EXB17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 885
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EXB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 885
File number(s): MLG 2392 of 2017 Judgment of: JUDGE J YOUNG Date of judgment: 13 September 2024 Catchwords: MIGRATION – application for judicial review – Safe Haven Enterprise Visa - where Immigration Assessment Authority affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 - where certain grounds raised by applicant seek impermissible merits review - whether the Authority erred by making a finding that was illogical or irrational – found the Authority’s reasoning was clear and intelligible – whether the Authority erred by failing to comply with s 473DD of the Act – found the Authority considered both limbs of s 473DD(b) before considering s 473DD(a) and provided clear reasons as to why it was not satisfied the new information met the criteria - found no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2A), 65, 473CB, 473DD, 473DE, 474, 476, Pt 7AA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2
Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199
Craig v South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
NABE v Minister for Immigration and Multicultural Affairs (No 2) 144 FCR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZTAL v Minister for Immigration and Border Protection & Anor; SZTGM v Minister for Immigration and Border Protection & Anor [2017] HCA 34
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 14 August 2024 Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Moxey of Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2392 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Application filed 8 November 2017 be dismissed.
3.The Applicant pay the costs of the First Respondent fixed in the sum of $8,371.30.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 8 November 2017, in which the applicant seeks judicial review of a decision of the second respondent (Authority) dated 19 October 2017. By that decision, the Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (Visa).
CONTEXT
The applicant is a citizen of Sri Lanka.
On 13 November 2012 the applicant arrived in Australia by boat as an unauthorised maritime arrival.
On 21 December 2015, the Department of Immigration and Border Protection (Department) sent the applicant an invitation to apply for a Temporary Protection visa or a Safe Haven Enterprise visa.
On 18 October 2016, with the assistance of a migration agent, the applicant applied for the Visa. The applicant’s claims were set out in a Statutory Declaration dated 11 October 2016 attached to his Visa application (Statutory Declaration dated 11 October 2016). Relevantly, the applicant’s claims for protection can be summarised as follows:
(1)the applicant is a Hindu Tamil from the Eastern Province;
(2)sometime in 2012, the applicant supported and became involved with the Tamil National Alliance (TNA) political party;
(3)he assisted the TNA during the election and was actively and visibly campaigning and recruiting voters in Batticaloa. He had a feeling that during this time he was being watched by pro-government forces;
(4)about a week or two after the September 2012 election, the applicant was approached in a “threatening manner” by two men who asked him if he wanted to live or wanted to go in a coffin. The applicant believes the men knew who he was and were from the government forces. He was immediately afraid that they would assault him and he would be killed, but someone came past and the men ran away (September 2012 incident);
(5)he did not report the September 2012 incident to the police as he feared he and his family’s lives would be put in danger or that the police were possibly associated with the men;
(6)after this incident, the applicant rarely left his home as he feared the men would come to his home and take him away;
(7)after the applicant arrived in Australia, he heard that some men approached his family and asked them where he was. He suspects his family were being watched because of him; and
(8)the applicant fears that the pro-government forces will adduct him, beat, assault, torture and kill him and his family.
On 27 February 2017, the Department invited the applicant to attend an interview on 20 March 2017 to discuss his Visa application (Visa Interview).
On 30 March 2017 the Delegate refused to grant the applicant the Visa (Delegate’s Decision).
On 4 April 2017, the Delegate’s Decision was referred to the Authority for review.
On 25 April 2017, the applicant’s newly appointed migration agent emailed the Authority and provided a submission on behalf of the applicant (IAA Submission) and a further Statutory Declaration of the applicant dated 25 April 2017 (Further Statutory Declaration). The Further Statutory Declaration contained two new claims:
(1)sometime in May 2009 the applicant was apprehended and accused by security forces of supplying items to the LTTE whilst working for a health care company (LTTE claim); and
(2)unidentified men who purported to be from the CID continued to question the applicant’s parents about his whereabouts and threatened his parents stating that they were aware that the applicant was currently in Australia, and he was required to attend the local police station for further questioning on return (Continued Visits Claim)
On 19 October 2017, the Authority affirmed the Delegate’s Decision not to grant the applicant the Visa.
IMMMIGRATION ASSESSMENT AUTHORITY DECISION
The Authority issued its statement of decision and reasons on 19 October 2017 (Authority Decision).
Information considered by the Authority
At paragraph [3] of the Authority Decision, the Authority stated that it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act).
At paragraph [4], the Authority stated that it had received the IAA Submission and the Further Statutory Declaration, noting that the Further Statutory Declaration was made after the Delegate’s Decision. At paragraph [5] the Authority noted that the Further Statutory Declaration contained an explanation by the applicant for the provision of additional information, being that he was unrepresented at the Visa Interview and was intimidated throughout the hearing as the Delegate’s appearance reminded him of a Sinhalese person. At paragraph [6], the Authority noted that the Further Statutory Declaration raised a new claim by the applicant, being the LTTE Claim. The Authority noted that in the Further Statutory Declaration, the applicant stated that he did not raise this claim earlier as he was told not to by members of the Tamil community who told him that the LTTE were considered a terrorist organisation and any mention of perceived involvement with the LTTE would lead to the automatic rejection of his Visa application.
At paragraph [7] of the Authority Decision, the Authority noted that the applicant received assistance from a registered migration agent in preparing his Visa application. The Authority considered the applicant’s arguments as to why he did not provide the information earlier, but ultimately was not satisfied that the applicant could not have provided this information to his agent during the preparation of his Visa application, who was aware of the importance of providing all relevant information pertinent to his claims. The Authority was not satisfied that the information was credible personal information that had it been known may have affected the consideration of his claims or that the information could not have been provided to the Delegate before a decision was made. Further, the Authority was not satisfied that exceptional circumstances existed to justify considering the new information.
At paragraph [8] of the Authority Decision, the Authority noted that the Further Statutory Declaration also included new information that unidentified men who purported “to be from the CID” continued to question the applicant’s parents about his whereabouts (the Continued Visits Claim). The Authority found that the statement lacked detail and was not satisfied that it contained credible personal information that had it been known may have affected the consideration of his claims, or that the information could not have been provided to the Delegate before a decision was made. Further, the Authority was not satisfied that exceptional circumstances existed to justify considering the new information.
Consideration of claims
At paragraph [9] of the Authority Decision, the Authority summarised the applicant’s claims for protection.
At paragraphs [13] – [22] of the Authority Decision, the Authority considered the applicant’s claim to be a young Tamil male from the Eastern province and his support for the TNA.
At paragraph [13], the Authority accepted that the applicant is an ethnic Tamil born in the Eastern Province. At paragraph [16], the Authority accepted that the applicant was involved with the TNA and that he did some minor propaganda work for them. The Authority accepted that around election time, the applicant felt that he was being watched by pro-government forces. The Authority accepted that the applicant was involved in an incident involving two unidentified men however found that this incident was an isolated event.
At paragraph [17] of the Authority Decision, the Authority noted that the applicant was able to attend normal activities during the election and was able to leave the September 2012 incident without harm. The Authority was not satisfied that the absence of any further harm directed to the applicant was due to the applicant staying at home and keeping a low profile. The Authority was not satisfied that the applicant had a profile which would have attracted the attention of the Sri Lankan authorities, and that it was implausible that they would be interested in the applicant.
At paragraphs [18] – [20], the Authority considered relevant country information relating to elections in Sri Lanka and the applicant’s Tamil ethnicity. At paragraph [21], the Authority considered that given the minor level of the applicant’s involvement with the TNA, the length of time that had elapsed since the events of 2012, the isolated nature of the September 2012 incident, and the country information which indicated that the political landscape had changed considerable since the applicant left Sri Lanka, the applicant did not face a real chance of serious harm on account of his TNA activities or his ethnicity. At paragraph [22], the Authority was also not satisfied that the applicant would be imputed to hold pro-LTTE opinions or be involved with the LTTE, noting that the applicant’s evidence at the Visa interview that the applicant nor the applicant’s family had ever been associated with the LTTE.
At paragraphs [23] – [31] of the Authority Decision, the Authority considered the applicant’s claim to fear harm as a returning asylum seeker who departed illegally. Having considered relevant country information, the Authority accepted that the applicant would be questioned and investigated on return to Sri Lanka and may be charged and fined under the Immigrants and Emigrants Act (I&E Act). However, the Authority found that the applicant had no adverse profile with the authorities and did not accept that the applicant would be imputed with any pro-LTTE opinion. Accordingly, the Authority was not satisfied that the applicant faced a real chance of harm on the basis of being a returning asylum seeker who departed illegally.
Accordingly, the Authority was not satisfied that the applicant met the criteria in sections 36(2)(a) or (aa) of the Act and thereby affirmed the Delegate’s decision.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Authority Decision on 8 November 2017. The Application contains the following grounds for judicial review (without amendment):
1.The Immigration Assessment Authority’s finding at paragraph 21 that the applicant was threatened by unidentified men due to his profile as a Tamil who supported TNA party. Its finding that it was an isolated incident was not supported by evidence. Such finding was so illogical and irrational reasoning which was not supported by evidence.( Reference to Minister for Immigration and Citizenship —V- SZMDS {2010} HCA 16)
2.The Immigration Assessment Authority did not assess that applicant’s claim cumulatively being a Tamil of Hindu faith from the East of Sri Lanka and his connection with TNA (political opinion contrary to the government of Sri Lanka) by not doing so fell in to jurisdictional error.
3.The Immigration Assessment Authority has not complied with section 473DD & 473 DE of the Migration Act 1958 when finding that there are no exceptional circumstances to justify considering new information.
4.The Immigration Assessment Authority accepted the applicant could face prison term for illegal departure from Sri Lanka. It fell into jurisdictional error when it failed to consider whether the Sri Lankan authorities had the necessary intent of harm because they foresaw the consequences of their actions.
An affidavit annexing a copy of the Authority Decision was also filed in support of the Application. No other material was filed by the applicant in support of the Application.
The Minister filed a Response on 27 November 2017. The Response sought orders that the Application be dismissed and orders as to costs on the ground that the Authority Decision is not affected by jurisdictional error.
The Minister also filed written submissions on 31 July 2024.
Hearing
The Hearing took place on 14 August 2024.
The applicant was assisted by an interpreter in the Tamil and English languages at the hearing.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
LEGISLATIVE CONTEXT
Part 7AA of the Act provides a fast track review process in relation to certain protection visa decisions. Under Part 7AA, the Authority must review a “fast track review decision” made by the Minister refusing under s 65 to grant a protection visa to a "fast track applicant”.
The presently relevant sections of Part 7AA are as follows.
Section 473DD provides as follows:
Considering new information in exceptional circumstances
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;
(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.
CONSIDERATION
Applicant’s general submissions
At the hearing the applicant’s submissions focused on his involvement in TNA activities and propaganda work, the threats that he asserts he received as a consequence of that involvement and the questioning of his siblings as to his whereabouts that he asserts has subsequently occurred. He submitted that everything he has said is true and, as I understand it, contests the Authority’s findings that he does not meet the criteria for protection under the Act as a refugee or the complementary protection provisions. Accordingly, it appears that the applicant is generally dissatisfied with the Authority’s decision and asked the Court several times whether it could rehear or redetermine his application. As was endeavoured to be explained to the applicant, the role of the Court on judicial review is not to undertake a general review of the Authority’s decision or substitute it with another decision. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ (Liang). Further, the weight to be given to particular evidence is a matter for the Authority: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
For completeness, at the hearing the applicant sought to rely upon a document entitled “Register of Deaths”. The applicant said this was a death certificate for his uncle, whom the applicant said had been killed by the same people who threatened him. The applicant confirmed that he had not provided this document to the Authority and upon this basis, the Court refused to accept it into evidence.
Ground 1
By Ground 1 the applicant submits that it was illogical or irrational for the Authority to find that the September 2012 incident was an isolated incident.
In oral submissions at the hearing the applicant submitted that he was threatened on more than one occasion, variously saying that he was threatened many times and then that he was threatened two or three times, and that he provided this information to the Department and the Authority.
Consideration
The characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicant must do more than merely disagree with the reasoning or resulting finding: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ. Engaging in a process of reasoning that is illogical or irrational is taken to refer to “extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
At paragraph [14] of the Authority Decision, the Authority said:
In his SHEV statement the applicant claimed that he was involved in an incident a week or two after the elections where he was threatened by unidentified men. In his SHEV interview he elaborated on this claim and said that he was on his way to the pharmacy to purchase medicine for his mother. He was stopped by the men at night and he believes they were connected to the government forces. The men threatened him and he was immediately intimidated and afraid. He was able to escape and return to his home when people on the three-wheeler rickshaw and motor bike came past. He said that after this incident he reduced his movements, did not venture out of his home, however, he would sometimes play cricket and go to the shops. At his SHEV interview the applicant said that between this incident and leaving Sri Lanka, nothing happened to him, however this was because he mainly stayed around his home. He did not report this incident to the police as he feared the police were either associated with or protecting these men and there would be a revenge attack.
At paragraph [21], the Authority said:
I accept that the applicant had one isolated incident where he was threatened by unidentified men and this was most likely due to the heightened tensions immediately after the 2012 elections. I accept that this incident may have been the result of the applicant’s support for the TNA at the time, however, aside from this isolated incident, where the applicant did not suffer any further harm and for the reason given earlier, I am not satisfied that he was singled out or targeted for any reason. It is now some five years later and I am not satisfied there was any interest in the applicant on account of his TNA activities or his ethnicity. I accept that the applicant participated in low level propaganda activities for the TNA and helped the TNA with minor tasks. There is no independent evidence to suggest that low level TNA supporters, such as the applicant, face a real chance of harm many years after elections. The applicant has not engaged in any political activity in Australia nor has he indicated that he would continue to assist the TNA in the future. Given the minor level of the applicant’s involvement with the TNA, the length of time that has elapsed since the events of 2012, the isolated nature of that incident, and the country information indicating that the political landscape has changed considerably since the applicant has left Sri Lanka, I consider that the applicant does not face real chance of serious harm on this basis if he returned to Sri Lanka…
The evidence before the Court is as follows:
(a)the applicant’s Irregular Maritime Arrival Entry Interview dated 2 January 2013 records that the applicant provided the following response to the question “Why did you leave your country of nationality (country of residence)?”:
There was an election in my area on 8/09/2012 and I was supporting the Tamil National Alliance. I was heavily involved in the election campaign for that party. I visited many villages surrounding my town involved in this election campaign. I advised them to vote for the TNA and the benefits of supporting this party for the Tamil people. I was involved heavily in those campaigns. After the election on 16/09/2012, two men came and threatened me for my involvement in the campaign, because of that threat, I fled the country.
This incident happened when I went to the medical shop to buy medications for my mother at 7:15 in the evening. When the approached me, there were a few people coming on a Tri shaw. So they threatened me and left me. The fear I have, there were many people targeted by these groups.
After this incident, my mother was highly worried about my situation. There were many political activists, abducted and killed by unknown groups, so my mother advised me to flee from there.
Q: Who were the people that threatened you?
A: They were unknown men. Two approached me and when they approached me the first questions were, “don’t you want to live, do you want to die?”. I was lucky three people came on the Tri Shaw, so they let me go. Because the tri shaw came, the left me but later on they can harass me or harm me.
After that I totally stopped going out in the night time. I avoided going far where there was no crowd. I always tried to be with the crowd to be safe.
(b)in the Statutory Declaration dated 11 October 2016, the applicant declared, amongst other things, the following:
I supported and became involved with the Tamil National Alliance (TNA) political party in 2012.
…
I assisted the TNA during the election … I had a feeling that during this time I was being watched by pro-government forces.
…
About a week or two after the September 2012 election I was approached by two men who stopped me in the street at night. They must have known who I was. I did not recognise them but they must have been connected to the government forces. They came close to me in a threatening manner and asked me if I wanted to continue to live or if I wanted to go in a coffin. I as immediately afraid that they would assault me and I would be killed. I was lucky that someone came past in a three wheeler and on a motorbike and the men ran away.
I did not go to the police to report the men as I feared that if I had reported the men, anything could happen. I feared that this would put my life in further danger and that there would be a revenge attack by the men or that the police were possibly associated with or were protecting the men. I feared my family would have also been in danger if I had gone to the police.
I told my family what had happened and they got scared. I was afraid that the men would return and that I would be killed or abducted or never seen again.
After this incident I rarely left the house and I did not go out at night. I feared the men would come to my family home and take me away,
(c)the Delegate’s Decision at paragraph [10] records that the applicant’s evidence at the Visa Interview was as follows:
The applicant stated that on 16 September 2012 one week after the election, when he went to the pharmacy to buy some medicine he was threatened by two unidentified people because he supported the TNA during the election. He stated that from that day until he left Sri Lanka in November 2012 he did not go out most of the time however he would go out for shopping and to play cricket. He stated that after that incident nothing happened because most of the time he stayed home.
(d)in the Further Statutory Declaration at paragraph [4] the applicant declared as follows:
I have supported and became involved with the Tamil National Alliance (TNA) in 2012. The provincial election was held on 8th September 2012 and I actively campaigned for the TNA in this election. On 16 September 2012 around 7.00 PM at night I was threatened by two armed men with death. This was the incident which triggered my departure from Sri Lanka clandestinely by boat.
Accordingly, the Authority’s findings at paragraph [21] reflect the applicant’s evidence. On the material before the Court, the applicant has only ever claimed that he was threatened once in the September 2012 incident. The Authority’s finding at paragraph [21] is therefore neither illogical nor irrational. Indeed, it was the only finding available to it on the evidence.
Ground 1 discloses no jurisdictional error on the Authority’s behalf.
Ground 2
By Ground 2 the applicant asserts that the Authority erred by failing to assess the applicant’s claim to fear harm on the basis of being a Tamil of Hindu faith from the East of Sri Lanka and his connection with TNA cumulatively.
Consideration
That submission must be rejected.
In his Statutory Declaration dated 11 October 2016 the applicant said at paragraph [1]:
I am a 32 year old citizen of Sri Lanka. I am of Tamil ethnicity and Hindu faith. I fled my country in November 2012 because I feared I would be killed due to my active involvement with Tamil National Alliance and my outspoken political views.
At paragraphs [13] – [22] of its decision, the Authority considered the applicant’s claim to fear harm on the basis of being a “young Tamil male from the Eastern province/support for the TNA”. At paragraph [23] - [29] the Authority considered the applicant’s claim to fear harm on the basis of being “a returning asylum seeker who departed illegally”.
At paragraph [30] of the Authority Decision, the Authority said:
I am not satisfied on the evidence before me that merely being an asylum seeker, or Tamil asylum seeker is enough, to give rise to a real chance of harm on return. I am also not satisfied that the applicant, a Tamil asylum seeker with his history, faces a real chance of any harm on that basis.
Accordingly, the Authority considered the applicant’s claims to fear harm cumulatively on the basis of being an asylum seeker, a Tamil asylum seeker and a Tamil asylum seeker with his history. While the applicant stated that he was a Hindu in the Statutory Declaration dated 11 October 2016 and in the Further Statutory Declaration, he made no claim to fear harm on account of his Hindu religion nor does any such claim clearly arise on the materials: NABE v Minister for Immigration and Multicultural Affairs (No 2) 144 FCR 1 at [58].
Accordingly, Ground 2 discloses no jurisdictional error on the Authority’s behalf.
Ground 3
By Ground 3 the applicant contends that the Authority erred by failing to comply with s 473DD and 473DE of the Act.
Consideration
At set out above at paragraph [9], on 25 April 2017 the applicant provided the Further Statutory Declaration to the Authority which contained two new claims; the LTTE claim and the Continued Visits Claim.
The applicant’s representative also provided written submissions, the IAA Submission, which addressed the LTTE claim at paragraphs [11]-[14].
The provisions of s 473DD are set out at paragraph [33] above.
In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, the High Court held at [11] in relation to s 473DD that new information must first be assessed 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.
With respect to the applicant’s LTTE claim, at paragraph [7] the Authority said:
I note that the applicant received assistance from a registered migration agent who was a senior supervising solicitor from Refugee Legal when preparing his application for SHEV. The applicant’s agent was aware of the importance of providing all relevant information pertinent to his protection claims when preparing his SHEV application. I have considered the applicant’s claims that he was unrepresented at his SHEV interview, was intimidated throughout the hearing and unable to say everything he wanted due to the delegate being Sinhalese. I am not however satisfied that the applicant could not have provided this information to his agent during the preparation of his SHEV application. I accept that the applicant may have warned by the Tamil community that the LTTE were considered a terrorist organisation and any mention of perceived involvement with the LTTE will lead to the automatic rejection of his application,
Accordingly, the Authority considered both limbs of s 473DD(b) before considering s 473DD(a). The Authority noted that the applicant received legal assistance when preparing his Visa application. The Authority was not satisfied that the applicant could not have provided this information to his migration agent when preparing the Visa application, who was aware of the importance of providing all relevant information pertinent to his claims. The Authority noted that the applicant was put on notice by the Delegate that the onus was on him to provide any information relevant to his claims.
With respect to the applicant’s Continued Visits Claim, at paragraph [8] the Authority said:
The statutory declaration also includes information not previously mentioned by the applicant that he has recently been informed by his siblings that unidentified men continue to visit his home in Sri Lanka questioning his parents about his whereabouts. These men purport to be from the CID and threatened his parents stating that they were aware that the applicant was currently in Australia and that he was required to attend the local police station for further questioning upon his return. The statement does not elaborate or provide details on the dates that the applicant claims he was informed by his siblings that unidentified men continued to visit his home. The statement lacks detail and the applicant has not satisfied me that this is credible personal information that had it been known may have affected the consideration of his claims or that the information could not have been provided to the delegate before a decision was made. I am also not satisfied that there are exceptional circumstances exist to justify considering this new information.
For the reasons set out above, the Authority considered both limbs of s 473DD(b) before considering s 473DD(a) and provided clear reasons as to why it was not satisfied the new information met the criteria. At paragraph [7] of its decision, the Authority was not satisfied that the information was credible personal information that had it been known may have affected the consideration of his claims or that the information could not have been provided to the Delegate before a decision was made. It then found exceptional circumstances did not exist. The Authority was aware of the terms of the requirements in s 473DD(b) as is evident from the Authority’s reference to the criteria in its discussion of the new information at paragraph [7] of its decision: CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 at [112]-[113].
As set out above, paragraph [11] – [14] of the IAA Submission referred to the LTTE claim. Those submissions do not further articulate the LTTE claim but rather applied that claim to country information (which was before the Authority) and made submissions as to how the claim ought be considered based on that country information. Accordingly, the IAA Submission did not provide any further information than that which the Authority had declined to consider under the new information provisions in s 473DD. Accordingly, I accept the Minister’s submission that in those circumstances there is no realistic possibility that the Authority’s decision would have been different had it considered the information in the IAA Submission under s 473DD of the Migration Act: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12.
As to the submission that s 473DE was not complied with. That submission is misconceived. Section 473DE provides as follows:
Certain new information must be given to referred applicant
(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.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Section 473DE therefore applies in circumstances where new information is to be given to the referred applicant, not as here, where the referred applicant provides new information. As such, the Authority was not required to comply with s 473DE and a failure to do so does not give rise to any error on the Authority’s behalf.
Ground 4
By Ground 4 the applicant submits that the Authority erred by failing to consider whether the Sri Lankan authorities had the necessary intent of harm because the applicant may face a prison term as a returning asylum seeker who illegally departed Sri Lanka.
At the hearing the applicant submitted that if he returned to Sri Lanka he would face harm, the persons who had threatened him had already come to his house and his siblings had been questioned as to his whereabouts, and in 2012 while he was in Sri Lanka a person had slapped him and that person had a pistol on his hip.
Consideration
At paragraphs [23] - [30] of the Authority Decision, the Authority considered the applicant’s asserted fear of harm as a returning asylum seeker who had departed the country illegally. The Authority at [25] accepted that upon return the applicant may be arrested and charged under the I&E Act before being released. However, the Authority found, based on DFAT reports, that if the applicant plead guilty there was no real chance that the applicant would be given a custodial sentence because he was not involved in organising or facilitating people smuggling. At paragraph [27], the Authority found that any period of detention which may follow arrest did not constitute serious harm. At paragraph [26], the Authority found that if the applicant did not plead guilty, a fine, surety or guarantee would likely be imposed. The Authority was also not satisfied that this constituted serious harm. Further, at paragraph [28] the Authority found that the treatment of the applicant under the I&E Act was not discriminatory conduct but rather the application of a law which applies to all Sri Lankans. At paragraph [30] and [31] the Authority concluded:
I am not satisfied on the evidence before me that merely being an asylum seeker, or Tamil asylum seeker is enough, to give rise to a real chance of harm on return. I am also not satisfied that the applicant, a Tamil asylum seeker with his history, faces a real chance of any harm on that basis.
I find that the applicant does not face a real chance of persecution on returning to Sri Lanka.
Further, at paragraphs [33] - [37] the Authority considered whether the applicant faced significant harm for the purposes of s 36(2A) of the Act. At paragraph [35] the Authority said:
I have found that the applicant does not face a real chance of harm as a result of being a Tamil male from the Eastern province, his support for the TNA or his status as a returning asylum seeker now or in the reasonably foreseeable future. I have considered whether the applicant would face significant harm for these reasons and as ‘real chance’ and ‘real risk’ have been found to equate to the same threshold, I am also satisfied that there is not a real risk that he would face significant harm for these reasons.
At paragraph [36] of the Authority Decision, the Authority stated:
I accept that the applicant will be detained at the airport for questioning and security and character checks as a result of his illegal departure. He may be charged with an offence under the I&E Act because he departed Sri Lanka illegally and fined. He may be remanded in custody. for a short period either at the airport or at a prison, while waiting to be brought before a magistrate who will most likely quickly grant bail. I do not accept that there are any particular aspects of the applicant’s profile that would result in his being detained for a longer period or subjected to more intensive interrogation that might give rise to significant harm. I am not satisfied that there is a real risk that the applicant will be subject to the death penalty or that he will be arbitrarily deprived of his life. I do not accept that the process outlined above amounts to significant harm, or that the applicant would be exposed to significant harm during this process. Nor does the penalty likely to be imposed on the applicant, or the remand conditions he may face, amount to any form of significant harm. I am not satisfied that there is an intention to inflict pain or suffering, severe pain or suffering or cause extreme humiliation. I am not satisfied that there is a real risk that the applicant will face torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, including as a result of conditions he may face during a short period in custody.
Accordingly, contrary to the applicant’s submissions the Authority did consider the risk of harm to the applicant because the applicant may face a prison term as a returning asylum seeker who illegally departed Sri Lanka. However, the Authority was not satisfied that the acts or omissions of the Sri Lankan authorities in the process of remand, detention and investigation of the applicant were intended to cause pain or suffering or extreme humiliation. In SZTAL v Minister for Immigration and Border Protection & Anor; SZTGM v Minister for Immigration and Border Protection & Anor [2017] HCA 34 (SZTAL), the High Court held that the reference in the Act to “intentionally inflicting” and “intentionally causing” is given the natural and ordinary meaning of the word “intends” and therefore to actual, subjective, intent: at [26] per Kiefel CJ, Nettle J and Gordon J. In particular, the High Court held that knowledge or foresight of a result is not to be equated with intent: SZTAL at [27]. In the present circumstances it was open to the Authority to conclude that any detention would not involve the intentional infliction of pain or suffering and therefore not constitute significant harm.
As to the applicant’s submissions advanced at hearing, those matters were not before the Authority.
Accordingly, Ground 4 discloses no error on the Authority’s behalf.
CONCLUSION
For the reasons set out above, the Application must be dismissed.
The Minister seeks that the Applicant pay its cost in the amount of $8,371.30. I note that this is in accordance with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 13 September 2024
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