GPV18 v Minister for Home Affairs
[2019] FCCA 1563
•27 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GPV18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1563 |
| Catchwords: PRACTICE & PROCEDURE – Reinstatement application –whether explanation for failure to appear satisfactory – whether substantial grounds for judicial review have reasonable prospects of success – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03 Migration Act 1958 (Cth) ss.473DC, 473EB |
| Cases Cited: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 |
| Applicant: | GPV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3574 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 27 May 2019 |
| Date of Last Submission: | 27 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of a Tamil interpreter |
| Solicitors for the Respondents: | Mr Jeffrey Cabarrus (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3574 of 2018
| GPV18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
By Application in a Case, filed on 13 May 2019, the applicant seeks to set aside orders made by Registrar Morgan on 31 January 2019 dismissing his application for an extension of time to seek judicial review of a decision of the Immigration Assessment Authority, dated 29 October 2018 (“the Authority”) pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) by reason of the failure of the applicant to attend that scheduled first court date.
In support of his reinstatement application the applicant filed an affidavit in which he stated that he was self-represented and “has a very basic understanding of English” and “no knowledge of law or understanding of the procedures of the Court” because he had “never been to Court before”. The applicant also stated he is not computer literate; that he depends on his friends to help him; that he was having some problems opening emails in his mobile phone at that time; and, that the applicant was informed by the first respondent's solicitor by email on 1 February 2019 of the orders made by the Registrar.
The first respondent read the affidavit of Mr Justin Matthew McGovern, sworn and filed on 23 May 2019.
Based on the evidence in that affidavit, I accept that the applicant was notified of the first court date listing in writing on several occasions: by the NSW Registry with his sealed application filed on 19 December 2018; by email correspondence from the first respondent's solicitor serving the applicant with a Notice of Address for Service on 15 January 2019; and, by further email on 29 January 2019 provided to the Court and the applicant with the first respondent's proposed draft orders to be made at the first court date on 31 January 2019.
The applicant's difficulties in accessing his emails, as well as his limited ability to understand English and Court proceedings is in no way a satisfactory or adequate explanation for his failure to appear at the first court date. The applicant chose to enliven the jurisdiction of this Court by filing his application on 19 December 2018. The applicant informed the Court this morning that in fact the initiating application filed on 19 December 2018 and purportedly signed by the applicant, was in fact, signed by a friend of his.
The initiating application required an extension of time to allow the applicant to seek judicial review of the decision of the Authority. The Applicant provided an explanation for his failure to seek judicial review of the decision of the Authority within the maximum 35-day period, by reason of changing his email address and the decision being sent to the incorrect email address.
There is some evidence in the Court Book tendered by the first respondent and marked Exhibit 1R, to suggest that the applicant did change his email, before changing it back, and that the Authority subsequently sent the decision to only one of the email addresses.
In those circumstances, the first respondent consents to time being extended to the applicant to seek judicial review of the Authority’s decision.
In assessing whether the applicant should be allowed to seek judicial review of the Authority's decision, I explained to the applicant the role of this Court and the importance to the Court of his explanation and the prospects of success of his initiating application. To that end, I explained that the role of this Court is very different to that of the Authority and it is not for this Court to reconsider the applicant’s claims and to reach different findings and conclusions. I explained that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained that disagreements with findings and conclusions of the Authority rarely, by itself, established such a mistake.
The applicant was unrepresented before the Court today, although had the assistance of a Tamil interpreter.
The applicant confirmed that he continued to rely on the grounds of his application filed on 19 December 2018. Those grounds are as follows:
“Ground 1
1. The Immigration Assessment Authority ((hereinafter refers as ‘Authority’) acted in violation of section 473JE(2) of the Migration Act 1958 (Cth) transmitting the decision by email to the last email address provided to the Authority instead it found that the Authority had transmitted to the previous email address despite the request by the applicant on 12 November 2018 to update his contact information including his residence address and email address: [applicant’s first email address redacted].
Particulars
a) The applicant sent an email to the Authority on 12 July 2018 attaching a scanned copy of his signed Written Submissions and copies of some relevant country information in support of his and written submissions and also to update his contact information including his residence address and email address.
b) The applicant also sent an email to the Authority on 29 November 2018 drawing attention to his previous email sent 12 July 2018 about requesting to update his contact information including his residence address and email address: [applicant’s first email address redacted].
c) The applicant also informed the Authority on 29 November 2018 that he has had no response from the Authority (IAA) till to date and he was very anxious to know the status of his said referred application which was referred to the Authority on 26 June 2018 by the Department of Home Affairs. If a decision was already made by the IAA reviewer, please send him a copy of the decision as early as possible to his email address above (email: [applicant’s first email address redacted]).
d) The Authority sent an email attaching the Authority's decision to the applicant's email address: [applicant’s first email address redacted]. It was found that the Authority sent its decision to applicant's previous email address: [applicant’s second email address redacted].
e) This has led to an absurdity because the last email address was before the Authority's reviewer hence this invalidated the review done by the Authority.
Ground 2
2. The Authority acted unreasonably and denied the applicant procedural fairness in not exercising its power, and not considering whether to exercise its power under s 473DC (3) to invite the applicant to comment on the authenticity of the documents orally or in writing before it made its decision.
Particulars
a) The IAA failed to afford an opportunity to the applicant inviting him to comment on the authenticity of the documents submitted by the applicant. Relevantly to this decision, “the applicant argues that these documents are probative in establishing the applicant's significant political activity and profile, and the reasons why the EPDP group were, and continue to be, particularly interested in him, placing him at risk”.
b) Section 473DC(3) of the Migration Act 1958, has moreover been found to be a discretionary power. In DGZ16 v Minister for Immigration & Anor [2017] FCCA 623 at [105]. There had been no request from the applicant for the IAA to exercise the power in that case. However, in this case the applicant argues that these letters are probative in establishing the applicant's significant political activity and profile, and the reasons why the EPDP group were, and continue to be, particularly interested in him, placing him at risk at [para 14].
c) The exercise of the power under section 473DC of the Migration Act 1958 can still be challenged on the ground of legal unreasonableness depending on the particular circumstances of the case. It was unreasonable for the IAA not to consider giving the applicant an effective opportunity to address the dispositive issue in this case.
d) These circumstances constituted a constructive failure to exercise jurisdiction, as the IAA failed to afford the applicant an opportunity inviting him to comment on the authenticity of the documents submitted by the applicant before it made a decision.
Ground 3
3. The applicant contends that the failure to exercise the power, or to consider whether or not to exercise the power, in s473DC(3) to put the applicant on notice that, in contrast to the delegate's decision, his credibility concerning some of his claims was in issue was unreasonable such that the Authority committed a jurisdictional error.
Particulars
a) In Minister v Li (2013) 249 CLR 332 at [29], [47] and [63] that the High Court stated: “When a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably”.
b) In DZU16 v Minister [2017] FCCA 851 at [116]-[124] Judge Driver applied this principle to s473DC.
a) The Federal Court in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 confirmed (at [65]) that there is no obligation on the IAA to give any notice to a referred applicant that it may make a particular finding and to invite comment on this possibility, either in writing or at an interview. However, it observed that good and reliable decision-making might be enhanced if an IAA reviewer adopted this course and sought comment.
b) The Authority's reviewer A Harrison's disbelief of the applicant was based on fact that the applicant will not be harmed. There are aspects of the Authority's reviewer A Harrison's reasoning which suggest to the disinterested observer an enthusiasm to reject the applicant's claims which may not be wholly warranted.
Ground 4
4. The Immigration Assessment Authority (“the Authority”) made a jurisdictional error by failing to consider inviting or failing to invite comment from the Applicant as to the new Department of Foreign Affairs and Trade Report dated 23 May 2018 (2018 DFAT Report) before relying upon that document in determining the review.
Particulars
a) The Immigration Assessment Authority at [paragraph 36] of its decision, the Authority considered an updated Country Information report of Sri Lanka. The report was published after the delegate's decision and the delegate relied upon an earlier DFAT report on Sri Lanka published on 23 May 2018. The delegate considered the new information after the interview with the applicant.
b) the Authority considered the said 2018 DFAT Report under s 473DC(l) of the Migration Act 1958 (Cth) (Act).
c) The Authority relied upon the 2018 DFAT Report in reaching its decision (see at paragraphs 36).
d) It was legally inreasonable for the Authority to fail to consider exercising s 473DC(1) of the Act so as to invite comment form the Applicant (Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82]).
e) In any event, it was legally unreasonable for the Authority not so to exercises 473DC(1) of the Act (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21]).
5. To the extent that CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 displaces the above reasoning in the present case, the Applicant submits that judgment was, with great respect, wrongly decided.
Ground 6
6. The Authority accepted some of the applicant's claims but not others. In the circumstances, in relation to the claims which the Authority did not accept, it was necessary for the Authority to take into account of the possibility that those events claimed by the applicant occurred: see Minister v Rajalingam (1999) 93 FCR 220. The IAA did not take into account this possibility. This was a jurisdictional error.
Ground 7
7. The Authority failed to consider societal discrimination enunciated by the Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emerson Report) superimposed by the DFAT report 23 May 2018.
Particulars
a) The Authority said “While it is possible the applicant may experience social stigma on return as a returning asylum seeker.......[para 47].
b) DFAT assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities and this accords with reports of refugees and failed asylum seekers being socially stigmatised upon their return. DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. According to the 2018 Emerson report, Tamils also experience pervasive and insidious forms of stigmatisation.” at [para 55] of the said report.
c) The Authority also said “Given the department's unauthorised disclosure of the applicant’s personal information on its website in January 2014, I accept the authorities ( or pro-government proxies) may have accessed this information and have inferred the applicant travelled to Australia as an IMA for the purpose of seeking asylum. However, that this knowledge, that the applicant sought asylum in Australia, would increase the chance of harm for the applicant such that there would be a real chance of harm for any reason.”[at para 51].
Ground 8
8. The Authority ought to have considered the possibility that allegations of torture and mistreatment suffered by the returnees were true. Its failure to do so involved a misapprehension of the “real chance” test which was a jurisdictional error.
Particulars
a) The applicant would be remanded upon his return to Sri Lanka and would be exposed to the prison conditions and also due to his background, he would face a real risk of Cruel or Inhuman Treatment or Punishment (CITP) or Degrading Treatment or Punishment (DTP).
b) While the UNHCR noted claims of detention, ill-treatment or torture regarding Sri Lankans - particularly Tamil-asylum seekers returned to Sri Lanka following the rejection of asylum claims, the DF AT report CIS29707: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka acknowledged that'[t]here is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.
c) The IAA failed to adequately consider the available Country Information “Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016 and did not consider the subsequent Country Information of the International Truth and Justice Project July 2017 “Unstopped: 2016/17 Torture in Sri Lanka July 2017 and the Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018.
Ground 9
9. The Authority said “However, I am satisfied that as a consequence of the department's 2014 data breach, the authorities ( or pro-government proxies) in Sri Lanka may have learned of the applicant's detention in Australia on 31 January 2014, and inferred he travelled to Australia as an Irregular Maritime Arrival (IMA) for the purpose of seeking asylum.
Particulars
a) The Applicant's personal information was published online in 2014 due to a data breach on the Department of Immigration and Border Control website.
b) This breach placed the Applicant in greater danger than he otherwise would be of being:
i. Killed, harmed or mistreated by the Sri Lankan Army, Police and Sri Lankan Government Authorities;
ii. Indefinitely imprisoned by the Sri Lankan Army, Police, Sri Lankan Government Authorities and particularly EPDP militia group; and Killed, harmed or mistreated and the EPDP gang members who have power and control in the community and in the Sri Lankan government.
c) This constitute a meaningful assertion of jurisdictional error and, accordingly, jurisdictional error is not made out.
Ground 10
10. The applicant stated that the harm he would face if he were to return to Sri Lanka is due to the essential and significant reasons of his ethnicity as a young Tamil from former LTTE controlled area in the Northern part of Sri Lanka real or imputed political opinion as supporter of LTTE and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct: see Ram v MIEA (1997) 190 CLR 225; and MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].
Ground 11
11. The Authority erred in law in failing to respond to the appellant's claim to fear of significant harm in Sri Lanka prisons by reason of being imprisoned on pre-trial remand for up to two weeks.
Particulars
a) The Authority's findings in respect of the applicant's claim for a protection visa on the complementary protection ground in s 36(2)(aa) of the Migration Act 1958 (Cth) in contrast to the Refugees Convention ground in s 36(2)(a). The Authority did not deal with the applicant's case of torture whilst in remand detention under the complementary protection provisions.
Ground 12
12. The IAA alleged in general terms, the situation for Tamils in Sri Lanka in relation to their civil and human rights has improved contrary to the overwhelming independent country information on human rights in Sri Lanka. However, the DF AT reports do not follow that the situation will continue to improve.
Particulars:
a) Where the political situation in a country is “fluid”, political developments concerning human rights and civil rights can move in different direction, including backwards (by deteriorating)-of the political situation in Hungary and Poland in recent years.
b) The Guardian Australian Edition dated 27 October 2018 reports “Sri Lanka in political turmoil after prime minister Wickremasinghe sacked” President replaces PM with strongman Mahinda Rajapaksa sparking constitutional crisis.
c) The Guardian Australian Edition dated 27 October 2018 also said “The Sri Lankan Tamil parties extended support to Sirisena in the last presidential elections in 2015 to keep Rajapaksa away from power. By removing Wickremesinghe as prime minister, the moderate gains achieved in the last three years, by raising the trust of the Sri Lankan Tamil community on the State in implementing reconciliation measures in post-war Sri Lanka, may wither away. The JO and SLPP, led by Rajapksa, also consistently opposed any move towards reconciliation and political concessions to Tamil community.”
d) The applicant states that this process of the Authority was unreasonable. The Authority failed to explain why it preferred the DFAT reports in the review materials and the new DFAT report 23 May 2018 in light of the very serious allegations made in the country report “Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016” and about the Sri Lankan Authorities and particularly the Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018.
e) Failure to consider this information by the Authority in its review is a jurisdictional error.”
(Errors in original)
Each of the grounds was interpreted for the applicant, and the applicant was invited to say whatever he wished in support of each of the grounds.
I note that in relation to Ground 4, Ground 6, Ground 7, Ground 8, Ground 9, Ground 10, and Ground 11, the applicant provided the same response when asked what he wished to say in support of each of those grounds. The applicant’s response was that if he had been returned earlier he would have been safe, but that there are new elections around the corner and that he will be killed or disappear if he is returned. He also asserted that he would be put in jail and would have "problems".
Ground 1
As I understood the applicant, Ground 1 is a complaint that the Authority's decision was not sent to him at the correct email address. The first respondent does not take issue with that explanation.
However, in circumstances where the first respondent does not oppose time being extended to the applicant to seek judicial review of the decision of the Authority, there can be no unfairness suffered by the applicant as a result of the Authority's decision being sent to the wrong address.
Furthermore, s.473EB(3) of the Migration Act 1958 (Cth) (“the Act”) states that a failure by the Authority to comply with the notification to an Applicant within 14 days of the day of the decision by one of the specified methods, does not affect the validity of the decision.
In the circumstances, any error by the Authority in notifying the applicant at his incorrect email address would not appear to have any prospect of establishing jurisdictional error on the part of the Authority.
Accordingly, Ground 1 would appear not to demonstrate any jurisdictional error.
Ground 2
Ground 2 asserts that the Authority acted unreasonably and denied the applicant procedural fairness in not considering whether to invite the applicant to comment on the authenticity of documents provided to it. During the course of the hearing, the applicant said that he had been criticised for not tendering his original birth certificate and other certificates, but that he had done so later and had received no response.
I asked the applicant, were these documents provided before the Authority's decision or after the Authority's decision. The applicant replied that they were provided by him after the Authority's decision.
In any event, there is no obligation on the Authority to give the applicant its thoughts on the authenticity of documents, material or evidence provided by the Applicant in support of his visa application. Insofar as the applicant may be seeking the Authority's thought processes and its assessment of the evidence, that does not constitute information for the purposes of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (“SZBYR”) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
Moreover, s.473DC of the Act allows the Authority to seek additional information should it choose to do so. There is nothing on the face of the Authority's decision record, or anything identified by the applicant this morning, to suggest that the Authority's discretion not to seek any further information from the applicant about the authenticity of his documents, was exercised other than according to law. Section 473DC(2) of the Act states that the Authority does not have a duty to get, request or accept any new information, whether the Authority is requested to do so or in any other circumstances.
As stated above and in any event, the documents to which the applicant has referred in Ground 2 are documents that postdate the decision of the Authority.
Accordingly, it would appear that there is no jurisdictional error demonstrated by Ground 2.
Ground 3
Ground 3 asserts that the Authority should have put the applicant on notice of its adverse credibility findings, and that it was unreasonable for the Authority to fail to do so. However, the decision of a delegate of the first respondent on 15 June 2019 (“the Delegate”) made adverse credibility findings about the applicant, clearly putting the applicant on notice that his credibility was an issue.
Following the Delegate’s decision, the applicant was aware, or should have been, that his credibility was an issue. Both the Delegate’s decision and the Authority’s exchanges with the applicant during the hearing were sufficient to indicate to the applicant that everything he said in support of his application was in issue (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
To the extent that the applicant seeks from the Authority its thought processes in relation to the issue of his credibility, again as stated above, the Authority has no obligation to provide that, and indeed, it is not information that generates any obligation on the part of the Authority.
It is well established that the Authority’s disbelief of an applicant’s evidence arising from inconsistencies, the Authority’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence are not “information” that enliven any obligation on the Authority to give to the applicant for comment. In SZBYR at [18], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated as follows:
“18.Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"[14].
"does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”)
Accordingly, Ground 3 would appear not to demonstrate any jurisdictional error.
Ground 4
Ground 4 asserts that the Authority failed to consider inviting or failed to invite the applicant to comment on independent country information, being a Department of Foreign Affairs and Trade report dated 23 May 2018, and suggests that information is new.
Again, there was no obligation on the Authority to invite the Applicant to comment on that information. It was information clearly referred to by the Delegate in its decision in at least three references.
Further, the country information to which the Authority has regard and the weight it gives that information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
Accordingly, Ground 4 does not appear to demonstrate any jurisdictional error.
Ground 6
Ground 6 asserts that the Authority should have considered the possibility that the findings it made were not correct in accordance with Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220. That “What if I am wrong” test does not apply in circumstances where the adverse findings by the Authority were not attenuated by any doubt, as is the case before this Court.
In the circumstances, Ground 6 is misconceived and does not demonstrate any jurisdictional error on the part of the Authority.
Ground 7
Ground 7 asserts that the Authority failed to consider a particular report, identified as report of the UN Rapporteur Ben Emerson QC dated 23 July 2018. True it is that the Authority did not refer to that piece of country information, neither was it provided with that country information by the Applicant.
Again, as stated as above, the country information to which the Authority has regard and the weight it gives it is a matter for the Authority.
Ground 7 does not appear to establish any jurisdictional error.
Ground 8
Ground 8 asserts that the Authority should have considered mistreatment of the applicant as a returnee, and that its failure to do so involved a misapprehension of the “real chance” test.
However, in its decision record the Authority specifically referred to the relevant law in relation to well-founded fear of persecution insofar as it is defined in s.5J of the Act.
A fair reading of the Authority's decision record makes clear that the Authority accurately summarised the Applicant's claims for protection, made relevant factual findings and ultimately rejected the Applicant's claim to have a well-founded fear of persecution for the reasons claimed. The adverse findings made by the Authority were based on inconsistent evidence provided by the applicant which were identified with particularity by the Authority.
The Authority carefully considered all possibilities of harm that the applicant claimed, including possibilities beyond the claims made by the applicant.
Ultimately, the Authority found there was not a real chance that the applicant would be targeted for any harm, by any Sri Lankan authorities, members of the Eelam People’s Democratic Party (“EPDP”) or others, because he is a young Tamil male or for any perceived involvement with the Liberation Tigers of Tamil Eelam (“LTTE”) or because he has scars on his body or for any other reason.
Those findings would appear to be open to the Authority on the evidence and material before it and for the reasons it gave. They were based on probative evidence and do not appear to be without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Accordingly, Ground 8 would not appear to establish jurisdictional error on the part of the Authority.
Ground 9
I understand Ground 9 to assert that the Authority failed to consider that a data breach in 2014 by the Department of Immigration and Border Protection, may have placed the applicant in greater danger than he otherwise would have faced.
The Authority's decision record specifically referred to the Department's unauthorised disclosure of the applicant's personal information on its website in January 2014.
The Authority accepted that the authorities in Sri Lanka or pro-government proxies may have access to that information and infer that the applicant travelled to Australia as an irregular maritime arrival, for the purpose of seeking asylum.
However, the Authority found the knowledge that the applicant sought asylum in Australia, would not increase the chance of harm for the applicant such that there would be a real chance of harm for any reason.
That finding was open to the Authority on the evidence and material before it and for the reasons it gave and would not appear to be without and intelligible justification.
In the circumstances, the applicant’s complaint in Ground 9 would not appear to demonstrate jurisdictional error on the part of the Authority.
Ground 10
Ground 10 asserts that the harm the applicant would face if he was to return to Sri Lanka was due to his ethnicity as a young Tamil male from a former LTTE controlled area in the northern part of Sri Lanka, and as a supporter or imputed supporter of the LTTE. As such, he would suffer systematic persecution and discrimination for those reasons.
I asked the applicant what he meant by Ground 10 and the applicant said that he needed protection, that he had been living in a different area and that the EPDP believed that he supported the LTTE, so if he returned, he would be killed and tortured.
As stated above, having considered the applicant's evidence in great detail and having identified the concerns that it had with his evidence, the Authority concluded that there was not a real chance that the applicant would be targeted for any harm for any reason in Sri Lanka, including because he is a young Tamil male with perceived involvement with the LTTE.
That finding was open to the Authority on the evidence and material before it and for the reasons it gave and would not appear to be without and intelligible justification.
Accordingly, Ground 10 does not appear to have any prospect of establishing jurisdictional error on the part of the Authority.
Ground 11
Ground 11 asserts that the Authority erred in failing to consider the applicant's claim to fear significant harm in Sri Lankan prisons, by reason of being imprisoned on pre-trial remand for up to two weeks.
A fair reading of the Authority's decision makes clear that the Authority considered what may happen to the applicant, as a returned failed asylum seeker. However, the Authority concluded that, having been satisfied that the applicant departed Sri Lanka lawfully, the applicant would not face charges and arrest under the Immigrants and Emigrants Act for an illegal departure and would, therefore, not spend any time in police custody or in an airport holding cell. In any event, the Authority further found that such conduct would not amount to persecution.
The Authority was not satisfied that there was a real chance of serious harm for the applicant, in connection with being a returned asylum seeker.
The Authority further concluded that having found there was not a real chance that the applicant would face any harm from Sri Lankan Authorities or others for any reason, including the Department's unauthorised disclosure of his personal information in January 2014, it was similarly not satisfied that there is a real risk of significant harm for these bases.
In considering the complementary criterion in s.36(2)(aa) of the Act, it is well-established that the Authority is entitled to rely on its findings, that there was no real chance of the relevant harm alleged for Convention reasons in assessing whether there is a real chance of significant harm for complementary protection when the same essential claims and facts are relied upon (see MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57] per Robertson J).
Accordingly, Ground 11 does not appear to establish jurisdictional error on the part of the Authority.
Ground 12
Ground 12 asserts that there is recent country information that suggests that the improvements in civil and human rights in Sri Lanka will not continue. The applicant then identifies two pieces of country information each dated 27 October 2018.
Again, that is not information that was provided to the Authority by the applicant and, I note, predates the Authority's decision by only two days. As stated above, the country information to which the Authority has regard and the weight it gives that information is a matter for the Authority.
In the circumstances, Ground 12 does not appear to establish jurisdictional error on the part of the Authority.
Conclusion
In considering whether to set aside Registrar Morgan’s order dismissing the applicant's application and reinstating the applicant’s application for judicial review I note that relevant principles have been summarised by the first respondent in their submissions as follows:
“Relevant principles
6. The principles governing an application for reinstatement of an application that has been dismissed under r 13.03C(1)(c) of the Rules were stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530. In sum, these are whether there was an adequate explanation for the applicant's non-appearance, the existence and nature of any prejudice that might flow to the other party if the application is reinstated, and whether the applicant has reasonably arguable prospects of success on the substantive application.
7. While the Minister concedes that any prejudice flowing from the Reinstatement Application being granted could be properly mitigated by way of costs, the Minister submits that the Reinstatement Application ought to be dismissed on the basis that the applicant has failed to provide an adequate explanation for his non-appearance and that the substantive application filed on 19 December 2018 is devoid of merit.
8. The discretion to set aside an order in the nature of that made under r 13.03C(1)(c) of the Rules must be exercised judicially, and if the substantive application does not articulate a case which is “reasonably arguable”, then there is no purpose to reinstate the proceedings. Indeed, as Mortimer J held in CAL15 v Minister for Immigration and Border Protection, where there is no arguable case on judicial review “it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice”.”
I accept that there is no prejudice to the first respondent in the event that the application was reinstated.
However, having regard to the failure of the applicant to provide a satisfactory explanation for his failure to appear; the fact that none of the grounds identified in the application demonstrate an arguable case for the relief sought and none is apparent on the face of the Authority’s decision record; and, having regard to the public interest in having these administrative decisions finalised, I am not satisfied that the interests of justice would demand that the applicant's application for judicial review be reinstated.
Accordingly, the applicant's Application in a Case filed on 13 May 2019 should be dismissed with costs.
I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 6 June 2019
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