FDS17 v Minister for Immigration, Citizenship & Multicultural Affairs
[2023] FedCFamC2G 1099
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FDS17 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FedCFamC2G 1099
File number: MLG 2555 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 30 November 2023 Catchwords: MIGRATION – Application for judicial review – whether Immigration Assessment Authority (‘Authority’) failed to consider a claim of mental illness – whether Authority misapplied section 473DD of the Migration Act 1958 (Cth) – whether the reasoning of the Authority was unreasonable in relation to relocation and other matters – whether the Authority failed to exercise jurisdiction – claims considered – application for judicial review dismissed. Legislation: Migration Act 1958 (Cth) pt 7AA, ss 473DC, 473DD, 473DD(a), 473DD(b), 473DD(b)(i), 473DD(b)(ii). 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
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
AWT15 v Minister for Immigration and Border Protection [2017] FCA 512
BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272
CBS15 v Minister for Immigration and Border Protection [2018] FCA 1431
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Creamer v Minister for Immigration and Border Protection [2018] FCA 269
DQI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 106
ELA18 v Minister for Home Affairs [2019] FCA 1482
ERJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 42
EXT20 v Minister for Home Affairs (2022) 291 FCR 54
FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620
FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 23 October 2023 Place: Melbourne Counsel for the Applicant: Mr Maloney Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2555 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FDS17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship & Multicultural Affairs’.
2.The Application dated 26 September 2023 be dismissed.
3.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 3 November 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister (‘delegate’) to refuse to grant a Safe Haven Enterprise (subclass 790) visa (‘the visa’) to the Applicant (Court Book (‘CB’) 285).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. The Applicant arrived in Australia on 28 August 2012 as an unauthorised maritime arrival (CB 221). He set out his claims for protection in a Statutory Declaration dated 14 September 2013 (CB 50) (‘2013 Statutory Declaration’).
The Applicant subsequently applied for the visa that is now the subject of these proceedings. His claims for protection were set out in a further Statutory Declaration dated 12 August 2016 (CB 133) (‘2016 Statutory Declaration’).
On 25 January 2017, the Applicant attended a Protection Visa interview (CB 158). Subsequent to the interview, the Applicant sent to the delegate a set of written submissions (CB 185), and a letter from Foundation House (CB 215).
On 7 March 2017, the delegate refused to grant the Applicant the visa (CB 218).
On 10 March 2017, the decision of the delegate was referred to the Authority for a fast-track review of the delegate’s decision under Part 7AA of the Migration Act 1958 (Cth) (‘Act’) (CB 252). Pre-hearing submissions were submitted by the Applicant’s former legal representative on 31 March 2017, along with a further Statutory Declaration dated 30 March 2017 (CB 272-280) (‘2017 Statutory Declaration’).
On 3 November 2017, the Authority affirmed the decision not to grant the Applicant the visa (‘Reasons’) (CB 285).
The Applicant filed an application to review the decision of the Authority in this Court on 24 November 2017 along with a supporting affidavit.
At the hearing before me, the Applicant relied on an Amended Application dated 26 September 2023 (‘Application’), an outline of submissions dated 26 September 2023, and an affidavit of Rachel Mason dated 26 September 2023. The Minister filed a Court Book, and relied on an outline of submissions dated 9 October 2023.
THE APPLICATION
Ground 1
The first Ground of Review in the Application is:
1.The Authority failed to consider the Applicant’s mental illness in assessing whether he faced a real chance or real risk of harm on return to Sri Lanka.
Particulars
The Applicant suffered from mental illness, and provided both submissions and evidence to that effect. He asked that the mental illness be taken into account in considering his claims; even had he not done so, his mental illness clearly arose on the established facts before the Authority. The Authority considered the Applicant’s mental illness in assessing his credibility, but did not consider it in assessing whether he faced a real chance or real risk of serious or significant harm.
The Authority accepted that the Applicant had experienced various traumatic events including the death of his parents and sister during the 2004 Boxing Day Tsunami, that he had lived through the Sri Lankan Civil War, that he had witnessed shelling and explosions, that he was abducted by the Liberation Tigers of Tamil Eelam (‘LTTE’) and forced to build bunkers, and that he was interrogated by the Criminal Investigation Department (‘CID’) about his family’s connections with the LTTE. The Authority also considered a letter from the Applicant’s counsellor at Foundation House, and accepted that he had some ‘psychological vulnerabilities’.
In the 2016 Statutory Declaration, the Applicant stated:
3.I have experienced terrible things in Sri Lanka that affected me badly. The psychological effect and the depression is still following me. I have a counsellor at Foundation House and am continuing to have counselling. I ask the case officer to take my mental health into consideration when interviewing me and considering my claims.
The Applicant’s contention is that in the 2016 Statutory Declaration, he expressly asked that his mental health be taken into consideration ‘when…considering my claims’. He says submissions to this effect were also made by him to the delegate on 8 February 2017 (see CB 208). Despite these matters, the Applicant says the Authority failed to take his mental health into account when assessing his claims, and only considered his mental health in assessing his credibility. The Applicant contends there was no basis for the Authority to only take account of his mental health when it came to assessing his credibility. The Applicant contends that had the Authority taken into account his mental health in assessing his claims, it may have considered, for example, whether there was a chance of him being questioned and temporarily imprisoned on return to Sri Lanka that would cause him serious or significant harm. It is contended that had the Authority done its job properly, it might have considered the relevance of the Applicant’s mental health to the question of whether he could re-establish himself on return to his home region. Accordingly, it is said that the Authority has fallen into error.
In order to assess these contentions, it is necessary to consider, among other things, the claims the Applicant advanced before the delegate, and before the Authority.
In the 2013 Statutory Declaration, the Applicant set out his claims. He did not make any claim to fear a return to Sri Lanka on the basis of his mental health.
In the 2016 Statutory Declaration, the Applicant again set out his claims. I have already set out paragraph [3] of the 2016 Statutory Declaration above, which the Applicant relies on. The Applicant made no claim to fear a return to Sri Lanka based on his mental health. In that respect, paragraph [38] of the 2016 Statutory Declaration is instructive. In it, the Applicant summarises his claims for protection (but makes no mention of a claim based upon his mental health) as follows:
38.I fear that if I am returned to Sri Lanka, the CID would interrogate me again, and may carry through with their threats to my life. They have suspected me of being involved with the LTTE. They suspect me because I am a Tamil and lived in LTTE controlled areas in the North. My [Brother T] fought with the LTTE. I believe that the authorities know this. I defied the CID by not going to their office when they demanded it. They now know that I am in Australia. I think that they would be very angry that I did not obey them, and because I then fled the country it would make them think I am guilty. The Sri Lankan authorities are still looking for people who were LTTE members, and are trying to squeeze all the information that they can.
In written submissions to the delegate on 8 February 2017 (CB 185), the Applicant again set out his claims (CB 186). The Applicant stated he faced serious harm or persecution because of his Tamil ethnicity, or his imputed political opinion against the government and in support of the LTTE, and his membership of particular social groups. No claim was advanced that he feared persecution or serious harm because of his mental health. It is notable that when the Applicant’s representatives came to addressing his claims in their submission in detail (commencing at CB 192), they advanced no submission or claim based on the Applicant’s mental health. Nor did they do so when they made a submission about any risks the Applicant may face in detention upon return to Sri Lanka (from CB 196), or about the risks he faced after release from detention in Sri Lanka (from CB 199).
The letter from Foundation House is dated 7 February 2017. The writer of the letter, Ms Camilleri, confirms the Applicant is receiving ongoing counselling ‘to assist with nightmares and symptoms of anxiety’ which stem from events that occurred in Sri Lanka. She says nothing about any risks the Applicant may face arising from his mental health.
The delegate produced written reasons for refusing to grant the visa. At Part 4 of those reasons (commencing at CB 222), the delegate set out the Applicant’s claims for protection. The delegate did not record any claim made by the Applicant that he feared serious harm or persecution based on his mental health. The delegate, in fact, after dealing with the claims that were advanced by the Applicant, stated as follows:
The applicant has not expressly raised any other claims to fear significant harm for other reasons if he were to return to Sri Lanka, and I am satisfied that no such claims are implicit based on the information before me.
On 31 March 2017, the Applicant made submissions to the Authority (CB 272). In those submissions, the Applicant’s representatives set out his claim at Part 2 (CB 272). No claim was advanced based on the Applicant’s mental health.
In the 2017 Statutory Declaration, the Applicant again set out his claims. No claim was advanced by the Applicant in that document that he feared serious harm or persecution based on his mental health.
While no claim was advanced that the Applicant faced serious harm or persecution on return to Sri Lanka because of his mental health, he did make a submission as to the effect of his mental health on his credibility (and any inconsistencies in his evidence):
(a)In his written submissions to the delegate on 8 February 2017 (from CB 185), the Applicant submitted:
We submit that in considering any inconsistencies, if any, in [the Applicant’s] evidence, regard must be had to the variable nature of memory and the impact of trauma on memory processing, and that the memory is not a genuine reconstruction from autobiographical experiences.
(b)In his written submissions to the Authority on 31 March 2017 (from CB 272), the Applicant stated:
In his Statement, [the Applicant] also provides clarification of his evidence to the delegate which was undermined by the adverse assessment of his demeanour by the delegate. It is our submission that due to [the Applicant’s] mental health, limited English-language skills and educational and cultural differences, [the Applicant] was not aware that the case officer was misinterpreting his evidence as vague, lacking in detail or unconvincing and therefore unable to clarify his evidence before a decision was made.
…
As per part 2.3 of our post-interview submissions, it is our submission that [the Applicant] has provided consistent and credible evidence with respect to his claims since his arrival in Australia. We further submit that any inconstancies and/or ambiguities in [the Applicant’s] evidence can be reasonably attributed to cultural and educational differences, lack of English language skills and [the Applicant’s] current mental health condition, as confirmed by [the Applicant’s] Foundation House Counsellor in the support letter provided to the delegate.
Given what occurred, it is unsurprising that the Authority dealt with Applicant’s mental health in the context of assessing his credibility only, in the following way:
14.I have had regard to a letter from a counsellor at Foundation House, dated 7 February 2017, which was before the delegate. The letter states that the applicant was referred for trauma counselling and attended twelve sessions up until March 2016. The letter states that, at that time, the applicant was suffering from nightmares and symptoms of anxiety which appeared to stem from events in Sri Lanka, including the death of several family members, as well as uncertainty about his future. The letter does not indicate whether the applicant’s mental health has impacted on his capacity to present his claims for protection, and having listed [sic] to the interview audio, the applicant appeared to provide prompt and coherent answers to all the delegate’s questions via the interpreter.
15.While I accept the applicant has some psychological vulnerabilities, for the reasons discussed below, the letter does not overcome my concerns regarding the inherent lack of credibility of the applicant’s claims to have been of interest to the Sri Lankan authorities prior to his departure.
When all of the above is considered, in my view, the Authority did not fall into error. The Authority dealt with the claims, including the Applicant’s mental health, as they were advanced by the Applicant. The Applicant clearly raised issues concerning his mental health in order to address concerns about how his credibility might be assessed. He never claimed to face serious harm or persecution because of his mental health.
The Authority also did not fall into error because it failed to consider a claim that emerges from the materials. The principles to be applied in this context are well known: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68]; AWT 15v Minister for Immigration and Border Protection [2017] FCA 512 at [67]-[68]. In ELA18 v Minister for Home Affairs [2019] FCA 1482, Abraham J was confronted with a similar argument to that raised before me. At [32], Abraham J noted the need to consider the proper context of the claims advanced, and also noted that ‘the appellant was, and remains, represented…The Authority was entitled to assume that the claims expressly articulated by the appellant and his representative as to his feared persecution if he returned to Sri Lanka are those on which he relies: SZULW at [80]’.
As was the case before Abraham J, so is the case here. The proper context of the claims advanced in this matter, which I have referred to above, disclose no submission was ever advanced that the Applicant claimed to fear harm due to his mental health issues. The Applicant raised his mental health issues in relation to credibility, and this was taken into account. The Applicant was represented during the process. He was also on notice from the decision of the delegate exactly what claims he had pursued, and that he had not made any other claims to fear significant harm. Despite these matters, he made no attempt to clarify matters before the Authority, and instead advanced only the submission that his mental health was relevant to an assessment of his credibility. The matter about which the Applicant complains did not arise from the materials.
Finally, I would add further, that no claim as postulated by the Applicant at this hearing (see paragraph [14] above) was actually made by him.
For these reasons, I would dismiss Ground one of the Grounds of Review.
Ground 2
The second Ground of Review in the Application is:
2. The Authority misapplied s 473DD of the Migration Act 1958 (Cth) to new information presented by the Applicant.
Particulars
The Applicant provided to the Authority a statutory declaration and submissions after the matter had been referred to the Authority for review. The Authority purported to evaluate whether it could consider new information in this material under s 473DD of the Act. It concluded that it could not. However, it failed to consider whether the new information met the criteria in s 473DD(b)(ii), and thereby erred in its application of s 473DD(a) to the new information.
There is no dispute that in determining whether new information satisfies the criteria in section 473DD of the Act, the Authority must assess such new information first against the criteria set out in section 473DD(b)(i), and section 473DD(b)(ii), and only then against the criteria set out in section 473DD(a): see AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (‘AUS17’). Further, it is ‘unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). 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’: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] (Markovic J); FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456 (‘FMA17’) at [68] (Kenny J).
In its Reasons, the Authority dealt with the question of the new information before it in the following way:
3.On 31 March 2017 the IAA received a submission on behalf of the applicant (‘the IAA submission’). The IAA submission reiterates claims made to the delegate that are contained in the review material. It also contains arguments in relation to issues before the delegate.
4.Attached to the IAA submission is a statutory declaration from the applicant (‘the statutory declaration’), dated 28 March 2017. Given the date of the statutory declaration I am satisfied the document itself was not, and could not have been, provided before the delegate’s decision. In part, the statutory declaration reiterates claims made to the delegate, and contains arguments in relation to issues before the delegate. The statutory declaration also includes a new claim, that during the 1990s the LTTE paid the applicant’s father to fight for them. The applicant claims he did not disclose this to the delegate because he did not understand that this could be another reason why the Criminal Investigation Department (CID) would suspect him of supporting the Liberation Tigers of Tamil Eelam (LTTE), and because he is fearful of the Sri Lankan authorities, he finds it difficult to talk about his family’s LTTE involvement. It has also been claimed that the applicant’s lack of education, unfamiliarity with the protection assessment process and his diagnosed mental health problems constitute exceptional circumstances as to why he did not understand the importance of disclosing his father’s LTTE involvement to the delegate.
5.The statutory declaration also contains a second new claim, which is that since the applicant has been in Australia, he has been involved with “Tamil associations” and has attended Tamil events such as Martyrs’ Day. There may be photos of the applicant attending these events and he fears the Sri Lankan authorities will see them and impute him with a pro-LTTE political opinion. Furthermore should the applicant return to Sri Lanka he would like to continue participating in these public events, but fears that this will impute him with an anti-Sri Lankan government political opinion. These matters were not raised with the delegate, and there is no indication that the claimed participation in events in Australia only occurred after the delegate’s decision.
6.I am not persuaded by any of the explanations proffered. I note in 2013 the applicant lodged a Protection visa application, with the assistance of his then representative; and in 2016 lodged his SHEV application, for which he updated his 2013 statement of claims. The applicant’s current representative, a registered migration agent, was also present at the SHEV interview, during which the delegate explained how his claims for protection would be assessed, as well as the importance of providing all his claims in the first instance. The applicant confirmed to the delegate that he understood this. At the end of the SHEV interview the delegate again invited the applicant to provide any other claims he might have, and the applicant did so, putting forward a claim about his living arrangements should he return to Sri Lanka.
7.The applicant has not satisfied me that these new claims are credible personal information. For the reasons given above, I am not satisfied exceptional circumstances exist to justify consideration of these new claims.
The Applicant contends that the Authority failed to act in accordance with the law as articulated in AUS17. In particular, he contends that the Authority did not consider whether the information was capable of being believed, and so is ‘credible personal information’ within the meaning of section 473DD(b)(ii). He contends that the evaluation of whether section 473DD(a) is satisfied is not informed, as it must be, by a finding on the anterior question.
Subsequent to the hearing before me, the Applicant through his lawyers (and with the knowledge of the Minister’s lawyers), notified my chambers of the decision by Murphy J in BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272 (‘BTA18’). The Applicant submitted that BTA18 was binding on this Court with respect to this Ground of Review, and drew the Court’s attention to paragraphs [124]-[154] of the reasons of Murphy J. The Applicant noted the Minister’s view that BTA18 was both irrelevant and distinguishable.
BTA18 concerned, inter alia, the approach taken by the Authority to new information provided by an appellant. The Authority considered at length the new information sought to be admitted by the appellant (set out at paragraphs [124]-[125] of the reasons of Murphy J). Murphy J reviewed the reasons of the Authority. Murphy J ultimately found that the Authority had erred in its approach for two reasons. First, Murphy J considered that on a fair reading of the reasons of the Authority, the Authority had ‘fixated’ on the failure of the appellant to make new claims at an earlier stage when considering whether the information satisfied the criteria in section 473DD(b)(ii). In doing so, Murphy J found the Authority had misconceived its task, and that the failure of the appellant to raise the information earlier was decisive when it came to the Authority considering whether section 473DD(b)(ii) was satisfied. Second, Murphy J found the Authority had applied the wrong threshold for determining whether the new information was ‘credible’. The Authority did not limit itself to a consideration of whether the new claims were capable of being believed, but went further, and, inter alia, doubted the genuineness of the claims. Murphy J made these findings notwithstanding that the Authority had made express findings that the information could have been provided prior to the delegate’s decision, that the information was personal information, and the information was not credible.
BTA18 can be contrasted with the decision of Middleton J in DQI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 106 (‘DQI17’). In DQI17, Middleton J was confronted with a submission that the Authority had failed to consider the application of section 473DD(b)(ii) to the new information submitted by the appellant. Middleton J set out the approach taken by the Authority at [30]. Middleton J found the appellant’s submissions could not be sustained. Middleton J noted the comments of Kenny J in FMA17 (referred to earlier), and considered, inter alia, that the proper inference was that the Authority had considered the new information to be not credible because the appellant, who had been represented, had not provided the information earlier. Middleton J made that finding notwithstanding the failure by the Authority to state expressly that it had considered section 473DD(b)(ii). I observe that the decision DQI17 does not appear to have been considered by Murphy J in BTA18.
The submission that BTA18 is somehow binding on this Court is rejected. Each case necessarily turns on its facts, and in matters such as this, the reasons given by the Authority in a particular case.
There are three components to section 473DD(b)(ii). The first is that the information is ‘credible personal information’. The second is that the information was not previously known. The third is that the information may, if previously known, have affected the consideration of an applicant’s claims to be a person in respect of whom Australia has protection obligations. All of these components must be satisfied in order for section 473DD(b)(ii) to be engaged. As noted earlier, a formulaic approach to the assessment of whether section 473DD is engaged is not required. What is required is that the new information is assessed against section 473DD as a matter of substance.
In my view the Reasons of the Authority demonstrate that the substance of section 473DD(b)(ii) was considered. The Authority was clearly aware of the new information. It summarised the new information. The Authority noted, among other things, that the Applicant first lodged a protection visa application in 2013, that he applied for the visa in 2016, that his migration agent was present at the SHEV interview, that the delegate had explained the importance of providing all claims in the first instance, and that the Applicant was given an opportunity to provide additional claims at the end of the SHEV interview. All of this is directed to an assessment of whether the information was credible personal information, and whether it was previously known.
The structure of the Reasons of the Authority support the conclusion that the substance of section 473DD(b)(ii) was addressed. The Authority reached a state of satisfaction at paragraph [4] in relation to the requirements of section 473DD(b)(i). It then went on to assess the new information before it. It then expressly concluded at [7] that the information was not credible personal information. The proper inference to draw is that the reasoning of the Authority set out from after the end of the second sentence in paragraph [4] to its ultimate conclusion in the first sentence at paragraph [7] is all directed to an assessment of whether section 473DD(b)(ii) is engaged. The conclusion stated in the first sentence of paragraph [7] of the Reasons of the Authority makes that clear.
To the above, I add the following. The Reasons of the Authority in this matter are not the same as those considered by Murphy J in BTA18. In no sense can it be said that the Reasons under consideration here betray any sense that the Authority was ‘fixated’ by the failure of the Applicant to make claims earlier. Second, it was not submitted, and cannot be said in this matter, that the Authority has applied the wrong threshold for determining whether the new information was credible personal information.
Given the above, the Authority has not misapplied section 473DD of the Act in the present matter, as contended by the Applicant.
Even if it could be said that the Authority failed to consider and apply section 473DD(b)(ii) of the Act, I am not satisfied that any error was material in the sense that there was a realistic possibility of a different outcome if the error had not been made: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39]. Had the Authority been required to assess new information as contended for by the Applicant, it is plain from the Reasons of the Authority that it was sceptical as to the credibility of the new information, given what the Authority set out at paragraph [6] of its Reasons. In that circumstance, it is far from clear that the Authority would have been satisfied that there were exceptional circumstances within the meaning of section 473DD(a).
It is also difficult to understand how the Authority would have come to a different conclusion had the new information been accepted. The Applicant advanced a number of claims – see paragraph [10] of the Reasons. The Authority accepted many aspects of the claims advanced – see for example, its Reasons at [13], [15], [17]-[22], and also at [35] where it accepted he had been abducted by the LTTE. The Authority, however, considered that there were discrepancies in the Applicant’s evidence that it considered ‘problematic’ (at [25] of the Reasons). The Authority at [30] of its Reasons did not accept key aspects of the Applicant’s claims, and at [32], [39], and [48] made an express finding that the Applicant was not a person of interest to the Sri Lankan authorities prior to his departure. The Authority also made findings that there was no credible evidence to suggest the Applicant will be of interest to the Sri Lankan authorities on his return (at [43]), that he does not face a real chance of harm for any of the reasons advanced should he return to Sri Lanka (at [48]), that the Applicant will not face serious harm on return to Sri Lanka on account of his illegal departure (at [53]), that he does not meet the requirements of the definition of refugee (at [58]), and that he does not face a real risk of significant harm (at [63]-[64]).
For all of the above reasons, Ground two is dismissed.
Ground 3
The third Ground of Review in the Application is:
3. The Authority’s conclusion that the Applicant would not face a real chance or real risk of harm in his home region was partly based on the finding that he could leave his home region. That conclusion was legally unreasonable or amounted to a failure by the Authority to consider the Applicant’s case. Further, the failure to exercise s 473DC of the Act to get new information from the Applicant was unreasonable.
Particulars
In reasoning to the conclusion that the Applicant would not face a real chance of harm because of the influx of Sinhalese settlers in his home region or the downturn in his brother’s business (by which he had been employed), the Authority found that the Applicant was not restricted to living or working in his home region. However, the issue of relocation had not been raised before the Authority’s decision. The Authority therefore could not (and did not) determine whether it was practicable for the Applicant to relocate beyond his home region, or how in doing so he would avoid a real chance or real risk of harm. The Authority also did not exercise (nor consider the exercise) of s 473DC to get new information on this matter from the Applicant.
Under this Ground of Review, the Applicant takes issue with a statement made by the Authority in paragraph [45] of its Reasons that ‘The applicant is not restricted to living or working in Mullaitivu should he return’. That statement is to be found in paragraphs [44]-[45] of the Reasons of the Authority, which are set out in full below:
44.In the applicant’s written SHEV statement he has claimed that after the civil war the Sri Lankan authorities supported Sinhalese settlers to move into traditional Tamil areas in the north; and that in 2011 Brother B was forced to move his welding business out of the main street of Mullaitivu due to the increasing competition, and that the business is not doing well. I consider the applicant’s claims regarding the Sinhalese settlers to be plausible, and consistent with country information before the delegate, and I accept his claims in this regard.
45.During the SHEV interview the applicant advised the delegate that he and Brother B are not in touch, and the applicant has not provided any evidence as to how the influx of Sinhalese settlers would impact his own situation. The applicant is not restricted to living or working in Mullaitivu should he return. Overall I am not satisfied the applicant faces a real chance of harm because of the influx of Sinhalese settlers and their impact on Brother B’s welding business.
The Applicant’s submission is that an essential component of the reasoning of the Authority that the Applicant would not face harm was that he could leave the Mullaitivu region if necessary. The Applicant contends that that finding was not open to the Authority. It is contended that the issue of relocation was never raised nor analysed by the Authority. In that circumstance, the finding of the Authority that the Applicant is not restricted to living or working in Mullaitivu is unreasonable. The Applicant further submits that the failure of the Authority to exercise its discretion under section 473DC was also unreasonable. The Applicant says this case is similar to what occurred in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, and ERJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 42.
In my view, the Authority at [44]-[45] was not engaged in making any finding concerning the relocation of the Applicant. At [44]-[45], the Authority was dealing with claims raised by the Applicant at paragraph [36] of the 2016 Statutory Declaration. Those claims were that the Applicant faced difficulties caused by the movement of Singhalese people into Tamil occupied areas. At [44]-[45], the Authority accepted Singhalese people had moved into Tamil areas. The Authority concluded, however, that it was not satisfied that ‘the applicant faces a real chance of harm because of the influx of Sinhalese settlers and their impact on Brother B’s welding business’ at [45] of its Reasons. The Authority reached that conclusion because the ‘applicant has not provided any evidence as to how the influx of Sinhalese settlers would impact his own situation’.
Considered fairly, and in context then, the Authority at [44]-[45] was not concerning itself with relocation. It did not need to because it had expressly stated it was not satisfied the Applicant faced a real chance of harm because of the influx of Singhalese settlers in his home area. In short, there was no need for the Authority to consider or make any finding as to relocation. That there was no need for the Authority to embark upon any analysis of relocation is also borne out by the fact that the Authority did not find there was a real chance of harm in a particular place, did not identify a safe area, and did not identify access to that safe area. There is also nothing else in the Reasons of the Authority that suggests that the Authority was embarking upon an examination of relocation of the Applicant to other areas of Sri Lanka.
When all of these matters are considered, I accept the submission of the Minister that the statement made by the Authority about which the Applicant complains is nothing more than ‘a throwaway remark which had no significance in [the] reasoning’: Creamer v Minister for Immigration and Border Protection [2018] FCA 269 at [27].
In view of these matters, the finding of the Authority was not unreasonable. The Authority did not need to get new information from the Applicant about the issue of relocation.
For all of the above reasons, Ground three is dismissed.
Ground 4
The fourth Ground of Review in the Application is:
4. The Authority’s conclusion that the Applicant would not face a real chance or real risk of harm on return to Sri Lanka was partly based on its finding that he could be accommodated and supported by a family member. That conclusion was legally unreasonable or amounted to a failure by the Authority to consider the Applicant’s case. Further, the failure to exercise s473DC of the Act to get new information from the Applicant was unreasonable.
Particulars
The Applicant claimed that he faced a real chance or real risk of harm on return to Sri Lanka because he would not have a place to live or anyone to help or protect him. His family home had been destroyed, his parents were dead and he could no longer live with his brothers or anyone else. The Authority rejected this claim because the Applicant kept in contact with his sister-in-law’s father and one of his brothers lived near his home region. However, neither fact reasonably sustained the assumption that these individuals would or could offer shelter and support to the Applicant, or gainsaid the Applicant’s positive statements to the contrary. The Authority also did not exercise (nor consider the exercise) of s 473DC to get new information from the Applicant.
Under this Ground of Review, the Applicant takes aim at the finding by the Authority that it was ‘not satisfied that he would have nowhere to live upon return, or that he faces a real chance of harm for that reason’. That statement appears at paragraph [47] of the Reasons of the Authority which is reproduced below:
47.During the SHEV interview the applicant gave evidence that he is in regular contact with his sister-in-law’s father, who also helped arrange his journey to Australia, and that Brother D lives near Mullaitivu. The applicant is now 24 years old and on the evidence before me regarding his family network in Sri Lanka I am not satisfied that he would have nowhere to live upon return, or that he faces a real chance of harm for that reason.
The Applicant had repeatedly claimed that he had no one in Sri Lanka to help him. He made this claim in his SHEV Interview when he stated that ‘if I go back now I don’t have a place to stay as they already helped out, it’s too late’ (CB 16). He made that claim again in paragraph [20] of the 2017 Statutory Declaration when he stated ‘I have no one in Sri Lanka that can help me or protect me. My brothers have their own families now and they cannot care for me or help me. My brothers are fearful that if I live with them in Sri Lanka it will cause problems for them with the authorities’. He also made the claim in his interview with the delegate when he stated ‘so I don’t now, if I happen to go back where I would go and live, I would-I don’t know where I can stay. I had to stand on the feet, I’m not quite sure what is going to happen’ (Transcript of interview with the delegate, answer to question 193).
While the Applicant made the claims above, the following is also clear from the Transcript of interview with the delegate. First, he was in touch with one of his brother’s father-in-law. Second, that the father-in-law had assisted him to come to Australia. Third, that he was not in touch with his brothers (Transcript of interview before the delegate, p 30).
The Applicant says the evidence shows he was not in touch with his brothers. The Applicant also contends that there was no evidence as to the relationship with the father-in-law of one of his brothers, including no evidence about where the father-in-law was or whether he would, after all these years, be prepared to assist the Applicant. The Applicant therefore contends that there was nothing to support the entirely speculative assumption of the Authority that his brother’s father-in-law, or one of his brothers would be able to provide him with accommodation and other support if he returned to Mullaitivu. The Applicant, therefore, submits that the finding by the Authority was unreasonable. He also submits that the failure of the Authority to exercise discretion to obtain new information from him was also unreasonable.
It is important to accurately identify the finding of the Authority. The Authority did not find, as asserted in the Ground of Review, that the Applicant could be supported by a family member. Rather, the Authority stated it was ‘not satisfied that he would have nowhere to live upon return, or that he faces a real chance of harm for that reason’. In short, the Authority was not satisfied about the Applicant’s assertion or claim.
The Authority does not always need to have evidence to reject a claim: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [65]. See also, the comments of Steward J in CBS15 v Minister for Immigration and Border Protection [2018] FCA 1431 at [19], commenting there on the Tribunal not being satisfied as to the appellant’s claims of interrogation, detention and assault, Steward J stated that:
[19]Here, the Minister submitted that the finding at [16] of the Tribunal’s reasoning represented a state of non-satisfaction with the appellant’s claim concerning his interrogation, detention and assault. Non-satisfaction as to the existence of facts which comprise a claim, does not require the Tribunal itself to make any findings of fact to support that conclusion. Lack of satisfaction, simpliciter, was sufficient.
In respect of this Ground of Review, and the Applicant’s submissions, I would add the following. First, there was a basis for the conclusion reached by the Authority. The Applicant had stated in interview that he was in contact with his brother’s father-in-law. He had also stated that the father-in-law had assisted him to come to Australia. There was a direct example, therefore, of the brother’s father-in-law providing assistance to the Applicant.
Second, as the Reasons of the Authority make clear, the Authority gave an independent basis for rejecting the Applicant’s claim. Not only was it not satisfied the Applicant would have nowhere to live. Rather, the Authority also stated in the alternative that it was not satisfied the Applicant faced a real chance of harm for that reason. I accept the Minister’s submission that such a conclusion is explicable given it is not clear how a claim that a person has nowhere to live would necessarily enliven any protection obligations.
Finally, under this Ground of Review, the Applicant also submits that the Authority failed to exercise power to obtain new information under section 473DC of the Act. I am unable to accept that argument. In reaching that conclusion, I refer to what I have stated above. Further, there is not any obligation on the Authority to give the Applicant an opportunity to make a better case: FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 at [45] (Farrell J), nor is there any obligation on the Authority to remedy deficiencies in evidence given by the Applicant: EXT20 v Minister for Home Affairs (2022) 291 FCR 54 at [175]-[186] (Snaden J, with whom Wigney J agreed in the result).
For all of the above reasons, this Ground of Review must be dismissed.
Ground 5
The fifth Ground of Review in the Application is:
5.The Authority constructively failed to exercise its jurisdiction in rejecting the Applicant’s claim to face harm from the Sri Lankan authorities.
Particulars
The Applicant claimed that he had been targeted by the Sri Lankan authorities in the past and faced an ongoing chance or risk of harm on that basis. The Authority rejected this claim on the basis that it found the Applicant’s account of being targeted by the authorities in the past was self-contradictory. It was not. The Authority thereby failed to consider the Applicant’s claims and so failed to exercise its jurisdiction.
Under this Ground of Review, the Applicant criticises the following paragraph of the Reasons of the Authority:
28.I also note that at the outset of the SHEV interview the applicant confirmed that he was living with Brother B until he departed Sri Lanka, which directly contradicts his written SHEV statement that he was in hiding with other relatives from April 2012 until his departure from Sri Lanka four months later. In the applicant’s arrival interview he also indicated that he worked as a fisherman up until his departure. On the evidence, I do not accept that the applicant was in hiding at any time prior to his August 2012 departure from Sri Lanka.
The evidence given by the Applicant in relation to these matters is as follows:
(a)In his application for a protection visa dated 14 September 2013 (CB 19-46), the Applicant, in answer to a question about his past employment (question 41), indicated that between January 2012 and August 2012 (the date of his departure), he was employed as a ‘fisherman’ in Batticloa (CB 37);[1]
(b)In his application for a Safe Haven Enterprise visa dated 28 June 2016 (CB 91-127), in the period September 2010 to August 2012, the Applicant indicated he was employed by one of his brothers as a ‘casual fisherman’, and by another brother as being a ‘welder’;
(c)In the 2016 Statutory Declaration at paragraphs [31] and [36], the Applicant stated that around three or four months before he left Sri Lanka, he was scared to stay at his brother’s house. He spent some time staying with an aunt;
(d)In his interview with the delegate on 25 January 2017, the Applicant:
(i)Near the commencement of the interview, when asked where he lived (Question 38), stated that he lived in many different places ‘but before I left to Australia I live with my brother…’; and
(ii)Later in the interview, when asked how many times the CID went looking for him, stated ‘Yes, actually before into Australia I went to Batticaloa’.
[1] the Authority refers to this information is being sourced from the arrival interview at [28], but it is to be found in the application for a protection visa.
The Applicant submits his evidence was not contradictory. He says there is nothing inconsistent between his statement in the interview that ‘before I left to Australia I live with my brother’, and what he set out in the 2016 Statutory Declaration that before he left Sri Lanka, he stayed with an aunt, and was scared to stay at his brother’s house. He says he was living with his brother before he was forced to flee, and there is not an inconsistency between the two statements. He says further that in any event, during the interview, he clarified that before going to Australia, he went to Batticaloa, and that this later statement was consistent with what he said in the 2016 Statutory Declaration. The Applicant submits that what the Authority has done is seize upon a particular statement and decontextualised it, and that this is the type of error the Full Court warned about in AVQ15v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [27]-[28], [48]. In making that submission, the Applicant also criticises the reasoning of the Authority on another matter, and submits that contrary to what the Authority has stated, the Applicant did not in his ‘arrival interview’ indicate he worked as a fisherman until his departure.
I do not accept the Authority seized upon a statement and decontextualised it. The Authority was precise with the statement it identified. It accurately stated that the statement by the Applicant given at interview that contradicted his earlier statement occurred at the ‘outset of the SHEV interview’. There is a contradiction between the answer given by the Applicant at the outset of the SHEV interview, and the statement in the 2016 Statutory Declaration that around three or four months before he left Sri Lanka, he was scared to stay at his brother’s house, and spent time staying with an aunt. The Applicant asks the Court to take account of the answer he gave later in the interview with the delegate. Accepting that proposition would be seizing upon a statement and decontextualizing it in circumstances where the Applicant was not responding (later in the interview) to a direct question about where he had lived prior to departure.
There is then the evidence about the Applicant working as a fisherman. I accept the Applicant did not state in his arrival interview that he worked as a fisherman. There is, however, evidence, which I have noted above, that the Applicant gave in his application for a protection visa in 2013, and in his application in 2016 that he worked as a fisherman until the time of his departure from Sri Lanka. It was open to the Authority to identify this as a further inconsistency in the Applicant’s account, and not accept that the Applicant was in hiding prior to his departure from Sri Lanka in August 2012, in circumstances where he had indicated in his Application for protection (Class XA) visa dated 14 September 2013 that he had worked as a fisherman prior to his arrival in Australia (CB 37) (and in circumstances where he had given inconsistent evidence about where he was living prior to departure).
There is one further matter. The Authority made a series of findings at paragraph [30] of its Reasons as follows:
[30]However, I am not satisfied that the applicant was a person of interest to the CID, or that they ever went looking for him specifically, such as searching for him at Brother B’s welding shop or home. I do not accept the CID ever accused the applicant of LTTE involvement, said that they had photos of him training with the LTTE, or specifically asked him about Brother B. I do not accept the Sri Lankan authorities ever told the applicant not to leave his home area, as he claimed during the SHEV interview, that he failed to report to them in April 2012, as he claimed in his written SHEV statement, or that he has any sort of adverse record with them as a result.
Given the content of the findings above, I am not satisfied that the finding sought to be challenged by the Applicant as part of this Ground of Review formed a material part of the conclusions reached by the Authority paragraph [30] of its Reasons. In particular, I am not satisfied that the conclusions by the Authority as to where the Applicant lived, or whether he was in hiding, had any bearing on the ultimate finding that the Applicant was not a person of interest to the CID, and that the CID did not go looking for him specifically.
For all of these reasons, Ground five of the Grounds of Review must be dismissed.
DISPOSITION
Given my findings above, the Application must be dismissed. The Applicant has been entirely unsuccessful. The Minister seeks costs of $8,371.30. Given the Minister has been entirely successful, I will award costs in the amount of $8,371.30.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 30 November 2023
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