EZN18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 633
•31 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EZN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 633
File number(s): ADG 387 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 31 July 2024 Catchwords: MIGRATION – Judicial Review Application – citizen of Sri Lanka - decision of Immigration Assessment Authority – decision to affirm refusal to grant Safe Haven Enterprise visa – whether elements of decision concerning brother’s alleged rank in Liberation Tigers of Tamil Eelam and refusal to accept information associated with en masse processing of returnees inconsistent, illogical and unreasonable – whether material jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5J, 46A, 91, 473DD, 474, 476 Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1.
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 25 June 2024 Date of hearing: 25 June 2024 Place: Perth Applicant: In person with the assistance of an interpreter Counsel for the First Respondent: Ms C Oppel Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 387 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EZN18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
31 JULY 2024
THE COURT ORDERS THAT:
1.The originating application filed on 25 September 2018 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
This is an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively). The Authority Decision, which appears in the Court Book (“CB”) at CB 270-285, affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) to refuse to grant the applicant, EZN18, a Safe Haven Enterprise Visa (“SHE Visa”).
BACKGROUND
The background to the matter is as follows:
(a)EZN18’s is a citizen of Sri Lanka of Tamil ethnicity, born in 1973 in Jaffna: CB 37, 44 and 104;
(b)on 23 October 2012 EZN18 arrived in Australia by boat at Cocos Island as an “unauthorised maritime arrival”: CB 179, and was therefore prevented by s 46A(1) of the Migration Act from lodging a valid application for any visa while in Australia;
(c)on 27 January 2013 he participated in an arrival interview with an officer of the Minister's department: CB 59;
(d)on 14 January 2016 EZN18 was notified that the Minister had exercised the power under s 46A(2) of the Migration Act to lift the prohibition on him applying for a visa under s 46A(1) of the Migration Act: CB 67-72;
(e)on 3 May 2016 EZN18 applied for the SHE Visa: CB 75-124, and made a statutory declaration (“2016 Statutory Declaration”) in which he set out his claims: CB 104-106. Those claims relevantly included:
(i)his Tamil family were strong supporters of the Liberation Tigers of Tamil Eelam (“LTTE”);
(ii)EZN18’s younger brother (“YB”) joined the LTTE in 1993 as a freedom fighter;
(iii)YB’s rise within the LTTE was rapid and he became a Colonel;
(iv)on 12 November 1998 YB was killed in the war;
(v)EZN18 supported the LTTE with food and accommodation until 2001;
(vi)EZN18 and his wife and children were detained in an internal displaced persons camp (“IDP Camp”) from April 2009 until 26 February 2010;
(vii)due to information about YB, EZN18 was interrogated and beaten for four months in the IDP Camp;
(viii)after EZN18’s release from the IDP Camp the Criminal Investigation Division (“CID”) questioned him frequently about YB;
(ix)EZN18 started a grocery shop in March 2011 but the CID monitored it and informants told them he was actively helping the LTTE. The CID demanded a ransom and threatened his family. EZN18 paid 50,000 Sri Lankan rupees in November 2011 and 40,000 Sri Lankan rupees in March 2012 in ransom, wiping out his savings and profits and making it impossible to run the shop;
(x)if EZN18 returned to Sri Lanka he will be arrested by the CID.
(xi)EZN18 also fears being kidnapped by thugs engaged in ethnic cleansing because he is a shop owner;
(f)on 18 December 2017 EZN18 was interviewed by the Delegate (“Delegate’s Interview”): CB 165;
(g)on 9 March 2018 the Delegate refused EZN18’s application for the SHE Visa: CB 179-186;
(h)in the Delegate’s Decision the Delegate:
(i)accepted that EZN18 had associations with the LTTE through his family and had been a supporter of the LTTE but did not accept that this profile would be of interest to the authorities; and
(ii)did not accept that as a shop owner EZN18 would be kidnapped if he returned to Sri Lanka;
(i)following the Delegate’s Decision the matter was referred to the Authority;
(j)on 30 March 2018 EZN18’s representative made submissions to the Authority: CB 209-212, that:
(i)the Authority should consider risk profiles set out in a more recent Department of Foreign Affairs and Trade (“DFAT”) report according to which EZN18 would qualify for protection;
(ii)a Committee Against Torture report published after 30 November 2016 must be considered;
(iii)en masse processing of returnees could lead to wrongly imputed political opinions;
(iv)the Authority should consider information relating to a State of Emergency being recently declared in Sri Lanka due to conflict between minority religious and ethnic groups;
(v)the Authority was requested to locate and consider a recent unpublished Administrative Appeals Tribunal decision dated 2 March 2018 (“March 2018 AAT Decision”); and
(vi)the new information provided met s 473DD of the Migration Act; and
(k)on 11 September 2018 the Authority Decision was to affirm the Delegate’s Decision: CB 270.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)considered that a May 2018 DFAT report was relevant and more recent than the 2017 DFAT report before the Delegate. It was satisfied there were exceptional circumstances that justified it considering the May 2018 DFAT report: CB 271 at [5];
(b)found it was not necessary to obtain a copy of the March 2018 AAT Decision, given that it had to assess EZN18’s case on its own merits, and there was no suggestion that the EZN18’s case was similar or linked to the March 2018 AAT Decision: CB 271 at [7];
(c)was not satisfied that there were exceptional circumstances to justify considering other information provided by EZN18. Specifically, it found:
(i)information about en masse processing could have been provided earlier; additionally, no independent information was provided to support the assertion about imputation of political opinion arising from en masse processing: CB 272 at [10]-[11];
(ii)the articles provided pre-dated the Delegate’s Decision and could have been provided earlier, and the Authority had more recent country information: CB 272 at [12]; and
(iii)the paragraph of the March 2018 AAT Decision relied upon in EZN18’s submissions could have been provided earlier. It was a general paragraph about s 91 of the Migration Act with no link or similarity to EZN18’s case, which needed to be considered on its own merits: CB 272 at [13];
(d)accepted that:
(i)EZN18 and his family supported the LTTE: CB 274 at [17];
(ii)EZN18 and his family were sent to the IDP Camp, and that EZN18 may have been questioned, mistreated, fingerprinted, and had his name taken in the IDP camp: CB 274 at [17] and 275 at [25]; and
(iii)YB was killed in 1992, as evidenced by a death certificate (“YB’s Death Certificate”), and may have been shot, given the family lived in a conflict area: CB 275 at [24];
(e)did not accept that:
(i)YB joined the LTTE in 1993, rose to Colonel and was killed in 1998: CB 275 at [24];
(ii)EZN18 was sent to a rehabilitation camp, detained or arrested: CB 275-276 at [31];
(iii)EZN18 was frequently questioned, visited by, and required to report to, the CID, or that informants falsely accused EZN18 of LTTE related activities: CB 276 [33] and [35];
(f)in its refugee protection assessment, the Authority:
(i)found that EZN18 did not have a real chance of kidnap on return as:
(A)he did not have a political or wealth profile;
(B)kidnapping of wealthy Tamils has reduced considerably since 2009; and
(C)EZN18 continued to run his shop until his departure in October 2012: CB 277 at [37];
(ii)did not accept that the assistance EZN18 and his family provided the LTTE, or his having been detained and questioned in the IDP Camp, put him at risk of harm in the future: CB 277 at [40]-[41];
(iii)did not accept EZN18 or his family had an anti-government or Tamil separatist or LTTE activist or LTTE profile: CB 277 at [42];
(iv)was satisfied that EZN18 did not have any outstanding criminal charges or arrest warrants in Sri Lanka: CB 277 at [42];
(v)was satisfied that EZN18 did not face a real chance of being detained or coming to the notice of the Sri Lankan authorities (or anyone else): CB 277 at [43]; and
(vi)did not accept that EZN18 would face a real chance of discrimination or other harm as a Tamil: CB 277 at [44] and 278 at [46];
(vii)noting country information about returnees having difficulty finding suitable employment and housing on return, considered that EZN18 had the education, skills and experience to find employment and accommodation if he returned to Sri Lanka: CB 278 at [47];
(viii)having considered EZN18’s circumstances and country information did not accept that EZN18 faced a real chance of harm because of his age, background, family, shop, Tamil race or ethnicity, political opinion, or membership of any particular social group: CB 278 at [48];
(ix)accepted that if EZN18 returned to Sri Lanka, he would do so as a failed asylum seeker on a temporary travel document but it was not satisfied that he would face serious harm as a result: CB 278 at [49]-[53];
(x)accepted that having departed Sri Lanka illegally, EZN18 had committed an offence under the Immigrants and Emigrants Act (“I & E Act ”) and may face questioning at the airport and may be charged and fined: CB 279 at [54];
(xi)did not accept that Tamils were treated different with respect to the application of the I & E Act, and found that the I & E Act was “not applied in a way that is discriminatory or selectively enforced against a particular group of … returnees”: CB 279 at [55];
(xii)accepted that processing may take several hours and may be en masse, but referred to country information that people are not mistreated during processing: CB 279 at [55] and 280 at [65];
(xiii)found that EZN18 would be bailed upon return to Sri Lanka (in relation to the I & E Act offence): CB 279 at [56];
(xiv)considered that the chance that EZN18 would be required to have a guarantor was remote, and did not accept that he would not have a family member able to provide surety: CB 279 at [59];
(xv)did not consider that, if EZN18 arrived over a weekend, there was a real chance he would be held in prison, the country information indicating that he may be held in an airport holding cell: CB 280 at [62]-[63];
(xvi)did not accept that there was a real chance of torture, assault or mistreatment if EZN18 were held on remand or that any brief detention amounted to serious harm: CB 280 at [64];
(xvii)was not satisfied that questioning, arrest and poor conditions in an airport holding cell and the application of a penalty for illegal departure amounted to systematic and discriminatory conduct: CB 280 at [66]; and
(xviii)considering the claims individually and cumulatively and EZN18’s personal circumstances, was not satisfied EZN18 had a well-founded fear of persecution from the CID, Sri Lankan authorities, army police, paramilitary or unknown armed groups or anyone for a reason or combination of reasons in s 5J(1)(a) of the Migration Act in the reasonably foreseeable future if he returned to Sri Lanka: CB 280 at [67]; and
(g)in relation to complementary protection found that:
(i)with regard to treatment for the illegal departure, it was not satisfied that individually or cumulatively any processes or penalties EZN18 may encounter under the I & E Act or as a returning asylum seeker would constitute significant harm: CB 281 at [74] (see also [72]-[73]); and
(ii)in relation to the balance of the claims it had accepted, applied Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 and found that as EZN18 did not face a real chance of harm in Sri Lanka, he also did not face a real risk of harm if removed to Sri Lanka: CB 281 at [75].
JUDICIAL REVIEW APPLICATION
Grounds of the Judicial Review Application
The Judicial Review Application was filed on 25 September 2018. It contained two grounds of review set out, verbatim, as follows:
1. Ground
The IAA’s decision was inconsistent, illogical and so unreasonable
Particulars
a.The applicant claimed his brother was a ‘Colonel’ in the LTTE [14].
b.The IAA wrongfully made an assumption that the applicant's brother's rank was due to a “rapid rise” [18].
c.It was so unreasonable to not accept that the applicant’s brother was an LTTE fighter [24] even if it was not accepted the brother was not a Colonel.
d.I will provide more details and information once the court book is prepared.
2. Ground
The IAA’s decision was inconsistent, illogical and so unreasonable to not accept the information associated in processing en masse [11]
Particulars
a.The IAA states information about airport en masse processing was publicly available which was before the delegate [11]
b.The IAA also states that the en masse processing information within the submissions ‘refers to future risks” [11].
c.However the IAA was not satisfied that there are exceptional circumstances to consider this information.
Litigation history
Given that the matter has taken more than five and a half years from the lodging of the Judicial Review Application in the Adelaide Registry of the Court on 25 September 2018 to reach a final hearing before this Court, it is appropriate to set out the litigation history of the matter, which is as follows:
(a)on 23 August 2018 the Minister filed a Response seeking that the Judicial Review Application be dismissed on the basis that the Authority Decision was not affected by jurisdictional error;
(b)on 30 November 2018 a Registrar of this Court made consent orders (“Registrar’s Orders”) which included the following orders:
(i)the Minister to file and serve the CB by 18 January 2019;
(ii)for EZN18 to have leave to file and serve any amended Judicial Review Application, and such further material as he may rely upon at hearing by 1 February 2019;
(iii)listing the matter for a directions hearing more than 21 months later, on 12 June 2020; and
(iv)that the Judicial Review Application “be listed for final hearing on a date to be advised”;
(c)the CB was filed on 14 January 2019;
(d)EZN18 did not file any materials pursuant to the Registrar’s Orders;
(e)on 30 December 2019 the parties were advised by the Adelaide Registry of the Court that the “Call over Hearing listed for this matter on 12 June 2020 has been adjourned and a new listing date is to be advised” and that the parties should “await notification of a new listing date by email/letter”. No reason was given for the adjournment;
(f)nothing further occurred in relation to the matter for more than two years, until early May 2023 when the matter was docketed to the docket of the presently presiding Judge, and the matter was listed for a directions hearing on 24 May 2023;
(g)on 24 May 2023 EZN18 did not appear at the directions hearing, and the Court made an order adjourning the matter to a further directions hearing on 30 June 2023;
(h)at 7:56pm on 29 June 2023 a person describing themselves as a voluntary support person for refugees and asylum seekers emailed the Court to advise that EZN18 had been taken ill and been rushed to Royal Adelaide Hospital three days previously, and that the support person had spoken to a nurse in the ICU ward at the hospital where EZN18 was, and requested a note from a doctor to confirm that EZN18 was in the ICU, but that she was still waiting for the email to arrive, but that consequently EZN18 would not be able to be present for the directions hearing on 30 June 2023;
(i)on 30 June 2023 at 9:05am the parties were advised by the Chambers of the presiding Judge that the Court would have no difficulty with a further short adjournment of the directions hearing until 28 July 2023 if the Minister were prepared to consent to an adjournment to that date, in which case the adjournment could be dealt with administratively without the necessity for EZN18 to appear;
(j)the Minister’s consent having been given; the matter was administratively adjourned to a further directions hearing on 28 July 2023;
(k)on 30 June 2023 EZN18 filed a new Notice of Address for Service;
(l)at the directions hearing on 28 July 2023 the Court made orders (“Court’s July 2023 Orders”) as follows:
2.Orders 1, 3-8 and 10 of Registrar Colbran’s orders of 30 November 2018 be set aside, and in lieu thereof order that:
a)the applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 8 March 2024;
b)the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 5 April 2024; and
c)the matter be listed for final hearing by video link on 25 June 2024 at 10.00am AWST/11.30am ACST before Judge Lucev.
(m)the Court’s July 2023 Orders also contained Note B, which was in the following terms:
B.Having regard to the Federal Court judgment in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, the Court has explained to the applicant:
a)the need to establish material jurisdictional error in the Immigration Assessment Authority decision;
b) the nature of jurisdictional error;
c)the necessity to provide grounds, properly particularised alleging what the jurisdictional error or errors committed by the Immigration Assessment Authority were;
d)that a failure to specify and particularise jurisdictional error in the grounds may result in the dismissal of the originating application or any amended originating application; and
e)that if the originating application or any amended originating application is dismissed at the final hearing the applicant may have to pay the Minister’s costs.
(n)on 8 March 2024 the Court made consent orders (“Court’s March 2024 Orders”) as follows:
1.Order 2 (a) and (b) of the Orders of Judge Lucev of 28 July 2023 be set aside, and instead it is ordered that:
(a)the Applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 8 April 2024; and
(b)the First Respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 6 May 2024.
(o)EZN18 filed no further materials pursuant to the Court’s July 2023 or March 2024 Orders;
(p)the final hearing of the matter proceeded on 25 June 2024 by video-link – Microsoft Teams, with EZN18 and the Minister making oral submissions. At the final hearing, in addition to explaining to EZN18 the process for the final hearing, the Court:
(i)noted that EZN18 had not filed any materials pursuant to the Court’s July 2023 or March 2024 Orders;
(ii)reiterated to EZN18 that he needed to establish material jurisdictional error in the Authority Decision;
(iii)noted that the Judicial Review Application contained two grounds of alleged jurisdictional error and that the Court would hear submissions from EZN18 as to the alleged jurisdictional errors; and
(iv)told EZN18 that the Minister submitted that the Authority Decision was not affected by jurisdictional error and that the Judicial Review Application ought to be dismissed.
Submissions
EZN18’s submissions
EZN18’s oral submissions at final hearing were that the two main issues which had not “come into that” were that:
(a)YB was killed in the course of the war; and
(b)two of his children were affected by the war and had died after EZN18 came to Australia: Transcript, p 3.
Asked whether he wished to say anything about what he alleged the error was in the Authority Decision and how the Authority might have made that error, EZN18 said “I don’t know about that” and referred to the fact that he had mental health counselling and had not been able to do anything: Transcript, p 3. Following the Minister’s submissions, when asked if he wished to say anything in reply, EZN18 simply said “I don’t know. For those, what response can I give? There is no such thing like that.”: Transcript, p 7.
Minister’s submissions
In relation to ground 1 the Minister submitted that the Authority had considered all the relevant facts, documents and issues and that the findings made were open to be made by the Authority, and were not illogical or irrational within the meaning of those words as explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 (“SZMDS”) at [131] per Crennan and Bell JJ, and that ground 1 did not establish any jurisdictional error in the Authority Decision.
In relation to ground 2 the Minister submitted that it was open to the Authority to determine that there were not exceptional circumstances for considering new information concerning the en masse processing of returnees to Sri Lanka.
Consideration
Material jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Tribunal upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the High Court said that:
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
No merits review
The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”).
Ground 1
Ground 1 asserts that the Authority Decision is inconsistent and illogical and hence unreasonable, and sets out three particulars: a, b and c, in support thereof. Particular d foreshadowed more “details and information” once the CB was filed, but no further details of information were forthcoming.
Particular a
Particular a of ground 1 is that EZN18 claimed YB was a colonel in the LTTE.
The Authority did not accept that YB:
(a)joined the LTTE;
(b)was an LTTE fighter; or
(c)rose to the rank of colonel: CB 275 at [24].
The Authority Decision identified a number of difficulties concerning the evidence of YB’s alleged involvement in the LTTE and his death. Those difficulties included that:
(a)the date of death on YB’s Death Certificate was 11 December 1992: CB 39 and his occupation was listed as “cultivation”, from which the Authority reasoned, entirely logically and rationally, that it was not therefore possible for YB to have:
(i)joined the LTTE in 1993;
(ii)risen to the rank of colonel; and
(iii)been killed in 1998: CB 275 at [24],
as claimed by EZN18: CB 104 at [5];
(b)there were inconsistencies in EZN18’s evidence about when YB died, for example:
(i)in his entry interview it was said to be in 1992: CB 50-51, Qu 29; and
(ii)in the 2016 Statutory Declaration (as part of the SHE Visa application) it was said to be in 1998: CB 104 at [5].
In considering potential explanations for inconsistencies in EZN18’s account the Authority:
(a)had regard to explanations given by EZN18;
(b)was mindful of the limited scope and purpose of the entry interview and the need to treat statements made (or not made) in an entry interview with caution: CB 275 at [29], consistent with the admonitions of the Federal Court in this regard: MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 at [55]-[57] per North, Bromberg and Mortimer JJ; CQQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 982 at [91]-[92] per Raper J, but noted that the entry interview (conducted in January 2013) was not conducted as soon as EZN18 arrived in Australia (in October 2012), but rather some time after his arrival: CB 275 at [29], and that claims as to, for example, his arrest, were not made in the:
(i)entry interview;
(ii)the 2016 Statutory Declaration: CB 275 at [30],
and were not in fact made until the Delegate’s Interview in December 2017: CB 275 at [29]-[30];
(c)considered EZN18’s claim that he had depression and that his memory was affected: CB 104 at [2], but found that EZN18 had:
(i)provided no medical evidence of depression or having sought treatment for depression; and
(ii)had been able to provide details about his addresses, work places and family’s dates of birth without difficulty,
and therefore found that it was open to it to find that EZN18 did not suffer from depression and that his memory was not affected: CB 275 at [23]. As the weight and evaluation of evidence is generally a matter for the Authority as the finder of fact at first instance: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464 (“Lee”) at [27] per French J; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122 (“SZJSS”) at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, that finding was one that was open for the Authority to make on the evidence before it.
The Authority had regard to a number of documents referred to by EZN18 in support of his claims.
The first document was a letter from a parish priest (Priest’s Letter”): CB 16. The Authority characterised the Priest’s Letter as a “general letter which does not include any claim or information about … [YB]”, and a “general letter about no security for young people”, and the Authority place no weight on the Priest’s Letter: CB 274 at [20]. The Priest’s Letter is undated and addressed “[t]o whom it may concern”, and says that:
(a)the priest knows EZN18 and his family, and that they are in the priest’s parish and “under my care”;
(b)due to the “prevailing situation” in Sri Lanka “young people have no security and … find much difficulties to safeguard their life”; and
(c)EZN18 has come to “your country” (notably an unspecified country) and that “[i]t would be safer to stay in your country”.
The Authority’s description of the Priest’s Letter is correct insofar as it says the Priest’s Letter contains no claim or information about YB, and otherwise is a “general letter”. The Priest’s Letter lacks any specificity in relation to the claims made by EZN18, and the Court considers it was open to the Authority to place no weight on it, the weight and evaluation of evidence generally being a matter for the Authority as the finder of fact at first instance: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Lee at [27] per French J; SZJSS at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The second document was a letter from a local Member of Parliament (“Local MP” and “MP’s Letter” respectively): CB 66. In relation to the MP’s Letter the Authority observed at CB 274 at [21] that it:
(a)was undated;
(b)referred to YB being a member of the LTTE who died in the Sri Lankan civil war, and the Terrorism Investigation Division (“TID”) and the CID making enquiries about EZN18;
(c)made no mention of any arrest, detention or harm faced by EZN18;
(d)was a general letter and failed to mention key aspects of EZN18’s claims;
(e)appeared to written be on the basis of advice from EZN18’s wife, and was not based on any firsthand knowledge held by the Local MP; and
(f)it provided no detail about YB’s LTTE membership or rank or when he died, apart from referring to the civil war.
Given these problems, the Authority put little weight on the MP’s Letter, and found that it did not overcome the difficulties the Authority had found with EZN18’s evidence and YB’s Death Certificate: CB 274 at [21]. In the circumstances the Authority was entitled to attribute little weight to the MP’s Letter, the weight and evaluation of evidence generally being a matter for the Authority as the finder of fact at first instance: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Lee at [27] per French J; SZJSS at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The third and fourth documents are single page letters from EZN18’s mother addressed to local village officials asking them to certify that her husband and her son (EZN18) had lived at a particular address, and that family members, including EZN18, had been affected by the Sri Lankan civil war. Each of these documents bears a handwritten certification by the village official as to the matters they were asked to certify: CB 24 and 25 (“Village Letters”). As the Authority noted:
(a)the Village Letters made no mention of EZN18’s brother being killed or that he was an LTTE member; and
(b)the “certifications” in the Village Letters were made at EZN18’s mother's request and were apparently not based on the village official’s firsthand knowledge: CB 275 at [22].
Particulars b and c
In relation to particular b, EZN18’s own claim was that YB’s “rise within LTTE was quite rapid and he became Colonel in the LTTE”: CB 104 at [5]. The Authority was merely responding to the claim as put by EZN18. There was no “wrongful assumption” by the Authority.
In relation to particular c, it was open to the Authority to not accept that YB was an LTTE fighter for the reasons it gave, which included:
(a)inconsistencies in EZN18’s evidence about the date of YB’s death, that YB’s death certificate evidenced his death in 1992, a year before EZN18 claimed he joined the LTTE, and that his occupation/ rank was “cultivation”; and
(b)the limited value of the other documents relied upon by EZN18.
Conclusion – ground 1
In SZMDS at [133] per Crennan and Bell JJ it was observed that “[T]he correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.”
In this matter, as is evident from [14]-[24] above, the Authority had regard to, and considered all of, the relevant facts, documents and issues that were before it in relation to YB. The Authority made findings that were open to be made by it, and which other rational decision-makers might have made, and which were not illogical or irrational having regard to the test as to logicality and rationality in administrative decision-making set out in SZMDS at [131]-[135] per Crennan and Bell JJ.
In all the above circumstances, ground 1 does not establish jurisdictional error in the Authority Decision.
Ground 2
It would appear that ground 2 is intended to assert that the Authority did not comply with the conditions for the acceptance of new information in s 473DD of the Migration Act in relation to information concerning en masse processing at airports of returnees to Sri Lanka. The Authority dealt with this issue in the Authority Decision:
(a)at CB 271 at [5] where it considered there were exceptional circumstances for considering the 2018 DFAT report, which contained information about en masse processing: CB 271 at [5]; and
(b)at CB 272 at [10]-[11] as follows:
10.It was submitted that as returnees are processed en masse that members of the group could all be impute with political opinion they did not hold due to one member of the group being found of interest. Although information about the en masse processing of returnees was before the delegate (which I have dealt with below), I consider this claim about feared adverse imputation to be information.
11.I consider the information could have been provided earlier, as although it refers to future risks it does not relate to new events or circumstances that were not previously known. The information about airport en masse processing at airports was publicly available in the DFAT report well before the decision was made. Further, the applicant had plenty of opportunity at his interview and in his statement to provide the information prior to the decision. Further, the applicant has not provided any independent information to support this assertion. I am not satisfied that there are exceptional circumstances to consider this information.
The High Court considered the nature of the procedural duties under s 473DD of the Migration Act in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”). In AUS17 the High Court held that performance of the procedural duty in s 473DD of the Migration Act requires:
(a)the Authority:
(i)first, to assess new information against the criteria specified in ss 473DD(b)(i) and (ii) of the Migration Act; and
(ii)if satisfied that one or both criteria are met, to take the outcome of that assessment into account in its assessment of exceptional circumstances under s 473DD(a) of the Migration Act: AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J; and
(b)that if neither criterion under s 473DD(b) of the Migration Act is met, that the Authority is prohibited from considering the new information and that there is no need to assess that information against the criterion in s 473DD(a) of the Migration Act: AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J.
In this case:
(a)EZN18 provided no independent information to support the assertion that en masse processing led to imputation of political opinion to the group: CB 211 and 272 at [10]-[11];
(b)the information concerning en masse processing had been publicly available since at least the 2017 DFAT report which, as the Authority noted, was “well before” the Delegate’s Decision was made: Affidavit of Catherine Oppel dated 3 May 2024, DFAT Country Information Report Sri Lanka, 24 January 2017 at [5.19]; and
(c)EZN18 had “plenty of opportunity” to provide the information prior to the Authority Decision: CB 272 at [11],
and in the circumstances it was open to the Authority to determine that there were not exceptional circumstances for considering the information on this basis.
In the above circumstances, ground 2 does not establish jurisdictional error in the Authority Decision.
Jurisdictional error otherwise
The Court is cognisant that EZN18 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev.
In the Court’s view, there is nothing otherwise in the materials before it which might give rise to an argument that the Authority made a material jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
Neither ground 1 nor ground 2 of the Judicial Review Application establishes jurisdictional error in the Authority Decision, and as no jurisdictional error is otherwise apparent in the Authority Decision, it follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 July 2024
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