EMJ17 v Minister for Immigration and Anor (No.5)

Case •

[2018] FCCA 727

•

21 March 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMJ17 v MINISTER FOR IMMIGRATION & ANOR (No.5) [2018] FCCA 727
Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the secretary failed to provide relevant information – whether the authority failed to consider the integers of the applicant’s claims – whether the authority failed to consider the request for new information – no jurisdiction error made out – the further amended application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473B, 473CB, 473DC, 473DD, 476
Applicant: EMJ17
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: SYG 3099 of 2017
Judgment of: Judge Street
Hearing date: 21 March 2018
Date of Last Submission: 21 March 2018
Delivered at: Sydney
Delivered on: 21 March 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Hodges Legal
Counsel for the Respondents: Mr G Johnson
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. Grant leave to the applicant to rely upon the amended application filed 10 March 2018.

  2. Grant leave to the applicant to further amend the amended application by adding an additional particular to Ground 1 as identified in exhibit D.

  3. Direct the further amended application reflecting the subject of leave granted be filed on or before 23 March 2018.

  4. The further amended application is dismissed.

  5. The applicant to pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3099 of 2017

EMJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

  1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act on 25 September 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

  2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on Christmas Island in September 2012, having left Sri Lanka in August 2012. The applicant was then transferred then to Nauru, from which he made a protection claim. On 31 August 2016, the applicant lodged an application for a Safe Haven Enterprise visa.

  3. The applicant claimed to fear harm by reason of his actual imputed political opinions, supporting the LTTE, and his association with his brother who was a suspected LTTE supporter.

  4. The applicant also claimed to fear harm by reason of having been the subject of extortion by a Sinhalese businessman, as well as being a young Tamil male from the East, and by reason of having made a previous attempt to leave Sri Lanka in July 2012. The applicant also claimed to fear harm by reason of the data breach by the Department of Immigration and Border Protection and being a returned asylum seeker who left Sri Lanka illegally.

  5. On 9 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. In support of the applicant’s protection claims, submissions were provided dated 12 February 2017. Those submissions asserted that the applicant attempted to depart Sri Lanka illegally on two occasions. The delegate expressly referred to the applicant’s attempt to depart Sri Lanka in July 2012, when he was caught by police and as a result of which the applicant said he paid a bribe and did not go to Court and was released after 24 hours.

  6. The delegate records that the Sri Lankan authorities did not stop him leaving in August 2012 by boat because a particular person was in power and was making money from illegal departures. It is apparent on the face of the delegate’s reasons that the delegate took into account a submission that had been advanced in terms of the applicant having left on two occasions and found that the applicant had only made one attempt to depart Sri Lanka illegally, as a result of which he was caught by the police. The applicant, in the statement in support of the application that informed the protection visa, stated in July 2012:

    I attempted to flee Sri Lanka, but I was caught and detained for approximately 24 hours. I paid a bribe and was released. I did not go to court, as stated in previous application. I attempted to leave Sri Lanka again in August 2012.

  7. A fair reading of the applicant’s statement reflects the applicant succeeding on the second attempt.

The Authority’s decision

  1. Following the delegate’s decision on 15 March 2017, the Authority wrote to the applicant identifying that the application had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information.

  2. In response to that letter, submissions were provided to the Authority on behalf of the applicant. Those submissions, in paragraph 16, advanced the assertion that the applicant had previous illegal departures in the plural and asserted that the applicant had made more than one failed attempt to depart Sri Lanka illegally. The applicant’s statement does not support any such fact and there is no further evidentiary basis identified for the assertion in the submissions.

  3. The Authority referred to the background of the visa application and referred to having regard to the material referred to under s 473CB of the Act. The Authority also addressed the submissions advanced, including a submission contending that information regarding the assessment of claims that the applicant made in an application for protection whilst in Nauru may be relevant when assessing his claims for protection in Australia at the present time. Reference was made to the fact that the Authority is required to assess whether the applicant meets the criterion for a protection visa under s 36(2)(a) of the Act and the definition of “refugee” in s 5H(1) of the Act. The Authority was not satisfied there were exceptional circumstances to justify the Authority getting new information regarding the applicant’s application for protection in Nauru.

  4. In that regard, the applicant’s submissions dated 30 March 2017 first addressed the topic that confidential and sensitive information has been kept confidential in Nauru. Reference was made to the applicant’s claims for a protection visa in Nauru and a copy of the applicant’s transferee interview record being likely to be in the custody of the Nauru Immigration Authority and that such information is likely still to be held by the Nauru officials. Reference was made to the criticisms by the United Nations High Commissioner for Refugees (“UNHCR”) of the Nauru Refugee Status Determination (“RSD”) process as well as a reference to an article in The Guardian.

  5. The applicant’s submission advanced that the Nauru government may have held information with regard to asylum seekers that may not have been kept confidential for the purpose of assessing asylum claims. Further reference was made to Australia’s recent breach of privacy that occurred as it was possible that sensitive information relating to the applicant and the claims he made while in Nauru may not have been kept confidential. It was suggested that a breach of confidentiality may have occurred both in Australia and Nauru. It was submitted that any information regarding the assessment of the applicant’s claims may be relevant when assessing the applicant’s claims for protection in Australia. It was submitted that the department could access such information from the Nauru authorities as the applicant has provided consent to seek such information if required from countries other than Sri Lanka.

  6. It is apparent from the Authority’s reasons that the Authority genuinely engaged with the submissions and under s 473DC of the Act the Authority does not have a duty to get requests or accept any new information. Whether the Authority is requested to do so, by referred applicant or by any other person or in any other circumstances, s 473DC(3) of the Act provides a power pursuant to which the Authority may invite a person, orally or in writing, to give new information and s 473DD of the Act provides that the Authority must not consider any new information unless the requirements of both limbs are met. The first limb refers to exceptional circumstances. In considering the exercise of the power under s 473DC(3) of the Act in respect of a request by an applicant to get information, the consideration of exceptional circumstances referred to in s 473DD of the Act is clearly relevant.

  7. The Authority summarised the applicant’s claims, but was not satisfied and found it implausible that the applicant was imputed with supporting the LTTE because of his association with his brother or with the Sinhalese businessman who had a shop next to the applicant’s tourist shop. The Authority did not accept that the applicant was suspected of LTTE involvement in connection with the arrest of ten Tamil men over the discovery of an explosive device in his local area. The Authority did not accept the applicant was imputed with supporting the LTTE following his inadvertent entry into a security zone. The Authority did not accept that the applicant was suspected of any significant involvement with the LTTE after he was released from Boosa Prison without charge or rehabilitation. The Authority was not satisfied that the applicant had an adverse security profile or was of interest to the authorities after he was released from prison. The Authority was not satisfied that low level supporters of the LTTE are subject to any systematic targeting or violence.

  8. The Authority took into account that the applicant, prior to coming to Australia, had on a previous occasion attempted to depart Sri Lanka illegally by boat but was intercepted. That was a finding that was open to the Authority on the material before the Authority. The Authority found that the applicant did not have to go to court on that occasion as he paid a bribe for his release and was not on bail. The Authority also took into account the applicant’s claims to fear harm or worse on the basis of being a Tamil male from the East, but found the situation in Sri Lanka had improved since the applicant left in 2012. The Authority concluded that it was not satisfied the applicant faced a real chance of harm on the basis of any real or imputed association, including merely associating with an agent of the LTTE because of his involvement with his brother’s political campaign, extortion from the Sinhalese businessman, previous interactions with the Sri Lankan Army (“SLA”) or police, or his previous attempt to depart Sri Lanka, or for being a young Tamil male from the East, or for being a Hindu.

  9. The Authority took into account the applicant’s claims concerning having departed Sri Lanka illegally and his claim that some of his personal details were released in the data breach. The Authority found that the applicant did not have an adverse profile with the Sri Lankan authorities and was not satisfied the applicant’s status as an asylum seeker would lead him to adverse attention on return to Sri Lanka and found there was not a real chance he would be subjected to harm because he is a returning asylum seeker. The Authority found the applicant would be in breach of the Immigrants and Emigrants Act (1948) (Sri Lanka) but found that any fine imposed or the requirement for any bail, surety or guarantee would not constitute serious harm. The Authority found the provisions and penalties that would be applied are laws of general application that apply equally to all Sri Lankans. The Authority was not satisfied the applicant met the requirements of the definition of refugee under s 5H(1) of the Act and found the applicant failed to meet the criteria in s 36(2)(a) and affirmed the decision on review.

The grounds

  1. The grounds in the further amended application are as follows:

    Ground 1

    The Secretary failed in its statutory obligation to provide the IAA relevant information received or produced by the First Respondent upon which a decision to grant the applicant PAIS was based.

    Particulars

    1. The applicant was identified as PAIS eligible [CB 17].

    2. The applicant did not accept the PAIS assistance offer made by the department [CB 95].

    3. Documentary evidence [CB 18] indicates that if the applicant did accept PAIS assistance, the applicant would have to give consent to information relating to the applicant’s PAIS eligibility be given to the PAIS provider.

    4. A particular document published by the department titled “Additional guidance on PAIS eligibility criteria and assessment process” refers to four Criterions an asylum seeker must meet to be considered eligible for PAIS assistance.

    5. This document (referred at 4 above) states “that a person must either satisfy criteria 1 and 2 and 3 OR may satisfy criterion 4 alone”.

    6. Criterion 3 has 2 limbs namely,

    a. PAIS “assistance is in the best interests of government if it facilitates applications from non-citizens at risk of a protracted period of detention following the lifting of the application bar.”

    b. PAIS “assistance is also in the best interests of government where individuals are identified as exceptionally vulnerable…”

    7. The s46A bar was lifted on 20 June 2016, for the purpose of allowing the applicant “to make a valid application for a Temporary Protection (subclass 785) visa (TPV) or Save Haven Enterprise (subclass 790) visa (SHEV) – [CB 13]. It is clear therefore that following “the lifting of the application bar” the applicant was not at risk of a protracted period of detention.

    8. Therefore PAIS assistance was offered to the applicant in the best interests of government because he was identified as exceptionally vulnerable.

    9. This information concerning the applicant being considered exceptionally vulnerable and the basis upon which to grant the applicant PAIS does not appear to have been before the Authority.

    10. This information is relevant information that was in the Secretary’s possession or control that was considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review – s473CB(1)(c). This is so, because the decision to grant the applicant PAIS has been referred to at [CB 15-17] [CB 94-95], however the information concerning the applicant being considered exceptionally vulnerable and or the basis upon which to grant the applicant PAIS was not provided to the IAA under s473CB(1)(c) of the Act.

    11. Documents produced as part of the assessment that determined the applicant to be PAIS eligible was relevant and ought to have been provided to the IAA.

    12. The fact that the applicant was determined by an officer of the department to be “exceptionally vulnerable” on the basis of having been considered a victim of Torture & Trauma was relevant information/documents that was not referred to the Authority (Refer – documents tendered in by the first respondent at the hearing).

    Ground 3

    The IAA failed to consider an essential integer of the applicant’s claims and future harm the applicant would face due to having unsuccessfully attempted to depart Sri Lanka on two previous occasions.

    Particulars

    1. The applicant in his written claims referred to two attempts he made to depart Sri Lanka one being in July 2012 [CB 63, 35] and the other being in August 2012.

    2. The delegate refers to the second attempt made to depart Sri Lanka in August 2012 [CB 110].

    3. The applicant’s representative’s submissions to the delegate [CB 106] states “The facts are that he attempted to depart Sri Lanka illegally on two occasions for fear of his safety and was put in jail after the first failed attempt” [refer Affidavit filed 8/3/2018].

    4. The IAA considered the claim associated with the first unsuccessful attempt to depart Sri Lanka at [CB 150,32] and [CB 152,42].

    5. The IAA did not consider an essential integer of a claim that was made out on the facts, that is the applicant made a second attempt to depart Sri Lanka in August 2012.

    6. The IAA’s reasoning at [CB 151,39] which states “I am satisfied that he did not depart Sri Lanka whilst on bail. I am therefore satisfied that the applicant would not be at risk on return on the basis of any adverse security of criminal profile…” fails to consider that the applicant made two unsuccessful attempts to depart Sri Lanka not one attempt.

    Ground 4

    The IAA conflated the “relevance” (s473DC(1)(b)) of the request to “get” new information with the need to satisfy itself “that there are exceptional circumstances to justify considering the new information” (s473DD(a), thereby failing to consider if request made by the applicant representative to get new information “may be relevant”.

    Particulars

    1. The written submissions to the IAA requests the consideration of “information regarding the assessment of claims that the applicant made in an application for protection whilst in Nauru” and implies that the Authority exercise its powers under s473DC of the Act and “get” new information [CB 136,13].

    2. The IAA does not have a duty to get any new information “whether the Authority is requested to do so by a referred applicant or by any other person…” (s473DC(2)).

    3. However s473DC(1) states that the 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”.

    4. S473DC does not require the IAA to satisfy itself “that there are exceptional circumstances to justify considering the new information” for the purpose of getting new information at the request of the referred application or his representative.

    Ground 7

    The IAA erred in its assessment at [CB 143,7], as it failed to consider that “the assessment of the claims that the applicant made in an application for protection whilst in Nauru may be relevant when assessing his claims for protection in Australia…”

    Particulars

    1. The IAA states at [CB 143,7] “The IAA is required to assess whether the applicant meets the criterion for a protection visa under s36(2)(a) of the Act and the definition of a refugee under s5H(1) of the Act”.

    2. The applicant was interviewed (Bio Data) by an officer of the First Respondent’s department on 10/09/2012 [CB 1].

    3. The applicant claimed he was interviewed (Early Interview) on Christmas Island by officer of the First Respondent’s department on 26/09/2012 [CB 60,2].

    4. The applicant was transferred to Nauru in Oct 2012 [CB 60,3] and remained there until April 2014 [CB 67].

    5. The applicant lodged a valid application for a Safe Haven Enterprise visa (SHEV) on 12 September 2016 [CB 85] after he was transferred back to Australia from Nauru.

    6. As the applicant was interviewed in Australia twice (Bio Data interview and Entry Interview) prior to being transferred to Nauru and because the applicant’s responses during the interviews conducted in Australia prior to being transferred to Nauru formed part of the applicant’s application for a SHEV, the assessment of claims that the applicant made in an application for protection whilst in Nauru was relevant for the purpose of assessing his claims for protection in Australia.

  2. The Court granted leave to the applicant to rely upon the amended application filed on 10 March 2018 and two further applications were made to amend that application. One was to add a new ground 8 which the Court refused for reasons given by the Court, which was in substance that the applicant had already had an opportunity to amend, being an indulgence granted by the Court, and at that point of time the applicant was aware of the relevant case on which the new proposed ground 8 was to be formulated and was well aware that there was material that would be provided referable to the new proposed ground 8. The Court does not accept that the applicant had not had a proper and adequate opportunity to formulate any further ground and that, if an amendment was to be raised, it should have been raised at the outset when the Court was first considering the amendment application in respect of the application dated 10 March 2018.

  1. Further, the Court was of the view that further proposed amendments had no real prospect of success. A second amendment, which was permitted, was to add a further particular to ground 1. The Court directed that the further amended application reflecting the leave granted in respect of the further particular for ground 1, adding a particular tenuous to be filed by 23 March 2018. Mr Tambimuttu for the applicant confirmed that grounds 2, 5 and 6 were not pressed.

Ground 1

  1. Mr Tambimuttu at the commencement of the hearing called upon the subpoena, seeking documents the subject of the assessment of the applicant for assistance under the Primary Application and Information Service (“PAIS”) eligibility assessment guidelines. Those assessment guidelines are for the purpose of providing accelerated legal assistance for applicants seeking protection in certain circumstances.

  2. The question of whether there had been an assessment of the application under the PAIS guidelines was crystal clear from the letter dated 17 August 2016, which appears on page 15 of the Court book. The subpoena sought the production of the guidelines which were admitted into evidence. The subpoena also sought a category of material in category 4, described as “primary documents/documents received or produced by the first respondent upon which a decision to grant the applicant PAIS eligibility was based”. Documents were produced in response to that request, which the first respondent had been able to identify. Those documents were admitted into evidence and marked exhibit C, subject to relevance. Those documents identified that the applicant had been the subject of torture and trauma treatment 24 months prior to 15 August 2016, as well as the case plan information provided, in which the applicant disclosed the history of torture and trauma and in the past accessed specialist services while in detention.

  3. The first respondent informed the Court that the assessor was no longer in the first respondent’s employment and that it is possible that there are other documents considering the torture and trauma treatment 24 months ago in the email dated 15 August 2016. This was the basis upon which Mr Tambimuttu argued there must be other documents and a further order should be made requiring the first respondent to produce all of the records falling within ground 4. The Court declined to make such an order and identified that the applicant had the material in exhibit C and it was admitted subject to relevance. The information that referred to a history of torture and trauma and having been provided insofar as the applicant’s grounds sought to develop a relevant error in ground 1 by reason of the alleged breach of s 473CB of the Act by the Authority, it is difficult to see how any of the information as to the history of torture and trauma was relevant or material.

  4. Mr Tambimuttu argued that there may be other records in relation to the torture and trauma treatment that may further advance the applicant’s assertion of a breach of s 473CB of the Act and that may have been relevant to the assessment of the applicant’s claims. The Court was not satisfied that any further documents, even if they did identify torture and trauma treatment, would further or advance the issue raised by ground 1. The Court was not satisfied that any such further documents were necessary to develop the argument contended by the applicant in relation to ground 1, nor that any such further documents are relevant in the circumstances of being probative of a relevant fact in issue given the information was produced the subject of exhibit C.

  5. Mr Tambimuttu then sought a three day adjournment for the purpose of preparing a further amended application. That adjournment request was declined. The applicant was given an hour and a half to prepare any amendment to ground 1. At the end of that adjournment Mr Tambimuttu announced that his principal had instructed him to seek the three day adjournment and that he had not performed the task that the Court had directed him to do. Mr Tambimuttu was told that he would not be receiving a further adjournment and indicated that he could draft the further particular within five minutes but also sought to raise the new ground that which the Court refused as referred to above.

  6. After approximately five minutes Mr Tambimuttu produced the further particular to the ground which was identified as particular 10 to ground 1 which was identified as exhibit D. The Court is satisfied that the applicant’s representative has had ample opportunity to properly identify and formulate the alleged jurisdictional errors in relation to the PAIS eligibility assessment. It may be said that it was obvious, as identified earlier, from the letter dated 17 August 2016 that the applicant was a beneficiary of the PAIS eligibility assessment. It would also have been obvious to the applicant’s lawyers that there would have been documents including the guidelines in existence relating to that assessment. This is not a case where it was advanced on behalf of the applicant before the delegate or before the Authority that the PAIS eligibility and assessment was in anyway relevant to the applicant’s claims.

  7. Mr Tambimuttu argued that the reference to torture and trauma and the history of the same by the applicant was relevant in that he could assist the applicant to identify claims that should have been considered either by the delegate and/or by the Authority, as well as potentially corroborating the claims advanced by the applicant. This Court has earlier heard a similar argument in respect of another case by Mr Tambimuttu which the Court rejected. The PAIS eligibility assessment guidelines exist for the purpose of assisting an expeditious protection visa application. Unless the particular applicant for protection visa raises an issue in respect of the PAIS assessment, the PAIS eligibility assessment guidelines are not relevant to the applicant’s claims.

  8. The documents that were admitted and marked exhibit C were documents admitted subject to relevance. The documents advanced in relation to PAIS guidelines in the present case were not identified by the applicant before the delegate or before the Authority as being relevant to the applicant’s claims. In those circumstances, the documents in exhibit C were not relevant, and the tender of those documents is rejected. The PAIS documents were not documents that were suggested to the Authority were relevant to the applicant’s claims or the conduct of the review.

  9. S 473CB(1)(c) of the Act relevantly provides as follows:

    (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA … (c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review.

  10. Mr Tambimuttu argued that the reference to the history of torture and trauma was relevant to the applicant’s claims and accordingly that there had been a breach of s 473CB of the Act giving rise to a jurisdictional error or alternatively that the failure by the Secretary to provide the relevant material to the Authority had disabled the Authority from being able to conduct the review required under Part 7AA of the Act. I do not accept that the guidelines or the documents that were the subject of exhibit C that was admitted subject to relevance were either relevant, credible and significant documents in respect of the applicant’s claims. In fact, the applicant advanced no claim of torture in the present case to the delegate or to the Authority.

  11. Neither the guidelines in the additional guideline or the documents the subject of exhibit C that have been rejected identify any breach of s 473CB(1)(c) of the Act by the Secretary. The Court does not accept that the documents in exhibit B, being the guidelines and additional guideline, or the documents that the Court admitted into evidence marked exhibit C subject to relevance and which has been rejected were relevant, credible, and significant to the applicant’s claims.

  12. In the present case the Authority was not disabled from conducting the review required under Part 7AA of the Act. Further, the Court is of the view that even if a different view was taken as to whether or not the PAIS guidelines and material are ones that should have been found by the Secretary to be relevant, that is an error within jurisdiction and not a jurisdictional error. No jurisdictional error as alleged in ground 1 is made out.

Ground 3

  1. In relation to ground 3, Mr Tambimuttu sought to argue by reference to the submissions advanced before the delegate and before the Authority that there was a claim that the applicant had attempted departure from Sri Lanka on two occasions. The applicant’s statement does not support any such fact and it was open to the Authority to find that the applicant had only attempted illegal departure on one occasion. There is no factual basis to support the submission of a second attempted departure that was unsuccessful. The applicant’s statement supports the second attempt being successful.

  2. There was no integer of the applicant’s claims that the Authority had failed to address. The Authority does not need to refer to the whole of the submissions and the whole of the evidence. It is apparent by a fair reading of the Authority’s reasons that the Authority had real and genuine consideration to the submissions advanced on behalf of the applicant to the Authority. The Authority accurately identified the applicant’s claims in relation to the attempted departure in July 2012 and that he was caught by the police and paid a bribe and was released. The Authority identified that the applicant then left in August 2012 successfully illegally.

  3. The Authority expressly took into account the previous attempt by the applicant to depart Sri Lanka in determining whether the applicant faced a real chance of serious harm on the basis of any combination of the applicant’s circumstances. There was no failure by the Authority in the circumstances of the present case to consider an essential integer of the applicant’s claims. Ground 3 makes a false assumption that there was such a claim in fact advanced by the applicant. The applicant’s submissions did not identify any factual foundation for the assertion of two unsuccessful attempts, and it was open to the Authority to find, as the Authority did, that there was only one unsuccessful attempt in July 2012. No jurisdictional error is made out by ground 3.

  4. Mr Tambimuttu also took the Court to paragraph 40 of the Authority’s reasons, erroneously referred to as paragraph 39 in the grounds, where the Authority said:

    I am satisfied the applicant did not depart Sri Lanka whilst on bail. I am therefore satisfied the applicant would not be at risk on return on the basis of any adverse security or criminal profile, and I find there is not a real chance that he would be subject to harm because he was a returning asylum seeker.

  5. Mr Tambimuttu argued that this fails to consider the second alleged attempt to depart Sri Lanka rather than just one attempt. For the reasons already given there is a false assumption in that submission that there was a second unsuccessful attempt. For the reasons given, I find there was no such claim advanced by the applicant on the evidence before the Authority and the Authority was not required to accept or further refer to the submission suggesting that there was more than one attempt.

Ground 4

  1. In relation to ground 4, Mr Tambimuttu argued that the Authority had conflated the test under s 473DC(1)(b) of the Act with a need to be satisfied that there are exceptional circumstances to justify considering new information under s 473DD of the Act and that the Authority accordingly erred in the exercise of its power under s 473DC(3) of the Act. In this regard Mr Tambimuttu took the Court to the Authority’s reasons in paragraph 7, which was concerned with the submission advanced to obtain the information in relation to the protection claim made whilst in Nauru.

  2. It is apparent on a fair reading of the Authority’s reasons that the Authority understood that the Authority was being invited to consider whether information should be obtained by the Authority under s 473CD of the Act and that the invitation to obtain or to get information was made by the applicant’s representative. In those circumstances, before the Authority could consider the information, the requirements of s 473DD of the Act would have to be met. Accordingly, it was relevant for the Authority to take into account whether or not the Authority thought there were exceptional circumstances in determining whether to get the new information.

  3. There is no conflation or misunderstanding of the statutory provisions on the face of the Authority’s reasons. It is apparent that the Authority understood the nature of the submission. The Authority gave the submissions genuine and meaningful consideration and made a decision that was open to the Authority which cannot be said to be legally unreasonable in relation to the exercise of their power under s 473DC(3) of the Act. No jurisdictional error as alleged in ground 4 is made out.

Ground 7

  1. In relation to ground 7, Mr Tambimuttu argued that the Authority failed to consider that the assessment of the claims that the applicant made in the application for protection whilst in Nauru may be relevant when assessing the applicant’s claims for protection in Australia. It is apparent from the Authority’s reasons and in particular paragraph 7 that the Authority understood the submission being advanced and that the application for protection in Nauru may be relevant when assessing the applicant’s claims for protection at the present time. The Authority, however, identified the criteria applicable under the Australian legislation in s 36(2)(a) of the Act and section 5H(1) of the Act. Those provisions were annexed and form part of the Authority’s reasons under the heading Applicable Law.

  2. There is no substance in the proposition that the Authority failed to take into account the submission that was advanced in a context of seeking to invite the Authority to exercise the power of s 473DC(3) of the Act. The Authority, for the reasons already given, did not engage in a legally unreasonable exercise of power under s 473DC(3) of the Act. Further, it is apparent that the Authority took into account where the applicant was taken to detention and it is referred to in several places throughout the Authority’s reasons including, relevantly, paragraph 7 and paragraph 39.

  3. In paragraph 39 the Authority referred to accepting as plausible the authorities in Sri Lanka are aware of the fact that the applicant claimed asylum in Nauru. The Authority, however, found the applicant was not of any interest to the Sri Lankan authorities for any of the reasons claimed or on the evidence before the Authority and was not satisfied the applicant’s status as a failed asylum seeker in both Nauru and Australia would bring him to adverse attention upon return to Sri Lanka.

  4. Accordingly, there was no failure by the Authority to take into consideration that there may be documents relevant to the assessment of the applicant’s claims in his application for protection in Nauru. It was open to the Authority to decline to exercise its power under s 473DC(3) of the Act to obtain those documents.

  5. The Authority made reference to the submissions and its reasons reflect giving a real and meaningful consideration to the applicant’s reasons. Mr Tambimuttu also made reference to paragraph 14 of the submissions to the Authority which was headed Particular Social Group (PSG). That submission referred to the applicant having claimed protection in two states, Nauru and Australia, should he be returned to Sri Lanka, and that he would be returning as a failed asylum seeker who claimed asylum in two states/countries. It was submitted that this could be perceived as a persistence to attract adverse attention despite the horrific conditions and limited resources and difficulties the applicant faced in Nauru as he did not choose to return to Sri Lanka at that point.

  6. Mr Tambimuttu submitted the fact the applicant was willing to endure such hardship and the trying conditions in Nauru would be perceived as a reason to attract adverse attention thereby exposing the applicant to serious harm. Mr Tambimuttu submitted that the Authority had failed to consider the applicant as being a member of a particular social group who had claimed asylum in two different countries. It is apparent on the face of the Authority’s reasons that the applicant was being held in detention in Nauru after having arrived illegally in Australia as an unauthorised maritime arrival on 6 September 2012. Accordingly, I reject these submission.

  7. In paragraph 6 of the Authority’s reasons, the Authority considered what were found to be new claims including a claim concerning the protection of confidential information in Nauru. The Authority was not satisfied there were exceptional circumstances to justify considering that new information. The Authority’s reasons in that regard do not identify any basis upon which the Court should infer that the Authority failed to have regard to both limbs of s 473DD of the Act or that the Authority adopted an erroneously narrow meaning of “exceptional circumstances”.

  8. I accept the first respondent’s submission that otherwise ground 7 appears to be inviting the Court to conduct an assessment of relevance or potential relevance of information concerning protection claims and that it is beyond this Court’s jurisdiction to engage in such a merits review. No jurisdictional error as mentioned in ground 7 is made out.

  9. The further amended application is accordingly dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  23 April 2018

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EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
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