EVQ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 529
•12 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EVQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 529
File number: SYG 3376 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 12 June 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority to affirm a decision not to grant the applicant a protection visa – whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) – whether the Authority failed to consider a relevant issue – whether the Authority failed to consider country information – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 65, 473CA, 473CB, 473DD, 476, 477 Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 289 FCR 346; [2021] FCAFC 229
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159
NABE v Minister for Immigration and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 5 June 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr G Pasas Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
SYG 3376 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EVQ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
12 JUNE 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 6 October 2017.
2.A writ of mandamus issue, directed to the second respondent, requiring it to reconsider according to law the matter referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority). 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 relies on two grounds of review which allege that the Authority made a jurisdictional error:
(a)by not considering a relevant issue; and
(b)by failing to consider the country information.
The Minister, in the course of addressing the applicant’s first ground, raised an issue that did not directly arise on the face of the judicial review application. That issue related to whether the Authority correctly applied s 473DD of the Migration Act in finding that new information provided by the applicant to the Authority did not meet the requirements of s 473DD.
For the reasons explained below, I have found that the Authority did not correctly apply s 473DD of the Migration Act, taking into account the principles explained by the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17), and that this amounted to a jurisdictional error. It follows that the application to this Court must succeed and I issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconsider the matter according to law.
VISA APPLICATIONS AND DECISIONS
The applicant is a Tamil from the Northern Province of Sri Lanka who entered Australia in October 2012. He is an unlawful maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant applied for a protection visa on 14 October 2016. His claims for protection were set out in a statement that accompanied his protection visa application.
On 30 January 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection. Following the interview, the applicant provided additional information to the delegate including a submission prepared by his solicitor and registered migration agent.
On 3 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 pursuant to s 473CA of the Migration Act.
On 20 March 2017 the applicant, via a solicitor and registered migration agent who was assisting him, sent an email to the Authority attaching new information, including a new statement by the applicant. On 21 April 2017 the applicant, again via the solicitor and registered migration agent who was assisting him, provided a submission to the Authority. A further submission was provided to the Authority on 7 May 2017, following a communication from the Authority to suggest that the earlier submission did not comply with the Authority’s Practice Direction. The applicant also provided country information and a transcript of a High Court case to the Authority.
On 6 October 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
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 a submission made on the applicant’s behalf that addressed the issues before the delegate. The Authority found that a statement provided by the applicant, which contained new information, did not satisfy the requirements of s 473DD of the Migration Act and therefore did not have regard to it.
The Authority accepted the applicant’s evidence that he, his father and his brother were all supporters of the Liberation Tigers of Tamil Eelam (LTTE) and had a close relationship with the LTTE but were not members. The applicant confirmed that the last time he had contact with the LTTE was in January 2008 and the Authority found the applicant’s LTTE support to be low level only.
The Authority accepted that a bomb exploded in the applicant’s village in February 2008 and following this the Sri Lankan authorities intensified their monitoring and mistreatment of young Tamil men in the area. The Authority accepted that, following the bombing, the Sri Lankan Army (SLA) and the Criminal Investigation Department (CID) interrogated and beat the applicant at their camp for four hours and then released him. The Authority was prepared to accept that a friend of the applicant was believed to have caused the explosion, that the applicant was interrogated about his friendship and that the friend had not been seen since the explosion. However, the Authority did not accept that the applicant was considered to be one of the two main suspects in relation to the explosion.
The Authority accepted that the applicant was brought in for questioning on several occasions between 2008 and 2012, with the questioning usually lasting one hour, and that he was never charged with any offences.
The Authority accepted that a contact of the applicant within the LTTE defected to the CID and he and another CID officer regularly came to the applicant’s village to identify former LTTE supporters between 2010 and 2012. The Authority considered that the applicant’s former contact in the LTTE would already have been aware of the extent of the applicant’s LTTE involvement. The Authority found that it was not credible that the applicant’s former contact would, over a two year period, threaten to kidnap and harm the applicant but not follow through with the threat, if the former contact believed the applicant may know where weapons were hidden. The Authority considered that the fact that the applicant continued to live and work in his village after the end of the war, without being detained for more than an hour at a time, was indicative that he was not a person of interest to the authorities.
The Authority considered the applicant’s assistance to the LTTE through supplying consumer items to be low level and did not accept that the applicant would have a higher profile because of self-defence training that he undertook with the LTTE organised through his local sports club.
The Authority was prepared to accept that the applicant’s cousin was an LTTE commander and that their family connection was a matter of public knowledge. The Authority was not satisfied that the Sri Lankan authorities would have any interest in the applicant for this reason, noting that he did not claim that the Sri Lankan authorities in his village raised the issue of his cousin with him and that his family continued to live in the area without incident.
The Authority considered it plausible that the applicant may have faced some discrimination as a Tamil in the past but was not satisfied that the applicant would now face a real chance of discrimination or mistreatment amounting to serious harm.
The Authority was not satisfied the Sri Lankan authorities would impute the applicant to have a pro-LTTE or anti-Sri Lankan government political opinion because of his status as a Tamil male, his origins, his low level material support for the LTTE, his friend or cousin’s involvement in the LTTE or because he commenced an application for asylum while in Nauru. Despite the applicant’s previous interactions with the Sri Lankan authorities, the Authority was not satisfied that they had any ongoing adverse interest in the applicant. The Authority was not satisfied the applicant would face a real chance of suffering serious harm for any of these reasons should he return to Sri Lanka.
The Authority accepted that the applicant departed Sri Lanka illegally and that he sought asylum in Australia. The Authority was not satisfied that the applicant faced a real chance of harm on account of having sought asylum in Australia and Nauru and considered that the treatment that the applicant may face as a result of breaching the Immigrants and Emigrants Act (Sri Lanka) would not amount to serious harm or significant harm.
Based on these findings of fact the Authority was not satisfied that the applicant met the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application on 3 November 2017 and therefore made the application within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant raises two grounds in his application (reproduced without alteration):
Ground 1
IAA made a jurisdictional error by not considering a relevant issue.
Particulars
IAA accepted that Applicant did intelligence work for the LTTE and as such Applicant will be imputed with TTE profile.
IAA failed to discern a Convention reason namely imputed with LTTE profile.
Ground 2
IAA made a jurisdictional error by not considering the country information.
Particulars
LTTE supporters are still persecuted in Sri Lanka.
There was other information suggesting that persons like the Applicant will be persecuted on return to Sri Lanka.
The evidence before the Court comprises an affidavit of the applicant filed on 3 November 2017, annexing a copy of the Authority decision, the court book filed on behalf of the Minister on 6 December 2017 and an affidavit of service of George Pasas filed on behalf of the Minister on 22 May 2024.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
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 recently 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.
An error made by the Authority will only amount to a jurisdictional error if it was material, ‘in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred’: LPDT at [7]; see also Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45].
Did the Authority properly apply s 473DD?
Although the Minister made submissions about whether the Authority properly applied s 473DD of the Migration Act in the course of making submissions responding to ground 1 of the application, I have chosen to address this question first, as a separate issue, before considering the grounds raised by the applicant. I thank the Minister’s legal representatives for raising this issue and for assisting the Court by making submissions.
The Authority is only permitted to consider new information that was not before the Minister (or his delegate) at the time of the decision made under s 65 of the Migration Act if the requirements of s 473DD of the Migration Act are met. Section 473DD provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
On 20 March 2017 the applicant provided to the Authority a handwritten statement with a typed English translation. In the statement the applicant claimed that he had operated as an intelligence agent for the LTTE over a period of four or five years and provided details about his duties and activities. The Authority addressed the information in the statement, and whether it met the requirements of s 473DD of the Migration Act, at [3]-[7] of its reasons. In those paragraphs, the Authority said:
3.On 20 March 2017 the IAA received an email on behalf of the applicant. Attached to the email was a letter from the applicant, accompanied by an English translation, dated 19 March 2017. The letter from the applicant states:
•From 2001 the applicant was a Liberation Tigers of Tamil Eelam (LTTE) intelligence officer, in charge of monitoring and recording the details and movements of the LTTE and Sri Lankan Army (SLA) in his home area of Mannar district. The letter provides detail regarding the LTTE recruitment process, the applicant's training and reporting lines, and his LTTE uniform, pseudonym and plate number.
•The applicant’s brother-in-law was also an LTTE intelligence officer.
4.While the letter itself postdates the delegate’s decision, its contents are directly relevant to material which predates the delegate’s decision and which was squarely at issue at the SHEV interview. The substance of the applicant’s application for protection rests on his claims that the Sri Lankan authorities repeatedly detained and interrogated him about his knowledge of LTTE operations in his home area. The email states that the applicant did not disclose this information regarding the extent of his LTTE involvement prior to the delegate's decision because he was afraid, and because he recognises the IAA review is his last chance to provide personal and credible information.
5.The applicant had been residing in Australia for more than four years by the time he was questioned by the delegate, who also advised him the IAA is a limited form of review and can only consider new information in exceptional circumstances. I note the delegate asked the applicant during the SHEV interview if he had any other claims for protection he wanted her to take into account, and I am satisfied the applicant was put on notice regarding the delegate’s concerns.
6.The applicant lodged his SHEV application with the assistance of his then representative, a registered migration agent and solicitor, who assisted him prepare his written SHEV statement, was present at his SHEV interview, and sent the delegate a post-SHEV interview written submission for her consideration. The same individual, who although is no longer officially representing the applicant, has now forwarded this letter on the applicant’s behalf. In the circumstances, I am not satisfied this new information could not have been provided before the delegate’s decision.
7.Furthermore, the new information the applicant has provided relates to activities which pre-date his current claims. The applicant has not now indicated that he faced any additional attention from the authorities in relation to these new matters, or to have been of interest other than in the circumstances which were already before the delegate. Overall I am not satisfied there are exceptional circumstances to justify consideration of the new information.
After the Authority handed down its decision in this matter, the High Court delivered judgment in AUS17. The High Court in AUS17 considered the proper approach to the application of s 473DD of the Migration Act and concluded that the Authority must first consider whether the new information meets the requirements of both of s 473DD(b)(i) and (ii) of the Migration Act and, if the requirements in either or both of those sub-paragraphs are met, take its findings in relation to those sub-paragraphs into account in determining whether there are exceptional circumstances to justify considering the new information for the purposes of s 473DD(a). The majority said at [11]-[12] of AUS17 (footnotes omitted):
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12.The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
An issue that arises for the Court’s consideration in this matter is whether the Authority’s application of s 473DD of the Migration Act is consistent with the High Court’s judgment in AUS17. This issue was comprehensively addressed in the Minister’s written and oral submissions, but the applicant did not make any submissions about this issue.
I accept that the Authority considered whether the new information met the requirements in s 473DD(b)(i) of the Migration Act. The Authority at [4]-[7] of its reasons addressed various considerations that are directed to whether the new information could have been provided to the delegate prior to the delegate’s decision and the Authority concluded at [6] that it was not satisfied that the new information could not have been provided before the delegate’s decision.
However, I am not satisfied that the Authority considered whether the new information met the requirements of s 473DD(b)(ii) of the Migration Act.
The Minister acknowledged that the Authority did not expressly use the words ‘credible personal information’ which are relevant to s 473DD(b)(ii). In oral submissions, Counsel for the Minister submitted that the Authority’s consideration of the matters in s 473DD(b)(ii) can be seen from its reasons at [4]-[7], which addressed the content of the statement as well as whether it could have been provided to the Minister’s delegate. Counsel for the Minister expressly referred to:
(a)the Authority’s observation at [5] that the delegate asked the applicant during the protection visa interview if he had any other claims for protection he wanted her to take into account; and
(b)the Authority’s observations at [7] that the new information relates to activities which predate the applicant’s current claims and that he has not now indicated that he faced any additional attention from the authorities in relation to the new matters, or to have been of interest other than in the circumstances which were already before the delegate.
While it is possible that these are matters that may inform any assessment of whether the requirements of s 473DD(b)(ii) are met, they do not, of themselves, amount to any finding or assessment of whether the requirements of s 473DD(b)(ii) are met. These observations of the Authority relate to the previous opportunities the applicant had to provide the information and how the information relates to the claims already before the Authority. Without further analysis or reasoning on the part of the Authority, the observations do not amount to any express or implied finding that the new information was not credible personal information. I am unable to conclude from the Authority’s findings that the Authority turned its mind to the requirements of s 473DD(b)(ii) or made a finding for the purpose of that subparagraph.
The Minister submitted in writing:
22.For similar reasons, the information contained in the March 2017 letter was not “credible personal information”. Whether new information is “credible” is a matter of assessment having regard to the context of the review material provided to the Secretary: see AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [22]. This includes the prior claims made by the applicant to the Delegate. In this case, the (then-represented) applicant had consistently claimed that he was not a member of the LTTE, and that his involvement was supporting the LTTE through providing assistance in the form of food and batteries. In this respect:
(a)on 26 June 2013, the applicant prepared a statement of claims following an interview with a legal representative (CB 89 - 94). The applicant here claimed that he and two of his close friends “were involved in providing assistance to the LTTE in our area” (at [7]). The applicant did not claim that he was an LTTE member;
(b)on 3 September 2016, the applicant signed a statutory declaration confirming that the “contents of this statement of 26th of June 2013 … is true and correct”, subject to minor amendments (CB 55). One of those amendments was to make clear that “[name omitted] was also a member of the LTTE’s intelligence wing”. The applicant did not say that he himself was a member; and
(c)the applicant did not suggest to the Delegate at interview that he was an LTTE officer, or that his involvement was more than supplying assistance with food supplies and other essentials.
23.Against that context, the March 2017 letter was not “credible personal information” as it was inconsistent with the entirety of the applicant’s claimed history (see also DR [4]).
While I accept that an assessment of whether new information is credible can be made in the context of the review material provided by the Secretary, the assessment is to be made by the Authority and not by the Court. The Minister’s submission appears to invite the Court to stand in the shoes of the Authority and make a merits-based assessment of whether the new information is credible personal information. When I put to Counsel for the Minister at the hearing that the Court is unable to assess for itself whether the information was credible personal information, Counsel for the Minister accepted that proposition subject to one qualification. That qualification was that it was a question for the Court as to whether it would ever be open to the Authority to consider the new information to be credible personal information. Counsel for the Minister accepted that was a much higher threshold than whether the Court itself considers the information to be credible personal information.
It is unnecessary to express a view in this judgment as to whether the Court may ever be able to make an assessment that new information was not credible, because I would not, in any event, accept the Minister’s submission that it was not open to the Authority in the present matter to find that the new information was credible personal information.
It was a matter for the Authority to determine whether the new information was credible personal information which was not previously known and, had it been known, might have affected the consideration of the applicant’s claims. The Authority might have found that the new information was not credible, in the sense that the information was not capable of being believed: see CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[42]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [75]. Such a finding may, or may not, have been based on the matters referred to in the Minister’s submissions. However, this was not the only finding that was open to the Authority. The Authority might have considered, had it turned its mind to the question, that the new information was capable of being believed, notwithstanding that the applicant did not raise it earlier when he had the opportunity to do so. It is not appropriate for the Court to make an assessment in the present matter as to whether the new information is credible personal information.
The Authority purported to consider and make a finding for the purposes of s 473DD(a) at [7] of its reasons. However, that assessment is necessarily incomplete in circumstances where the Authority did not make a finding on the matters referred to in s 473DD(b)(ii) and take that finding into account in assessing whether s 473DD(a) was met. As the High Court said in AUS17, the Authority’s findings for the purposes of s 473DD(b)(ii) can be viewed as a mandatory relevant consideration that needs to be taken into account in making an assessment for the purposes of s 473DD(a). The Authority therefore misconstrued and failed to complete its statutory task in relation to the application of s 473DD(a) of the Migration Act.
I then turn to consider whether this error is a jurisdictional error. As indicated above, an error made by the Authority will only be a jurisdictional error if it is material, in the sense that it could realistically have deprived the applicant of the possibility of a successful outcome.
The Minister submitted that any error by the Authority in relation to its approach to s 473DD of the Migration Act is not material. In his written submissions, the Minister gave the following two reasons for submitting that any error would not be material:
(a)first, because the Authority made findings that the letter did not give rise to any new claims or issues beyond those that were already before the Delegate (and therefore the Authority), any such failure would not be material; and
(b)second, because the Authority’s ultimate reasoning process - which included that the applicant was not of adverse interest to the authorities because he had been repeatedly released, and not charged or detained for more than one hour - would be unaffected by the content of the letter. Accordingly, the Authority’s ultimate conclusion would realistically have been the same.
In oral submissions, Counsel for the Minister accepted that the words ‘would realistically have been the same’ in the final sentence of this written submission could be replaced with ‘could not realistically have been different’ for consistency with the way in which the test is formulated at [32] of the High Court’s judgment in LPDT. The High Court said at [32] of LDPT, described the relevant question as ‘whether the decision that was in fact made by the Tribunal could, not would, “realistically” have been different had there been no error’. Counsel for the Minister submitted the test of whether something could realistically be different or would realistically be the same is effectively the same standard, and that is because if something would or must happen, that excludes the possibility that it could be something different.
In oral submissions, Counsel for the Minister explained the Minister’s materiality submission in more detail. Counsel for the Minister submitted that the Authority made findings in relation to why the applicant was not considered to be a person of interest to the authorities, including findings that when the applicant was questioned by the authorities he was always released; that it was not credible that the applicant was repeatedly threatened without those threats being carried out; that the fact he continued to live in his village after the end of the war without being detained for more than an hour at a time was indicative that he was not of interest to the authorities; and that he was never detained, arrested or charged with an offence. These findings were based on the applicant’s actual experiences and the Authority’s finding that the applicant was not of adverse interest to the authorities and the reasoning process it adopted to reach this finding would have been exactly the same whether or not the new information was considered.
I have considered the Minister’s submissions on materiality but have concluded that the Authority’s error in the approach to s 473DD was material.
The High Court explained the proper approach to assessing materiality in LPDT and said at [14]-[16] (footnotes omitted):
14.The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
If the Authority had turned its mind to the requirements of s 437DD(b)(ii) of the Migration Act, there is a realistic possibility that the Authority could have found the new information to be credible personal information. As discussed above, it would have been open to the Authority to find that the new information was not credible. However, it is not fanciful or improbable that the Authority might have accepted that the detailed information was credible personal information that was not previously known and, had it been known, might have affected the consideration of the applicant’s claims. If the Authority had accepted that the new information met the requirements of s 473DD(b)(ii), it would have had to take that finding into account in considering whether there were exceptional circumstances to justify considering the new information for the purposes of s 473DD(a) of the Migration Act. There is a realistic possibility, being one that is not fanciful or improbable, that the Authority could have accepted that there were exceptional circumstances to justify considering the new information.
If the Authority had found that the requirements of s 473DD were met, there is a realistic possibility that the outcome of the review could have been different. The matters referred to by the Minister, in relation to the Authority’s findings based on the applicant’s past interactions with the authorities in Sri Lanka, might mean that a different outcome of the review would not be the most likely outcome. However, that is not the relevant test. The possibility that the outcome might have been different in this matter is not fanciful or improbable. It is realistic. I could not find otherwise without engaging in merits review. The low threshold for materiality is met in this case.
I therefore find that the Authority’s error in its approach to s 473DD is a jurisdictional error.
Ground 1
By ground 1 of his application, the applicant asserts that the Authority failed to consider a relevant issue. In the particulars, the applicant asserts that the Authority accepted that he did intelligence work for the LTTE and that he would be imputed with a LTTE profile, but failed to discern a Convention reason, namely, being imputed with a LTTE profile.
The ground does not accurately reflect the findings made by the Authority or the assessment of the applicant’s claims conducted by the Authority.
The Authority did not make any finding that the applicant did intelligence work for the LTTE per se. Rather, the Authority accepted that from 2005 to 2008 the applicant provided food, diesel, batteries and electronic items to the LTTE and that his ‘primary contact’ during these transactions was a person who worked in the LTTE’s intelligence division. The Authority considered the applicant’s support to the LTTE to be ‘low level only’. The Authority carefully considered whether the applicant would have an actual or imputed pro-LTTE profile and found that the applicant was not of interest to the authorities and would not face a real chance of serious harm upon return to Sri Lanka. In so doing, the Authority carefully considered the applicant’s claims and the evidence before it and I accept the Minister’s submission that the Authority’s findings were open to it on the evidence before it.
The Authority was not required to make a finding as to whether the applicant himself did intelligence work for the LTTE, as no such claim was expressly articulated by the applicant in the materials that were before the Authority for the purposes of the substantive review, and no such claim clearly emerged from the material before the Authority based on established facts: see NABE v Minister for Immigration and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58], [60]-[61]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18] .
I do not accept that the Authority failed to consider a relevant issue or failed to consider whether the applicant would face a real chance of serious harm on account of any actual or imputed political opinion as an LTTE supporter.
The applicant’s ground can otherwise be viewed as an expression of disagreement with the Authority decision. Disagreement with a decision, even emphatic disagreement, does not of itself establish jurisdictional error in the decision: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Authority made a jurisdictional error by not considering country information. He asserts that LTTE supporters are still persecuted in Sri Lanka and that there is other country information suggesting that persons like the applicant will be persecuted on return to Sri Lanka. The applicant has not identified what country information he believes the Authority failed to consider.
The applicant did not make any submissions in relation to this ground. The Minister advanced submissions in response to this ground and I largely accept those submissions.
I accept the Minister’s submission that the Authority referred to various country information throughout its decision. I also accept that the choice of country information, and the weight to be given to country information is a matter for the Authority as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
With regard to country information about the risk of harm to actual or perceived LTTE supporters, the Authority had regard to the 2012 United Nations High Commissioner for Refugees (UNHCR) Guidelines and a report prepared by the United Kingdom Home Office. The Authority referred to these reports in its reasons at [31] and [32], where it said (footnotes omitted):
31.The 2012 United Nations High Commission for Refugees (UNHCR) Guidelines issued around the time of the applicant’s departure from Sri Lanka did not specify individuals of Tamil race as requiring protection for that reason alone. Furthermore, in the UNHCR’s opinion, individuals originating from an area where the LTTE were previously active, such as the applicant, did not require protection solely on that basis unless there were additional, relevant factors which may have given rise to a profile of risk. More recently, in 2016 the UK Home Office assessed that: “A person being of Tamil ethnicity would not in itself warrant international protection. Neither in general would a person who evidences past membership or connection to the LTTE unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport.”
32.In terms of real or perceived links to the LTTE, I note the UNHCR identified at that time, amongst other risk profiles, those who were involved with the supply or transport of goods for the LTTE and those with familial links to the LTTE as potentially in need of protection.
The Authority then considered the applicant’s personal circumstances in the light of this country information. In relation to the applicant’s past supply of goods to the LTTE, the Authority said at [33]:
I note the applicant’s evidence to the delegate that, although his village was under government control from 1997, a number of young men helped the LTTE in the same way he did; and overall I consider his assistance to the LTTE through the supplying of consumer items to be low-level. The applicant has claimed that he has a higher profile with the authorities because of the training he undertook with the LTTE, which he has described as for self-defence purposes and that it was organised through his local sports club. Country information before the delegate indicates the LTTE provided self-defence training to many Tamil men, women and children living in the Northern Province during the civil conflict, and I do not accept this would now contribute to any sort of adverse profile for the applicant.
The Authority proceeded to consider whether the applicant’s family connections would place him at risk of harm through an imputed LTTE profile.
The Authority also had regard to country information addressing the situation for Tamils in Sri Lanka more generally, and this country information included reports prepared by the Department of Foreign Affairs and Trade and the United States Department of State.
I accept that it was open to the Authority to choose to take this country information into account and to make the findings it made based on its consideration of the country information.
Ground 2 is not established.
Other matters raised by the applicant’s oral submissions
When invited to make oral submissions at the hearing, the applicant submitted that when he gave his submissions to the Authority, they asked for evidence relevant to those submissions, but he could not provide evidence as he was living in Australia at the time. Therefore, he could not provide letters or evidence to the Authority.
When I asked the applicant why he believes that gives rise to an error by the Authority, the applicant submitted that he does not know anything about the law and does not know whether the Authority rejected his claims because he did not provide evidence.
The applicant also submitted that he was mentally disturbed and confused and did not know where to get the evidence or what to get.
These matters do not establish jurisdictional error in the Authority decision.
First, there is no indication in the evidence before the Court that the Authority requested the applicant to provide additional evidence.
Second, even if I were to assume that someone, perhaps the delegate or the applicant’s representative, requested that the applicant provide additional evidence, and the applicant did not provide any additional evidence, that would not give rise to any jurisdictional error on the part of the Authority.
The Authority can only base its decision on the evidence before it. It was the responsibility of the applicant to specify all particulars of his claim to engage Australia’s protection obligations and to provide sufficient evidence to establish that claim: s 5AAA of the Migration Act. The Authority was not under any obligation to assist the applicant to advance further or better claims for protection: see Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187]; DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 289 FCR 346; [2021] FCAFC 229 at [80]. The applicant’s claimed inability to provide evidence to support his claims does not amount to a jurisdictional error in the Authority decision.
Third, the applicant’s claim that he was mentally disturbed and confused also does not establish jurisdictional error in the Authority decision. As I explained to the applicant at the hearing, I cannot make a finding that he was mentally disturbed or confused without evidence. In any event, the applicant has not explained how any mental disturbance or confusion, even if supported by evidence, gives rise to jurisdictional error in the Authority decision.
There is therefore no jurisdictional error arising from the matters referred to in the applicant’s oral submissions.
Conclusion
Given that I have found that the Authority made a jurisdictional error in its application of s 473DD of the Migration Act, the application for judicial review is allowed. I am satisfied that it is appropriate to issue writs of certiorari and mandamus.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 12 June 2024
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