ERT17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1084
•24 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERT17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1084
File number: MLG 2267 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 24 October 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – where the applicant asserts that the Minister’s delegate did not refuse to grant her a protection visa – whether the delegate made a decision in fact refusing to grant a protection visa – whether the Authority had jurisdiction to conduct the review or to deny the applicant a protection visa – whether the Authority ought to have exercised its statutory powers to seek clarification from the delegate about the intended decision – whether the Authority acted unreasonably in the assessment of the applicant’s claims for protection – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 5AA, 5H, 36, 473BB, 473CA, 473CC, 473DC, 473DE, 473EA, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; [1979] FCA 21
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of hearing: 17 July 2024 Place: Melbourne Counsel for the Applicant: Mr C Lees Solicitor for the Applicant: Elderwood Lawyers Counsel for the First Respondent: Mr C McDermott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
MLG 2267 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
24 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a Sri Lankan Tamil who applied for a protection visa in Australia. A delegate of the Minister made a decision in respect of that protection visa application on 16 February 2017. There is a live issue in this application as to whether or not the delegate’s decision should be construed as a visa refusal. The decision was treated as a visa refusal by the Minister’s Department and referred to the Immigration Assessment Authority (Authority) for review. The Authority affirmed the delegate’s decision, which it interpreted as a decision to refuse to grant the applicant a protection visa. The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).[1]
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Immigration Assessment Authority are to the Authority as it existed at the time the applicant’s matter was before it for review.
The applicant asserts that the Authority decision is affected by jurisdictional error because:
(a)the Authority lacked jurisdiction to review the delegate’s decision;
(b)the Authority lacked jurisdiction to deny the applicant a protection visa;
(c)the Authority acted unreasonably by not seeking clarification from the delegate as to the intended decision of the delegate;
(d)the Authority acted unreasonably in upholding the decision of the delegate without acknowledging the obvious inconsistencies in the delegate’s written reasons; and
(e)the Authority acted unreasonably by:
(i)failing to adequately consider the applicant’s claim that the fact she was raped by members of the Sri Lankan navy gave rise to a well-founded fear of persecution if she returned to Sri Lanka; and
(ii)finding that the applicant would not have a well-founded fear of persecution in other parts of Sri Lanka, outside of her home area.
For the reasons explained below, the applicant has not established that the Authority decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant entered Australia by sea in November 2012 and is an unauthorised maritime arrival within the meaning in s 5AA of the Migration Act.
The applicant applied for a protection visa on 2 May 2016 and she attended an interview with an officer of the Minister’s Department on 11 January 2017 to discuss her claims for protection.
On 16 February 2017 a delegate of the Minister made a decision in respect of the applicant’s protection visa application. The details of that decision are relevant to grounds 1-4 and are discussed below. The applicant was notified by the Minister’s Department that a decision had been made to refuse to grant her a protection visa. The matter was then referred to the Authority for review under s 473CA of the Migration Act.
On 28 September 2017 the Authority affirmed the decision not to grant the applicant a protection visa. It is not necessary for the purposes of this judgment to provide a detailed summary of the Authority’s decision. Those parts that are relevant to the consideration of ground 5 are discussed in the consideration of that ground below.
JUDICIAL REVIEW APPLICATION
The applicant filed her judicial review application on 20 October 2017. The application was made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The grounds relied on by the applicant are set out in a further amended application filed on 18 June 2024. Those grounds are:
1.The Immigration Assessment Authority lacked jurisdiction to review the decision of the delegate of the Minister.
2. The Immigration Assessment Authority lacked jurisdiction to deny the Applicant a protection visa.
3. The IAA acted unreasonably by not seeking clarification from the Delegate as to the intended decision of the Delegate.
4. The IAA acted unreasonably in upholding the decision of the Delegate without acknowledging the obvious inconsistencies in the Delegate’s written reasons.
5. The Second Respondent acted unreasonably by:
a.failing to adequately consider the Applicant’s claim that the fact she was raped by members of the Sri Lankan navy gives rise to a well-founded fear of persecution if she were to be returned to Sri Lanka; and
b. finding that the Applicant would not have a well-founded fear of persecution in other parts of Sri Lanka, other than Manner province.
The evidence before the Court comprises the court book filed by the Minister on 24 July 2018.
GROUNDS 1-4
Grounds 1-4 all require some analysis and interpretation of the delegate’s decision and, in particular, whether it amounts in fact to a refusal to grant the applicant a protection visa.
Does the delegate’s decision amount to a decision to refuse to grant the applicant a protection visa?
There are significant inconsistencies and deficiencies in the delegate’s decision. The delegate’s decision is not, however, subject to judicial review. It is a primary decision within the meaning of s 476(4)(c) of the Migration Act and the Court has no jurisdiction to review primary decisions: s 476(2)(a) of the Migration Act. The Court’s consideration of the delegate’s decision in this matter is limited to determining whether the decision, as a matter of fact, amounts to a decision to refuse to grant the applicant a protection visa. This is directly relevant to the Authority’s jurisdiction.
The Department sent to the applicant a letter dated 16 February 2017 notifying her that her application for a protection visa had been refused. The notification was accompanied by a ‘Protection Visa Decision Record’, which purports to set out the delegate’s reasons for decision. The decision record contains five main parts:
(a)Part 1: Assessment details
(b)Part 2: Identity
(c)Part 3: Protection claims
(d)Part 4: Findings of fact
(e)Part 5: Australia’s protection obligations – s 36(2)(a) and s 36(2)(aa) of the Migration Act.
Under ‘Part 1: Assessment details’, a box is checked to indicate that the applicant is refused a protection visa because ‘the applicant does not satisfy the criteria for the grant of Protection visa under s. 36(2)(a) and s. 36(2)(aa) of the Migration Act 1958’.
Under Part 4, the delegate accepted that several of the applicant’s claims of past harm were plausible. Relevant to the submissions of the parties in the present case, the delegate at the end of this section listed in dot point form a number of claims that the delegate accepted to be ‘plausible’, including that:
· The Army has started to question the Applicant’s children about her, and if they find out the Applicant is still alive, they will harm her children as well.
· The Applicant cannot rely on the protection of the Sri Lankan state and cannot safely relocate anywhere else in Sri Lanka.
Part 5 of the decision record contains three main sub-parts, which respectively correspond to the delegate’s assessment of whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, whether she met the complementary protection criterion in s 36(2)(aa) of the Migration Act and an overall conclusion in relation to whether the applicant engages Australia’s protection obligations.
In assessing whether the applicant met the refugee criterion, the delegate assessed under separate subheadings whether the applicant would face a real chance of serious harm on account of her personal profile in Sri Lanka, her profile as an imputed close relative of a Liberation Tigers of Tamil Eelam (LTTE) cadre in Sri Lanka, as a single woman in Sri Lanka and as a failed asylum seeker. At the conclusion of each of these sections, the delegate expressed a conclusion that the applicant did not face a real chance of serious harm for the reason under consideration.
The delegate also included a subheading addressing the post-war situation in Sri Lanka and the applicant’s options for resettlement. One of the findings made in this section is inconsistent with the one of the matters referred to in Part 4 as ‘plausible’ (see above), with the delegate finding:
I assess that the Applicant could relocate to Colombo if she is fearful of returning to live in Mannar, and she has demonstrated the capacity to do this previously.
At the end of the consideration of whether the applicant met the refugee criterion, the delegate said:
Finding on refugee criterion – s.36(2)(a) of the Act
I am satisfied that [the applicant] is a refugee as defined by s. 5H(1) of the Act. Therefore, I am also not satisfied [the applicant] is a person is respect of whom Australia has protection obligations as outlined in s. 36(2)(a) of the Act
As I am satisfied [the applicant] is a refugee, as defined by s. 5H(1) of the Act, an assessment in relation to s. 5H(2) of the Act has not been made.
The delegate then proceeded to consider whether the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act. After observing that the applicant did not raise specific complementary protection claims separate to her refugee claims, the delegate said:
Finding on complementary protection criterion
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there is a real risk [the applicant] will suffer significant harm as outlined by s. 36(2)(aa) of the Act. Therefore, [the applicant] is not a person in respect of whom Australia has protection obligations as outlined in s. 36(2)(aa) of the Act.
Under the subheading ‘Findings on Australia’s protection obligations’, the delegate said:
I am satisfied that [the applicant] is a refugee as defined by s. 5H(1) of the Act. Therefore, I am also not satisfied [the applicant] is a person in respect of whom Australia has protection obligations as outlined in s. 36(2)(a) of the Act.
As I am satisfied [the applicant] is a refugee, as defined by s5H(1) of the Act, an assessment in relation to s. 5H(2) was not made.
I am satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there is a real risk [the applicant] will suffer significant harm as defined in s. 36(2A) of the Act.
Therefore, [the applicant] is a person in respect of whom Australia has protection obligations as outlined in s. 36(2)(aa) of the Act.
The applicant submitted that either the delegate granted the applicant a protection visa or the delegate did not make any discernible decision in this matter, and it is not the role of the Court to determine what the delegate intended to decide. Rather, the onus should sit upon the Minister, or their delegate, to ensure that any decision to refuse to grant a protection visa is clear and unambiguous. This submission was based on the applicant’s identification of seven positive statements in the delegate’s decision record that the applicant was owed protection by Australia.
The Minister submitted that the ‘seven positive statements’ relied on by the applicant do not support the major premise of the applicant’s argument, namely, that the delegate decided to grant the applicant a protection visa or otherwise made no discernible decision. That is because the seven positive statements reduce to no more than the delegate’s reference to the plausibility of the applicant’s claims and errors in expression in the delegate’s reasons, in particular, the omission of the word ‘not’ in several sentences. The Minister submitted that the delegate considered the applicant’s claims to be ‘plausible’ in the sense that they are reasonable or believable in the circumstances, but did not accept that the plausibility of the applicant’s claims meant that the applicant was at risk of the requisite harm. The Minister submitted that the applicant’s reliance on the missing ‘nots’ conflates the delegate’s state of satisfaction with respect to the applicant’s status with mere infelicitous errors in the delegate’s written expression as to purported findings of fact in reaching that state of satisfaction. The Minister submitted that the applicant’s interpretation is artificial, impractical and ignores the totality of the decision record which points to the contrary conclusion. The Minister submitted that on a proper examination of the decision record overall, the Court could not seriously entertain a conclusion that the delegate came to a different state of satisfaction to that which it actually came to, or came to no state of satisfaction at all, in relation to the applicant’s status for the purposes of s 36(2) of the Migration Act.
When the delegate’s decision record is read fairly and as a whole, I am satisfied that the delegate made a decision in fact to refuse to grant the applicant a protection visa. In reaching this finding, I acknowledge that the delegate made several statements in the decision record that might, of themselves, cause the applicant to believe that the delegate considered she met the requirements for the grant of a protection visa. However, it is not appropriate to consider these statements outside of the context of the decision record as a whole.
In relation to the two matters that the delegate considered, in Part 4 of the decision record, to be ‘plausible’, this acceptance of plausibility does not, of itself, amount to a finding that the applicant met the criteria for the grant of a protection visa. The acceptance that it was plausible that the applicant could not rely on the protection of the Sri Lankan state and cannot safely relocate is directly contradicted by the delegate’s subsequent finding that the applicant could relocate to Colombo, as she had done previously, if she wished. The assertion that the Sri Lankan Army has started to question the applicant’s children and will harm them if the authorities find out the applicant is still alive does not appear to have been subsequently considered by the delegate in the assessment of whether the applicant met the criteria in s 36(2) of the Migration Act. The failure to consider whether the applicant met the criteria in s 36(2) on the basis of a claim the delegate accepted to be plausible might be relevant to any assessment of the validity of the delegate’s decision (which is beyond the scope of the review of the Court), but it does not mean that a decision to refuse to grant the applicant a protection visa was not, in fact, made.
In relation to the contradictory statements in the delegate’s conclusions in relation to the criteria in s 36(2)(a) and (2)(aa) of the Migration Act, I make the following observations:
(a)Each of the statements that suggested the applicant met the criteria for the grant of the visa was directly contradicted by another statement to the effect that the applicant did not meet the criteria for the grant of a protection visa. Therefore, the existence of these statements alone does not indicate that the delegate’s decision was to grant the applicant a protection visa.
(b)When the decision record is read as a whole, it is apparent that the word ‘not’ has been omitted from several sentences. There are two main features of the delegate’s decision record that cause me to believe that this is an error of expression, rather than a decision to grant the applicant a protection visa or a contradictory or inconsistent statement that results in there being no discernible decision. The first is that the delegate considered in Part 5 of the decision record the reasons the applicant claimed protection and ended the consideration of each of the claims considered with a finding that the applicant would not face a real chance of serious harm for the reason claimed. This is a clear indication that the delegate was not satisfied that the applicant met the criteria for the grant of the visa. The second reason relates to the matters that the delegate did not address. The delegate made no assessment of the matters in s 5H(2) of the Migration Act. It would only have been necessary to consider the matters in s 5H(2) if the delegate was satisfied that the applicant was a refugee as defined in s 5H(1). Likewise, the delegate made no assessment of the matters in s 36(2C) of the Migration Act. Such an assessment would only have been necessary if the delegate was satisfied that the applicant otherwise met the requirements of s 36(2)(aa) of the Migration Act. The delegate’s determination that it was not necessary to consider s 5H(2) and s 36(2C) of the Migration Act is consistent with a decision that the applicant did not meet the definition of refugee in s 5H(1) and did not meet the requirements of s 36(2)(aa) of the Migration Act.
It is therefore sufficiently clear from the delegate’s decision record as a whole that the delegate’s decision was to refuse to grant the applicant a protection visa.
There are two further matters that should be mentioned briefly before I turn to the applicant’s grounds.
First, Counsel for the applicant submitted at the hearing that an inference should be drawn that the delegate did not intend to deny the applicant a protection visa, because the Minister could have filed affidavit evidence from the delegate as to whether the delegate intended to refuse to grant the applicant a protection visa. I draw no adverse inference against the Minister for not calling the delegate to give evidence. The Court is concerned to ascertain the decision that the delegate actually made, rather than the decision the delegate intended to make. The decision actually made is properly ascertained in this case from the delegate’s decision record. Any further evidence of the delegate would be unlikely to assist the Court.
Second, Counsel for the applicant submitted that no inference could be drawn from the notification letter informing the applicant that her protection visa application had been refused, as the letter was not signed and the notification letter might simply represent another Department officer’s interpretation of the delegate’s decision. The Minister noted that the officer number on the notification letter matched the officer identification number on the delegate’s decision. While the notification letter supports a conclusion that the decision was to refuse to grant the applicant a protection visa, I have not considered it necessary to rely on this in finding that the delegate refused to grant the applicant a protection visa. Despite the inconsistent statements in the decision record, when the decision record itself was read fairly and as a whole, it was sufficiently clear that the delegate’s decision was to refuse to grant the applicant a protection visa.
Ground 1: Did the Authority have jurisdiction to review the delegate’s decision?
The applicant’s first ground is based on a factual premise that the delegate did not refuse to grant the applicant a protection visa.
The Authority is to review a ‘fast track reviewable decision’ which is defined in s 473BB of the Migration Act to mean, relevantly for the purposes of the present application, ‘a fast track decision in relation to a fast track review applicant’. The term ‘fast track decision’ is defined in s 5(1) of the Migration Act as (emphasis added):
a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:
(a)because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or
(b)relying on:
(i)subsection 5H(2); or
(ii)subsection 36(1B) or (1C); or
(iii)paragraph 36(2C)(a) or (b).
Therefore, on the applicant’s case, if the delegate’s decision was not a decision to refuse to grant the applicant a protection visa, the Authority did not have jurisdiction to review the delegate’s decision, as it was not a ‘fast track decision’ and therefore not a ‘fast track reviewable decision’.
The applicant sought to distinguish the present case from Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Plaintiff M174) on the basis that in that case, the High Court was dealing with whether the delegate’s failure to adhere to a process of procedural fairness meant that the Authority did not have the power to review the decision, with Court finding that even though the decision of the Minister was made outside the statutory powers, it was reviewable by the Authority, even though it was not legally enforceable. The applicant submitted that in the present case the issue is not whether the delegate’s decision is legally enforceable, but rather whether any decision was reached at all, or whether the decision was intended to grant the applicant a protection visa.
Given that I have found that the delegate made a decision in fact to refuse to grant the applicant a protection visa, ground 1 cannot succeed. As the Minister submitted, once there is a decision in fact to refuse to grant the applicant a protection visa, irrespective of whether the decision is valid at law, the Authority had jurisdiction to conduct the review: Plaintiff M174 at [52]; DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12 at [14]. This is the direct consequence of the principle in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; [1979] FCA 21, which was applied in the context of the Authority in Plaintiff M174. In Plaintiff M174, Gageler, Keane and Nettle JJ said at [39] and [52] (footnotes omitted):
39.Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd has been aptly described as a “landmark decision” in the early history of the Administrative Appeals Tribunal. The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a “decision” in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than “a decision in fact made, regardless of whether or not it is a legally effective decision”. The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal “to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task”: “[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review” and “technicality would be introduced at the outset”. In the context of the Administrative Appeals Tribunal, that construction has not since been doubted.
…
52.The limitations on the form of review for which Pt 7AA provides are in the end insufficient to warrant departure from the Brian Lawlor construction. Applying that construction, a fast track reviewable decision triggering the operation of the Part and forming the subject of the Authority's review is a decision made in fact to refuse to grant a protection visa to a fast track applicant, regardless of whether or not that decision is legally effective.
The delegate’s decision was a ‘fast track decision’ within the meaning of s 5(1) of the Migration Act and a ‘fast track reviewable decision’ within the meaning of s 473BB of the Migration Act. The Authority was required by s 473CC(1) of the Migration Act to review the fast track reviewable decision referred to it under s 473CA.
Ground 1 is not established.
Ground 2: Did the Authority have jurisdiction to deny the applicant a protection visa?
The applicant’s second ground is based on s 473CC(2) of the Migration Act, which relevantly provides that the Authority may either affirm the fast track reviewable decision, or remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation. The applicant submitted that, as no discernible decision was made by the delegate, it was not open to the Authority to affirm the delegate’s decision, or to deny the applicant a protection visa. The applicant submitted that the proper course for the Authority to take was to remit the matter back to the Minister, and this could have ensured that the decision of the Minister was clear and unambiguous.
Again, as I have found that the delegate made a decision in fact to refuse to grant the applicant a protection visa, it follows that it was open on de novo merits review for the Authority to affirm that decision.
Ground 2 is not established.
Ground 3: Did the Authority act unreasonably in not seeking clarification from the delegate in relation to the decision?
There are essentially two parts to the applicant’s submissions in relation to ground 3. The first is that the applicant asserts that the Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act to get new information, namely, clarification from the delegate in relation to the intended decision.
Section 473DC confers on the Authority a discretion to get new information that was not before the Minister when the Minister (or his delegate) made the decision under s 65 of the Migration Act and which the Authority considers may be relevant. The discretion must be exercised reasonably: Plaintiff M174 at [21], [86]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [3], [61], [80]. The applicant submitted that it was unreasonable for the Authority not to exercise its discretion in s 473DC to seek clarification from the delegate as to the intended decision in circumstances where there were seven positive statements in the decision record indicating that the applicant was owed protection, and because the decision was unclear and the Authority may only uphold or remit the delegate’s decision.
The second part of the ground is premised on the Authority having exercised its discretion to get new information from the delegate. The applicant submitted that if the Authority got new information from the delegate, the Authority would have been obliged to invite the applicant to comment on the information pursuant to s 473DE of the Migration Act, which provides:
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i)has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i)in writing; or
(ii)at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non‑disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
The applicant submitted that allowing her to respond to any assertion that the delegate had not intended to grant her a protection visa would have enabled her to put information and submissions to the Authority in response. The applicant submitted that she was entitled to believe, based upon the decision of the delegate, that her visa was refused despite the delegate finding that she had a well-founded fear of persecution in all parts of Sri Lanka. Had she been properly on notice that the Authority believed the delegate intended to overrule positive findings in the applicant’s favour, she could (and was legally entitled to) have provided further information and submissions supporting her asserted facts.
The Minister submitted that the applicant’s submissions are premised on the apparent and critical ambiguity as to the decision of the delegate and misconceive the available powers of the Authority on review. The Authority was required to conduct the review de novo and there was no requirement on the Authority to exercise any available powers under Part 7AA to clarify the import of the delegate’s decision.
Again, the resolution of this ground largely turns on the finding I have made above that the delegate in fact made a decision to refuse to grant the applicant a protection visa. As explained by the High Court in Plaintiff M174 at [17], the Authority is to conduct the review de novo, and consider for itself the merits of the application that has been referred to it. It is not concerned with the correction of any legal error in the delegate’s decision.
Given that the Authority was required to conduct a review de novo of the delegate’s decision, which was appropriately understood as a decision to refuse to grant the applicant a protection visa, it was not unreasonable for the Authority not to exercise is discretion in s 473DC of the Migration Act to seek clarification from the delegate as to whether the delegate’s intention was to grant or to refuse to grant the applicant a protection visa. The Authority was able to (and was required to) form its own view of the materials before it.
In circumstances where the Authority did not get new information, s 473DE of the Migration Act has no application and it is unnecessary to consider that provision further. To the extent that it is relevant to any submission on materiality, that issue does not arise where I have found that the Authority did not act unreasonably in not exercising its discretion in s 473DC of the Migration Act to get new information about the delegate’s decision or intended decision.
Ground 3 is not established.
Ground 4: Did the Authority act unreasonably in affirming the delegate’s decision without acknowledging the deficiencies in the decision?
The applicant submitted that in the light of the clear and obvious inconsistencies in the delegate’s decision, it was not reasonable for the Authority to say it was upholding the delegate’s decision without acknowledging the inconsistencies in the delegate’s decision and providing written reasons as to why the Authority believed the delegate’s decision was to reject the applicant’s protection visa application. The applicant submitted that the decision whether to grant a protection visa is a serious decision and addressing the ambiguity in the delegate’s decision would ensure that:
(a)the Authority did not make an incorrect decision, based upon a misunderstanding of the delegate’s decision;
(b)the Authority did not make a decision that it was not legally permitted to make; and
(c)if the Authority does make a decision which it is not legally permitted to make pursuant to s 473CC of the Migration Act, that illegal decision is obvious and can therefore be remedied.
Again, this ground is largely resolved by my finding that the delegate made a decision in fact to refuse to grant the applicant a protection visa. As explained above, in conducting the review de novo, the Authority was not concerned with the correction of error in the delegate’s decision, but was rather required to consider for itself whether the applicant met the requirements for the grant of a protection visa. It is clear from the decision made by the Authority, and the Authority’s description at [2] of its reasons that a delegate of the Minister refused to grant the visa, that the Authority understood the delegate to have made a decision refusing to grant the applicant a protection visa.
The Authority was required, pursuant to s 473EA(1) of the Migration Act, to make a written statement that set out the decision of the Authority on the review, set out the reasons for the decision and recorded the day and time the statement was made. It was not required to identify or address any deficiencies in the decision record of the delegate and it was not unreasonable for the Authority not to address any of the inconsistencies or other deficiencies in the delegate’s decision in its reasons in this case.
Ground 4 is not established.
GROUND 5
By ground 5, the applicant asserts that the Authority acted unreasonably by failing to consider her claim that the fact she was raped by members of the Sri Lankan navy gave rise to a well-founded fear of persecution if she were to be returned to Sri Lanka and erred by finding that she would not have a well-founded fear of persecution in parts of Sri Lanka outside of Mannar.
The Authority accepted at [21] of its reasons the applicant’s claim to have been sexually assaulted and burnt with cigarette butts at her family home in Mannar in 2009 by a number of men that she believes to have come from the army or navy training camp. The Authority accepted that the assault happened as the applicant described and considered it plausible that the attackers were men from the nearby camp. The Authority was not satisfied that the applicant was specifically targeted by the officers due to her connection with her husband.
The Authority proceeded to consider the risk of future harm to the applicant arising from this incident and made findings at [22] and [24] of its reasons that the applicant identified as being relevant to the resolution of this ground. In these paragraphs, the Authority said:
22.As part of her statement to the IAA dated 15 March 2017, the applicant indicated that from 2009 up until the time of her departure from Sri Lanka she had moved around and lived in different locations with the assistance of her father who transported her. She claimed that she had maintained a low profile by not going outside and by not registering at the places she was staying. She stated it was only down to luck that she managed to avoid coming to the attention of the authorities during this period. I accept that the applicant continued to draw on support and assistance from family members residing outside of Mannar and was able to do so for an extended period of time. However, I do not accept it is plausible that the applicant remained indoors continuously for a period of up to three years or that her presence would not have come to the attention of her neighbours at some point. Rather, given the focus of encounters with the Sri Lankan police and military had centred on the applicant’s family at their family residence in Mannar and only involved local officers from the training camp, I consider the risk to the applicant to have been limited to the immediate locality of her family’s home. I note that the applicant experienced no other adverse encounters with the Sri Lankan authorities when residing in Colombo, Kilinochchi or Nuwara Eliya. While she has put this down to staying indoors a lot of the time, she confirmed that she encountered no difficulties when travelling between the residences, in particular between the Northern Province and Colombo. Accordingly, I am not satisfied that the harm faced by the applicant from Sri Lankan police or military extends to all areas of Sri Lanka.
…
24.I accept that given the applicant’s prior experience of questioning and mistreatment by the Sri Lankan police and military, and the reports she has received that officers from the camp continue to frequent her mother’s shop, she may be concerned about her future treatment by the authorities, including the police and military officers, should she return to Sri Lanka. DFAT assesses that Tamil civilians who were not members of the LTTE, including those who may have provided a low-level of support, may be monitored by the Sri Lankan authorities, but are at a low risk of being detained or prosecuted. Given the opportunistic nature of the applicant’s encounter with officers from the training camp in 2009 and her ability to travel between a number of different provinces in Sri Lanka between 2006 and 2012 without incident, I am not satisfied that she holds a profile for LTTE involvement with the Sri Lankan authorities. I am not satisfied there is a real chance the applicant would attract their adverse attention, including that of the police and military, and be harmed on return on Sri Lanka, despite possibly attracting some initial interestby officers at the local training camp should she return to visit her family ….
There are two particular aspects of the Authority’s reasoning in these paragraphs that the applicant highlights, namely, the Authority’s findings that:
(a)the applicant resided in other parts of Sri Lanka for a period of three years after the rape incident without persecution; and
(b)the Department of Foreign Affairs and Trade (DFAT) advised that Tamil civilians who were not members of the LTTE, including those who may have provided a low level of support, may be monitored by the Sri Lankan authorities, but are at a low risk of being detained or persecuted.
The applicant submitted that her claim to have a well-founded fear of persecution as a result of being raped in 2009 arises by reason of the risk of further retribution by members of the naval camp that was located near her house. The applicant submitted that instead of considering the specific risk of persecution by these naval members, the Authority instead assessed a risk of persecution generally in Sri Lanka. Further, the applicant submitted that the Authority failed to consider that naval members who were stationed at the base near the applicant’s house may have been posted to other parts of Sri Lanka, meaning that the applicant would potentially be persecuted in any part of Sri Lanka by these naval members.
In his oral submissions, Counsel for the applicant submitted that the applicant’s claim was that specific members of the navy targeted her for reasons that were unknown, which likely related to a desire to cover up the rape incident, take retribution for her husband’s prior acts, gain information about her husband, or a belief that the applicant assisted her husband’s actions as a member of the Tamil Liberation Army. Counsel for the applicant submitted that given the claim was put on the basis that specific naval members were seeking to persecute the applicant, it was not reasonable of the Authority to rely on general DFAT advice about people with low profiles, in circumstances where it appears that the particular naval officers might have believed she provided a higher level of support. Counsel for the applicant further submitted that it was not reasonable for the Authority to rely on the applicant’s ability to travel between provinces and remain in Sri Lanka for an extended period after the rape when it was her fear was of persecution by specific members of the navy, rather than persecution more generally.
The Minister in his written submissions noted the ground is pleaded as an unreasonableness ground and treated the ground as an assertion of unreasonableness in the Authority’s procedural duties and powers. The Minister submitted that the applicant made no real attempt to meet the exacting and stringent standard required to establish legal unreasonableness and, in truth, the applicant seeks merits review of the Authority decision.
In his oral submissions, Counsel for the Minister submitted that he understood the applicant was asserting that no reasonable decision-maker could have come to the decision reached by the Authority. The Minister submitted that the threshold to establish unreasonableness (or illogicality or irrationality) is not met, having regard to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS).
I do not accept that the applicant has established jurisdictional error by this ground.
In making his submissions in relation to the way in which the applicant’s claims were advanced, Counsel for the applicant did not refer to any of the evidence before the Court to support his submissions. I have reviewed the evidence before the Court and cannot find evidence to support the applicant’s submissions to this Court to the effect that her claim was to fear future persecution from particular members of the army or naval either to cover up the rape or because of their particular beliefs about the applicant’s knowledge of the LTTE or her husband’s activities.
The applicant expressed the claim of past harm in her written statement in the following way:
I have experienced sexual abuse and I was raped in 2009. I came to visit the family house to visit my children. I believe that the men who assaulted me were the Navy as the Navy camp was situated [near] my family house. That area is controlled by the Navy. I have disclosed this assault in my medical examination. I have also been tortured by the same people. I have scars on my body because the same men burnt my legs with cigarette butts.
In addressing the risk of future harm, the applicant relevantly said:
I believe that I will be killed by the army if I return home. The army does not know I am in Australia, they believe I am dead, but that I was a member of the LTTE and that I was hiding my husband.
In summarising her claims, the applicant said:
In summary, I fear harm including murder at the hands of the Sri Lankan army on the basis of my Tamil ethnicity and alleged association with the LTTE. I further fear harm in all of Sri Lanka – including murder at the hands of the Sri Lankan army by virtue of my Tamil ethnicity and alleged association with the LTTE. I have personally been physically and sexually assaulted by my feared persecutors. I cannot rely on the protection of the Sri Lankan state and cannot safely relocate anywhere else in Sri Lanka.
I have also considered the record of the applicant’s entry interview and the available notes from her protection visa interview and cannot see anything to indicate that her claim to fear future harm was advanced on the basis now alleged by Counsel for the applicant, so far as it is relevant to the error asserted by ground 5. I also do not consider that there was any relevant unarticulated claim that clearly emerged from the material before the Authority based on established. I further observe that the Authority noted at [21] of its reasons that there was ‘no information before [it], and the applicant has not claimed, that the men identified her in relation to her husband’s activities or stated their purpose in attacking her’.
To the extent that the applicant now submits that the Authority should have considered the risk of harm from the particular members of the navy who raped the applicant or their beliefs as to the applicant’s knowledge, this does not give rise to jurisdictional error. The Authority elsewhere considered the risk of harm that the applicant may face because of her own profile or her association with her husband. Having regard to how the applicant’s claims were advanced, the Authority was not required to consider the risk of harm from the particular navy members who previously raped the applicant. This is particularly so in the light of the Authority’s finding at [21] of its reasons that there was no information to indicate that the attackers were aware of the applicant’s identity and that the Authority was not satisfied that the applicant was specifically targeted due to her connection with her husband.
It was otherwise open to the Authority to place weight on the applicant’s ability to remain in Sri Lanka for a further three years after the sexual assault without persecution and the information published by DFAT in reaching its findings. As Crennan and Bell JJ said in SZMDS at [135], in relation to illogicality and irrationality:
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The finding made by the Authority was one that a logical or rational person could reach of the material before the Authority. The applicant has not established jurisdictional error by ground 5.
FURTHER MATTER RAISED BY THE APPLICANT
At the commencement of the hearing, Counsel for the applicant indicated that his client had asked him to raise ‘a point of evidence that has not yet been included in the brief’, namely, that the applicant had found out on the morning of the hearing that her daughter was raped in Sri Lanka, and she believes this was possibly by members of the naval forces.
The Court appreciates that this may be distressing for the applicant. However, it is not something about which I make any finding, or something that I may take into account, in considering the applicant’s judicial review application. This Court does not have any jurisdiction to consider the factual merits of the Authority decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. The Court’s jurisdiction in this matter is limited to considering whether the Authority made a jurisdictional error in its decision. That is to be assessed based on the state of affairs that existed at the time of the Authority decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77]. Any new evidence about subsequent developments after the Authority decision is not relevant to the assessment of whether the Authority decision is affected by jurisdictional error.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error. It follows that the application for judicial review is dismissed.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 October 2024
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