ABH18 v Minister for Home Affairs

[2019] FCCA 1112

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABH18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1112

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to properly apply s 473DD of the Act – whether the Authority’s adverse findings were illogical or irrational – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: ABH18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 6 of 2018

Judgment of: Judge Street

Hearing date: 19 March 2019

Date of Last Submission: 19 March 2019

Delivered at: Adelaide

Delivered on: 19 March 2019

REPRESENTATION

Counsel for the Applicant: Mr P Barnes

Solicitors for the Applicant: National Pro Bono Project

Solicitors for the Respondents: Ms L Butler
Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND DOLLARS ($7000).

DATE OF ORDER: 19 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 6 of 2018

ABH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 18 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 arrived in Australia as an unauthorised maritime arrival on 14 November 2012. The applicant was found to be a Christian Tamil.

3. The applicant claimed his brothers S and K were members of the Liberation Tigers of Tamil Eelam (“LTTE”) and that S was killed in 2007 by the Karuna party. The applicant alleged his brother, K, was caught in 2008 and detained four to five days and then jailed from 2008 to 2011. The applicant alleges that K was released in 2011 and then remained in hiding. The applicant alleged that in 2009 a neighbouring family were identified as LTTE supporters and shot dead. The applicant’s family moved to another district in 2009 until 2011, and then returned back to their village in 2012.

4. The applicant alleged that in February 2012, he was caught by police and forced to be an eyewitness for a case concerning a theft of a motorbike. The applicant alleged that persons believed to be Criminal Investigation Department (“CID”) officers had come to the family home. The applicant also alleged that in May 2012, he was taken by two CID officers to the police station and interrogated about two friends who were also in the LTTE. The applicant alleged that he was on a CID watchlist.

5. On 1 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

6. On 7 March 2017, the Authority wrote to the applicant explaining that the application for the 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 and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions that were expressly referred to in the Authority’s reasons.

7. The Authority identified a background for the visa application and had regard to the information given by Secretary under s 473CB of the Act. The Authority had regard to the submissions and insofar as they engaged with the delegate’s decision found that it was not new information. The Authority referred to the submissions advancing that there was new information that relates to matters that only occurred recently and could not therefore have been provided to the delegate before the decision was made. This was a clear reference by the Authority to a submission relevantly found at page 196 of the Court Book in the applicant’s submissions, dated the 28^th of March 2017, advancing that there were exceptional circumstances to satisfy the requirements of s 473DD of the Act in respect of new information in the statutory declaration. There was an express reference in that regard in the submissions to the new information being provided having only occurred recently and not being available to the applicant before the decision was made. The Authority rejected a contention of breach of particular provisions of Part 7AA of the Act.

8. The Authority then turned to the new information, noting that the applicant does not state when the CID came to his house and asked about his whereabouts, only that it occurred recently. In those circumstances, the Authority was prepared to accept that the new information could not have been provided before the date of the decision. This was clearly a reference to s 473DD(b)(i) of the Act.

9. The Authority then proceeded to consider the new information, identifying first that the information about the claimed visit by the CID is in the most general of terms and that the applicant claimed they wanted to know ‘the correct details’ about him and that he would be detained and arrested as soon as he returned. The Authority noted that the applicant did not state why he would be arrested and the Authority was of the view, if the applicant was of such interest to the CID, the Authority would expect him to tell the family the basis for their interest and their intention to detain him and arrest him.

10. The Authority secondly noted that the applicant did not leave Sri Lanka while under investigation or formal reporting conditions and the most recent interactions he claimed he had with the CID concerned his identification of a person wanted for theft. The Authority referred to the absence of any interest by the authorities in him personally in the intervening period and that there appears to be no basis for the sudden escalation of interest in the applicant.

11. The Authority also referred to the written statements submitted in the Safe Haven Enterprise visa application in which the applicant did not claim that any member of his family had experienced interest from the authorities because of him either while he was living in Sri Lanka or subsequently. The Authority referred to it being inherently implausible that the Sri Lankan authorities would suddenly escalate their interest in the applicant, some five years later. The Authority also noted the coincidence of this claim being made one month after the delegate’s decision. The Authority’s analysis took into account s 473DD(b)(ii) of the Act. The Authority found that the applicant had not satisfied s 473DD(b) of the Act and that there were not exceptional circumstances to justify considering the new information.

12. The Authority’s reasons are to be read as a whole and without a keen eye for error. On a fair reading of the Authority’s reasons, the Authority took into account both limbs of s 473DD(b) of the Act. There is no basis to hold that the Authority was adopting an erroneous understanding of the provision when it said that the requirements of s 473DD(b) of the Act were not met, or that the Authority was somehow ignoring what the Authority had earlier found that the information could not have been provided before the decision so far as concerned s 473DD(b)(i) of the Act. The reference to the requirements not being met was clearly a reference to s 473DD(b)(ii) of the Act.

13. The Authority also expressly considered exceptional circumstances, as the reasons make clear the Authority considered whether or not there were exceptional circumstances. The Authority’s reasons were rational and logical and cannot be said to lack an evident or intelligible justification. There was no basis to find the Authority adopted an unduly narrow meaning of exceptional circumstances or failed to take into account the whole of s 473DD of the Act.

14. The Authority summarised the applicant’s claims and accepted certain matters advanced by the applicant but found the detail relating to K’s membership of the LTTE and that the applicant’s evidence was vague and lacking in detail.

15. The Authority did not accept that K was a member of the LTTE as well as S. The Authority was not satisfied K was caught with bombs. The Authority accepted K was jailed from 2008 to 2011. The Authority did not accept that on the release from K from jail in 2011, K went into hiding for three months. The Authority found that K was arrested in July of 2011 one month after his release and that he remains in prison in relation to a shooting incident in Batticaloa. The Authority was satisfied that K’s jailing in 2011 was unrelated to the applicant’s claim for protection.

16. The Authority was not satisfied that in February 2012 the applicant was caught by police, forced to be an eyewitness for a case, presented to the Court as an eyewitness, did not give false evidence and was warned by the police that they would charge him in a different case and put him in jail.

17. The Authority did not accept the applicant was detained and beaten over five days in May 2012. The Authority found there was significant inconsistencies in the applicant’s evidence about that claim. The Authority did not consider credible that after four years, in relation to the disappearance of S, that the authorities would question the applicant about him. The Authority was not satisfied the applicant was beaten by police when questioned in 2011.

18. The Authority referred to the applicant’s claims concerning being questioned in May 2012 and did not accept the applicant was the subject of repeated enquiries by the CID. The Authority did not accept the applicant was on a CID watch list or that if he returns, he will be found by the CID and shot, or detained, tortured and beaten to death, or that the police would charge him with a false case and arrest him.

19. The Authority rejected as an embellishment the applicant’s claims that his family had been branded an LTTE family. The Authority was not satisfied the applicant is at risk of harm from other villagers because of S’s role in recruiting for the LTTE over 10 years ago.

20. The Authority is not satisfied the applicant is at risk of harm because of his religion. The Authority noted the applicant had not claimed any involvement in political activities either whilst living in Sri Lanka or since he left and was not satisfied that the applicant is at risk of harm on that basis.

21. The Authority did not accept that the applicant is at risk of harm on return or that he will face torture, arbitrary arrest or detention, or any form of adverse interest from the authorities if he returns.

22. The Authority accepted the applicant departed Sri Lanka illegally. The Authority found the treatment of the applicant under the Immigrants and Emigrants Act (Sri Lanka) is not discriminatory on its face and a law of general application that applies equally to all Sri Lankans and does not constitute persecution under the meaning of s 5J(4) of the Act. The Authority was not satisfied that the applicant faces a real chance of serious harm amounting to persecution on the basis of being a returned Tamil asylum seeker who departed Sri Lanka illegally, now or in the reasonably foreseeable future.

23. The Authority referred to having considered the applicant’s claims together. There is an incomplete sentence starting in paragraph 45 which is obviously a typographical error. The error on its face is immaterial and does not give rise to any jurisdictional error.

24. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

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

The ground

1. Mr Barnes of counsel, who appeared on behalf of the applicant, relied upon the following ground in the amended application:

   1. The decision of the Immigration Assessment Authority (“IAA”) dated 18th December 2017 (“the Decision”) was affected by jurisdictional error in that the IAA failed properly to construe and apply s 473DD of the Migration Act 1958 (Cth) (“MA”) to the new information submitted to it by the Applicant on the review of the decision of the Delegate rejecting his application for a Safe Haven Enterprise Visa.

   Particulars

   1.1 On 28th March 2017 the Applicant provided to the IAA, through his migration agent, a submission which supplied further information, including new information obtained from his relatives in Sri Lanka.

   1.2 This new information included a claim that the Applicant’s parents had been visited by officers of the CID on account of the Applicant’s links with LTTE members and the fact that his brothers were members of the LTTE.

   1.3 Faced with this new information, the IAA was required to determine whether it satisfied the requirements of s. 473DD and would be taken into consideration for the purpose of the review: BCZ17 v Minister for Immigration and Border Protection [2018] FCA 902.

   1.4 The new information concerned matters which occurred only after the delegate’s decision, and therefore was not and could not have been known and provided to either the Applicant or the delegate before the decision under review was made, therefore satisfying s. 473DD(b)(i): Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, at [106]. Only one of the two limbs of s.473DD(b) is required to be met.

   1.5 The IAA erred in concluding that the requirements of s. 473DD(b) were not met: Decision, at [7].

   1.6 Further, having been satisfied that the new information met one of the two limbs of s. 473DD(b), the IAA was then required to consider whether it was satisfied that there were exceptional circumstances to justify considering the new information, under s. 473DD(a), taking into account that the IAA’s satisfaction as to either of the limbs in s. 473DD(b) may contribute to its satisfaction that there are “exceptional circumstances”: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958.

   1.7 The IAA adopted an inappropriate narrow reading of “exceptional circumstances”, considering only those matters in s. 473DD(b) as to whether s. 473DD(a) was met: CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192, at [44].

   1.8 There was no independent and separate consideration of whether exceptional circumstances existed, including because the information was not previously available as per s. 473DD(b)(i).

   1.9 Further, or in the alternative, the IAA’s reasons for rejecting the new information as set out in the Decision at [7] were not rational.

2. Mr Barnes both in his written submissions and orally contended that the Authority had erred by failing to take into account the whole of s 473DD of the Act by erring in its findings in relation to whether the requirements of s 473DD(b) of the Act were met, by adopting an erroneous meaning of exceptional circumstances and/or by reason of legal unreasonableness in the determination of whether the requirements of s 473DD of the Act were met. Mr Barnes submitted that the reference at the end of paragraph 7 of the Authority’s decision to the requirements of s 473DD(b) of the Act not being met suggested the Authority had erred because it was apparent that the information was one that could not have been provided before the date of the decision.

3. As identified above in the Court’s reasons, the Court does not accept that the Authority’s reasons should be read with such a keen eye for error. On a fair reading, the Authority was identifying that the requirements of s 473DD(b)(ii) of the Act were not met. The analysis is an analysis clearly referable to s 473DD(b)(ii­) of the Act as well as to the consideration of exceptional circumstances. Further, the express reference to exceptional circumstances and the use of the word “nor” makes clear that the Authority did consider the whole of s 473DD of the Act.

4. Further, the reasons given by the Authority as summarised above were not illogical or irrational and provide an evident and intelligible justification for the Authority’s conclusions under s 473DD of the Act. There was no legal unreasonableness by the Authority in the adverse finding under s 473DD of the Act. The Authority’s reasons as summarised above were logical and cogent. It cannot be said that no reasonable decision maker could have concluded that the requirements of s 473DD of the Act were not met. No jurisdictional error as alleged in ground 1 is made out.

5. Accordingly, the amended application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 May 2019