident his body is scarred;
d.The IAA found at [10] that it was not satisfied that there are exceptional circumstances to justify considering that attempts were made to contact the applicant on Facebook; and
e.The discretion in s473DC(3) of the Act exists to be exercised in an appropriate case to make the correct of preferable decision. The failure to exercise or consider exercising the relevant power to allow the applicant to comment on the above findings is unreasonable in a legal sense.
The applicant raised additional matters in an affidavit filed on 6 October 2023 and in his oral submissions to the Court.
The applicant’s affidavit addresses the merits of the applicant’s claims for protection, which is not relevant in a judicial review proceeding, and raises some new information based on events after the Authority’s decision. I indicated to the parties at the hearing that I would treat the affidavit as a submission.
In his oral submissions, the applicant alleged the Authority made the following errors:
(a)the Authority did not accept that he was Tamil;
(b)the Authority rejected evidence that the applicant’s wife and children were displaced to another village;
(c)the Authority did not accept his evidence about actions of a group called Nil Balakaya;
(d)the applicant’s friend was shot dead and he provided the Authority with a death certificate, which the Authority did not accept; and
(e)the Authority did not accept receipts the applicant provided to show that his children changed schools.
COURT’S ROLE IN JUDICIAL REVIEW PROCEEDINGS
The role of the Court in this judicial review proceeding is to ‘rule upon the lawfulness or legality of the [Authority’s] decision’ by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if the applicant establishes that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
CONSIDERATION OF MATTERS RAISED BY THE APPLICANT
Applicant’s ground of application
Relevant legislation and principles
In conducting a review under Part 7AA of the Migration Act, the Authority will, subject to the provisions in Part 7AA, consider the review material provided by the Secretary, without requesting or accepting new information and without interviewing the applicant: s 473DB(1) of the Migration Act.
The Authority does, however, have the power to invite an applicant to provide new information, including by attending an interview, if it chooses to do so. That power is conferred by s 473DC, which provides:
(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.
The Authority is required to act reasonably in the exercise of its discretion in s 473DC: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3]. Demonstrating legal unreasonableness in the context of Part 7AA carries a ‘demanding standard’: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [110].
Authority’s approach in the present matter
The Authority in the present matter did not invite the applicant to attend an interview. The applicant did not make any requests to the Authority for it to invite him to attend an interview and the Authority did not provide any reasons (and was not required to provide any reasons) for not inviting the applicant to attend an interview.
Applicant’s reasons for asserting that it was unreasonable for the Authority not to invite him to attend an interview
The reasons the applicant now says that it was unreasonable for the Authority not to invite him, or consider inviting him, to attend an interview are set out in the five particulars to the ground in his application. The applicant did not make any submission to the Court about his ground or the particulars.
Particular (a)
Particular (a) refers to the applicant’s submission to the Authority and identifies six paragraphs of the Authority decision in which the Authority did not consider that new information provided with the submission met the requirements of s 473DD of the Migration Act.
The Minister submitted that particular (a) simply describes the way the Authority addressed the information contained in the applicant’s submission and does not identify any error. I accept that this is true when particular (a) is read in isolation. However, I have read the ground more broadly and, when particular (a) is read with particular (e), it appears that the applicant is asserting that it was legally unreasonable for the Authority to make findings that the requirements of s 473DD of the Migration Act were not satisfied without inviting the applicant to comment on those proposed findings.
The Authority at [5]-[10] of its reasons identified that the applicant’s submission contained new information. It identified six different types of new information and, in relation to each, expressed its reasons for finding that the requirements of s 473DD were not met.
It was appropriate for the Authority to consider whether the requirements of s 473DD were met, as it was only permitted to consider new information if those requirements were met. Section 473DD provides:
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 has not asserted that the Authority misconstrued or misapplied the requirements of s 473DD.
I do not accept that it was unreasonable for the Authority not to invite the applicant to attend an interview to comment on the Authority’s proposed findings in relation to s 473DD.
Before the applicant provided his submission, the Authority gave to the applicant a copy of its Practice Direction. Paragraph 23 of the Practice Direction clearly put the applicant on notice that it could only consider new information in limited circumstances as set out in s 473DD of the Migration Act and that the Authority must be satisfied that there are exceptional circumstances to justify considering any new information. Paragraph 24 of the Practice Direction clearly put the applicant on notice that if he wanted to give the Authority new information, he was also required to provide an explanation in writing as to why the information could not have been given to the Department before the decision was made or why the information is credible personal information which was not previously known and may have affected the consideration of his claims had it been known. The applicant, despite being provided with a copy of the Practice Direction and being represented by a lawyer when his matter was before the Authority, did not provide any explanation in relation to the matters that the Authority was required to consider under s 473DD(b).
In the circumstances of this matter, the Authority was not required to invite the applicant to comment on its proposed findings for the purposes of s 473DD of the Migration Act before making those findings. The applicant had been provided an opportunity in writing to address the matters in s 473DD and did not avail himself of that opportunity. It was not unreasonable for the Authority not to invite, or consider inviting, the applicant to attend an interview to discuss those matters. Particular (a) does not disclose jurisdictional error in the Authority decision.
Particulars (b), (c) and (d)
I accept the Minister’s submission that particulars (b), (c) and (d) do not appear to relate to findings made by the Authority in the present matter. They do not establish jurisdictional error in the Authority decision.
Particular (e)
Particular (e) refers to the ‘above findings’, being the findings referred to in particulars (a) to (d). I have addressed particular (e) in conjunction with particular (a) already and, in circumstances where particulars (b), (c) and (d) do not refer to findings made by the Authority in the present matter, it is clear that particular (e) cannot establish jurisdictional error in relation to those findings.
The Minister in his submissions has otherwise addressed why it was not unreasonable for the Authority not to invite the applicant to attend an interview. The Minister, while acknowledging that legal unreasonableness must be assessed based on the particular facts of each case, submitted that the circumstances of the present matter did not raise the sort of issues that have caused courts to conclude that the Authority’s failure to consider exercising the power in s 473DC is legally unreasonable. For example:
(a)this is not a case where a new issue arose, which the Authority considered dispositive of its review, and of which the applicant was not on notice either from the delegate’s decision or from the way that the applicant’s case was advanced: see, for example, Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32; and
(b)this is not a case where the Authority took a different position to the delegate in relation to the applicant’s credibility: see, for example, ABT17, DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43.
I accept the Minister’s submission in this regard.
The applicant’s ground, as set out in his application, does not establish jurisdictional error in the Authority decision.
Matters raised in applicant’s oral submissions to the Court
As indicated above, the applicant raised five main matters in his oral submissions to the Court. I address these in turn.
The Authority did not accept that the applicant was Tamil
In response to the applicant’s submission that the Authority erred by not accepting that he was Tamil, Counsel for the Minister referred the Court to the applicant’s submission to the Authority, where the applicant said:
I agree that I am not a Tamil. However I speak Tamil. I received my education in Tamil. I am a Sri Lankan Malay. That is what my birth certificate states.
In reply submissions to the Court, the applicant submitted that he studied Tamil and speaks Tamil, not Malay, and that is why he said he was a Tamil. This is consistent with what the applicant said to the Authority.
The Authority recognised this in its decision. The Authority said at [31]:
The applicant’s representative in post [Safe Haven Enterprise Visa (SHEV)] interview submissions raised the claim that the Sinhalese people would persecute the applicant because he is Tamil. At his SHEV interview the applicant said that his ethnicity was Islam. When questioned whether he was Tamil he said that his language is Tamil but his religion is Islam and he belonged to the Muslim community. In his response to issues in the delegate’s decision he states that he agrees that he is not a Tamil however he speaks Tamil. As discussed above, [Department of Foreign Affairs and Trade] reports that Muslims are alternatively referred to as Moors and are viewed as an ethnicity and not only a religious group in Sri Lanka. Nevertheless, I will consider whether the applicant may be subject to harm on account of being perceived as being Tamil.
This approach does not disclose any jurisdictional error. The Authority’s finding in relation to the applicant’s ethnicity is consistent with the applicant’s own evidence. Further, despite the applicant not being Tamil, the Authority recognised that he might be perceived to be Tamil and proceeded to assess his claims on that basis. This was an appropriate approach for the Authority to take.
The Authority rejected evidence that the applicant’s wife and children were displaced to another village and the Authority did not accept receipts the applicant provided to show that his children changed schools
It is convenient to address the second and fifth matters that the applicant raised in his oral submissions together, as they were both addressed at [5] of the Authority reasons. In that paragraph, the Authority said:
The submission also attaches documents pertaining to his wife and children moving out from [place redacted] to [place redacted] and school certificate regarding his daughter attending school in [place redacted] in 2015. These documents were not before the delegate and are “new information” for the purposes of s.473DD. The applicant provided information regarding his family having to move from Colombo at his SHEV interview. The applicant has not provided a reason why this information is credible personal information or why it could not have been provided to the delegate before a decision was made. I am not satisfied as to the matters in s.473DD(b) nor am I satisfied that circumstances exist to justify considering this new information.
It is not accurate to say that the Authority ‘rejected’ the applicant’s evidence relating to the relocation of his wife and children. Rather, the Authority recognised that it was new information which needed to satisfy the requirements of s 473DD of the Migration Act before the Authority could have regard to the information in considering whether the applicant met the criteria for a protection visa. The Authority was not satisfied that the requirements of s 473DD were met. The applicant has not submitted that the Authority’s approach to s 473DD is affected by jurisdictional error.
To the extent that there was information before the Authority about the relocation of his wife and children which was not new information, the Authority was prepared to accept that the applicant’s family had moved from their village but did not accept that it was in part due to the targeting of them or for the reason of fearing harm from Sinhalese men. This finding was made taking into account the credibility concerns that the Authority had about the applicant’s evidence in relation to the harm he claimed to fear from Sinhalese men. The approach of the Authority was open to it on the evidence before it.
The Authority did not accept the applicant’s evidence about actions of a group called Nil Balakaya
In claiming that the Authority did not consider the applicant’s evidence about Nil Balakaya, the applicant referred me to page 318 of the court book. This and the surrounding pages contain articles regarding events in Sri Lanka, including in relation to Nil Balakaya.
The Authority recognised that this was new information and addressed it at [8] of its reasons, where it said:
The applicant referred to information about Nil Balakaya attacking people in the South of Sri Lanka referencing two articles, and He attached the lankatruth article which is dated 30 December 2014 and refers to a group of thugs from Namal Rajapaksa’s (Mahinda Rajapaksa’s son) Nil Balakaya that attacked and insulted young artists. Also attached was an article titled “End of the road for Nil Balakaya! Susil dismantles it: Nil Balakaya, its origin and Namal’s robbery revealed” dated 17 February 2015. The applicant also attached several newspaper articles about violent activities carried out by Nil Balakaya and attaches some pictures with the news items. This information was not before the delegate. The articles or newspaper articles make no mention of the applicant, of any incidents that may be associated with the applicant or advance any particular aspect of the applicant’s claims. The applicant states that there is no direct reference to the group Nil Balakaya in the articles however, it is widely suspected that Nil Balakaya carried out these types of activities. He also states that there has been a shooting incident in this area in Tissamaharama carried out by Nil Balakaya however he notes that again Nil Bakakaya is not directly pointed out for the incident because of possible repercussions. The photos that the applicant has attached are indistinguishable and the applicant’s claims that the group involved in these articles being Nil Balakaya are speculative. Nevertheless, even if the group referred to was Nil Balakaya, the articles are general in nature. They make no mention of the applicant or appear to have any reference to the applicant’s protection claims. The applicant has not satisfied me that the articles could not have been provided to the delegate before a decision was made or that they are credible personal information that may have affected consideration of his claims. I am further not satisfied that there are exceptional circumstances for considering the articles.
As with the information about the relocation of the applicant’s family, it is not accurate to say that the Authority rejected the evidence provided by the applicant about Nil Balakaya. Rather, the Authority properly recognised that it was new information and assessed the new information against the requirements of s 473DD, finding that those requirements were not met. Again, the applicant has not advanced any submission that the Authority’s approach to s 473DD is affected by jurisdictional error. The applicant’s submissions about the Authority’s approach to the information he provided in relation to Nil Balakaya do not establish jurisdictional error.
The Authority did not accept the death certificate in relation to a friend of the applicant who was shot dead
In making his submissions about the document the applicant referred to as a death certificate, the applicant referred to page 321 of the court book. I have reviewed this page and accept the submission advanced by Counsel for the Minister that the document is not a death certificate but rather is a transcription of a news video about a death by shooting.
The Authority considered this article at [9] of its reasons and found that it was not relevant to the applicant’s claims. The Authority said:
The applicant also attaches a translation of a transcription of a video from newsfirst.lk. The transcript is undated and regards a shooting incident in Hambantota Hospital. The transcript is general country information regarding a shooting which occurred at the Hambanthota hospital. It makes no mention of the applicant or of any incidents that may be associated with the applicant. I fail to see the relevance of this article to the applicant’s claims and I have not considered this information.
The applicant has not identified any error in the Authority’s finding that the transcription of the video was not relevant to his claims. The applicant’s submissions regarding this document do not establish that the Authority decision is affected by jurisdictional error.
Matters raised in applicant’s affidavit
The applicant in his affidavit repeats a number of his claims for protection and provides information that is only relevant to whether he meets the criteria for a protection visa. I accept the submission advanced by Counsel for the Minister that, to the extent the applicant is raising these matters again, he is seeking merits review of the Authority decision, and the Court does not have the power to engage in merits review.
The applicant in his affidavit also provided updated information about the current circumstances in Sri Lanka and about the unfortunate death of his father earlier this year. The applicant annexed to his affidavit his father’s death certificate and a number of news articles that all post-date the Authority decision.
This information that post-dates the Authority decision cannot establish jurisdictional error in the Authority decision. Whether or not the Authority decision is affected by jurisdictional error is to be assessed by reference to the circumstances that existed at the time of the Authority decision, and not by reference to circumstances that did not exist at that time: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77].
The matters raised in the applicant’s affidavit do not establish jurisdictional error in the Authority decision.
CONCLUSION
Given that I have found that the applicant has not established that the Authority decision is affected by jurisdictional error, the application to this Court must be dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 9 November 2023
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