Abt18 v Minister for Home Affairs
[2019] FCCA 2459
•5 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABT18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2459 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Home Affairs to refuse a Protection visa based on the applicant’s fear of harm arising from his witnessing an attack on two doctors in Sri Lanka – applicant claimed that Immigration Assessment Authority committed jurisdictional error in not considering new information and only accepting material from his entry interview – Immigration Assessment Authority considered whether it could take into consideration new information under s.473DD of the Migration Act 1958 (Cth) and correctly found that it could not – Immigration Assessment Authority considered information from a range of sources and not merely entry interview as asserted by the applicant – grounds otherwise seek to invoke impermissible merits review – applicant fails to establish any jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 36, 46A, 473CA, 473CB, 473DD |
| Cases cited: AUH17 v Minister for Immigration [2018] FCA 388 Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 |
| Applicant: | ABT18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 40 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 14 September 2018 |
| Date of Last Submission: | 17 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms A. Haddad |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 8 January 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 40 of 2018
| ABT18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Sri Lanka of Tamil ethnicity aged 34 years, having been born on 19 November 1984.
By Application filed in this Court on 8 January 2018 he seeks to quash and have re-determined the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 13 December 2017 under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 19 June 2017 refusing to grant to him a Safe Haven Enterprise (Class XE) (Subclass 790) visa (Protection visa).
Background
The Applicant was born in the Northern Province of Sri Lanka and is a Hindu Tamil. He arrived in Australia on 16 April 2013 as an unauthorised maritime arrival and attended an Irregular Maritime Arrival Entry interview on 5 May 2013 (Entry interview).
On 9 May 2016 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did through his solicitor and registered migration agent (solicitor) by making his application for the Protection visa on 5 August 2016.
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for a Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the adverse decision of the Delegate refusing to grant to the Applicant the Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 (AMA16) per Griffiths J at [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement in AMA16 of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ.
Claims for Protection
In a Statement dated 1 August 2016 forming part of his Protection visa application the Applicant claimed in substance as follows:
a)prior to leaving Sri Lanka he was based in Vavuniya as the driver of a three-wheel auto for which the parking place was near Abisha Hospital;
b)on 20 April 2009 there was an incident near Abisha Hospital where four gunmen on two motorcycles shot at two doctors walking out from the Hospital at around 6:50pm – 7:00pm, one of whom was Dr Meera Mohideen, and the other Dr Vivekandan Jeyarubam (the incident);
c)the gunmen fled as soon as the shots were fired and one doctor fell to the ground and the other doctor ran into the Hospital;
d)the Applicant assisted the doctor who fell onto the ground, namely Dr Mohideen, to Vavuniya Government Hospital, but he later died;
e)soon afterwards he took the other doctor to the same hospital and he survived;
f)after this incident he gave a statement to the Vavuniya police;
g)three days after giving his statement to the police he was taken by five armed Criminal Investigations Department (CID) officers in Vavuniya at night time and threatened and beaten up. He was asked to identify the assassins who attacked the doctors and when he was starting to do so he was given electric shocks;
h)he heard that the pro-government Tamil militant group (PLOTE) was behind the incident;
i)later the Sri Lankan authorities arrested the four gunmen who were involved in the incident;
j)he was a witness to a serious human rights violation committed by PLOTE for which the relatives of Dr Mohideen are seeking justice and are wanting the Applicant to cooperate. He gave a witness statement at their request, but the CID threatened him and thus indicated to him that the Sri Lankan security forces had been protecting the assassins and were not generally interested in calling him to any court proceeding against the assassins;
k)the Applicant believed that the Sri Lankan security forces were supportive of PLOTE in the assassination of Dr Mohideen;
l)if the Applicant were to return to Sri Lanka he would be compelled or convinced by Dr Mohideen’s relatives to give evidence, as the case against the assassins is still ongoing in a Vavuniya court, but the Sri Lankan security forces along with PLOTE “would not tolerate my witness testimony and are likely to eliminate me”; and
m)for the above reasons the Applicant left Sri Lanka and fears that if he were to return he would be killed as he could identify the persons “who killed the two doctors at Abisha Hospital”.
Relevant Law and Criteria Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7] Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 10 March 2017 with his solicitor (SHEV interview). After the SHEV interview, by email dated 23 March 2017 the solicitor made a post interview submission (post interview submission) to the Delegate and forwarded a further statement of the Applicant dated 23 March 2017 entitled “Post Interview Notes Remarks” (post interview statement), in which relevantly the Applicant claimed that as a result of the incident he is now “suffering mentally” and that he becomes “mentally very upset when I narrate these matters for a long time”.
In his Decision Record the Delegate summarised the Applicant’s claims for protection as made up to and including the SHEV interview, as follows:
• The applicant was witness to a murder on 20 April 2009, perpetrated by PLOTE, a Pro-government Tamil militant group. Three days after providing a report to the police regarding the incident, the applicant was forcibly taken from his home at night, by armed officers of the CID (Criminal Investigations Department). The applicant was detained for three days during which he was threatened and beaten in order to identify the assassins.
• The CID threatened the applicant not to tell anyone about their interrogation and the killings. These threats indicated the Sri Lankan security forces were protecting the assassins and that they were not showing a genuine interest in calling the applicant as a court witness.
• In 2013, the applicant was chased by a person who resembled one of the assassins. The applicant later heard that the CID and the authorities were planning to protect the assassins by not taking serious action against them. This created fear in the applicant's mind, that the assassins would kill him, as he had witnessed the assassination.
• The PLOTE, the group behind the assassination, work with the Sri Lankan authorities against the LTTE and their supporters; and, against their opponents. If the applicant returns to Sri Lanka, he will be compelled and convinced by the victims' relatives to be a witness as the case is still ongoing in Vavuniya court. The Sri Lankan security forces along with the PLOTE armed group would not tolerate his witness testimony and are likely to eliminate him;
and as made in the post interview submission:
• The applicant is an ethnic Tamil from the North of Sri Lanka.
• He fled Sri Lanka by boat and he has been absent from Sri Lanka for a significant period of time.
• The Sri Lankan authorities always associates with the PLOTE and Human rights abuses by the PLOTE and the Sri Lankan authorities continue to occur. The victim's family, of a murder he witnessed, will compel him to participate in the case which was lost and is now going to the High Court of Appeal. He will therefore be seriously harmed by the Sri Lankan authorities and / or PLOTE.
• A combination of these factors will bring him to adverse attention of the Sri Lankan CID and the PLOTE on return to Sri Lanka.
The Delegate found that there were significant discrepancies between the Applicant’s accounts of his claims which led him to not accept as credible:
a)the Applicant’s claim that he had attracted the adverse attention of the Sri Lankan authorities or others for being present in the vicinity of an attack that left one doctor fatally wounded and another doctor injured; and
b)the Applicant’s claim that he was identified as a key witness to the incident and that he would be required to give key testimony at court in Sri Lanka about the incident.
In the result the Delegate was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention criterion or the complementary protection criterion pursuant to s.36 of the Act and refused to grant the Protection visa to the Applicant.
IAA Decision
On 22 June 2017 the Minister, pursuant to s.473CA of the Act, referred to the IAA the Delegate’s refusal to grant the Protection visa to the Applicant.
On 4 July 2017 the solicitor sent to the IAA a submission (submission to the IAA) which claimed for the first time that the Applicant had at some unspecified time consulted a psychologist whom he had told “that he feels guilt for his failing to bring justice to the victim’s family as he is a key witness to the murder”.
At [3] of its Decision Record the IAA noted that it had had regard to the material given by the Secretary under s.473CB of the Act.
From [4] – [8] of its Decision Record the IAA set out its consideration of whether it must consider the post interview statement and the submission to the IAA pursuant to s.473DD of the Act. It concluded at [4] that the post interview statement, including its claim that the Applicant had suffered mentally as a result of his actions in relation to the incident, was not new information. However, at [5] it recorded its conclusion that the reference in the submission to the IAA to the Applicant having consulted a psychologist was new information, although it otherwise considered the submission to the IAA. In my view the IAA was legally correct in concluding that the reference in the submission to the IAA to having consulted a psychologist was new information for the purposes of s.473DD.
Accordingly, at [6] – [8] of its Decision Record the IAA turned to consider the cumulative requirements of s.473DD(a) and (b) of the Act of which it had to be satisfied before it could consider this new information: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 353 ALR 600 at 609 [31] per Gageler, Keane and Nettle JJ.
At this point it is appropriate to refer to the following statement of Mortimer J in AUH17 v Minister for Immigration [2018] FCA 388 at [32] and [33] concerning the requirements of s.473DD(a) and (b) of the Act:
[32] … The requirements in s 473DD(a) and (b) are cumulative, but there is no necessary indication that the Immigration Assessment Authority must commence by considering the application of paragraph (a) to the facts before it. Much will depend on the particular factual circumstances. As the Full Court noted in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [46], the two requirements are in a practical sense very much related. A recent re-affirmation of the cumulative (or conjunctive) nature of s 473DD(a) and (b) can be found in the decision of Gilmour J in BRA16 v Minister for Immigration [2018] FCA 127 at [26].
[33]I accept the Minister’s submissions that in the present circumstances, there was nothing erroneous about the Immigration Assessment Authority directing its attention to (b) rather than (a), since the text of (b) does suggest an applicant must “satisfy” the Immigration Assessment Authority about why the information was not provided earlier. That at least calls for some material from an applicant by way of explanation, although in a statutory setting such as this there is no burden imposed. In circumstances where the appellant had not put any express material before the Immigration Assessment Authority to explain why he was relying on these facts for the first time, the Immigration Assessment Authority was not in error to identify (b) as not satisfied. That was enough to trigger the prohibition in s 473DD.
The IAA found, in my view without committing jurisdictional error, as follows:
a)the Applicant had not submitted any reason in support of satisfying the IAA why he was relying on the new information for the first time: see [6] of the Decision Record;
b)no psychologist or other medical report had been provided to substantiate the claim that the Applicant had consulted a psychologist or to indicate the date on which he had attended before a psychologist: see [6] of the Decision Record;
c)the Applicant had not satisfied the IAA that the new information could not have been provided before the decision of the Delegate: see [7] of the Decision Record;
d)the Applicant had not satisfied the IAA that the new information was credible personal information of the Applicant, or that if it had been known may have affected the consideration of the Applicant’s claims: see [7] of the Decision Record; and
e)in addition there were no exceptional circumstances to justify consideration of the new information: see [7] of the Decision Record.
Further and in any event, even if the IAA was in error in not considering the new information, such error did not involve jurisdictional error because it was not material to the IAA decision and did not deny to the Applicant the possibility of a successful outcome. The only new information which the IAA declined to consider was a bare allegation of consultation by the Applicant of a psychologist and the Applicant did not address the question of whether and how this bare allegation might have affected the IAA’s consideration of his claims. Without the production of an actual report(s) of a psychologist giving the date(s) of the consultation(s) this allegation was not material. As O’Bryan J said in BHM17 v Minister for Immigration & Border Protection [2019] FCA 1396 at [39]:
[39]Although I have come to the view that the Authority erred in that respect, in my view the error did not constitute jurisdictional error because it was not material to the Authority’s decision: Hossain v Minister for Immigration and Border Protection[2018] HCA 34; (2018) 359 ALR 1 at [29]- [31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA[2019] HCA 3; (2019) 163 ALD 38 at [45] per Bell, Gageler and Keane JJ (SZMTA). The onus is on the appellant to satisfy the Court of jurisdictional error including that the error was material in the relevant sense: SZMTA at [4], [41] and [46] per Bell, Gageler and Keane JJ. Speculation as to how taking into account an applicant’s submission “may” have affected a decision is not enough to discharge the onus of demonstrating materiality. The court must decide whether the failure to consider the submission has operated to deprive the visa applicant of the possibility of a successful outcome; i.e. whether the decision could realistically have been different: SZMTA at [68], [69] and [71] per Bell, Gageler and Keane JJ.
From [12] – [48] of its Decision Record the IAA considered the Applicant’s claims under the Refugees Convention criterion and under the complementary protection criterion. At [15] it accepted as credible that the Applicant had been in the vicinity of and witnessed the incident of 20 April 2009 and that he had assisted by transporting the fatally injured doctor to hospital. However, the IAA otherwise expressed concerns about the consistency and credibility of the Applicant’s evidence. It considered that over a period of time, since the time of his Entry interview, he had given inconsistent and contradictory evidence and had embellished or fabricated his evidence in support of his claims for protection.
At [26] of its Decision Record the IAA noted that it did not accept that the Applicant was of interest to the Sri Lankan authorities or any other group as a result of witnessing or being involved in the incident. It noted that he had continued to reside in the house that he had been living in at the time of the incident, which was physically opposite where the incident had occurred, until at least January 2012 and that this was inconsistent with the Applicant having a genuine fear for his safety, because otherwise he would not have continued to live in the same area for about three years.
At [27] of its Decision Record the IAA noted that the solicitor claimed on behalf of the Applicant that he feared harm as a result of his background as an ethnic Tamil from the Northern Province of Sri Lanka. From [28] – [41] the IAA considered country information in this respect and concluded at [38] that the Applicant did not face a real chance of harm on the basis of his Tamil ethnicity. From [34] – [41] the IAA considered whether the Applicant would suffer harm on his arrival at Colombo Airport on account of being a failed asylum seeker who had departed Sri Lanka illegally, but concluded at [41] that he would not.
At [43] of its Decision Record the IAA recorded its conclusion that the Applicant was not a refugee and for the same reasons for which it had rejected the Applicant’s claim to be a refugee, it found at [46] that he did not face a real chance of any harm under the complementary protection criterion.
Accordingly, the IAA affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on IAA Decision in this Court
The Grounds relied upon by the Applicant are verbatim as follows:
1. The IAA was in error when deciding to only accept material in the Applicant’s in the entry interview.
2. Further, the IAA incorrectly refused to take into account additional information given to the IAA, such refusal amounting to an error at law.
3. The IAA committed to an error of law in concluding the Applicant did not meet the refugee Criteria under s5(H)(1) or s.36(2)(a) of the Migration Act 1958 and in finding the Applicant did not meet the Complementary protection grounds set out in s.36(2) (aa) of the Migration Act 1958.
4. The IAA committed an error of law when it affirmed the decision not to grant the Applicant a protection visa.
5. The IAA committed an error of law when it failed to grant the Applicant a protection visa.
Immediately under the numbered Grounds in his Application the Applicant provided the following note:
I am the Applicant. I am self-represented at this stage. I have not retained a lawyer and barrister to represent me in this court yet. I propose to seek further legal advices once I have obtained my protection visa interview and entry interview CDs. I need to listen to entry and immigration interview CDs in order to provide further particulars of these grounds and / or other grounds and particulars.
However, the Applicant did not seek to tender any further evidence or to particularise his Grounds either before or at the hearing, where his submissions basically invoked a merits review which is not available in this Court.
Consideration
Ground 1
Ground 1 is factually wrong. The IAA did not confine its consideration of information to only the Entry interview. The IAA had regard to the material referred to it under s.473CB of the Act, which would have included the Entry interview, the Protection visa application form and Statement dated 1 August 2016, the SHEV interview, the post interview submission and the post interview statement. The IAA also considered the submission to the IAA, except for the assertion therein of the Applicant’s consultation with a psychologist.
The IAA’s consideration of these materials is corroborated by the terms of the Decision Record of the IAA itself, and Ground 1 fails to establish that the decision of the IAA is affected by jurisdictional error.
Ground 2
Ground 2 also fails for the reasons I have given above at [17] – [21], in connection with the reference in the submission to the IAA to the Applicant having consulted a psychologist.
Ground 3
This Ground constitutes an unparticularised and generalised assertion of error of law by the IAA in concluding that Australia did not owe protection obligations to the Applicant pursuant to ss.5H(1), 36(2)(a) and 36(2)(aa) of the Act. However, I am unable to discern any such error of law.
At [10] – [11] of its Decision Record the IAA set out the substance of the Refugees Convention criterion and made findings in that connection at [42] – [43]. At [44] – [45] it set out the substance of the complementary protection criterion and recorded its findings in this regard at [49], and it attached to its Decision Record the relevant statutory provisions in a document entitled “Applicable law”.
Otherwise, the Decision Record of the IAA comprises a comprehensive and reasoned consideration of the Applicant’s claims based on credibility findings and relevant independent country information. The decision is not legally unreasonable or lacking in an intelligible justification and Ground 3 fails to establish jurisdictional error.
Grounds 4 and 5
Both of these Grounds likewise assert in unparticularised and generalised terms that the IAA committed “an error of law”, but in substance merely express the Applicant’s disagreement and dissatisfaction with the conclusions reached by the IAA.
These Grounds fail to establish jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the IAA is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 5 September 2019
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