EUH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 956
•26 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EUH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 956
File number: MLG 2322 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 26 September 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority failed to properly consider the applicant’s claims – whether the Authority applied the wrong legal test – whether the Authority denied the applicant procedural fairness – whether the Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) or its general powers in the conduct of review to seek new information or new submissions – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 5J, 36, 65, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 476, 477 Cases cited: AFP18 v Minister for Home Affairs [2024] FedCFamC2G 466
BRK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 303
DBK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1184
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DVV16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 522
EPW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 364
FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 174
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 6 June 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr A Yuile Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2322 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
26 SEPTEMBER 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 refused to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on 13 October 2017. 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).
The applicant’s application raises several grounds which assert that the Authority made a jurisdictional error by failing to properly consider his claims, applying the wrong legal test and failing to afford him procedural fairness.
The Minister raised an additional issue in this matter as a model litigant. That issue relates to whether the Authority made the kind of error identified by the High Court in Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 (DUA16) and acted unreasonably in circumstances where a submission the applicant, via his migration agent, provided to the Authority referred to claims not raised by the applicant, and proceeded to make a decision without inviting the applicant to clarify the irregularities in the submission or provide new information.
For the reasons explained below, I have found that the Authority decision is not affected by jurisdictional error and the application for judicial review is therefore dismissed.
VISA HISTORY AND ADMINISTRATIVE DECISIONS
The applicant entered Australia by sea in October 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 22 October 2012 the applicant participated in an Irregular Maritime Arrival Entry Interview (entry interview) conducted by an officer of the Minister’s Department.
The applicant was invited to apply for a protection visa and made an application for a protection visa on 23 September 2016. In a statutory declaration provided with his protection visa application, the applicant claimed to fear harm as a Tamil and as a Muslim, on the basis of his previous involvement with the United National Party (UNP) including from people involved in the Sri Lankan Freedom Party (SLFP), and as a person who departed Sri Lanka unlawfully.
On 16 March 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection (protection visa interview).
On 21 March 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority for review, in accordance with s 473CA of the Migration Act.
The applicant engaged a representative to represent him before the Authority. The applicant’s representative was the same person whose conduct was considered in DUA16. The applicant’s representative provided a written submission to the Authority on 13 April 2017.
On 13 October 2017 the Authority affirmed the delegate’s decision.
SUMMARY OF THE AUTHORITY DECISION
The Authority had regard to the material given to it by the Secretary under s 473CB of the Migration Act and the written submission provided to it by the applicant’s representative to the extent that it responded to issues in the delegate’s decision and might be considered to be argument rather than information. The Authority identified that the submission contained some new information and was not satisfied that the new information could not have been provided before the delegate’s decision was made or that it was credible personal information that if known may have affected the consideration of the applicant’s claims. The Authority was not satisfied that exceptional circumstances existed to justify considering the new information.
The Authority had significant concerns about the veracity of the applicant’s evidence. The Authority compared evidence that the applicant gave at his entry interview with evidence he later gave in his statutory declaration and in his protection visa interview and considered his explanations for the inconsistencies. The Authority found that throughout the protection visa interview the applicant provided inconsistent and evasive responses to the delegate’s questions or provided ‘completely arbitrary’ responses to the questions directed at him, and that his evidence ‘was so inconsistent, evasive and erratic that the substance of his claims became blurred and confused’. The Authority accepted that the applicant’s entry interview may not be a complete record of the applicant’s claims for protection but found that he had not given a credible explanation for the inconsistences.
After identifying these concerns, the Authority continued at [20]:
For the reasons I have outlined above I do not accept that the applicant worked for, was a member of, or was involved in any way with, the UNP. I do not accept that he received threats from people involved in the SLFP or that he received any threats. I do not accept that the house belonging to F or his home was ever bombed. I am prepared to accept that the applicant did live in Qatar however, I do not accept that the applicant went to Qatar as he feared for his life and I am of the view that it was for the purpose of securing employment. The applicant said that he did not have any issues re-entering Sri Lanka and I am not satisfied that he was ever on a “stop list” or had any profile that would have attracted the attention of any Sri Lankan authority or anyone for that matter including the SLNP. I do not accept that the applicant remained in hiding as people working for the opposition came to his family home and asked about his return from Qatar or that anyone came to his home in Sri Lanka and asked his wife about his whereabouts. At his [protection visa] interview when he was questioned regarding why he gave the claims he did at his entry interview the applicant said that when he first arrived he had to give information and he had to give something. I find that the applicant fabricated these events to strengthen his claims for protection and I do not accept them.
The Authority accepted that the applicant is a Muslim of Tamil ethnicity. The Authority acknowledged that ethnic and religious tensions existed between Sinhalese and Muslims in Sri Lanka but, having regard to the applicant’s evidence and country information as a whole, the Authority was not satisfied that the applicant would face a real chance of harm if he were to return to Sri Lanka on the basis of his religion or his ethnicity now or in the reasonably foreseeable future.
The Authority considered that country information showed that the situation for Tamils in Sri Lanka had improved markedly and that being a Tamil of itself would not warrant international protection. The Authority recorded that the applicant did not claim to have been involved with the Liberation Tigers of Tamil Eelam (LTTE) or to have supported their cause or been involved in armed conflict in Sri Lanka and found that the applicant was not involved in any LTTE activities. The Authority was not satisfied that the applicant would now, or in the reasonably foreseeable future, be viewed as having any connections to the LTTE. The Authority was not satisfied that the applicant faced any chance of harm as a result of being perceived as a Tamil or a Tamil speaking Muslim.
The Authority accepted that the applicant departed Sri Lanka illegally. The Authority was not satisfied that the applicant would be at any risk of harm during, or as a consequence of, any routine investigation at the airport as the authorities would quickly establish that the applicant is not a person of interest. The Authority accepted that the applicant may be arrested and charged under the Immigrants and Emigrants Act for departing Sri Lanka illegally. The Authority considered that the treatment that the applicant may face as a consequence, including being questioned and detained at the airport, then potentially being detained on remand for up to several days in overcrowded and unsanitary conditions and having to pay a fine, does not amount to serious harm or significant harm.
The Authority considered country information about the risk of harm to failed asylum seekers and was not satisfied that the applicant would face a real chance of harm as a result of being a failed asylum seeker.
Based on these findings of fact, the Authority was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 27 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 application contains the following six grounds:
1. The IAA applied the wrong legal test.
2. The IAA did not afford me procedural fairness.
3.The IAA erred in law by not correctly considering my claims for protection under s 5 J (1) of the Migration Act 1958 (Cth)
4.The IAA erred in law by nor correctly considering claims under s36(2A) of the Migration Act 1958 (Cth).
5.The IAA erred in law by not correctly considering claims for complimentary protection under s 36(2) (aa) of the Migration Act (Cth)
6.The IAA did not consider all of my claims, correctly and accurately. I will provide all the relevant details.
The applicant did not file any amended application with proper particulars of the grounds of application, or any written submissions, despite having the opportunity to do so 28 days before the hearing, pursuant to an Order made by a Registrar on 11 July 2018.
At the hearing, I explained to the applicant that his grounds of application did not have any meaningful detail to enable the Minister or the Court to properly understand them. The applicant was invited to provide further detail about his grounds in his oral submissions but did not do so. I have considered the grounds, to the extent that it is possible to understand them, below.
The evidence before the Court comprises the court book filed on behalf of the Minister on 25 May 2018 and an affidavit filed by the applicant on 27 October 2017 which annexes a copy of the Authority decision.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Authority decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
CONSIDERATION OF WHETHER THE AUTHORITY MADE A JURISDICTIONAL ERROR
Matters raised in the applicant’s oral submissions
The applicant was invited to address his grounds of application or otherwise talk about what legal error he believes the Authority made. Instead, in his oral submissions to the Court, he spoke about his interactions with lawyers. The applicant submitted:
(a)he handed ‘all this’ to the lawyers and now he feels that the lawyer has not provided the clarification or details;
(b)he spoke to the lawyers, who even got money, and explained everything he wanted and they said, ‘Don’t worry, we will do all the applications and everything’, but it now appears they have not done that;
(c)the lawyers later said that anything new that they submit now will not be taken into consideration;
(d)he hired the lawyer about four or five years ago and ‘the other people put it to the courts’, and then he got hold of the previous lawyer and submitted ‘this’; and
(e)he also went to a lawyer more recently and paid money and he got the form and documents.
When the applicant made the submission referred to at paragraph (e) above, he held up a document or folder on the Microsoft Teams screen but, as I explained to the applicant at the hearing, the Court was not able to see it. Given the context, I understand that the applicant was attempting to show that he had received documents from a lawyer.
The applicant’s oral submissions do not appear to assert any jurisdictional error in the Authority decision. Rather, they appear to be a complaint in relation to lawyers who may have assisted him in this Court.
There is nothing on the Court record to indicate that the applicant has ever had a lawyer on the record acting for him in this judicial review proceeding. The application was filed by the applicant himself and there is nothing on the face of the application or the affidavit filed in support of the application to indicate that either document was prepared by a lawyer. The applicant was evidently aware that he did not have a lawyer acting for him when the matter came before the Court for hearing, as the applicant represented himself.
The applicant’s submissions were difficult to follow so it is unclear the precise complaint that the applicant makes and who it is about, but I understand it to be about a lawyer he engaged four or five years ago. If the applicant received advice from a lawyer and is dissatisfied with the service he received, it would be open to him to make a complaint to the relevant legal practice board in the state in which he engaged the lawyer.
However, as explained above, the role of this Court is to assess whether the Authority made a jurisdictional error. The submissions the applicant made to this Court do not allege or establish jurisdictional error in the Authority decision. Nor did the applicant make any assertion that the hearing before the Court could not fairly proceed, as a result of any conduct of lawyers he has engaged in the past.
Ground 1: Whether the Authority applied the wrong legal test
By ground 1, the applicant asserts that the Authority applied the wrong legal test but does not identify by this ground the legal test that he believes was wrongly applied.
The Authority correctly identified in its reasons that it was required to consider whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
In relation to the refugee criterion, the Authority correctly identified at [9] of its reasons that s 5H of the Migration Act provides the definition of ‘refugee’ and that, amongst other things, this definition requires that the applicant have a ‘well-founded fear of persecution’. At [10] of its reasons, the Authority summarised relevant parts of the definition of ‘well-founded fear of persecution’ in s 5J of the Migration Act.
The Authority correctly summarised the complementary protection criterion at [38] of its reasons and set out the definition of ‘significant harm’ in s 36(2A) of the Migration Act at [39] of its reasons.
The Authority correctly identified the relevant legal tests that it was required to apply and the applicant has not identified anything to suggest that the Authority erred in relation to the manner in which it applied these legal tests.
Ground 1 is not established.
Ground 2: Whether the Authority failed to afford the applicant procedural fairness
By ground 2, the applicant asserts that the Authority denied him procedural fairness but again does not provide any meaningful detail.
The Authority’s procedural fairness obligations are limited. Section 473DA(1) provides that Division 3 of Part 7AA of the Migration Act, together with two further provisions that have no application in the present case, is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB(1) provides that, subject to Part 7AA, the Authority must review a fast track reviewable decision by considering the material referred by the Secretary, without accepting or requesting new information and without interviewing the referred applicant.
Although the Authority has a discretion, conferred by s 473DC, to get new information that was not before the delegate, the Authority does not, as a matter of procedural fairness, have any duty to get, request or accept new information. If the Authority does get new information, the Authority must not have regard to the new information unless it is satisfied that there are exceptional circumstances to justify considering the new information and, in the case of new information provided by the referred applicant, that either the new information was not, and could not have been, provided to the Minister before the Minister made the decision under s 65 of the Migration Act, or the information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims: s 473DD of the Migration Act.
In the present case, the Authority identified that some of the information in the applicant’s submission was new information. It considered that information against the requirements of s 473DD and was not satisfied that the new information could not have been provided before the delegate’s decision or that it was credible personal information that, if known, may have affected the consideration of the applicant’s claims. It was also not satisfied that there were exceptional circumstances to justify considering the new information. There is no denial of procedural fairness in this approach, or in not inviting the applicant to attend an interview.
In circumstances where there was no new information accepted by the Authority as meeting the requirements of s 473DD, and where the Authority did not invite the applicant to provide new information, the other provisions in Division 3 of Part 7AA had no application in the present case.
There is nothing in the material before the Court to suggest that the Authority denied the applicant procedural fairness. Ground 2 is not established.
Ground 3: Whether the Authority failed to consider the applicant’s claims under the refugee criterion
By ground 3, the applicant asserts that the Authority erred by not correctly considering his claim for protection under s 5J of the Migration Act.
I interpret this ground more broadly as an assertion that the Authority failed to correctly consider his claims for protection under the refugee criterion.
One of the criteria for the grant of a protection visa is that the applicant is a ‘non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee’: s 36(2)(a) of the Migration Act.
As discussed in the context of ground 1 above, the term ‘refugee’ is defined in s 5H of the Migration Act. In cases where a person has a nationality, subject to some exceptions which do not need to be addressed here, the person will be a refugee if the person is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.
The term ‘well-founded fear of persecution’ is defined in s 5J of the Migration Act. As noted above, the Authority correctly summarised the relevant parts of that definition at [10] of its reasons.
I have considered the claims advanced by the applicant and the Authority’s consideration of those claims. I have not identified any claim made by the applicant which the Authority failed to consider. Insofar as the applicant’s claims to fear harm were based on his claims to have previously been involved with the UNP and faced past threats as a result, the Authority did not accept the applicant’s evidence because of significant credibility concerns that it had. This course was open to the Authority and does not represent any failure to properly consider the applicant’s claims. In relation to the applicant’s claims to fear harm as a result of his Tamil ethnicity, Muslim religion and as a failed asylum seeker and a person who departed Sri Lanka unlawfully, the Authority carefully considered the country information before it and found that the applicant did not face a real chance of serious harm, and therefore that he did not have a well-founded fear of persecution. Again, it was open to the Authority to rely on country information in this way. There is nothing in the material before the Court to suggest that the Authority failed to consider the applicant’s refugee claims.
Ground 3 is not established.
Grounds 4 and 5: Whether the Authority failed to consider the applicant’s claims under the complementary protection criterion
By ground 4, the applicant asserts that the Authority did not correctly consider his claims under s 36(2A) of the Migration Act and by ground 5, the applicant asserts that the Authority failed to properly consider his complementary protection claims under s 36(2)(aa) of the Migration Act.
Given that both of these grounds relate to the Authority’s consideration of the applicant’s complementary protection claims, it is convenient to consider them together.
The complementary protection criterion is set out in s 36(2)(aa) of the Migration Act and is an alternative to the refugee criterion. The criterion requires that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. The phrase ‘significant harm’ is defined in s 36(2A) of the Migration Act. As discussed above, the Authority correctly identified these requirements at [38] and [39] of its reasons.
The applicant’s complementary protection claims were essentially the same as his refugee claims. In considering the applicant’s complementary protection claims, the Authority relied on the same findings of fact it made in considering whether the applicant met the refugee criterion in relation to his claimed political involvement. Based on these findings, the Authority was not satisfied that the applicant faced a real risk of significant harm. In relation to the applicant’s claims based on his Muslim religion and Tamil ethnicity, and his status as a returning asylum seeker, the Authority referred to its finding that the applicant did not face a real chance of serious harm for these reasons and, noting that real chance and real risk have been found to equate to the same threshold, was satisfied that there was not a real risk that he would face significant harm for these reasons. In relation to the applicant’s claims to face harm as a consequence of his illegal departure from Sri Lanka, the Authority considered that the treatment the applicant would expect to face did not meet the requirements of the definition of ‘significant harm’ in s 36(2A) of the Migration Act.
These findings were all open to the Authority on the material before it and do not represent the Authority failing to properly consider the applicant’s complementary protection claims. Grounds 4 and 5 are not established.
Ground 6: Whether the Authority failed to consider all of the applicant’s claims correctly and accurately
Ground 6 is a further assertion that the Authority failed to consider all of the applicant’s claims ‘correctly and accurately’. I am unable to identify anything that may potentially arise under this ground that has not already been addressed in the consideration of grounds 3-5 above. For the reasons articulated in the consideration of those grounds, ground 6 is also not established.
Whether the Authority made the type of error identified in DUA16
The Minister raised, as a model litigant, a question relating to whether the Authority made the type of error identified by the High Court in DUA16.
The applicant in the present case provided a submission to the Authority via his representative. The representative was the same person whose conduct was considered in DUA16 and described by the High Court at [1] in the following way:
… the agent’s conduct was fraudulent because it consisted of her concealing from her clients that she intended to use a pro forma submission with the belief that if she disclosed that to her clients they would not have been prepared to pay for her professional services. The agent acted fraudulently in up to 40 cases…
While the fraudulent conduct was found not to vitiate the review conducted by the Authority, the High Court considered whether the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act to get new information in relation to the submission. The High Court in DUA16 considered the cases of two protection visa applicants: DUA16 and CHK16.
The High Court described that in CHK16’s case, the agent, acting fraudulently, provided submissions to the Authority where the entirety of the personal circumstances concerned the wrong person. The Authority noticed that the submissions related to a person other than the applicant but did not seek to obtain correct submissions or new submissions about CHK16. The Authority had regard to the submissions concerning generic information and information about legal issues but disregarded the information concerning the personal circumstances of the wrong person: DUA16 at [2]. The submission provided in CHK16’s case contained none of CHK16’s personal information: DUA16 at [5]. The High Court found that the approach taken by the Authority in CHK16’s case was legally unreasonable and said at [28]-[29] (footnotes omitted):
28.The circumstances of CHK16’s case are extreme. The Authority was aware that CHK16 intended to provide submissions and that the submissions might contain new information. But it was apparent, as the Authority realised, that the submissions provided by the agent concerned a different person and that none of the personal information related to CHK16. As the Authority was aware, this was the only opportunity that CHK16 would have to provide his own new information, which could be of considerable importance. On CHK16’s case before the delegate, the consequences of refusal of his protection visa could place his life at risk. A request from the Authority for the correct submissions and CHK16’s correct personal information would have been a very simple matter. The Authority had, itself, indicated in its Practice Direction that submissions that were too long would be returned with an opportunity given to provide new submissions. These circumstances reflect the observation of six members of this Court in Minister for Immigration and Citizenship v SZIAI [(2009) 111 ALD 15; [2009] HCA 39]:
“The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.”
29.The legal unreasonableness of the failure by the Authority to get new information by requesting the correct submissions pursuant to s 473DC is plain when the alternative approach taken by the Authority is considered. Rather than taking the simple route of asking for the correct submissions, consistently with its own procedures for returning submissions that are too long, the Authority filleted the submissions that plainly concerned the wrong person into generic and non-generic information. The Authority then treated the generic information in the submissions concerning another person as though the information had been correctly provided in relation to CHK16’s circumstances. On no view could that have been a reasonable course to take.
The High Court described that in DUA16’s case, the agent, acting fraudulently, provided submissions to the Authority that contained information relevant to DUA16’s application and some information relating to a different applicant. The Authority concluded that the information relating to a different applicant had been included by mistake, found in any event that the requirements of s 473DD of the Migration Act were not met in relation to that information and disregarded the information about another person: DUA16 at [3], [13]. The submission in relation to DUA16 involved some amendments to the template to include some of his personal information: DUA16 at [5]. In finding that the approach taken by the Authority in DUA16’s case was not legally unreasonable, the High Court said at [34]:
DUA16’s case is different. In DUA16’s case it was not legally unreasonable for the Authority to fail to exercise either its powers under s 473DC to get new information or its powers in the general conduct of the review to get new submissions. The conclusion that the Authority reasonably drew from the submissions with which it was presented, and by having regard to the review material, was that a small amount of the information had been included by mistake. The Authority disregarded these errors and, moreover, pointed out that the requirements in s 473DD of the Migration Act for consideration of new information had not been met. The statutory context and the high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in submissions. It was reasonable for the Authority to disregard that information and to explain, in the alternative, why the information could not be considered even if it had not been included by mistake.
An assessment of whether the Authority acted unreasonably in the present case is necessarily fact specific. This is evident from the different outcomes in DUA16’s case and CHK16’s case, as well as from a review of the other cases of this Court which have considered submissions provided to the Authority by the same representative, including BRK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 303; DVV16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 522; FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 174; DBK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1184; EPW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 364 (EPW17) and AFP18 v Minister for Home Affairs [2024] FedCFamC2G 466.
The submission provided to the Authority in the present case comprised just over five pages. On the first page, the submission sets out some statements of law. The second page includes a heading ‘Submissions on behalf of the applicant’ under which appears a paragraph that reflects the personal information of the applicant and repeats some of the claims that he made when his protection visa application was before the Department. That paragraph reads:
The applicant’s claim for protection is that he cannot live peacefully in Sri Lanka because he is a Tamil and Tamils are discriminated against. The applicant claims he cannot live peacefully in Sri Lanka because he is a Muslim and Muslims are discriminated against. The applicant worked for the UNP and was threatened by the opposition party SLFP. Members of the SLFP driving a van attempted to kidnap the applicant. The applicant fled Sri Lanka due to intimidation by the SLFP.
The submission then contains 43 numbered paragraphs which contain references to country information and information which relates to many Sri Lankan asylum seekers, including the applicant, such as being a failed returned asylum seeker and claims based on race and ethnicity. There is also information in these paragraphs that does not relate to the applicant or his claims for protection. The Authority treated this as ‘new information’ in its decision and considered it against the requirements of s 473DD of the Migration Act. The Authority said at [6]-[7] of its reasons
6. The submission also makes the following claims:
•The applicant had and still has insider information on the way the police force and its human rights or rather lack of human rights practices.
•The applicant has a well-founded fear of persecution for reason of his actual/imputed political opinion being a supporter of the LTTE and opposed to the Sri Lankan government and its lack of Human Rights practices.
•The applicant belongs to the social group the LTTE and he is suspected of a crime, has been arrested and detained and has been persecuted by way of sexual abuse by the Sri Lankan Army (SLA). His brother was arrested alongside him and has successfully sought asylum in Canada. He is seen as a traitor as he has sought asylum in Australia.
7.None of the above claims have been previously made by the applicant. There is no suggestion in the information presented to the Department that the applicant is a supporter of the LTTE, that he is opposed to the Sri Lankan government, that he has insider information on the police, that he is suspected of a crime, that he was persecuted by way of sexual assault by the SLA, that he is seen as a traitor as he had sought asylum in Australia or that he has a brother that has travelled and sought asylum in Canada. There is no explanation in the submission as to why these claims are only being made now. I am not satisfied that the information could not have been provided before the delegate’s decision was made or that it is credible personal information that if known may have affected consideration of the applicant’s claims. Nor am I satisfied that exceptional circumstances exist to justify considering this new information.
The Minister submitted that, notwithstanding that the submission included some information that did not relate to the applicant, the majority of the submission was relevant to the applicant’s claims and included material based specifically on his claim.
One material difference between this case and those of DUA16 and CHK16 is that the Authority in the present case did not expressly make a finding that there was a mistake in the submission or that the information in the submission did not relate to the applicant. The Minister submitted that, in this way, the present case is similar to EPW17. In EPW17, Judge Forbes found that the Authority did not act unreasonably in not getting new or ‘correct’ information from the applicant. His Honour did not accept that it would have been apparent to the Authority that the submission related to another visa applicant and said at [61] and [68]:
61.I am satisfied that the Authority engaged with the materials before it, including by comparing the submissions with earlier information provided by the applicant in the arrival interview and the SHEV interview. Through this orthodox process, the Authority identified inconsistencies and new information. Inconsistencies and new information are commonly encountered as part of the Authority’s review function. In and of themselves, inconsistencies in an applicant’s narrative over time or the introduction of new information and claims do not signal error or fraud. This was not a circumstance where the submissions were so vastly different from the applicant’s prior narrative (details of which had changed across time) that it would have alerted the Authority to potential error or fraud. It is not a case where the Authority could have been expected to realise that the submissions plainly related to someone other than the applicant.
…
68.I am satisfied on the facts, taking into account the reasoning process of the Authority, that the IAA reviewer was not alive to the fraud or had any reason to be. The decision record reflects that the Authority identified inconsistencies and new information, but that was hardly a unique phenomenon in a fast track review. A different reviewer with a different experience of Ms Rajasekaram’s involvement in protection visa applications might have brought a higher level of sensitivity to their review of the applicant’s claims and might have reacted differently. But here, objectively, the inconsistencies and introduction of new information were not so unusual as to cause the Authority to suspect that the written submissions related to an entirely different applicant.
The Minister submitted that, as in EPW17, it was relevant in the present case that the applicant gave inconsistent evidence throughout the protection visa process, as reflected in the Authority’s adverse credibility findings against him. The Minister submitted that, given this context, it is not surprising that the Authority would not recognise the new claims or mistakes in the submission as claims made in error or as a result of fraud. The Minister submitted that it was eminently reasonable for the Authority to consider those claims to be the latest round of ‘inconsistent, erratic, vague and confusing’ evidence coming from the applicant. The Minister submitted that it was not unreasonable for the Authority not to seek a further submission or new information from the applicant.
Although the applicant was given an opportunity to make submissions on this issue, including after hearing clear oral submissions from Counsel for the Minister pitched at an appropriate level for a self-represented applicant, he declined to do so.
I accept the Minister’s submission that the Authority did not act unreasonably in the present case. The content of the submission clearly contains some personal information that relates to the applicant and therefore places the case factually as more akin to DUA16’s case than to CHK16’s case. Based on the evidence that is before the Court, I accept that there is nothing to indicate that the Authority reviewer was aware of any fraud or the possibility that the submission did not relate to the applicant. I am also satisfied, based on the evidence before the Court, that there was no reason why the reviewer ought to have been aware of the possibility of fraud or to suspect that the submission did not relate to the applicant. As in EPW17, it was open to the Authority to view the new information in the manner in which it did, namely, as new claims raised by the applicant for the first time when the matter was before the Authority, which had to satisfy the requirements of s 473DD of the Migration Act before they could be considered.
In these circumstances, the Authority did not act unreasonably in not seeking any clarification or further submissions from the applicant about the submission or the new information in the submission.
I thank the Minister for raising this issue and for providing clear and carefully considered submissions. For the reasons identified, I am satisfied that the Authority in the present matter did not make the type of error identified in DUA16.
CONCLUSION
Given that I have found that the Authority did not make any jurisdictional error, the application for judicial review must be dismissed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 26 September 2024
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