Abx17 v Minister for Immigration

[2019] FCCA 1259

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABX17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1259

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the delegate failed to comply with the requirements of s.57 of the Act – whether it was legally unreasonable for the Authority not to exercise its powers under s.473DC of the Act – whether the adverse findings made by the Authority were open – whether the considered relevant country information – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 57, 473CB, 473DC, 473GB, 476

Applicant: ABX17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 8 of 2017

Judgment of: Judge Street

Hearing date: 13 May 2019

Date of Last Submission: 13 May 2019

Delivered at: Sydney

Delivered on: 13 May 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Ladhams
Australian Government Solicitor

ORDERS

1. The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The Application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 13 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 8 of 2017

ABX17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL 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 6 December 2016, 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 8 November 2012.

3. The applicant claimed to fear harm by reason of being of Tamil ethnicity from Batticaloa in Sri Lanka. The applicant also claimed to fear harm by reason of his brother being wanted by the Criminal Investigation Division (“CID”) on suspicion of Liberation Tigers of Tamil Eelam (“LTTE”) involvement and because his brother evaded the security forces and the authorities now have an interest in the applicant and will harm him on return. The applicant in his claims alleged that after his brother escaped the security forces his father arranged for his brother to be taken to a particular training centre where he boarded and studied for the next two years, and that he was safe in this centre as it was operated by a non-government organisation, and the authorities would not enter the same. The applicant alleged that the brother returned to the family village in April/May 2012.

4. The applicant alleged an incident occurred involving the CID with his brother in June 2012. The applicant alleges his brother returned to Jordan in January 2016, and that the CID came looking for the applicant’s brother, and the brother has been missing since then. The applicant alleged there had been activity on his brother’s Facebook page since January 2016 but that the same had been posted by his sister or someone else who had access to the Facebook account. Statutory declarations were provided by the applicant’s father and sister regarding the Facebook use.

5. The applicant claims to fear harm because he left Sri Lanka illegally and that he will detected at the airport and questioned at the airport and that the CID will arrest him to find out where his brother is and because he defied the CIDs demand.

6. On 18 October 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise Visa.

7. The delegate expressly referred to the applicant’s attending an interview before the Department on 20 September 2016 with the assistance of an NAATI accredited Tamil interpreter, as well as having present the applicant’s migration agent. The delegate referred to interpretation issues raised by the applicant’s migration agent during the interview and the opportunity given to the applicant’s agent to provide further written submissions on any concerns with the quality of the interpreting. The delegate referred to the submissions received by the applicant on 5 October 2016 and that no further issues were raised in respect of the interpreting that occurred.

8. Those submissions had also addressed the statutory declarations of the applicant’s father and sister in relation to the Facebook posts allegedly not made by the brother. The delegate accepted that the applicant’s brother may have been kidnapped in 2007 but did not consider the brother was of significant interest to the Sri Lankan authorities.

9. The delegate also referred to the June 2012 alleged incident and found the explanation of the circumstances regarding this incident to be implausible and did not accept the events described by the applicant regarding the incident in 2012 as having occurred.

10. The delegate addressed the submissions in relation to the disappearance of the brother and an issue in that regard being raised in relation to the applicant’s photographs produced at the interview of himself and his brother, and the applicant’s evidence in relation to the brother’s use of Facebook and that the applicant alleged that his brother had asked his sister to make the posts. The applicant was expressly asked to explain the new posts in respect of the photograph of himself with his brother since the date of disappearance and referred to the applicant’s explanation that his sister uploaded the same. The delegate found the applicant’s explanations to be implausible and inconsistent.

11. The delegate did not accept the applicant’s brother had gone missing since January 2016 and found the applicant had fabricated this claim.

12. On 25 October 2016, following the delegate’s decision, 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. No such material was provided to the Authority.

13. There was also a certificate issued by the Department on 18 October 2016 to the Authority under s 473GB of the Act which referred to documents or information, in particular portfolios in respect of the Facebook link between the applicant and his missing brother and the brother’s Facebook recent posts. The non-disclosure was based on being contrary to public interest because it revealed internal Departmental investigative processes. It is apparent that the issue of the Facebook posts post-dating the applicant’s brother’s alleged disappearance was an issue that was explored with the applicant by the delegate, and that the applicant had a real and meaningful opportunity to engage with the same, and indeed the applicant’s submissions and statutory declarations from his father and sister addressed that issue.

14. The Authority in its reasons identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims.

15. The Authority accepted the applicant departed Sri Lanka illegally and that he had had uncles who were killed during the civil war or are missing since the war. The Authority did not accept that the applicant’s brother would have been able to escape from custody and then evade the security forces for the next five years. The Authority found that had the applicant’s brother escaped from the CIDs custody as claimed, the CID would have had heightened interest in him, however there is no inference that the CID made any attempts to locate him.

16. The Authority did not accept that the applicant’s brother was able to hide in a training facility until September 2009 on the basis it was run by a non-government organisation and that the authorities could not access the facility. The Authority was not satisfied the applicant’s brother was detained and taken to a camp and then escaped from the CID custody as claimed.

17. The Authority found that had the applicant’s brother been of interest to the authorities, taking into account the country information, he would have been detected in the registration process in respect of Tamils. The Authority did not accept the applicant’s brother would have been able to pass security checks if he would have had this interest to the authorities.

18. The Authority did not accept the applicant and his brother were stopped and attacked by CID officers in June 2012. The Authority found the applicant’s account of the attack to be implausible. The Authority did not accept that if the applicant’s brother was wanted by the CID, the CID would stop the brother, beat him and then leave after their mother intervened. The Authority found the ability of the applicant’s brother to travel to and from Jordan was not consistent with a person who has an LTTE profile of interest to the authorities. The Authority found the applicant’s brother did not have an LTTE profile and did not accept the CID came to the family home to look for him after his return in January 2016 or that he has been missing since that time.

19. The Authority referred to the Facebook post on the brother’s account subsequent to his alleged disappearance in February 2016 and the assertion that the applicant’s sister has been using her brother’s Facebook account and posted the photographs. The Authority found the applicant’s explanation to be unconvincing. The Authority did not believe that the family would take the risk of allowing the sister to use the Facebook account in the brother’s name. The Authority referred to the statutory declarations and found they do not overcome the significant concerns with the claim that the sister was responsible for posting on the Facebook account after the date of the alleged brother’s claimed disappearance. It was in these circumstances the Authority did not accept that the brother is missing.

20. The Authority did not accept the brother is of interest to the CID. Accordingly, the Authority concluded that the applicant had fabricated his claims that his brother escaped the CIDs custody in 2007, went into hiding from then until 2012, was stopped and beaten by the CID in 2012, was pursued by the CID after his return to Sri Lanka in 2016 and has since disappeared. The Authority did not accept the family have been imputed with an LTTE profile on the basis of the applicant’s brother, nor that the applicant was stopped and questioned and beaten with his brother in 2012, or questioned about his brother after that event, or that the CID came looking for the applicant and his brother while they were staying with their grandmother.

21. The Authority found that there has been no adverse attention to the applicant or his family on the basis of his LTTE uncle and was satisfied that there is not a real chance that the applicant will face harm on return to Sri Lanka on the basis of having an imputed LTTE profile.

22. The Authority was not satisfied there is a real chance of serious harm arising for the applicant as a result of being a Tamil from a former LTTE controlled area, because of his father’s abduction in 1985 and 1995, or because of his family links with an LTTE member, nor has the applicant been imputed with an LTTE profile.

23. The Authority found there is no real chance of the applicant suffering serious harm now on the basis of his involvement with political campaigning or any future political campaigning.

24. The Authority accepted that the applicant will be returning as a failed asylum seeker who departed Sri Lanka illegally. The Authority did not consider the brief period of detention that the applicant would face would constitute the necessary level of threat to his life or liberty, or to significant physical harassment or ill treatment under s 5J(5) of the Act or otherwise amount to serious harm for the applicant.

25. The Authority did not consider that any likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine under the Immigrants and Emigrants Act (Sri Lanka), to constitute a threat to the applicant’s life or liberty, or to be significant physical harassment or ill treatment under s 5J(5) of the Act or otherwise amount to serious harm.

26. The Authority found the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act (Sri Lanka) would be the result of a law of general application and does not amount to persecution for the purpose of ss 5H(1) and 5J(1) of the Act.

27. The Authority found on the evidence before the Authority that the applicant’s status as a failed asylum seeker would not bring him to adverse attention on return to Sri Lanka. The Authority did not accept the applicant has an actual or imputed profile of LTTE links or would be perceived as such.

28. The Authority was not satisfied there was a real chance the applicant would face any harm as a returning failed asylum seeker. The Authority found the requirements of the definition of “refugee” in s 5H(1) of the Act were not met and that the applicant did not meet the criteria in s 36(2)(a) of the Act.

29. The Authority was not satisfied that the poor prison conditions to which the applicant may be subject constitute significant harm as defined in s 36(2A) in and s 5 of the Act. The Authority was not satisfied the applicant would face a real risk of significant harm during any possible brief period in detention.

30. The Authority found there were 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 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.

Before this Court

1. On 15 March 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit and submissions. No such documents have been filed.

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

3. From the bar table, the applicant maintained that the decision of the Authority was not right and that there was a problem with his country. The applicant’s submissions in this regard, in substance, invite the Court to engage in merits review. This Court does not have power to review the merits.

4. The applicant maintained that he could not go back to Sri Lanka and that his life would be in danger. The applicant also referred to his brother being missing. It is apparent that the Authority did not accept the applicant’s claims in relation to his missing brother and gave reasons in that regard that cannot be said to lack an evident and intelligible justification. The adverse findings on their face were open on the material before the Authority and the applicant’s disagreement with the adverse findings cannot identify any relevant error.

5. The Authority found the applicant would not face a real chance or real risk of serious harm or significant harm contrary to the submissions advanced by the applicant. Those adverse findings were open for the reasons given by the Authority. On the face of the Authority’s reasons, the Authority made dispositive findings in respect of the whole of the applicant’s claims. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows: 

   Ground 1

   The IAA committed jurisdictional error when it failed to review the delegate’s decision on the delegate’s misapplication of section 57 of the Migration Act 1958. The applicant’s contention was that the misapplication of section 57 has led the delegate to incorrectly find the applicant to not be credible and, hence, for refusal of the applicant’s protection visa application.

   Ground 2

   The IAA committed jurisdictional error when it decided on issues not raised by the delegate, and coming to conclusions contrary to findings of the delegate without any prior interview of the applicant.

   Particulars

   i) That the applicant’s brother was never stopped and attacked in June 2012. (paragraph 12 of the IAA decision).

   ii) The applicant’s account of the attack to be implausible.

   iii) That the applicant’s brother was of significant interest to Sri Lankan army when it was not the applicant’s claim.

   Ground 3

   The IAA committed jurisdictional error when it decided that the applicant was of significant interests to Sri Lankan authorities, despite the applicant having made no such claim. There was no basis for making that decision. This error has led the IAA to commit the following jurisdictional errors:

   i) The applicant explained that as this school was run by a non-government organisation the occupants were protected from attack by Sri Lankan forces. However, country information indicates that in 2007 there were numerous killings of those employed by NGOs and other humanitarian assistance workers, including alleged involvement by senior government officials3 in addition to hundreds of civilian abductions and murders. I do not consider the idea that a person of significant interest to the Sri Lankan authorities would be protected by simply enrolling in a NGO school to be consistent with country information. This suggests that if these events actually occurred, the applicant’s brother possessed a very low profile and was not of significant interest to Sri Lankan authorities.

   Ground 4

   The IAA committed jurisdictional error when it relied on new information not previously relied on by the delegate.

   Particulars:

   1. IAA referring to the following new information:

   i) US Department of State report “Country reports on Human Rights Practices Mar 2007 (paragraph 10 page 5 of the IAA decision).

   ii) Danish Immigration Service 2010

   Ground 5

   The IAA committed jurisdictional errors when it failed to distinguish between unofficial investigation by the local CIDs (without a formal file opened on the applicant) and official investigation by the Sri Lankan authorities, therefore coming to wrong decision based on the wrong facts.

Ground 1

1. In relation to ground 1, any error by the delegate cannot give rise of itself to a jurisdictional error by the Authority. It is apparent from the submissions advanced to the delegate that the issue of credibility of the applicant was a live issue before the delegate, including the issue in respect of the Facebook posts by the brother and whether the brother was missing and the post of missing photographs posted in that Facebook account.

2. There is no substance in the contention on the face of the material before the Court that the delegate failed to comply with the requirements of s 57 of the Act and in any event that such an assertion cannot give rise to any relevant error by the Authority, No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant contends that the Authority should have interviewed the applicant under s 473DC of the Act before making adverse findings in relation to the incident involving June 2012 and the implausibility of the incident involving the applicant and his brother and as to whether or not his brother was of significant interest to the Sri Lankan authorities.

2. All those matters were matters that were live issues before the delegate. There is no new issue identified of a kind in respect of which it could be said to be legally unreasonable for the Authority not to expressly consider or exercise its powers under s 473DC of the Act. The scheme of the Act under Part 7AA is not one that required the Authority to interview the applicant before determining the review in the present case as there was no new issue of a kind requiring consideration of that power under s 473DC(3) of the Act. No jurisdictional error arises by reason of ground 2 of the application.

Ground 3

1. In relation to ground 3, the Authority did not accept the applicant was of significant interest to the Sri Lankan authorities, and, in fact, acknowledgement that the applicant made no such claim does not of itself identify any relevant error by the Authority. The particulars set out refer to reasoning from the delegate’s decision and insofar as ground 3 seeks to cavil with the adverse finding in respect of the brother and the rejection of the applicant’s claims in respect of the brother being of interest to the Sri Lankan authorities and the adverse findings made by the Authority were open for the reasons given by the Authority as summarised above. Those reasons cannot be said to lack an evident and intelligible justification. No jurisdictional error arises by reason of ground 3 of the application.

Ground 4

1. Ground 4 asserts the country information particularised as being new information that was not previously before the delegate. This proposition is without substance. It is apparent that both reports referred to were footnoted in the delegate’s decision. No jurisdictional error arises by reason of ground 4 of the application.

Ground 5

1. In relation to ground 5, there was no submission advanced to the Authority in respect of the distinction between official investigation and unofficial investigation and a claim not raised before the Authority, which does not on its face fairly arise on the material before the Authority, cannot give rise to relevant error. No such distinction between official investigation and unofficial investigation is apparent on the face of the material that was before the Authority. Accordingly, no jurisdictional error as alleged in ground 5 arises.

Section 473GB Certificate

1. The Minister, consistent with the Minister’s duty, raised with the Court the existence of the s 473GB certificate dated 18 October 2016. The certificate is in evidence and it is apparent that the folios the subject of the claimed public interest protection concern the internal Departmental investigative processes. It is apparent on the face of the material before the Court that the applicant’s brother’s Facebook posts was an issue explored with the applicant and the subject of further submissions and further evidence by the applicant before the delegate.

2. No practical injustice arises from the face of the s 473GB certificate in the circumstances of the present case. The circumstances of the present case do not reflect any practical injustice being suffered by the applicant by the non-disclosure of the certificate. Accordingly, no jurisdictional error arises by reason of the existence of the certificate under s 473GB of the Act in the circumstances of the present case. That is because the applicant had the opportunity to and did explore the Facebook posts and the link between him and his missing brother in both the submissions and the evidence adduced to the delegate.

3. Accordingly, as the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 July 2019