GOT18 v Minister for Immigration
[2020] FCCA 1697
•29 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOT18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1697 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority failed to consider a claim or misapplied s.5J of the Migration Act 1958 (Cth) considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 46A, 65, 473CB, 473DC, 473DD, 473FA, 499. |
| Cases cited: Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 Applicant NABD of 2002 v Minister for Immigration (2005) 216 ALR 1 BDI17 v Minister for Immigration & Anor [2018] FCCA 2162 BWC16 v Minister for Home Affairs [2018] FCA 1375 CCW16 v Minister for Immigration & Anor [2017] FCCA 2 Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 DKA18 v Minister for Immigration & Anor [2020] FCCA 8 Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 DTH17 v Minister for Immigration [2018] FCCA 729 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v Indatissa (2001) 64 ALD 1 Minister for Immigration v MZYTS (2013) 230 FCR 431 NABE v Minister for Immigration (No 2) [2004] FCAFC 263 NAHI v Minister for Immigration [2004] FCAFC 10 NBKT v Minister for Immigration (2006) 156 FCR 419 Rokobatini v Minister for Immigration (1999) 90 FCR 583 SGBB v Minister for Immigration (2003) 199 ALR 364 |
| Applicant: | GOT18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 674 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 June 2020 |
| Delivered at: | Sydney by telephone to Perth |
| Delivered on: | 29 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Crowley, pro bono publico |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Ms S Oliver |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 12 June 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 674 of 2018
| GOT18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 21 November 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant, a citizen of Sri Lanka, arrived in Australia (Christmas Island) on 17 August 2012 as an unlawful maritime arrival.[1] He was first questioned at Christmas Island on 22 August 2012, when he made a claim of political persecution. A second interview was conducted at a detention centre on 16 January 2013 when he reiterated his claim. On 12 February 2013, the applicant lodged an application for a protection (Class XA) visa that was deemed invalid.[2] On 20 August 2015, the Minister’s Department notified the applicant that the Minister had lifted the s.46A bar, and invited him to apply for a temporary protection (Subclass 785) visa or a Safe Haven Enterprise Visa (SHEV).[3] On 11 September 2015, the applicant lodged an application for the SHEV.[4]
[1] Court Book (CB) 118
[2] CB 23-91; CB 168
[3] CB 92-99
[4] CB 100-149
The applicant’s claims were contained in a statement provided with the SHEV application.[5] In summary the applicant feared harm on return to Sri Lanka on the basis that:
a)from 1997, he worked as a storekeeper. In 2001, his boss was shot and he took over the shop which he ran until 2011. His boss was the Jaffna district organiser/coordinator of the Thamilar Viduthalai Kootani or Thamilar Viduthalai Group (TVG).[6] Prior to being shot he was warned by the Criminal Investigation Department (CID) to stay away from politics;
b)in January 2008, he was injured in a bomb blast and has no vision in his left eye as a result.
c)in 2011, he started working part time in the shop so that he could work with the TULF. He would walk around the neighbourhood and talk to people about the TULF and what it could do for them;
d)because of his work with the TULF he had problems with the CID. He received threatening phone calls from a person named James on three occasions and was interrogated by the CID. He told his political group leader but no action was taken;
e)on 20 July 2012, he was stopped by four CID officers and taken to an abandoned railway station. He was threatened and beaten. He decided to leave Sri Lanka as a result of that incident;
f)he would be persecuted as a result of his Tamil ethnicity.
[5] CB 138-148
[6] CB 164 - in a further statement dated 28 January 2016 the applicant confirmed that he worked for the Tamil United Liberation Front (TULF)
On 20 November 2015, the applicant attended an interview with the delegate.[7] At that interview, the applicant made general claims of kidnapping and ransom.[8] On 5 May 2016, the delegate refused to grant the SHEV.[9]
[7] CB 155; CB 168
[8] Exhibit A1 - Transcript, page 20, lines 31-36
[9] CB 167-199
On 6 May 2016, the matter was referred to the Authority for review.[10] On 29 June 2016, the Authority affirmed the delegate’s decision.[11]
[10] CB 200
[11] CB 203-218
On 5 September 2018, the Federal Court remitted the matter to the Authority.[12] On 8 October 2018, the Authority notified the applicant that it would be reconsidering his case.[13]
[12] CB 219-221; BWC16 v Minister for Home Affairs [2018] FCA 1375
[13] CB 223-224
On 12 November 2018, the applicant’s representative provided the Authority with an appointment of representative form.[14]
[14] CB 225-227
On 14 November 2018, the applicant provided submissions and further evidence to the Authority.[15] This included a new claim based on political developments in Sri Lanka.
[15] CB 225; CB 228-236
As noted above, on 21 November 2018, the Authority affirmed the delegate’s decision to refuse to grant the applicant the SHEV.[16]
[16] CB 239-252
On 24 November 2018, the applicant’s representative attempted to provide further submissions to the Authority. The Authority responded on 26 November 2018 confirming that the review had been finalised on 21 November 2018 and attached a copy of the decision and notification.[17]
[17] Annexure ‘GA4’ to the affidavit of Ganasan Arujunan filed 17 April 2020
Authority’s decision
The Authority had regard to the material referred to it under s.473CB of the Migration Act 1958 (Cth) (Migration Act) as well as the submissions and reports provided on 14 November 2018 and the latest Department of Foreign Affairs and Trade (DFAT) report concerning Sri Lanka (DFAT Report), for which it was satisfied that the requirements of s.473DD were met.[18]
[18] CB 241, [4]-[6]
The Authority accepted that the applicant was associated with the TULF, became a member and worked and campaigned for the party. The Authority also accepted that the applicant received threatening phone calls from the CID on three or more occasions, that he was questioned about the work he was doing for the TULF, that he was forcibly detained and beaten by CID officers and that following his departure Sri Lankan authorities had visited his wife to ask about his whereabouts.[19]
[19] CB 243, [11]
The Authority found that the articles submitted to it and the concern raised therein were speculative and did not report an actual worsening of the human rights situation for Tamils and political opponents.[20] The Authority instead placed considerable weight on the updated DFAT Report and noted that nothing before it indicated that TULF members had been targeted in recent years.[21] Having regard to the applicant’s evidence and circumstances as well as relevant country information, the Authority found that the chance that the applicant would face any harm on account of his past or future political activities with the TULF to be remote.[22]
[20] CB 243, [12]
[21] CB 243, [13]
[22] CB 243-244, [14]
The Authority was also not satisfied that the applicant faced a real chance of serious harm as a Tamil male from the north of Sri Lanka.[23] The Authority considered the applicant’s claims that the Eelam People’s Democratic Party (EPDP) was trying to make Tamil people move from his village however, having regard to the applicant’s claims and country information, rejected those claims.[24]
[23] CB 244, [16]
[24] CB 244, [17]
The Authority accepted that the applicant’s boss was the TULF Jaffna district organiser and that he had been shot and killed and that his cousin was elected to a council seat for the TULF however, given the passage of time, was not satisfied that the applicant faced a real chance of harm on account of those claims.[25] The Authority also accepted that the applicant had been injured in a bombing however, noting that the applicant was not specifically targeted and that the incident had occurred a long time ago and in the context of civil war, the Authority did not accept that the applicant faced a real chance of any harm on account of the claim.[26]
[25] CB 244, [18]
[26] CB 245, [19]
The Authority noted that the applicant had not claimed to fear harm as a result of his Catholic religion, he had not claimed to have suffered previous harm, and that country information indicated that Christians faced only a low risk of official or societal discrimination. Accordingly, the Authority found that the chance that the applicant would face serious harm on account of his religion was remote and not real.[27]
[27] CB 245, [21]
The Authority accepted that the applicant departed the country illegally and that it was possible that he may be subject to monitoring for a period of time upon return and face social stigma as a returning failed asylum seeker.[28] The Authority was not satisfied that any such social stigma would threaten his capacity to subsist and amount to serious harm[29] and, having regard to the applicant’s circumstances and country information, was not satisfied that he would face serious harm as a returning Tamil asylum seeker.[30]
[28] CB 245, [22]; CB 245-246, [24]
[29] CB 246, [24]
[30] CB 246, [25]
The Authority found that the applicant may be questioned and charged under the Immigrants and Emigrants Act (Immigrants and Emigrants Act) and may face periods of detention at the airport and on remand.[31] The Authority was not however satisfied that any detention, questioning and the imposition of a fine would constitute serious harm.[32]
[31] CB 246, [26]; CB 247, [28]
[32] CB 247, [30]
In considering the applicant’s claims under the complementary protection provisions, the Authority relied on its anterior findings to conclude that the applicant did not face a real risk of significant harm.[33] The Authority otherwise did not accept that any treatment the applicant may face on return would constitute significant harm.[34]
[33] CB 248, [36]
[34] CB 248, [37]
The current proceedings
These proceedings began with a show cause application filed on 20 February 2019. The applicant now relies upon an amended application filed on 12 June 2020. In that application as amended the applicant abandons his former grounds of review and substitutes two new grounds numbered 1A and 2A. Those grounds are:
Ground 1A
The decision of the Immigration Assessment Authority (IAA) was vitiated by a constructive failure to exercise jurisdiction because of a failure to consider a claim or an integer thereof, or centrally important evidence, going to extortion, or demands for money or risk of ransom by the Sri Lankan CID on return to his particular village.
Particulars
1A.1 The applicant claimed in writing in his protection visa application not just that the CID threatened and assaulted him because of his involvement with a political party, but also that they had extorted him (CB 144 [51]-[52]). The applicant stated that his fear were specific to the CID in his village (CB 146 [67]);
1A.2 At interview the applicant stated that the CID ‘work as ca-hoots [sic] with the government for money’ (T7 lines 47-50), and that is a propertied Tamil he may be the target of kidnapping for ransom (T 20 line 31-36);
1A.3 The IAA accepted all of the applicants substantive historical claims (CB 243 [11]) but insubstantiated any future risk, drawing upon DFAT country information, by finding that the situation for Tamils had improved generally in Sri Lanka and that the applicant’s political party is not mentioned in the DFAT report. But the IAA did not confront, whether by rejecting it or not, his fear of more extortion by the CID in his village, nor the risk of ransom.
Ground 2A
The decision of the Immigration Assessment Authority (IAA) was vitiated by a constructive failure to exercise jurisdiction because of a misconstruction or misapplication of section 5J of the Migration Act 1958 (Cth) (‘well-founded fear of persecution’) or paragraph 36(2)(aa) of the Act (‘real risk’).
Particulars
2A.1 When insubstantiating the future risk to the applicant, the IAA relied, in substance, exclusively on the latest iteration of DFAT’s country information report for Sri Lanka (CB 243 [13]). It also received two articles of ‘new information’ in support of a sur place claim describing the appointment of Prime Minister Rajapaksa and fears of a return to human rights abuses under the former Rajapaksa presidency, and a ‘coup’ of state media by Rajapaksa-aligned forces.
2A.2 The IAA had actuated its discretion under section 473DD of the Act to receive the DFAT report by directing itself that the DFAT report was ‘a highly authoritative source’ (CB 241 [6]). In its substantive reasons, the IAA records that has ‘given considerable weight to the latest report of DFAT as it is authoritative’ (CB 243 [13]
2A.3 It was not open to the IAA to approach the fast track review with an a priori attribution of a status to the DFAT report which made it effectively determinative of the factual issues. Alternatively, the IAA did not form the state of satisfaction contemplated by the Act because it failed to ‘consider’ the applicant’s country information, or disabled itself from ‘considering’ it. Alternatively, by purporting to dismiss the applicant’s sur place claim on the basis that the country information was ‘speculative’ or its (incorrect) finding that it did not ‘report an actual worsening’ exposed a misunderstanding of the speculative task.
I have before me as evidence the court book filed on 14 March 2019. I also received two tendered documents. The first is a transcript of the hearing before the delegate[35] and the second is the DFAT Report.[36]
[35] Exhibit A1. The transcript had been annexed to an affidavit made by Georgina Roberta Ellis made on 3 September 2018, which was in turn annexed to the affidavit of Ganasan Arujunan made on 4 June 2020. There was some confusion at the trial whether either or both affidavits were to be read, which is why I received the transcript as an exhibit
[36] Exhibit A2
Both the applicant and the Minister filed pre hearing written submissions and made oral submissions through their counsel at the trial on 24 June 2020.
Consideration
Ground 1A – did the Authority fail to consider a claim or integer of a claim of extortion?
It is settled that the lawful formation of the state of satisfaction (one way or the other) involves: first, a correct understanding of the claim expressly presented, or squarely arising, of fear of persecution; and secondly, a correct understanding of how, in respect of each of the claims, it is to be determined whether that fear is objectively well-founded.[37]
[37] Minister for Immigration v MZYTS (2013) 230 FCR 431 at [35]
Gummow and Hayne JJ pertinently warned in Appellant S395/2002 v Minister for Immigration[38] that use of country information by high-volume decision-making under s.65 of the Migration Act will “perhaps inevitably” tend to overshadow the individualised claims:[39]
… it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.
[38] (2003) 216 CLR 473
[39] Appellant S395/2002 per Gummow and Hayne JJ at [76]
The applicant submits that here, there was a failure to give “close consideration of the situation of the particular applicant”.[40] The Authority is said to have allowed the DFAT Report to overshadow the claims actually made by the applicant. The applicant had not merely claimed that he had been persecuted (“interrogated”, “beaten and kicked”) because of his membership of the TULF. He had claimed, and it was accepted, that he had (already) come to the attention of the local CID and been extorted because he was relatively well-off. The applicant also contends that he claimed that he would still be exposed to extortion or kidnapping for ransom by the CID in his home village if he were returned there.
[40] Appellant S395/2002 per Gummow and Hayne JJ at [73]
The Authority accepted all of the applicant’s claims of past persecution. It follows that the Authority accepted that the applicant had been extorted by the local CID, in particular “James”. That claim was made in writing in his statement of claims at lodgement of the valid protection visa application. They are said to have been brief but clear:[41]
51.I was interrogated by the CID about the work I was doing for the [party]. They asked me questions about the [TULF] and they also asked me for money.
52.They knew I owned land and had a house, and they would ask me for money. I was scared and I gave them money.
(emphasis added)
[41] CB 144
That is why, in response to questioning by the delegate at interview the applicant said:[42]
I know James because they [sic] used to come and take people into their custody during my political activities. I know him because he was actively taking or arresting people, detaining in his custody. They work as co-hoots with the government for money.
(emphasis added)
[42] Transcript, page 17, lines 47-50
At page 20 of the transcript the applicant said:[43]
Those people who tortured me, who took me to their custody still exist in Jaffna, in that area. The next issue is ransom. They kidnap people and kidnap people for ransom because I’ve got property, I’ve got house and my wife is a teacher and she also runs tuition. I have all the income. I don’t have any other financial problems as such. My concern is to save my life.
(emphasis added)
[43] lines 31-36
The applicant submits that the extortion claim remained potent despite the effluxion of time. That was because it was specific to its locality and because it went beyond persecution because of involvement with the TULF. In other words, his involvement with the TULF “had given him a profile” but that “a change in government with the election of Sirisena” did not insubstantiate the risk because “[k]idnappings and ransom continue”. [44]
[44] CB 171-172
In a passage from the DFAT Report omitted by the Authority, it was reported that one thing had not improved with the passage of time was police corruption. At [5.11] DFAT reported that: [45]
[p]olice officers are not well paid, and individual officers reportedly engage in petty corruption such as taking bribes instead of issuing traffic fines, to supplement their income. The Sri Lankan government has promised to raise the basic police salary up to 40 per cent, but had not done so by the time of publication.
[45] DFAT Report page 38
There is also the observation that although President Sirisena had campaigned “on a platform of post-conflict reconciliation, transitional justice, good governance, anti-corruption and economic reform” that “progress has been slow” and there is scepticism that it could be achieved within that political term.[46] DFAT also reported that Sri Lanka had gone backwards since 2015 in the eyes of international agencies in its corruption rankings, ranking 91st out of 180 countries.
[46] DFAT Report page 36 [2.3]
The applicant submits that, had the Authority been alive to the extortion claim, it could not have failed to consider these pertinent parts of the DFAT Report. Having considered them, the Authority could not have considered them irrelevant but would have dealt with them. In fact, none of the matters drawn upon in the DFAT Report are said to have been responsive to the extortion claim. The applicant submits that the proper inference was that it was not considered at all.
I prefer the Minister’s submissions concerning this ground.
By this ground the applicant contends that the Authority constructively failed to exercise its jurisdiction by failing to consider a claim or an integer thereof relating to “extortion, or demands for money or risk of ransom by the Sri Lankan CID on return to his particular village”.
The function of the Authority is to respond to the case that the applicant advances.[47] It is not required to consider a claim not made, nor one which cannot be said to clearly arise on the material before the Authority.[48] No claim relating to a separate and distinct fear of extortion was advanced by the applicant or squarely arose on the material and to the extent that the issue was raised, the Authority made findings that disposed of the claim.
[47] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at 78 per Kirby J; SGBB v Minister for Immigration (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ
[48] Htun v Minister for Immigration (2001) 194 ALR 244
First, when the applicant’s claims are analysed, it is apparent that whilst the applicant mentioned that the CID had asked him for money on one occasion, he did not advance a claim that he feared any harm as a result of that event and any reference to ransom was inextricably linked to his claim that he was, and would be, of interest to and targeted by authorities as a result of his political opinion.
The claims raised by the applicant are as follows:
a)upon arrival, the applicant specifically claimed that he was persecuted because he worked for the TULF;[49]
[49] CB 3
b)at the entry interview, the applicant claimed that “because I was doing more work for the elections and the political party I had problems with the CID”;[50]
[50] CB 17
c)in the statement submitted with the protection (Class XA) visa application the applicant claimed that the CID had threatened him on four occasions and said that he would disappear if he continued to work for the TULF[51] and the CID had assaulted him and threatened him.[52] The applicant stated that:[53]
I fear that if I return to Sri Lanka that the CID will take me and kill me because of my political opinion and ethnicity…they were angry with me for supporting my people with my work in the party.
d)in the statement submitted in support of the SHEV application the applicant reiterated his claims, under headings “Harm Experienced in Sri Lanka – Political Views”, that he had problems with the CID because of the work that he was doing for TULF[54] and, in that context, namely whilst being interrogated by the CID for the work he was doing for TULF, he indicated had once been asked for money.[55] The applicant also specified, “apart from my political activities, I am also persecuted because of my Tamil ethnicity”[56] and finally summarised his claims as follows:[57]
I fear harm including assault, kidnapping and murder at the hands of the Criminal Investigation Department of the Sri Lankan Police on the basis of my political views and my involvement in the [TULF]. I fear harm in all areas of Sri Lanka at the hands of the CID by virtue of my political views. I have personally been threatened, beaten and interrogated by my feared persecutors. I cannot rely on the protection of the Sri Lankan Government and cannot safely relocate anywhere else in Sri Lanka.
e)at interview before the delegate the applicant stated that the sole reason that he left Sri Lanka was because the army prohibited him from “indulging into any political activities there and I’m also told not to carry out any activities, any related activities to the people in the area”.[58] The applicant claimed that the main opponent of the TULF party was the government[59] and “the government would not involve directly and act against us, but they do that through their agents such as the CID and others to oppose our activities”.[60] Whilst the applicant did state that a member of the CID was “actively taking or arresting people, detailing people in his custody. They work as co-hoots with the government for money”[61] that statement did not relate to extortion of the applicant but instead to the incident in which the applicant claimed that he had been beaten on 20 July 2012. Furthermore, no claim was made that the CID officer had asked him for money on 20 July 2012, instead, the claim was made that the government had been in cahoots with the officer and used the officer to act against its political opponents for money;
f)when the applicant referred to the issue of ransom at interview with the delegate, the issue was raised in the context of harm that the applicant claimed to face as a result of “the people who tortured me, who took me to their custody still exist in Jaffna, in that area”.[62] Namely, that he would face harm as a result of the interest the authorities had in him. The delegate referred to these comments in its decision and interpreted the applicant’s evidence in this way but concluded that it did not accept that the applicant would be targeted for “politically motivated violence”.[63]
[51] CB 51-52, [5]
[52] CB 51, [5]
[53] CB 52, [6]
[54] CB 144, [48]
[55] CB 144, [51]-[52]
[56] CB 146, [66]
[57] CB 147-148, [77]
[58] Transcript, page 12, lines 40-43
[59] Transcript, page 15, line 14
[60] Transcript, page 15, lines 38-40
[61] Transcript, page 17, lines 48-50
[62] Transcript, page 20, lines 31-32
[63] CB 191, [142]
Secondly, the fact that the delegate referred to the issue of extortion did not impose on the Authority an obligation to consider the issue.[64]
[64] CCW16 v Minister for Immigration & Anor [2017] FCCA 2 at [76]
Thirdly, the Authority disposed of the claims as advanced by the applicant. The Authority:
a)referred to the applicant’s claims to fear harm from the CID on the basis of his political views and involvement with the TULF;[65]
b)referred to, and accepted the applicant’s claim that the CID had taken his brother and when he was called by them he met with them and was interrogated about the work that he was doing for the TULF and that he had to give them money;[66]
c)found that the applicant’s past or future involvement with the TULF would not lead to any targeting by the authorities.[67] In reaching this finding the Authority had regard to the applicant’s personal circumstances, his evidence at the SHEV interview that the TULF party now had only one elderly member, the fact that TULF was a legally recognised political party, the fact that the applicant’s past mistreatment and targeting by the CID occurred a substantial period of time ago and country information.[68]
[65] CB 242, [7]
[66] CB 243, [11]
[67] CB 244, [14]
[68] CB 243-244, [13]-[14]
In my view, the extortion claim was an integer of the applicant’s claim of political involvement in Sri Lanka in the TULF. That was the way it had been treated by the delegate. The delegate disposed of the extortion claim by rejecting the applicant’s claims of TULF involvement.
The Authority accepted the claims of past harm based on his TULF involvement at [11][69] but reasoned, at [14], that the TULF was a spent force and there was only a remote chance of the applicant suffering harm on account of his past and future political activities with the TULF should he return to Sri Lanka:[70]
Whilst the article states that threats were made, there is nothing before me to indicate that there have been killings of Tamil men in the area.
[69] CB 243
[70] CB 244 at [17]
The Authority’s following statement that, “I have not accepted that the applicant has had an involvement with the TULF” is unhelpful. It is impossible to believe that the Authority could have forgotten its acceptance of those claims at [11]. Counsel for the Minister invited me to interpret that sentence as containing a typographical error in that the word “not” should be deleted. That is one possible interpretation. Another is that the Authority was attempting to say that the applicant had not had any TULF involvement since leaving Sri Lanka. In any event, in my view, the extortion claim was dealt with in the general finding made by the Authority at [14].
Ground 2A – did the Authority fall into error in its reliance upon the 2018 DFAT Report?
The formation of the state of satisfaction (either way) that the criterion for a protection visa exists set about by s.36(2)(a) read with s.5J of the Migration Act, or by s.36(2)(aa) is the quintessence of the review contemplated by the Migration Act, whether under Part 7AA or Part 7.[71] That is a predictive exercise, involving considerations as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past.[72]
[71] MZYTS at [33]
[72] MZYTS at [33]; Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; Minister for Immigration v Guo (1997) 191 CLR 559 at 571-573
Because it is a predictive exercise, a decision maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s home country. That is why country information is, or will usually be, relevant. But it is also why a decision maker must be alive “to the individual and distinctive features” of a claim and not permit them to be overclouded by country information.[73]
[73] Appellant S395/2002 per Gummow and Hayne JJ at [76]
There is no statutory footing for the Authority to attribute any a priori superior status to the DFAT Report. True, the choice of, and the weight to be attributed to, country information is a matter for the decision maker and is generally not cognisable on judicial review,[74] but the Authority must not permit its review to be intruded upon by an improper fetter, or to direct itself so as to disable itself from conducting the fast track review.
[74] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]
The matters described by the Authority as informing the “exceptional circumstances” actuating the exercise of the discretion under s.473DD to receive the DFAT Report have nothing to do with their content. The exercise of the discretion is justified by the fact that it is more recent and that it is a “highly authoritative source”.[75] Likewise, at [13] the second Authority attributes “weight” to the DFAT Report because it is “authoritative”.[76]
[75] CB 241, [6]
[76] CB 243, [13]
The applicant contends that, because the Authority approached the DFAT Report as, in substance, determinative of the issues to which it spoke, the analysis of the applicant’s “new information” was correspondingly superficial. While the Authority suggests that it has given them “some weight”, that had to be so given that the DFAT Report was “highly authoritative” or “authoritative”. Its diminution of the contrary “new information” is said to have been a fait accompli. The Authority states that the “articles do not report an actual worsening of the human rights situation for Tamils and political opponents” but overlooked the fact that the Human Rights Watch article was not merely prospective. It cited, for example, “reports that [Rajapaksa] supporters took over the state media, which had become very independent under the Sirisena government” with the consequence that Wickremasinghe’s objections had not been reported.[77]
[77] CB 230
The applicant submits that the “new information” supplied by the applicant was relevant, at least, to the extortion claim. What it spoke to was official “dogwhistling” to corrupt elements within the Sri Lankan executive government. It suggested that oversight would be stymied or wound back. It suggested a “greenlighting” of corruption within the CID. It suggested that the kinds of activities which occurred under the former Rajapaksa presidency would be tolerated under a Rajapaksa prime ministership. In that regard, the DFAT Report recognised the continuation of Sirisena as President, that term was coming to an end in the near future and the DFAT Report also noted that in 2015 that some executive powers formerly exercised by the President had devolved on the Prime Minister.[78]
[78] DFAT Report, page 9 [2.22]
Section 499(1) of the Migration Act provides that the Minister may give directions, and s.499(2A) requires a “person or body” to comply with it. Ministerial Direction No 56 of 21 June 2013 required the delegate or body to “take it into account”. The Administrative Appeals Tribunal is such a “body”.[79] The applicant contends that, because the Authority is “part of the Tribunal”, the Authority must also be “captured”.[80] The DFAT Report was the DFAT’s “country information assessment expressly for protection status determination processes”. There is no question that the Authority should have brought to account the DFAT Report. The real issue is whether in doing so the Authority permitted it to intrude upon its primary duty to conduct the review.
[79] Rokobatini v Minister for Immigration (1999) 90 FCR 583, per Katz J at [38]
[80] section 473JA(1)
The applicant submits that to come to the fast track review with an a priori view that the DFAT Report has some superior status because of its provenance is to constructively fail to exercise jurisdiction. To come to the fast track review with a preconception that one (mandatory) consideration is determinative of the factual issues for resolution on the fast track review is to constructively fail to exercise jurisdiction. It is to fail to conduct a review that is efficient, quick and free of bias and consistent with Division 3.[81]
[81] section 473FA(1)
The reality is said to be that the Authority’s self-direction that the DFAT Report was “highly authoritative” left no room in a practical sense for any competing view. It is also said to have exposed a misconception that the applicant had to overcome what was, in effect, an evidentiary presumption which was at the same time pitched at an impossibly high level.
I also prefer the Minister’s submissions in relation to this ground.
By this ground the applicant contends that the Authority’s decision was vitiated by a constructive failure to exercise jurisdiction because of a misconstruction or misapplication of s.5J or s.36(2)(aa) of the Migration Act. The applicant’s complaint is directed to the Authority’s consideration of the DFAT Report.
No jurisdictional error is revealed by this ground.
First, the applicant’s argument is premised on the contention that it was mandatory for the Authority to consider the DFAT Report and therefore the Authority erred in considering the mandatory consideration which was determinative. This contention is incorrect. Ministerial Direction 56 did not apply directly,[82] although it may be unreasonable for the Authority to fail to consider getting the most recent DFAT Report.[83]
[82] DTH17 v Minister for Immigration [2018] FCCA 729 at [36]
[83] BDI17 v Minister for Immigration & Anor [2018] FCCA 2162
Secondly, it is well settled that the choice, assessment and weight to be given to country information is a matter for the Authority.[84] Further, more generally, it is for the Authority to identify the evidence and material that it finds relevant to its reasoning and to give that evidence and material the weight it considers appropriate.[85]
[84] Minister for Immigration v Indatissa (2001) 64 ALD 1 at [32] per Sundberg, Emmett and Conti JJ; and NAHI at [11]-[13]
[85] NAHI at [11]-[13]; Applicant NABD of 2002 v Minister for Immigration (2005) 216 ALR 1 at [8] per Gleeson CJ; and NBKT v Minister for Immigration (2006) 156 FCR 419 at [81]-[84] per Young J (Gyles and Stone JJ agreeing)
Thirdly, the fact that the Authority considered the DFAT Report to be authoritative does not suggest that there was any departure by the Authority from a legitimate and reasonable choice of what material it would rely on.
Whilst the Authority did give substantial weight to the DFAT Report in this case, it also considered the country information material provided by the applicant.[86] The Authority recorded this information to be important[87] but ultimately gave “considerable weight” to the DFAT Report in making its findings.[88] In doing so the Authority stated that the concerns raised in the country information provided by the applicant appeared speculative, the country information did not report an actual worsening of the human rights situation for “Tamils and political opponents” and Maithripala Sirasena at the time continued as president of the country.[89] The Authority’s summary is correct. The country information merely referred to fears and concerns as well as “reports that [Rajapaksa] supporters took over the state media”.[90]
[86] CB 243, [12]
[87] CB 241, [5]
[88] CB 243, [13]
[89] CB 243, [12]
[90] CB 229-236
After having considered the country information provided by the applicant, the Authority then gave cogent reasons for the decision to give “considerable weight” to the DFAT Report:[91]
based on DFAT’S on-the ground knowledge and discussions with a range of sources in Sri Lanka and it has taken into account relevant and credible open source reports and it has been prepared with regard to the current caseload for decision-makers in Australia.
[91] CB 243, [13]
Further, the Authority’s reasons at [6][92] are not its reasons for exercising its discretion under s.473DC to get the DFAT Report, rather they are the Authority’s reasons for considering the DFAT Report under s.473DD(a). The Authority is not required to be satisfied that there are exceptional circumstances before it exercises its discretion to obtain new information under s.473DC of the Migration Act. However, before the Authority can consider any new information it obtains under s.473DC, it must be satisfied that exceptional circumstances exist to justify considering the new information, pursuant to s.473DD(a) of the Migration Act.
[92] CB 241
In my view, no error arises from the Authority’s description of the DFAT Report as a “highly authoritative source” at [6]. The Authority in that paragraph was simply explaining why there were exceptional circumstances for it to consider the report as new information.
The description of the DFAT Report as “authoritative” at [13][93] simply explained the “considerable weight” given to the report.
[93] CB 243
It is plain that the DFAT Report was of assistance to the Authority in tracking the trajectory of the risk of harm to the applicant from the past to the time of the Authority’s decision. The DFAT Report could not be of particular assistance in dealing with the sur place claim concerning the appointment of Mohinder Rajapaksa as Prime Minister on 26 October 2018 because that event post dated the DFAT Report. The Authority nevertheless reasoned that it was too early to say whether the appointment of Mr Rajapaksa would have a negative impact on the trajectory of risk into the future. That was a conclusion which was open to the Authority on the material before it.
In DKA18 v Minister for Immigration & Anor[94] I cautioned that it might become unsafe for the Minister to rely on decisions which depended upon the replacement of former President Rajapaksa with former President Siresena. Following the elections in 2019, Mr Rajapaksa’s brother was elected President and he was appointed as Prime Minister. I observed then and repeat now, that if circumstances change in Sri Lanka following the 2019 elections for the worse, that would be a new circumstance that the Minister may need to take into account before the removal of Tamil Sri Lankan applicants from Australia.
[94] [2020] FCCA 8
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 July 2020
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