ELQ18 v Minister for Home Affairs
[2020] FCCA 3080
•13 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELQ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 3080 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority failed to consider relevant considerations – whether the Authority acted unreasonably – consideration of s.473DC and Part 7AA of the Migration Act 1958 – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DA, 473DB, 473DC, Part 7, Part 7AA |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7 |
| First Applicant: | ELQ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 2590 of 2018 |
| Judgment of: | Judge Blake |
| Hearing date: | 26 August 2020 |
| Date of last submission: | 26 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 13 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr Barrington |
| Solicitors for the respondents: | Mills Oakley Lawyers |
ORDERS
The Application filed on 29 August 2018 and amended on 29 July 2020 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2590 of 2018
| ELQ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority) on 2 August 2018. The application contains, relevantly, three grounds of review with 12 specified particulars under the grounds.
In its decision, the Authority affirmed the decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The Applicant is a Sri Lankan national. On 21 November 2012, the Applicant arrived in Australia as an unauthorised maritime arrival. The Applicant participated in an irregular maritime arrival entry interview on 20 January 2013.
On 30 September 2016, the Applicant applied for the visa. Along with the application for the visa, the Applicant’s representative provided a statement of the Applicant dated 2 August 2016 and other supporting documents.
On 17 October 2017, the Applicant participated in an interview (‘SHEV interview’) with a delegate of the Minister (‘delegate’). On 1 November 2017, the Applicant’s representative provided to the delegate a post-interview submission. That submission also included supporting documents.
On 23 January 2018, the delegate refused to grant the Applicant the visa. On 30 January 2018, the delegate’s decision was referred to the Authority for review. On 20 February 2018, the Applicant’s representative provided submissions to the Authority.
On 2 August 2018, the Authority affirmed the delegate’s decision not to grant the Applicant the visa. The Authority rejected most of the Applicant’s claims and had ‘serious doubts as to the genuineness’ of other claims.
The Applicant filed his application for review and affidavit in support with this Court on 29 August 2018.
On 29 July 2020, the Applicant filed an Amended Application (‘Application’). On 30 July 2020, the Applicant filed an outline of submissions. On 13 August 2020, the Minister filed an outline of submissions.
The Application for review
There are four Grounds of Review in the Application. Ground two was not pressed by the Applicant. I deal with each ground below.
Ground one
Ground one of the Grounds of Review in the Application is as follows:
‘The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.
Particulars
(a) The Authority did not consider whether to seek new information under section 473DC of the Migration Act 1958 ("the Act") from the Applicant or other witnesses, at interview or otherwise.
(b) The Authority did not consider the possible effect on the Applicant's ability to recall events and to give evidence the mental and psychological difficulties he had, corroborated by reports from experienced professional counsellors. (CB 107-111; 226, [25])’
The Applicant advances two primary submissions under this ground of review. The first is that the Authority failed to consider whether to obtain new information under section 473DC of the Migration Act 1958 (‘Act’). The second is that the Authority did not consider the effect the Applicant’s mental and psychological difficulties had on his ability to recall events, in circumstances where the Authority had reports from the Applicant’s professional counsellors.
Each of the submissions advanced above by the Applicant under this ground is advanced on the basis that the Authority failed to consider ‘relevant considerations’. In respect of particular (a), the Applicant submitted, inter alia, that the Authority was required to act reasonably to consider whether to get new information. In respect of particular (b), the Applicant contended that the Authority was obliged to consider the possible effect of the Applicant’s mental health on his recall of events. The Applicant in this context relied on the statement of Driver J in BDI17 v Minister for Immigration & Anor [2018] FCCA 2162 (‘BDI17’) at [69] citing Minister for Immigration v Peko-Wallsend [1986] HCA 40.
Strictly speaking, the identification of relevant considerations is to be drawn from the statute empowering the decision-maker to act, rather than from a consideration of the particular facts of the case: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-8 (‘Yusuf’); Abebe v Commonwealth (1999) 197 CLR 510 at [195] (‘Abebe’). I understood, however, the Applicant’s contention under this ground to encompass a submission that there was also a failure by the Authority to consider a substantial or clearly articulated claim.
In considering this ground of review, is important to consider briefly the statutory scheme.
This is a decision of the Authority and therefore Part 7AA of the Act is engaged. Section 473DA of the Act provides that the contents of Division 3 of Part 7AA is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Section 473DB(1) requires the Authority to conduct its review by considering the review material provided under section 473CB without accepting or requesting new information and without interviewing an applicant. Section 473DC of the Act then permits the Authority to obtain new information, but only in the circumstances contemplated by subsection (1). Subsection (2) of section 473DC makes clear that the Authority does not have a duty to get, request, or accept any new information whether requested to do so by the Applicant or otherwise.
The provisions I have recited above are of some importance. The principal obligation on the Authority is to conduct its review by considering the review material provided to it under section 473CB without accepting or requesting new information, and without interviewing an applicant. The provisions above do not mean, however, that a failure to consider the exercise of a discretionary power may in an appropriate case be legally unreasonable. Indeed, it is uncontroversial that the powers of the Authority are to be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (Gaegeler, Keane and Nettle JJ at [21]).
Insofar as the particulars to this ground of review assert a failure to consider relevant considerations in the sense described in Yusuf or Abebe, they must be dismissed. I have outlined the statutory scheme above. Given the operation of that scheme, in my view, it cannot be said that it is mandatory for the Authority to consider obtaining new information, or interviewing an Applicant, in every case. I was not taken to any authority which supports such a proposition.
While it seems strictly unnecessary to deal with this aspect of the matter any further given what I have set out above, I note that the Applicant sought to emphasise that the failure of the Authority to consider whether to obtain new information was also manifest by virtue of the fact that the decision record does not indicate that the Authority turned its mind to the matter. That submission, however, cannot be sustained. There is no obligation on the Authority to provide reasons as to its consideration of whether to obtain new information under section 473DC of the Act: see section 473EA; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [40]; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [119].
I turn then to consider the alleged failure by the Authority to consider relevant considerations in the context of the present matter. The failure by the Authority to interview the Applicant or take other steps to get information from him is advanced by the Applicant under particular (a) of this ground as being the Authority ‘ought reasonably to have considered the question of getting new information’[1]. The issue of the reasonableness of the Authority’s action is also challenged by the Applicant under particular (b) to Ground 3 of the Grounds of Review. I propose to deal with those submissions together later in these reasons when addressing particular (b) to Ground 3.
[1] Paragraph 32 of the Applicant’s submissions filed on 30 July 2020.
Turning then to deal with particular (b) to this ground of review. The Applicant’s contention under this ground may be summarised as follows. The Authority had reports before it from the Applicant’s mental health counsellors. Those reports from Foundation House (contained at Court Book 86 – 88 and 107 – 111) disclosed, among other things, that the Applicant suffered from a range of mental and psychological difficulties, including Post Traumatic Stress Disorder. The report of 8 June 2017 (Court Book 107 – 111) also provided that the Applicant ‘was experiencing frequent psychological distress when remembering his traumatic history. He would attempt to avoid stimuli associated with the trauma’ (Court Book 109 – 110). The report also noted that the Applicant ‘prefers not to discuss the incidents of torture and becomes visibly distressed during such discussions’ (Court Book 110). Given those reports, and given that the Authority focused on inconsistencies in the Applicant’s evidence, it is submitted that the Authority ought to have considered the possible effect the Applicant’s mental state would have on his ability to recall events. It is submitted that the Authority has, however, failed to consider the impact of the Applicant’s mental state in respect of his ability to give evidence.
In my view, there are two principal difficulties which confront the Applicant in respect of particular (b) to Ground 1. The claim the Applicant is now advancing is a claim to the effect that psychological damage sustained by him affected his ability to recall events and thereby affected the assessment undertaken of his credibility. That is not a claim that was advanced by the Applicant before the Authority. Nor is it a claim that, in my view when one has regard to the reports from Foundation House which I have extracted above, emerges clearly from the material.
Secondly and more importantly, however, the Authority expressly considered the impact of the reports from Foundation House. At paragraphs [24] and [25] of its reasons, the Authority stated as follows:
‘[24] Although the applicant, as a Tamil from a LTTE controlled area, could have been subject to some harassment in the past especially during and immediately after the conflict, and his claimed mistreatment in the hands of the authorities may echo the experiences of some witnesses as reported by human right groups, I have no confidence in accepting any of the claimed incidents occurred as claimed in the applicant’s case. I accept the applicant may have been questioned in Colombo as a Tamil from Vanni during the conflict period but I do not accept that he was detained and beaten and only released after a bribe was paid because he failed to register correctly. I do not accept a bribe was paid for his departure from the airport. I do not accept he was detained at the airport on arrival in 2010 or he was abducted in August 2012. I accept the applicant may have been subject to routine questioning at the airport on arrival. I consider the incident of 2012 is a fabrication to justify that applicant’s departure for Australia. I do not accept that he was accused of being sent overseas by the LTTE. I do not accept that applicant was sought out by the authorities. I do not accept that his sister went to Canada for the reasons claimed.
[25] In reaching the above findings, I have also had regard to the reports from Foundation House indicating that applicant has been receiving counselling sessions. I accept that the applicant has been found to be suffering symptoms of post-traumatic stress disorder (PTSD) and may have problems with his liver. While the reports refer to some of the applicant’s claimed personal information and past experiences, given they were based on the applicant’s self-reporting and the statement he made for the protection visa application, I give them little weight to the extent they corroborate the applicant’s claims. I accept that losing three members of his family would be devastating and may have impacted on his health. I however do not accept that his medical issues were due to the beating he claimed he suffered in detention.’
A number of aspects emerge from the paragraphs above. First, the Authority was aware of the reports from Foundation House and had regard to it. Second, the Authority gave the reports from Foundation House little weight. Third, the Authority explained its reasons for giving those reports little weight.
For all of the above reasons, I would dismiss Ground 1 of the Grounds of Review, save and except for those parts of particular (a) to Ground 1 that allege unreasonableness, and which I deal with further below.
Ground 2
This Ground was not pressed by the Applicant.
Ground 3
Ground 3 of the Grounds of Review in the Application is as set out below. Particular (a) to Ground 3 was not pressed.
‘The Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material.
Particulars
(b) The Authority did not give the Applicant an interview, or take other steps to get information about his past repeated detentions interrogations and beatings or about other aspects of his claim which it ultimately rejected, when this was an unreasonable failure to exercise its power under section 473DC of the Act.
(c) The Authority was unreasonable in not accepting the applicant's claim to have been asked by the CID or the army to report for questioning, when:
(i) The delegate had accepted this claim and expressed no doubt about it;
(ii) The Authority did not seek to get new information from the Applicant at interview about this claim;
(iii) The Authority did not seek to get new information from the Sri Lankan Member of Parliament who had written in support of the Applicant's claims;
(iv) The Authority rejected the claim on the basis of the applicant giving evidence in his visa application in August 2016 that it was the CID who came, but at his interview in October 2017 that it was the army or CID who had come on this occasion, but the applicant explained that they were in civilian clothes; (CCB 223, Reasons, [10])
(v) The Authority rejected the claim on its assumption without evidence that they would not ask him to report later if he was of interest, yet this is a common operation of authorities with persons of interest, and the submission to the delegate had noted that UNHCR cautioned against rejecting a claim as implausible on the basis of "subjective speculations". (CB 132.1)
(vi) The Authority had material about the Applicant's ability to recall events and to give evidence the mental and psychological difficulties he had, in reports from experienced professional counsellors. (CB 107-111, 226, [25])
(d) The Authority was unreasonable in rejecting as implausible the Applicant's claims that he was released on payment of a bribe but his brother-in-law was not, on the basis of no evidence about the view that the Sri Lankan authorities had about the brother-in-law, and on the assumption but no evidence that the authorities would always act consistently. (CB 224, [14])
(e) The Authority was unreasonable in rejecting as implausible the Applicant's claim that he returned to Sri Lanka in 2010 after leaving in 2008, when the civil war had ended in 2009, and the Applicant explained he was in terrible conditions in detention in Thailand. (CB 79, [19], CB 224, [15])
(f) The Authority was unreasonable in rejecting, without giving an interview to the Applicant, his claim about his brother's prominence in the LTTE. (CB 225, [18]-[21])
(g) The Authority was unreasonable in rejecting the evidence of the Member of Parliament's letter (CB 29) without seeking under section 473DC to get new information from the Applicant at interview or from the Member of Parliament. (CB 225, [22])
(h) The Authority was unreasonable in rejecting the Applicant's explanation for not saying at his Entry interview that he was a member of the LTTE. (CB 77, [3]; CB 225, [19])
(i) The Authority was unreasonable in rejecting as "vague, speculative and lack[ing] credible supporting evidence" the applicant's claim to fear the Sinhalese people who broke into his room in Australia and stole his driver's licence. (CB 170-172; CB 227, [30])
(j) The Authority was unreasonable in rejecting as a fabrication with no sufficient logical foundation the applicant's claim to have been abducted detained and tortured in 2012. (CB 226, [24])’
Under this ground of review, the Applicant challenges a number of findings of the Authority on the basis that those findings were, among other things, unreasonable.
There was not any dispute between the parties as to the principles to be applied in assessing the Applicant’s claims of unreasonableness. In summary, unreasonableness occurs where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’), or where a decision has been made that lacks and ‘evident and intelligible justification’. The test for unreasonableness is ‘stringent’ and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker (see Li at [30], [113]).
Given the number of particulars under this ground, I propose to deal with each of them in turn below.
Ground 3, particular (b)
Under this particular, the Applicant claims, inter alia, that it was unreasonable of the Authority to fail to exercise power to interview the Applicant under section 473DC of the Act or obtain information from him. The ground is not advanced as a failure by the Authority to provide procedural fairness. Rather, it is put on the basis that the particular facts of this case required the Authority to interview the Applicant. The Applicant also pursues this claim at Ground 1, particular (a).
The Applicant contended that the Authority was ultimately charged with conducting a de novo hearing of his claims. That necessarily involves an assessment of, among other things, whether the Applicant meets the criteria for protection under the Refugees Convention, or Australia’s complementary protection provisions. The Authority is therefore required to assess whether there is, inter alia, a real chance of persecution or a real risk of significant harm. This background, it is said, informs the exercise of the Authority’s exercise of powers, including the power under section 473DC of the Act. Against this background, the Applicant submits that the failure of the Authority to exercise the power to interview the Applicant was unreasonable. The delegate either did not raise concerns about the claims, or alternatively, accepted almost all of the core claims of the Applicant. In contrast, the Authority rejected the claims and history of the Applicant and found his major claim of abduction, interrogation and torture to have been a ‘fabrication’ on the basis of inconsistencies or implausibilities in his evidence.
The decision of the Authority does not disclose any consideration by it to exercise its discretion to obtain new information, or interview the Applicant. There does not appear to have been any request made of the Authority to exercise the power to admit new information or interview the Applicant. These matters, in my view, mean the Court can and should infer that the Authority did not consider exercising the power to interview the Applicant or obtain new information. The question then becomes whether the failure to consider obtaining new information, or interviewing the Applicant, was legally unreasonable. The Applicant asserts it was unreasonable.
I have set out earlier in these reasons some of the relevant provisions which comprise Part 7AA. Those provisions are important in considering the submissions advanced by the Applicant and provide the foundation for what follows.
The central thrust of the Applicant is that he is dissatisfied that the Authority has not accepted his claims, or parts of them, in circumstances where the delegate has initially accepted them. The Applicant places significant emphasis on the gravity of the claims he made, and the Authority’s rejection of those claims as a fabrication. It is understandable that the Applicant is aggrieved by that outcome in circumstances where he was not given an interview. The difficulty for the Applicant, however, is the nature of a review under Part 7AA. There is no requirement on the Authority to interview an applicant or to obtain new information. There is no requirement on the Authority to notify an applicant whose case is being reviewed that it is intending to depart from a favourable finding made by the delegate: see BKY17 v Minister for Immigration and Border Protection [2019] FCA 487 at [17]. The Authority is not required to assist an applicant by identifying inadequacies in his or her case and asking for more information: see FBR18 v Minister for Immigration and Border Protection [2019] FCA 1620 at [45]. This is not a case in which the findings as to the credibility of the Applicant involved assessing the Applicant’s demeanour at an interview.
The Applicant says that the unreasonableness in this case is similar to that considered in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (‘CRY16’) at [66] – [87]. CRY16 was a case in which the delegate rejected the applicant’s claim for protection on the basis that he was not a credible witness. The applicant sought a review from the Authority. The Authority affirmed the delegate’s decision, but on a different basis. The Authority found that the applicant’s fear of harm did not relate to all areas of Lebanon and that he could relocate to Beirut where he would not face a real chance of persecution. The matter proceeded to this Court where a judge quashed the decision of the Authority. The Minister appealed.
In dismissing the appeal, the Full Court considered that what is reasonable in terms of relocation must depend upon the particular circumstances of the applicant. The Full Court stated that the Authority knew, or must be taken to have known, that the question of relocation had not been considered by the delegate and also that the question of relocation depended on the particular circumstances of the applicant. In those circumstances, the Full Court concluded that it was legally unreasonable for the Authority not to consider obtaining documents or information from the applicant. The Full Court noted that the Authority did not have information in respect of relocation because it was not explored by the delegate. The consequence of this was that the Authority disabled itself from considering what was reasonable in respect of relocation.
The present matter, in my view, is not similar to CRY16. Here, the Applicant gave a detailed account of his claims to the delegate. The Authority proceeded to make findings on the same issues, having regard to the same information. Unfortunately for the Applicant, the Authority took a different view of the facts.
For all of the above reasons, I do not accept the Authority acted unreasonably as contended by the Applicant under this particular and under Ground 1, particular (a)
Ground 3, particular (c)
This particular comprises 6 subparagraphs. Subparagraphs (i) and (ii) to particular (c) raise matters that I have considered earlier in these reasons. Insofar as those matters are raised in respect of this particular, I rely on my earlier findings. Further, subparagraph (vi) to this particular raises matters that I considered in relation to Ground 1, particular (b). Insofar as those matters are raised in respect of this particular, I rely on my earlier findings. Finally, subparagraph (iii) to this particular raises matters also raised in particular (g) to Ground 3. I have considered that matter later in these reasons, and rely on those findings in respect of the matter presently under consideration.
It is apparent that under this particular, the Applicant takes issue with the approach and finding of the Authority set out at paragraph [10] of its reasons. That paragraph is in the following terms:
‘The applicant stated in the visa application that about 15 days after he returned home following his release, the CID came to his house and asked him to report to them for questioning. He was scared and fled to India. At the SHEV interview, he stated that army came to his house asked him to report the camp the next day. When it was put to him the inconsistency, he stated that they came in civilian clothes so he did not know who they were and they normally did not identify themselves and could be army or the CID. I do not accept his explanation. The applicant clearly stated at the SHEV interview that army asked him to report to their camp the next day. I do not believe that he would not know whether they were CID or army given he would have been told where to report. Regardless whether it was the army or the CID, I do not believe they would have let him to report himself the next day if they considered him to be of significant interest.’
The Applicant, in advancing this ground before me, placed a significant emphasis on subparagraphs (i) and (ii) of the particular. As noted, I have already dealt with those matters and rely on my earlier findings. Considered as a whole, the Applicant’s submission under this particular essentially boils down to an argument as to the following. First, the finding by the Authority was unreasonable because the Applicant gave an explanation for the inconsistency in his evidence about whether it was the CID or army that came to his house. Second, that the finding by the Authority that ‘I do not believe they would have let him report the next day if they considered him to be of significant interest’ was unreasonable because it was a ‘common operation’ of those authorities.
In my view, there was nothing unreasonable about the approach of the Authority. The Authority clearly identified the inconsistency in the Applicant’s evidence. That inconsistency was put squarely to the Applicant. The Applicant was given an opportunity to respond to it, which he did. The Authority considered that response. Having done so, the Authority did not accept the explanation proffered by the Applicant. The Authority gave reasons as to why it did not accept the explanation of the Applicant. There is nothing unreasonable about the conclusion reached. It is not a conclusion that no reasonable decision-maker could have come to, nor is it a decision that lacks an evident or intelligible justification. To this, I would also add that there was not any evidence that I can see which would support the contention that it was a ‘common operation’ that the authorities would ask him to report later, nor is it a matter that I would regard this Court as being capable of taking judicial notice of, notwithstanding the submission of the Applicant to this effect.
In my view, the reasoning of the Authority was open to it. There was nothing unreasonable about the Authority’s approach or conclusion.
Ground 3, particular (d)
Under this particular, the Applicant takes issue with paragraph [14] of the decision of the Authority. That paragraph provides as follows:
‘Despite having provided a relatively consistent account of his interactions with the authorities, I have serious doubts as to the genuineness of these claims. While country information indicates high level corruption in the government and public sector in Sri Lanka, I have serious doubt that the applicant was able to secure his release on the three occasions when he was detained and also he was able to leave Sri Lanka in 2008 through the airport after a bribe was paid in each occasion if he was accused of being a member of the LTTE, particularly given his claim that people would perceive him to be high rank in the LTTE and he believes that people had dobbed him in. It is not plausible that given the claimed connection and the resources his family had, his sister’s husband would have ended up being detained for one and half years and had his finger cut off, noting his sister secured his release in November 2010 when he returned from Thailand when she was informed of the applicant’s detention by her paying 3 Lakhs bribe to someone.’ (citation omitted)
The Applicant contends that the finding identified in particular (d) and contained within paragraph [14] of the Authority’s reasons is unreasonable in the sense that, while reasons are given by the Authority for its conclusion, they are not intelligible or logically founded. To support this contention, the Applicant refers, inter alia, to the submissions placed before the Authority (see Court Book 132) and also to the 2016 US State Department Report (see Court Book 151). The submission is also made that the findings of the Authority are made in circumstances where there is no information about whom the bribes were paid to and the amount of the alleged bribes were significant.
In my view, the Applicant’s submissions before the Authority at Court Book 132 do not advance the Applicant’s argument. The submissions at Court Book 132 are not directed toward the issue raised by this particular, which is the payment of a bribe and the asserted assumption that authorities would always act consistently. Similarly, the reference to the US State Department report at Court Book 151 is not concerned with the payment of bribes.
A review of paragraph [14] discloses the following. It is evident that a significant feature of the reasoning of the Authority was the claim by the Applicant that he would be perceived as being of high rank in the LTTE. It is from that matter that the Authority then expressed concerns about the following. First, that the Applicant was able to secure his release on three occasions, notwithstanding his LTTE connections and his apparent significance in the LTTE. Second, that he was able to leave Sri Lanka through the airport in 2008, notwithstanding his LTTE connections and apparent significance in the LTTE. Third, that the Applicant was able to be released on payment of a bribe given his claimed LTTE connections, and given the family’s resources, while his sister’s husband continued to be detained.
The reasoning of the Authority within paragraph [14] discloses an intelligible justification for the conclusion it reached: Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 [35]. It may be that a different decision-maker would have taken a different view of the matters, however that is not the test to be met. In my view, the submission by the Applicant seeks to invite an impermissible review of the merits.
The reasoning of the Authority was open to it. No jurisdictional error is revealed by the submissions in respect of this particular.
Ground 3, particular (e)
This ground takes issue with the finding of the Authority in paragraph [15] of its reasons. That paragraph is expressed in the following terms:
‘I do not consider it plausible that the applicant would voluntarily return to Sri Lanka in 2010 if he was detained and harmed in 2008 as claimed and his brother-in-law was detained for one and half even if conditions were terrible in the detention centre. He was already registered at that time with the UNHCR in Thailand and his application was being processed. It is reported that a leading human rights activist considered that it would be unlikely that somebody who was known to be involved with the LTTE-activities would return.2’
2 Danish Immigration Service, "Human Rights and Security Issues concerning Tamils in Sri Lanka", 01 October 2010, CIS19345
The Applicant complains that the finding is unreasonable because it failed to take account of the fact that the Civil War ended in 2009, and the Applicant claimed he was living in terrible conditions in Thailand.
Self-evidently, the claim that the Authority failed to take account of any claimed living conditions the Applicant may have enjoyed in Thailand cannot be sustained. The Authority expressly refers to what was occurring in Thailand in respect of the Applicant in paragraph [15] of its reasons. The Authority also refers to two other pieces of information in its reasons. It refers to the fact that the Applicant was registered with the UNHCR at the time and that his application was being processed. Further, the Authority took into account country information before it that it would be ‘unlikely’ somebody who is known to be involved with LTTE activities would return to Sri Lanka. The country information relied upon by the Authority is footnoted in its decision and detailed below. The footnote indicates the country information is a report from the Danish Immigration Service dated 1 October 2010.
The above, in my view, discloses that the Authority had an intelligible justification for reaching the conclusion that it did. The reasoning of the Authority was not unreasonable, but was open to it on the material before it.
Ground 3, particular (f)
Under this ground of review, the Applicant takes issue with the Authority’s reasons at paragraphs [18] – [21] insofar as they relate to his claim about his brother’s prominence in the LTTE.
The following emerges from paragraphs [18] – [21] of the reasons of the Authority:
a)while the Applicant claimed in his entry interview and SHEV interview that his brother was forcibly recruited to the LTTE, and was in charge of the finance division and only joined the fight in the final stage of the war, he made no mention in his visa application that his brother was in charge of the LTTE’s financial division (at [18]);
b)the Authority recorded that the evidence did not suggest that other members of his family were targeted because of his brother’s involvement in the LTTE (at [18]);
c)the Authority recorded that the fact his other family members were not targeted by the authorities because of his brother’s involvement with the LTTE was not consistent with the claimed profile of his brother (at [18]);
d)the Authority noted that at the SHEV interview and during the post-interview submission, the Applicant was portrayed as having a much more prominent role with the LTTE than what he had stated previously (at [20]);
e)in view of the above matters which the Authority described as ‘discrepancies’, the Authority concluded that it did ‘not believe that the applicant has given a credible account of his and his brothers involvement with the LTTE’ (at [21]).
The Applicant’s submissions under this particular are advanced, at least in part, on the basis that the finding by the Authority was unreasonable because the Applicant was not granted an interview. I have already dealt with the submissions in relation to failure by the Authority to interview the Applicant. I rely on my earlier reasoning in respect of this particular.
To the extent that this ground is pressed separately or in conjunction with to the failure to interview, I am not persuaded that the finding of the Authority is unreasonable. The Authority gave reasons for its conclusion. Those reasons rested upon what the Authority described as ‘discrepancies’ in the Applicant’s evidence, both in respect of his own involvement with the LTTE, and also in respect of his brother’s involvement with the LTTE. I have noted those discrepancies above. The Authority acknowledged freely that, on one view, the discrepancies may not seem to be significant. The Authority, however, considered them together prior to concluding that the Applicant’s account of his brother’s prominence within the LTTE was not credible.
The findings of the Authority noted above were open to it. They disclose an intelligible justification for the conclusion ultimately reached. In my view, the conclusion of the Authority cannot be described as illogical or unreasonable.
Ground 3, particular (g)
Under this particular, the Applicant takes issue with the finding of the Authority set out at paragraph [22] of its reasons. That paragraph is in the following terms:
‘The applicant provided a letter from a MP of the Jaffna Electoral District dated 30 April 2013. The letter states that the applicant was investigated mostly about his dead brother and that his brother was an LTTE cadre. It makes no mentioning of the applicant’ own involvement in the LTTE. The writer also states that he has known the applicant well. The applicant claimed at the SHEV interview that this is the same local MP his mother approached to have him released in 2012. I have difficulty accepting this MP knows the applicant well if the writer is a MP for the Jaffna district and the applicant grew up in Kilinochchi, or the MP is the same local MP that the applicant’s mother approached when his mother was living in Kilinochchi at the time. In any event, I am not satisfied that the writer was speaking from first-hand knowledge of the events and I give the letter no weight.’
The letter the subject of this particular is set out at Court Book 29.
The letter appears to be written on formal letterhead from a Member of Parliament. The letter sets out the contact details of the MP concerned, including postal address, fax, mobile telephone and email contact details. The letter therefore appears to be a genuine letter.
It is in these circumstances that the Applicant contends that the decision of the Authority to reject the letter was unreasonable, particularly in circumstances where the Authority did not seek to obtain further information under section 473DC of the Act. The Applicant contends that the letter was potentially strong independent corroboration of the Applicant’s claims, and that it was unreasonable for the Authority to give the letter ‘no weight’. It is said that the failure to make the enquiry had the potential to have a material bearing on the Applicant’s credibility.
In support of his submissions, the Applicant relies on AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 (‘AMT15’). In AMT15, the appellant contended that the failure of the Tribunal to make enquiries of a Sri Lankan MP, who had given a corroborative letter, amounted to jurisdictional error. Tracey J, in the circumstances that confronted him, found the failure to make enquiries amounted to jurisdictional error. His Honour stated at paragraph [47]:
‘… However, in circumstances in which there was no reason to suggest that the letter was not authentic and it contained multiple contact details for the member of the Sri Lankan Parliament whose name was printed on what appeared to be official Sri Lankan Parliamentary letterhead, it would have been relatively easy for the Tribunal to have, directly or indirectly, contacted the member of Parliament and enquired as to whether he had sent the letter to AMT15. Questions might also have been asked about whether AMT15 held the office in the TNA to which the letter referred and whether AMT15 had attended the party meeting to which the agenda related. The failure to make these obvious enquiries which had the potential to have a material bearing on AMT15’s credibility and some of his claims of political involvement, constituted, on the facts of this case, a jurisdictional error. The failure amounted to a constructive failure to exercise jurisdiction…’
Significantly, AMT15 concerned a review by the Tribunal under Part 7 of the Act and not Part 7AA. That distinction in the legislative scheme has recently been remarked upon by Judge Kelly of this Court. In FMA17 v Minister for Home Affairs [2019] FCCA 1461 (‘FMA17’), Kelly J also dealt with a complaint that a failure to contact a politician was grounds for jurisdictional error. Kelly J noted that in the case before him, as in the case presently before the Court and as in the case of AMT15, there was no reason to suggest that the letter was not authentic. Kelly J went on however, to state as follows:
‘[123] In contrast to AMT15 and SZIAI both of which concerned review under Pt 7 of the Act, the present case arose under Pt 7AA.
[124] While the principles in AMT15 and SZIAI are instructive on the question of legal unreasonableness, the statutory power conferred by s 473DC to get information must be read in the context of Div 3 of Pt 7AA, including, that the Authority must ordinarily conduct its review on the papers in a manner that is efficient, quick, free of bias and consistent with Div 3 of Pt 7AA. To be consistent with Div 3 of Pt 7AA, the manner of the Authority’s conduct of review is subject to the proscription that new information not be considered except in exceptional circumstances and upon satisfaction of the conditions in s 473DD.
[125] In contrast with the core function of an inquisitorial tribunal under Parts 5 and 7 of the Act, the Authority is constrained by the matters in Pt 7AA. When the relative latitude allowed to an administrative decision maker under Parts 5 and 7 is recognised, it is more readily understandable that such administrative decision-makers may be required to make obvious enquiries about critical facts that are easily ascertainable and, thus, that their failure to do so may demonstrate jurisdictional error. Under Pt 7AA, the Authority was bound to act only on the referred information, except in accordance with certain limited exceptions. The cases relied upon by the applicant are, to that extent, distinguishable.’
Further, at paragraph [129] of his decision, Kelly J stated as follows:
‘I accept the Minster’s submission that the applicant did not demonstrate how any further information which should have been sought could have satisfied the preconditions in s 473DD (e.g. such as to be able to be considered by the Authority in any event). If the principles in SZIAI94 are sought to be engaged, an applicant is expected to adduce evidence before the Court that the enquiries, if made, could have yielded a useful result: see also SZWAW v Minister for Immigration and Border Protection. The applicant has chosen to put on no evidence as to what the results of an enquiry of the TNA politician would have been or why they would have been of utility. Further, while SZIAI was a decision made in relation to a claim under Pt 7 of the Act, the present claim arises for consideration under Pt 7AA which contrastingly, excludes an obligation to get, request or accept any new information.’ (citations omitted)
I have outlined earlier in these reasons, the nature of the statutory scheme established under Part 7AA. Having regard to what I set out earlier, Kelly J has correctly identified and described the differences between a review conducted under Part 7 of the Act, and a review conducted under Part 7AA of the Act. I respectfully adopt Kelly J’s summary and reasoning as set out in the paragraphs I have extracted above. In particular, I agree with Kelly J that cases such as AMT15 are distinguishable given the review scheme that applies to this matter under Part 7AA of the Act.
Turning then to the present matter, the following is apparent. The Authority did not make any finding that the letter was not genuine. As was the case in FMA17, the letter contained contact details which would have enabled an enquiry to be made by the Authority. However, at no stage in this matter did the Applicant request that the Authority contact the relevant Member of Parliament.
To the above may be added the following. As observed by Kelly J in FMA17, the Applicant in the present matter has not placed before the Court any evidence to demonstrate how any further information which should have been sought could have satisfied the preconditions in section 473DD.
Finally, a review of paragraph [22] of the reasons reveals the Authority expressly considered the terms of the letter and gave reasons as to why it failed to place any weight on the letter. Those reasons included that the letter made no mention of the Applicant’s own involvement in the LTTE, and the fact that the Authority was not satisfied that the writer of the letter was speaking from first-hand knowledge of events.
In all of the circumstances above, the decision of the Authority to give the letter no weight was one that was open to it. There was nothing unreasonable about the reasoning adopted by the Authority.
Ground 3, particular (h)
Under this ground, the Applicant takes issue with the finding of the Authority in paragraph [19] of its reasons, which is as follows:
‘In respect of his LTTE involvement, the applicant stated at the entry interview that his brother was the only member of his family who was in the LTTE. However, in his visa application, he claimed that he joined the LTTE in 1999. He did not disclose this in the entry interview because he was afraid. He had been told that he would be deported if he mentioned anything about being involved with the LTTE. I do not accept this explanation given he did state that he worked for a company owned by the LTTE.’
The explanation given by the Applicant for his failure to mention his involvement with the LTTE in his Entry interview is contained within a written statement he made that is reproduced at Court Book page 77. The explanation is reproduced below:
‘3. During my Entry Interview I didn't mention my involvement with the LTTE because I was afraid. I had been told that I would be deported if I mentioned anything about being involved with the LTTE, even though I was never a soldier and I never used a weapon. I want to disclose this information in this application because I know that it is important to be honest and provide all of the details of my case.’
The Applicant also relies on the following matters to make good his submission that the Authority acted unreasonably. First, the Applicant claimed to have been detained, interrogated and tortured three times because of his LTTE membership. Second, there was evidence from Foundation House (referred to earlier) that he was found to be suffering symptoms of post-traumatic stress disorder. Third, that he was not made aware that information given at the Entry Interview would be used for assessing his claims for protection.
In my view, the Applicant, by this particular, is inviting the Court to engage in an impermissible merits review. There is nothing unreasonable about the finding made by the Authority. The Authority did not accept the Applicant’s explanation of, among other things, a fear of being deported for disclosing any involvement with the LTTE at his interview. This is because the Authority found the Applicant had disclosed that he worked for a company owned by the LTTE at the interview. It was this discrepancy that ultimately led to the Authority rejecting the Applicant’s explanation.
In my view, the finding reached by the Authority was open to it and was not unreasonable.
Ground 3, particular (i)
This ground of review concerns claims made by the Applicant in relation to the theft of personal documents while he was in Australia. The findings with which the Applicant takes issue are set out at paragraph [30] of the reasons of the Authority. Paragraph [30] provides as follows:
‘I accept that the applicant’s room was broken into some time in 2015 and personal documents may have been stolen. I also accept his driver licence had been nominated for several driving offences. However, I do not accept that the people who broke into his room are Sinhalese men who have links to the CID because they boasted about this or have sent his personal information to the Sri Lankan authorities or had threatened to harm him. I consider this claim to be vague, speculative and lack credible supporting evidence.’
The documents which are the source of the Applicant’s claim are set out in the Court Book. They are set out in a submission made by the Applicant’s representatives on 1 November 2017 that commences at Court Book 126 – 130. There are also other documents contained at Court Book 170 – 172. They comprise of a statutory declaration of the Applicant, an extract from VicRoads noting offences against the Applicant’s licence, and correspondence from the Springvale Monash Legal Service.
The Authority recorded a summary of the Applicant’s claim at paragraph [28] of its reasons. Paragraph [28] provides as follows:
‘The applicant added a new claim towards the end of the SHEV interview. He stated that one of his roommates, a Sinhalese man, had broken into his room and his other roommate refused to be witness fearing for his safety. The Sinhalese man was aware of his brother’s LTTE involvement as the applicant commemorates the death of his brother in his room. The Sinhalese man was hostile to the applicant and has links to the CID. The applicant fears that his personal documents including copy of his identity card and his protection case documents were given to the Sri Lankan authorities.’
In respect of these matters, the Applicant contends, among other things, that the claims made were precise, concrete and supported by evidence. He contends that there was no basis to reject the claim that was made
Having regard to paragraph [30] of the reasons, it is clear that the Authority accepted some elements of the Applicant’s claim. The Authority accepted those aspects of the claim that were supported by corroborating evidence (the corroborating evidence being the Applicant’s statutory declaration and the documentation from Vic Roads: Court Book 170 – 172). For example, the Authority accepted that the Applicant’s room was broken into, that personal documents may have been stolen and that his drivers licence had been linked to several driving offences.
The Authority did not, however, accept other aspects of this claim. The Authority did not accept that the intruders were Sinhalese men with links to the CID, or that they boasted about this, or had sent the personal information to Sri Lankan authorities, or threatened to harm the Applicant.
In my view, it was open to the Authority not to accept those aspects of the Applicant’s claim that I have referred to above for two reasons. Firstly, there was not any evidence from a third party, such as VicRoads, to support the claims. Secondly, the Authority had already expressed doubts about the Applicant’s credibility in relation to other aspects of his overall claims. Given the nature of the claims, the absence of corroborating evidence and the concerns about the Applicant’s credibility, it was in my view open to the Authority to reach the conclusion that it did. The conclusion was not unreasonable.
Ground 3, particular (j)
Under this ground, the Applicant takes issue with the Authority’s findings in relation to an incident in 2012, prior to the Applicant’s departure for Australia. The relevant finding is contained within paragraph [24] of the reasons of the Authority and is extracted below:
‘… I consider the incident of 2012 is a fabrication to justify that applicant’s departure for Australia. I do not accept that he was accused of being sent overseas by the LTTE. I do not accept that applicant was sought out by the authorities. I do not accept that his sister went to Canada for the reasons claimed.’
The Applicant’s claims in relation to what he endured in 2012 are set out in a written statement from him that commences at Court Book 77 (though, see in particular Court Book 80 – 81). In summary, the Applicant claimed:
a)that in August 2012, he was arrested, blindfolded and taken to what he believes was an old LTTE camp;
b)whilst in detention, he did not eat and was beaten very badly. He was tortured and remembers being in and out of consciousness;
c)he was threatened and a gun was kept at his ear and forehead. He was questioned about why he left the country;
d)his mother found out of his arrest and approached a Member of Parliament who helped secure his release;
e)upon his release, he went to Jaffna with his mother and brother and he stayed with his paternal uncle. His mother’s house was subsequently visited by the CID who threatened that they wanted the Applicant to report to them the following day;
f)as a result of the above, his uncle helped make arrangements for him to travel to Australia.
In respect of these matters, the Applicant complains about the finding by the Authority that these claims were a ‘fabrication’. This finding is said to lack a logical foundation in light of the claims made, and is said to be unreasonable.
While the Authority’s ultimate conclusion about these claims is contained within paragraph [24] of its reasons, the Authority examines the claim (along with a number of other claims) at paragraphs [14] to [17] of its reasons. When those paragraphs are looked at, a number of things emerge. First, the Authority expressed that it had serious doubts about some of the Applicant’s claims leading up to the events in 2012. For example:
a)the Authority stated that it had ‘serious doubts’ as to the genuineness of the Applicant’s claims, for example, in relation to his ability to secure his release from detention on three occasions (at [14] of the reasons of the Authority);
b)the Authority did not consider it plausible that the Applicant would voluntarily return to Sri Lanka in 2010 if he was detained and harmed in 2008 as claimed (at [15] of the reasons of the Authority).
Then, in respect of the incidents that occurred in 2012, the Authority:
a)did not consider it plausible that the Applicant would have returned to Sri Lanka a second time in 2012 after he had fled to India following the incident in 2011 (at [16] of the reasons of the Authority);
b)expressed doubts as to the Applicant’s explanation for his return to Sri Lanka in 2012 (at [16] of the reasons of the Authority);
c)referred to and took into account Country Information (risk profiles identified by UNHCR in its 2012 eligibility guidelines) in considering its decision (at [16] of the reasons of the Authority);
d)considered it very unlikely that if the Applicant was known or perceived to be a high level member of the LTTE, the authorities would not have sought to take the Applicant when they visited his home, instead of asking him to present the next day (at [17] of the reasons of the Authority);
e)considered it not plausible that following his return from India in March 2012, nothing happened to him until August 2012 when the claimed abduction occurred (at [17] of the reasons of the Authority); and
f)considered that the Applicant’s claimed fear was not consistent with him operating a shopfront business (at [17] of the reasons of the Authority).
When the above matters are considered, it is apparent that the Authority considered carefully the Applicant’s claim in relation to the events that occurred in 2012. The matters that I have sought to set out in summary above disclose the chain of reasoning of the Authority which ultimately led to it rejecting the Applicant’s claims about the events that occurred in 2012.
Given the matters that I have referred to above, the finding of the Authority in paragraph [24] of its reasons was a finding that was open to it. It was not a finding that was unreasonable or illogical. Contrary to the submissions of the Applicant, it is not the case that the Authority gave no explanation at all for this finding.
As I have not found in favour of the Applicant in any of the particulars, Ground 3, and Ground 1(a) must be dismissed.
Ground Four
This Ground of Review is as follows:
4. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
(a) The Applicant refers to the Particulars (b), (g) and (j) to Ground 3 of this application.
By this ground of review, the Applicant simply characterised the errors identified earlier in the grounds of review as errors of law. For the reasons that I have articulated above, I have found that the Authority has not acted unreasonably, or misinterpreted or misapplied the law. In that context, Ground 4 must be dismissed.
Conclusion
For the reasons set out above, I am of the view that the Authority has not committed jurisdictional error. The application must therefore be dismissed. I will make an order to that effect.
It is usual that costs follow the event. The Minister seeks costs of $5,500. I will make an order for costs in that amount.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 13 November 2020
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