AAF18 v Minister for Home Affairs
[2018] FCCA 3168
•25 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAF18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3168 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 65, 473CA, 473DB, 473DC(1), 473DD, 473CB |
| Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 |
| Applicant: | AAF18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 1 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 25 September 2018 |
| Date of Last Submission: | 25 September 2018 |
| Delivered at: | Perth |
| Delivered on: | 25 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms M. Jackson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicant’s originating application dated 31 December 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 1 of 2018
| AAF18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Introduction
The applicant in these proceedings is a citizen of Sri Lanka who arrived at Christmas Island on 1 May 2013 as an unauthorised maritime arrival.
The applicant applied for a Safe Haven Enterprise Visa (“SHEV”) on 25 May 2017.
The applicant’s claims for protection were detailed in a statutory declaration dated 24 May 2017. In summary, he claimed to fear harm because he was in an illicit relationship with a woman (who the Court will refer to as A), who is the daughter of a Muslim Provincial Council Minister in Colombo.
In 2012, the applicant claims to have been beaten after he was found at A’s house. He claims that he later fled to Jaffna. He further claims that “thugs” went to his house in Colombo, beat his father and damaged his house.
The applicant’s representative provided a submission to the delegate on 25 July 2017, in which she also raised claims related to the applicant’s Tamil ethnicity and his status as a failed asylum seeker.
A post-interview submission dated 14 August 2017 developed the further claim to fear harm as an imputed LTTE supporter and extracted relevant country information.
On 27 October 2017, a delegate for the Minister, after conducting an interview with the applicant on 9 June 2017, refused to grant him the visa.
The matter was then referred to the Immigration Assessment Authority (the “IAA”), in accordance with s.473CA of the Migration Act 1958 (Cth) (the “Act”).
On 5 December 2017, the IAA affirmed the delegate’s decision to refuse the applicant the protection visa he sought.
On 2 January 2018, the applicant applied to this court for judicial review of the IAA’s decision.
To succeed before this court, the applicant must show that the IAA’s decision is affected by jurisdictional error.
The applicant’s grounds of review in his application are as follows:
1.jurisdictional error;
2. bias, based on conscious or unconscious prejudice, by ignoring relevant materials;
3. identifying a wrong issue on a wrong question.
In addition to the judicial review application, the applicant filed three affidavits:
a)In his affidavit dated 2 January 2018, the applicant states that the IAA did not examine the real situation in Sri Lanka pertaining to young Sri Lankan Tamils.
b)The second affidavit, dated 12 April 2018, annexes country information regarding the clash between Muslims and the Sinhalese people in Sri Lanka and claims that this was not examined by the IAA.
c)The third affidavit, dated 30 August 2018, elaborates on the applicant’s claims to fear harm as an imputed LTTE supporter. It seems to suggest that the IAA did not properly assess this concern.
It is noted that on 28 February 2018, a Registrar of this court made orders requiring the applicant to file an amended application, with complete particulars and any written submissions. The applicant did not provide any amended application or written submissions.
Synopsis
For the reasons set out below, the court finds that the IAA did not fall into jurisdictional error. The applicant’s application for judicial review is, accordingly, dismissed.
Fast Track Applications
It is important to note that the applicant’s application was processed as a fast-track application.
This is relevant because it affects what the IAA can and cannot do and determines, in relation to judicial review proceedings before this court, what is and what is not jurisdictional error.
Pursuant to s.473DB of the Act, the IAA is required to review a fast-track reviewable decision without accepting or requesting new information and without interviewing the referred applicant. However, s.473DC(1) of the Act does permit the IAA to access documents or information that was not before the Minister when the Minister made the decision under s.65 of the Act if the IAA considers that information to be relevant. The IAA cannot consider this information unless there are exceptional circumstances to justify considering it, the information was not and could not have been provided to the Minister, and the information is credible personal information which was not previously known: s.473DD of the Act.
These provisions provide as follows:
Section 473DC(1)
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
In relation to this matter, the IAA indicated that it did have regard to the information referred to it by the Secretary, in accordance with s.473CB of the Act (CB 181 at [3]) and outlined that no further information had been either obtained or received.
The IAA’s Decision
The Court notes the Minister’s summary of the IAA’s decision at paragraphs 8 to 10 in his written submissions dated 18 September 2018. This is an accurate summary of the IAA’s decision, and the court adopts that summary as its own, adding other relevant information below.
At paragraph 3 of its written decision the IAA noted that it had had regard to the material given to it by the Secretary under s.473CB of the Act and that no further information had been obtained or received.
The IAA found that the applicant was a Tamil male from Colombo and that, despite some variance in information provided by him about his religion, he was a Hindu at the time of his relationship with A. The court notes that the IAA had concerns in relation to the applicant’s evidence about his religion (CB 201 at [6]).
In relation to the applicant’s claims arising from the relationship with A and “the thugs”, the IAA found as follows.
The IAA accepted that the applicant was in a secret relationship with A and that A’s father was a well-known politician who would have been upset about the relationship and how it was discovered. The IAA accepted the applicant was beaten by A’s family but found that he had exaggerated his loss of consciousness to embellish his protection claims (CB 201 at [7]-[8]).
Whilst the IAA found that it was plausible that A’s family cut off communication with the applicant, the applicant had not explained how A’s father found out that A had contacted him (CB 201 at [9]-[10]). The IAA had doubts about the circumstances of A’s father contacting an underworld figure to handle the situation, although it did accept that there had been a fight between a nephew of one of the thugs and the applicant (CB 202, [10]).
Further, the IAA determined that, while the thugs might have sought out the applicant as some sort of revenge tactic, the IAA did not accept that the applicant’s home was damaged or that his father had been beaten. The IAA also noted that the applicant had not reported any ongoing issues that would suggest that the matter is not now resolved (CB 202 at [11]).
On the basis of inconsistencies regarding the circumstances of the applicant fleeing to Jaffna, the IAA did not accept that the applicant fled to Jaffna to avoid harm from A’s family or the thugs (CB 202, [12]).
The court also notes the IAA’s assessment (CB 202, [13]) in relation to the applicant’s inconsistent accounts about the passport that he used to leave the country.
This led the IAA to conclude that, having considered the evidence before it and noting that the applicant was able to depart Sri Lanka via Colombo airport after undergoing regular immigration processes, it considered that the applicant’s passport was legal and that he travelled to Malaysia on a legal travel document. The IAA noted that, on the SHEV application, it states that the applicant travelled to Singapore and then on to Indonesia and Australia illegally by boat. The IAA considered this to be an error, as the rest of the applicant’s evidence refers to travel to Malaysia, not Singapore. In the SHEV interview, the applicant confirmed that he stayed in a room in Kuala Lumpur while his passage to Australia was being arranged.
In assessing whether the applicant was a refugee and held a well-founded fear of persecution as defined in ss.5H(1) and 5J of the Act, the IAA found that given the passage of time and lack of contact with A and her family, there was not a real chance A’s father would maintain any ongoing interest in the applicant. Therefore, there was not a real chance of harm on this basis (CB 203 at [16]).
Similarly, on the basis of its factual findings about the thugs, the IAA was not satisfied that there was a real chance of harm (CB 203-204 at [17]).
In assessing the applicant’s claims, the IAA considered DFAT country information and information submitted by the applicant regarding the applicant’s claims as a Tamil who was a failed asylum seeker.
Having considered country information regarding the improved situation for Tamils since the end of the war, the IAA found that the applicant was not at risk of harm as a young Tamil male (CB 204-206 at [20] and [28]).
The IAA found that the applicant did not meet the profile of a person of interest to authorities because he had no connection, familial or otherwise, with the LTTE and he is not from an LTTE-controlled area and had not been involved in any activities supporting the LTTE.
The IAA noted that the applicant had pointed to reputable non-government organisations which accuse Sri Lanka of allowing human rights abuses to continue. The IAA accepted that the Sri Lankan government is sensitive to the potential re-emergence of the LTTE, but the IAA found that the applicant was able to obtain a passport in 2012, which suggests that he is not on a stop list and is not, in the circumstances, a person of interest.
Noting that the applicant had departed Sri Lanka on a genuine passport, the IAA then assessed the applicant’s claims as a failed asylum seeker who departed illegally. The IAA found that the applicant would not be harmed by the authorities because of his status and would not otherwise face any difficulties returning to Sri Lanka (CB 206, [33]-[34]). On the basis of its earlier findings, the IAA also found that there were no complimentary protections owed to the applicant.
Did the IAA fall into Jurisdictional Error?
In relation to whether the IAA fell into jurisdictional error, the court notes the applicant’s three grounds of review, as outlined above. The court also notes the various claims made in the applicant’s three affidavits.
Ground 1
Ground 1, as indicated, simply refers to jurisdictional error. On its face, this is not a ground per se. It simply captures what this court must assess in determining whether or not the application for judicial review is successful. This was explained to the applicant.
In relation to this ground and the other grounds articulated by the applicant, the court notes that none of the grounds are particularised.
The Minister correctly noted that the failure to particularise any ground for review may be a sufficient basis for it to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
The court also notes, however, the recent decision of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]. Here, the applicant was not legally represented and was not fluent in the English language. It also appears, on his evidence, that his grounds of review – and, indeed, his application and all affidavits – were not prepared by him but for him. His application to this court also relates to his claims in relation to a protection visa application. In the circumstances, the applicant was asked to explain what he meant in relation to all of his grounds and the various claims articulated in his three affidavits. The applicant was asked to tell the court what he believes he meant when he wrote, or had written for him, the phrase “jurisdictional error”.
Unfortunately the response given by the applicant did not assist him in relation to the review before this court. In effect, the applicant seemed to suggest that he never got a chance to explain his concerns in relation to the conflicting evidence about his religion and his status as a Christian – and further, why he said what he said in his SHEV interview and in his submissions.
Having reviewed the evidence, it cannot be said here that the IAA failed to assess what the applicant might or might not have said about his religion. The IAA addressed the concerned it had about this evidence at paragraph 6 in its decision, and it makes a credibility finding that was entirely open to it.
Nowhere is the issue of harm in relation to being a Christian in Sri Lanka raised in the evidence before the IAA. In the circumstances, it cannot be said that the IAA failed to examine a relevant claim. That evidence simply did not exist on the record before the IAA. In the circumstances, no jurisdictional error can be seen to have occurred here.
Ground 2
In relation to ground 2, which alleges bias based on conscious or unconscious prejudice by ignoring relevant material, the court notes the Minister’s submissions detailed at paragraphs 17 and 18 in written submissions, as follows:
17.There is nothing in the IAA’s decision which suggest that there was any bias on its part. Neither is there any basis for a reasonable apprehension of bias, the test for which is whether a fair-minded lay observer, who was properly informed as to the nature of the decision to be made, the matters in issue and the conduct complained of, might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [85]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
18.Insofar as the Applicant alleges actual bias, there is nothing in the IAA’s decision that indicates a closed mind such that such a claim can be sustained. Nothing the IAA said indicates it was not open to persuasion. It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven. To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J at [69].
The applicant was asked to explain why he thought the IAA was biased. He responded, in effect, that he didn’t know what bias meant. Further, he indicated that what he was concerned about in relation to proceedings in this court was that the IAA “did not look at his case properly”.
In effect, what the applicant seeks is that this court engage in an impermissible merits review. It was explained to the applicant why this court cannot engage in merits review and what that term means.
In relation to the assertion that the IAA was biased, there is no evidence to suggest here that there was actual bias on the part of the IAA. Nor is there any evidence to suggest that a fair-minded lay observer might reasonably apprehend the IAA might not have brought an impartial mind to the decision-making process: Ebner v Official Trustee in Bankruptcy [2000] HCA 63.
There is no evidence that the IAA ignored relevant material or relied on irrelevant material. There is no evidence that the IAA approached its task here with anything other than an open mind and entirely objectively.
Accordingly, ground 2 fails.
Ground 3
In relation to ground 3, which alleges that the IAA identified a wrong issue on a wrong question, the court notes the Minister’s submissions at paragraphs 20 to 23, as follows:
20.It is unclear what ‘issue’ or ‘question’ the applicant contends was wrongly identified.
21.The applicant has provided no particulars of any facts considered by the IAA he says were irrelevant, or what relevant facts the IAA failed to consider. Arguments based on the use by a IAA of relevant or irrelevant considerations are concerned essentially with the proper application of the law, not with the process of making particular findings of fact: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [74]; Elara v Assistant Minister for Immigration and Border Protection [2017] FCA 1565 at [43], citing SZNGI v Minister for Immigration & Citizenship [2010] FCA 154 at [22].
22.The Tribunal’s ultimate finding that the applicant was not entitled to protection was based on its assessment of the applicant’s credibility, and its assessment of independent country information about the situation in Sri Lanka. Both of those matters are within the fact finding purview of the Tribunal: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] and NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11].
23.In this case the IAA properly had regard to the criteria in s 36(2)(a) and s 36(2)(aa) of the Act, as it was required to in reviewing the delegate’s decision. In considering whether the applicant faced a relevant risk of harm as prescribed in those sections from A’s family, the IAA had regard to the inconsistencies in the evidence before it about the applicant’s interactions with the family. It did not accept he was harmed further or that he had any contact since 2012. In this case, like most cases, those past events were relevant to the Tribunal’s consideration about what was likely to occur in the future: see, eg, Yusuf at [75]; citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575.
The applicant was asked to comment, but was not able to provide an explanation that assisted him in relation to the issue of jurisdictional error and the meaning and scope of his concerns in relation to ground 3.
No jurisdictional error can be seen. The IAA discharged its functions as per a quite restrictive section of the Act relating to fast track applicants. It correctly applied the criteria contained in the Act. Taking into account the elaboration of the expression, “a well-founded fear of persecution” contained in s.5J of the Act and the criteria for complimentary protection, the IAA considered each basis of the applicant’s claims for protection and made various credibility findings in relation to the evidence before it. Those findings were open to it.
Overall, the IAA’s decision had an intelligible and rational basis. Procedural fairness was afforded, and all relevant material, including country information, was considered.
Failure to consider claim or claims
As noted, the applicant’s three affidavits do not articulate any particular ground of review. Nonetheless, they do suggest that the IAA failed to consider various claims, including
a)the situation of young Sri Lankan Tamils (first affidavit);
b)the clash between Muslims and the Sinhalese and the rise of Islamic fundamentalism (second affidavit); and
c)the applicant’s fear of harm as an imputed LTTE supporter (third affidavit).
In relation to the substance of all of these arguments, the court notes and accepts the Minister’s submission that the IAA is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.
In relation to the suggestion that that the IAA failed to consider the situation of young Tamil males, the Minister contended as follows:
27.… the IAA expressly considered the situation of the applicant as a young Tamil male returning to Sri Lanka involuntarily: see [18]-[25], [28]. The IAA considered country information regarding the improved situation for Tamils since the end of the war: see [20]. It found that the applicant was able to depart Sri Lanka legally as a Tamil and was not hindered in his departure: [25]. The IAA concluded that the applicant was not at risk of harm as a young Tamil male: [28]. It therefore cannot be contended that the IAA did not give active intellectual consideration to this claim.
In relation to the applicant’s suggestion that the IAA failed to consider the rise of Islamic fundamentalism, the Minister contended:
29.… no claim ever arose on the basis of the applicant’s religion as a Christian, including any claim to fear harm from Muslim fundamentalists. The IAA understood that the applicant’s religion (at the time, as a Hindu) was relevant to his claims of being in an illicit relationship with A: [6]. The IAA then found that the applicant’s subsequent conversion to Christianity was irrelevant to his claims: [6]. There is nothing in the material suggesting that the applicant had any subjective fear of harm on the basis of his religion. Nor was there any country information to suggest that Muslim fundamentalists presented any threat to Christians in Sri Lanka, much less any threat to the applicant personally. The Minister submits that no claim arose squarely, or at all, on the material before the IAA.
In relation to the applicant’s argument that the IAA failed to address his fear of harm as an imputed LTTE supporter, the Minister contended as follows:
28.The IAA also appreciated that, despite that the applicant had never personally had any association with the LTTE, his profile as a young Tamil male gave rise to the possibility of an imputed association with the LTTE: see [18]. In respect of this claim, the IAA accepted that the Sri Lankan authorities remained sensitive to the potential re- emergence of the LTTE, and considered the situation for people on ‘watch’ lists: [22]. However, the IAA found that the applicant had no connection, familial or otherwise with the LTTE, is not wanted for any criminal matters, and has not been involved in separatist activities: [25]. Therefore, he did not face a real chance of harm because of any imputed LTTE association: [28].
The applicant was again asked to comment in relation to the Minister’s submissions. In effect, again, what the applicant seemed to suggest was that this court should engage in review of the evidence and come to a different conclusion. That, of course, is merits review, which is, as explained to the applicant, something this court cannot do.
Use of Country Information
Although not entirely clear, it may also be the case that the applicant is suggesting that the IAA’s assessment of the country information is wrong and that it should have referred to the country information put to the IAA by him.
The court notes the comments of Judge Wilson of this court in DV117 v Minister for Immigration [2018] FCCA 241 at 39 (DVI17):
a) the accuracy of country information is a matter for the Tribunal, not a court, because a court would be engaging in an impermissible merits review if it made its own assessment of country information, a proposition made good by the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs, and see also my observations in AUV15 v Minister for Immigration and Border Protection;
b) the choice and interpretation of country information is a factual matter for the Tribunal alone, as was held by Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and in NBKT v Minister for Immigration and Multicultural Affairs;
c) the court cannot review the merits of the Tribunal’s decision in that regard, as was held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang;
While the court in DV117 was referring to the role of the Administrative Appeals Tribunal, there is nothing in the statutory scheme governing part 7AA (which provides for the jurisdiction of the IAA) that would suggest that this principle or these principles do not equally apply to reviews undertaken as part of a fast track review process provided here.
On the evidence, it is clear that the IAA did assess the situation of young Tamil males generally and in relation to harm should they return as a failed asylum seeker. In that regard, the court notes paragraphs 21, 22, 24 and 28 in the IAA’s decision.
In relation to the asserted claim in relation to the rise of Islamic fundamentalism and issues that might arise from that, the court accepts what the Minister says in written submissions in relation to that point. Nowhere in the evidence is a claim of this sort raised. It is also clear from the applicant’s evidence before this Court that he was not entirely certain that that was a concern he wished to make.
In relation to any concerns about the applicant’s situation as an imputed LTTE supporter, it is clear from the evidence given by the applicant before this Court that again, in effect, what the applicant seeks is impermissible merits review. It is also evident that the IAA did indeed assess the situation of the applicant in relation to that issue and found, as was open to it on the evidence, that no harm would arise in that context.
Conclusion
In conclusion, the court has not found evidence of jurisdictional error on the part of the IAA. There is no evidence of procedural unfairness and nothing that can be referred to as logical or irrational on the part of the IAA in terms of its approach, analysis or ultimate conclusions.
The IAA did not fail to consider any of the applicant’s claims or, indeed, any relevant information. It did so and clearly set out the basis for its findings. The analysis provided by the IAA demonstrates an evident, transparent and intelligible justification for its decision: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45].
The applicant’s application for judicial review, dated 2 January 2017, is, accordingly, dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 26 November 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Standing
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Costs
18
2