ADE17 v Minister for Immigration
[2017] FCCA 2361
•27 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADE17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2361 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – Authority’s Practice Direction did not preclude the applicant from providing submissions or an explanation longer than five pages – a claim not advanced or arising on the material before the Authority cannot give rise to any relevant legal error – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 463CB, 473DA, 473DE, 476 |
| Applicant: | ADE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 76 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 27 September 2017 |
| Date of Last Submission: | 27 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Ms K Hooper HWL Ebsworth |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 76 of 2017
| ADE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 15 December 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
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 10 September 2012 as an unauthorised maritime arrival. The applicant applied for Save Haven Enterprise visa on 29 April 2016.
The applicant attended an interview before the delegate on 26 July 2016 and the delegate refused to grant the applicant a Safe Haven Enterprise visa. On 26 August 2016 the delegate found that the applicant failed to meet the criteria for the grant of the visa under the Act.
The applicant claimed to fear harm by reason of being a Christian Tamil born in Colombo. The applicant alleged a particular incident occurred in 2005 in which he was taken by a van and put on a bus and detained for 29 to 30 days in harsh conditions and allegedly interrogated and beaten over that period. The applicant alleged that he was accused of being an LTTE member or collaborator and of smuggling bombs to the LTTE controlled areas. The applicant alleged that when he was released, he was told not to tell anyone he had been captured. The applicant alleged on 5 November 2011 he arrived home to news from his neighbours that some unidentified men had come looking for him and he allegedly went into hiding.
The applicant departed Sri Lanka on 23 August 2012. The applicant claimed to fear harm from the authorities, including the Criminal Investigation Division (CID), the Sri Lankan Army, Navy and police. The applicant claimed to fear harm because he is a Tamil and because they would know about his 2005 arrest and allegedly that he is the only surviving witness from the bus detention and is a wanted man.
The Authority’s decision
On 30 August 2016, the Authority wrote to the applicant, informing the applicant that the matter had been referred to the Authority for the conduct of a review. The Authority identified that there are only limited circumstances in which the Authority could receive new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and to put on submissions.
The applicant, via his migration representative, provided submissions to the Authority on 27 September 2016 that were referred to in the Authority’s reasons. The Authority identified there were exceptional circumstances for considering the country information that was provided and had regard to the submissions and the country information provided by the applicant’s migration representative.
The Authority identified in its reasons the background to the visa application and having regard to the information referred under s.473CB of the Act. The Authority identified the applicant’s background and claims. The Authority accepted that the applicant was a Tamil Christian who originated from and spent most of his life around Colombo. The Authority accepted as plausible the applicant’s claim concerning what occurred to him in 2005. The Authority was also prepared to accept that in November 2011 some unidentified men carrying arms went to the applicant’s home and upon finding him absent, enquired about him to his neighbours. The Authority accepted that the applicant feared for his life and went into hiding. The Authority found the material in relation to the applicant being sought by unknown men was vague and based upon hearsay or what neighbours relayed to the applicant.
The Authority reached a different conclusion as to the applicant’s claimed profile and the implications of the 2011 enquiries. The Authority identified having concerns about the plausibility of the applicant being sought in relation to an incident in 2005 when there is no indication there was ever any further adverse interest from authorities during the intervening period. The Authority also noted that the applicant was not arrested, detained or sent to rehabilitation or even questioned at any time in the six years between 2005 and November 2011. The Authority was not satisfied the applicant was of adverse interest to the authorities in relation to the LTTE related accusations made against him during his detention in 2005 or at any time after his 2005 release. The Authority did not accept that the enquiries in 2011 were made by authorities on the basis of the earlier LTTE related accusations.
The Authority found that if the authorities or other group had sought to arrest, detain, hold or even question the applicant, they would have taken further steps and been able to locate him. The Authority was not satisfied the enquiries in 2011 were indicative of the applicant being of adverse interest to authorities or others, nor that there was an intention to harm him. The Authority was not satisfied the applicant would have become of adverse interest to the authorities or others in relation to suspected LTTE links, the 2005 incidents or any other reason since his departure.
The Authority correctly identified the relevant law. The Authority was not satisfied the applicant was of adverse interest to the authorities since he was released in 2005 and was satisfied that he would not be perceived as having been engaged in Tamil separatism, or activities which would impute him as a threat to the state and on the evidence found that the applicant does not fit within the remaining risk profiles identified by the UK. The Authority did not accept that the applicant had a profile of a kind to be detained as a suspected LTTE sympathiser.
The Authority was not satisfied the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race and his prior residence in the East or his links to persons in the North with whom he previously corroborated for his dried fish business. The Authority was not satisfied the applicant was of adverse interest to the authorities on suspicion of LTTE membership or support, nor in relation to the 2005 incidents or any other reason and was not satisfied that he would be of interest upon return. The Authority was not satisfied that the applicant’s profile is such that there is a real chance the applicant will be detained under the operation of the Prevention of Terrorism Act 1979 or that he otherwise has a well-founded fear of persecution on the basis of any imputed LTTE support or links or the 2005 incident.
The Authority accepted that the applicant would be returned to Sri Lanka as a failed asylum seeker who departed illegally. The Authority accepted that the applicant would be identified as having departed illegally and may be charged under the Immigrants and Emigrants Act 1988. The Authority found that the applicant may be questioned and processed at the airport and that he may face a brief period of detention. The Authority was not satisfied that the conditions during the brief period of detention would be such as to give rise to a level of threat to his life or liberty, or to significant physical harassment or ill treatment or otherwise amount to serious harm for the applicant.
The Authority found the process leading to the applicant being charged, convicted and punished, including payment of a fine for breaching the Immigrants and Emigrants Act 1988 would be the result of a law of general application applied to illegal departees and does not amount to persecution for the purpose of s.5H(1) and s.5J(1) of the Act.
The Authority was not satisfied considering the applicant’s circumstances cumulatively would give rise to a well-founded fear of persecution. The Authority found the applicant did not meet the definition of refugee in s.5H(1) of the Act and found the applicant did not meet the criteria under s.36(2)(a) of the Act.
The Authority was not satisfied there are 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 failed to meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
On 25 May 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
The grounds in the application are as follows:
1. The Reviewer failed to consider relevant consideration and claims articulated by me and my immigration representative and failed to engage in constructive inquisitorial inquiry. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.
Particulars
a. I have mentioned in my statement (Para 14) that I faced sexual violence from the Sri Lankan authorities. The Reviewer failed to asses my claim under particular social group of 'Tamil males face sexual violence in Sri Lanka'.
b. The Reviewer failed to adequately assess my claims under the particular social group of 'Young Tamil males '.
c. The Reviewer failed to assess my claims either under the Refugee Convention or under the Complementary Protection under the particular social group of 'eye witness of torture and killing by the Sri Lankan authorities'. In my statement, I noted that I am the only surviving eye witness.
d. The Reviewer failed to assess my claims under the religious ground. I mentioned in my application forms and in the entry interview that I am a Christian. The Reviewer failed to assess my claims either under religious ground or under the particular social group of 'young Tamil Christian'.
e. The Reviewer failed to assess my claims under the particular social group of 'Young Tamil businessmen'. I have mentioned that I had a business and faced problems due to my business dealings. The Reviewer failed to assess my claims adequately.
f. The Reviewer failed to assess my claims I mentioned in my entry interview. I mentioned that Sinhala boys used to threaten me. The Reviewer failed to consider my claims that I would face harm from Sinhala boys.
g. The Reviewer overlooked my claim of my imputed political opinion against the Sri Lankan government. The Reviewer only focused on the claim that I would be considered as a LTTE collaborator but failed to consider my imputed political opinion claim against the Sri Lankan government.
h. I mentioned in my entry interview that my brother may have been involved with the LTTE and is missing. The Reviewer failed to assess my claims on the basis of following particular social group 'member of a family unit of a suspected LTTE member'. If the Reviewer had adequately assessed my claims under the above, he could have formed a different conclusion.
i. The Reviewer failed to ask relevant question whether I have any relatives who could provide personal or financial surety to release me from the detention upon my return to Sri Lanka. Without asking and checking the relevant information, the Reviewer formed a biased opinion that I would be able to furnish surety to get bail from the prison. There is no evidence to support the conclusion of the Reviewer that I would be able to furnish surety to get out from the prison.
j. The Reviewer failed to consider what harm I would face during a brief imprisonment as a result of unlawfully leaving Sri Lanka. The Reviewer failed to consider whether I would face any harm from the Sinhala inmates during that brief detention.
2. The Reviewer has failed to give a copy of the DFAT report which is not publically available and failed to provide me an opportunity to respond to the DFAT report. Though most of the reports mentioned in the DFAT may be available publically however, the comments made by the DFAT mentioned in the DFAT reports are not publically available. I was not given the opportunity to respond to the adverse comments in the DFAT report.
3. Due to the page restriction placed on me and on my legal representatives due to the operation of Practice Guidance I was deprived of providing my detailed legal and country submission articulating my claims. The operation of Practice Guidance is merely a directive by the IAA which is not law. As a result of reliance on a mere directive the IAA deprived my legal rights to provide detailed submission. As a result of that, the decision taken by the IAA should be declared void.
At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Authority’s decision was unlawful or unfair.
The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs.
The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
The applicant’s submissions from the bar table
From the bar table, the applicant maintained that his claims had not been properly processed by the Authority. The applicant maintained that what he told the Authority was true and was of the view that the decision was unfair. Nothing said by the applicant from the bar table did more than invite this Court to engage in an impermissible merits review. This Court does not have power to revisit the merits. This Court does not have power to make fresh findings of fact. Nothing said by the applicant from the bar table identified any jurisdictional error.
Consideration
Ground 1
In relation to ground 1, the nature of the review under Part 7AA is governed by the statutory provisions. Relevantly, under s.473DA of Division 3 of Part 7AA of the Act, that division is taken to be an exhaustive statement of the requirements of the natural justice hearing law in relation to reviews conducted by the Authority. Division 3 of Part 7AA identifies limited circumstances in which the Authority can receive new information and identifies the requirements to be taken by the Authority when new information is taken into account by the Authority.
The Authority’s reasons reflect an orthodox approach to the review under Part 7AA. The Authority complied with the requirements of procedural fairness by giving the applicant an opportunity to put on submissions and new information which the applicant did in the present case and by the Authority taking that material into account in its reasons. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review.
In relation to ground 1, the proposition that there was an inquisitorial inquiry to be conducted misunderstands the nature of Part 7AA. Insofar as ground 1 suggests that the Authority failed to consider the whole of the integers of the applicant’s claims, on the face of the material before the Court, the Authority identified the whole of the applicant’s claims and made dispositive findings that were open to the Authority in respect of the applicant’s claims. Those dispositive findings cannot be said to lack an evidence and intelligible justification.
Particular a
In relation to the applicant’s suggestion that he was a person who was a member of a social group who feared sexual violence, no such claim was advanced before the Authority and no such claim arose on the material before the Authority. Accordingly, no relevant error was made by the Authority in not addressing a claim that was not advanced.
Particular b
In relation to the applicant being a Tamil male, it is apparent the Authority took those factors into account in the dispositive findings made in paragraph 29 of the Authority’s reasons that he did not face a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race and his prior residence in the East or his links to persons in the North with whom he previously collaborated for his dried fish business. Those findings subsume the applicant being a young Tamil male.
Particular c
The issue relating to the applicant being a witness to the 2005 incident was the subject of express consideration and findings by the Authority. Those findings were open on the material before the Authority.
Particular d
The applicant was represented in the review application and no claim was advanced on the basis of his Christian religion. No such claim of failure arose on the material before the Authority and there was no error in the Authority failing to address a claim that was not raised.
Particular e
In relation to the reference to being a member of a social group of young Tamil businessmen, no such claim was raised before the Authority nor, did any such claim arise on the material before the Authority. A claim not advanced or arising on the material before the Authority cannot give rise to any relevant legal error.
Particular f
In relation to the suggestion that the applicant was threatened by Sinhala boys, no such claim was advanced by the applicant and on the material, no such claim arose. Accordingly, no error arose in this regard by the Authority not addressing a claim that was not advanced.
Particular g
The applicant’s fears in relation to the LTTE were the subject of express findings by the Authority.
Particular h
In relation to the suggestion that the applicant was a member of a family unit of a suspected LTTE member, no such claim was advanced by the applicant and no such claim fairly arose on the material before the Authority.
Particular i
In relation to the issue of the applicant being able to obtain a surety, the findings made by the Authority were open on the material before the Authority and cannot be said to be unreasonable or illogical.
Particular j
In relation to the conditions that the applicant would be exposed to whilst detained, this was expressly considered and the subject of findings by the Authority.
No jurisdictional error as alleged in ground 1 is made out.
Ground 2
The Authority’s reasons refer to the same DFAT reports as were identified by the delegate. The Authority had no statutory obligation to give the applicant either a DFAT report or any of the DFAT publications cited by the delegate. Those DFAT reports were not new information and also fell within that nature of country information identified in s.473DE(3)(a) of the Act. Further, the applicant had an opportunity to address the DFAT reports and that opportunity was taken advantage of in the applicant’s submissions. No jurisdictional error as alleged in ground 2 is made out.
Ground 3
In relation to ground 3, it is not apparent that there was any request for an increase in the page limit in respect of the submissions to be advanced. On the material before the Court, the applicant had a real and proper opportunity to adduce submissions and new information. The new information was not the subject of any page limit. In circumstances where no issue was advanced as to further material that the applicant wished to rely upon, the practice direction of the Authority did not preclude the applicant from providing submissions or an explanation that was longer than five pages. In the present case it is apparent that the applicant had a real and meaningful opportunity to put on submissions and new information. No jurisdictional error as alleged in ground 3 is made out.
As the applicant fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 12 October 2017
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