FMQ17 v Minister for Home Affairs

[2019] FCCA 1329

FEDERAL CIRCUIT COURT OF AUSTRALIA

FMQ17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1329

Catchwords:

MIGRATION – Judicial review of decision by Immigration Assessment Authority affirming refusal of protection visa application – unauthorised maritime arrival – applicant born and lived in refugee camps for substantial part of his life – applicant claims he is suspected of being a member of the Liberation Tigers of Tamil Eelam – applicant claimed if he returns to Sri Lanka he would be harmed or killed by Sri Lankan authorities or members of the Karuna Group – whether the Authority was required to invite the applicant for an interview – no jurisdictional error shown – procedural fairness – natural justice – application dismissed – Ministerial intervention.

Legislation:

Migration Act 1958 (Cth), ss 5, 7AA 36(2), 46A(2), 65, 348, 414, 417, 425, 473BA 473CB, 473CA, 473CC, 473D, 473DA, 473DB, 473DC, 473DD, 473DE 473GA, 473GB, 473J

Cases cited:

AYY17 v MIPB [2018] FCAFC 89

BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44
BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114, [41].

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

DBE 17 v Minister for Immigration and Border Protection [2017] FCA 942

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222

Minister for Immigration and Border Protection v AMA16 (2017) FCR 534

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 798

Applicant: FMQ17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2749 of 2017

Judgment of: Judge A Kelly

Hearing date: 15 May 2019

Date of Last Submission: 15 May 2019

Delivered at: Melbourne

Delivered on: 23 May 2019

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr Hosking

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.

2. The application filed on 15 December 2017 be dismissed.

3. The applicant pay the costs of the first respondent fixed at $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2749 of 2017

FMQ17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 15 December 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 7 December 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).

2. Although I have concluded that the application must be dismissed, I am persuaded that the applicant is a person whose circumstances warrant an application for Ministerial intervention.[1]  The circumstances in which he has lived spoke loudly of the ordeals which he had endured.  Before me the applicant presented as an impressive and polite young man who has made every effort to persuade administrative decision-makers that his circumstances warrant the grant of his visa application.  Aside from these decisions, it is difficult to ignore that his application is not without merit.    

   [1]             Act, s 417.

Background

1. The applicant, a male Sri Lankan citizen aged 27 years of Tamil ethnicity, first came to Australia on 18 October 2012 as an unauthorised maritime arrival.  He was born in Thanjavur in the State of Tamil Nadu, India, and is of the Hindu faith.  Soon after he was born, the applicant spent some time in a refugee camp in Kottapattu, Tamil Nadu, before his family moved to Anpuvalipuram, Trincomalee, Sri Lanka.  They lived there from June 2005 until September 2006.  The applicant returned to the Kottapattu Camp for a short period, before moving back to Anpuvalipuram until he departed irregularly for Australia in 2012.

2. On 10 December 2015, the Department invited the applicant to apply for a Protection visa. 

3. In a Statutory Declaration attached to his application, the applicant deposed that he fled Sri Lanka because he was “having problems with the authorities and/or the Karuna Group”.  The applicant claimed that on 10 July 2012, three people had come to his home, blindfolded him, and took him into a white van, whereupon he was interrogated as to why he had gone to India and whether his father was a member of the Liberation Tigers of Tamil Eelam (LTTE).  The applicant claimed that he had been released after approximately 5 hours, but said that he did not lodge a complaint with local police until 15 July 2012.  The applicant believed that if he fled Trincomalee, the Karuna Group could locate him through their intelligence agencies and cause him harm.  The applicant also alleged that on 22 June 2015, after he had arrived in Australia, three people carrying weapons had entered his family’s home in Trincomalee and threatened his father.  The applicant was then aged 22 years.

4. The applicant declared that on 28 June 2015, his family’s home had been damaged by unidentified people.  Shortly afterwards, the applicant’s mother and siblings had gone to Jaffna and his father fled to France.  He stated that his mother and siblings have since returned to Trincomalee, doing so in order that his siblings may study.  The applicant claimed he feared that if he was forced to return to Sri Lanka, he would be killed by the authorities or the Karuna Group. 

5. On 13 October 2016, the applicant made an application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.[2]

   [2]             After the Minister exercised his power under s 46A(2) of the Act.

6. On 16 March 2017, the applicant attended an interview with the delegate where he provided further documents including his mother’s exit permit from Sri Lanka and a refugee identity card. 

Delegate’s decision

1. On 8 June 2017, a delegate of the Minister found that the applicant did not meet the criteria in sub-ss 36(2)(a) or 36(2)(aa) of the Act, and accordingly, made a decision to refuse to grant the visa.  The delegate was not satisfied that the applicant would be imputed to have an LTTE or anti-government profile due to his ethnicity, religion, his failed asylum claims and his means of departure from Sri Lanka. 

2. The delegate accepted that the applicant was a Sri Lankan citizen. The delegate  also accepted that the applicant’s father had been detained and subjected to a random beating by the Sri Lankan authorities but found that he had not been accused of any specific crime or of having involvement with the LTTE and that he had been released on the same date that he had been detained. The delegate did not accept that the applicant’s father had been threatened by unidentified government agents as had been claimed.

3. The delegate also accepted that the applicant had been subject to some kind of interaction with Sri Lankan authorities in July 2012, but found that he had not been accused of anything as might warrant him assuming a particular profile with the authorities thereafter.  The delegate did not accept that the applicant had a pro-LTTE or anti- government profile or that the authorities had since tried to locate him, or that there had been attacks on his family since he had left Sri Lanka. 

4. The delegate considered and rejected the other bases on which the applicant claimed to fear harm and found that the applicant was not a person to whom Australia owed protection obligations, or that he was otherwise entitled to complementary protection under the Act.

Consideration by the Authority

1. Having regard to the date of his arrival in Australia and his status as an unauthorised maritime arrival, the applicant was deemed to be a fast track applicant,[3] and was therefore subject to the merits review framework and procedure set out in Part 7AA of the Act.

   [3] Act, s 5(1).

2. By letter dated 13 June 2017, the Authority notified the applicant that the delegate’s decision had been referred to it for review.

3. The applicant was provided a Practice Direction indicating the manner in which the Authority would conduct the review and the steps which the applicant might take in the course of that review, including by making submissions and advising that he should do so within 21 days. 

4. 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, and 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 relied upon.  The Practice Direction stated that it would only consider new information or conduct an interview with the applicant in very limited circumstances.

5. On 10 July 2017, the applicant requested an extension of time to provide written submissions to the Authority.  On 11 July 2017, the Authority refused the applicant’s request for additional time to provide submissions.  In doing so, the Authority noted that it may consider any submission that was made. 

6. On 6 October 2017, the applicant provided the Authority with brief submissions attaching a copy of his father’s French identity card. 

7. On 7 December 2017, the Authority affirmed the decision of the delegate to refuse the applicant a Protection visa, providing a statement of its reasons for doing so (Reasons). 

8. In affirming the delegate’s decision, the Authority:

   a)declined to consider the identity card of the applicants father: [3];

   b)identified and summarised the applicant’s claims to protection on the basis that he was of Tamil ethnicity and that he had an imputed pro-LTTE political opinion: [4];

   c)considered the applicant’s claims to hold a well-founded fear of persecution and to face a risk of significant harm;

   d)noted that since arriving in Australia, the applicant had made a number of claims, including that his paternal grandmother’s sister had been raped and killed and that this had been the catalyst for his family’s departure to India: [7]

   e)accepted that the applicant was a Sri Lankan citizen: [8];

   f)examined the applicant’s claim to fear harm by reason of his being:

   i)a Tamil and imputed with membership of the LTTE: [10]-[33];

   ii)a failed asylum seeker: [34]-[39];

   g)examined the applicant’s claim to fear a risk of significant harm and to being entitled to complementary protection: [40]-[45];

9. In addition, the Authority considered that the material before it gave rise to further claims to protection on the basis that the applicant would return to Sri Lanka as a failed asylum seeker, and as a person who had departed Sri Lanka illegally.  The Reasons confirm that the Authority paid regard to the applicant’s submissions but found that the applicant did not make any arguments as to why the delegate’s decision was incorrect.

10. The Authority considered that the document which the applicant claimed to be a copy of his father’s French identity card had not been before the delegate and so was new information within the meaning of s 473DC(1) of the Act.  The Authority found that, pursuant to s 473DD of the Act, it was prevented from considering the new information, because it was not satisfied that:

    a)there were exceptional circumstances for considering the new information; or

    b)the information could not have been provided to the delegate; or

    c)the information was not previously known and that, had it been known, the information may have affected the consideration of the applicant’s claims.

11. Concerning the question of imputed membership of the LTTE, the Authority accepted some parts of the applicant’s claims including that: (a) the applicant was a Sri Lankan citizen (although born in India); (b) the applicant’s family had moved to Sri Lanka in June 2005; (c) between June 2005 and September 2006 the applicant’s father had been detained, mistreated by the Sri Lankan army and suffered a broken leg; (d) in September 2006, the applicant’s family had returned to India and in March 2012, they again returned to Sri Lanka: [9]-[13]. It also accepted that in July 2012, after returning from India, the applicant was detained and questioned by Sri Lankan authorities: [15].

12. The Authority considered the applicant’s claim that, after their return from India in 2012, three persons had attended the family home and noted that the applicant had variously identified those persons as being members of the Karuna Group or the Sri Lankan authorities from either the Police Criminal Investigation Division or Army Intelligence: [13]. The Authority found that the applicant had not been physically harmed during this event and accepted that he had reported this matter to the police: [14]. It also accepted that the applicant had been questioned by the authorities in July 2012 but did not accept that he or his father had been of interest to the Karuna Group: [15]. It rejected the applicant’s brief claim that his uncle had been detained or mistreated: [16].

13. The Authority considered the applicant’s claims to hold fear arising from two incidents which he said had occurred in 2015 and found such fear to be incongruent with his family having been willing and able to make complaints to the authorities in relation to those matters: [17]-[23]. It did not accept the applicant’s claims that two men burst into his family home in July 2015, and threatened his father with guns or that the applicant’s family home was ransacked in June 2015: [17], [24]-[28]. Nor did it accept that the applicant or his father were suspected of having an ongoing relationship with the LTTE in 2006 or after 2012: [27]-[28].

14. The Authority accepted that the Sri Lankan security forces had acted in a parochial manner in support of the majority Sinhalese Sri Lankan government and held suspicion of persons of Tamil ethnicity. However, the Authority found that the applicant had been released and not charged after having been detained in 2012: [25]-[27].

15. In all of the circumstances, the Authority was not satisfied that the applicant would be imputed with being a member of the LTTE and that country information supported a conclusion that only a small number of persons, being persons with a high profile, were held by the Sri Lankan government on this basis. It found that the applicant did not have a high profile such as to support a conclusion that he would be of interest to the Sri Lankan authorities, including that his family had continued to live in Sri Lanka without encountering difficulty and that those authorities had not shown any interest in him since 2012: [26]-[30]. For similar reasons, the Authority did not accept that the applicant faced a risk of harm by reason of his Tamil ethnicity: [31]-[33].

16. Upon its consideration of country information, the Authority did not accept that the applicant faced a risk of harm by reason of being a failed asylum seeker or for having departed Sri Lanka illegally: [34]-[39].

17. The claim for complementary protection was also rejected: [41]-[45].

18. Based on its findings, the Authority found that the applicant did not meet the criteria in sub-ss 36(2)(a) or 36(2)(aa) of the Act, and therefore affirmed the delegate’s decision: [46].

Procedural history

1. On 15 December 2017, the applicant filed an application for judicial review of the Authority’s decision.

2. An affidavit affirmed by the applicant on 15 December 2017, exhibited a copy of the Reasons but adduced no further evidence in support of the application for judicial review.

3. By a Response filed on 10 January 2018, the Minister opposed the making of the orders sought in the application on the basis that the Authority’s decision was not affected by jurisdictional error.

4. On 5 September 2018, orders were made by consent listing the matter for final hearing.  Further orders were made regulating the filing by the applicant of any amended application, affidavits, written submissions and a list of authorities.  While one ground of review was that the applicant was seeking legal assistance, he seems to have received little.

Applicable principles

1. 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,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.

   [4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

2. 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.[5] 

   [5]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).

3. Sub-sections 36(2)(a) or 36(2)(aa) of the Act contain some of the criteria for the grant of a Protection visa.

4. 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 the decision is made, and the Authority must review, a fact track reviewable decision.[6]  Section 473CB identifies the material that must be provided to the Authority.

   [6]             Act, ss 473CA, 473CC.

5. 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.[7]  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.

   [7] (2009) 259 ALR 429, [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

6. The fast track scheme provided by Pt 7AA is a mechanism of limited merits review.[8]  Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority;[9] requires that the Authority should ordinarily conduct its review on the papers;[10] provides for the exceptional, and strictly circumscribed,[11] circumstances in which new information or documents may be sought or employed[12] and; authorises and prescribes the manner in which the Authority may conduct an interview of the applicant. [13] 

   [8]             BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].

   [9]             Act, s 473DA.

   [10]           Act, s 473DB.

   [11]           BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [31].

   [12]           Act, s 473DC-473DE.

   [13]           Act, s 473DF.

1. In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant.[14]  Further, the Authority may, but is under no duty to, get any documents or information that was not before the delegate.[15] 

   [14]           Act, s 473DB(1)(a)-(b).

   [15]           Act, s 473DC(1)-(2).

2. Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.

3. 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.[16]  For that reason, the Authority must consider each articulated claim and each claim that clearly arises from the review material before it.[17]

   [16]           AYY17 v MIPB [2018] FCAFC 89, [18]-[19] (Collier, McKerracher and Banks-Smith JJ).

   [17]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).

4. Under the exhaustive statement of the natural justice hearing rule provided in Pt 7AA, “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”: DBE17 v Minister for Immigration and Border Protection.[18]  In  DBE17, Barker J explained that:[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]

   [18] [2017] FCA 942.

   [19] [2017] FCA 942, [59].

   [20] [2017] FCA 942, [61].

5. 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 was 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].

6. 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.”  Reeves, Robertson and Rangiah JJ 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].

7. 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.[25] 

   [25]Act, s 473FB; Pt 7AA Practice Direction; see also, BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [34].

8. 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[26] that is provided by the Secretary, and save as to the strictly circumscribed exception afforded by s 473DD is proscribed from considering new information[27] in conducting such review.[28]

   [26]           Act, ss 473BB, 473CB(1).

   [27]           Act, ss 473BB, 473DC(1).

   [28]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].

9. 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.[29]

   [29]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].

10. Accordingly, in conducting a de novo review it is generally open to an Authority to disagree with a delegate’s evaluation of the material without providing to the appellant an opportunity to respond.

Consideration

1. The applicant was self-represented before me and assisted by an interpreter.  I have re-examined the materials comprising the court book, the Tribunal’s reasons and his application for review.

2. The applicant submitted persuasively that he has been a refugee since birth, variously living in refugee camps in India, living in Sri Lanka on two relatively brief occasions and then travelling as an irregular maritime arrival to Australia where he was invited to apply for a Safe Haven Enterprise visa. Though self- represented, the submissions which he made were put in a genuine and forthright manner.  The application contains three grounds of review, two of which contain grounds that warrant consideration.[30] 

Ground 1: failure to conduct review

[30]           Ground 3 averted to the Applicant having applied for legal assistance.

1. Ground 1 reads:

   The [Authority] constructively failed to review the [delegate’s] decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.

2. Contrary to the applicant’s first ground of review, the Authority did not constructively fail to review the delegate’s decision.

3. In considering the applicant’s claims, the Authority correctly applied the law in respect of the criteria for refugee and complementary protection.

4. The Authority’s Reasons confirm that it considered both the claims that were articulated by the applicant, together with those claims that clearly arose from the material.[31]  From my re-examination of the materials, including the applicant’s submission to the Authority, no other claims were articulated in, or arose clearly from, those materials or submissions.  I do not accept that in the circumstances of this case, the Authority was first obliged before making its decision, to raise matters which the applicant now considers to be critical to his claim.  The applicant was not denied a real opportunity to make submissions.

   [31]See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, 19 [60]-[61] (Black CJ, French and Selway JJ).

5. Ground 1 is rejected.

Ground 2: procedural fairness

1. Ground 2 reads:

   The [Authority] denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the [Authority] fell into error/denied the Applicant procedural fairness.

2. Contrary to the applicant’s second ground of review, the Authority did not deny the applicant procedural fairness.

3. First, I consider that no error arises from the way the Authority dealt with the applicant’s submission.  As noted, the Authority considered the applicant’s submission and correctly observed that it did not make any arguments about why the delegate’s decision was incorrect.  Other than attaching the document said to be a copy of his father’s French identity card, the submission generally reiterated the basis on which the applicant feared harm in Sri Lanka.

4. Secondly, no error arises from the fact that the Authority decided not to consider the document provided by the applicant with his submission. The Authority identified that document as new information, and correctly recognised that it could only consider that information if satisfied of the matters set out in s 473DD of the Act.  The Authority considered each of those matters.  There was nothing in the material before the Authority to indicate that there were any circumstances out of the ordinary course which would justify the new information being considered, even though it had not been provided to the delegate.[32]  Further, the applicant had offered no explanation for why the French identity card had not been provided earlier, why it may have affected consideration of his claims, or why the Authority should consider it.  

   [32]           See BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958, [43].

5. In those circumstances, I consider that it was plainly open to the Authority to be affirmatively not satisfied that:

   a)there were exceptional circumstances so as to justify consideration of the new information; or

   b)the information could not have been provided to the delegate; or

   c)the information was not previously known and that, had it been known, the information may have affected the consideration of the applicant’s claims.

6. Thirdly, no error arises from the fact that the Authority did not invite the applicant to comment on the information on which it relied. The Authority was only obliged to give the applicant particulars of certain new information which it had considered, or would consider.[33] However, in this case, the Authority did not rely on any new information in conducting its review and accordingly, any obligation to give the applicant an opportunity such information was not engaged.  Further, s 473DE(1) had no application to the submission received by the Authority.  Such new information as was provided by that submission had been given to the Authority by the applicant.[34]

   [33]           Act, ss 473DA and 473DE.

   [34]        Act, s 473DE(3)(c); Regulations 4.41.

7. Fourthly, no error arises from the Authority’s decision not to invite the applicant to an interview. The Authority was required to conduct a review on the papers, without interviewing the applicant.[35]  While the Authority did have a power to invite the applicant to attend an interview,[36] it did not have a duty to do so, even if the applicant had specifically requested such an interview (which the applicant did not).[37] Absent exceptional circumstances, no obligation to interview arose.

   [35]           Act, s 473DB(1).

   [36]           Act, s 473DC(3).

   [37]           Act, s 473DC(2).

8. The purpose of an interview was to enable the Authority to get new information.[38]  Nothing in the applicant’s written submission indicated that he had any new information to give to the Authority, other than the document which he claimed was a copy of his father’s French identity card.  It was not unreasonable for the Authority not to invite the applicant to an interview.

   [38]           As defined in s 473DC(1) of the Act.

9. From my review of the matter there is nothing to suggest that, within the scope of Part 7AA, the applicant was not afforded an adequate opportunity to advance any evidence or submissions that he may have wished to put in support of his claims, or that the Authority had disabled itself in some way from considering an issue.[39]  Contrary to the applicant’s submissions, the Authority was not required to obtain translations of documents on which the applicant sought to rely.[40]  Nor was there anything to suggest that the Authority otherwise acted unreasonably in relation to its power under s  473DC of the Act.

   [39]See DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222, [71]; cfMinister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475.

   [40]Procedures Advice Manual (3^rd Ed) (PAM3), [P GenGA1-18.5].

10. Ground 2 is rejected.

Other matters

1. Before me the applicant alluded to problems which he said were encountered before the delegate.  In short, he claimed that the recording equipment had ceased to function and, when it stopped, the delegate simply proceeded to complete the interview.  He submitted, in effect, that the manner in which the interview had been conducted made plain that the delegate had already made a decision on the application.  There was no evidence of this having been the subject of complaint or of any such submission having been made to the Authority and for that reason it was not put on notice of this issue.  Nor was there any evidence of this issue raised by the affidavit filed in this court with the application.  The court has no jurisdiction to examine the delegate’s decision and the Authorities’ decision is not subject to criticism on this account.

2. The applicant also complained as to the manner in which the Reasons addressed the findings at [22]-[24], where the Authority concluded that on its review of the material before it, it was not satisfied that the events of 2015 had occurred.  The gravamen of the applicant’s complaint was that he would have been in a position to address these issues further but was denied an opportunity to do so as the Authority had not communicated its views to him before reaching its decision. 

3. As to this issue, I accept the Minister’s submissions that the applicant was on notice of these issues from the matters addressed by the delegate’s decision.  Section 473DA provides that the matters in Div 3 of Part 7AA, together with ss 473GA and 473GB (where applicable), are an exhaustive statement of the natural justice hearing rule in the review of a fast track decision by the Authority.   If the applicant’s complaints are to be understood as his emphatic disagreement with the Authority’s decision this would amount to no more than a submission that the court should itself undertake a merits review of the matter.  That is a course which is not open to this court to adopt as it has no jurisdiction to do so. 

4. Further, if the applicant’s complaints are to be understood as meaning that the decision was legally unreasonable, It is not open to conclude that that was so.  Upon the facts as found by the Authority, the highest that the material would allow is a conclusion that reasonable minds might have differed about the conclusions to be drawn from that material.  Such a conclusion would not suffice to establish that the decision was legally unreasonable.[41]

   [41]CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, [59]-[60] (The Court).

5. The applicant’s complaints in relation to this issue cannot support a conclusion of jurisdictional error.

Conclusion

1. For the foregoing reasons, the application must be dismissed. 

2. Despite that conclusion, I reiterate the observation in [2] above that the applicant might properly seek Ministerial intervention.  Viewed objectively, apart from a period of two years residence in Sri Lanka[42], the applicant has lived in refugee camps for a substantial part of his life.

   [42]           And his time in Australia.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.

Date: 23 May 2019