DSU16 v Minister for Immigration and Border Protection

The Authority 4 The Authority had regard to the material referred to it pursuant to s 473CB of the Act. Pursuant to s 473DD it also had regard to the following "new information" provided by the appellant's wife: (1) that in around June 2016, the appellant's wife and children were forced to relocate from their home area to another area some 25 km away in order to avoid ongoing threats; (2) that the Sri Lankan Army had unearthed videos of the appellant's wedding which had been organised by the LTTE, which the appellant found out about around two months ago. 5 The Authority accepted many of the appellant's claims. For example, it accepted that the appellant was a Hindu Tamil and that he had married his wife in Jaffna, which at that time was administered by the LTTE. It accepted that the appellant had owned and operated two different kinds of businesses, a restaurant and a grocery store, both in Jaffna and later in Kilinochchi where he had relocated in 2006 until 2012 when he departed Sri Lanka. It further accepted that, in view of operating businesses in areas that had been from time to time under the military control and civilian administration of the LTTE, it is plausible that the appellant sourced stock from a wholesaler connected with the LTTE. It also accepted that the appellant and his family and been interned in an Internally Displaced Person or "IDP" camp in 2009. Thereafter, it was accepted that from 2010 to 2012, the appellant had resumed his grocery business. 6 The Authority also accepted that being a "wealthy" businessman, he was at risk of extortion or other forms of harm by criminal elements, including armed groups. It thus accepted that the appellant was approached by unidentified persons in 2011 who had come to his shop and had asked questions of him about his finances and had sought to extort him with threats and intimidation. However, it found that the men were criminal elements rather than agents of the Sri Lankan state or the Criminal Investigation Department (the "CID"). 7 However, it did not accept all of the appellant's claims, and in particular rejected his contention that he had been involved with the LTTE and that he had worked in its intelligence wing from 2003. For example, the appellant stated that when he and his family had been interned, he was not separated from his family and was not sent to a rehabilitation camp. The Authority took this as a clear indication that the appellant was not identified by the Sri Lankan authorities as a person suspected of LTTE involvement. It also rejected his claim that he had worked for the intelligence wing of the LTTE. This was a late claim, not mentioned by the appellant in his written visa application or in early interactions with the first respondent. Again, the Authority relied upon the fact that the appellant was not identified by the Sri Lankan authorities as having any LTTE connections whilst he was interned in rejecting this claim. 8 The Authority also did not accept that in 2006 armed men had approached the appellant's shop and fired a gun injuring a friend who subsequently died. The Authority said that in his evidence to the delegate, the appellant was only able to state the year this occurred and was unable to recall the date and month of the alleged incident. His evidence was described as vague and lacking in details. The Authority also noted that in his arrival interview the appellant had indicated that he was unaware of who the perpetrators of the 2006 shooting were, and yet in his visa application the appellant had referred to the men throughout as the "CID". The Authority found that this was done to "enhance his claims" and was not factual. 9 The Authority considered recent country information which demonstrated that incidents of extortion and ransom had fallen considerably since 2015. It therefore was not prepared to accept that since the appellant's arrival in Australia, his family had been approached by criminal elements because of the appellant's wealth. 10 The Authority made the following finding at [35] of its reasons for decision: I am not satisfied that the applicant would face harm now or in the foreseeable future if he were to return to Sri Lanka as a wealthy businessman. 11 The Authority finally did not accept that the appellant would be imputed with any pro-LTTE political opinion on account of having married in Jaffna during a period when the LTTE exercised military and civil administrative control in the area, or that the appellant would face harm on the assumption that the authorities are now in possession of footage of the appellant's wedding. The Authority found that all persons living in Jaffna at that time necessarily had contact with the LTTE in their daily lives. The wedding video thus did not add to the risk of harm. 12 The Authority also considered the risk of harm arising from the fact that the appellant is an ethnic Tamil from the north of Sri Lanka. It said that the available country information indicated that whilst ethnic Tamils continue to face discrimination in Sri Lanka on the basis of ethnicity alone, this did not amount to serious harm. 13 It concluded at [49] as follows: After considering the applicant's evidence and the country information discussed above, I do not accept that the applicant would be targeted upon return to Sri Lanka because of his Tamil ethnicity or because he is a Tamil from the North. I am not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future on the basis of his Tamil race or his Tamil race and origins from the North. 14 The Authority also rejected a claim that the appellant would face a real chance of harm arising from his return to Sri Lanka as a failed asylum seeker. It had accepted the appellant's evidence that notwithstanding that he had used a valid passport to exit Sri Lanka, he did not have this passport now and could not use it to return to Sri Lanka. For returnees travelling on temporary travel documents, as would be the case with the appellant, the Authority reasoned that the Sri Lankan police would undertake an investigative process to confirm the person's identity. This often involves, it was found, interviewing the returning passenger, contacting the person's claimed home suburb or town police, contacting the person's claimed neighbours and family and checking criminal and court records. The Department of Foreign Affairs and Trade ("DFAT") assesses, the Authority said, that returnees are treated according to these standard procedures, regardless of their ethnicity and religion, and are not subject to mistreatment during their processing at the airport. 15 For these reasons s 36(2)(a) was not satisfied. 16 The Authority finally also considered the complementary protection provisions in s 36(2)(aa) of the Act. It accepted that upon his return to Sri Lanka the appellant might face some level of societal discrimination, but said that this did not amount to significant harm as defined. It did not otherwise accept the claimed risks of harm which had previously been relied upon by the appellant for the purposes of his s 36(2)(a) claim.

The Federal Circuit Court 17 The appellant was represented in the Federal Circuit Court by a solicitor. He was not represented before me. 18 The primary judge set out the grounds of review at [16] below, which were as follows: Ground 1 The [Immigration Assessment Authority's (the "IAA's")] assessment is founded on a wrong assumption of an integer of a claim. The [IAA] failed to understand the claim that was put forward by the applicant. PARTICULARS 1. Following the delegate's decision the applicant made the following claims [5]. "In around June 2016 the applicant's wife and children were forced to relocate from their home area to another area some 25 km away in order to avoid ongoing threats: Information that the Sri Lankan [A]rmy have unearthed videos of the applicant's wedding which had been organised by the LTTE, which the applicant found out about around two months ago; 2. The IAA considered the new information provided at [5]. 3. The IAA was of the view that the LTTE as de facto civil administrators of the areas they controlled would have had responsibilities in relation to civil affairs such as marriage [10] 4. At [37] the IAA stated "I therefore do not consider that the wedding footage, if available to the Sri Lankan authorities, would in any way add to the applicant's profile or the risk of harm the applicant would face upon return to Sri Lanka or in the foreseeable future. 5. At [36] the IAA states "I further do not accept that the applicant will be imputed with any pro LTTE political opinion on account having married in Jaffna during a period when the LTTE exercised military and civil administrative control in the area..." 6. At [37] the IAA acknowledges that "all persons" living in the LTTE controlled areas had contact with the LTTE and its civilian administration in their daily lives including in matters such as Jaffna. 7. It is submitted that the IAA accepted that the applicant's "wedding footage" may be available to the Sri Lankan authorities. 8. As the IAA did consider that the applicant's wedding footage may be available with the Sri Lankan authorities (and in the absence of any clear findings to the contrary), it is submitted that the IAA impliedly also accepted the manner the wedding footage became available to the Sri Lankan authorities (i.e. Sri Lankan [A]rmy unearthed the wedding videos) [5]. 9. The applicant claimed that the [A]rmy have unearthed videos of the applicant's wedding which had been organised by the LTTE and as a result the applicant's wife and children were forced to relocate from their home area to another area some 25 km away in order to avoid ongoing threats. 10. The IAA failed to consider the nature of the claim as unlike "all persons" who may have contact with the LTTE and its civilian administration the applicant claimed that it was the LTTE that had organised the wedding. 11. If the LTTE had organised the applicant's wedding this cannot be interpreted as part of the LTTE's civil administration process. 12. Further if the Sri Lankan [A]rmy had unearthed the applicant's wedding videos, and as a result the applicant's family had to relocate due to threats, it is not open to infer as the IAA did at [37] that this finding would not "in anyway add to the applicant's profile" or place him at risk of harm. Ground 2 The IAA committed jurisdictional error at [CB 361, 36] and [CB 362, 37], in that it failed to consider essential integers of the applicant's claims that formed part of the new information as part of its assessment of future harm. PARTICULARS 1. The applicant put forward new information to the IAA [CB 350]. 2. The IAA accepted the claims to be credible personal information [CB 355, 11]. 3. The new information contained the following essential integers of claims [CB 350]. a. The Sri Lankan Army "unearthed videos" of the applicant's wedding. b. The wedding was "organised" by the LTTE. c. The Sri Lankan Army personnel were searching for the applicant. d. The Sri Lankan Army personnel "showed video clips" of the applicant's wedding in an effort to find him. e. The wife and children relocated "because of increased threats against them as a result of suspicions against..." the applicant. 4. The IAA inferred that even if the Sri Lankan authorities were in possession of footage of the applicant's wedding he will not be imputed with pro LTTE political opinion [CB 361, 36] or "would in any way add to the applicant's profile or risk of harm that applicant would face upon return to Sri Lanka" [CB 362, 37]. 5. The IAA's finding at [CB 361, 36] and [CB 362, 37] failed to consider that the applicant had come to the adverse attention and was sought after by the authorities after the videos had been unearthed. Ground 3 The Secretary failed in his statutory obligation to provide information that was "relevant" that had been received or produced by the First Respondent upon which a decision to grant the applicant [Primary Application Information Service ("PAIS")] was based. Particulars 1. The applicant was identified by the First Respondent as an asylum seeker who was eligible to receive PAIS [CB 199]. 2. A particular document published by the department titled "Additional guidance on PAIS eligibility criteria and assessment process" refers to four Criterions an asylum seeker must meet to be considered eligible for PAIS assistance. 3. This document (referred at 2 above) states "that a person must either satisfy criteria 1 and 2 and 3 OR may satisfy criterion 4 alone". 4. Criterion 3 appears to have 2 limbs namely, a. PAIS "assistance is in the best interests of government if it facilitates applications from non-citizens at risk of a protracted period of detention following the lifting of the application bar." b. PAIS "assistance is also in the best interests of government where individuals are identified as exceptionally vulnerable..." 5. The s46A bar was lifted by the First Respondent, for the purpose of allowing the applicant "to make a valid application for a Safe Haven Enterprise (subclass 790) visa" - [CB 263]. It would appear therefore that following "the lifting of the application bar" the applicant was not at risk of a protracted period of detention. On the basis of the evidence contained in the Court Book, it could not be said that PAIS assistance was provided to the applicant because following the "lifting of the application bar" the applicant was at risk of a protracted period of detention. 6. Therefore PAIS assistance was offered to the applicant in the best interests of government because the applicant was identified as exceptionally vulnerable. 7. This information concerning the applicant being considered exceptionally vulnerable and the basis upon which to grant the applicant PAIS does not appear to have been before the Authority. 8. This information (referred at 7 above) is "relevant information" that was in the Secretary's possession or control that was considered by the Secretary (at the time the decision is referred to the Authority) - s473CB(1)(c). This is so, because the decision to grant the applicant PAIS has been referred to at [CB 199], [CB 197] and [CB 205] however the information concerning the applicant being considered exceptionally vulnerable and or the basis upon which to grant the applicant PAIS was not referred to the IAA under s473CB(1)(c) of the Act. 9. Due to the Secretary having failed to comply with his statutory obligation in referring relevant information / documents, the review process before the Authority had been disabled. 19 The Court rejected each of the three grounds. Ground one was rejected on the basis that it was open to the Authority to consider that the appellant's reference to the LTTE "arranging" his wedding was a function performed by the LTTE as a body with de facto civil administration over Jaffna at that time. The Court also rejected an attempt to link the discovery of the wedding video with a claim that the family of the appellant had recently moved 25 km away from their prior home. 20 The Court rejected the second ground on the basis that the Authority, having decided that the claims made about the wedding should be received as "new information", was nonetheless entitled to find that the discovery of this material did not add to the appellant's risk profile. That finding was not inconsistent, it was said, with the video being credible personal information which satisfied the requirements of s 473DD of the Act. 21 The third ground was that the delegate had failed to comply with s 473CB(1)(c) of the Act, which is in these terms: (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA: … (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; The "material" here said not to have been provided to the Authority comprised two documents produced under a subpoena which sought documents relating to the grant of assistance to the appellant by the Primary Application Information Service ("PAIS"). PAIS is government funded migration assistance provided by a registered migration agent to assist claimants with the making of applications for a protection visa. The first document was entitled "Primary Application Information Services Eligibility Check - Standard Operating Procedure" (the "Operating Procedure Document"). I infer that this had been prepared by officers of the first respondent. It was about 143 pages long and set out a series of protocols and guidelines for determining, amongst other things, who should be eligible for PAIS assistance. It was a general document which did not concern the appellant specifically, or, indeed, any other applicant for a visa. 22 The other document was an email from an officer of the first respondent whose name had been redacted and which was dated 15 September 2014 (the "Email"). It concerned the appellant and was in these terms: Sensitive Good Morning RE: CID: [Name of Appellant] The costs are Approved for Torture and Trauma for Further 6 Sessions up to a total of $2946. Regards ASAS Officer CAS/ASAS Operations Community Programmes Operations Department of Immigration and Border Protection 23 The appellant submitted that the documents were relevant to his claims and should have been given to the Authority pursuant to s 473CB(1)(c). In particular, in order to be eligible for PAIS assistance a claimant must be found to have been "exceptionally vulnerable". The fact that the first respondent had formed that view about the appellant, he submitted, was relevant to an assessment of his claims. 24 The learned primary judge disagreed. His Honour held that the documents were irrelevant and said as follows at [52]: In respect of this ground, I accept the Minister's contention that there was no evidence of torture or trauma having been suffered by the applicant. The Authority was aware that the applicant was receiving assistance under the PAIS. This case can be distinguished from my decision in AKK17. The torture claim said to have been made in the submission reproduced at CB 305 was never developed, nor put in any relevant context requiring consideration by the Authority. The documents produced under subpoena are of no consequence, and did not need to be referred to the Authority by the Secretary. The reference to "torture or trauma" in the above paragraph is, I take it, a reference to the language of the Email.

Appeal 25 The sole ground of appeal was in these terms: The Judge in the federal circuit court committed a legal error when he dismissed the case he failed to not consider all the arguments of the appeal properly and denied me procedural fairness. (Errors in the original.) The appellant filed no written submissions in support of this ground. Before me, the appellant sought an adjournment of his appeal, pending the outcome of an appeal from a decision of Judge Street in CQR17 v Minister for Immigration & Border Protection [2018] FCCA 627. In that case, the applicant had also been given PAIS assistance and a subpoena had been issued to the first respondent to produce documents relating to the grant of that assistance. Judge Street described the documents in these terms at [30]: It was common ground that there were five documents, which included the PAIS guidelines that were not referred by the Secretary to the Authority under s 473CB of the Act. Those are all documents that came into existence in relation to the PAIS application and ones in which I find the applicant's migration representatives at the time of the Safe Haven Enterprise visa interview and at the time of the decision of the delegate and at the time of the application to the Authority, were well aware of the application of the PAIS scheme to the applicant in the present case and that there would be documents of the kind referred to. 26 A submission, similar to that made below, was made to Judge Street that these documents were relevant to an assessment of the applicant's claims, and that s 473CB(1)(c) of the Act had not been complied with. 27 I declined the application for an adjournment. It may be accepted that a failure to produce relevant documents under s 473CB(1)(c) could amount to a jurisdictional error because it prevents the Authority from performing its review function. As Thawley J recently observed in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [41]: A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a "review" of the kind authorised by Part 7AA. It [is] not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority's decision-making process - cf: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority's jurisdiction is, through no fault of its own, "constructively unexercised": SZFDE at [52]. His Honour went onto observe at [42]: … It is implicit that the statute contemplates that the Secretary's view as to relevance be reasonably formed on a correct understanding of the law - see: Kruger v The Commonwealth (1997) 190 CLR 1 at 36 (Brennan CJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] (Hayne, Kiefel and Bell JJ). If a critical piece of relevant information were unreasonably treated as irrelevant, it is possible that jurisdictional error could be established because of the effect of that error on the Authority's decision-making process and whether it conducts a "review" of the kind authorised. 28 It follows that whether a failure to comply with s 473CB(1)(c) of the Act constitutes jurisdictional error will depend upon the nature and content of the document or documents which have not been produced and will also depend upon whether they are relevant to the function of the Authority in reviewing a claimant's grounds. That is necessarily a fact driven enquiry to be determined on a case by case basis. 29 I was not able to tell if any of the documents before Judge Street in CQR17, a case concerning a car accident and possible brain injury, were similar to the two before me. Whether similar or not, however, in my view any determination of relevance in that case is unlikely to be of any assistance to this proceeding. I must consider whether the decision of the primary judge here that the two documents in question were irrelevant to an assessment of the appellant's claims in this case contained an error or errors of law. CQR17 will not assist me in that task. For these reasons, the adjournment was refused. 30 The appellant also sought to tender, without prior notice, a bundle of documents he said proved that the event he alleged had occurred in 2006, had in fact taken place. He explained that he had not previously produced them to the first respondent, and had not adduced them as "new information" for the purposes of s 473DD before the Authority, because his wife, until about three months ago, had been unable to get them to him. I declined to admit this material into evidence as it did not address a ground of judicial review before the Federal Circuit Court or a ground of appeal before me, but rather was an attempt to have me consider the merits of the Authority's findings of fact concerning the 2006 alleged incident: Sami v Minister for Immigration and Citizenship (2013) 139 ALD 1 at [9] per Jagot, Barker and Perry JJ. 31 I return to the appellant's ground of appeal. The first respondent, in his written submissions, contended as follows: The ground on its face does not establish appellable error by the Federal Circuit Court. The reasons for judgment of the primary judge are detailed and reveal not only the grounds of review that were advanced in the Court below by the appellant's legal representatives, but also the arguments that were made in support of those grounds. His Honour's reasons demonstrate, with respect, a considered and cogent approach to the appellant's arguments. Particularly considering that the appellant had the benefit of legal representation in the preparation and presentation of his claims before the Court, and in the absence of any development of the point by the appellant before this Court, there is no basis to the contention that the appellant was denied procedural fairness. I respectfully agree with these submissions. 32 I have nonetheless revisited the contention made below that there had been a breach of s 473CB(1)(c). For that purpose, I commence by considering the potential relevance of each document to an assessment of the likelihood of the appellant's claims as set out above, and of an application of ss 36(2)(a) and 36(2)(aa) of the Act to them. 33 The Operating Procedure Document describes in some detail how a claimant can be found to be "exceptionally vulnerable". Unsurprisingly, the circumstances are mostly concerned with the present health of a claimant in Australia. The document directs attention to enquiries about, for example, "Conditions affecting Cognitive Function"; "Mental Illness"; "Incapacitating Illness"; and "Difficulty completing an application form". Conclusions drawn about these enquires are unlikely to be relevant to the function of the Authority on review, save in a case where it might explain, for example, inconsistences in answers given by a claimant at different times. The document also directs one to consider "Torture and trauma" and states in that respect: Additional difficulties engaging in official government processes may also be associated with past experiences of torture or trauma. Individuals who have received recent torture and trauma treatment may be considered for an assessment of exceptional vulnerability where their cumulative experiences have had a significant impact on the person's ability to understand the protection assessment process and in articulating their claims for protection. 34 In my view, unless needed to better understand another document arising from a consideration of PAIS assistance, the Operating Procedure Document itself is unlikely to be relevant to the Authority's review function. I also find that it was not here relevant to an assessment of the appellant's claims. The Authority, which was aware of the fact that the appellant had received PAIS assistance, did not need this document to undertake its review function. The document said nothing about the appellant; it said nothing about Sri Lanka. 35 The second document is the Email. Unfortunately, there was no explanation of what it meant when it said "Approved for Torture and Trauma for Further 6 Sessions". Counsel for the first respondent contended that these were probably counselling sessions of some kind. The reference to "torture" cannot be evidence that the appellant had been tortured. He had never claimed that he had been so treated. The reference to "trauma" might - at its highest - be evidence of a conclusion reached by an unnamed public servant that the appellant might have suffered trauma. In my view, if that is what the Email evidences, it is irrelevant. Such an opinion could not enhance or detract from any of the historical claims the Authority was required to consider. Nor, for reasons given below, would it have assisted the Authority in considering inconsistences in the appellant's claims. In any event, the Email is probably not evidence that the appellant had suffered recent trauma. The reference to "Torture and Trauma" is more likely in this capitalised form to refer to a type of counselling to be provided. 36 Further, the Email was not needed to make the Authority aware that the appellant had received PAIS assistance. A letter seeking his consent to provide his details to a PAIS provider, together with his consent, was in the material sent to the Authority. I infer that members of the Authority would be aware of the PAIS program, and its mission of helping those who are "exceptionally vulnerable". I also infer that the Authority knew here that the appellant had received PAIS assistance. It is a matter for the Authority to take this into account in evaluating the evidence before it, especially in relation to possible reasons for inconsistencies in evidence. In that respect and in my view, knowledge of the Email by the Authority would have made no difference to the result below: Stead v State Government Insurance Commission (1986) 161 CLR 141. Other than suggesting that the appellant was to be given counselling sessions with PAIS assistance, it was not probative of any matter that might have assisted the Authority in reviewing his claims. In that respect, no submission was made by the appellant, who had PAIS assistance, that he had suffered prior trauma that had affected his ability to give evidence to the first respondent or the Authority. The Authority otherwise had before it all the material the appellant had given to the first respondent, including the "new information" set out above. 37 It follows that, in the particular factual circumstances here, the Email was not relevant. The Authority did not need it to perform its review function. I might have decided this issue differently if the Authority had been entirely unaware that the appellant had received PAIS assistance. But, for the reasons given, that was not the case. 38 This appeal should be dismissed with costs as agreed or assessed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.