AAY18 v Minister for Immigration

[2018] FCCA 1432

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAY18 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1432

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider information referred by the Secretary – whether the Authority erred in not considering new information – whether the Authority failed to consider essential integers of the applicant’s claims – whether the Authority erred in applying s.473DD(b) of the Act – no jurisdictional error made out – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476

Applicant: AAY18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 20 of 2018

Judgment of: Judge Street

Hearing date: 29 May 2018

Date of Last Submission: 29 May 2018

Delivered at: Sydney

Delivered on: 29 May 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $4,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 20 of 2018

AAY18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 15 December 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise Visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Hindu Tamil male from the Ampara district in the Eastern Province of Sri Lanka. The applicant ran a goldsmith business as a jeweller and claimed to fear harm by a police officer who threatened him and attempted to shoot him as a result of dealings the applicant had had with the police officer, as well as fearing harm from the Sri Lankan authorities, including the police, who may arrest and detain him in relation to false charges, and from unknown people seeking to extort money from him, and for his ethnicity, his area of origin, for having departed Sri Lanka illegally, and for being an asylum seeker abroad. The applicant was also the subject of disclosure of information as to the fact that he was in detention as a result of a data breach. On 26 April 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. By letter dated 1 May 2017, the Authority wrote to the applicant informing the applicant that the application for a protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. The applicant took advantage of that opportunity and provided both submissions and new information on 21 May 2017, as well as providing further information on 25 May 2017, which was referred to and considered by the Authority.

2. The Authority in its reasons identified the background to the applicant’s visa application. The Authority identified having regard to the material referred by the Secretary under s.473CB of the Act. In that regard, the Authority identified that there was some untranslated material that was included and that the Authority was unable to discern from the untranslated text its relevance to the applicant’s claims and was accordingly unable to consider the same. The Authority identified that insofar as the submissions dated 21 May 2017 engaged with the delegate’s reasons, the Authority did not consider that to be new information and had regard to the same.

3. The Authority referred to the provision of a report of meetings held on 15 and 16 November 2016, being the Committee Against Torture (“CAT”) report, and accepted that the same was new information. The Authority turned to the submission which indicated that the report was relevant to the applicant on the basis of a number of new claims that were also not previously before the delegate. The Authority noted those submissions advanced that the applicant had been imputed with Liberation Tigers of Tamil Eelam (“LTTE”) involvement/support in the past, his father was killed by the army, and that he had no family in Sri Lankan to bail him out if arrested at the airport on return. The Authority found these new claims to be new information. The Authority found the new claims differed significantly from those put forward by the applicant in his visa application and appeared to have no bearing on the claims presented to the delegate at the visa interview.

4. The Authority found new claims related to events or circumstances that pre-dated the delegate’s decision and that the applicant had not provided any reason why that information was not provided to the delegate before the decision was made, nor as to why the new information could be regarded as credible personal information. The Authority was not satisfied that the new information met the requirements of s.473DD(b) of the Act. The Authority, having considered the whole of the applicant’s circumstances, including the character of his claims for protection reflected in the visa application and during his visa interview, was not satisfied that there are exceptional circumstances to justify considering the new information in respect of those claims for protection. The Authority referred to the CAT report and was not satisfied that the report represents credible personal information and was not satisfied as to the requirements of s.473DD(b) of the Act. The Authority was not satisfied there are exceptional circumstances to justify considering the new information.

5. The Authority then referred to the new information provided on 25 May 2017. The Authority referred to a summons for witness to give evidence dated 28 January 2015, which was not in the English language, and that no translation had been provided and no material had been provided to explain the purpose of the document or how it relates to the applicant’s claims for protection. It was in those circumstances the Authority was unable to discern a substantial part of the text of these documents and was unable to assess their veracity or relevance to the applicant’s claims and was unable to consider the documents.

6. The Authority’s reasons then referred to the acknowledgment of complaint dated 20 August 2014, which was accompanied by an English translation, reflecting a complaint made by a particular person to a police station in relation to an incident involving offensive language. The Authority was willing to accept that the person referred to was the applicant’s wife and noted that the complaint pre-dated the decision of the delegate by a number of years, and that the applicant has been in regular contact with his family, and found that complaints from the applicant’s wife would have been made known to the applicant. The Authority noted that the applicant provided no explanation about why the document could not have been provided to the delegate prior to the decision. Further, the Authority was unable to identify any connection to the applicant’s circumstances from the document and that no explanation had been provided as to how the document consists of credible personal information. The Authority was not satisfied the document met the requirements of s.473DD(b) of the Act.

7. The Authority noted that at the applicant’s visa interview, the applicant was offered a number of opportunities by the delegate to add to or make changes to his visa application and to provide further information in support of his protection claims. The Authority was of the view that the applicant had an adequate opportunity to present claims notwithstanding he did not have a representative. It was in those circumstances that the Authority was not satisfied there were exceptional circumstances to justify considering the new information in relation to the acknowledgment of the complaint.

8. The Authority then turned to the letter from the Justice of the Peace dated 25 October 2014. The Authority found the same to be new information and accepted it had a photograph of the applicant and that it constitutes credible personal information about the applicant within s.473DD(b)(ii) of the Act. The Authority noted, however, that the document pre-dated the delegate’s decision and that the applicant provided no explanation as to why the document could not have been provided prior to the delegate’s decision. Accordingly, the Authority found that the requirements of s.473DD(i) of the Act were not met. The Authority noted at the visa interview that the applicant described in detail his wife’s encounter with the police who attended at her house and showed her a photo of the applicant. The Authority referred to the applicant having been invited at the conclusion of the interview to provide additional information to the delegate prior to the decision. The Authority took into account the applicant’s discussion of the incident described in a letter with the delegate, that the applicant was on notice that he had opportunities to raise additional information with the delegate prior to the decision, and that the letter appears to be a reporting of statements made by the applicant’s wife rather than the basis of direct knowledge by the author. The Authority was not satisfied that there there exceptional circumstances to justify considering the letter from the Justice of the Peace.

9. The Authority then summarised the applicant’s claims and evidence and, more in particular, the applicant’s dealing with the particular police officer. The Authority accepted that the applicant had been the subject of a number of extortion demands for small amounts of money. The Authority noted that the applicant did not make a report or seek investigation by the police. The Authority, having regard to the applicant’s evidence about his own lack of concern about most of the demands for money being made of him, considered that his decision not to seek assistance from the police was not because the State would not, or could not, offer him protection. Rather the Authority found it was because the applicant did not perceive the demands as being problematic. The Authority found that the extorting of money did not appear to make any reference to the ethnicity or area of origin of the applicant. The Authority was satisfied that the people who were extorting the applicant were motivated by financial gain and the applicant’s willingness to pay. In those circumstances, the Authority found that it did not consider the reasons in s.5J of the Act, including the applicant’s ethnicity and occupation as a goldsmith were reasons for the extortion.

10. The Authority referred to the encounter with the particular police officer for whom the applicant had been commissioned to perform some work. The Authority noted the police officer was of Sinhalese ethnicity. The Authority accepted that the applicant became involved in a fight with the police officer over the non-payment of an outstanding debt for the provision of jewellery. The Authority was satisfied that this was the motivating reason for the dispute, rather than reasons within s.5J(1) of the Act.

11. The Authority referred to when the applicant returned home and in response to pressure from his family, the applicant filed a complaint with the local police after the incident, and that following this the Singhalese police officer attended at his home. The applicant alleged that the officer raised his rifle and shot at the applicant but missed him, and that the police officer ran away. The Authority accepted this account as plausible and that following the altercation the applicant was later visited by the police officer who attempted to shoot the applicant but missed in October of 2011. The Authority referred to the applicant alleging that he went to Colombo and stayed there until November 2011 after the attempted shooting, and that the police officer had indicated that he had a photograph of the applicant on his phone. The Authority accepted that the police officer attended the applicant’s home and made threatening remarks to the wife. The Authority found that the police officer was not acting in his official capacity, but rather he was pursuing the applicant in this manner because he could do so with impunity at the time.

12. The Authority referred to the applicant’s concern that the photograph would be shown to his friends who would ‘catch and kill him’. The Authority found there was an inconsistency between the account of the conversation expressed in the visa application with what the applicant had stated at the interview, but it accepted that the threat could have been characterised in this way. The Authority found that based on the existence of the photo and the message, the applicant had inferred that the police officer had laid false charges against him, which would mean he would be targeted and arrested at the airport if he returned to Sri Lanka. The Authority was willing to accept that the police officer in the dispute with the applicant had a photograph of him on his mobile phone.

13. The Authority accepted that the applicant resided with a cousin and friends for a period of three months and found the applicant’s evidence about his movements between March 2012 and the time of his departure from Sri Lanka in August 2012 to be unclear. The Authority found the applicant returned to his home region from Jaffna before departing the country. The Authority found the applicant’s willingness to return to his home region, both prior to departure and earlier in the November 2011, indicated that the applicant considered it was safe to do so.

14. The Authority found the applicant’s ability to reside in other parts of Sri Lanka, such as Jaffna and Colombo, without difficulty or enquiries being made of him, indicated that the police officer who had attempted to shoot him was not interested in pursuing the applicant beyond his home region. The Authority took into account that given that the police officer was informed within a short period that the applicant had returned to Kalmunai in November 2011, he would have similarly been informed of the applicant’s return to Kalmunai in late 2012. The Authority considered the absence of any further encounters between the police officer and the applicant, or between the police officer and other members of the applicant’s family during the months before the applicant’s departure indicated that the police officer was no longer adversely interested in pursuing the applicant. Accordingly, the Authority was not satisfied that at the time of the applicant’s departure from Sri Lanka he was of adverse interest to the police officer with whom he had had a dispute and had been shot at and threatened.

15. The Authority referred to the applicant’s assertion that the police officer returned to the house and threatened his wife. The Authority found there was a lack of detail about this visit in contrast to the very detailed information the applicant provided about the earlier encounters with the police officer. The Authority found this assertion to be less credible. Having regard to the findings that the applicant was not of adverse interest to the police officer at the time of his departure and the credibility concerns the Authority had with the general and vague description of the encounter, the Authority was not satisfied that any such encounter occurred.

16. The Authority referred to the applicant’s wife and mother being approached by some unknown men. The Authority did not consider harassment of the applicant’s wife and mother signifies the applicant was being pursued or is at risk of harm on return to Sri Lanka from these unidentified men.

17. The Authority referred to the applicant’s concern that he would be the subject of false criminal charges made against him. The Authority did not accept the applicant’s interpretation of the police officer’s threat to be a persuasive one. The Authority took into account the applicant’s circumstances of being at large for nine months in Sri Lanka after the threat was made in November 2011 until the applicant’s departure in August 2012, with the applicant residing in different areas, including his home village, without attracting the adverse attention of the police or being questioned or arrested for any criminal offence. The Authority found this to be counter-indicative that any false criminal charges against the applicant exist. The Authority was not satisfied the applicant is being sought by police in Sri Lanka in respect of outstanding criminal charges falsely laid by a police officer in response to a personal dispute with the applicant.

18. The Authority did not accept that the applicant had been asked to participate in armed training. The Authority referred to a letter dated 12 December 2006, and gave little weight to the letter as relating to the applicant’s present claims for protection. The Authority referred to the data breach and accepted that the authorities could be aware that the applicant had applied for asylum in Australia. The Authority found that the information released did not include any information about the applicant’s claims for protection. The Authority considered that in the event the Sri Lankan authorities had accessed the applicant’s personal information, his status as a returned asylum seeker from Australia would already be apparent from his Australian travel documents.

19. The Authority found the applicant’s profile does not otherwise suggest he would attract attention from the Sri Lankan authorities on arrival, or that the applicant’s profile would prompt closer attention of his travel to Australia. The Authority found the applicant had no criminal convictions, no outstanding warrants or perceived connection with LTTE activity whilst having been overseas. The Authority was not satisfied there is a real chance the applicant would be at risk of harm for being identified through information released as part of the data breach. The Authority referred to the treatment of Tamils and was not satisfied there is a real chance of the applicant facing harm on the basis of his race or area of origin. The Authority found the applicant would return to the kind of work that he had performed which may prompt future attempts to extort money from the applicant by unidentified people, but found that would be consistent with the applicant’s evidence of previous extortion demands and would not give rise to harm.

20. The Authority did not accept the applicant’s profile with the Sri Lankan authorities, including the police, would result in their adverse interest in him on return to Sri Lanka. Taking into account the applicant’s profile and country information about the change in the political and security landscape in Sri Lanka, the Authority was not satisfied there is a real chance that the applicant would be targeted by the Sri Lankan authorities, including the police, on return to Sri Lanka. The Authority accepted that the applicant departed Sri Lanka illegally. The Authority did not accept the applicant would be targeted on return for reason of being wanted in relation to false criminal charges or for having sought asylum abroad or for having resided abroad.

21. The Authority was not satisfied the applicant would face a longer than usual period of detention in relation to the Immigrants and Emigrants Act 1948 (Sri Lanka). The Authority found that those laws are not discriminatory or applied in a discriminatory manner and was not satisfied that the detention arrangements for the purpose of being charged under the Immigrants and Emigrants Act 1948 (Sri Lanka) and the financial penalties imposed involve discriminatory conduct.

1. The Authority was not satisfied the applicant faced a real chance of serious harm on the basis of being a returned asylum seeker and/or for his illegal departure. The Authority found, taking into account the applicant’s history and profile and having regard to country information, it was not satisfied the applicant faces a real chance of serious harm now or the reasonably foreseeable future. The Authority found the applicant does not meet the requirements of the definition of refugee in s.5H(1) of the Act and the applicant failed to meet the criteria in s.36(2)(a) of the Act.

2. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 4 January 2018. On 8 February 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. The application on its face clearly identifies some level of legal input in relation to the grounds.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

Applicant’s submissions from the bar table

1. From the bar table the applicant maintained that it was his fault or mistake that he provided an untranslated document. The applicant also raised his concern because of the data breach that he would be of interest to the police and the Criminal Investigation Department. The applicant maintained that he already had a problem with the police and that he was facing harm and could not go back to Sri Lanka.

2. In the course of the applicant’s submissions, the applicant indicated he wished to obtain an adjournment. No earlier notice of an adjournment application had been given by the applicant to the first respondent. The applicant indicated the basis of an adjournment was to obtain legal representation. When asked by the Court what steps the applicant had taken to obtain legal representation, the applicant was unable to proffer any satisfactory explanation as to why the applicant had not been able to obtain legal representation if he was able to do so already. The Court also raised with the applicant why he had not had an adequate opportunity to obtain legal representation given the time that the proceedings were commenced and the orders that were made by the Registrar. Nothing said by the applicant identified any basis by which the Court could be satisfied that an adjournment would give rise to the applicant being able to obtain legal representation. The application for an adjournment was opposed by the first respondent. I also take into account the limited merits in the grounds in the application. I am not satisfied that an adjournment was warranted in the above circumstances in the interests of the administration of justice and for these reasons the adjournment application was refused.

3. In relation to what was said by the applicant from the bar table in respect of the untranslated documents, it is apparent that the Authority was unable to identify any relevance in respect of the untranslated documents to the applicant’s claims. In those circumstances, it was open to the Authority to give the documents no further consideration. No jurisdictional error arises by the Authority’s approach to the untranslated documents.

4. In relation to the applicant’s concern in respect of the data breach, the Authority made adverse findings in relation to the applicant’s claim in this regard, as referred to above. The Authority accepted that the Sri Lankan authorities would be aware the applicant had sought asylum in Australia. However, the Authority found that the grounds of the applicant’s claims had not been disclosed in the data breach. The Authority’s adverse finding that the applicant would not suffer any real risk or real chance of serious harm, or real harm as a result of the data breach, was open to the Authority and cannot be said to be unreasonable. No jurisdictional error arises from the Authority’s reasons in that regard.

5. The applicant’s claim to fear harm upon return to Sri Lanka in substance invited the Court to engage in impermissible merits review. The Authority found the applicant would not face a real risk or real chance of serious harm or significant harm. Those findings by the Authority were the subject of logical and rational reasons as summarised above. No jurisdictional error arises by reason of anything said by the applicant from the bar table.

The grounds

1. The grounds of the application are as follows:

   Ground 1

   The IAA committed jurisdictional error as it failed to consider a document referred by the Secretary.

   Particulars

   1. At [4] the IAA states that included with the referred material was a document dated 30 November 1989.

   2. The IAA states the document was not translated and for this reason was unable to discern the untranslated text or its relevance to the applicant's claims and therefore did not consider this document.

   3. It is erroneous to simply disregard a document especially as the IAA had power to request for a translation and it did not choose to exercise its powers to obtain a translation.

   4. The document is relevant for the purpose of the assessing the applicant's claims.

   5. The applicant would provide more details once the court book is prepared.

   Ground 2

   The Authority erred in not considering new information when exercising powers under s473DD(b).

   Particulars

   1. The information that was before the IAA was not new information.

   2. The claims referred to as new information which the IAA did not consider at [7] was in fact information/ claims raised by the applicant previously. For example the IAA states that the claim relating to the applicant being "imputed with LTTE involvement/support in the past" was new information [7], this is not correct as the applicant consistently raised this claim.

   3. The IAA erred in not considering the applicant's claims.

   Ground 3

   The IAA committed jurisdictional error as it failed to consider essential integers of the applicant's claims.

   Particulars

   1. The applicant was a member of a particular social group of gold smiths, and he was subjected to extortion the IAA failed to consider this claim.

   2. The applicant would provide more details once the court book is prepared.

   Ground 4

   The IAA committed jurisdictional error at [13] when applying s473DD(b).

   Particulars

   1. The IAA was satisfied that s473DD(b)(ii) was met.

   2. The IAA was not satisfied though that s473DD(b)(1) was met.

   3. The IAA fell into legal error at [13] as s473DD(b)(ii) was met, there was no need for s473DD(b)(i) to met.

   4. Therefore having concluded that s473DD(b)(ii) was met the IAA should have considered the letter from the Justice of the Peace [13].

Ground 1

1. In relation to ground 1 of the application, this in substance raises the same issue as referred to above in respect of the untranslated document. It is apparent that the Authority gave consideration to whether or not the untranslated document had any relevance to the applicant’s claims. Having been unable to discern any such relevance, it was open to the Authority in respect of irrelevant information not to consider the same. No jurisdictional error arises by reason of the Authority’s approach to the untranslated documents. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the Authority’s reasons correctly identified the new information it was provided following the opportunity to put on submissions and new information given by the Authority. The Authority’s reasons reflect consideration of that new information under both limbs of s.473DD of the Act and there is no basis to infer that the Authority adopted an erroneously narrow meaning of exceptional circumstances or that the Authority misconstrued the provision.

2. Insofar as the Authority’s reasoning addressed the new claims raised by the applicant in relation to being imputed with an LTTE involvement and support, the Authority was correct to identify the same as new claims. Contrary to the applicant’s assertion, there is nothing to support the contention that the new information had been previously raised. The Authority identified that these new claims had not been raised when the applicant had been given the opportunity to do so at the interview before the delegate. The Authority’s reasons for not considering the new claims cannot be said to lack an evident and intelligible justification, and for the reasons given by the Authority, as summarised above, it was open to the Authority to find that this new information did not meet the criteria under s.473DD of the Act. No jurisdictional error arises in relation to the Authority’s approach to the new information and finding that the new claims in respect of LTTE involvement did not satisfy the requirement of exceptional circumstance to have regard to the same. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, no claim that the applicant feared harm by reason of being a member of a social group of goldsmiths was raised before the Authority, nor did any such claim fairly arise on the material before the Authority. A claim that is not raised before the Authority and does not fairly arise, cannot give rise to any jurisdictional error. Accordingly, ground 3 fails to make out any jurisdictional error.

Ground 4

1. In relation to ground 4, the requirements of s.473DD(a) and (b) of the Act are cumulative. It was open to the Authority in the circumstances of the present case, notwithstanding a favourable finding in respect of s.473DD(b)(ii) of the Act, to find that the applicant failed to meet the requirements of s.473DD(b)(i) of the Act, and also to find that the applicant failed to meet the criteria under s.473DD(a) of the Act. The Authority’s reasons do not reflect any erroneous approach to the application of s.473DD of the Act or any misconstruction.

2. The adverse finding by the Authority in relation to the letter from the Justice of the Peace dated 25 October 2014, cannot be said to lack an evident and intelligible justification for the reasons of the Authority summarised above. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  23 July 2018