FMC17 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 377
•26 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FMC17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 377
File number(s): SYG 3885 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 26 February 2025 Catchwords: PRACTICE & PROCEDURE – Where originating application for review made clear that applicant sought audio files of interview in order to provide further grounds or particulars – adjournment and costs consequences where Minister failed to provide audio files since commencement of proceedings until ordered by the Court
MIGRATION – Whether Immigration Assessment Authority erred in determining whether to consider new information
Legislation: Migration Act 1958 (Cth) ss 5J, 36, 473CB, 473DD, 473DE Cases cited: AUS17 v Minister for Immigration and Border Protection and Anor (2020) 269 CLR 494 Division: General Federal Law Number of paragraphs: 57 Date of hearing: 26 February 2025 Place: Sydney Counsel for the Applicant: In person Solicitor for the Respondents: Mr M Burnham, Sparke Helmore Lawyers ORDERS
SYG 3885 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FMC17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
26 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The first respondent must file the Affidavit of Matthew Burnham affirmed 26 February 2025 by 10:00am on 27 February 2025.
3.Under r 1.07 Federal Circuit and Family Court of Australia (Division2) (General Federal Law) Rules 2021 (Cth) (Rules) the need to serve the Affidavit referred to in Order 2 above is dispensed with.
4.The application filed on 14 December 2017 is dismissed.
5.The applicant must pay the first respondent’s costs and disbursements of, and incidental to the proceedings, as agreed or taxed under the Federal Court Rules 2011 (Cth), excluding all costs associated with:
(a)the attendance at, and adjournment of, the final hearing on 2 December 2024; and
(b)the Affidavit of Matthew Burnham affirmed 24 February 2025.
6.Pursuant to r 17.02 of the Rules, Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 14 December 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) affirming a decision of a delegate of the first respondent (delegate) to not grant the applicant a Safe Haven Enterprise (Class XE) Subclass 790 visa (visa).
BACKGROUND
The background to the matter is derived from the first respondent’s written submissions. Unless otherwise indicated, it does not appear to be in dispute.
The applicant, a citizen of Sri Lanka, having first arrived in Australia on 25 April 2013 as an unauthorised maritime arrival (UMA) (Court Book (CB) 115). On 20 May 2014, he participated in an Unauthorised Maritime Arrival & Induction Interview (CB 18 to 38). On 25 May 2016, the applicant was invited to apply for a Temporary Protection visa or a Safe Haven Enterprise visa (CB 39 to 40).
On 6 July 2016, the applicant applied for the visa (CB 41 to 77). In support of that application, he provided a personal statement dated 1 July 2016 (CB 78 to 79), and several identity documents (CB 84 to 96). On 21 December 2016, the applicant attended an interview with the delegate (CB 109 and 118 to 119).
On 3 April 2017, the delegate refused to grant the visa because he was not satisfied the applicant satisfied the criteria set out in s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act) (CB 115 to 128).
On 6 April 2017, the matter was referred to the Authority for review (CB 129 to 130). On 25 April 2017, the applicant provided submissions to the Authority (CB 136 to 138), along with a DFAT Country Information Report dated 24 January 2017 (CB 139 to 176).
On 15 June 2017, the applicant provided the Authority with a statement from his wife (June 2017 letter) together with an English translation of it. The June 2017 letter was undated, but certified as having been translated on 5 June 2017 (CB 178 to 179).
On 30 November 2017, the Authority affirmed the delegate’s decision (CB 184 to 200).
Applicant’s claims
By a statement attached to his visa application dated 1 July 2016, the applicant made the following claims (CB 78 to 79):
(a)in Sri Lanka he was “engaged in fishing”. Persons from the Liberation Tigers of Tamil Eelam (LTTE) asked for his boat. He refused. After the LTTE threatened him, the applicant gave them his boat, which was said to be returned after a few days;
(b)the Sri Lankan Army (SLA) found out that “this was going on”. The applicant said was taken by the Criminal Investigation Department (CID), beaten, tortured and imprisoned him for five months. The applicant’s wife achieved his release from prison by the assistance of the applicant’s Sinhalese boss. When he was released, the applicant was told that if “any such incident happens again we will shoot you dead with your wife”;
(c)the LTTE again asked for the applicant’s boat. He refused, mentioning the threats and torture he received from the CID. The LTTE still forcibly took his boat. The CID “came to know” of this. The CID came to the applicant’s home whilst he was at work. They beat and tortured the applicant’s wife and asked her where the applicant was. The CID took the applicant’s wife to an army camp. They released her on the same day, telling her the applicant should surrender, or they would “shoot dead on the spot”;
(d)the applicant returned home to find his door broken. Villagers told him what had happened. The applicant feared for his life and hid in the jungle;
(e)the applicant and his wife hid in the jungle for one or two days. They left for India because the authorities were still looking for them;
(f)once in India, the applicant heard that the CID and police had attended his house because they were looking for him. They tortured his siblings, who were living at the house, and they set the house ablaze. The applicant’s siblings fled. He did not know where they were;
(g)the applicant said he lived in India as a refugee for 23 years, and served as a leader in a refugee camp he lived in. He participated in hunger strikes and processions “for the sake of Sri Lankan people”. The Indian intelligence and police personnel came to the camp three times a week to observe him. The applicant said they also took him on “suspicion”, beat him and tortured him; and
(h)he could not return to Sri Lanka. He also could not live peacefully in India.
At the delegate interview held on 21 December 2016, the applicant clarified his claims. In particular, he stated that (CB 118 to 120):
(a)the SLA and LTTE both made him transport army personnel in his boat. When they heard the applicant was assisting the LTTE, the SLA took the applicant to a “mini camp”, where they gave him two beatings and told him to “not run your boat for LTTE”. He was released after one hour;
(b)after the “mini camp” incident, the applicant went into hiding from the SLA and LTTE for three months;
(c)his boat was destroyed (or potentially bombed);
(d)he travelled to India on 16 September 1990. The applicant had not returned to Sri Lanka since that date;
(e)whilst in India, he also had “some religious issues”; and
(f)in 2014, his personal information was “all leaked out” as part of a Departmental data breach (2014 data breach). He believed that information would have reached the Sri Lanka authorities and that they would know he had helped the LTTE.
Authority’s decision
The Authority had regard to the material referred to it by the Secretary under s 473CB of the Act (CB 185 at [3]).
The Authority noted that, on 25 April 2017, it had received a submission from a solicitor sent on the applicant’s behalf. It observed the submissions were partly comprised of arguments about issues which had been before the delegate (CB 185 at [4]). The Authority also noted that, on 25 April 2017, the applicant gave it a copy of the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka, published on 24 January 2017 (2017 DFAT report). In circumstances where the delegate had relied upon the earlier DFAT report on Sri Lanka dated 18 December 2015, the Authority was satisfied there were exceptional circumstances to justify considering the 2017 DFAT report (CB 185 at [5]).
Given that the June 2017 letter was undated, the Authority found it unclear whether that letter could have been provided prior to the delegate making their decision. Nonetheless, the Authority noted that the letter’s contents referred to events which occurred prior to the delegate’s decision. Whilst it acknowledged that information may be of a credible personal nature, the Authority found the letter was “in part a reinstatement of information before the delegate”. Further, insofar as the applicant’s wife stated that she was living in a particular District (the District) with her husband and children prior to departing Sri Lanka, it noted the letter contradicted the applicant’s own evidence to the delegate that his children were born in India and had never been to Sri Lanka. In those circumstances, the Authority was not satisfied the letter was information that was not provided to the Minister before the delegate made his decision, or was information that could not have been provided to the Minister before that decision was made. It was also not satisfied that the information in the letter was credible, personal information, which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. Further, the Authority was not satisfied there were exceptional circumstances which warranted consideration of the letter (CB 185 at [6]).
The Authority recorded that it obtained new information about the 2014 data breach. It identified the applicant had made a claim about the 2014 data breach but noted that claim was not considered by the delegate in its decision. Having found there was insufficient information before it on the data breach so as to properly assess the applicant’s claim, the Authority was satisfied there were exceptional circumstances to justify obtaining and considering new information about the 2014 data breach pursuant to s 473DD of the Act. Further, for the purposes of s 473DE(3)(a), it noted the new information was not specifically about the applicant and was instead about a class of persons of which the applicant was a member, namely, persons whose information was included in the data breach (CB 185 at [7]).
The Authority accepted, on the applicant’s evidence, that he was a Tamil male from the District, Northern Province, Sri Lanka. It also accepted Sri Lanka was his receiving country (CB 187 at [12] to [13).
Turning to the applicant’s claims, the Authority accepted the applicant was a fisherman in Sri Lanka and that he fled to India in 1990. However, it found the applicant’s evidence about the events which led him to leave Sri Lanka to be unconvincing. It identified a number of inconsistencies in the applicant’s accounts of the evidence which it found to undermine the credibility of his claims (CB 188 at [14] to [15]). Those inconsistencies were:
(a)how the applicant used his boat during the conflict (CB 188 at [16]);
(b)how many times the applicant was detained by the Sri Lankan authorities (CB 188 at [17]);
(c)what happened to the applicant’s boat (whether it was bombed, broken, or not seen again) (CB 188 at [18]);
(d)how long the applicant spent hiding before leaving Sri Lanka (CB 188 to 189 at [19]);
(e)whether the applicant’s wife came to the adverse attention of the Sri Lankan authorities before their departure to India (CB 189 at [20]); and
(f)after leaving Sri Lanka, when the applicant became aware the police had searched and subsequently set fire to his home in Sri Lanka (CB 189 at [21]).
In respect of the 2017 DFAT report, the Authority was prepared to accept that, on occasion, the applicant might have used his boat to assist LTTE personnel. Further, it accepted as plausible that the applicant had provided similar assistance to the SLA upon request (CB 189 at [23]). Acknowledging the claimed events which led to his decision to leave Sti Lanka had occurred “some 25 years earlier”, the Authority found that, when considering the evidence cumulatively, the applicant was not recalling a genuine personal experience. Whilst accepting as plausible the applicant was afraid to mention his LTTE involvement at the screening interview, the Authority noted there were significant inconsistencies in the applicant’s evidence. With regard to those inconsistencies, it did not accept the applicant, or his wife were detained by the CID or SLA prior to their departure from Sri Lanka in 1990. Further, it did not accept the applicant, or his wife were beaten, tortured or otherwise mistreated by Sri Lankan authorities at that time. It followed, that it did not accept the applicant’s associated claim that the authorities had searched for him at his home in Sri Lanka, assaulted his siblings and/or destroyed his home. It concluded the applicant had fabricated these events and his adverse profile with the Sri Lankan authorities to enhance his claims for protection. It was accordingly not satisfied the applicant had an adverse profile with any arm of the Sri Lankan government, for any reason, prior to leaving Sri Lanka (CB 190 at [24]).
The Authority considered country information on the situation for Tamils in Sri Lanka. It found there was no evidence before it the applicant would experience any barriers to accessing education, employment or any government service in Sri Lanka. Whilst it accepted the applicant may be at some risk of encountering a degree of ethnic-based societal discrimination, the Authority was not satisfied this would constitute serious harm. Further, it was not satisfied the applicant held a profile that would make him of interest to Sri Lankan security forces or paramilitary groups (CB 190 to 191 at [26] at [28]).
As to the 2014 data breach, it accepted as plausible that the applicant’s details were included in the data breach. However, in circumstances where no asylum claims were published in the data breach, it was satisfied the Sri Lankan authorities would not know the applicant’s reasons for seeking protection. Accordingly, the Authority was not satisfied the applicant faced a real chance of serious harm by reason of his details being made available during the 2014 data breach, now or in the foreseeable future (CB 191 to 192 at [30]).
The Authority acknowledged that country information suggested that persons with suspected links to the LTTE may need international refugee protection, depending on the individual circumstances of their case. However, having found the applicant did not have a profile in Sri Lanka and with regard to that country information, it found the application did not face a real chance of serious harm by virtue of his Tamil ethnicity, or on account of any actual or imputed LTTE connections. Accordingly, the Authority was not satisfied the applicant faced a real risk of serious harm upon his return to Sri Lanka now or in the foreseeable future, due to his Tamil ethnicity, his former place of origin/residence, his actual or imputed LTTE profile, the assistance he provided the SLA, the data breach, or for any other reason (CB 192 at [31] to [32]).
Whilst not a claim raised by the applicant, the Authority accepted the applicant had departed Sri Lanka illegally and that he would be subject to scrutiny upon his return. It accepted the applicant might be charged with illegal departure under the Sri Lankan Immigrants and Emigrants Act and be remanded, pending bail. The Authority found that, if the applicant pleaded guilty, he would be fined and released. The Authority was not satisfied the imposition of a fine amounted to serious harm. If the applicant pleaded not guilty, the Authority was not satisfied the applicant’s detention in poor living conditions for a short period of time, nor any treatment he would receive throughout the investigation and prosecution process, amounted to serious harm. It further found that any treatment and punishment the applicant received would be the result of a law of general application, and which was non-discriminatorily applied (CB 192 to 194 at [33] to [39]).
Accordingly, the Authority was satisfied the applicant did not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia or for any other reason. Having regard to the applicant’s claims individually and cumulatively, the Authority found he did not have a well-founded fear of persecution within the meaning of s 5J. Accordingly, it found he did not meet s 36(2)(a) of the Act (CB 194 at [39] to [41]).
In relation to the complementary protection criterion, the Authority relied on its anterior findings to conclude the applicant did not face a real risk of significant harm in Sri Lanka for any of the reasons he claimed (CB 194 at [44]). It was also not satisfied that there was a real risk that the applicant would face significant harm during any investigation process or whilst being held at the airport, or as a result of any brief period of time spent in detention. Having considered the applicant’s circumstances both individually and cumulatively, the Authority found the applicant did not satisfy s 36(2)(aa) of the Act (CB 195 at [46] to [50]). Accordingly, it affirmed the decision under review (CB 195 at [51]).
Proceedings before the Court
As noted above, these proceedings were commenced by an application to show cause filed on 14 December 2017. On 25 January 2018, a Registrar of the Court made orders which included leave to the applicant to file an amended application by 22 March 2018. The matter was next to be listed for mention at a callover on 13 September 2018, on which occasion it was listed for a further callover.
The matter was next called over before a Registrar on 23 April 2024, at which both the parties appeared by telephone, and the matter was adjourned at large to be listed for a final hearing on a date to be advised. The proceedings were docketed to me on 20 September 2024, on which occasion I listed the matter for final hearing before me on 2 December 2024, and made a fresh timetable including an additional grant to the applicant to amend by 28 October 2024.
The parties were directed to file written submissions 14 and 7 days before the final hearing (respectively). The first respondent complied with that order. Other than several Notices of Address for Service, the applicant has not filed any documents throughout the proceedings since his originating application and Affidavit in support.
On 2 December 2024, the parties came before me for hearing. The first respondent was represented by a solicitor. The applicant was unrepresented but assisted by an interpreter in the Tamil language. At the commencement of that hearing, I raised a matter of concern with the first respondent’s solicitor. As can be seen from [38] below, as part of the particulars to the ground of review, the applicant said the following (error in original):
I need obtain the Immigration interview CD in order to listen and to provide further particulars of my ground and other grounds and particulars.
I asked the solicitor for the first respondent whether the applicant had been given the audio files which he sought in 2017. After making telephone enquiries of his office during a brief adjournment, the solicitor appearing for the first respondent indicated that there did not appear to be any record of this having occurred. The solicitor for the first respondent made several submissions throughout the hearing to the effect that this was because the applicant had not expressly asked for those files. I reject that assertion. Having regard to the fact that the applicant is not represented, it is difficult to imagine how he could have made his request any clearer than he did by including it in his grounds of review. Further, the applicant attended an in-person first Court date in Sydney on 25 January 2018 at which, he completed a ‘first court date information form’ which included as part of the template, an additional offer to applicants for the first respondent to provide audio files. As a model litigant it was incumbent upon the first respondent to be practical in his interpretation of the particulars to ground 1 and to ensure that those files were provided in response to a sufficiently clear request. By reason of the failure to do so, I adjourned the final hearing in circumstances where I was not satisfied that the matter was able to conveniently proceed and made the following orders:
1.The applicant must file a Notice of Address for Service by 4:00pm on 2 December 2024.
2.Pursuant to r 1.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the need to serve the Notice of Address for Service referred to in order 1 above is dispensed with.
3.The matter is adjourned for final hearing before Judge Given at 2:15pm on 31 January 2025, in person in Court 13.1 Level 13, 80 William Street, Woolloomooloo, 2011.
4.The first respondent must provide to the applicant all audio files relevant to the current review, by 5:00pm on 9 December 2024.
5.The applicant has leave to file and serve the following documents by 4:00pm on 6 January 2025:
a. an amended application giving complete particulars of each ground of review relied upon; and
b. any Affidavit evidence to be relied upon.
6.The applicant must file and serve a written outline of submissions and list of authorities by 4:00pm on 6 January 2025, and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.
7.The first respondent must file and serve any additional Affidavit evidence containing additional evidence to be relied upon by 4:00pm on 24 January 2025.
8.The applicant must file and serve a written outline of submissions and list of authorities by 4:00pm on 24 January 2025, and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.
9.At least 2 days before the final hearing, the first respondent must file and serve an Affidavit pursuant to rule 6.05 of the Rules which evidences:
a.compliance with order 2 above; and
b.service of any other sealed documents filed in the proceedings for the first respondent since the date of these order
10.The question of costs of the following items be reserved:
a.the adjournment referred to in order 3 above; and
b.preparation of the evidence required by order 9 above.
11.Liberty to apply on 2 days’ notice.
From the Affidavit of Service of Matthew Burnham (First Burnham Affidavit) which was read at the second hearing, I am now satisfied that the Minister's solicitors did (ultimately) give the applicant access to the audio files that he requested, and that the applicant accessed them on 10 December 2024.
The matter was next listed before me for hearing on 31 January 2025, but was rescheduled to today. Despite having had access to the audio files since December 2024, the applicant did not provide further evidence or submissions to the Court prior.
The applicant has again appeared before the Court today, unrepresented but with the assistance of an interpreter in the Tamil language. The First Burnham Affidavit was read without objection. The Court Book was tendered and marked as Exhibit “1R”. At the time that the Court Book was tendered, the solicitor for the Minister also sought to read and rely upon an Affidavit (Second Burnham Affidavit) deposed by him today, which has the effect of supplementing the Court Book with an additional, contextual, document which should be interleaved between pages 11 and 12 of the Court Book. The Second Burnham Affidavit was also read without objection. I will make an order to the effect that the first respondent must file and serve a copy of that Affidavit by 10:00am on 27 February 2025.
The applicant sought to tender two bundles of documents. The first bundle was sent by email on his behalf to the Court on 24 October 2024 (first bundle).
The Court explained to the applicant that it was not deciding the truth or otherwise of the applicant’s claims. The Court explained that its jurisdiction is only to review the decision of the Authority to ensure if it was made according to law, or whether it is affected by jurisdictional error. It was explained to the applicant that the Court can ordinarily only consider the documents that the Authority had before it. Documents that were never given to the Authority, and documents that have been created after the decision of the Authority are not relevant to the aforementioned task of judicial review.
The first bundle is comprised of the following:
(a)two letters which have been written to the Minister, one from the Tamil Civic Centre in Lidcombe and one from the Tamil Refugee Council. The Tamil Civic Centre letter is dated 22 October 2024, and it attests to the fact that the applicant has attended yearly events organised by them from 2017 until 2023. The letter from the Tamil Refugee Council which is dated 4 October 2024 also seeks to set out knowledge of the applicant’s political and related activities in Australia. Neither of these letters is, in my view, relevant to today’s case, because both of those letters have been written in the last six months and were clearly therefore, not letters that were before the Authority. Further, the activities that the applicant has undertaken since arriving in Australia which post-date the Authority’s decision are also not relevant to my task, because, as was reiterated several times, the Court does not assess the truth of claims for itself. For all of those reasons, the letters are not relevant;
(b)a photograph of a NSW identity card and a card from the Department of Immigration. The relevance of those documents to these proceedings is not apparent to me, but in any event, in the absence of any question about the applicant’s identity today, I reject those. To the extent that there are other documents which are pictures of identity cards from Sri Lanka and from India, these were either before the Authority, or to the extent that they were not, are not relevant; and
(c)an English translation of a letter which is undated, but appears to be a different translation of the June 2017 letter at CB 179. There is an English translation of the June 2017 letter at CB 178, being the version submitted to the Authority and translated by a NAATI-accredited interpreter. To the extent that a different version is now sought to be advanced to the Court, I reject its tender, because the Court will be having regard to the version of the June 2017 letter that was given to the Authority, and I will hear from the applicant what he wishes to say about that document and about [6] of the Authority’s decision, which is specifically raised in his originating application, in due course.
Accordingly, the tender of the first bundle is rejected in its entirety.
A second bundle of documents was emailed to the first respondent’s solicitors on 21 January 2025 (second bundle). Despite the explanations given by the Court in rejecting the first bundle, the applicant pressed to tender the second bundle also. The second bundle is comprised of the following:
(a)an English translation of a letter from the applicant’s wife dated 19 January 2025. This letter appears to go to the substance of the applicant’s claims. It is therefore not relevant because it was not, and could not have been, before the Authority;
(b)scans of a number of identity cards, some of which pre-date the Authority’s decision, but if they were before the Authority, would be in the Court Book;
(c)what appears to be a passbook for a bank account in India which records the account has having been opened on 19 May 2015. However, the date of issue of the passbook is 22 April 2022. Aside from the fact that I can see no relevance to the document itself, it post-dates the Authority’s decision;
(d)a number of photographs of medical certificates and discharge reports relating to what appears to have been a hand injury the applicant suffered in or around 2023. While there are some references in those medical documents to the applicant suffering from depression and needing ongoing psychological treatment, in the absence of any specific submission from him, I am not satisfied that this is relevant to any matter before me and no application has been made. If the applicant suffered a hand injury in 2023 there is nothing before the Court to suggest that he is not capable of participating in today’s hearing, some two years later, by virtue of it;
(e)a letter which appears to be a reference letter in respect of the applicant’s wife dated 15 January 2025. That was also obviously not before the Authority and relates to the applicant’s wife. It does not appear to be relevant to the review; and
(f)a two-page document, the first page of which is written in Tamil and the second page of which appears to be an English translation in handwriting. From the translation, it appears to go the merits of the applicant’s claims. To that extent, and as explained to the applicant several times, it is not relevant to the Court’s task in this judicial review. To the extent that the written submission also makes reference to the applicant suffering from anxiety and mental anguish, that he has difficulty sleeping and that amnesia has also started, again absent any proper application to the court based on that suggested malady, it is also not a document relevant to the task at hand.
Accordingly, tender of the second bundle was also rejected in its entirety.
Grounds of Review
By reference to the originating application, the ground of review is as follows (errors in original):
1.The IAA has not complied with s.473DD of the Migration Act 1958
Particulars
Please refer to the Paragraph 6 of the IAA’s reasoning in respect of the letter from my wife.
It is personal credible information and I compiled withs.473DD(a)(b)(ii)
I need obtain the Immigration interview CD in order to listen and to provide further particulars of my ground and other grounds and particulars.
When asked to speak to the ground, the applicant said that his wife is still living in India, and because of the June 2017 letter, the Authority rejected the applicant's credibility and his claims.
The applicant says that the translation of the letter June 2017 given to the Authority was different to the text of the original and that this caused:[1]
a mess, and that’s why, that’s the main reason why my application was rejected, and I was about to get a lawyer for an assistance, and they advised me that it has been gone through, so I need to wait until a decision has been taken in the courts.
[1] Transcript dated 16 February 2025 at T13.14 to 17
As will be apprehended from the applicant's grounds of review, he takes issue with the Authority's treatment of the June 2017 letter from his wife, the Tamil version of which can be found at CB 179 with an English interpretation as submitted to the Authority at CB 178.
The English translation of the June 2017 letter is stamped with the details of a particular NAATI accredited interpreter, who also appears to have assisted the applicant throughout the visa process by reference to documents in the Court Book (see for example CB 51, 107 and 108).
The difficulty for the applicant is that upon reviewing the Tamil version of the June 2017 letter at CB 179, he ultimately accepted, that the translation of it is not different than the content of the letter in Tamil. The applicant acknowledged (with the benefit of the assistance of the interpreter) the letter on CB 179 does state that his wife and children had been living in Sri Lanka. Whether that is factually in error is not for this Court to determine.
I make the observation that the Tamil interpreter in Court today assisted the applicant because, despite what appears at the top of CB 55, namely that the applicant speaks, reads and writes Tamil, the applicant informed the Court that he has limited Tamil reading abilities. It is therefore perhaps unsurprising that the applicant may not have necessarily discerned that the letter submitted to the Authority in Tamil, which was apparently written by his wife, included a statement which he now says is incorrect, and was certainly inconsistent with statements he made to the delegate.
While arguably there still would have been no error on the part of the Authority even if there had been an error in the translation between the document at CB 179 and 178, on any view of it, the applicant accepts that the factual error is in both documents. As such, I can see no error in the Authority's findings at [6], which were clearly open to it on the material before it.
The applicant next said to the Court that he was “not lying”, but the Authority did not trust him.[2] Firstly, the findings at [6] do not go quite so far and are not in such stringent terms. However, the findings that were made there were certainly open to the Authority.
[2] Transcript dated 26 February 2025 at T15.33and T18.02
The applicant next said he had been unsure what to submit to the Authority. However, the applicant was assisted by a solicitor and barrister in his dealings with the Authority, and even accepting the caveat of that representation as is described by the lawyer at CB 136, he was in fact assisted throughout that stage, it was for the applicant to satisfy himself that the documents being submitted to the Authority were accurate.
There certainly does not seem to be any desire on the part of the applicant to have deliberately misled the Authority. The source of the error is obvious and probably regrettable for the applicant. However, it does seem reasonably patent that there is no mistake on the part of the Authority in the findings that it made, and that the conclusions at [6] were open to it.
As the first respondent correctly submits, there are limited circumstances in which the Authority can consider “new information”. The procedural duty imposed on the Authority by s 473DD is well established. To determine whether exceptional circumstances exist to justify its consideration of new information for the purposes of s 473DD(a) of the Act, the Authority must first consider whether either or both of the criterion in ss 473DD(b)(i) and (ii) are met. The Authority is then to take its assessment of s 473DD(b) into account when making a determination against s 473DD(a). If neither subsection of s 473DD(b) is met, the Authority is not required to conduct a further assessment of the new information against s 473DD(a): see AUS17 v Minister for Immigration and Border Protection and Anor (2020) 269 CLR 494 at [11] per Kiefel CJ, Gageler (as his Honour then was), Keane and Gordon JJ.
I agree with the characterisation contended for by the first respondent that, while the Authority did not expressly refer to s 473DD, it plainly applied the section in relation to the June 2017 letter at [6] of its reasons for decision (CB 185). I accept the first respondent’s submissions that by substantively determining that there were not exceptional circumstances to justify its consideration of the June 2017 letter, the Authority substantively complied with its obligations. In particular, the Authority identified that the June 2017 letter was not information which was before the delegate at the time of its decision and considering (as required by s 473DD(b)(i)), whether that letter/its contents could have been provided to the delegate before it made its decision. As noted above, the letter was undated. However, the content of the letter as submitted to the Authority sought to give a version of events about the applicant’s life in Sri Lanka and certain events which he says resulted in he and his family fleeing to India. In those circumstances, it was open to the Authority to conclude that the information in the June 2017 letter pre-dated the delegate’s decision.
I also accept the first respondent’s submissions that the Authority also had substantive regard to the s 473DD(b)(ii) of the Act which required that the letter be/contain “credible personal information”. Again, the onus was on the applicant to satisfy the Authority. I agree that it was open to the Authority to conclude the June 2017 letter did not satisfy s 473DD(b)(ii). Again, while the Authority made no express finding that the June 2017 letter was not credible personal information it did set out in its reasons that some of the information in the letter contradicted the applicant’s evidence to the delegate (as addressed above at [41] to [48]). However, the Authority was not satisfied that the June 2017 letter contained information which was not previously known. Amongst other things, in the June 2017 letter, the applicant’s wife accounted for her husband’s job as a fisherman, his ownership of a boat, his assistance to the LTTE, his integration by the army, the bombing of his boat, and their decision to flee Sri Lanka (CB 178). I accept the first respondent’s submissions that, as a matter of logic, the Authority can be taken to not be satisfied that the June 2017 letter was credible personal information, which was not previously known, or had it been known, information which would have affected the consideration of the applicant’s claims (CB 185 at [6]). This finding was reasonably open to the Authority on the evidence before it.
Lastly, the Authority did expressly find that exceptional circumstances did not exist to warrant consideration of the June 2017 letter.
Having concluded, in substance, that the information did not satisfy s 473DD(b)(i) or (ii), I accept based on AUS17 (supra) that the Authority was not required to consider the information pursuant to s 473DD(a) of the Act.
CONCLUSION
Overall, I am not satisfied that there is any error as alleged by the applicant's ground of review or at all. Absent jurisdictional error, the decision is a privative clause decision, and the application must be dismissed.
COSTS
Consequent upon my dismissal of the application, the solicitor for the first respondent seeks an order that the applicant pay the first respondent’s costs fixed in the current scale amount. That is said to be an amount which reflects the Minister's party/party costs excluding the attendance at the final hearing which was adjourned on 2 December 2024 and subsequent steps taken to prepare an Affidavit attesting to compliance with the Court's orders that were made on that occasion in respect of service of audio files.
That exclusion is properly made for reasons which will have been addressed above at [27] to [31]. However, in the absence of evidence demonstrating how it is that that amount has been reached and calculated, the Court cannot be satisfied that the exclusion is properly represented in the amount sought by the Minister. When asked to address whether costs should follow the event and, if so, on what terms, the applicant made submissions about his impecuniosity.
I discussed with the applicant that he would be sent correspondence and could discuss with the Department a reduction, time to pay and/or instalment payments. I am satisfied that costs should follow the event, but what I propose to do on this occasion is to exclude from the costs order certain events and make the order on the basis of agreement or (failing that) taxation, to ensure that the excluded amounts are properly accounted for.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 March 2025
0
1
1