FRK17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 144
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FRK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144
File number: MLG 2813 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 22 February 2024 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority affirming decision not to grant applicant protection visa – whether Authority failed to consider all relevant evidence – whether Authority applied wrong legal test – whether Authority denied applicant procedural fairness – whether Authority failed to inform applicant of issues arising on review – whether Authority failed to consider exercising its discretion in s 473DC to get new information from applicant – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 5J, 36, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 13 February 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Ms S Liddy Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2813 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant, who is a citizen of Sri Lanka, applied for a protection visa. This application was refused by a delegate of the Minister and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision. By an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), the applicant seeks judicial review of the Authority’s decision.
The applicant relies on a number of broad unparticularised grounds alleging that the Authority decision is affected by jurisdictional error including that:
(a)the Authority erred by denying the applicant procedural fairness in failing to alert him to new issues that arose before the Authority of which the applicant was not previously aware;
(b)the Authority denied the applicant procedural fairness in departing from the Department’s reasoning resulting in practical injustice; and
(c)the Authority failed to constructively review the decision of the delegate and conduct a review under s 473CC(1) of the Migration Act by failing to inform the application of issues arising on review, and failed to consider its discretion under s 473DC to get new information.
For the reasons explained below, I have found that the applicant has not established jurisdictional error in the Authority decision. The application for judicial review is therefore dismissed.
BACKGROUND
The applicant entered Australia in October 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 12 April 2016 the applicant applied for a protection visa. In a statement provided with his protection visa application, the applicant claimed to fear harm in Sri Lanka from the Sri Lankan Army due to his imputed support of the Liberation Tigers of Tamil Eelam (LTTE) and his Tamil ethnicity.
The applicant attended an interview with an officer of the Minister’s Department on 3 October 2016 to discuss his claims for protection (protection visa interview).
On 22 February 2017 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 31 May 2017 the applicant’s representative provided a submission, a statement made by the applicant and supporting documents to the Authority.
On 23 November 2017 the Authority affirmed the delegate’s decision.
AUTHORITY DECISION
The Authority identified that some parts of the applicant’s statement and supporting documents comprised new information. The Authority accepted that a country information report published by the United Kingdom Home Office after the date of the delegate’s decision met the requirements of s 473DD of the Migration Act. The Authority was otherwise not satisfied that the new information met the requirements of s 473DD.
The Authority accepted that the applicant is a national of Sri Lanka and that he is Tamil and Hindu.
The Authority accepted that the applicant’s father was killed by the Sri Lankan Navy in 1994 as a suspected LTTE supporter. The Authority accepted that one of the applicant’s uncles lived with the applicant’s family after the death of the applicant’s father and that this uncle was sought by the Sri Lankan authorities on suspicion that he was a supporter of the LTTE, was questioned and mistreated by the authorities and fled Sri Lanka in around 2008 or 2009. The Authority accepted that after the uncle’s departure, the applicant and his family were questioned about the uncle’s whereabouts. The Authority also accepted that the applicant was questioned by the Criminal Investigation Department (CID) on his way through Colombo airport to Malaysia, that the applicant has scars on his leg, and that he and his family lived in areas that were at times controlled by the LTTE during the war.
However, the Authority expressed a number of concerns about the credibility of other claims raised by the applicant and identified inconsistencies in his claims between his arrival interview, written statement and protection visa interview. The Authority considered some of the inconsistencies and discrepancies it identified to be significant and the Authority found that the applicant embellished and fabricated parts of his evidence to boost his claims for protection. The Authority rejected the applicant’s claims that he was arrested, questioned, beaten, tortured and sexually abused by the Sri Lankan authorities, required to report to the authorities after his arrest, and the authorities were looking for him in July 2012. While the Authority was satisfied that the applicant and his family were questioned from time to time about the applicant’s uncle’s whereabouts, the Authority was not satisfied that the applicant or his family were mistreated or otherwise harmed by the authorities during such questioning or that such questioning occurred beyond the applicant’s departure in August 2012. The Authority was not satisfied that the applicant would experience post-traumatic stress disorder or other mental health issues on return to Sri Lanka.
Having regard to country information published by the Department of Foreign Affairs and Trade, the United Nations High Commissioner for Refugees and the United Kingdom Home Office, the Authority did not consider the applicant to be at risk of harm for reason of any perceived links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future. The Authority’s reasons for this conclusion included that the applicant and his family were not involved with the LTTE and living in a former LTTE-controlled area does not give rise to a need for protection; the applicant did not claim he or his family were ever questioned by the Sri Lankan authorities about his father after he was shot by the Sri Lankan Navy; the applicant was not (on the Authority’s findings) mistreated while being asked about his uncle’s whereabouts; and the applicant was not (on the Authority’s findings) arrested, charged, detained or imprisoned by the Sri Lankan authorities.
The Authority found that the questioning of the applicant by the CID at the airport on his way to Malaysia in 2012 was general questioning of passengers at the airport and did not demonstrate that the authorities had any particular interest in the applicant. The Authority noted that the applicant did not claim that his leg scars would increase his profile with the Sri Lankan authorities and country information indicated that scarring is no longer a matter of interest to the Sri Lankan authorities when considering suspected LTTE involvement. The Authority therefore found that the applicant did not have a profile that would suggest he is at risk of harm as a result of any real or perceived links to the LTTE, any imputed political opinion or as a Tamil male from the north.
The Authority accepted that the applicant would be considered by Sri Lankan authorities to be a failed asylum seeker if he returns to Sri Lanka but was not satisfied that the applicant would be at risk of prosecution under the Immigrations and Emigrants Act 1949 (Sri Lanka), given that he departed by air using his own passport. Given the Authority’s findings about the applicant’s lack of adverse profile and the absence of evidence to suggest that the applicant had been involved in any activities that might be considered or perceived as significant involvement in pro-Tamil separatist diaspora activities in Australia, Malaysia or Indonesia, the Authority did not accept that the applicant would be at risk of adverse attention or that he would face a real chance of harm when scrutinised by the Sri Lankan authorities on his return to Sri Lanka. The Authority was not satisfied that the applicant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker from Australia now or in the reasonably foreseeable future.
Taking into account the findings of fact summarised above, the Authority was not satisfied that the applicant met the requirements of the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The judicial review application was filed on 21 December 2017, which is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The application contains the following grounds of review:
1. That the decision of the second respondent was affected by legal error.
2.The second respondent denied the applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware, and in the alternative the second respondent denied procedural fairness because the Authority's reasoning departed from the Department’s reasoning resulting in a practical injustice to the Applicant.
3.The second respondent constructively failed to review the decision of the delegate and failed to conduct a review under section 473CC(l) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.
4.More details will be provided by my legal representative. I am in the process of applying through Victoria Legal Aid.
Pursuant to an Order made by a Registrar of this Court on 18 September 2018, the applicant was required to file and serve any amended application with proper particulars, any affidavits and written submissions 28 days before the final hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the Court hearing, as required by the Order.
THE ROLE OF THE COURT
The role of a court in a judicial review proceeding is to ‘rule upon the lawfulness or legality of the [Authority’s] decision’ by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
To obtain relief from the Court, the applicant must establish that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (emphasis added)
CONSIDERATION OF THE APPLICANT’S GROUNDS AND SUBMISSIONS
Ground 1: General assertion of legal error
As can be seen from the extracts of the grounds above, by ground 1 the applicant makes a broad and unparticularised assertion that the Authority decision is affected by legal error.
The Minister submitted in his written submissions that this ground is not sufficiently particularised to be meaningful and should be dismissed on that basis alone: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60], upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
However, as Colvin J observed in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]:
… it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground.
At the hearing I referred the applicant to the grounds in his application. I observed that his first ground lacked sufficient detail for the Court and the Minister to be able to properly understand the nature of the legal error asserted by the applicant, and noted that the Minister submitted that the ground could be dismissed on the basis that it was not properly particularised. I indicated to the applicant that I would give him an opportunity to provide more detail in his submissions about the errors that he asserts by this ground (and his other grounds) and when I finished explaining to the applicant how the hearing would proceed, I asked him whether he was ready to make submissions or whether he needed a short amount of time to consider what he would like to say to the Court. The applicant indicated that he was ready to make his submissions straightaway.
The applicant raised the following matters in his oral submissions to the Court:
(a)The applicant submitted that his father was a fisherman who was shot dead by the Sri Lankan Army when the applicant was one and a half months old. The applicant submitted that there were two people and the other person was let go, but his father was shot. He submitted that the Sri Lankan Army alleged that his father was an LTTE supporter. He said that his family did not even get his corpse. The applicant submitted that he provided all evidence in relation to that to the Authority and does not know why the Authority did not consider that.
(b)The applicant submitted that he also provided information that the army took him and tortured him and that he has injuries on his body. The applicant submitted that he showed these injuries (presumably to the delegate) but they were not considered.
(c)The applicant was in fact very affected by the events in Sri Lanka and that is why he came to Australia. He came here 11 years ago and still has no permanent visa. Although he has worked good jobs here in Australia, he has been affected because of the fear situation. He submitted that his mother is the one who brought him up and it is now very difficult for him to be away from her and he misses her.
(d)The applicant submitted that he does not know why ‘they’ are doing this to him. People who came to Australia with him have received a visa and now their relatives are coming here, but the applicant has not received a visa.
In his reply submissions, made after the applicant had listened to the oral submissions advanced on behalf the Minister, the applicant submitted that what the Minister (or the Authority) is saying is that if he goes back to his home country, there is no danger. The applicant questioned whether anyone could guarantee that.
The applicant’s oral submissions do not specifically address the legal errors that he asserted by grounds 2 and 3 of his application, and I treat them as informing the content of his broad and general assertion of legal error raised by ground 1.
Interpreted generously, the applicant’s oral submissions can be seen as asserting that the Authority decision is affected by jurisdictional error because:
(a)the Authority failed to consider all relevant evidence provided by the applicant, particularly in relation to his father’s death and the applicant’s injuries; and
(b)by finding that the applicant did not meet the criteria for a protection visa when his safety cannot be ‘guaranteed’, the Authority applied the wrong legal test.
I consider these alleged errors in turn.
Alleged failure to consider all relevant evidence
The Authority was required to consider each of the applicant’s claims for protection and their component integers: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [57]; Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42]. The Authority is not required to refer to every item of evidence in its reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]. However, in some circumstances, a failure to consider evidence submitted by an applicant can give rise to jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111]-[112].
In the present case, the applicant provided evidence about his father’s death and his own injuries to the Department in his written statement that accompanied his protection visa application. I do not have in evidence before me a transcript of the applicant’s protection visa interview, but it would appear from the delegate’s reasons and the Authority’s reasons that the applicant also provided evidence about these matters in his protection visa interview.
The applicant provided the following evidence about his father’s death in his written statement that accompanied his protection visa application:
In 1994, my father had been killed by the Sri Lankan navy. He was a fisherman in our village, but was suspected as an L.T.T.E. fighter, and was shot dead.
Based on the summary of the applicant’s evidence given at his protection visa interview, as recorded in the delegate’s decision, it appears that the applicant provided consistent evidence about his father’s death at his protection visa interview.
The Authority accurately summarised this evidence at [13] of its reasons and at [23] accepted that the applicant’s father was killed by the Sri Lankan Navy in 1994 as a suspected LTTE supporter. The Authority considered this evidence in addressing whether the applicant would face a real chance of serious harm on account of any imputed pro-LTTE opinion. The Authority did not accept that the applicant would be at risk of harm for reason of real or perceived links to the LTTE or imputed political opinion now or in the reasonably foreseeable future. The Authority had a number of reasons for this finding, including that the applicant did not claim that either he or his family were ever questioned by the Sri Lankan authorities about his father during the 23 years after his father was shot by the Sri Lankan Navy. I am satisfied that the Authority considered the applicant’s evidence in relation to his father’s death.
The applicant gave evidence in his statement that accompanied his protection visa application that he was arrested by the Sri Lankan Army and taken to a camp. His evidence was that while he was detained, he was subjected to beatings, torture and sexual abuse. In relation to the injuries he sustained, the applicant said:
I suffered severe burns to my leg. They took burning firewood and burnt my leg. I had to seek medical attention after I was released and I still have scars on my right leg. I also suffered bruising on my back and hip due to the beatings I suffered after being kicked by the officers.
The delegate’s decision records that the applicant gave evidence in relation to his injuries, including that the Sri Lankan Army burnt his leg and that there are a couple of burn marks on his lower right leg.
The Authority accurately summarised the applicant’s evidence regarding his claimed arrest and detention by the Sri Lankan Army at [17] of its reasons. This includes an accurate summary of the injuries that the applicant claimed he sustained, and the Authority noted that the applicant showed the delegate his scars at the protection visa interview. The Authority rejected the applicant’s claims to have been arrested, questioned, beaten, tortured and sexually abused by the Sri Lankan authorities, but it is clear that the Authority had regard to the applicant’s evidence in relation to his injuries in reaching this view. This can be seen from [27] of the Authority’s reasons, where the Authority said (emphasis added):
When I consider the significant changes in his protection claims together with the other discrepancies in his evidence, and notwithstanding that the burn scars on his leg may be seen as providing a level of corroboration for his claim that he was burnt during his arrest, based on the totality of his evidence I am satisfied that the applicant has embellished and fabricated parts of his evidence to boost his claims for protection. I reject the applicant’s claims that he was arrested, questioned, beaten, tortured and sexually abused by the Sri Lankan authorities, that he was required to report monthly or twice monthly to the authorities after his arrest, that the authorities were looking for him in July 2012 and that the Sri Lankan authorities have enquired about the applicant’s whereabouts since he left Sri Lanka…
The applicant has not established that the Authority failed to have regard to relevant evidence that he provided.
Alleged application of wrong legal test
Contrary to the applicant’s submissions, the Authority did not need to consider whether or not it could guarantee his safety should he return to Sri Lanka.
Rather, in assessing whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, the Authority was required to consider whether the applicant had a ‘well-founded fear of persecution’, which, taking into account the definition in s 5J of the Migration Act, requires consideration of whether there is a ‘real chance’ that the applicant will face ‘serious harm’.
The real chance test was considered by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Chan). In that case, their Honours considered that ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%: Chan at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
That test does not require the decision-maker to be satisfied that an applicant’s safety can be guaranteed if they return to their home country.
In assessing whether the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act, the Authority was required to consider whether the applicant would face a real risk of significant harm. The real risk test has been found to amount to the same standard as the real chance test: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [246] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ) and [342] (Flick J) .
There is nothing in the Authority reasons to indicate that it misunderstood or misapplied these tests.
As noted above, the applicant made an oral submission that other people he came to Australia with have since been granted visas. To the extent that this submission might be seen as relevant to any suggestion implicit in the applicant’s submissions that the Authority applied the wrong test, it does not assist the applicant. The Authority is required to consider each applicant’s claims for protection based on the specific claims raised by each individual applicant, and each applicant’s case will be different. The fact that another asylum seeker may have been granted a protection visa does not in any way indicate that this applicant should or should not be granted a protection visa.
Matters relating to the factual merits of the Authority decision
The applicant’s oral submissions otherwise address the factual merits of the Authority decision. That is, they address the reasons why he believes he should be granted a protection visa. The Court does not have any jurisdiction to review the factual merits of the Authority decision. While it is clear that the applicant does not agree with the Authority decision, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Conclusion in relation to ground 1
Ground 1 of the application, as understood in the light of the matters raised by the applicant in his oral submissions, does not establish jurisdictional error in the Authority decision.
Ground 2: Denial of procedural fairness
By ground 2, the applicant asserts that the Authority denied him procedural fairness in two alternative ways:
(a)by failing to alert him to new issues arising before the Authority of which he was not previously aware; and
(b)by departing from the reasoning of the delegate in a way that resulted in practical injustice to the applicant.
Consideration of this ground necessarily requires identification of the issues arising before the delegate and the Authority and their respective reasoning. The applicant has not identified in his ground or submissions any particular issue that arose for the first time before the Authority or any particular way in which the Authority departed from the delegate’s reasons in a way that gave rise to practical injustice.
In reaching her decision, the delegate accepted that the applicant was a Tamil from the north of Sri Lanka who resided in areas previously under the LTTE’s control, that he had been previously questioned over the whereabouts of his uncles who were suspected of being involved with the LTTE, that he had previously suffered mistreatment by the Sri Lankan authorities and that he would be considered a failed asylum seeker upon his return to Sri Lanka. The delegate found that the applicant did not engage Australia’s protection obligations because:
(a)the country information did not suggest that the applicant would have a well-founded fear of returning to Sri Lanka on the basis of his Tamil ethnicity;
(b)the applicant would not have a profile as an imputed LTTE supporter or a profile that would attract adverse attention from the authorities;
(c)while the applicant’s identity would likely be checked at the airport upon his return to Sri Lanka, given his lack of criminal background and that he was not a person of interest to the authorities when he left Sri Lanka, he would not be exposed to harassment or the type of harm that would amount to serious harm on his return.
The Authority considered the same issues as the delegate, albeit in greater detail. I have not identified any new issues that arose before the Authority of which the applicant was not aware. The first part of the applicant’s ground therefore fails.
The most significant way in which the Authority’s findings departed from those made by the delegate was that the Authority rejected the applicant’s claims to have been arrested, questioned, beaten, tortured and sexually abused by the Sri Lankan authorities, whereas the delegate accepted that the applicant had previously been mistreated by the Sri Lankan authorities.
The Authority’s adverse finding was based on inconsistencies and discrepancies in the applicant’s evidence. The inconsistencies and discrepancies identified by the Authority were in the same materials considered by the delegate. The Authority did not have any procedural fairness obligation to put the applicant on notice that it may take a different view of the material to that taken by the delegate or to invite the applicant to comment prior to making an adverse credibility finding: see, for example, DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 at [72], [76].
I am not satisfied that the Authority departed from the delegate’s reasoning in a way that resulted in practical injustice to the applicant or which otherwise amounted to a denial of procedural fairness.
I otherwise accept the Minister’s submission that the Authority complied with its procedural fairness obligations in Division 3 of Part 7AA of the Migration Act. The provisions in Part 7AA of the Migration Act, together with ss 473GA and 473GB, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s 473DA of the Migration Act.
The Authority is, subject to the provisions in Part 7AA, required to conduct the review based on the materials provided to it by the Secretary in accordance with s 473CB of the Migration Act without accepting or requesting new information and without interviewing the applicant: s 473DB(1) of the Migration Act. While the Authority has a discretion in s 473DC of the Migration Act to get new information, and must exercise that discretion reasonably, it is not under any procedural fairness obligation to get, request or accept any new information in any circumstances: see s 473DC(2).
If the Authority does get new information, it may only consider that new information if it is satisfied that the requirements of s 473DD are met. This provision prohibits the Authority from considering any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The Authority in the present case considered new information provided to it by the applicant against the requirements of s 473DD. The applicant has not asserted that the Authority misapplied s 473DD and there is nothing obvious on the face of the Authority decision to suggest that the Authority misconstrued or misapplied s 473DD.
The Authority did not have regard to any new information that it was required to put to the applicant for comment in accordance with s 473DE of the Migration Act.
Ground 2 does not establish jurisdictional error.
Ground 3: Constructive failure to conduct the review
By ground 3, the applicant asserts that the Authority constructively failed to conduct the review required under the Migration Act because:
(a)it failed to inform the applicant of issues arising on the review; and
(b)it failed to consider exercising its discretion in s 473DC of the Migration Act to get new information from the applicant.
I have already found in considering to ground 2 above that the issues arising on the review were the same as the issues that arose before the delegate. There is no jurisdictional error on the basis that the Authority did not inform the applicant of the issues on the review.
Section 473DC of the Migration Act confers on the Authority a discretion to get new information that was not before the delegate. That section provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
It is well-established that the Authority is required to act reasonably in the exercise of its discretionary powers, including the power in s 473DC: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21] (Gageler , Keane and Nettle JJ), at [86] (Gordon J); ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3] (Kiefel CJ, Bell , Gageler and Keane JJ), at [61] (Nettle J), at [80] (Gordon J).
The applicant did not make any submissions in relation to this ground and it is unclear from this ground the matter regarding which he believes the Authority should have sought new information from him.
I accept the Minister’s submission that this is not a case in which there was a new dispositive issue before the Authority in relation to which it needed, but did not have, information from the applicant: compare and contrast for example, Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32.
There have been some cases in which the courts have found that it is unreasonable for the Authority to make an adverse credibility finding against an applicant, in circumstances where the delegate accepted the applicant’s credibility, without inviting the applicant to provide new information. An example is ABT17, in which the High Court held that it was unreasonable for the Authority to reject an oral account provided by an applicant at an audio recorded interview, which the delegate accepted wholly or substantially on the basis of its own assessment of the manner in which that account was given, in circumstances where the Authority did not first invite the applicant to an interview in order to gauge his demeanour for itself: ABT17 at [25], [29] (Kiefel CJ, Bell , Gageler and Keane JJ) . Another example is DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 (DPI17), in which the delegate accepted the applicant’s claim to have been tortured and sexually assaulted by Sri Lankan officials on at least two occasions, advising the applicant that she had watched his body language and credibility during the interview and advising him that discrepancies and inconsistencies in his account were not consequential. The Authority came to a different view on the significance of the applicant’s inconsistencies and the Full Court found that the Authority acted unreasonably in failing to consider the possible exercise of its discretion in s 473DC of the Migration Act before making its adverse finding: DPI17 at [46]-[47] (Griffiths and Steward JJ), [125] (Mortimer J).
While the Authority in the present case made an adverse credibility finding against the applicant in circumstances where the delegate did not make such a finding, there is nothing in the circumstances of the case as a whole that causes me to find that the Authority acted unreasonably in failing to seek new information from the applicant. The Authority’s reasons for making the adverse credibility findings were based solely on inconsistencies and discrepancies in the applicant’s evidence. There is nothing in the Authority’s reasons to indicate that the Authority’s adverse credibility finding was based on its own assessment of how the applicant sounded in the interview. There is no transcript of the interview in evidence before the Court and there is no evidence to suggest that the applicant was not afforded a full opportunity to present and articulate his claims during the protection visa interview. It appears from the documents in the court book that the delegate raised some credibility concerns with the applicant during the course of the interview and the applicant’s representative responded to these in a submission. The Authority’s finding was based on the same information that the delegate had before it.
The applicant has not established that the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act to get new information from him.
Ground 3 is not established.
Ground 4: Legal representation
Ground 4 does not assert any jurisdictional error in the Authority decision. Rather, it is an assertion that the applicant is in the process of seeking legal assistance and further details will be provided by his legal representative.
Given that the ground does not, directly or indirectly, assert any jurisdictional error in the Authority decision, it cannot establish jurisdictional error.
CONCLUSION
I have found that the applicant has not established that the Authority decision is affected by jurisdictional error. His application for judicial review must therefore be dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 February 2024
9
27
1