Eyz17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 34
•23 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EYZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 34
File number(s): MLG 2450 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 23 January 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – where applicant claimed to fear harm on the basis of, amongst other things, ethnicity and actual or imputed political opinion as a sympathiser of the LTTE – consideration of whether the Authority’s finding that the applicant did not face a ‘real chance’ of serious or significant harm was reasonably open in light of its ‘cumulative’ findings – further consideration of whether Authority applied correct test in finding that new information provided by the applicant was not ‘credible personal information’ – construction of s 473DD(b)(ii) of the Migration Act 1958 (Cth) – further consideration of whether Tribunal’s determination not to consider new information under s 473DD was legally unreasonable – admissibility of incomplete transcript of applicant’s interview with the delegate – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 473DD Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
BDF17 v Minister for Immigration, Citizenship, Migrant Services [2021] FCA 401
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106
FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 143 Date of last submission/s: 6 September 2023 Date of hearing: 6 September 2023 Place: Melbourne Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ravi James Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 2450 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EYZ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.The applicant’s application filed on 14 November 2017 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision by the Immigration Assessment Authority (‘the Authority’) made on 24 October 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (‘SHEV’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The applicant is a Sri Lankan national of Tamil ethnicity.[1]
[1] Court book at pages 4 and 7.
He arrived in Australia as an illegal maritime arrival on 5 November 2012.[2]
[2] Court book at pages 1 to 20.
Irregular Maritime Arrival Entry Interview on 16 January 2013
On 16 January 2013, an Irregular Maritime Arrival Entry Interview was conducted with the applicant.[3] The applicant was assisted by an interpreter in the Tamil language.
[3] Court book at page 2.
In his entry interview, when asked why he left Sri Lanka, the applicant said that after his brother died from a shell attack, his parents moved with him to India.[4] He said that he left India because there was ‘no peace’ there and ‘they always call us refugees, everywhere we go we have to inform the police, there is no peace’. The applicant further stated that his relatives had been in the Liberation Tigers of Tamil Eelam (‘LTTE’) and his family are in Vanni and ‘so we are targeted by the army’. The applicant further said that ‘there will be no guarantee for my life’.
[4] Court book at page 15.
The applicant said that he was beaten up in Vavuniya, the assailants broke his arm and pulled his nails out. He said that the army then came and asked him how much money he had, he gave them 15,000 rupees and they let him go.
Application for SHEV on 19 February 2016
Under cover of a letter from his representative dated 19 February 2016, the applicant lodged his application for a SHEV.[5]
[5] Court book at page 48 and following.
In that letter, the applicant’s representative stated that the applicant faced a real chance of persecution if he had to return to Sri Lanka because of his ethnicity as a young Tamil male from the Northern Tamil area Killinochchi which was under the control of the LTTE for many years prior to its defeat in 2009.[6]
[6] Court book at page 48.
The applicant’s representative further stated that the applicant faced a real chance of persecution because of his actual or imputed political opinion, including as a sympathiser of the LTTE, not only because of where his residence in Killinochchi, but also because of the membership of his close relatives in the LTTE.
The applicant’s representative also said that the applicant fled Sri Lanka to India in 1993 to avoid conscription into the LTTE and due to his fear of persecution or death by Sri Lankan Security Forces on suspicion of having LTTE connections.[7] In October 2012, the applicant again fled to Australia and sought asylum. The applicant’s representative submitted that the applicant had no legal right to return to India as he had been living illegally there after overstaying his tourist visa and that his country of citizenship is Sri Lanka.
[7] Court book at page 49.
The applicant also claimed that if he were to be returned to Sri Lanka, he would also face risk of harm due to his membership of a ‘particular social group’, namely, as a failed asylum seeker.[8] Further the applicant claimed that the Sri Lankan government is not able to protect him, nor is the applicant able to relocate elsewhere in Sri Lanka as the applicant fears harm at the hands of the Sri Lankan security forces and their Tamil alliances who are present throughout Sri Lanka.
[8] Court book at page 49.
In his application form, the applicant said:
My home country is Sri Lanka. However, I fled to India from Sri Lanka in 1993 due to fear of persecution in the hands of Sri Lankan security forces and to avoid forced recruitment by the LTTE, where I was living as a Refugee by overstaying my tourist visa registered as a Refugee with the Indian Police. I fled from India where I did not have any legal status to live permanently, due [to] the thereat (sic) I had from my father-in-law because of my nationality as a Sri Lankan Tamil. He was angry that I married his daughter without informing him that I am a Sri Lankan Tamil.
I left India without informing the Indian Police or authorities illegally from the seashore of South India by boat to Christmas Island, Australia.[9]
[9] Court book at page 70.
Applicant’s statement dated February 2016
In a statement dated February 2016, the applicant provided greater detail about his fears of harm if he were to return to Sri Lanka.[10]
[10] See Court book at pages 88 to 92.
The applicant again set out the circumstances in which he grew up, and in particular, the circumstances which led to him leaving his country in November 1993 when he was only 16 years of age. He says that he was the youngest of eight children and his brother, who was only two and a half years older than him, was killed in 1991 when he was only 15 years of age. The applicant says that for a period after his brother was killed, he and one of his sisters were very badly affected and that they were under the care of a psychiatrist and were prescribed medication for a while.
The applicant also says that as a child, he was greatly affected by the sounds of gun shots and bomb blasts. He says that at about this time, the Sri Lankan Army (‘SLA’) would surround their village and frequently come into the houses and arrest young men and women and take them into custody on suspicion of being LTTE members.
The applicant further states that the LTTE would try and recruit members at schools. This would lead to the army also regularly coming into schools and threatening staff and students. Consequently, the applicant says that he was also fearful about attending school.
The applicant claimed that one day in September 1993, his father took him to Colombo. On the way there, he was detained by the SLA on suspicion of being an LTTE member and was subjected to interrogation and torture. He repeated earlier claims that they broke his elbow, beat him and pulled his toenails out, and that his father ultimately paid 15,000 rupees and the applicant was released later in the evening.
The applicant further states that it was not safe in Colombo either, but he and his father remained there for three months while they obtained a passport and tourist visa to go to India. The applicant then moved to India and, as stated, remained there until about October 2012 when he came to Australia.
The applicant said he met his wife in Chennai, India in about 2008. At her request, he did not tell her family that he was a Sri Lankan Tamil. They married and lived a peaceful life for about a year or so until his father-in-law found out that he was a Sri Lankan refugee and became very angry and threatened him, including that he would falsely reporting the applicant to the police and inform them that the applicant was a member of the LTTE so that he would ‘be in … prison forever’.
The applicant says that he took the threats by his father-in-law seriously, but that due to his family’s association with the LTTE, and the circumstances in which he left Sri Lanka, he could not return to Sri Lanka. It was in those circumstances that the applicant ultimately decided to come to Australia as a maritime arrival to seek protection.
The applicant says that he is now in a situation where he cannot return to India, nor can he safely return to Sri Lanka due to involvement by members of his family in the LTTE.
On 13 December 2016, the applicant was invited to attend an interview with the delegate, scheduled for 6 January 2017.[11]
[11] Court book at page 243.
By letter dated 13 January 2017, the applicant’s representative provided a copy of a Psychological Assessment Report prepared by Randolph Monteiro, psychologist, and dated 9 January 2017 in support of the applicant’s application for a protection visa.[12]
[12] Court book at pages 255 to 261.
The applicant’s representative also made further submissions in this letter, including that the applicant also had imputed a political opinion as being in support of the LTTE and against the Sri Lankan government on account of:
(a)the fact that he fled to India and stayed there as a refugee for an extended period; and
(b)his illegal departure from India and extended presence in Australia as an asylum seeker.[13]
[13] Court book at page 256.
The applicant’s representative further submitted that in addition to being part of the particular social group of ‘failed asylum seekers’, he was also part of a particular social group as being ‘perceived wealthy’.[14] It was submitted that the Sri Lankan authorities would arrest and detain him for that reason alone.
[14] Court book at page 256.
The applicant’s representative also submitted that although the war in Sri Lanka had concluded, ‘the culture of Sri Lankan Security Forces has not changed´ and that those suspected of having connections with the LTTE were still in danger of being arrested, abducted, detained and ill-treated. It was submitted that it would be some time before the change in government and new president would ‘influence all level[s] of society including Police, CID and Security forces’.
Delegate’s refusal of application on 10 April 2017
On 10 April 2017, a delegate of the Minister concluded that the applicant was not a person in respect of whom Australia had protection obligations under sections 36(2)(a) or 36(2)(aa) of the Act.[15] The delegate therefore refused the applicant’s application for a protection visa.
[15] Court book at page 263.
Referral to Authority on 13 April 2017
On 13 April 2017, the applicant was notified that the matter had been referred to the Authority for review.[16]
[16] Court book at page 280.
On 23 May 2017, the applicant provided further written submissions to the Authority, having been granted a two-week extension to do so.[17] In that submission, the applicant provided some further information addressing some of the issues raised by the delegate. He also attached various documents setting out further country information in support of his claims.
[17] Court book at page 289; pages 292 to 310.
On 24 October 2017, the applicant was notified that the Authority had determined to affirm the delegate’s decision not to grant him a protection visa.[18]
[18] Court book at page 312.
AUTHORITY DECISION
The Authority’s decision record of 24 October 2017 is at pages 313 to 327 of the court book.
Relevantly, at paragraph [2] of its reasons, the Authority summarised the delegate’s decision.
Information before the Authority
The Authority then set out the information to which it had regard, including the applicant’s written submission provided on 23 May 2017.[19] At paragraph [5], the Authority set out further information which the applicant referred to in his written submissions, which the Authority considered to be new information, being claims not previously made to the delegate.[20]
[19] Authority decision record dated 24 October 2017 at paragraphs [3] and [4].
[20] Authority decision record dated 24 October 2017 at paragraph [6].
The decision record notes the applicant’s explanation as to why he had not previously made these claims, namely because he was interrupted multiple times during his interview with the delegate and told not to provide information that did not relate to him. The applicant further explained that he was afraid that he would be placed in detention for more than five years if he told immigration that his brother had LTTE associations.[21]
[21] Authority decision record dated 24 October 2017 at paragraph [6].
At paragraphs [7] to [10], the Authority summarised the circumstances in which applicant’s protection visa interview was conducted, including that the applicant:
(a)had been provided with a brochure in the Tamil language prior to his interview which made it clear that the applicant was to give the Department full and truthful answers to all questions asked at the interview;
(b)was further advised at the commencement of the interview to give complete and accurate protection claims as early as possible and that he may not be provided with a further opportunity to provide information;
(c)the applicant was given a break at the interview to speak with his legal representative, who had been present throughout the interview; and
(d)the applicant’s legal representative had also made oral submissions at the interview, and further, provided a post-interview submission.
At paragraph [11], the Authority concluded that the new information related to matters which pre-dated the delegate’s decision, and moreover, considering the circumstances outlined above, the Authority did not accept the reasons given by the applicant as to why this information was not included in his initial application.
At paragraph [12], the Authority concluded that the information was not credible personal information in the sense that had it been known, it may have affected the consideration of the applicant’s claims. The Authority went on to say that it was not satisfied that there were exceptional circumstances to justify considering this new information.
In relation to the bulk of the country information provided by the applicant with his written submission, at paragraph [13], the Authority concluded that:
·the identified sources pre-dated the delegate’s decision;
·the applicant had not explained how this information relates to his claims nor did he refer to the country information in his submissions;
·it was not satisfied that the country information was credible personal information that was not previously known and, which if known, may have affected the consideration of the applicant’s claims; and
·in all the circumstances, the Authority was not satisfied that there were exceptional circumstances to justify the consideration of the new information.
In relation to the country information titled ‘A Tamil person who went to Sri Lanka from Australia abducted in white van’, the Authority accepted that this was new information which was dated 5 May 2017 and therefore could not have been put before the delegate.[22] The Authority therefore concluded that there were exceptional circumstances to justify consideration of this information.
[22] Authority decision record dated 24 October 2017 at paragraph [14].
Consideration of the applicant’s claims
At paragraph [15], the Authority summarised the applicant’s claims for protection.
At paragraphs [16] to [17], the Authority set out the legislative criteria to which it must have regard when determining applications for protection.
At paragraph [18], the Authority accepted the applicant’s claimed identity and that Sri Lanka would be the returning country for the purpose of the assessment before it.
At paragraphs [19] to [20], the Authority discussed the applicant’s psychological evidence. This included the Psychological Assessment dated 9 January 2017, which indicated that the applicant attended six sessions of psychological assessment and clinical counselling between April and December 2014. Importantly, at paragraph [20], the Authority found that the applicant had not claimed to fear that if he were returned to Sri Lanka, he would be denied access to medical treatment and services relating to his mental health.
At paragraph [21], the Authority also accepted that during the civil war, the applicant’s village was routinely searched by the SLA, and that young men and women were arrested on suspicion of involvement with the LTTE.
The Authority also accepted that in 1991, the applicant’s brother was killed in an SLA shelling and that as a result, the applicant and his sister suffered trauma.[23]
[23] Authority decision record dated 24 October 2017 at paragraph [22].
At paragraph [24], the Authority further accepted that the applicant’s cousin and nephew were members of the LTTE and that they both died at some time during the civil war. However, the Authority did not accept that the applicant’s brother-in-law was detained for two years and only released on the payment of a bribe,[24] nor did it accept that the applicant has another cousin who was a member of the LTTE and who remains missing.[25]
[24] Authority decision record dated 24 October 2017 at paragraph [27].
[25] Authority decision record dated 24 October 2017 at paragraph [28].
At paragraphs [29] and [30], the Authority accepted the applicant’s evidence about the LTTE efforts to recruit members by attending the applicant’s school and that on one such occasion his cousin was taken from school by force. The Authority also accepted that as a result of this, the applicant’s parents became fearful for the applicant and arranged for him to leave Sri Lanka and go to India.[26]
[26] Authority decision record dated 24 October 2017 at paragraph [30].
At paragraph [31], the Authority further accepted that on their way to Colombo, the applicant and his father were stopped by the SLA and questioned. The Authority also accepted that the applicant’s elbow was broken and that his toenails were pulled out before being released. However, the Authority did not accept the applicant’s claim that whilst being detained, he had confessed to being an LTTE member.[27]
[27] Authority decision record dated 24 October 2017 at paragraph [32].
At paragraph [34], the Authority also accepted that after a short period in Colombo, the applicant lawfully left Sri Lanka and travelled to India. In those circumstances, the Authority did not accept that after his departure, any inquiries were made by the Sri Lankan authorities, including the SLA, as to his whereabouts.[28]
[28] Authority decision record dated 24 October 2017 at paragraph [37].
Moreover, the Authority did not consider it plausible that the applicant’s father had been taken to an SLA camp and questioned about his whereabouts in May 1995, at least a year and a half after the applicant’s departure from Sri Lanka.[29]
[29] Authority decision record dated 24 October 2017 at paragraph [37].
At paragraphs [35] and [37], the Authority concluded that the applicant was not of any interest to the SLA whilst staying in Colombo or after he left Sri Lanka in November 1993.
At paragraph [38], the Authority accepted that after his tourist visa expired, the applicant registered with the police in India as a refugee and he was recognised as such until he left India in October 2012. The Authority, however, did not accept the applicant’s claims to fear harm from his father-in-law, but rather, found these claims to be contrived and untrue.[30]
[30] Authority decision record dated 24 October 2017 at paragraphs [39] to [42].
At paragraph [44], the Authority found that at the time of the applicant’s departure in 2013, he was not of any interest to the Indian authorities, nor was he of any interest to Sri Lankan authorities because of his period of stay in India. In any case, the Authority considered the applicant’s stay in India to be a temporary ad hoc arrangement and had otherwise found Sri Lanka to be the receiving country for the purposes of its protection assessment.[31]
[31] Authority decision record dated 24 October 2017 at paragraph [45].
Ultimately, whilst the Authority accepted that as a monolingual Tamil, the applicant may face some difficulties on his return to Sri Lanka, after considering the relevant country information, it did not accept that this would amount to serious harm.[32] The Authority also was not satisfied that any difficulties that the applicant may face in re-establishing himself in Sri Lanka after having been absent from there for a number of years would amount to serious harm.[33]
[32] Authority decision record dated 24 October 2017 at paragraphs [47] and [49].
[33] Authority decision record dated 24 October 2017 at paragraph [50].
The Authority did not accept that the applicant’s past circumstances, including his family’s association with the LTTE and his detention and assault by the SLA, would lead to any adverse interest or consequences to him.[34] The Authority concluded that the applicant would not be imputed with any profile arising from his or his family’s past circumstances on his return to Sri Lanka.[35]
[34] Authority decision record dated 24 October 2017 at paragraphs [51] to [56].
[35] Authority decision record dated 24 October 2017 at paragraph [57].
Likewise, the Authority did not accept that the applicant would be persecuted on his return to Sri Lanka based on his illegal departure from India (noting that he had departed legally from Sri Lanka), his extended stay in Australia or as a failed asylum seeker or the perception that he is wealthy.[36]
[36] Authority decision record dated 24 October 2017 at paragraphs [61] to [70].
Consequently, the Authority concluded that the applicant did not meet the requirements for a protection visa, nor were Australia’s complementary protection obligations engaged, and therefore affirmed the decision of the delegate not to grant the applicant a protection visa.[37]
[37] Authority decision record dated 24 October 2017 at paragraphs [71] to [79].
PROCEEDINGS IN THIS COURT
On 14 November 2017, the applicant filed his application for judicial review in this court, in which he raises three grounds of review.
On 17 August 2023, the applicant filed an amended application in which he abandoned ground 3 as originally pleaded, and pleaded a new ground, ground 4. The applicant also filed an outline of submissions as well as an affidavit affirmed by the applicant’s legal representative, Ms Faiq, in which she attested to obtaining a transcript of the applicant’s interview with the Department, a copy of which was annexed to that affidavit.[38]
[38] Affidavit of Ms Shaima Mohamed Faiq affirmed and filed on 17 August 2023 at Annexure SF-1.
On 5 September 2023, Ms Faiq filed a further affidavit in which she indicated that she had also listened to the entirety of the Department interview and believed the transcript to be accurate and correct. Relevantly, at paragraph [5] of this affidavit, Ms Faiq stated:
5.Only those parts of the interview with the delegate were transcribed which are reproduced in Annexure SF-1. To the best of my knowledge and belief, they reproduce the evidence at the interview relating to the connection between the Applicant or his family members and the LTTE.[39]
[39] Affidavit of Ms Shaima Mohamed Faiq affirmed and filed on 5 September 2023.
Also on 5 September 2023, the applicant filed a further affidavit attaching a copy of the DFAT Sri Lanka Country Information Report dated January 2017.[40]
[40] Affidavit of Mr Arooran Raveendran affirmed and filed on 5 September 2023 at Annexure AR-1.
The applicant sought to rely upon each of these documents.
In his written submissions, the Minister takes issue with the affidavit and transcript filed by the applicant on 17 August 2023.[41] At the hearing before me, counsel for the Minister confirmed that he objected to the transcript being entered into evidence but did not otherwise object to the 2017 DFAT report.[42]
[41] Minister’s Outline of Submissions filed on 29 August 2023 at paragraphs [24] to [26].
[42] Court transcript at page 3.
I will deal with the issue of the transcript in considering ground 4 below, to which it relates.
GROUNDS OF REVIEW
As stated, by his amended application, the applicant now relies upon three grounds of review (grounds 1, 2 and 4), having abandoned ground 3:
1.The decision of the Second Respondent is affected by jurisdictional error by failing to apply the “real chance” test correct as required by sections 5H, 5J, 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (“the Act”), and as enunciated in Chan v MIEA, by not considering all substantial and clearly plausible claims and evidence which were accepted by the Second Respondent, in the country conditions, to conclude that there is no real chance that the Applicant will be imputed of involvement with LTTE and detained on his return to Sri Lanka and any detention will not amount to significant harm.
Particulars
a.The Second Respondent accepted that the Applicant was detained on suspicion of involvement with LTTE;
b.The Second Respondent accepted that as a result of that suspicion, the Applicant was physically assaulted, his hand twisted, elbow broken and his toe nails pulled, for which he sought later medical treatment;
c.The Second Respondent accepted that the Applicant may be detained upon his return to Sri Lanka;
d.The Second Respondent noted from the DFAT Country Information Report in 2017 that LTTE support was at times imputed on the basis of ethnicity;
e.The Second Respondent accepted that there is credible evidence of serious harm being perpetrated against Tamils perceived to be associated with LTTE by the Sri Lankan authorities in post-war Sri Lanka;
f.The Second Respondent accepted that the Applicant’s cousin and nephew are members of the LTTE and were killed;
g.The Second Respondent accepted that as the Applicant resided in an LTTE controlled area, members of the LTTE would go to his local school and conduct meeting and recruit students including by force; and
h.The Second Respondent accepted that when the SLA became aware of the recruitment activities undertaken by the LTTE at the school, they would attend the school and threaten the students and teachers and take some students for questioning.
2.The decision of the Second Respondent is affected by jurisdictional error by conclusions made that the ‘new information’ provided is not credible personal information within the meaning of section 473DD(b)(ii) of the Act, when all such information related personally to the Applicant and was relevant to the assessment of the claims for refugee status and complementary protection under sections 36(2)(a) and 36(2)(aa) of the Act.
Particulars
The Second Respondent erred in this way in relation to information about the following:
a.The reasons the Applicant and his father had to travel from Colombo via Vavuniya;
b.The influence and money paid to an agent to obtain the passport and visa to India;
c.The brother being a member of LTTE, who was killed in the cause for LTTE;
d. The Applicant being not identified as a Sri Lankan Tamil in India;
e.The information on the country conditions which affect the claim; and
f. The reasons and fear that induced him to leave India.
4.The Second Respondent fell into jurisdictional error in that it was legally unreasonable.
Particulars
a.Further or in the alternative to Particular (c) to Ground 2, the Second Respondent was legally unreasonable in not being satisfied that the new information before it was “credible personal information that had it been known, it may have affected the consideration of the applicant’s claims” within the meaning of section 473DD(b)(ii) of the Act. (Decision, [12])
b.Further or in the alternative to Particular (c) to Ground 2, the Second Respondent was legally unreasonable in not being satisfied that “there are exceptional circumstances to justify considering this new information” within the meaning of section 473DD(a) of the Act. (Decision, [12])
c.The Second Respondent was legally unreasonable not to “accept the applicant’s brother-in-law was detained for two years and released on the payment of a bribe and that he continues to have problems with the Sri Lankan authorities”, and not to accept consequent interest of the Sri Lankan authorities in the Applicant’s sister and her family. (Decision, [27])
d.The Second Respondent was legally unreasonable not to “accept that the applicant has another cousin who was a member of the LTTE and that this cousin remains missing” … and to find that “… the oral evidence that the applicant did provide about his cousin’s involvement lacked any meaningful detail.” (Decision, [28])
I will now turn to consider each of these grounds in turn.
Ground 1
By ground 1, the applicant claims that the Authority incorrectly applied the ‘real chance’ test. Relevantly, the applicant identifies a range of findings made by the Authority and argues that when those findings are considered ‘cumulatively’ that the conclusion made by the Authority that there was no ‘real chance’ of serious or significant harm was not reasonably open.[43]
[43] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [24].
It is submitted that in determining whether the applicant was a refugee, the Authority had to consider whether he had a well-founded fear of persecution.[44] Relevantly, pursuant to section 5J of the Act, that required the Authority to determine whether, among other things, there ‘was a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more’ of the prescribed reasons.
[44] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [20].
Alternatively, the applicant submitted that in considering whether the applicant engaged Australia’s complementary protection obligations, the Authority had to consider whether:
… 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 [applicant] will suffer significant harm.[45] (emphasis added)
[45] Migration Act 1958 (Cth), s 36(2)(aa).
It is submitted for the applicant that a ‘real chance’ is one that is not remote, regardless of whether it is more or less than 50%.[46] A ‘real chance’ therefore may be small. It is therefore submitted that having regard to the purpose of sections 36(2)(a) and 36(2)(aa), being to protect against serious or significant harm, that even if the Authority:
… has great doubt about whether a person is at risk, Parliament required the Authority to find that the Applicant met the requirements for protection if there was a small but real chance of suffering such harm.[47]
[46] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [22]; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
[47] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [22].
The applicant then identified various positive findings made by the Authority in the course of its reasoning and submits that when regard is had to those findings, cumulatively, it was not reasonably open for the Authority to conclude that the applicant did not face a real chance of harm.[48]
[48] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraphs [23] and [24].
This submission, with respect, invites the court to engage in impermissible merits review.
Whilst the Authority did accept some of the applicant’s claims, including those to which the applicant refers in his written submissions,[49] it did not accept all of his claims. Moreover, the Authority also referred to country information which led it to conclude that the applicant did not face a real chance of harm, or a real risk of significant harm.
[49] See Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [23].
Ultimately, it was open to the Authority to balance those claims which it did accept with those it did not and, having regard to the country information, reach a view as to whether the applicant faced a real chance or a real risk of harm.
There was an evident and logical basis to the Authority’s conclusions. I accept that whilst there was some country information which pointed to the amelioration of the situation for people such as the applicant, the country information before the Authority also contained suggestions that such people remained at risk.[50] Ultimately, however, the weight to be given to that information in light of the other findings made by the Authority was properly a matter for it.
[50] See, for example, Authority decision record dated 24 October 2017 at paragraph [55].
I also accept that a decision-maker may conclude that there is a real chance of harm or a real risk of significant harm even where that risk is a low one in percentage terms. However, in forming that view, the decision maker is required to have regard to and balance the evidence before it, including country information. Having regard to the Authority’s reasons, read fairly and as a whole, as stated, there was an evident and intelligible basis for the conclusions reached. The Authority gave clear and cogent reasons for its conclusions, including rejecting some of the applicant’s claims.[51]
[51] See, for example, Authority decision record dated 24 October 2017 at paragraphs [27], [28] and [32].
In addition, there is no proper reason to conclude that the Authority misunderstood or misapplied the proper and correct test of ‘real chance of harm’ or ‘real risk of significant harm’. The Authority referred to the correct statutory provisions at paragraphs [16] to [17] and [72] of its decision record. Moreover, when the Authority’s reasons are read fairly and as a whole, there is no suggestion that the Authority misapplied that statutory test.
For these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant claims that the Authority misapplied section 473DD(b)(ii) of the Act in concluding that the new information provided by the applicant was not ‘credible personal information’. In particular, it is submitted for the applicant that the Authority erred in finding that the new information provided about the applicant’s brother having been a member of the LTTE was not credible personal information within the meaning of section 473DD(b)(ii).[52]
[52] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [25].
It is submitted that that information was clearly:
(a)‘credible’ in the sense that it was not inherently unbelievable;
(b)‘personal’ in that it was about an identified person, namely the applicant’s brother; and
(c)not previously known by the Minister.[53]
[53] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [26].
Moreover, it is submitted that had it been known, it may well have affected the consideration of the applicant’s claims.[54]
[54] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [26].
It was submitted that these errors then informed the Authority’s decision that there were no ‘exceptional circumstances’ to meet section 473DD(a) of the Act and that consequently, the Authority did not have regard to ‘potentially strong supporting material, which, if accepted, may have very much supported a finding that the Applicant had a real chance of suffering harm’.[55]The applicant concludes that these errors may have led to a different conclusion and therefore are material such that the error is a jurisdictional one.
[55] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [28].
It is not in dispute that the applicant referred to his concerns about his relatives who had been members of the LTTE in his Entry Interview.[56] A similar reference to the applicant having close family relatives in the LTTE is then referred to again in the written submissions provided by the applicant’s representative on 19 February 2016.[57]
[56] See Court book at page 15.
[57] Court book at pages 48 to 49.
More details about this were included in his Statement of Claims set out at pages 88 to 92 of the court book, in particular, at paragraphs [10] to [14] of that statement where he discusses the LTTE attending his school and forcing students to join and the fact that his brother was killed at the age of 15 as a result of army shelling in 1991. At paragraphs [30] to [32] of his Statement of Claims, the applicant further expresses concern about returning to Sri Lanka as he would be suspected of past LTTE connections.[58] Death certificates were also provided.[59]
[58] Court book at pages 91 to 92.
[59] Court book at pages 125, 133 and 136.
The issue of the applicant’s links to the LTTE were again addressed in further written submissions prepared by the applicant’s representative dated 13 January 2017.[60]
[60] Court book at pages 255 to 257.
The applicant says that at paragraph [5] of the Authority’s reasons, the Authority identifies various new information provided by the applicant.[61] Relevantly, that includes the following:
•He did not mention in his interview that his brother who was killed in the army shelling was a member of the LTTE. He was killed while fighting against the SLA in the Elephant pass. His LTTE name was K. It was because of this reason that his father wanted him to go to India as his father thought he was in danger and that he would be also (sic) approached by the LTTE. His brother was taken from school he studied at by the LTTE.[62]
[61] Court transcript at page 5.
[62] Authority decision record dated 24 October 2017 at paragraph [5].
The Authority then identifies this as new information.[63] Relevantly, having found that the information pre-dated the delegate’s decision, the Authority went on to say at paragraphs [11] and [12]:
11.I am satisfied that the new information relates to matters which pre-date the decision. I am unpersuaded by the applicant’s explanation for the omission of this information and I am satisfied that he has had a number of opportunities to present this information to the Department prior to the decision being made, and was aware of the consequences of not providing all information. I am not satisfied that the information could not have been provided to the Minister prior to the decision being made.
12.Furthermore the applicant has not satisfied me that the new information is credible personal information that had it been known, it may have affected the consideration of the applicant’s claims. Having regard to all the circumstances, I am also not satisfied that there are exceptional circumstances to justify considering this new information.
[63] Authority decision record dated 24 October 2017 at paragraph [6].
The issue raised by ground 2 is whether the Authority properly applied section 473DD of the Act in determining whether to consider this new information.
Section 477DD relevantly 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, or 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.
The applicant does not take any issue with the conclusions reached in relation to whether the new information met the requirements of s 473DD(b)(i) and concedes that it did not, being information that was available to him and which he could have put before the delegate.[64]
[64] Court transcript at page 5 and following.
The applicant submits that the key issue is whether the Authority properly considered whether the new information met the requirements of s 473DD(b)(ii).[65] The applicant in essence submits that the Authority misunderstood or misapplied section 473DD(b)(ii).
[65] Court transcript at page 6 and following.
In particular, the applicant takes issue with the conclusion reached at paragraph [12] of the Authority’s decision record that the information was not credible personal information and that there were no exceptional circumstances which would justify the consideration by the Authority of that information.[66]
[66] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [25].
In considering the nature of the inquiry required to determine whether information is ‘credible’, Justice Bromberg in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (‘CSR16’) said at paragraphs [41] to [43]:
41. In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42.The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” … that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
43.The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the new information is capable of being believed at the deliberative stage of the Authority's review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error …
Further, in BDF17 v Minister for Immigration, Citizenship, Migrant Services [2021] FCA 401, Justice Kenny noted at paragraph [74]:
74.… The expression “personal information” for the purposes of the Migration Act has the same meaning as in the Privacy Act 1988 (Cth): see Migration Act, s 5(1). Section 6 of the Privacy Act defines “personal information” as “information or an opinion about an identified individual, or an individual who is reasonably identifiable” (irrespective of whether the information or opinion is true and recorded in a material form).
In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at paragraph [33], the plurality (Justices Gageler, Keane and Nettle) said:
33.… Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's asylum claims by the Minister”. The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.
No issue is taken with the fact that the new information subject of this ground was not previously known by the Minister.
As noted by Chief Justice Kiefel, and Justices Gageler, Keane and Gordon in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (‘AUS17’) at paragraph [6]:
6.Though expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD necessarily operates against the background of s 473DB also to empower the Authority to consider new information if the criteria it specifies are met. For that binary outcome of the application of s 473DD to be workable, s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.
Their Honours went on to further note the statutory context in which section 473DD came to be enacted when they said:
9.Section 473DD(b)(ii) was inserted during the parliamentary process which resulted in the enactment of Pt 7AA for the express purpose of expanding the circumstances in which new information obtained from a referred applicant might be considered by the Authority beyond those which would have prevailed had s 473DD(a) been left to operate only in combination with s 473DD(b)(i). Section 473DD(b)(ii) to that extent modifies the policy manifest in s 5AAA, s 473DB and s 473DD(b)(i) of casting responsibility on the applicant for a protection visa to provide evidence to establish his or her claims to be a person in respect of whom Australia has protection obligations at the time of making the application. Section 473DD(b)(ii) allows for a very limited second opportunity to provide evidence that might previously have been provided.
It was in this context that their Honours went on to conclude that the court must consider whether new information satisfies the criteria in section 473DD(b)(i) or (ii) before proceeding to consider whether it satisfies the criteria in section 473DD(a). At paragraph [11], their Honours said:
11.… 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.
Further, at paragraph [12], their Honours went on to state:
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).
It was submitted for the applicant that the new information about the applicant’s brother was credible as it was ‘capable of being believed’ in the sense discussed in CSR16 and was ‘manifestly personal information’.[67]
[67] Court transcript at page 6.
Further, the applicant submits that it was information which, if accepted, may have affected the outcome of the review in circumstances where his brother was a closer relation than the other two whom the applicant had identified as being LTTE members.[68] This, it is submitted for the applicant, was relevant in circumstances where the applicant had consistently claimed to fear harm because of being suspected of having LTTE connections.
[68] Court transcript at page 6.
It is submitted that when these principles are applied to the information about the applicant’s brother, ‘there was no lawful way the Authority could have concluded that ‘new information’ about the Applicant’s brother did not meet section 473DD(b)(ii)’.[69]
[69] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [27].
The Minister does not take issue with this statement of the principles which apply to section 473DD. However, the Minister’s response is two-fold.
First, the Minister says that whilst section 473DD requires the Authority to consider whether the criteria in either section 473DD(b)(i) and (ii) are met before considering whether the criteria in section 473DD(a) is met, there is no requirement that this be done in a particular way.[70] Moreover, it is submitted for the Minister that there is no obligation on the Authority to set out its detailed reasons for reaching a conclusion in respect of its exercise or non-exercise of its power under section 473DD.[71]
[70] Minister’s Outline of Submissions filed on 29 August 2023 at paragraph [11]; APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23; FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456.
[71] Minister’s Outline of Submissions filed on 29 August 2023 at paragraph [11].
Secondly, it is submitted for the Minister that there is nothing in the Authority’s reasons to suggest that it misapplied or did not consider the criterion in section 473DD.[72]
[72] Minister’s Outline of Submissions filed on 29 August 2023 at paragraph [12].
For the following reasons I accept the Minister’s submissions in relation to ground 2.
The Authority clearly identified the ‘new information’ which had not previously been provided to the Minister. It also considered whether this was information which could have, but was not, previously provided, and rejected the applicant’s explanation as to why it had not previously been provided. This aspect of the Authority’s reasoning clearly addresses the criterion in section 473DD(b)(i) and, as stated, no issue is taken in relation to this aspect of the Authority’s reasons.
As stated, it is submitted for the Minister that there is no need for the Authority to consider the criterion in section 473DD in any particular ‘formulaic’ manner.[73] As noted by Justice Markovic in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at paragraph [79]:
79.… It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority's reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
[73] Minister’s Outline of Submissions filed on 29 August 2023 at paragraph [11].
Moreover, as stated, the Minister submits that in considering whether there has been an error in the way in which the Authority dealt with the consideration of section 473DD(b)(ii), that the Authority is not required to give reasons for the exercise or non-exercise of its procedural powers.[74] It is submitted for the Minister that the power under section 473DD is such a procedural power.
[74] Minister’s Outline of Submissions filed on 29 August 2023 at paragraph [11].
In support of this proposition, the Minister relies upon the High Court’s decision in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 (‘BVD17’), where the plurality (Chief Justice Kiefel and Justices Bell, Gageler, Keane, Nettle and Gordon) said:
16.… Section 473EA, … requires a decision of the Authority on a review under Pt 7AA to be accompanied by a written statement setting out both “the decision of the Authority on the review” and “the reasons for the decision”. The analysis in Minister for Immigration and Citizenship v SZGUR of the materially identical requirement in s 430 for the Refugee Review Tribunal to give a statement of the reasons for its decision in a review under Pt 7 supports two conclusions about which there is no dispute in the appeal. One is that the decision of the Authority on the review to which s 473EA refers is the ultimate decision of the Authority under s 473CC(2) either to affirm the fast track reviewable decision referred to it or to remit the decision referred to it for reconsideration in accordance with such directions or recommendations as are permitted by regulation. The other is that the Authority, in giving reasons for that ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3). (emphasis added)
It is submitted for the Minister that ground 2 in this proceeding ought not be accepted for similar reasons to those in DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106.[75] At paragraph [46], Justice Middleton said:
[75] Minister’s Outline of Submissions filed on 29 August 2023 at paragraph [15].
46.In my view, the New Information Grounds cannot be sustained. It is true that the Authority's reasons do not expressly state that it considered, pursuant to s 473DD(b)(ii), whether new information contained in the statutory declarations was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims”. However, the reasons demonstrate that the substance of s 473DD(b)(ii) was considered. As stated by Kenny J in FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456 at [68]:
“the Court is not required to engage in a formulaic consideration of s 473DD(b) and it may be able to infer that (b)(i) and (ii) have been satisfied, even if the precise statutory language of those provisions has not been used”
and
“it is relevant that the [Authority's] duty to give reasons under s 473EA does not require it to give reasons for the exercise or non-exercise of a procedural power, such as ss 473DC or 473DD.”
…
50.… In my view, in circumstances where the Authority was aware of the submissions made regarding para (b)(ii), the proper inference is that the Authority also considered that the new information was not “credible” because the Appellant, who was represented, had not provided the information to the delegate when he had the opportunity to do so and sought to rely on the information only after an adverse decision, without explaining the circumstances of the prior non-disclosure. Accordingly, in my view, it can be inferred that the Authority considered and was not satisfied as to s 473DD(b)(ii).
A similar conclusion is reached in the present case. When the Authority’s reasons are read fairly and as a whole, in concluding that the new information was not ‘credible’, the Authority had regard to the fact that the applicant had had numerous opportunities to put this information before the delegate but had not done so.
The fact that the reasoning in paragraphs [7] to [11] of the Authority’s reasoning goes to the question of whether the criterion in section 473DD(b)(i) was met does not preclude that same reasoning from equally applying to the consideration of whether the criterion in section 473DD(b)(ii) was met, in particular, whether the information was ‘credible’.
Similarly, whilst in this case, the applicant provided an explanation as to why the information had not been produced to the delegate, the Authority considered this information and had regard to the explanations given, which it did not accept, both in relation to considering whether section 473DD(b)(i) was met and in relation to whether it concluded that the information was not ‘credible’.
It was open to the Authority to have regard to these factors in this way. This does not disclose any error in the application of section 473DD. In adopting this approach, I am not persuaded that the Authority fell into the type of error identified in CSR16. It was not asking itself whether the information was correct or true, but rather, was addressing the issue of whether it was ‘capable of being believed’ in circumstances where it was information within the applicant’s power to provide, he provided similar information in relation to other members of his family and he was represented at the time of making his application and at the time that he appeared before the delegate.
Having regard to all of these and the other factors referred to in the Authority’s reasons, it was open to the Authority to conclude that the information was not ‘credible’ in the sense that it was not capable of being believed.
Moreover, the Authority was aware of the need to consider whether the new information was credible personal information and whether, if so, had it been known by the Minister, it may have affected the consideration of the applicant’s claims. The Authority addresses this very briefly at paragraph [12] of its reasons where it simply said:
12.Furthermore, the applicant has not satisfied me that the new information is credible personal information that had it been known, it may have affected the consideration of the applicant’s claims. …
The Authority then considered whether there were exceptional circumstances and concluded that there were not. Arguably, applying the reasoning in AUS17, it was not necessary for it to undertake this last step, having found that the criterion in section 473DD(b)(ii) was not met. That, in and of itself, however, does not amount to a jurisdictional error. It does not amount to a failure to consider a relevant matter. Rather, by this, the Authority is considering an additional criterion in circumstances where that is not strictly required.
For each of these reasons, ground 2 is not made out.
Ground 4
Ground 4 claims that the Authority engaged in reasoning which was legally unreasonable. As outlined above, the first two particulars are pleaded as an alternative to ground 2. It is submitted for the applicant that if the Authority is found to have considered the new information not to be credible information, that such a finding was legally unreasonable.
It is submitted for the applicant that in the alternative to particular (c) to ground 2, it was legally unreasonable for the Authority not to be satisfied that the new information before it was ‘credible personal information that had it been known, it may have affected the consideration of the applicant’s claims’ within the meaning of section 473DD(b)(ii).
Particular (a)
For reasons discussed above, the conclusion that the new information was not ‘credible’ was reasonably open on the material before the Authority. In particular, the fact that the applicant had had numerous opportunities to put that information before the Authority, with the assistance of his representatives, was a factor upon which the conclusions reached by the Authority were reasonably open.
For the reasons given above in relation to ground 2, particular (a) of ground 4 does not disclose any jurisdictional error.
Particular (b)
Similar reasoning applies in relation to particular (b) of ground 4. Moreover, for reasons given above, having reached the conclusion that neither the criterion in sections 473DD(b)(i) or (ii) were satisfied, it was not strictly necessary for the Authority to consider whether the criterion in section 473DD(a) was met in any event.
For these reasons, and having regard to the reasons given in relation to ground 2, particular (b) of ground 4 does not disclose any jurisdictional error.
Particular (c)
The next two particulars to ground 4 assert that various findings made by the Authority were legally unreasonable.
By particular (c) to ground 4, the applicant considers the Authority’s rejections of the following claims to be legally unreasonable:
(a)the applicant’s brother-in-law was detained for two years and released on payment of a bribe; and
(b)the consequential interest that the Sri Lankan authorities therefore had in the applicant’s sister and her family.[76]
[76] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [40].
The Authority’s findings in relation to this are set out at paragraph [27] of its written reasons. Relevantly, the Authority said:
27However, I do not accept the applicant’s brother-in-law was detained for two years and released on the payment of a bribe and that he continues to have problems with the Sri Lankan authorities. I do not accept that enquiries have been made of his sister and her family or that his sister and her family have been followed. I do not accept the interest in applicant’s sister and her family by the Sri Lankan authorities has been the basis for one of his sister’s children’s travel to Malaysia. The applicant has made no mention of these claims previously including in his protection visa application which a legal practitioner assisted him to complete. I also found the evidence the applicant did provide about these claims to be vague and unconvincing and that the claimed level of interest in his sister and her family by the Sri Lankan authorities appeared to evolve as the delegate sought further details. …
The findings made in relation to these claims were cogent and reasonably open on the material before the Authority. In particular, there was a reasoned basis for the findings, namely the fact that the applicant had not made the claims earlier, notwithstanding having been legally represented, and secondly, the lack of detail provided and the changes in his claims as more information was requested.
As noted above, in support of this claim, the applicant seeks to rely upon a purported transcript of the interview with the delegate annexed to the affidavit of Ms Faiq.[77] The applicant seeks to rely upon the transcript in response to the claim that the applicant’s evidence in relation to this claim was vague.[78]
[77] Affidavit of Ms Shaima Mohamed Faiq affirmed and filed on 17 August 2023 at Annexure SF-1.
[78] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [43].
It is submitted for the applicant that when regard is had to the transcript, it is apparent that the claim of ‘vagueness’ was not reasonably open to the Authority.[79] It is submitted that in the context of the delegate directing the applicant to be responsive to the questions asked and not to give the whole story again, the applicant’s concise and brief responses to questions about his brother-in-law could not reasonably be described as ‘vague’.[80]
[79] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [43].
[80] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraphs [43] to [44].
The Minister objects to the affidavit being accepted into evidence on the basis that it appears to be incomplete.[81] It is submitted for the Minister that the court should adopt one of the following three approaches in relation to the transcript:
(a)refuse to admit the affidavit and excerpts of the transcript on the basis that it is an incomplete record of the interview;
(b)give the affidavit and excerpts of the transcript provided very little weight; or
(c)find against the applicant on an onus-of-proof basis.[82]
[81] Minister’s Outline of Submissions filed on 29 August 2023 at paragraph [24].
[82] Court transcript at page 3 and following.
Having regard to the fact that the Authority rejected the applicant’s claims regarding his brother-in-law on two bases, I find that its conclusions were reasonably open on the material before it and do not evidence unreasonableness. The fact that another decision-maker may have come to a different conclusion does not establish legal unreasonableness.
In relation to the issue of whether the Authority could properly have formed the view as to whether the claim made by the applicant was vague, the excerpts of the transcript annexed to the affidavit of Ms Faiq are incomplete and of limited value. It is not possible to make a conclusive finding on the basis of that incomplete transcript. Moreover, I note that the issue of the vagueness of the applicant’s evidence is addressed elsewhere in the Authority’s reasons.
For example, at paragraphs [9] to [10] of its reasons, the Authority said:
9.At the beginning of the protection visa interview, the applicant was advised that it was important for him to provide complete and accurate protection claims as early as possible, including at the interview and that if he did not and his application was refused he may not have another chance to provide further information. During the protection visa interview, the applicant was given an opportunity to provide details of the events he claimed to be involved in. The applicant was asked specific questions about each of his claims including the claims to which the new information relates. The applicant provided his responses. I note that at some points during the interview the delegate asked the applicant to provide information that was directly relevant to him and the question posed, however this was in response to the applicant either not answering the questioned [sic] asked or where his responses were vague. (emphasis added)
10.During the protection visa interview, the applicant was also given a break to speak to his representative.His representative had been present throughout the interview. At recommencement of the break, the applicant was asked if he had any further information that he wished to provide, and for a further thirty minutes the applicant provided further evidence. …
I am prepared to admit the affidavit annexing the excerpts of the transcript into evidence. However, I give it very little weight on the basis that it is incomplete. Moreover, to the extent that it contains evidence of exchanges between the delegate and the applicant regarding his evidence about the involvement of members of his family with the LTTE, it does not support the submission made for the applicant that the Authority’s conclusion that the applicant’s evidence regarding his brother-in-law was vague and/or unreasonable. It was reasonably open to the Authority on the basis of the evidence before it to reach that conclusion.
Particular (d)
By particular (d), the applicant claims that the Authority acted unreasonably by rejecting the applicant’s claim that he had another cousin who was a member of the LTTE and that this cousin remains missing. Specifically, the applicant claims that the Authority’s finding that the applicant’s evidence about his cousin’s involvement with the LTTE lacked any meaningful detail was unreasonable.[83]
[83] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [45].
In relation to this claim, at paragraph [28], the Authority said:
28.… In contrast to the applicant’s evidence regarding his other cousin and nephew, claims regarding this cousin had not been made previously at the entry interview or in the protection visa application and I found the oral evidence that the applicant did provide about his cousin’s involvement lacked any meaningful detail. I also note the context in which the applicant’s new evidence regarding his cousin was given, that being that it was in response to the delegate putting to the applicant that his oral evidence that “all his relations were in the LTTE” was inconsistent with his own evidence earlier in the protection visa interview that only two members of his family had been members of the LTTE.
It is submitted for the applicant that the transcript records ‘both a concrete answer, and another command by the delegate to confine the answers to the questions asked’.[84] Even if I accept that this is the case, it is clear from a fair reading of the Authority’s reasons that the reason why it refused to accept this claim was multifaceted. That is, it was because:
(a)the applicant had not made this claim in his entry interview or in his protection visa application, but rather raised it for the first time in his interview;
(b)the claim about his cousin’s involvement lacked meaningful detail; and
(c)the claim was made in response to questions by the delegate about his evidence that ‘all his relations were in the LTTE’ and that this was inconsistent with his earlier evidence that only two members of his family were in the LTTE.
[84] Applicant’s Outline of Submissions filed on 17 August 2023 at paragraph [46].
The Authority’s reasoning in this regard has a logical and probative basis. Its reasoning is not unreasonable in the sense contemplated above. Nor did the Authority reject this claim on that basis that the answers given were ‘vague’ alone.
I therefore find that ground 4 is not established.
CONCLUSION
For each of these reasons, and in circumstances where the applicant’s grounds of review have not been made out, I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 23 January 2024
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