FMA17 v Minister for Home Affairs
[2019] FCCA 1461
•30 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FMA17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1461 |
| Catchwords: MIGRATION – Protection visa application – judicial review of decision of Immigration Assessment Authority – where applicant claimed to have been assisted by Sri Lankan politician and feared harm by reason of personal connection and imputed political opinion – where applicant sought to have Authority consider new information and new claim – where Authority declined to grant interview or to consider further country information – whether denial of natural justice – whether legally unreasonable – new information – country information as new information – new claim as new information – whether applicant sought to advance credible personal information as new information – whether exceptional circumstances shown – application dismissed. |
| Legislation: Acts Interpretation Act1901 (Cth), s.25D |
| Cases cited: AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 |
| Applicant: | FMA17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2734 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 May 2019 |
| Date of Last Submission: | 14 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 May 2019 |
REPRESENTATION
| Counsel for the applicant: | Mr A Krohn |
| Solicitors for the applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr A.F Solomon-Bridge |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The applicant have leave, now for then, to file and serve the proposed amended application for judicial review dated 17 April 2019.
The amended application dated 17 April 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2734 of 2017
| FMA17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 17 April 2019, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 November 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow I have concluded that the application should be dismissed. In summary, I have concluded that the Authority was not required to accede to the applicant’s request that he should be interviewed by it or that it was obliged to make inquiries of a Sri Lankan parliamentarian as to the efficacy of the matters contained in a letter of support that he had written in support of the applicant. I have further concluded that the Authority was not required to consider separately a new claim which was advanced by the applicant and that a such claim as was pressed before me was subsumed in a finding of greater generality.
Background
The applicant, a male Sri Lankan citizen of Tamil ethnicity aged 27 years, first came to Australia on 18 October 2012 as an unauthorised maritime arrival. He was first interviewed at entry in January 2013.
On 23 December 2015, the Department invited the applicant to apply for a Protection visa. His principal claims concerned his association with a member of the Tamil National Alliance (TNA), and unknown men who he claimed had threatened and beaten him, and who had later come to his family home in search of him.
On 7 March 2017, the applicant made a valid application for a Safe Haven Enterprise (subclass 790) visa.
In 2017, the applicant applied to the Minister for a Temporary Safe Haven Enterprise Visa (visa), doing so on the basis that he was a person in respect of whom Australia owed protection, either as a refugee under the Refugees Convention (Convention), or as complementary protection, under the Act. The applicant was not represented in the application for the visa, although he received some assistance in presenting the written application, including with the provision of country information on the situation in Sri Lanka.
Claims to protection
In a statutory declaration attached to his application, the applicant deposed that his elder sister had been kidnapped from a bus in 1990 and was presumed dead. Of central relevance to the present application is that the applicant claimed that, whilst studying at high school, the applicant befriended a Mr Yoheswaran, an elected TNA member in the Sri Lankan Parliament (TNA politician). The declaration described his association with the TNA politician, including, that he had been assisted by him during his schooling, at a Hindu association and that he had stayed at his home. He also stated that:
I was a supporter of him. I would go to meetings of the TNA with him. I would accompany him on political business. I went with him to Colombo once or twice when he had to visit for the parliament.
His declaration did not expand upon the nature of his ‘support’.
The applicant also declared that he was threatened at gunpoint by two men who he assumed to be the TNA politician’s opponents and to be members of an opposition group known as the Karuna Group. Following this event, the applicant claimed that he went into hiding.
The applicant stated that his mother believed him to be the reincarnation of his missing sister, and that his mother would ‘not be able to go on’ if he died and that he had then made the decision to leave Sri Lanka.
The applicant also alleged that since leaving Sri Lanka, people had visited his parent’s house looking for him and had ‘beat up’ his father and younger brother. The applicant believed that people from the Karuna Group were still looking for him.
With the assistance of the Asylum Seekers Resource Centre, the applicant also presented material in support of the application for the visa, including detailed documentation about the situation in Sri Lanka “Sri Lanka (Tamil): Country Information Package”. This document included reports of various abuses suffered by Tamils in Sri Lanka, including harm of asylum seekers on return from abroad.
The material before the delegate and the Authority, also included translations of reports made to the police by the applicant’s father in 2012 and 2016, concerning armed groups searching for the applicant in 2012, and an armed uniformed group who beat the applicant’s father and another of his sons in 2016.
By letter dated 26 July 2017, the applicant was invited to attend an interview with a delegate of the Minister. The letter, which was provided to the applicant in the Tamil script, emphasised the importance of the applicant presenting a full and complete statement of all of his claims, as to why he sought protection and warned that he may not be able to raise new claims on review. The applicant was told that if his application was refused it would be reviewed by the Authority.
On 16 August 2017, the applicant attended an interview with the delegate where he provided a number of further documents including statements to police made by his father and brother and his sister’s death certificate. In particular, the applicant submitted a letter dated 11 December 2012 written by the TNA politician, which stated in part that the applicant had been his ‘volunteer.’ As the letter had been typed on Sri Lankan parliamentary letterhead, it contained a series of telephone numbers and an email and postal address.
Delegate’s decision
On 24 August 2017, a delegate of the Minister refused to grant the applicant a Protection visa. While the delegate accepted some of the applicant’s claims as to his previous association with the TNA politician, the delegate also found that any contact had by the applicant with groups who may have targeted him on this account were minimal, noting that:
a)the applicant had not raised any other specific concerns about discrimination and mistreatment on account of his being Tamil;
b)since the end of hostilities in Sri Lanka much advancement had occurred and the applicant had admitted that his family were not now experiencing any problems in Sri Lanka; and
c)the applicant may be subjected to questioning and his whereabouts could be monitored upon his return to Sri Lanka, but the delegate did not accept that he would be targeted, interrogated or killed.
The delegate further found the following:
a)the applicant was not a person of interest because of his ethnicity as a Tamil or for any issues raised because he was a Tamil;
b)the applicant did not fit the profile of a former LTTE fighter or leader and neither he nor his family had LTTE links;
c)the chance was remote of the applicant being imputed with LTTE connections solely for reasons of his Tamil ethnicity;
d)taking into account his lack of involvement in the TNA, there was no real chance that the applicant would be pursued and seriously harmed by any persons in Sri Lanka on account of his association with the TNA;
e)the applicant was not a person of interest to the Sri Lankan authorities for any reason when he left the country; and
f)the applicant was not perceived to be someone with a high profile of interest to the Sri Lankan authorities.
The delegate accepted that the applicant may have been targeted for being involved with the TNA politician and his election campaign, but concluded that the applicant was not, at the time of the delegate’s decision, at risk for reason of his association with the TNA.
The delegate considered the country information available, about the arbitrary nature of detentions occurring, of human rights abuses during detention, interrogation, and impunity of those who were responsible. The delegate also considered reports about the torture of returnees, but concluded, that the applicant was not a person of interest to the Sri Lankan authorities for any reason when he left the country, and found that he would not be exposed to serious harm on his return.
The delegate concluded that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee under section 36(2)(a) or to complementary protection under section 36(2)(aa).
Authority’s decision
As the applicant was deemed to be a fast track applicant,[1] he was subject to the merits review framework and procedure set out in Part 7AA of the Act. The delegate’s decision was referred under Part 7AA to the Authority for a fast track review.
[1] Act, s 5(1).
By letter dated 29 August 2017, the Authority notified the applicant that the delegate’s decision had been referred to it for review. The applicant was provided a Practice Direction indicating the manner in which the Authority would conduct the review and the steps in which the applicant might take in the course of that review, including, by making submissions. The Practice Direction noted that, in carrying out its functions, the Authority was required to provide a means of limited review that was efficient, quick, free of bias and to do so consistently with Div 3, Part 7AA of the Act. It also advised the applicant that submissions should be concise, identify error by the delegate and provide translations of any documents that were to be relied upon. The Practice Direction stated, that the Authority would only consider new information or conduct an interview with the applicant in very limited circumstances.
At some point, the applicant retained a specialist firm of migration lawyers to assist him in relation to his application.
On 3 November 2017, the applicant’s representatives made submissions to the Authority, which, after advising of their retainer by the applicant, made submissions that were arranged under three headings: (1) New Information; (2) Findings of Fact; (3) Country Information.
In relation to the subject New Information, the applicant’s lawyers acknowledged that the effect of s 473DD of the Act restricted the circumstances in which new information may be taken into account but submitted that the Authority was not precluded from considering any information provided by their submission and did so on two bases:
a)the applicant had been self-represented and by reason of his limited means, the Authority should be satisfied that the country information on which reliance was now sought to be placed was not, and could not have been provided, such that the precondition contained in par 473DD(b)(i) was, it was said, satisfied;
b)exceptional circumstances were shown by reason of the applicant’s limited means, his having been self-represented before the delegate and his stated ignorance that the matter had been referred to the Authority.
As to the findings of fact, the applicant’s representatives noted that the delegate had accepted the applicant’s Tamil ethnicity and that he may have been targeted by unknown persons, possibly linked to the Karuna or Pillayan Groups as a result of his association with the TNA politician.
Concerning the subject, Country Information, the following topics were addressed: (i) Race and ethnic issues raised as a Tamil; (ii) Real or imputed association with LTTE; (iii) Failed Tamil asylum seeker who departed illegally. Under the last heading, a new claim was sought to be advanced concerning the applicant’s imputed association with the LTTE based on his association with the TNA. In this context, it was submitted that the delegate had not given proper or genuine consideration to the risks faced by the applicant that he could be viewed as a sympathiser of the LTTE. Upon this basis, the Authority was supplied a large body of new country information which had not been before the delegate.
The applicant’s representative concluded by submitting that if the Authority was not otherwise satisfied that the applicant met the requirements of s 36(2) of the Act on the papers, it must convene a hearing to discuss the applicant’s claims.
On 10 November 2017, the Authority affirmed the delegate’s decision to refuse the applicant a Protection visa, providing a statement of its reasons for doing so (Reasons). By way of overview, the Authority:
a)acknowledged the applicant’s submission and had regard to it insofar as it did not relate to new information: [4];
b)stated that it would pay regard to the TNA politician’s letter: [7];
c)found that the further country information on which reliance was sought to be placed, had been published well before the delegate’s decision: [6], [8];
d)found that there were no exceptional circumstances as would justify consideration of the further country information and declined to consider it: [9], [11];
e)concluded that the applicant’s new claim had not been made during his entry interview in his statutory declaration, at his interview with the delegate and had been given ample opportunity to make such claim: [5], [10];
f)found that there were no exceptional circumstances as would justify consideration of the new claim: [10];
g)rejected the request for an interview, finding that the applicant had “raised no issues that would warrant the Authority issuing an invitation to provide new information, whether at interview or otherwise.”: [12].
h)had serious doubts regarding the applicant’s involvement with the TNA and the claim that his family was threatened as a result of his involvement: [27].
Contrary to the delegate’s finding, the Authority found that the applicant was not in fact a supporter or volunteer of the TNA politician and had no involvement with the activities of the TNA: [17]. The Authority also did not accept that the applicant or his family were threatened, or that armed groups were searching for him: [20].
The Authority then rejected the applicant’s claims, essentially because it rejected his credibility. It found the applicant’s ignorance of politics to be implausible if, as he claimed, he had travelled with the TNA politician and had the level of involvement with him as he claimed: [21]. It found the extracts from the police information books, relating to complaints made by the applicant’s father, to be inconsistent with his claims, though it did not explain how: [23].
The Authority said that it found the letter from the TNA politician, and the police records, were genuine documents, but not reliable: [24]. Nevertheless, it did “not accept the applicant was a supporter or volunteer of [TNA politician], or that he had any involvement with the politician or the activities of the TNA that would bring him to the attention of any paramilitary or political group, the Sri Lankan authorities or any other group.” [25]. Accordingly, it did not accept:
. . . the applicant or his family were threatened as claimed, or that armed groups were searching for the applicant because of an association with [TNA politician] or the TNA, or for any other reason.” (CB 234, [26])
The Authority rejected the claims that the applicant may be at risk of harm for being a Tamil, associated with the TNA or imputed political opinion, or as a returned failed asylum seeker. It reviewed the delegate’s references to detention of some returnees, and noted the delegate’s reference to most of the reported arrests were former LTTE members, or associated in some way with the LTTE. It was “satisfied the applicant’s profile will not cause him to be of interest to the Sri Lankan authorities if he is returned to Sri Lanka”, and did not accept that there was a real chance that he would be subjected to torture or mistreatment: [52]-[56]. The Authority noted that prison conditions in Sri Lanka were poor, but did not consider that if the applicant spent a brief period in prison as a person who had illegally departed from Sri Lanka, that he would experience serious harm such that it would amount to persecution or such that the applicant was a person in respect of whom Australia owed protection obligations under the Refugees Convention: [57]. The Authority also was of the view that the applicant would not suffer in prison any serious or intentional harm through torture, cruel or inhuman or degrading treatment or punishment, and thus significant harm within the meaning of the Act, so as to give rise to a right to complementary protection: [68].
The Authority ultimately found that the applicant was not a person to whom Australia owed protection obligations, and affirmed the decision to refuse to grant the visa: [61], [69]-[70].
Procedural history
On 14 December 2017, the applicant filed an application for judicial review of the Authority’s decision together with an affidavit affirmed by the applicant, to which he exhibited a copy of the Reasons but adducing no further evidence in support of his application for judicial review.
By a Response filed on 19 January 2018, the Minister opposed the application and consented to the matter proceeding to a final hearing.
On 17 April 2019, the applicant filed an amended application. The Minister did not oppose the grant of leave to file and serve that amended application out of time.
Applicable principles
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[2] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[2]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Under the Act, the latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of a particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa in the absence of an affirmative finding that the criteria applicable to the particular visa application are satisfied.[3]
[3]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Criteria for the grant of a Protection visa are contained in s 36 of the Act.
Part 7AA of the Act concerns the subject Fast track review process in relation to certain protection visa applications and is arranged in 8 Divisions comprising ss 473BA-473J. Relevantly, the Minister must refer, as soon as is reasonably practicable after a decision is made, and the Authority must review, a fact track reviewable decision.[4] Section 473CB identifies the material that must be provided to the Authority.
[4] Act, ss 473CA, 473CC.
The core function which is imposed on the Authority by Pt 7AA is to conduct the review a fast track reviewable decision: see s 473CC(1); cf Minister for Immigration and Citizenship v SZIAI.[5] By contrast, a Tribunal conducting a review under Pt 5 or Pt 7 of the Act is required by ss 348 or 414 respectively to conduct a review of a Part 5 of Part 7 reviewable decision. Those core functions stand in contrast with one another because of the differing nature of the administrative reviews for which Parts 5, 7 and 7AA respectively provide.
[5] (2009) 259 ALR 429, [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The fast track scheme provided by Pt 7AA is a mechanism of limited merits review.[6] Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority;[7] requires that the Authority should ordinarily conduct its review on the papers;[8] provides for the exceptional, and strictly circumscribed,[9] circumstances in which new information or documents may be sought or employed[10] and; authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.[11]
[6] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].
[7] Act, s 473DA.
[8] Act, s 473DB.
[9] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [31].
[10] Act, s 473DC-473DE.
[11] Act, s 473DF.
In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant.[12] The Authority may, but is under no duty to, get any documents or information that was not before the delegate.[13]
[12] Act, s 473DB(1)(a)-(b).
[13] Act, s 473DC(1)-(2).
Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.
Nothing in Part 7AA otherwise constrains the application of the law respecting the duty of an administrative decision-maker to consider the claims and issues arising from the material that is before it and the issues that may arise from its own findings.[14] For that reason, the Authority must consider each articulated claim and each claim that clearly arises from the review material before it.[15]
[14] AYY17 v MIPB [2018] FCAFC 89, [18]-[19] (Collier, McKerracher and Banks-Smith JJ).
[15]See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, 19 [60] (Black CJ, French and Selway JJ).
For the same reason, the powers conferred on the Authority by Div 3 of Pt 7AA are so “conferred on the implied condition that they are to be exercised within the bounds of [legal] reasonableness.”[16]
[16]Plaintiff M174/2016 v Minister for Immigration and Border Protection, () CLR INSERT, [21] (Gageler, Keane and Nettle JJ).
As concerns the exhaustive statement of the natural justice hearing rule, “no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme”: DBE16 v Minister for Immigration and Border Protection.[17] As stated above, Pt 7AA provides a mechanism of limited merits review.[18] In DBE16, Barker J held:[19]
The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 do not apply to reviews under Pt 7AA of the Migration Act. I note, without needing to interrogate the proposition further, that the Federal Circuit Court has accepted the proposition in such decisions as DZU16 v Minister for Immigration & Anor [2017] FCCA 851 at [101]; AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [11]-[12]).
His Honour held that “the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding” and that to do so, was part of the nature of the fast track system as envisaged by Pt 7AA.[20]
[17] [2017] FCA 942.
[18] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].
[19] [2017] FCA 942, [59].
[20] [2017] FCA 942, [61].
These statements of principle were endorsed by the Full Court in DGZ16 v Minister for Immigration and Border Protection.[21] There, Reeves, Robertson and Rangiah JJ held[22] that the scheme of review provided by Part 7AA, required that the Authority was to review for itself the material that had been considered by the delegate and did not require it to notify an applicant if it was considering taking a view of the matter different from that taken by the delegate. Their Honours agreed that:[23]
. . . the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
[21] [2018] FCAFC 12, [50], [70] (Reeves, Robertson and Rangiah JJ).
[22] [2018] FCAFC 12, [70], [73].
[23] [2018] FCAFC 12, [70], [74].
In DGZ16, the Full Court did not accept[24] on the facts of that case that “the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.” The Full Court concluded that there was no requirement in Pt 7AA, equivalent to s 425, which provided that “the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review”:
Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
[24] [2018] FCAFC 12, [75]-[76].
Upon the primary rule provided by Pt 7AA, the Authority is required to conduct a fast track review ‘on the papers’ and to do so by reference to the review material[25] that is provided by the Secretary and, save as to the strictly circumscribed exception afforded by s 473DD, is proscribed from considering new information[26] in conducting such review.[27]
[25] Act, ss 473BB, 473CB(1).
[26] Act, ss 473BB, 473DC(1).
[27]BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [33] citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 798, [22]; Minister for Immigration and Border Protection v AMA16 (2017) FCR 534, [19].
Accordingly, in conducting a de novo review of a delegate’s decision, it is generally open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond or affording him or her an invitation or hearing.
In DPI17 v Minister for Immigration and Border Protection,[28] Griffiths and Steward JJ considered that the following propositions had been distilled in the High Court’s consideration of Pt 7AA in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[29]
(1)as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);
(2)the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);
(3)the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]);
(4)the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE“as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);
(5)although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and
(6)s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).
[28] [2019] FCAFC 43, [35].
[29](2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ, Gordon and Edelman JJ agreeing).
A referred applicant may provide a written statement on why they disagree with the decision under review and on any claim or matter which he or she presented to the Department that was overlooked.[30] Aside from the exhaustive statement of the natural justice hearing rule, the referred applicant is entitled to participate in that review.
[30]Act, s 473FB; Pt 7AA Practice Direction; see also, BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [34].
In an application for judicial review of a decision made by the Authority under Pt 7AA, the onus of demonstrating jurisdictional error lies upon the applicant who must, where relevant, establish the factual foundation for a finding on the balance of probabilities, that the Authority failed to consider whether to exercise a power conferred by Pt 7AA.[31]
[31]BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [35] citing BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114, [41].
Consideration
By his amended application, five grounds of review were advanced, one of which was abandoned.[32] Having regard to the manner in which the applicant’s submissions were made, it is convenient to set out the amended grounds of review in full:
[32]Particular (a) to Ground 1, which seemed to be treated as a separate ground, was abandoned.
(1)The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.
PARTICULARS
(a)The Authority did not consider all the material and information in the Applicant's submission received by the Authority on or about 3 November 2017 including country information and the claim that because of his work for a TNA member of Parliament, the Applicant may be imputed with a connection to the LTTE. (IAA Decision and Reasons [5][11]
(b)The Authority did not consider whether the Applicant may suffer harm while in detention, simply as a person in detention.
(2)The Authority fell into jurisdictional error in that it did not give procedural fairness to the Applicant.
PARTICULARS
(a)The Authority did not consider all the material and information in the Applicant's submission received by the Authority on or about 3 November 2017 including country information and the claim that because of his work for a TNA member of Parliament, the Applicant may be imputed with a connection to the LTTE. (IAA Decision and Reasons [5][11])
(b)The Authority did not give the Applicant an interview. (IAA Decision and Reasons [12]).
(3)The Authority fell into jurisdictional error in that it erred in interpreting or applying the law
PARTICULARS
(a)The Authority erred in interpreting or applying section 473DD of the Act when it did not consider all the material and information in the Applicant's submission received by the Authority on or about 3 November 2017 including country information and the claim that because of his work for a TNA member of Parliament, the Applicant may be imputed with a connection to the LTTE. (IAA Decision and Reasons [5]-[11])
(b)The Authority erred in interpreting or applying section 473DC of the Act when it did not give the Applicant an interview. (IAA Decision and Reasons [12]).
(4) The Authority fell into jurisdictional error in that it did not exercise its powers lawfully.
PARTICULARS
(a)The Authority failed to make inquiries, and in particular failed to invite or to take evidence from the Applicant and from the Member of Parliament about the claims the Applicant had assisted the MP and the consequences of that involvement. (Authority's Decision and Reasons [24]-[26])
(5)The Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material.
PARTICULARS
(a)The Applicant refers to and repeats the Particulars to the other Grounds herein.
The applicant presented his submissions on those grounds of review in two Parts. Part A collectively addressed grounds of review as related to the Authority’s decision not to accede to the applicant’s request for an interview and in not seeking information from the TNA politician. Part B reformulated the same complaints and collectively addressed grounds of review as alleged jurisdictional error constituted by failure to consider relevant considerations, an integer of a claim or information.
Part A – interview and information
The applicant presented his submissions under Part A as encompassing the matters advanced by: Ground 2(b), natural justice and procedural fairness; Ground 3(b), error of law; Ground 4(a), unlawful exercise of power; Ground 5(a), unreasonableness.
In substance, the applicant complained that, despite its power to do so, the Authority had fallen into jurisdictional error by not acceding to his request that he be invited for an interview and by not obtaining information from him by that means or by seeking it from the TNA politician. It was submitted that the Authority’s jurisdictional error in those respects could be characterised in one or other of the ways addressed by the several Grounds identified above.
The applicant submitted that the Authority as a creation of the parliament, was subject to the limits of the law which created it and the laws which conferred its ‘task and powers’, especially those in Part 7AA. It was further submitted that the Authority existed to review decisions to refuse to grant a protection visa,[33] and that this task informed the Authority’s exercise of its powers, including the discretion under s 473DC to get new information at interview or by other means.
[33] Citing Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.
The applicant accepted that Part 7AA was prescriptive of the procedure to be followed by the Authority and that s 473DA provided an exhaustive statement of the natural justice hearing rule respecting the review of a fast track reviewable decision as conducted by the Authority. Equally, it was common ground that the powers conferred on the Authority by Div 3 of Pt 7AA were conferred on the implied condition that they were to be exercised reasonably. Within the sphere of legal unreasonableness, it was further submitted that the Authority was obliged to act rationally and according to logically probative evidence, such that it would fall into jurisdictional error if it made findings which were illogical in the sense of being unsupported by any probative evidence[34] or if it acted so unreasonably that no reasonable decision maker could so have acted.[35]
[34]See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [16]-[31], [32]-[40] (Gummow A-CJ and Kiefel J), [119]-[120], [124]-[133] (Crennan and Bell JJ).
[35] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Those submissions as to the applicable principles may be accepted. The applicant acknowledged that the hurdle presented by a claim of legal unreasonableness, was a high one reached only in rare cases. The meaning of ‘rare’ is, however, to be considered in the context of the given volume of migration decisions that are decided annually.
The applicant submitted that the Authority had not exercised its power under s 473DC to invite the applicant to an interview or otherwise to seek information about the applicant’s claims, instead rejecting the credibility of his central claim of having assisted the TNA politician (when the credibility of the applicant had been accepted by the delegate). Counsel sought to buttress this submission on the basis that the applicant had not been represented before the delegate but before the Authority his representative had demanded a hearing, so as to get new information if the Authority otherwise decided not to accept his claims.
It was said to have been legally unreasonable of the Authority not to exercise its power under s 473DC(3) to invite the applicant to give new information at interview and to address the credibility of the applicant’s claims, where the delegate had accepted the applicant’s history of his involvement and his being targeted by other groups such as the Karuna Group and Pillayan Group. It was further said that, the TNA politician was an obvious source of potentially conclusive corroborative evidence, whose contact details were available and that to contact him was to make no more than an obvious and necessary inquiry, to assess the truth of the applicant’s claim to have assisted the TNA politician. Counsel for the applicant, who submitted that the information from that politician was either highly corroborative or destructive of the applicant’s claims, further stated that the applicant eschewed a strong political connection to the politician but relied upon a strong personal connection to the TNA politician in seeking to establish a well-founded fear of harm.
The requirement of the Authority to seek new information,[36] was said to be strengthened by the fact that the Authority was considering rejecting claims that the delegate had accepted. It was submitted that because the “legal standard of reasonableness must be indicated by the true construction of the statute”[37]a reasonable Authority would have exercised its power under s 473DD(3), to get further information about the applicant’s claims both at interview, and from the TNA politician. As it had not done so, the Authority was said to have fallen into jurisdictional error, whether that be characterised as a denial of natural justice or procedural fairness, an error of law, failure to exercise power lawfully, or legal unreasonableness.
[36]I.e. by inviting the applicant to an interview under s 473DC(3), and to seeking evidence from the TNA politician.
[37] Ibid, [67] (Hayne, Kiefel and Bell JJ).
The applicant complained that as the Authority had made adverse credibility findings against him when the delegate had made more favourable credibility findings, the Authority should not have completed its review before seeking new information by one or both of the identified means. However, for the applicant to have framed the submission in terms that a reasonable Authority would have exercised its power to get further information about the applicant’s claims was to invert the relevant question; namely, whether the decision not to do so had been legally unreasonable.
Natural justice
In DGZ16, the Full Court observed[38] that the starting point for analysis must be Part 7AA and that it is useful to identify that which the Authority is permitted to do and proscribed from doing. I have set out at [40]-[54] above the statutory framework established by Part 7AA.
[38] (2018) 258 FCR 551, [65], [69] (Reeves, Robertson and Rangiah JJ).
By Part 7AA, the Authority’s obligation is to conduct its review of the material that is to be supplied to it under s 473CA and as a general rule to do so without accepting or requesting new information and without interviewing the applicant. The Authority is not required to give a review applicant any material that was before the original decision- maker. The Authority is commanded to observe the objective of conducting a review that is efficient, quick, free of bias and consistent with Div 3 of Pt 7AA: ss 473DA(2), 473FA(1).
As counsel for the Minister submitted, the Authority was to conduct its review de novo and thus was not bound by the delegate’s findings.[39] That this is so, is confirmed by the context of Part 7AA which requires that, after a fast track reviewable decision has been made, the Minister must refer it, as soon as is reasonably practicable, to the Authority which must ordinarily conduct its review without accepting or requesting new information or interviewing the referred applicant and do so at any time after the decision has been referred: ss 473CA, 473CC(1), 473DB.
[39]Cf Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481, [95] (Edelman J).
From this perspective, the exhaustive statement of the natural justice hearing rule provided by s 473DA, does not support the applicant’s submission that the Authority was impelled to yield to the demand for an interview or to obtain other new information.
The Minister correctly accepted that power was conferred on the Authority to get new information, in writing or by interview, being information that was not before the Minister or delegate when the referred decision was made, and which the Authority considered may be relevant: ss 473DC(1), 473DC(3).
In DGZ16, the Full Court considered[40] that natural justice was not the appropriate starting point for an examination of whether a delegate’s decision indicated that all aspects of an applicant’s credit were at issue. The Full Court said that to do so would involve viewing the procedure established by Pt 7AA through the lens of natural justice. This may be understood as recognising that because Div 3 of Pt 7AA is taken to be an exhaustive statement of the natural justice hearing rule, it is inappropriate to employ a broader lens of natural justice at common law.
[40] (2017) 258 FCR 551, [73].
The exhaustive statement of the natural justice hearing rule established by s 473DA provides that, in general, the Authority is to conduct its review on the papers in the manner provided by Sub-div B of Div 3, Pt 3. Thus, to approach the task of judicial review by re-examining the delegate’s decision is to ignore that the Authority’s core function to review de novo the review material[41] provided to it and to decide whether to affirm or remit the decision under review.[42] To adopt the perspective of re-examining the delegate’s decision may extend the lens of natural justice beyond that provided exhaustively by s 473DA.
[41] Act, s 473CB.
[42] Act, s 473CC(2).
More recently, in DPI17 v Minister for Immigration and Border Protection,[43] Griffiths and Steward JJ recognised that because s 473DA expressed an exhaustive statement of the natural justice hearing rule for the purposes of Pt 7AA, the starting point for analysis in a case which raised the ground of legal unreasonableness was not through a ‘natural justice lens’. Mortimer J, who examined the connection or relationship between legal unreasonableness and procedural fairness accepted that some decisions cautioned against “looking at legal unreasonableness through a ‘natural justice lens’”[44] but considered that s 473DC was a power which reflected the Authority’s obligations to afford procedural fairness, such that, that power was conditioned by a requirement that it be exercised reasonably.[45] Mortimer J held that:
The jurisdictional error, if one is identified, may not be described as a denial of procedural fairness, although as the judgments in Li make clear, there may be nothing precluding that characterisation. Rather, the jurisdictional error will be a failure, in the circumstances of a particular review, to observe a condition on a power which is inherently a procedural fairness power – the condition being that it be exercised reasonably, and further, that consideration of its exercise be approached in the way required of a reasonable decision-maker in the same circumstances.
[43] [2019] FCAFC 43, [37].
[44] [2019] FCAFC 43, [78].
[45] [2019] FCAFC 43, [89].
Having regard to the analysis in DGZ16 and DPI17, it appears preferable in the circumstances of this case to examine the subject complaint upon principles of legal unreasonableness, recognising that the powers conferred by s 473DC to get new information, or to invite a person to provide information at an interview, or in writing, are each conditioned by a requirement that consideration of its exercise or non- exercise will be approached as a reasonable decision maker would do.
New information
Somewhat surprisingly, the application for judicial review was presented on the basis that the information upon which the applicant had sought to rely before the Authority either was, or was not, ‘new information’. At first sight the adoption of that stance involved a departure from the applicant’s immigration lawyers express submission that reliance was sought to be placed on new information, being country information.
The conduct of review provided by Div 3 of Pt 7AA is arranged in four sub-divisions.[46] Sub-division C of Div 3, Pt 7AA addresses the subject, Additional information. Subject to Pt 7AA, the Authority may get additional information (new information). New Information has the meaning[47] provided by s 473DC being information that: (a) was not before the original decision-maker; (b) the Authority considers relevant: s 473DC(1). The Authority may get such new information orally or in writing: s 473DC(3). The scope of that power is to be considered in the context of Pt 7AA and in particular, pursuant ss 473DC(2) and 473DD respectively, which provide that the Authority does not have a duty to get, request or accept any new information and that the Authority must not consider any new information unless certain conditions are satisfied.
[46](A) exhaustive statement of the natural justice hearing rule; (B) Review on the papers; (C) Additional information; (D) Decisions of the Authority.
[47] Act, s 473BB.
Section 473DD reads:
Considering new information in exceptional circumstance
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
As information which was already before the delegate is not new information, a submission to the Authority that only addresses the information which was before the delegate is not ‘new’ within the definition of ‘new information’ in s 473DC: Minister for Immigration and Border Protection v CLV16.[48] There Flick, Griffiths and Perry JJ held that nothing in Pt 7AA constrained a review applicant’s ability to participate in the review process by making submissions and was to be distinguished from the constraint imposed by the need to demonstrate exceptional circumstances before being able to supplement, with new information, the facts which were before the delegate.
[48] [2018] FCAFC 80, [49]-[51], [91]-[92] (Flick, Griffiths and Perry JJ).
It follows that to the extent the written submissions which were made to the Authority contained information that was already before the delegate, one may accept the applicant’s submission that this was not new information. Indeed, the Authority accepted the submission on that basis: Reasons, [4].
However, acceptance of any broader proposition requires examination of the content of the written submission and recognition that the applicant’s migration lawyers were seeking to rely upon further country information, as being new information within the meaning of s 437DD.
Information may be new information that was not before the delegate if and when the Authority considers it may be relevant.[49] In Plaintiff M174/2016, the plurality considered[50] that information was limited to its ordinary meaning of a communication of knowledge about a particular fact, subject or event and which met the two conditions set out in par 473DC(1)(a) and (b). Those conditions require that the information was not before the original decision-maker and that the Authority considered the information may be relevant. In construing provisions in Div 3 of Pt 7AA, the term ‘new information’ where used in ss 473DC, 473DD and 473DE should be read consistently.
[49] Plaintiff M174/2016, (2018) 92 ALJR 481, [27].
[50] Plaintiff M174/2016, (2018) 92 ALJR 481, [24].
The Authority does not always ‘get’ new information. New information may be supplied to it. Sub-section 473CB(1) identifies the review material that must be supplied to the Authority for the purposes of the fast track review. In particular, by par 473CB(1)(c) the Authority must be provided with any other material that is in the Secretary’s possession or control and which is considered to be relevant to the review (at the time that the decision is referred for review). Where that occurs, the power to get new information conferred by s 473DC need not be invoked at all. When the Authority receives new information by means of par 473CB(1)(c), the Authority “will not need to invoke s 473DC in order to receive that new information”[51] but that new information cannot be employed unless the Authority considers it may be relevant,[52] and has been satisfied of the precondition in s 473DD(a); namely, the existence of exceptional circumstances. In Plaintiff M174/2016, Gageler, Keane and Nettle JJ observed, once the Authority concluded that information was relevant it would:[53]
. . . need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into account.
[51] Plaintiff M174/2016, (2018) 92 ALJR 481, [27].
[52] Act, s 473DC(1)(b).
[53] Plaintiff M174/2016, (2018) 92 ALJR 481, [27].
The present case is not one in which the Authority was supplied new information by the Secretary as part of the review material.
An applicant may also seek to supply new information to the Authority. In that event, where an Authority considers the information may be relevant, it is proscribed from considering that information unless:
a)satisfied that exceptional circumstances justified it in doing so and the applicant had satisfied it that: (i) the new information was not and could not have been provided to the Minister before the original decision was made, or; (ii) the information constituted credible personal information which was not previously known and, had it been known, may have affected consideration of the claims: s 473DD;
b)where s 473DE applied, given particulars of any new information to the applicant, explained why it was relevant and invited comment. This obligation is not always engaged: s 473DE(3).
The precondition in par 473DD(a) ‘must always be met.’[54] It is enough to exclude new information if an Authority is not satisfied as to par 473DD(a); namely, that exceptional circumstances are not shown.[55]
[54] Plaintiff M174/2016, (2018) 92 ALJR 481, [29].
[55]EBZ17 v Minister for Immigration and Border Protection [2019] FCA 661, [31] (Robertson J).
Although the expression ‘exceptional circumstances’ is incapable of exhaustive definition, in this context[56] it should be given its ordinary meaning such that ‘exceptional’: “need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” The requirement to be satisfied that exceptional circumstances exist so as to permit consideration of the new information requires an evaluative judgement to be made by the Authority.[57]
[56] Plaintiff M174/2016, (2018) 92 ALJR 481, [30].
[57] Plaintiff M174/2016, (2018) 92 ALJR 481, [75].
As to the further cumulative preconditions prescribed by par 473DD(b), the first condition is that the new information was not, and could not have been, before the delegate prior to the making of the decision.
The content of the second precondition, being that set out in par 473DD(b)(ii) is more subtle. Personal information has the meaning assigned to that expression by s 6(1) of the Privacy Act 1988 (Cth).[58] The expression ‘credible personal information which was not previously known’ should be given an expanded meaning and read as including a reference to “personal information which, although previously known to the referred applicant, was not previously known to the Minister.”[59] In Plaintiff M174/2016, the plurality held:
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims
[58] Act, s 5(1).
[59]Plaintiff M174/2016, (2018) 92 ALJR 481, [33], [78] (Gageler, Keane and Nettle JJ) approving Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, [106], [100} (Gordon J agreeing).
The information which the applicant had sought to have considered by the Authority was identified by the submissions of his lawyers. The first topic addressed in the written submission to the Authority by the applicant’s migration lawyers was entitled ‘New Information.’
Concerning the ‘New Information’, the submissions made by the applicant’s representatives acknowledged that s 473DD of the Act restricted the circumstances in which ‘new information’ may be taken into account by the Authority but advanced two bases on which it should do so:
‘New Information’
We acknowledge that s 473DD of the [Act] restricts the circumstances in which ‘new information’ may be taken into account by the authority. However, we submit that the Authority is not precluded from considering any information provided in these submissions and the enclosures, on the following bases:
i.The applicant was without legal representation or assistance at the primary stage. Due to his limited means, he could avail assistance only through the Asylum Seeker Resource Centre’s drop-in clinic service. Accordingly, the authority may be satisfied that the country information detailed below was not, and could not have been, provided to the Minister, and accordingly may be considered pursuant to s 473DD(b)(i);
ii.There are ‘exceptional reasons’ why any new information detailed in these submissions should be taken into account, as set out at 473DD(a), given that:
a)The applicant was previously unrepresented in relation to this very important application and accordingly was limited in presenting his claims; and
b)Sajeevan maintains that he was unaware that his application was referred to the IAA as the letter which he received from the Department of Immigration and Border Protection on 24 August 2017 made no reference to this referral. Sajeevan was not advised of the referral by email or by post.
Thus, the applicant’s migration lawyers sought to characterise the further country information that they had provided as constituting new information, doing so on the basis that their client had not been represented before the delegate and so was information that “was not and could not have been, provided to the Minister, and may accordingly be considered pursuant to s 473DD(b)(i).” It may also be noted that no reliance was placed on par 473DD(b)(ii).
When pressed, counsel for the applicant equivocated on whether the matters addressed under that heading was in fact new information, submitting that if it was not, his client was freed of the requirement to establish that the conditions in s 473DD(a)-(b) were met. This was said in the face of the submission made to the Authority (by a firm of specialist migration lawyers), that this was ‘New Information’. Before me, it was submitted that the Authority was required to consider the matter for itself and to decide whether the information was not new (contrary to the written submission) and then accept that the preconditions in s 473DD did not apply, so that the proscription in that section did not operate to preclude consideration being given to it. In this court, the applicant submitted, in effect, that the Authority should have rejected the submission then made, that new information was being supplied and to have made a finding that it was not new information, then proceeded to disregard the further submissions as to why it should be satisfied that exceptional circumstances were shown for admitting the ‘new’ information.
Although counsel for the Minister quite properly submitted that it was for the Authority to determine whether the information was new, the requirement that it should do so arose in the context that the applicant’s migration lawyers presented it as such, and sought to identify the bases on which it might be said that exceptional circumstances were shown.
The Authority examined the request for consideration of the new claims that: (1) the applicant was to be imputed with a connection with the LTTE and; (2) there was further country information: Reasons, [5]. It considered that both of those matters constituted new information.
The new claim to be imputed with a LTTE connection and the further country information that was supplied by the applicant’s migration lawyers, were not before the delegate. A fair reading of the Reasons at [5]-[10] indicates (and no submission to the contrary was made before me), that the Authority considered each not to be relevant.
The Authority identified the basis on which it had been said that exceptional circumstances were shown: Reasons, [6]-[8]. Those Reasons demonstrate that the Authority performed the evaluative task that was required of it in deciding that such circumstances were not shown: Reasons, [9]-[10]. It was open to the Authority to reach the conclusions which it did. The information comprised of the new LTTE claim and the further country information was not before the delegate. The Authority was entitled to conclude that the information could have been so provided. The country information was not new in any sense. The new claim that the applicant was to be imputed with a connection with the LTTE had not but could have been made when the application was before the delegate. The Authority recognised that this new claim had not been made during the arrival interview, in the applicant’s statutory declaration or during a further interview. The Authority was not satisfied that the new claim constituted credible personal information which was not previously known: Reasons, [10].
The Authority concluded that it was proscribed from employing both the new LTTE claim and the further country information in its process of review: Reasons, [11]; Act, s 473DD.
I consider that both the new LTTE claim and the further country information upon which reliance was sought to be placed before the Authority was new information. It was accordingly, information that the Authority could not consider, absent exceptional circumstances being shown and it was not satisfied that there were.
Legal unreasonableness
As the Minister accepted, the High Court has accepted that the power in s 473DC to get new information is to be exercised, in the relevant sense,[60] reasonably, with the consequence that an unreasonable failure to exercise power may render invalid a purported exercise of the duty imposed by s 473CC to affirm or remit the decision: Plaintiff M174;[61] Minister for Immigration and Border Protection v CRY16.[62]
[60] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[61](2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ, Gordon and Edelman JJ agreeing).
[62] (2017) 253 FCR 475, [72], [82] (The Court).
Although the powers conferred by Pt 7AA are to be excised in a manner that is legally reasonable, what is ‘reasonable’ is to be understood within that statutory context, including that the review is ordinarily to be conducted on the papers and to be efficient, quick, free of bias and consistent with Div 3 of Pt 7AA.
Under Pt 5 and 7 of the Act, it is accepted that the failure to make an obvious inquiry about a critical fact, the existence of which may be easily ascertained could supply a sufficient link and support a conclusion that there had been an unreasonable failure to exercise power, so as to render invalid a purported exercise of the duty imposed to conduct a review and to affirm or remit the decision, amounting to a constrictive failure to exercise jurisdiction: cfMinister for Immigration and Citizenship v SZIAI;[63] AMT15 v Minister for Immigration and Border Protection.[64] Whether a like failure in the conduct of a review under Pt 7AA, to obtain information by way of interview or otherwise pursuant to s 473DC(3), is to be considered in the context of the nature of the fast track review as provided by Div 3, Pt 7AA of the Act.
[63] (2009) 259 ALR 429, [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[64][2018] FCA 366, [46]-[47] (Tracey J), citing SZIAI, Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, [49]-[52] (Nettle J).
In DPI17, Griffiths and Steward JJ confirmed[65] the “three essential steps to be taken in determining whether an established failure to consider exercising a discretionary power was legally unreasonable” as follows:
[65] [2019] FCAFC 43, [38].
(1) identify the failure with precision
(2)examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
(3)evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense
Their Honours considered that the third of those steps highlighted that a mere failure to consider the exercise of power under s 473DC was insufficient in or of itself to give rise to jurisdictional error.[66] See also Minister for Immigration and Border Protection v SZVFW.[67]
[66] [2019] FCAFC 43, [39], see also [37].
[67](2018) 357 ALR 408, [59]-[60] (Gageler J), [88]-[98] Nettle and Gordon JJ, [131] (Edelman J).
Mortimer J considered that the powers conferred by s 473DC were conditioned[68] by a requirement that they be exercised reasonably. Recognising that the test of legal unreasonableness was breached in rare cases, her Honour preferred to avoid consideration of whether a result was plainly unjust and preferred to formulate the test as follows:[69]
I prefer to restrict my articulation of principle to asking whether the exercise of power or performance of a function is such that no decision-maker, acting reasonably, could have approached the exercise of power or performance of the function in that way, in the statutory context and factual circumstances as they were at the relevant time.
[68] [2019] FCAFC 43, [89], [95], [100]-[105].
[69] [2019] FCAFC 43, [109]-[112].
The applicant submitted that both a Tribunal conducting review under Pt 7 and an Authority conducting a review under Pt 7AA, each had the core function of considering whether the criteria for the grant of a Protection visa prescribed by s 36 were satisfied. I consider that to approach the analysis in this way conflates the review process in a way that ignores that the core functions of those decision making bodies were constrained by the different regimes, which Pt 7 and Pt 7AA provided. True it is that the Tribunal and the Authority have in common a duty to review, however, the nature of those reviews are to be conducted according to different statutory regimes.
Interview
Contrary to the applicant’s submissions, the Authority expressly considered whether, and decided not, to exercise the power conferred by s 473DC, to invite the applicant for an interview: Reasons, [12]. I agree in the Minister’s submission that the present case is distinguishable from DPI17[70] inasmuch that in the present case no concession was made that the Authority had failed to consider the exercise of that power. The Reasons established that the Authority did consider that power and decided not to exercise it in favour of allowing an interview. As concerns, the onus of proof, the present is not a case is not one which the somewhat difficult issue arose, of establishing a factual basis for inferring that the Authority had not considered whether or not to exercise that power. It clearly did so.
[70] [2019] FCAFC 43, [44].
Where an Authority has accepted to review the applicant’s submissions and new information which it contains, this does not, imply as a matter of legal reasonableness or otherwise that the Authority must seek further submissions or afford the applicant an opportunity to respond once it has formed specific reservations about the applicant’s case: DBE16[71]; DGZ16;[72] DPI17.[73]
[71] [2017] FCA 942 at [40]-[41], [66].
[72] (2018) 258 FCR 551, [74]-[75].
[73] [2019] FCAFC 43, [41].
In DBE16 v Minister for Immigration and Border Protection, Barker J rejected a ground alleging that, as the applicant’s credibility had been an important factor in the Authority’s review, jurisdictional error arose from the Authority’s not having invited the applicant to an oral interview.[74] Relevantly, his Honour observed:[75]
The burden of this scheme [in Part 7AA] is that the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding. It might be said that this is part of the nature of the fast track system as envisaged by Pt 7AA.
[74] [2017] FCA 942 at [40]-[41], [66].
[75] [2017] FCA 942 at [61].
In DGZ16,[76] the Full Court, having concluded that Pt 7AA required the Authority to evaluate the material for itself, held that there was no implied obligation of legal reasonableness to afford an applicant to respond. The Full Court identified two factors which supported that conclusion. First, Pt 7AA contained no equivalent to s 425 in Pt 7 which obliged a Tribunal to invite an applicant to appear before it, to give evidence and present arguments relating to the issues arising in relation to the decision under review. Secondly, and to the contrary, the Authority was obliged[77] to conduct a review by considering the review material provided to it pursuant to s 473 without accepting or requesting new information and without interviewing the referred applicant.
[76] (2018) 258 FCR 551, [74]-[75].
[77] Act, s 473DB.
Of some importance is that in DPI17,[78] Griffiths and Steward JJ, with whom Mortimer J agreed on this issue,[79] held that DGZ16 should not be understood as establishing a general principle that the Authority is never obliged to provide an applicant to respond if it disagrees with the delegates evaluation of the material. Rather, the holding was to be read in the context of the particular facts and circumstances of that case.
[78] [2019] FCAFC 43, [40]-[42], [77].
[79] [2019] FCAFC 43, [40]-[42], [77].
It follows that the question whether an Authority’s decision is tainted by legal unreasonableness for failure to accede to a request for an interview where it disagrees with a delegates evaluation of material or an applicant’s credibility is a fact intensive question. But is it one to be evaluated in the context of the scheme of review provided by Pt 7AA.
More recently, in BRZ17 v Minister for Immigration and Border Protection[80] Moshinsky J raised, and rejected, the proposition that where an applicant had specifically requested a hearing, it was legally unreasonable in that case not to have considered (at least expressly) whether to invite the applicant to an interview. His Honour stated:
. . . there may be circumstances in which the IAA could fall into jurisdictional error by failing to consider whether to exercise its discretion under s 473DC(3), if that failure was attended by legal unreasonableness.[81] To succeed on this ground, however, the appellant would need to discharge the onus of establishing: (a) the factual foundation for the conclusion that the IAA did fail to consider exercising the discretion under s 473DC; and (b) that there was jurisdictional error in failing to consider exercising the discretion.[82]
Moshinsky J found that the appellant had not established that the Authority had failed to consider the discretion to conduct an interview conferred by par 473DC(3)(c) and was prepared to infer that it had been so considered notwithstanding the absence of any express request for such an interview. Moshinsky J was prepared to infer that the Authority had considered the discretion because it had referred to the appellant’s submissions and, by extension, the whole of the submission, which included a request that the appellant be invited to an interview.
[80] [2019] FCA 677, [44], [46].
[81]Citing Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [72], [82]; DGZ16, (2018) 258 FCR 551 at [70].
[82]CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [38] (Thawley J).
His Honour further held[83] that the appellant had not established that the Authority had acted in a way which was legally unreasonable by not exercising the power in s 473DC(3), to invite the appellant to an interview stating:
Further, it is not established that the IAA acted in a way that was legally unreasonable by not exercising the power in s 473DC(3) to invite the appellant to give new information at an interview. In order to establish jurisdictional error arising from legal unreasonableness, it is necessary: (a) for the appellant to identify the alleged failure with precision; (b) to examine the terms, scope and purpose of the statutory power that the IAA failed to consider; and (c) to evaluate the alleged failure to see whether it has the character of being legally unreasonable, for example because it lacked a rational foundation or an evident or intelligible justification, or because it was plainly unjust, arbitrary, capricious or lacking in common sense: see CCQ17 at [51].
[83] [2019] FCA 677, [48].
Moshinsky J said:[84]
The fact, however, that the IAA made different findings to the delegate is not a matter of concern. Part 7AA of the Act contemplates that the IAA will evaluate for itself the material considered by the delegate, and Part 7AA of the Act does not require the IAA to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, in relation to the material considered by the delegate.
. . . s 473DA(1) of the Act makes clear that Div.3 of Part 7AA of the Act together with ss.473GA and 473GB of the Act is an exhaustive statement of the natural justice hearing rule in relation to reviews by the IAA.
His Honour also concluded that it was open to the Authority to “disagree with the delegate’s evaluation of the material, and to make findings of fact that were different to those made by the delegate, without providing to the appellant an opportunity to respond.”[85]
[84] [2019] FCA 677, [38]-[39], citing DGZ16, (2018) 258 FCR 551 at [72].
[85] [2019] FCA 677, [56] citing DGZ16, (2018) 258 FCR 551 at [75]-[76].
In oral submissions, the applicant conceded that the Authority had considered whether exceptional circumstances were shown such as to permit reliance on the new LTTE claim and further country information. It is also clear that the Authority considered the request for an interview or to otherwise obtain new information: Reasons, [12]. It cannot be said that the Authority failed to consider whether to exercise those powers. Once that conclusion is reached, the precise failure that it complained of in this case rests upon the basis that it had been unreasonable of the Authority (in the requisite sense) to refuse the applicant’s request. Contextually, the submissions lodged by the applicant’s migration lawyers insisted upon the Authority acceding to the request that the applicant must be interviewed; however, those submissions did not distinctly press any request that the TNA politician be contacted further. The letter from the TNA politician had been before the delegate and there had been no submission to the Authority that the delegate had made any error in failing to contact that politician further.
I have considered the terms, scope and purpose of ss 473DC(3)(a)-(b) and 473DD, being statutory powers which the decision-maker declined to exercise. The present case does not involve a failure to consider the exercise of those powers and may be distinguished from CRY16.[86] Nor is it akin to BRZ17[87] where an express claim for interview had been made and the question was whether the Authority had failed (or failed expressly) to consider that request. Here, the Authority recognised that a request for interview had been made and it was refused: Reasons, [12].
[86] (2017) 253 FCR 475.
[87] [2019] FCA 677, [[44] (Moshinsky J).
The finding that the new LTTE claim and the further country information comprised new information and that exceptional circumstances were not shown, meant that the Authority was proscribed from considering that information. In turn, those conclusions undermined the request for interview of the applicant under s 473DC(3).
While it may be accepted that in the circumstances of a particular case, it may be legally unreasonable not to consider exercising a power to obtain new information, CRY16[88] has been distinguished in several cases where the facts of those decisions did not support such a conclusion: cf DGZ16,[89] CGL17 v Minister for Immigration and Border Protection[90] and DYK16 v Minister for Immigration and Border Protection.[91]
[88] (2017) 253 FCR 475, [72], [82] (The Court).
[89] (2018) 258 FCR 551, [70], [74] (Reeves, Robertson and Rangiah JJ).
[90] [2018] FCA 1747, [22] (Rangiah J).
[91] [2019] FCAFC 222, [69]-[71] (Collier, Middleton and Rangiah JJ).
I agree in the Minister’s submission that nothing was disclosed by the applicant’s submissions which elevated the Authority’s failure to interview the applicant to the level of legal unreasonableness and that this is so notwithstanding that the Authority had disbelieved some of the applicant’s claims which had been accepted by the delegate.
The Authority’s decision to decline to interview the applicant and otherwise to obtain further information was not legally unreasonable. Those decisions lacked neither a rational foundation, nor an evident or intelligible justification. Within the context of the core function of conducting a fast track review under the regime provided by Div 3 of Pt 7AA, the decision not to do so was not plainly unjust, arbitrary, capricious, or otherwise lacking in common sense. No sufficient basis is shown for a conclusion that the applicant was denied the opportunity afforded by Pt 7AA, adequately to advance the evidence and claims which were made before the delegate or that the manner of the review by the Authority was legally unreasonable.
Contacting the TNA politician
The particular to Ground 4 contains a complaint of a failure to contact the TNA politician as supporting alleged jurisdictional error for failure by the Authority to exercise its power lawfully.
It may be accepted that a failure to make an obvious inquiry about a critical fact, the existence of which may be easily ascertained could supply a sufficient link and support a conclusion that there had been an unreasonable failure to exercise power, so as to render invalid a purported exercise of the duty imposed by s 473CC to affirm or remit the decision, amounting to a constructive failure to exercise jurisdiction.
Concerning the failure to contact the TNA politician, the applicant relied SZIAI[92] and AMT15.[93] Some facts of the latter case are similar to the present case. In each case there was no reason suggesting that the parliamentarian’s letters were not authentic. Each letter contained multiple contact details for a member of the Sri Lankan Parliament whose names were printed on what appeared to be official Sri Lankan parliamentary letterhead. So it was said that, as in AMT15, here it would have been “relatively easy for the Tribunal to have, directly or indirectly, contacted the member of Parliament and enquired as to whether he had sent the letter to [FMA17]” and that as those enquiries had the potential to have a material bearing on the applicant’s credibility, the failure to do so amounted to a constructive failure to exercise jurisdiction.
[92] (2009) 83 ALJR 1123.
[93] AMT15 v Minister for Immigration and Border Protection [2018] FCA 366
In contrast to AMT15 and SZIAI both of which concerned review under Pt 7 of the Act, the present case arose under Pt 7AA.
While the principles in AMT15 and SZIAI are instructive on the question of legal unreasonableness, the statutory power conferred by s 473DC to get information must be read in the context of Div 3 of Pt 7AA, including, that the Authority must ordinarily conduct its review on the papers in a manner that is efficient, quick, free of bias and consistent with Div 3 of Pt 7AA. To be consistent with Div 3 of Pt 7AA, the manner of the Authority’s conduct of review is subject to the proscription that new information not be considered except in exceptional circumstances and upon satisfaction of the conditions in s 473DD.
In contrast with the core function of an inquisitorial tribunal under Parts 5 and 7 of the Act, the Authority is constrained by the matters in Pt 7AA. When the relative latitude allowed to an administrative decision maker under Parts 5 and 7 is recognised, it is more readily understandable that such administrative decision-makers may be required to make obvious enquiries about critical facts that are easily ascertainable and, thus, that their failure to do so may demonstrate jurisdictional error. Under Pt 7AA, the Authority was bound to act only on the referred information, except in accordance with certain limited exceptions. The cases relied upon by the applicant are, to that extent, distinguishable.
As stated above, the submissions by the applicant’s immigration lawyers did not distinctly press any request that the TNA politician be contacted further. There had been no submission to the Authority that the delegate had made any error in failing to contact that politician. Nothing in the applicant’s Ground 4 or his submissions to this court identified how any further information which should have been sought from the TNA politician could have satisfied the conditions in s 473DD(a)-(b), such as to warrant a conclusion that the proscription imposed by that section should not be applied.
The Authority said that it found the letter from the TNA politician, and the police records, to be genuine documents, but not reliable regarding the applicant’s involvement with the TNA politician or the TNA: [24]. The Authority further found that those documents did not overcome the serious doubts which it held regarding his claimed involvement with the TNA, or that he and his family had been threatened as a result of any such involvement. To give those Reasons a fair reading, the characterisation of the documents as ‘not reliable’ may be understood as meaning that the content of those documents did not shed additional light on the matter. Indeed the letter from the TNA politician merely stated that the applicant was a ‘volunteer’. A description of that kind did not readily support a conclusion that the applicant held a high profile with the TNA. Nor did it support a conclusion that the applicant and the TNA politician held a close personal connection. The Authority’s assessment of that letter may be considered in the context of the applicant’s statutory declaration, which likewise contained little detail as to his TNA involvement and, if anything, supported a conclusion that the involvement was low profile (“I went with him once or twice when he had to visit for the parliament”).
The Authority did consider – but rejected – the claim that the applicant had been a supporter of the TNA politician. More fundamentally, it went further and also concluded that if, contrary to that primary finding, there was any such association, the applicant’s profile was not such as to warrant a finding that he faced a real risk of harm: Reasons, [42]-[47].
I accept the Minster’s submission that the applicant did not demonstrate how any further information which should have been sought could have satisfied the preconditions in s 473DD (e.g. such as to be able to be considered by the Authority in any event). If the principles in SZIAI[94] are sought to be engaged, an applicant is expected to adduce evidence before the Court that the enquiries, if made, could have yielded a useful result: see also SZWAW v Minister for Immigration and Border Protection.[95] The applicant has chosen to put on no evidence as to what the results of an enquiry of the TNA politician would have been or why they would have been of utility. Further, while SZIAI was a decision made in relation to a claim under Pt 7 of the Act, the present claim arises for consideration under Pt 7AA which contrastingly, excludes an obligation to get, request or accept any new information.[96]
[94] Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, [26].
[95] [2019] FCA 710, [11]-[12] (Lee J).
[96] Act, s 473DC(2); cf s 424.
In any event, the Authority was not satisfied that the low-level involvement described by the applicant, was such that he or his family came to the adverse attention of the authorities, unarmed groups, members of opposing political parties, or any other person. The Authority was entitled to find that such low-level involvement would not place the applicant at such a risk as to engage Australia’s protection obligations: Reasons, [44].
Although the applicant did not present any evidence as to the response which that the TNA politician would have given to an enquiry concerning the letter and its contents, had the Authority otherwise acted unreasonably in failing to contact the politician, it’s decision was supported by its alternative findings (made on a basis favourable to the applicant), that he had in fact been involved with the TNA and the politician in question. Nonetheless, it found that as the applicant had a low profile and did not have a well-founded fear of persecution.
The Grounds comprised in Part B are rejected.
Part B – relevant considerations, integers and information
The applicant presented his submissions under Part B as encompassing the matters advanced by: Ground 1(a), failure to consider relevant consideration, integer of claim or information; Ground 2(a), natural justice and procedural fairness; Ground 3(a), error of law) and; Ground 5(a), unreasonableness.
The applicant correctly submitted that the Authority must consider relevant considerations[97] and the integers of an applicant’s claims,[98] whether made expressly or arising squarely from the material before the Authority,[99] and that failure to do so may establish a failure to discharge the Authority’s duty of review. The Minister accepted that a failure by the Authority to consider a claim or component integer was capable of constituting jurisdictional error.[100] As Jagot J recently observed in EOF17 v Minister for Immigration and Border Protection [101] “[i]f a claim is clearly made then the Authority is bound to consider the claim.”
[97] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Mason J).
[98] See SZSZW v Minister for Immigration and Border Protection [2015] FCA 562, [13]-[18]. (Perry J); SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80, [29] (Madgwick and Conti JJ).
[99]Dranichnikov v Minister for Immigration and Citizenship (2003) 197 ALR 389, [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]); NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.
[100] Citing AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, [18].
[101][2019] FCA 758, [17] citing AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89.
The applicant further submitted that the Authority was obliged to give, in writing, not only its decision and reasons, but its findings on material questions of fact and references to the evidence on which those findings were based.[102] The Parliament may prescribe statutory requirements for the provision of reasons of a particular content and of differing standards.[103] The scope of an Authority’s obligation to furnish a written statement setting out the reasons for the decision under par 473EA(1)(c) may be contrasted with that of a decision makers like obligations under Parts 5 and 7 of the Act under which an administrative decision-maker is obliged to furnish the reasons for the decision, the findings on material questions of fact and reference to the evidence or any other material on which the findings of fact were based: cf ss 368(1)(c)-(e), 430(1)(c)-(e).
[102] The applicant relied upon s 25D of the Acts Interpretation Act 1901 (Cth).
[103]Tsvetnenko v United States of America [2019] FCAFC 74, [90] (Besanko, Banks-Smith and Colvin JJ) citing Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [43].
Under the Act, the court may infer that if an issue is not mentioned in an Authority’s reasons for a decision, that it has not been considered.[104] While the reasons given under s 473EA must set out its findings on material questions of fact and references to the evidence on which those findings were based, the failure to do so does not of itself give rise to an inference that a statutory discretionary power was not exercised.[105]
[104]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [5] (Gleeson CJ), [69], [75] (McHugh, Gummow and Hayne JJ).
[105]CfBYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [48]-[50] (Rares, Perry and Charlesworth JJ) citing BYA17 v Minister for Immigration and Border Protection [2018] FCAFC 114.
In substance, Part 2 of the applicant’s complaints were grounded upon the Authority’s refusal to consider all of the information contained in the written submission of his migration lawyers and particularly his claim (and the supporting material for the claim), that because of his work for the TNA politician he may be imputed with a connection to the LTTE.
New country information
Insofar as suggested failure to consider the further country information was concerned, the Authority found that it could not do so as it was not satisfied that exceptional circumstances were shown and as he had not satisfied the pre-condition in par 473DD(b)(i) of the Act. I have concluded that the Authority was entitled to be satisfied that no exceptional circumstances were shown so as to support the reception of that further country information. I have also concluded that it did not conduct its review of the matter in a manner that was tainted by legal unreasonableness, including by reason of its decision not to consider the further country information. In those circumstances, in my opinion, the suggested failure to consider the further country information did not involve a failure to take into account relevant considerations, a want of procedural fairness, an error of law or any legal unreasonableness.
An imputed LTTE connection
The applicant’s claims to protection were summarised in the Authority’s reasons for its decision: Reasons, [13].
As noted above, the new claim sought to be advanced turned on the applicant’s imputed association with the LTTE, based on his association with the TNA. In this context, it was submitted that the delegate had not given proper or genuine consideration to the risks faced by the applicant, that he could be viewed as a sympathiser of the LTTE. Upon this basis, a large body of new country information (i.e. which had not been before the delegate) was supplied as evidence of those alleged risks.
By his written submissions, counsel for the applicant submitted that the applicant’s claims for seeking protection were based on the following:
a)the applicant was a man in his twenties, a non-citizen of Australia, and a national of Sri Lanka and of no other country;
b)he had no right to enter and to reside in any other country;
c)the applicant was of Tamil ethnicity;
d)the applicant was a Hindu, but had converted to Christianity in Australia;
e)the applicant’s older sister had been kidnapped in 1990, and was presumed to be dead. Part of the applicant’s fear was for himself. Part was for his mother, who thought that the applicant was a reincarnation of this sister such that his mother “would not be able to go on if [he] died.”
f)while at school, he had been befriended and helped by a man who would later become a successful candidate for the TNA in parliamentary elections in 2012. The applicant claimed that he stayed at the house of this TNA politician on occasions, that he had supported him, gone to TNA meetings with him and once or twice to Colombo when the TNA politician went there for parliament;
g)the applicant had been threatened with a pistol, and beaten, by armed men who wanted him to stop supporting the TNA politician. The applicant suspected them to be members of the Karuna Group, a pro-Government paramilitary group, he became afraid, and went into hiding;
h)in September 2012, men went to see the applicant’s father, demanding to know where the applicant was, and had attacked his younger brother;
i)the applicant had left Sri Lanka in 2012, shortly after that incident;
j)three months after he left Sri Lanka, people had come looking for the applicant and beat his father;
k)in 2016, people had again come looking for the applicant and beaten both his father and his brother. His brother, who is also now in fear, no longer visits the family village;
l)the applicant fears being killed. He believes he cannot be protected, by the State or relocate;
m)the TNA politician is prominent in Sri Lanka, and it is considered dangerous to be associated with him, but the applicant had not understood this to be so at that time;
n)the applicant has departed Sri Lanka illegally and made a claim for asylum in Australia;
o)the applicant feared being killed if he returned to Sri Lanka. He believed that the people looking for him were from the Karuna Group, but they might be from the Pillayan Group or another political group.
The length and detailed description of the basis for the claims stand in contrast with the structure of the Act that a person may be granted a Protection visa if they satisfy[106] the definition of refugee or the criteria for complementary protection.[107] For the purposes of the Act, a person is a refugee if they have a well-founded fear of persecution and are unable or unwilling to avail him or herself of the protection of their country of nationality (or their country of their habitual residence).[108] The meaning of well-founded fear of persecution is supplied by s 5J which requires that the person: (a) fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; (b) that there is a real chance that, if the person returned to their receiving country, they could be persecuted for one of those reasons; (c) that real chance relates to all areas of that country.
[106] Act, s 65(1)(a).
[107] Act, s 36(2(a), 36(2)(aa).
[108] Act, s 5H(1).
The manner in which the applicant’s claims were described may more accurately be understood as the integers of a claim that he held a well-founded fear of persecution, by reason of his membership of a particular social group or his political opinion.
While an administrative decision maker must consider each claim and the integer of each claim, that is advanced by an application as the basis on which they contend to be a refugee, judicial review of a decision must be considered in light of the basis on which it was advanced, not a basis conceived of by the applicant or their advisors after the event.[109]
[109]Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, [1], [14] (Gleeson CJ).
I do not accept that the applicant had expressly claimed that because of his work for the TNA politician he may be imputed with a connection to the LTTE. Nor do I accept that such a claim was clearly apparent on the face of the material before the delegate or the Authority. The applicant was represented before the Authority and those circumstances may render it more difficult to contend that an articulated claim emerged squarely on the face of the materials.[110] It was for the applicant to advance the evidence and arguments that he wished to put in support of the claim that he had a well-founded fear of persecution, based upon his connection to the TNA politician (personal or political) and for the delegate and Authority respectively, to decide whether it was satisfied that the claim was made out.[111]
[110]AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, [30].
[111] SZWAW v Minister for Immigration and Border Protection [2019] FCA 710, [10].
Insofar as the applicant now submits that the information comprised in the new claim to be imputed with an LTTE association was clearly ‘personal information’ not previously known (because it related to the applicant’s own imputed political profile and was not previously known to the Minister), this claim had never been made in the written submissions by the applicant’s migration lawyers. In seeking to persuade the Authority that it should consider the new information in undertaking the fast track review, when addressing the subject, New Information, the submission was confined in express terms to the precondition prescribed by par 473DD(b)(i). That submission did not seek to invoke reliance on par 473DD(b)(ii). The Grounds of review contain no suggestion of reliance on a failure by the Authroity to admit credible personal information.
If I am wrong in that conclusion, critically it cannot be ignored that the Authority rejected the claim which was actually made, that the applicant had any involvement with the TNA’s activities or the TNA politician: Reasons, [25]. For that reason, there was no foundation for the new claim. Accordingly, that new claim was bound to fail in limine.
I agree in the Minister’s submission that the further claim which is now said to have been overlooked was subsumed in that critical finding. Finally, as noted above, the Authority proceeded to consider whether, if its findings were wrong in that respect, the applicant’s TNA association and any actual or imputed political opinion on that account would lead to harm – it found that they would not: Reasons, [42]-[47].
The Grounds comprised in Part B are rejected.
Conclusion
For the reasons above, the application is dismissed.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.
Date: 30 May 2019
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