Abl18 v Minister for Home Affairs

[2019] FCCA 1178

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABL18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1178

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to address an integer of the applicant’s claim or relevant consideration – whether the Authority misconstrued or misapplied the term “exceptional circumstances” – no jurisdictional error made out – application dismissed.  

Legislation:

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

Cases cited:

BVZ16 the Minister for Immigration and Citizenship (2017) 254 FCR 221

Applicant: ABL18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 10 of 2018

Judgment of: Judge Street

Hearing date: 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Adelaide

Delivered on: 21 March 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms N Milutinovic
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS ($5000).

DATE OF ORDER: 21 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 10 of 2018

ABL18

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”) with respect to a decision of the Immigration Assessment Authority (“the Authority”) under a Part 7AA of the Act made on 14 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 on 28 October 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil Hindu and feared harm from the Sri Lankan government. The applicant mentioned a particular incident occurring in 2009 and that in July and August and September 2012, the Sri Lankan army, including the Criminal Investigation Department (“CID”), asked the applicant to identify ex-Liberation Tigers of Tamil Eelam (“LTTE”) members. The applicant claimed that just 15 days later the CID came to the village to ask the applicant to identify ex-LTTE members and told him that he had to be careful. The applicant mentioned he felt his life was in danger and that every night the CID came to the village and to the applicant’s home and asked the family for a photograph of him. The applicant was not worried about his wife and children, as the CIDs interests, according to the applicant, was just in him. The applicant stayed and worked for the owner of the house in his village for three days and then decided to come to Australia. The applicant alleges the CID has continued to go to his house once or twice a month looking for him. The applicant alleges he cannot go back to Sri Lanka because he would be put in jail, tortured and killed.

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

4. On 6 November 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did so by submissions dated 2 December 2017, which were expressly referred to and considered by the Authority. The Authority was not satisfied the requirements of s 473DD of the Act were met to justify considering the new information.  

5. The Authority identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act.

6. The Authority referred to the applicant’s representative on 4 December 2017, providing submissions and the five documents that were identified by the Authority. The Authority expressly referred to the provisions of s 473DC of the Act where the Authority is not required to accept new information and referred to the meaning of new information. The Authority referred to the effect of s 473DD of the Act and that it was not to consider any new information unless it is satisfied that there are: (1) exceptional circumstances to justify a consideration; (2) the new information was not, and could not have been provided before the delegate when its decision was made; or (3) the new information is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims.

7. The Authority identified that all of those five documents predated the delegate’s decision and could have been provided before the delegate’s decision was made. The Authority also referred to the documents being of a general nature and not containing personal or credible information which, had it been known to the delegate, may have affected the consideration of the applicant’s claims. The Authority made an express finding that the requirements of s 473DD(b)(i) and (b)(ii) of the Act have not been satisfied and that the Authority would not consider the new information.

8. On a fair reading of the Authority’s reasons in respect of the five documents the subject of paragraph 5, it is apparent that the Authority took into account the whole of s 473DD of the Act and did not adopt an unduly narrow meaning of exceptional circumstances or fail to have regard to the whole of the provision in relation to the consideration of the five documents that were identified as new information.

9. The Authority then referred to the submissions of 4 December 2017 insofar as they engaged with the delegate’s decision based on the information before the delegate and had regard to the same.

10. The Authority then identified that there was new information about the applicant’s circumstances provided on 1 and 4 December 2017, relevantly, as follows:

    - his main responsibility as head of the village was to provide new recruits to the LTTE’s air base located about two kilometres from the applicant’s village;

    - the Sri Lankan army became aware of what he did approximately one month prior to the applicant leaving Sri Lanka. The Sri Lankan army searched for the applicant and insisted that he inform and identify LTTE members or face serious consequences;

    - the applicant wholeheartedly provided assistance to the LTTE including providing food and performing sentry duties located about one kilometre before the LTTE air base;

    - the applicant has close relatives that were members of the LTTE and most were killed during the recent conflict that ended in 2009; and

    - his father was killed by the army.

11. The Authority referred to the submission that was advanced that the applicant did not disclose the information because he was told by other detainees in Australia that disclosure of involvement with the LTTE to the extent described would mean that he could be detained indefinitely or to be returned to Sri Lanka.

12. The Authority referred to the fact that the applicant was assisted by the Refugee Advisory Service of South Australia (“RASSA”) to prepare his application and statement of claims. The Authority noted that the applicant did not make reference to the new information during his arrival or Safe Haven Enterprise visa interview.

13. The Authority noted that during the Safe Haven Enterprise visa interview the applicant was informed that it was his responsibility to raise all his claims to support his application and that, if the application was refused, he may not be able to raise additional claims at a later date. The Authority referred to the applicant being informed that details of his claims would not be shared with the authorities or public of Sri Lanka. The Authority referred to the applicant having been informed of the importance of raising all his claims as soon as possible, including during the Safe Haven Enterprise visa interview. The Authority referred to the applicant having been given a recess during the Safe Haven Enterprise visa interview to consider what he had told the delegate and whether there was anything further he needed to say. The Authority expressly noted that after that recess the applicant informed the delegate that he had nothing to say.

14. The Authority in paragraph 12 then referred to the new information and found that it could have been provided prior to the delegate’s decision and has not met the requirements of s 473DD(b)(i) of the Act. The reference to new information in that regard is clearly a reference to the new information identified in paragraph 9. The Authority accepted the applicant could have failed to disclose all his claims at the arrival interview based on erroneous information. The Authority noted that, at that time, the applicant did not have access to a representative and had recently arrived in Australia. The Authority noted, however, that since the arrival interview the applicant was released from detention in May 2013 and had the assistance of the RASSA to prepare his Safe Haven Enterprise visa application and statement of claims and had a Safe Haven Enterprise visa interview. The Authority referred to the fact that during that interview the applicant was told, on more than one occasion, to put forward all his claims as claims made after the Safe Haven Enterprise visa application was determined may not be considered. The analysis referred to in the Authority’s reasons thus far is clearly analysis applicable to both limbs of s 473DD(b)(i) and (b)(ii) of the Act. There is no reason to read the analysis as if it was focussed only on s 473DD(b)(i) of the Act. Further, the reference to all claims clearly picked up the fact that what was identified in paragraph 9 were new claims.

15. The Authority then referred to one of the new claims, clearly being a reference back to paragraph 9 and in the five claims, in respect of which the applicant believes his father was killed by the army. The Authority expressly referred to the applicant during the arrival interview stating that his father froze to death because he had no shelter. The Authority referred to the inconsistent information about the applicant’s father’s death. The Authority found it implausible that the applicant would continue to hold that erroneous belief after obtaining professional assistance and, accordingly, was not satisfied that the information was credible.

16. The reference to the erroneous belief is a reference back to the Authority’s earlier reasoning in the second sentence of paragraph 12, referrable to the whole of the new information identified in paragraph 9. There is no basis to read it was confined simply to the fifth dot point in paragraph 9. Further, the reference to information in the sentence in respect of implausibility and the information not being credible is clearly a reference to the whole of the information in paragraph 9. There is no reason to read it as if it was limited to the reference to the fifth dot point in respect of the applicant’s claims.

17. The Authority’s reasons must be read as a whole and without a keen eye for error. The Authority found that it was not satisfied that the new information about the applicant’s circumstances meet the requirements of s 473DD(b)(ii) of the Act. The reference to the new information in that regard in paragraph 12 is clearly a reference back to the new information as identified in paragraph 9. The Authority also found that it was not satisfied there were exceptional circumstances to justify considering the information. Again, the reference in that regard is clearly a reference to the new information the subject of the whole of paragraph 9 and the Authority found it was not able to consider the new information which, again, clearly is a reference back to the whole of the information in paragraph 9.

18. On the face of the Authority’s reasons, there is no erroneously narrow meaning of exceptional circumstances adopted by the Authority or any failure to have regard to the whole of s 473DD of the Act in considering new information identified in paragraph 9.

19. The Authority identified the applicant’s claims. The Authority found there were a number of inconsistencies in the applicant’s claims, raising serious doubts about his overall credibility. The Authority was not satisfied the applicant was asked to provide the names of ex-LTTE members within his village to the Sri Lankan army and to the CID which he refused to do. The Authority was not satisfied the applicant was forced to move houses or that the CID was looking for him before, or after, his departure from Sri Lanka.

20. The Authority accepted the applicant was a Tamil from the Northern Province and that the area from which he came had been under the control of the LTTE during the civil war. The Authority was not satisfied the scarring of the applicant, in the context of the applicant’s profile, would give rise to any adverse interest in him upon his return to Sri Lanka. The Authority was satisfied the applicant can return to Sri Lanka and would not face a real chance of any harm by Sri Lankan authorities for reasons of perceived links to the LTTE.

21. The Authority referred to the applicant being a failed asylum seeker who illegally departed Sri Lanka. The Authority was satisfied the applicant’s profile would not raise suspicion resulting in a real chance of serious harm. The Authority was not satisfied, having regard to the applicant’s profile, that the applicant faces a real chance of harm as a returning asylum seeker.

22. The Authority referred to the Immigrants and Emigrants Act 1949 (Sri Lanka) and found there is no real chance that the applicant will receive a custodial sentence.

23. The Authority was satisfied that the imposition of a fine, surety or guarantee would not of itself constitute serious harm. The Authority found that the treatment of the applicant under the Immigrants and Emigrants Act 1949 (Sri Lanka) was not discriminatory conduct but rather the application of law that applies to all Sri Lankans. The Authority found the investigation, prosecution and punishment for the illegal departure under the Immigrants and Emigrants Act 1949 (Sri Lanka) would be pursuant to a non‑discriminatory law of general application and does not amount to persecution within the meaning of s 5J(4) of the Act. The Authority was not satisfied that the applicant faces a real chance of persecution on returning to Sri Lanka.

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

25. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm.

26. The Authority found the applicant did not meet the criterion in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 5 January 2018. On 23 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.

2. At the commencement of the hearing the first respondent produced to the Court proposed consent orders which were marked exhibit A. The consent orders had a notation on them which is as follows:

   The first respondent concedes that the decision of the second respondent is affected by jurisdictional error of the kind identified in BVZ16 v Minister for Immigration and Citizenship (2017) 254 FCR 221 at [46]-[47] and Minister for Immigration and Border Protection v BBS16 (2017) FCAFC 176 at [112] because the second respondent misconstrued or misapplied the term “exceptional circumstances” in section 473DD of the Migration Act 1958 (Cth) in relation to new information identified in the first four dot points of paragraph [9] of its decision.

3. The Court raised with the first respondent that it was concerned as to whether or not there was any error of the kind alleged in the notation. The Court was not satisfied that it was appropriate to make the consent orders. The Court, accordingly, proceeded with the hearing.

4. 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.

5. From the bar table, the applicant maintained that he could not go back to Sri Lanka, that he had been a leader in his village and that he had problems with the Sinhalese and that he wanted to remain in Australia. Nothing said by the applicant from the bar table identified any jurisdictional error.

The ground

1. The ground in the application as follows:

   The applicant was denied procedural fairness by the Immigration Assessment Authority to address part of the applicant’s claim and this failure to take into account for a relevant consideration.

2. Part 7AA of the Act is exhaustive in relation to the requirements for procedural fairness. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review under Part 7AA of the Act. No jurisdictional error is made out by reason of a denial of procedural fairness. There is no relevant consideration identified that has not taken account. No jurisdictional error arises based on the alleged grounds in the application.

3. The Court heard further submissions from the first respondent as to whether there was an error in the Authority’s reasoning in respect of consideration of the new information under s 473DD of the Act. Reference was made by the Minister to other information concerning processing “en masse” and treatment of Buddhists, neither of which was referred to as being new information and, on a fair reading of the Authority’s reasons, was clearly taken into account and had regard to by the Authority.

4. There was no reason in the circumstances of the present case to make express reference to either of those matters given the Authority’s reference to having taken into account the submissions and regard to the same, except insofar as there was the new information considered under s 473DD of the Act. Accordingly, no jurisdictional error arises by reason of the Authority taking into account the submissions concerning the processing “en masse” or the reference to Buddhist monks.

5. The solicitor for the first respondent submitted that the Authority’s reasons in paragraph 12 should be read as if the Authority had confined itself simply to the subject matter of the fifth dot point in paragraph 9 insofar as the requirements of s 473DD(b)(ii) of the Act is concerned. For the reasons already given, that does not reflect a fair reading of the whole of the Authority’s reasons. As the Court has explained, the reasoning in paragraph 12 is entirely consistent with the Authority taking into account the whole of s 473DD of the Act and the reasoning in paragraph 12 after the first sentence is clearly referable to the content of s 473DD(b)(ii) of the Act. There is no proper basis to adopt a narrow reading of the Authority’s reasons as if it had confined itself to the fifth-last dot point. There is no jurisdictional error of the kind identified in BVZ16 the Minister for Immigration and Citizenship (2017) 254 FCR 221 at [46] to [47]. There is no substance in the contention that the Authority misconstrued or misapplied the term “exceptional circumstances” in s 473DD of the Act in relation to the new information identified in the first dot points at paragraph 9.

6. The Court is not satisfied that it is appropriate to make the orders that were identified in exhibit A. The Court is not satisfied that there was any jurisdictional error of the kind identified in exhibit A.

1. Given that no other jurisdictional error has been made out, the application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 May 2019