FPT17 v Minister for Home Affairs and Anor (No.2)
[2018] FCCA 2165
•10 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FPT17 v MINISTER FOR HOME AFFAIRS & ANOR (No.2) | [2018] FCCA 2165 |
| Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (IAA) affirming decision of delegate not to grant applicant temporary protection visa – whether applicant notified of delegate’s decision – whether applicant’s not being notified of delegate’s decision affected the validity of the IAA’s decision – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(h) Migration Act 1958 (Cth), ss.5H, 36(2)(a), 36(2)(aa), 66, 473BB, 473CA, 473CB, 473CC, 473DB, 473DC, 494B Migration Regulations 1994 (Cth), reg.2.16(3) |
| Cases cited: BJH17 v Minister for Immigration and Border Protection [2018] FCA 891 COA16 v Minister for Immigration and Border Protection [2018] FCA 475 Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 |
| Applicant: | FPT17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3960 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 11 July 2018 |
| Date of Last Submission: | 11 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2018 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the First Respondent: | HWL Ebsworth |
ORDERS
Pursuant to r.16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth) order 1 of the orders made on 7 June 2017 be amended by substituting “18 July 2016” for “16 July 2016”.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3960 of 2017
| FPT17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Sri Lanka, applies for judicial review of a decision of the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (subclass 785) visa (TPV).
Grounds
The applicant, who is not legally represented, relies on three grounds or sets of grounds. The first set are those set out in the application. These in part suggest the applicant claims the application for a TPV the IAA considered was made without his knowledge.
In the course of the hearing before me, which took place over four separate occasions, it became clear the applicant was not claiming that the application for the TPV was made without his knowledge.[1] The applicant accepted both in what he said from the bar table in answers to questions from me, and in evidence he gave in cross-examination, that he was aware an application for a TPV had been made on his behalf, that he had signed the form of application for a TPV, and that he attended an interview before the delegate where he was asked about his claims for a TPV. What the applicant claims is that he did not present to the delegate all the information he wanted to provide in support of his application for a TPV. This, then, constitutes the second ground on which the applicant relies.
[1] Three of the four occasions related to the hearing of an application for an order under s.477(2) of the Migration Act 1958 (Cth) that resulted in my making an order under s.477(2) on 7 June 2018 - see FPT17 v Minister for Home Affairs & Anor [2018] FCCA 1662. The substantive matter was heard on 11 July 2018. I should record here that with the consent of the applicant and counsel for the Minister, I treated the evidence that was given and tendered at the hearing of the application for an order under s.477(2) of the Act as evidence in the substantive hearing that occurred on 11 July 2018.
The third ground on which the applicant relies is that he was not notified of the delegate’s decision and, for that reason, he was denied the opportunity to present information to the IAA he would otherwise have presented in support of his application for a TPV. The determination of this ground depends on my making a number of findings. The need to make findings arises from the delegate’s having purported to notify the applicant by prepaid post of her decision not to grant the applicant a TPV, prepaid post being one of the permitted means under s.494B of the Migration Act 1958 (Cth) (Act) by which the Minister may notify a visa applicant of the Minister’s refusal to grant a visa. The question that arises is whether the address to which the delegate posted her decision is an address that is either “the last address for service provided to the Minister by the recipient for the purposes of receiving documents”, or “the last residential . . . address provided to the Minister by the recipient for the purposes of receiving documents” within the meaning of s.494B(4)(c)(i) and (ii) respectively of the Act. If I find the delegate’s decision was not posted to the applicant’s last address for service provided to the Minister, or to the last residential address the applicant provided to the Minister, for the purposes of receiving documents and, therefore, the applicant was not notified of the delegate’s decision, the question arises whether the IAA’s decision is affected by any jurisdictional error.
Approach
I propose to consider the issues that arise on this application as follows:
a)First, I will set out the relevant evidence relating to the applicant’s application for a TPV, the notification or purported notification of the delegate’s decision, the applicant’s movements at around the time the delegate notified or purported to notify her decision to the applicant, and some findings of fact.
b)Second, based on the findings of fact I make, I will consider whether the address to which the delegate’s decision was posted was the last address for service the applicant provided to the Minister, or the last residential address the applicant provided to the Minister for the purpose of receiving documents.
c)Third, assuming the address to which the delegate’s decision was posted was not the last address for service the applicant provided to the Minister, or was not the last residential address the applicant provided to the Minister for the purpose of receiving documents, I consider whether the IAA’s decision is liable to be set aside for jurisdictional error.
d)Fourth, I will consider the applicant’s claim that he was denied the opportunity to submit to the delegate and to the IAA all of the information he believes should have been submitted to the delegate and the IAA.
e)Finally I will consider the grounds of application set out in the application.
Evidence and factual findings
Unless I say or the context suggests otherwise, any statement of fact I set out in this part of my reasons is to be taken to constitute my making a finding in terms of the fact I state.
Application for TPV
On 19 September 2013 the applicant signed a statutory declaration setting out his claims for protection.[2] That document was attached to the prescribed form 866B (form 866B) titled “Application for a Protection (Class XA) visa” containing information in relation to the applicant. The form 866B appears to bear the signature of the applicant;[3] and there is a declaration made by an interpreter that he or she is fluent in the English and Tamil languages, that the interpreter has “faithfully interpreted all contents of this application form into the above language [that is, the Tamil language], including the applicant’s declaration at Part B page 10, Part C page 14, and Part D page 6, as appropriate”, and that the interpreter “faithfully interpreted the applicant’s responses into English”.[4] The declaration contained in Part C of the form 866B at page 14 includes a declaration that the information the applicant has “supplied or caused to have supplied on or with Part C is complete, correct, and up-to-date in every detail”.[5] The information that was included in Part C included information provided in response to question 43 (“Why did you leave your country”), question 46 (“Who do you think may harm/mistreat you if you go back?”), and question 47 (“Why do you think this will happen to you if you go back?”).[6] In response to each of these questions there is printed the words “REFER TO STATEMENT”. That is a reference to the statutory declaration to which I have already referred. The form 866B also records that the applicant received assistance in the completion of the form, and that the person who provided that assistance was identified and described as a registered migration agent.[7]
[2] CB29-32
[3] CB24
[4] CB11
[5] CB23
[6] CB18-19
[7] CB9
The statutory declaration is divided into a number of headings, including headings that reflect questions 43, 46, and 47 of the form 866B. Under the headings of “My background” and “My family background” the statutory declaration states, among other things, that the applicant was born in 1995; that he is an ethnic Tamil of Hindu religion; and that he grew up in Jaffna. Under the heading “Why I left my home country”, the applicant claims the “army” (that is, the Sri Lankan Army (SLA)) threatened and assaulted the applicant’s father on a regular basis because the applicant believes the SLA suspected his father of assisting the LTTE (that is, the Liberation Tigers of Tamil Eelam). Under the heading “What I fear would happen if I was forced to return to Sri Lanka” the statutory declaration states the applicant is afraid he will be treated in the same way as his father or worse, and that the applicant’s mother informed the applicant the SLA questioned the applicant’s parents as to his whereabouts.
There is no evidence before me that the applicant or his representative attempted to lodge the form 866B for a Protection visa at around the time the applicant signed it in 2013. The index to the Court Book refers to a letter dated 23 May 2015 (not reproduced in the Court Book) which is said to have been sent by the Department of Immigration and Border Protection (as the Department of Home Affairs was then known) (Department) to the applicant’s representative inviting the applicant to apply for a TPV. The index also refers to a letter dated 3 July 2015 from the Department to the applicant’s representative (also not reproduced in the Court Book) notifying the applicant of an invalid application because the visa application charge was not paid. Nothing turns on whether such letters were in fact sent but, given the matters that are in evidence, there is nothing to suggest that letters to the effect described in the index were not sent to the applicant’s representative.
That is confirmed by a letter dated 10 July 2015 that a solicitor from an organisation known as “Refugee & Immigration Legal Service Inc” sent to the applicant.[8] The letter repeats the effect of a telephone conversation that had occurred in the morning of 10 July 2015, namely, that “your application for a temporary visa was refused because you did not include a $35.00 money order for” the Department. The author of the letter then stated that he “attached your application forms along with a pre-stamped envelope”, and instructed the applicant to go to the applicant’s nearest post office, ask for a money order for $35 made out in favour of the Department, and then “place all documents into the pre-stampted [sic] envelope and post it”. The applicant must have correctly followed these instructions because the Department received form 866B on 20 July 2015.[9]
[8] CB73
[9] CB1-86
By letter dated 24 July 2015 addressed to the applicant the Department acknowledged it received the applicant’s application for a TPV.[10] By letter dated 21 September 2015 the Department invited the applicant to attend an interview to discuss his application for a TPV at 9:15 am on 15 October 2015.[11] According to the decision record of the delegate the applicant attended an interview with the delegate (TPV interview) and the decision record summarised the applicant’s written claims. [12] The delegate’s decision record also records that at the TPV interview the applicant said he had also been tortured, by which he meant that he had been assaulted when his father was being interrogated in the family home and he had been hit with a gun and kicked; and that this happened regularly, approximately once or twice a month. The applicant also stated it was mental torture to see his father tortured and beaten by the Sri Lankan authorities. [13] The evidence before me reveals that the TPV interview was recorded, although the recording is not in evidence. The IAA in its decision appears to set out some of the matters recorded in that audio recording.[14]
[10] CB87-100
[11] CB101
[12] CB116, [7]
[13] CB116-117, [8]
[14] CB446, [9]
Notification of delegate’s decision
On 7 June 2016 the delegate refused to grant the applicant a TPV. There is in evidence a copy of the delegate’s decision record (Decision),[15] and a copy of a letter dated 7 June 2016 addressed to the applicant specifying an address in Auburn, New South Wales (Auburn Address) attaching the Decision.[16] The Minister relied on an affidavit made by Ms Bronwyn Mowle to prove that the delegate’s letter together with the Decision were posted to the applicant at the Auburn Address. I find on the basis of that affidavit that the delegate’s letter and Decision were despatched by prepaid post on 8 June 2016 to the Auburn Address.
[15] CB114-135
[16] CB110-113
The Auburn Address is different from the Marsden, Queensland address the applicant recorded in the form 866B,[17] and the Wooldridge, Queensland address the applicant specified in a document titled “Addendum to my application for a protection visa”.[18] There are two items of evidence that are or may be relevant to explaining why the delegate posted the delegate’s letter and the Decision to the Auburn Address. The first item is the applicant’s having sent a letter dated 6 August 2015 to “L3 – TPV Lodgements IMA Protection Support – National Department of Immigration and Border Protection” enclosing a “current passport photo and certified copy of my driver’s licence as requested”.[19] The letter was sent by registered post. The document evidencing that fact records the applicant’s name next to the words “Sender’s name”, and the Auburn Address next to the words “Address”.[20]
[17] CB13 and CB37
[18] CB81. The form 866B also provides a post office box address in West End, Queensland as the applicant’s postal address. Nothing turns on this because it has not been suggested that the Department posted anything to this post office box address.
[19] CB393-396. There is a stamp on the envelope stating the letter was received by the Department on 20 July 2015.
[20] CB396
The second item of evidence that is relevant or potentially relevant to explaining why the delegate’s letter and the Decision were posted to the Auburn Address is contained in an affidavit made by Ms Bronwyn Sedaitis. Ms Sedaitis is employed by the Department as Acting Director of the Department’s Status Resolution Support Services (SRSS) Programme Support area. According to the evidence of Ms Sedaitis, which I accept, the SRSS Programme provides support and assistance to people as they seek to resolve their immigration status, and also to those who have resolved their immigration status and are transitioning to mainstream services in the Australian community. The SRSS Programme is administered by third party organisations (SRSS Providers). Where a recipient of the SRSS Programme moves interstate, “Payment or Movement Request” forms are completed by their SRSS Provider and submitted to the Department on behalf of the recipient. That occurs through the Department’s Compliance, Case Management and Detention (CCMD) Portal.
Also according to the evidence of Ms Sedaitis, which I accept, at the time the applicant applied for a TPV he was a recipient of the SRSS Programme, and an SRSS Provider (ACS) that was located in Wooldridge, Queensland was assisting him. On or about 23 July 2015 ACS notified the Department the applicant had moved to the Auburn Address. ACS notified the Department by a “Payment or Movement Request” form that recorded the applicant’s then current address, the applicant’s proposed new address, the proposed date of movement, and the reason for the movement. On 27 July 2015 the applicant was “transferred” to another SRSS Provider, located in New South Wales (MYC).
Applicant’s movements and notifications of movements at time of delegate’s decision
The applicant’s evidence of his movements is contained in an affidavit he made on 8 May 2018, and in answers he gave under cross-examination. In his affidavit the applicant says that before May 2016 he was living in Melbourne. Before he travelled to Melbourne the applicant informed his MYC case worker of his proposed movement to Melbourne. He travelled to Melbourne from Sydney by driving his own car. On 6 May 2016 the applicant registered his car in Melbourne because he intended to live there. The applicant, however, was unable to find employment in Melbourne. A friend of the applicant called the applicant and told him he would find the applicant a job in Sydney. The applicant returned to Sydney, but he did not “change the Melbourne address”, and he did not return to the Auburn Address. The applicant told his friend in Melbourne to inform the applicant if “any letter come for me in Melbourne”. The applicant stayed in Sydney for two to three weeks until 6 June 2016, when he left Sydney for Queensland.
Under cross-examination the applicant slightly modified what he said in his affidavit. He said he was living in Sydney before May 2016, and he went to Melbourne in May 2016.[21] The applicant otherwise gave evidence that was substantially the same as what he said in his affidavit. The applicant also said that when he informed his “case manager” that he intended to travel to Melbourne, the “case manager” “gave me the number to call the immigration but whenever I called that number it came back saying the line is busy”.[22] The applicant said he understood “the case manager also belonged to the department”.[23]
[21] 29.05.2018, T49.25
[22] 29.05.2018, T53.15
[23] 29.05.2018, T53.20
The applicant’s evidence is consistent with documents annexed to the affidavit of Ms Sedaitis. That includes a document headed “Payment or Movement Request”. In a box under the words “Current Address” there is stated “Previous: [Auburn Address]”. In the box next to the words “Type of request” the words “Movement permanent” are included.[24] In the box that appears under the heading “Proposed date of movement” there is included “01/05/2016”. And in the box under the heading “Proposed new Address” an address in Melbourne is given (Melbourne Address). On the basis of this document Ms Sedaitis deposes, and I find, that on or about 6 May 2016 MYC advised the Department the applicant “had moved to an address in Melbourne”.[25]
[24] Sedaitis affidavit, [11]; annexure “BLS5”
[25] Sedaitis affidavit, [11]
The documents annexed to the affidavit of Ms Sedaitis include a copy of screenshots of entries made in the CCMD Portal, and a spread sheet Ms Sedaitis says, which I accept, contains information exported from the CCMD Portal recording the applicant’s interactions with MYC. The spread sheet records that on 6 May 2016 there was “[p]hone contact – Client calls caseworker on 05/05/16 to state that he has moved to Melbourne”; the “[c]lient has moved to Melbourne to live with friends”; and “[h]e has secured accommodation, is doing well with no major issues”.[26] The spread sheet also records that on 19 May 2016 there was “[f]ace to face contact with client”, the “[c]lient was well with no issues”, and that the “[c]aseworker and client prepared a resume”.[27]
[26] Sedaitis affidavit, [9]; annexure “BLS4”
[27] Sedaitis affidavit, [9]; annexure “BLS4”
Finally, I should refer to a screenshot of an extract from the Department’s Integrated Client Services Environment database which records the following on 24 June 2016 (24 June note):[28]
I attempted to call client but was unable to get through on his mobile phone. CCMD portal shows the client requested to move to . . . Melbourne VIC, however it is not clear if this request was approved or if the client moved. I called the client’s [MYC] worker . . . who advised the client moved to Melbourne for 1 week but then returned to the same address in Sydney ([Auburn Address]). [MYC case worker] advised that he returend [sic] to that address on 19/05/2016. She also said she had had difficulty contacting the client on his phone, but confirmed that she would ask him to contact the Department with his current details when she next spoke with him.
I note the original letter was sent via registered post and so the client may not have been home when it was delivered and may not have understood how to collect it from teh [sic] post office. I have re-sent the notification to the same address ([Auburn Address]) without a registered post sticker. I have attempted to contact the client and have contacted the MYC case worker and the Auburn address above is the last known address for the client.
[28] Sedaitis affidavit, [12]; annexure “BLS6”
Counsel for the Minister, when cross-examining the applicant, put the 24 June note to the applicant, and the applicant disagreed with the facts stated in the note.[29]
[29] 29.05.2018, T57.40-58.1
Based on this evidence I find that in early May 2016 the applicant left the Auburn Address and went to Melbourne; by around 5 May 2016 the applicant informed his case worker at MYC that he had moved to Melbourne; by 6 May 2016 MYC notified the Department the applicant had moved to the Melbourne Address to live; by 19 May 2016 the applicant returned to Sydney, but not to the Auburn Address; and that by 6 June 2016 he left Sydney for Queensland.
I am not prepared to find on the basis of what the 24 June note records that the applicant’s MYC case worker said that the applicant had informed her that he had returned to the Auburn Address by 19 May 2016. That is not so much because the applicant has given evidence that he did not return to the Auburn Address and I prefer his evidence; but rather it is because it is not clear from the 24 June note whether what the applicant’s MYC case worker stated was based on anything the applicant said to the case worker or whether it was instead based on some unwarranted assumptions or inferences. Further, had the applicant informed his MYC case worker that he returned to the Auburn Address, it is reasonable to expect that the MYC case worker would have notified the Department of that fact, given the MYC case worker had notified the Department of the applicant’s moving to the Melbourne Address. That the applicant’s MYC case worker did not notify the Department that the applicant returned to the Auburn Address in May 2016 suggests the applicant did not inform the case worker that he had returned or intended to return to the Auburn Address. Finally, although in cross-examination the 24 June note was put to the applicant, the applicant was not asked whether he had stated to his MYC case worker that he had returned to live in the Auburn Address.
Was the Auburn Address an address to which Decision could be posted?
The question that arises, then, is whether the Auburn Address was either the “last address for service” (s.494B(4)(c)(i) of the Act), or the “last residential address” (s.494B(4)(c)(ii) of the Act) the applicant “provided to the Minister . . . for the purposes of receiving documents”. That question is relevant because, when the Minister grants or refuses to grant a visa, s.66(1) of the Act requires the Minister to notify an applicant of the decision in the prescribed way. Under reg.2.16(3) of the Migration Regulations 1994 (Cth) the “Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act”. Two of the methods of notification permitted by s.494B are the despatchment of the decision by prepaid post or other prepaid means either to the “last address for service” or to the “last residential address” the applicant “provided to the Minister for the purposes of receiving documents”.
The Minister submits the Auburn Address was the “last address for service” or to the “last residential address” the applicant “provided to the Minister . . . for the purposes of receiving documents”; and the basis of that submission is the letter dated 6 August 2015 to which I have referred by which the applicant provided to the Department his current passport photo and a certified copy of his driver’s licence. The applicant, on the other hand, submits the Auburn Address was not the address to which the Decision should have been posted; he submits the Decision should have been posted to the Melbourne Address because he did not notify MYC or the Department of a new address after the Department was notified of the Melbourne Address.[30]
[30] I should record here that in addition to making oral submission at the hearing of 11 July 2018 the Minister filed written submissions. The Minister did so outside the time he was required to do so under orders I had made. The applicant, however, did not say he suffered any prejudice. In those circumstances, I have proceeded on the basis that it is open to me to read those submissions, and I have done so. In any event, counsel for the Minister made oral submissions which reflected the substance of the Minister’s written submissions.
I find that by MYC submitting to the Department on or about 6 May 2016 the “Payment or Movement Request” form, the Department was informed that the applicant had moved to an address in Melbourne, being the Melbourne Address. I also find that, at least before 24 June 2016, the Department received no other information that indicated the applicant had or may have acquired a residential address different from the Melbourne Address. I have already concluded I am not prepared to find of the basis of the conversation recorded in 24 June note that the applicant had informed his MYC case worker that he had returned to the Auburn Address. For that reason I am not prepared to find that the case worker’s having stated to an officer of the Department that the applicant returned to the Auburn Address constituted the applicant’s providing to the Department details that his residential address was the Auburn Address.
The next question is whether the applicant’s MYC case worker’s communication of the Melbourne Address to the Department constituted the applicant’s providing to the Minister an “address for service . . . for the purposes of receiving documents” (s.494B(4)(c)(i) of the Act). In my opinion the communication is to be so characterised. The only conceivable purpose of a form in the nature of the “Payment or Movement Request” form requiring the inclusion of a person’s address is to enable the person to whom the form is submitted – here, the Department – to provide a document or documents to the person at the address specified in the form. And it is reasonable to infer, and I do infer, that by the applicant communicating to his MYC case worker his intention to change address he expected that his MYC case worker would communicate that intention to the Department. That, in turn, is a basis for finding, and I do find, that by the applicant’s MYC case worker communicating the Melbourne Address to the Department the applicant provided to the Department the details of an address for service, being the Melbourne Address.
The final question in this part of my reasons is whether the applicant’s MYC case worker’s communication of the Melbourne Address to the Department amounted to the applicant’s providing to the Minister the Melbourne Address as the applicant’s “residential address . . . for the purposes of receiving documents” (s.494B(4)(c)(ii) of the Act). In my opinion that question is to be answered in the affirmative. As I have already observed, the only conceivable purpose of a form in the nature of the “Payment or Movement Request” form requiring the inclusion of a person’s address is to enable the person to whom the form is submitted – here, the Department – to provide a document or documents to the person at the person’s residential address specified in the form.
I find, therefore, that by posting the Decision to the Auburn Address, the delegate did not post the Decision to an address it was permitted to post the Decision; and, for that reason, the delegate, contrary to s.66(1) of the Act, did not notify the applicant of the Decision.
Consequence of non-notification
The first point to note is s.66(4) of the Act; it provides that a “[f]ailure to give notification of a decision does not affect the validity of the decision”. Being a valid decision, and assuming it is a “fast track reviewable decision” as that expression is defined in s.473BB of the Act, s.473CA and s.473CB of the Act applied to the Decision.[31] That means the Minister was required to refer to the IAA the Decision as soon as reasonably practicable after it was made, and at the same time, or as soon as reasonably practicable after, the Secretary of the Department (Secretary) was required give to the IAA the “review material”, being material relating to the applicant’s application for a TPV of the sort identified in s.473CB (applicant’s review material). That material was provided to the IAA and, once received by it, s.473CC of the Act required the IAA to review the Decision subject to the provisions contained in Part 7AA of the Act.
[31] There is nothing to suggest the assumption the applicant is a “fast track applicant” is incorrect. The applicant arrived in Australia at Cocos Islands (see CB40, question 42).
Under s.473DB of the Act the IAA was required to review the Decision by considering the applicant’s review material without accepting or requesting new information, and without interviewing the applicant. This obligation was subject to s.473DC of the Act. Under s.473DC(1) the IAA was permitted to obtain “new information”, being information that was not before the delegate when she made the Decision rejecting the applicant’s application for a TPV and which the IAA might have considered to be relevant; and the IAA had the power under s.473DC(3) of the Act to invite the applicant to give “new information” in writing or at an interview. It is the case that “particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion under s 473DC”.[32] But s.473DC of the Act did not impose on the IAA an unqualified duty to invite the applicant to explain and expand his claims.
[32] Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32, at [80]
What I say in the previous paragraph is consistent with the following passage from the judgment of Rares J in COA16 v Minister for Immigration and Border Protection on which counsel for the Minister relies:[33]
. . . . There is nothing in Pt 7AA that prevents an applicant for a visa putting submissions or providing whatever he or she wishes to the Authority for it to consider as new information. However, the material before me does not suggest that, in the circumstances, Pt 7AA imposed on the Authority any obligation to afford an applicant any opportunity to provide new information or put submissions to it.
To the extent that the statement by his Honour formed part of his reasons, as opposed to being an unnecessary observation, it was wrong in the circumstances, for the reasons I have given. The Authority had no obligation to provide the appellant with an opportunity to provide new information or put submissions, albeit that he exercised his freedom to provide new material, in the form of the two letters and the translation, to the Authority. It considered those letters and found that it was not able to take them into account as “new information” within the meaning of s 473DD, for the reasons that I have set out above, and those reasons appear to me to have been both open to it and correct.
[33] [2018] FCA 475. This passage was quoted with approval by Lohan J in BJH17 v Minister for Immigration and Border Protection [2018] FCA 891 at [35]
There is nothing in the material before me that could arguably suggest that, as a matter of legal reasonableness, the IAA was required to consider whether it should exercise its discretion under s.473DC of the Act. It follows that the applicant’s not having been notified of the Decision in the manner required by s.66 of the Act did not prevent the IAA from undertaking the review of the Decision it was required to undertake by s.473DB of the Act; and the applicant’s not being notified of the Decision did not give rise to any duty on the part of the IAA to consider whether as a matter of legal reasonableness it should exercise any of the discretions it had when reviewing the Decision.
The applicant’s application for judicial review, therefore, fails to the extent it relies on the applicant’s not having been notified of the Decision.
Ground based on not providing information
The applicant read an affidavit made on 16 June 2018 annexing various documents, and tendered a copy of the same affidavit but which annexed additional documents.[34] In that affidavit the applicant deposed to matters relevant only to the applicant’s claims for protection; and the documents annexed to the affidavit appear to be relevant only to the merits of the applicant’s claims for protection. The applicant deposed he did not inform the delegate of the full story because he was “scared and worried about the safety of my family”. The applicant also deposed and submitted he did not provide any additional material to the IAA because he was not notified of the Decision.
[34] I admitted the copy affidavit subject to relevance, marking it as exhibit “C”. The applicant also relied on a short statement which I marked as exhibit “A”.
That the applicant did not put before the delegate material relevant to his application for the TPV is not a matter that can possibly be relevant to whether the IAA’s decision is affected by any jurisdictional error. Further, that the applicant may have been denied an opportunity to present material to the IAA does not by itself raise an arguable ground that the IAA made any jurisdictional error. As I have already concluded, the applicant’s not having been notified of the Decision did not give rise to any duty on the part of the IAA to consider whether as a matter of legal reasonableness it should exercise any of the discretions it had when reviewing the Decision.
The application, therefore, fails to the extent it relies on the applicant’s not having provided to the delegate or to the IAA information relevant to his claims for protection.
Grounds stated in the application
I finally turn to the grounds stated in the application, which are as follows:
1.The decision relied on evidence that was incomplete as I did not go through every step of the proper application process.
2.I do not know who made the protection application on my behalf and I did not have the opportunity to present my full story as a refugee. I do not think that the documents or information the department relied on were properly completed and agreed by me.
3.I did not complete all the documents as part of an application process, so I did not have the opportunity to provide all relevant evidence.
4.I believe that the decision-maker and the IAA relied on evidence that was not submitted properly and that I did not review or agree to
5.The decision-makers incorrectly interpreted and/or applied to the facts to the applicable law
6.In the documents I have received from the IAA, the decision-makers failed to give proper weight to the danger I would face as as [sic] part of a family that had actually been persecuted
Because at least some of the grounds challenge the IAA’s decision, it will be useful if I set out the IAA’s findings, and the reasons for its findings.
IAA’s reasons
The IAA found the applicant’s father was not harmed by the SLA.[35] The IAA relied on the applicant’s being unable to provide at the TPV interview details of the incident in 2010 where he claims his father was seriously assaulted by the SLA, stating that he had not asked his father about it because his father was already worried and the applicant did not want to worry him further.[36] The IAA so concluded even though the applicant had provided a “Diagnosis Ticket” dated 6 June 2010 from Jaffna Teaching Hospital, and a letter dated 30 March 2013 from the “Jaffna diocese of the Church of South India”, both of which stated that the applicant’s father was “assaulted by unknown persons”.[37] The Tribunal relied in part on the prevalence of document fraud in Sri Lanka, and on the applicant’s evidence that the letter from the church was written after the family approached church leaders and explained to them what had happened, which, the IAA found, meant the letter was a restatement of information provided by the applicant’s family.[38]
[35] CB446, [6]
[36] CB446, [6]
[37] CB446, [6]
[38] CB446, [7]
The IAA did not accept the claim the applicant raised before the delegate that, because his family was suspected of supporting the LTTE after living in the Vanni area from 1995 to 2002, the applicant was tortured by the SLA once or twice a month.[39] The IAA relied on the applicant’s not having stated this claim in his application for a TPV, and the applicant’s giving vague and indirect answers at the TPV interview.[40]
[39] CB446, [8]
[40] CB446, [8]-[9]
In addition:
a)given its findings, and country information which it identified, the IAA was satisfied the applicant will not be considered to have any actual or perceived links to the LTTE on his return to Sri Lanka;[41]
b)relying on country information, [42] the IAA was not satisfied the applicant will face a real chance of persecution due to his race;[43] and
c)the IAA found the applicant does not face a real chance of persecution either as a failed asylum seeker who left Sri Lanka illegally or as a returnee from the West or for any other reason.[44]
[41] CB448, [14]
[42] CB448-449, [16]-[17]
[43] CB449, [18]
[44] CB449-451, [19]-[29]
Given these findings, the IAA found the applicant was not a “refugee” within the meaning of s.5H of the Act, and thus did not meet the criterion provided for by s.36(2)(a) of the Act. Relying on these findings, and on its findings of what is likely to occur to the applicant if he were to return to Sri Lanka, the IAA concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm; and, for that reason, the applicant also did not satisfy the criterion provided for by s.36(2)(aa) of the Act.
Ground 1
This ground implies there was evidence the IAA did not consider, but it does not identify that evidence. It is reasonably clear, however, that the evidence the applicant appears to claim the IAA did not consider is the evidence the applicant says he did not present to the delegate or to the IAA which he would have presented had he not been worried about the safety of his family, or had he been notified of the Decision. For reasons I have already given, the IAA made no jurisdictional error by not considering information the applicant, for whatever reason, did not give to the delegate, or information the applicant may have given to the IAA had the applicant been notified of the Decision.
Ground 1, therefore, fails.
Ground 2
Ground 2 suggests the applicant was unaware an application for a TPV had been made by or on his behalf. In light of what the applicant said to me at the hearing, and the evidence he gave at the hearing, this ground may be taken to claim that the applicant was unaware of the Decision, and of the Decision’s having been referred to the IAA, and his not having provided information to the delegate or to the IAA. Ground 2, therefore, repeats the substance of ground 1 and fails for the reasons I have held ground 1 fails.
Ground 3
This ground overlaps with grounds 1 and 2, but it may also be claiming more. As I noted earlier in these reasons, the applicant appears to have completed the form 866B for a Protection visa in 2013, but he did not submit it until 2015. It may be that the ground claims the applicant had more information to include that he failed to include with his application. That the applicant may have had information which he did not provide to the delegate or to the IAA does not give rise to any jurisdictional error by the IAA. Ground 3 fails for this reason, and for the reasons I have concluded grounds 1 and 2 fail.
Ground 4
It is not clear what this ground is intended to convey. To the extent it claims the Decision was not properly referred to the IAA for review, there is no basis on which such a claim can be made. As I have concluded, although the Decision was not notified to the applicant as required by s.66 of the Act, it was not invalid on that account which meant that the Minister was required to refer the Decision to the IAA, the Secretary was required to refer to the IAA the applicant’s review material, and the IAA was required to review the Decision by considering the applicant’s review material. To the extent the ground claims the applicant was unaware the Decision was referred to the IAA, that discloses no jurisdictional error because the applicant’s knowledge or consent was not required in order for the Decision to be referred to the IAA for review.
Ground 4, therefore, discloses no jurisdictional error by the IAA.
Ground 5
This ground is not particularised and, for that reason, discloses no jurisdictional error by the IAA in the manner in which it reviewed the Decision. On the face of the IAA’s decision, there is nothing to suggest the IAA incorrectly interpreted or applied the applicable law to the facts. Ground 5, therefore, also fails.
Ground 6
This ground claims that the delegate and the IAA failed to give proper weight to the danger the applicant would face as part of a family that has actually been persecuted. This ground assumes the applicant is a member of a family that has actually been persecuted. The IAA, however, did not accept the applicant’s claims that he was a member of a family that had been persecuted. In those circumstances it cannot be said the IAA failed to give weight to matters it was satisfied did not occur or exist. And whether or not the delegate gave proper weight to the danger the applicant would face as a part of a family that has actually been persecuted is not relevant to whether the IAA made any jurisdictional error.
Ground 6, therefore, also fails.
Other matters
Given these reasons, I propose to order that the application be dismissed. I also propose pursuant to r.16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth) to amend order 1 of the orders I made on 7 June 2017 by substituting “18 July 2016” for “16 July 2016”.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 10 August 2018
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