FCJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 904
•16 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 904
File number: MLG 2521 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 16 September 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority affirming a decision not to grant the applicant a protection visa – whether the Authority failed to undertake its task or denied the applicant procedural fairness by failing to raise critical matters – whether the Authority denied the applicant procedural fairness or made an error of law by not inviting the applicant to an interview – where applicant asserts that he could not properly give evidence due to medical conditions – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5J, 36, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 24 July 2024 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Macaulay Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2521 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
16 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa. The matter was referred to the Immigration Assessment Authority (Authority) and the Authority affirmed the delegate’s decision. The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The grounds in the applicant’s application assert that the Authority decision is affected by jurisdictional error on the basis that the Authority:
(a)constructively failed to review the delegate’s decision, or denied the applicant procedural fairness, in failing to sufficiently raise critical matters with the applicant or extend to him a real opportunity to reply to adverse information; and
(b)denied the applicant procedural fairness, or made an error of law, in refusing to schedule an oral interview to allow the applicant to present his claims.
The applicant also raised a number of additional matters in his oral submissions, which I have addressed in this judgment.
For the reasons explained below, the applicant has not established that the Authority decision is affected by jurisdictional error.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia by sea in November 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant participated in an Irregular Maritime Arrival Entry Interview with an officer of the Minister’s Department on 9 February 2013 (entry interview).
The applicant applied for a protection visa on 7 April 2016. In a statement provided with his application, the applicant claimed to fear harm from the Sri Lankan Army (SLA) or the Criminal Investigation Department (CID) on the basis of being a Tamil, as a potential witness for the United Nations human rights investigations into war crimes, as a court witness in relation to the murder of his nephew, and as a failed asylum seeker.
On 26 September 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
The Department wrote to the applicant on 24 November 2016 advising that the applicant’s Sri Lankan National Identity Card was assessed to be a bogus document and providing the applicant an opportunity to comment on whether he provided a bogus document and if so, whether he had a reasonable explanation for doing so. The letter also gave the applicant the opportunity to provide documentary evidence of his identity, nationality or citizenship.
The applicant, via his representative, provided a response to the Department on 14 December 2016 and further evidence in relation to his identity on 10 January 2017.
The delegate refused to grant the applicant a protection visa on 23 January 2017.
A delegate of the Minister issued a non-disclosure certificate under s 473GB(5) of the Migration Act on 23 January 2017. The certificate covered information the disclosure of which would be contrary to the public interest because it contained information on internal integrity processes.
The matter was referred to the Authority under s 473CA of the Migration Act for review and the applicant was again represented when the matter was before the Authority.
The applicant, via his representative, provided to the Authority a statement signed by the applicant and supporting documents in relation to his medical conditions on 27 February 2017.
On 15 November 2017 the Authority affirmed the delegate’s decision.
SUMMARY OF THE AUTHORITY DECISION
Information before the Authority
The Authority had regard to the material given to it by the Secretary under s 473CB of the Migration Act and the applicant’s statement to the extent that the statement did not contain new information. The Authority considered that the statement contained two pieces of new information, namely, that the applicant did not go through a screening process after the war ended and that he suffered from mental health issues due to past incidents in Sri Lanka and had been referred to counselling. The Authority identified that the applicant provided supporting documents that also comprised new information including a news article from 2016 and medical documents.
The Authority considered whether each item of new information met the requirements of s 473DD(a) and (b) of the Migration Act. The Authority was not satisfied that the requirements of s 473DD were met.
The Authority’s consideration of the applicant’s claims for protection
The Authority accepted that the applicant was of Tamil ethnicity and the Hindu faith and was from the Northern Province of Sri Lanka.
The Authority accepted that in 2000 the applicant and his family were displaced from their home area because of fighting between the Liberation Tigers of Tamil Eelam (LTTE) and the SLA, that many were killed including some of his relatives, and that a number of villagers disappeared and remained missing. The Authority noted that the applicant had not claimed that these incidents had any ongoing repercussions for him or his family.
The Authority also accepted that the applicant suffered severe injuries to his arm and leg in a shell attack and had a piece of shrapnel lodged in his head.
The Authority accepted that in September 2008 the applicant’s nephew was abducted, possibly tortured and was found dead some days later, but did not accept that the applicant was abducted with his nephew, mistreated and subsequently released. The Authority noted the inconsistent evidence provided by the applicant in respect of the death of his nephew and did not consider that the applicant’s shrapnel injury adequately accounted for the material differences between the supporting documents provided and his recollection of an event he claimed to have experienced. In view of the significant discrepancies and inconsistences of the applicant’s account, the Authority was not satisfied that the applicant was abducted with his nephew, slapped in the face, tied up, beaten, interrogated, and released. The Authority considered that this incident was a fabrication designed to enhance the applicant’s claims for protection.
It followed that the Authority did not accept that the applicant had been threatened or harassed to deter him from providing evidence to the Magistrates Court about this incident, or that since he left Sri Lanka his eldest nephew was told that the applicant would be killed when he returned home. The Authority also rejected that the applicant had appeared in court five or six times to give evidence without being questioned.
The Authority considered the applicant’s claim to have spoken to the United Nations as a witness in relation to a current investigation into war crimes, such as his nephew’s abduction and murder. The Authority had regard to its lack of acceptance that the applicant witnessed the abduction of his nephew, that the applicant did not claim that residents of other homes visited by the United Nations had been subjected to threats and country information in finding that it was satisfied that the applicant was not at risk of harm on the basis that he could be a witness to war crimes for international bodies.
The Authority was satisfied that the applicant would not be imputed to be an LTTE supporter either on his own account or because of his nephew and was otherwise not satisfied that his Tamil ethnicity put him at risk of serious harm. This finding was made taking into account the country information that was before the Authority.
The Authority accepted that the applicant had shelling-related injuries which resulted in a disability and for which he only received effective treatment in Adelaide in 2014. The Authority noted the applicant had not claimed to have experienced discrimination due to his injuries and the Authority was not satisfied that the applicant’s injuries would place him at risk of harm. The Authority noted that the applicant had been able to work in Sri Lanka prior to receiving treatment for his injuries and was not satisfied that he would not be able to survive with his injury or that he would suffer significant economic hardship because of his injury.
Assessing the applicant’s claims and evidence overall, the Authority was not satisfied that the applicant was or would be at risk of harm if he returned to Sri Lanka on the basis of his Tamil ethnicity, imputed political opinion, family relationships, his gender or age, his injuries, evidence given to the United Nations, or his origins as a Tamil from the Northern Province.
The Authority accepted that the applicant left Sri Lanka unlawfully and would be perceived as a returning asylum seeker from the west. In considering the totality of the treatment that the applicant would experience, the Authority found that the treatment did not amount to serious harm. Further, the Authority found that the treatment of the applicant under the Immigrants and Emigrants Act (Sri Lanka) was not discriminatory but of general application to all Sri Lankans and did not amount to persecution within the meaning of s 5J(4) of the Migration Act. Accordingly, the Authority was not satisfied that the applicant was at risk of serious harm as a returning asylum seeker or an illegal departee.
Based on its findings, the Authority concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act.
The Authority also considered the applicant’s claims based on the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Authority was not satisfied that there was a real risk that the applicant would experience significant harm for any of the reasons claimed on return to Sri Lanka now or in the reasonably foreseeable future. This finding was based on the factual findings the Authority made in earlier in its reasons as well as its finding that the treatment the applicant may face on his return to Sri Lanka, including for breaching the Immigrants and Emigrants Act, would not amount to ‘significant harm’ as defined in s 36(2A) of the Migration Act. Accordingly, the Authority found that the applicant did not meet the criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 22 November 2017. The application was made within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
The application contains the following grounds (reproduced without alteration):
1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant’s procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.
2.The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
3.I have approached for legal assistance through Victorian Legal Aid and am waiting for a response from them to assist me at the federal circuit court. I will have a lawyer representing me at my court hearing.
The third ground in the application does not assert any jurisdictional error in the Authority decision. It is a statement about the manner in which the applicant intended to progress his judicial review application and not something that is capable of establishing jurisdictional error. It is not addressed further in these reasons.
Pursuant to an Order made by a Registrar of this Court, the applicant was required to file written submissions, any amended application with proper particulars of the grounds of the application, and any additional evidence at least 28 days before the hearing. No documents were filed by the applicant in accordance with the Order. The Minister filed written submissions ahead of the hearing as required by the Order.
When the matter came before the Court for hearing, I explained to the applicant that the grounds in his application do not contain enough detail to allow the Court to fully understand his case and the Minister to respond to it. When the applicant made oral submissions to the Court, I gave the applicant an opportunity to provide further detail in relation to his grounds and to tell the Court why he believes the Authority decision is affected by jurisdictional error.
The evidence before the Court comprises an affidavit of the applicant annexing the Authority decision filed on 22 November 2017 and the court book filed by the Minister on 22 August 2018.
CONSIDERATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Authority decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The applicant’s oral submissions at the hearing
The applicant made extensive oral submissions at the hearing. His submissions can be categorised into two broad themes:
(a)recounting instances of past harm in Sri Lanka and explaining why he fears returning to Sri Lanka; and
(b)explaining difficulties he had when giving his evidence.
I address these themes in turn.
Submissions regarding past harm in Sri Lanka and fears of returning to Sri Lanka
The applicant submitted that:
(a)He and his nephew were abducted, and his nephew was slaughtered and murdered. ‘They’ captured both of them and killed his nephew. There is a case in relation to this which is still current in his country. The applicant is afraid he will get killed if he goes back and they want to frame him as one of the accused. He fears for his life from the military and others. He escaped to Australia to survive and feels that he will get killed if he goes back. If he goes back the people who killed his nephew will kill him because he is a witness. He fears that he will be gruesomely murdered.
(b)People from other parts of the world think the situation in normal in Sri Lanka but there are still laws and powers which are handled inappropriately and people are killed, including by the police and military. They have powers to detain and imprison anyone under the Prevention of Terrorism Act (Sri Lanka). They can do anything to people they take into custody and there is no time frame for releasing them or getting people before a court. They are misusing that Act and the applicant fears for his life. Intelligence agencies could also kill him.
In his reply submissions, the applicant requested that he be put in jail in Australia rather than be sent back to Sri Lanka. He submitted that it is really shocking that the Sri Lankan government is able to make Australian authorities not consider any information about the powers in Sri Lanka and what happens in Sri Lanka.
The applicant’s submissions relate to whether he meets the criteria to be granted a protection visa, rather than asserting any jurisdictional error in the Authority decision. As I explained to the applicant at the hearing, the Court cannot consider for itself whether he meets the criteria for a protection visa. The applicant’s disagreement with the Authority decision is not, of itself, sufficient to establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
To the extent that the claims referred to in the applicant’s submissions were raised in the materials before the Authority, they were considered by the Authority. The applicant has not identified any error in the Authority’s findings and there is nothing apparent in the reasoning of the Authority to suggest that the Authority’s findings were not open to it on the evidence before it.
These aspects of the applicant’s oral submissions do not establish jurisdictional error in the Authority decision.
Submissions about difficulties in giving evidence
The applicant referred to two main issues when discussing the evidence he gave to the Department and the Authority in support of his claims for protection.
The first relates to the documentary evidence that he provided. He submitted that he produced documents about the Sri Lankan court case regarding his nephew’s abduction and murder, but the documents are in another language that he cannot read. He could not understand the language in the documents and he could not understand most of the English language in Australia. He submitted that he has no control about the document and what was in it.
I am not satisfied that this establishes jurisdictional error. The Authority had regard to the documentary evidence that the applicant provided in support of his claims for protection, as it was required to do, and the applicant does not assert otherwise. The applicant’s assertion appears to be that he did not understand the evidence he provided in support of his claims. The applicant had a representative before the Department and before the Authority and was assisted by an interpreter in his interviews with officers of the Department. He has offered no explanation as to why any difficulties he had understanding the evidence he provided in support of his claims gives rise to jurisdictional error in the Authority decision.
I consider it likely that the applicant, in raising this issue, had in mind findings by the Authority in relation to discrepancies between his evidence and the documents from Sri Lankan authorities that he provided in relation to his claim to have been abducted with his cousin. Both the delegate and the Authority considered the discrepancies in their reasons. The Authority also considered the explanations provided by the applicant for the discrepancies. Part of the applicant’s explanation was that, after being read the delegate’s decision and listening to the audio recording of his protection visa interview, he realised that he made some mistakes about the dates and details of the abduction. The Authority’s consideration of that aspect of the applicant’s explanation is discussed below. The applicant also stated to the Authority that the Sri Lankan police put the wrong name on the police report to the Magistrates Court and, if the applicant had known this, his would have explained the inconsistencies in his protection visa interview. The Authority considered this explanation but did not accept that the police put the wrong name on the report, noting that the witness statement of the applicant’s nephew’s brother that was provided to the Magistrates Court also did not identify the applicant as being present at the time of the abduction incident. It was open to the Authority to reason in this way.
The applicant also referred to the authorities in Australia wanting his identification documents and that he needed to request the documents from his father in Sri Lanka, who faced threats to get the documents. The relevance of this is in the context of the applicant’s submissions is not clear. It was raised following the difficulties that the applicant claimed to face in establishing that he was Sri Lankan upon first entering Australia (see below). That the applicant was asked to provide documentary evidence of his identity does not establish that he was unable to explain himself to the authorities in Australia when he first entered and does not suggest any jurisdictional error in the Authority decision. I also note that the applicant’s National Identity Card given to him by his father was found by the delegate to be bogus, but the delegate found that the applicant had a reasonable explanation for providing a bogus document so s 91W(2) of the Migration Act did not apply. The Authority expressed no concerns about the applicant’s identity and no jurisdictional error arises in the Authority decision in relation to the applicant’s identity.
The second issue regarding the difficulties in giving evidence that the applicant addressed in his oral submissions related to his injuries. The applicant submitted that he had injuries at the time he entered this country and could not explain things in detail because he was fearing for his life and that he would be sent back. He also submitted that he could not explain things in detail because of the agony from the shelling he went through and his injuries. He still has metal pieces in his head. He submitted that he was receiving mental health support in Australia but stopped going for the past five years because he has improved a little bit and feels safe because nobody hates him. He submitted that because of his mental state at the time of his entry, he was not able to explain to the authorities in a proper way that he was Sri Lankan, but he proved he was Sri Lankan by citing his brother in Denmark and two of his sisters in Sri Lanka. He was not in a state to explain things properly to the authorities when he arrived in Australia because of the agony and pain and has since had an operation in Australia.
In his reply submissions, he submitted that he provided an oral statement when he was undergoing an operation and medical treatment and he was in pain and agony from the operation. When someone is in pain and agony, they are not in a state of mind to explain things properly and they cannot give correct information because their thoughts are focused on the pain rather than giving correct and logical information with a good sense of understanding. He submitted that the Authority should have considered this but did not do so.
The adverse credibility findings that the Authority made against the applicant related to his claim to have been abducted with his nephew. In making its findings, the Authority did not rely on anything that the applicant said, or did not say, at his entry interview given shortly after his arrival in Australia. There is no basis for considering that any difficulties that the applicant may have had explaining himself to the Australian authorities when he first entered Australia caused the Authority to make an adverse credibility finding. It is unnecessary to make any finding about the impact of the applicant’s injuries, sustained (on the Authority’s findings) in a shelling in 2000, on the evidence that he gave in his entry interview.
Insofar as the applicant’s submissions relate to the impact of his injuries on his ability to give the evidence more generally, the Authority expressly addressed this issue to the extent that it was raised in the materials before it. The Authority was ‘mindful of the difficulties applicants have in effectively putting forward all of their claims for protection including the difficulties of recall over time, cultural differences and the possibility of difficulties with interpreted material as well as possible past traumatic experiences’: Authority’s reasons at [16]. In his statement to the Authority, the applicant said that after being read the delegate’s decision and listening to the audio recording of his protection visa interview, he realised that he made a mistake about dates and details of the abduction incident and did not understand how he could have made the mistake, and he stated his capacity to recall events had been affected by his head injury. In response to this submission, the Authority noted that there was no medical evidence before it regarding the impact of the shrapnel injury to the applicant’s head on the applicant’s memory. The Authority proceeded to find that, even if it accepted that the applicant’s memory could have been affected by his injury and this may account for his inability to recall dates, it did not adequately account for material differences between the supporting documents and his recollection of an event that he claimed to have experienced: Authority’s reasons at [22].
To the extent that the applicant’s submissions to the Court raise new explanations as to why he was not in a fit state to give evidence when he did, they do not establish jurisdictional error. It is unclear why the applicant, in asserting to the Authority that the shrapnel injury to his head impacted his ability to recall past events did not also submit to the Authority that the ‘pain and agony’ from his other injuries and operations affected his ability to recall events. Given that the applicant’s ‘pain and agony’ was not offered as explanation to the Authority, the Authority was not required to expressly consider it. Further, the medical evidence that is before the Court suggests that the applicant had medical procedures or hospital admissions in March 2014, July 2014 and September 2015. There is no evidence of the applicant undergoing any operation or other treatment around the time that he gave his written statement in March 2016 or at the time he attended his protection visa interview in September 2016. There is no basis for finding that there was any other medical reason, not known to the Authority, that affected the applicant’s ability to give evidence and therefore no need to consider whether any such condition might potentially give rise to jurisdictional error in the Authority decision.
The applicant’s oral submissions do not establish jurisdictional error in the Authority decision.
Ground 1
By ground 1 the applicant asserts that the Authority constructively failed to carry out its task, denied the applicant procedural fairness by failing to sufficiently raise critical matters with him or to extend to him a real opportunity to reply to adverse information.
Despite being given an opportunity to provide further information about this ground at the hearing, the applicant did not do so. Nevertheless, as the applicant is self-represented, the Court will endeavour to understand the ground the best it can.
The ground needs to be assessed in the context of the provisions of Part 7AA of the Migration Act, which set out the procedures that the Authority is required to follow when conducting a review.
Subsection 473DA of the Migration Act provides that the provisions in Division 3 of Part 7AA, together with ss 473GA and 473GB, comprise an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. The provisions that are most relevant in this application are discussed below.
Subject to Part 7AA of the Migration Act, the Authority is to conduct the review having regard to the materials given to it by the Secretary without accepting or requesting new information and without inviting the applicant to attend an interview: s 473DB(1). That is what the Authority did in the present case.
Section 473DC does confer on the Authority a discretion to get new information that was not before the delegate at the time of the decision under s 65 of the Migration Act and which the Authority considers may be relevant. The Authority may obtain new information in writing or at an interview, but does not have a duty to get, request or accept new information, whether it is requested to do so by the applicant, another person or in any other circumstances.
Pursuant to s 473DD of the Migration Act, if the Authority does get new information, it must not consider that new information unless:
(a)it is satisfied that there are exceptional circumstances to justify considering the new information (s 473DD(a)); and
(b)in relation to new information provided by the applicant, the applicant satisfies the Authority that:
(i)the new information was not, and could not have been, provided to the Minister prior to the decision under s 65 of the Migration Act (s 473DD(b)(i)); or
(ii)the information is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims (s 473DD(b)(ii)).
The Authority in the present case was asked to consider new information by the applicant. The Authority considered the new information against the requirements of s 473DD of the Migration Act. The Authority considered whether each item of new information met the requirements of both limbs of s 473DD(b) before also considering whether there were exceptional circumstances to justify considering the new information for the purposes of s 473DD(a). The Authority was not satisfied that the requirements of s 473DD of the Migration Act were met. The applicant has not submitted that the Authority made any error in its approach to s 473DD and none is readily apparent from the Authority’s reasons. The Authority did not get any new information itself.
Section 473DE of the Migration Act requires the Authority, subject to some exceptions, to:
(a)give to an applicant particulars of any new information which has been, or is to be, considered under s 473DD and would be the reason, or part of the reason, for affirming the delegate’s decision;
(b)explain why the new information is relevant to the review; and
(c)invite the applicant, orally or in writing, to comment on the new information in writing or at an interview.
Given that the Authority did not have regard to any new information, there was no obligation on the Authority to invite the applicant to comment on information pursuant to s 473DE of the Migration Act.
Sections 473GA and 473GB of the Migration Act relate to non-disclosure certificates. In the present case, there was a non-disclosure certificate issued under s 473GB of the Migration Act. Pursuant to s 473GB, the Minister may issue a written certificate to certify that the disclosure of any matter contained in a document would be contrary to the public interest for any reason specified in the certificate. Where the Secretary gives to the Authority a document to which s 473GB applies, the Secretary must notify the Authority that the section applies and may give any written advice that the Secretary thinks is relevant about the significance of the document or the information. The Authority may have regard to any matter contained in the document and may, if it considers it appropriate to do so having regard to advice from the Secretary, disclose any matter contained in the document to the applicant. The certificate in the present case relates to an internal Department report on a document provided by the applicant to the Department in relation to his identity, that was found by the delegate to be a bogus document. The Authority did not have any procedural fairness obligation to disclose the existence of the certificate to the applicant: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [2], [40]. The document the subject of the certificate is not before the Court. However, there is nothing in the materials before the Court to suggest that the Authority did not proceed in a way that was inconsistent with the requirements of s 473GB and, as noted above, the Authority did not raise any concerns about the applicant’s identity or the documents he provided in relation to his identity.
I am satisfied that the Authority in the present case has complied with all its procedural fairness obligations that arise under the Migration Act.
The applicant also asserts that the Authority did not sufficiently raise ‘critical issues’ with him, without identifying what those critical issues were. The Authority decision in this matter was more comprehensive than the delegate’s decision. The additional issues addressed by the Authority, such as those relating to the impact of his medical conditions and his claim to face harm as a failed asylum seeker, largely arose from the applicant’s submissions to the Authority or claims raised in the materials before the delegate but not addressed. In considering whether the applicant faced harm as a failed asylum seeker, the Authority had regard to evidence in the material before it that he left Sri Lanka illegally. This consideration was based on evidence given by the applicant and country information before the Authority. There was no procedural fairness obligation on the Authority to invite the applicant to comment on these issues and the applicant has not specifically asserted or established that it was unreasonable for the Authority not to invite him to address these issues.
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Authority denied him procedural fairness or made an error of law by not inviting him to an interview. The applicant has not explained why the Authority was required to invite him to an interview in the present case.
As an assertion of procedural fairness, the ground must fail. As set out above, pursuant to s 473DB(1) of the Migration Act, the Authority is ordinarily to conduct the review without accepting or requesting new information and without inviting the applicant to attend an interview. While the Authority has a discretion pursuant to s 473DC to get new information, including by inviting the applicant to an interview, s 473DC(2) makes clear that the Authority does not have a duty to get, request or accept new information in any circumstances. The Authority did not deny the applicant procedural fairness by not inviting him to attend an interview.
The discretion conferred on the Authority by s 473DC of the Migration Act to get new information is subject to the implied condition of reasonableness: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], [86]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3], [61], [80]. The applicant has not identified anything, and there is nothing apparent in the evidence before the Court, to suggest that the Authority acted unreasonably in not inviting the applicant to attend an interview. For example:
(a)there is nothing to indicate that the Authority was disabled from completing its statutory task because a new issue arose about which the Authority did not have relevant information that the applicant could reasonably be expected to provide: compare for example, Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210; and
(b)the adverse credibility findings made by the Authority were based on its assessment of the materials that were before the delegate and there is nothing in the circumstances of this case to suggest that it was unreasonable for the Authority to make its adverse credibility findings without inviting the applicant to an interview to seek further information or to assess his demeanour: compare, for example, ABT17; DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43.
Ground 2 is not established.
CONCLUSION
In circumstances where the applicant has not established that the Authority decision is affected by jurisdictional error, the application to this Court is dismissed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.
Associate:
Dated: 16 September 2024
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