ADH18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1371
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ADH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1371
File number(s): MLG 67 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 11 December 2024 Catchwords: MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed the decision of the first respondent that the applicant is not a person in respect of whom Australia has protection obligations – whether the applicant was denied procedural fairness – found no unfairness arose – whether the Authority failed to exercise its discretion to obtain new information from the applicant under s 473DC – found the review was conducted in accordance with Part 7AA - found the Authority’s reasons for refusing to exercise its discretion under s 473DC were reasonable – found no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2), 46A, 65, 91K, 473CB, 473CC, 473DB, 473DC, 473DA,473GA, 473GB, 474, 476, Pt 7AA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 sch 2
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
Craig v South Australia (1995) 184 CLR 163
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 4 December 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Moxey of Sparke Helmore Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
MLG 67 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADH18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Application filed on 11 January 2018 be dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG
Before the Court is an application filed on 11 January 2018, in which the applicant seeks judicial review of a decision of the second respondent (Authority) dated 7 December 2017. By that decision, the Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (Visa).
CONTEXT
The applicant is a citizen of Sri Lanka.
On 8 September 2012, the applicant arrived in Australia by boat as an unauthorised maritime arrival.
On 12 August 2013, the applicant applied for a Protection (Class XA) visa which was deemed invalid by the Department of Immigration and Border Protection, as it then was (Department), because of s 46A and s 91K of the Migration Act 1958 (Cth) (Act).
On 10 December 2015, the Department sent the applicant an invitation to apply for a Temporary Protection visa or a Safe Haven Enterprise visa.
On 31 October 2016, the applicant applied for the Visa. The applicant’s claims were set out in two separate Statutory Declarations dated 8 August 2013 and 25 October 2016, both of which were attached to his Visa application. Also attached to the applicant’s Visa application were several identification documents and country information relevant to Sri Lanka. Relevantly, the applicant’s claims for protection can be summarised as follows:
(1)the applicant is a Hindu Tamil from Mullaitivu;
(2)in November 1986, the applicant’s father was shot and killed by the Sri Lankan Army (SLA);
(3)in September 2008, the applicant and his family were displaced from Mullaitivu, a Liberation Tigers of Tamil Eelam (LTTE) controlled area, as a result of the intensifying conflict between the LTTE and the SLA, at which time they fled to different places within the vicinity of Mullaitivu;
(4)in May 2009, the applicant and his family were taken to a refugee camp controlled by the SLA in Vavuniya. While in the camp, the applicant was subjected to questioning, interrogation, harassment and beatings by the Criminal Investigation Department (CID) and SLA due to suspected association with the LTTE on the basis of the family’s origins in Mullaitiva;
(5)in March 2010, the applicant and his family were released from the refugee camp, however harassment from the SLA and CID continued;
(6)between March 2010 and January 2011, the applicant was interrogated by the CID approximately 20 times and told to report to the CID office. The applicant was afraid to report and actively tried to avoid doing so in fear of detention, torture or being killed;
(7)in May 2010, the applicant was detained, questioned and searched while renewing his passport in Colombo;
(8)prior to the applicant fleeing in 2012, a Tamil individual was shot and another abducted by the CID due to their perceived involvement with the LTTE;
(9)subsequent to the applicant fleeing, the CID has continued to look for him by attending on both his wife and mother’s house in Kilinochchi and Mullaitivu respectively. The CID have attended on his wife’s residence six or seven times since 2012 with the most recent time being March 2016 and approximately four or five times to his mother’s residence to ascertain his whereabouts;
(10)Sri Lanka is not safe for Tamils. Tamils are not able to move freely in Sri Lanka and the SLA restricts movements and access to temples; and
(11)the applicant fears continued harm imposed by the CID and SLA should he be required to return to Sri Lanka due to fleeing Sri Lanka illegally and the ongoing suspicion that he is associated with LTTE on the basis of his origin, ethnicity, imputed political opinion and age.
On 28 February 2017, the Department invited the applicant to attend an interview on 21 March 2017 to discuss his Visa application (Visa Interview). The applicant further expanded upon his claims at the Visa Interview and provided a written submission prepared by the agent who assisted him with his Visa Application.
On 30 March 2017, the Delegate refused to grant the applicant the Visa (Delegate’s Decision).
On 4 April 2017, the Delegate’s Decision was referred to the Authority for review.
On 11 April 2017, the Asylum Seeker Resource Centre (ASRC) emailed the Authority and attached a letter signed by the applicant (IAA Letter). The email stated that the ASRC had provided advice and assistance with respect to the IAA Letter, however they were not acting for or representing the applicant. The IAA Letter stated that the applicant intended to provide a written submission to the Authority but alleged that the 21 day timeframe in which he was required to provide such submission was “unreasonable and arbitrary”. The IAA Letter made further allegations as to unfairness in the Authority’s processes and requested certain documents. On 12 April 2017, the Authority contacted the applicant via telephone and advised him of the Freedom of Information (FOI) process, and forwarded him a copy of the Visa application, Visa Interview recording and Delegate’s Decision.
On 7 December 2017, the Authority affirmed the Delegate’s Decision not to grant the applicant the Visa.
AUTHORITY DECISION
The Authority issued its statement of decision and reasons on 7 December 2017 (Authority Decision).
Information considered by the Authority
At paragraph [3] of the Authority Decision, the Authority stated that it had regard to the material referred to it by the Secretary under s 473CB of the Act.
At paragraph [4] of the Authority Decision, the Authority stated that it had received the IAA Letter and considered it to contain argument rather than new information and as such had regard to it. At paragraphs [5] – [8], the Authority set out and considered the content of the IAA Letter which can be summarised as follows:
·The applicant stated he was unable to make a submission to the Authority due to the short timeframe for submissions, the absence of legal representation and the Delegate’s Decision being lengthy and in English. The Authority noted that the Delegate’s Decision was eight pages and that, although the applicant stated it was not translated into his first language, the applicant submitted that the Delegate made findings he had only heard for the first time.
·The applicant stated that the Authority process was not fair or reasonable, the short timeframe for submissions in addition to long delays in the FOI impacted his ability to present his case and that because the Authority only considers new information in exceptional circumstances, it may miss relevant country information. The Authority noted the applicant was contacted and advised of the FOI process on 12 April 2013 and at the applicant’s request, had been provided with a copy of his Visa application, the Visa Interview recording and the Delegate’s Decision.
·The Authority noted the effect of s 473DB of the Act, being that it must conduct a fast-track review by considering the material referred to it by the Department without accepting or getting new information and without interviewing the applicant. The Authority outlined that the IAA Practice Direction 1 allows for the applicant to make a submission as to why they disagree with the primary decision or to highlight any matter that may have been overlooked by the Department within 21 days. The Authority indicated that the applicant had not sought an extension of time nor provided submissions.
·The applicant requested an oral hearing and stated that the Authority will fall into error if it does not conduct a hearing in addition to not affording the applicant procedural fairness or the opportunity to respond to adverse credibility findings. The Authority noted that it was conducting a fast-track review and such review is to be conducted on the papers and that there was no right under Part 7AA of the Act to a hearing. The Authority was satisfied that the applicant had an opportunity to provide his response to the Delegate’s Decision to the Authority and was not satisfied that an interview was required in the circumstances of the case.
Consideration of claims
At paragraph [9] of the Authority Decision, the Authority summarised the applicant’s claims for protection.
At paragraphs [13] – [15] of the Authority Decision, the Authority acknowledged the applicant’s evidence that following his arrival in Australia he illegally drove a motor vehicle and was subsequently charged and fined at which time the police discovered that his bridging visa had expired. As a result, the applicant was taken to immigration detention where he was detained for seven months. The Authority also noted that the applicant’s mother was unwell. The Authority found that the applicant did not articulate any claims of harm that could arise from either his offences in Australia, his period of detention or his mother’s illness and that no such claims arose.
At paragraphs [16] – [17] of the Authority Decision, the Authority acknowledged that the applicant stated he had depression and other mental health issues as a result of his father’s death, however, noted that he had not provided medical documentation. While the Authority accepted that the applicant may have experienced some mental health issues, it was not satisfied that this explained parts of the applicant’s evidence which it found not to be credible, or that any claim arose in relation to an inability to access medical treatment in Sri Lanka.
At paragraph [18] of the Authority Decision, the Authority accepted that the applicant’s father was shot and killed by the Sri Lankan authorities in 1986 but did not accept that he was killed due to his Tamil ethnicity or suspected LTTE association and found it to be the applicant’s belief only.
At paragraph [19] of the Authority Decision, the Authority accepted a number of claims made by the applicant, including that the applicant’s family were displaced and taken by the Sri Lankan authorities to a government controlled camp in Vavuniya as a result of the civil conflict in May 2009. The Authority accepted that the authorities questioned the applicant about his involvement in the LTTE and physically assaulted him two to three times as this was consistent with country information. However, at paragraph [21], the Authority did not accept that the applicant was continuously harassed by the authorities following his release from the refugee camp or that the CID had told him to sign into their offices. At paragraph [22], the Authority found the applicant’s evidence in relation to the events which followed his release to be inconsistent and unconvincing, noting that his accounts of harassment by the authorities had evolved over time. At paragraph [24], the Authority noted country information which indicated that people who were suspected of having ties to the LTTE were arrested and detained at the end of the civil war and sent to rehabilitation centres, but that the applicant had not claimed this. Accordingly, the Authority was satisfied that at the time of his release from the camp, the applicant was not suspected of any involvement with the LTTE.
At paragraphs [25] – [26] of the Authority Decision, the Authority accepted that when renewing his passport in May 2010 the applicant was questioned and searched about whether he had any connections to the LTTE but found that this was an isolated incident which did not demonstrate any ongoing interest.
At paragraphs [28] – [30] of the Authority Decision, the Authority accepted that the applicant moved to Vavuniya for one year but did not accept that during this time he was not harassed by the authorities because he did not leave his work or home.
At paragraphs [31] – [33] of the Authority Decision, the Authority considered the applicant’s claim that when he returned to Mullaitivu he was constantly threatened, harassed and interrogated by the SLA and CID on the basis of suspected LTTE association and found this to have no credible basis. Overall, the Authority was not satisfied that the applicant was of interest to the authorities for any reason at the time of his departure from Sri Lanka. At paragraph [34], the Authority found that while there is credible evidence of serious harm being perpetrated against those with suspected LTTE associations, including reports of people being shot and killed, the Authority was not satisfied that there was any credible basis to infer that the applicant would suffer the same or that such events are correlated to the applicant. Given its earlier findings that the applicant was not of interest when he departed from Sri Lanka, at paragraph [36] the Authority was not satisfied that the CID or authorities had approached his wife or mother.
At paragraphs [37] – [39] of the Authority Decision, the Authority considered relevant country information and was satisfied that the applicant would be able to practice his Hindu faith freely on his return to Sri Lanka and that there is no real chance of harm as a result of his Hindu faith.
At paragraphs [40] – [41] of the Authority Decision, the Authority did not accept that the applicant would be harmed or unable to survive if he returned to Sri Lanka due to any perceived LTTE association, his age, Tamil ethnicity or past circumstances.
At paragraphs [42] – [46] of the Authority Decision, while the Authority accepted that the applicant and his family experienced some difficulties, the Authority considered country information which indicated significant improvement for Tamils in Sri Lanka. The Authority accepted that the applicant may face some difficulty in communicating as a monolingual Tamil but was not satisfied that it would be to the extent that the applicant would suffer a real chance of harm.
At paragraphs [48] – [51] of the Authority Decision, the Authority considered country information and was not satisfied that the applicant would be imputed with any profile or pro-LTTE opinion on the basis of his family’s past circumstances or his status as a young Tamil male from the North or for any other reasons claimed.
At paragraphs [52] – [64], the Authority considered the applicant’s claim to fear harm as a returning asylum seeker who departed illegally. Having considered relevant country information, the Authority accepted that the applicant would be questioned and investigated on return to Sri Lanka and may be charged and fined under the Immigrants and Emigrants Act. However, the Authority found that the applicant had no adverse profile with the authorities and did not accept that the applicant would be imputed with any pro-LTTE opinion. Therefore, the Authority was not satisfied that the applicant faced a real chance of harm on the basis of being a returning asylum seeker who departed illegally.
Accordingly, the Authority was not satisfied that the applicant met the criteria in sections 36(2)(a) or (aa) of the Act and thereby affirmed the Delegate’s Decision.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Authority’s decision on 11 January 2018.
The Application contains the following grounds for judicial review (without amendment):
1.The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware, and in the alternative the Second Respondent denied procedural fairness because the Authority’s reasoning departed from the Department’s reasoning, resulting in a practical injustice to the Applicant.
2.The Second Respondent constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.
3.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision and will provide further particulars in due course.
The applicant also filed an affidavit on 11 January 2018 which annexed a copy of the Authority Decision.
The Minister filed a Response on 22 January 2018. The Response sought orders that the application be dismissed and orders as to costs on the ground that the Authority’s decision is not affected by jurisdictional error.
The Minister also filed written submissions and a list of authorities on 20 November 2024.
The Hearing
The hearing took place on 4 December 2024.
The applicant appeared on his own behalf. The Minister was represented by Ms Moxey of Sparke Helmore.
At the hearing the applicant was invited to elaborate on the grounds for review contained in the Application and submitted that had he been invited to a hearing he could have articulated his claim in more detail.
In addition, the applicant submitted that the Authority erred in not believing him. Specifically, the applicant submitted that the Authority erred in not believing that his father had been shot and that he had been captured, held and beaten by the CID (Oral Submissions).
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
As already set out, the task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1
By Ground 1 the applicant submits that the Authority denied him procedural fairness in its failure to alert the applicant to new issues arising before the Authority and/or because the Authority’s reasoning departed from that of the Delegate’s reasoning resulting in a practical injustice for the applicant.
Ground 1 is unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].
As to the assertion that the Authority denied the applicant procedural fairness by failing to alert the applicant to new issues arising before the Authority, that assertion must be rejected.
The Authority’s review was conducted under Part 7AA of the Act.
Part 7AA of the Act provides a fast track review process in relation to certain protection visa decisions. Under Part 7AA, the Authority must review a “fast track review decision” made by the Minister refusing under s 65 to grant a protection visa to a "fast track applicant”.
Section 473DA provides as follows:
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give a referred application any material that was before the Minister when the Minister made the decision under section 65.
Division 3 of Part 7AA (together with ss 473GA and 473GB) is therefore taken to be an exhaustive statement of the requirements of the natural justice rule in relation to a review conducted by the Authority: s 473DA(1). Section 473DA(1) leaves no room for the operation of common law rules of procedural fairness: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [31], [33].
As to the asserted failure to alert the applicant of new issues arising upon review, there was no obligation on the Authority to do so: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [69]-[72] (DGZ16). Further, as submitted by the Minister, there was no issue dispositive of the Authority review of which the applicant was not on notice. Both the Delegate and the Authority rejected the applicant’s claims on the basis that the applicant did not have a profile to attract the adverse attention of authorities and their findings did not differ in any significant respect. This was not a case where the Authority did not have information relevant to the particular circumstances of the applicant, because the matter was not explored or the subject of findings by the Delegate, but knew the applicant was likely to have such information.
As to the assertion that the applicant was denied procedural fairness because the Authority’s reasoning departed from that of the Delegate, that must also be rejected. It is the role of the Authority to review the decision of the Delegate and it is not bound by the Delegate’s decision or reasoning. No unfairness arises from the Authority forming its own views on the material before it. In any event, as already set out, both the Delegate and the Authority rejected the applicant’s claims on the basis that the applicant did not have a profile to attract the adverse attention of authorities and their findings did not differ in any significant respect.
Accordingly, Ground 1 does not disclose any jurisdictional error on the Authority’s behalf.
Ground 2
By Ground 2 the applicant submits that the Authority constructively failed to review the decision of the Delegate, and failed to conduct a review as required under s 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under s 473DC to get new information from the applicant.
As to the requirements of the Authority in relation to reviews conducted under Part 7AA of the Act, I refer to and repeat the matters set out in paragraphs [43] – [46] above.
Insofar as Ground 2 submits that the Authority failed to consider its discretion under s 473DC of the Act, this ground is also rejected.
Section 473DB(1) provides as follows
Immigration Assessment Authority to review decisions on the paper
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
Section 473DC provides as follows:
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
As set out above, at paragraph [8] of the Authority Decision, the Authority did consider the applicant’s request for an oral hearing. Accordingly, the Authority did consider its discretion to invite the applicant to an oral hearing. However, it was under no obligation to do so: DGZ16 at [78]. The Authority denied the applicant’s request as it was satisfied the applicant had an opportunity to present his claims orally at the Visa Interview and provide a response to the Delegate’s Decision to the Authority. The Authority’s reasons for refusing to exercise its discretion under s 473DC were reasonable.
As to the asserted failure to alert the applicant of new issues arising upon review, I refer to and repeat my comments at paragraph [47] above.
Ground 2 does not disclose any jurisdictional error on the Authority’s behalf.
Ground 3
By Ground 3 the applicant merely states that he has sought assistance from Victorian Legal Aid and is awaiting a response before he submits further particulars.
The applicant has not filed any additional material with any further particulars to date.
Accordingly, Ground 3 does not establish any jurisdictional error and appears to merely inform the Court of the applicant’s intention to engage legal representation for these proceedings.
Oral Submissions
As to the applicant’s Oral Submissions, by those submissions I consider the applicant seeks impermissible merits review. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
However, and in any event, at paragraph [18] of its decision the Authority accepted that the applicant’s father was shot and killed by Sri Lankan authorities. Accordingly, the applicant’s assertion that the Authority did not accept that his father was shot is factually incorrect. The Authority did not, however, accept that the applicant’s father was shot because he was a Tamil suspected of being a member of the LTTE, saying:
…The applicant’s evidence is speculative and borne purely out of the applicant’s belief. At the time of his father’s death the applicant was two years old. The applicant’s evidence is that his father was not a member of the LTTE. I am not satisfied there is sufficient evidence to support that his father was shot for the reasons claimed.
I consider those findings were open to the Authority on evidence before it, for the reasons it gave.
Further, at paragraph [19] of its decision the Authority accepted that the applicant was taken by the Sri Lankan authorities, held in a refugee camp, questioned and physically assaulted on approximately two to three occasions. Accordingly, the applicant’s assertions as to these matters are also factually incorrect.
The Oral Submissions also disclose no jurisdictional error on the Authority’s behalf.
DISPOSITION
It follows from the above that the Application must be dismissed.
The Minister seeks that the applicant pay its costs in the amount of $8,371.30. I note that this is in accordance with Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 and shall order accordingly.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 11 December 2024
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