ADN18 v Minister for Home Affairs
[2018] FCCA 1421
•31 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADN18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 1421 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for an extension of time – whether satisfactory explanation for the delay – whether the grounds warrant an extension of time – application for an extension of time – no arguable case of jurisdictional error identified – application dismissed under s.477 of the Act. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 473DE, 476, 477 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 |
| Applicant: | ADN18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 92 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 31 May 2018 |
| Date of Last Submission: | 31 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu, Hodges Legal |
| Solicitors for the Respondents: | Ms S Given, HWL Ebsworth |
ORDERS
Grant leave to the applicant to rely upon the amended application filed 19 May 2018.
The applicant pay the first respondent’s costs occasioned by reason of the late amendments and late service of submissions in any event.
The amended application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,300.00 which includes the fixing of the amount that would otherwise be payable under Order 2 above.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 92 of 2018
| ADN18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for an extension of time under s.477 of the Migration Act 1958 (Cth) (“the Act”) in respect of proceedings commenced on 11 January 2018 seeking to invoke this Court’s jurisdiction under s.476 of the Act in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 3 November 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil and a Hindu from the Jaffna District in the Northern Province. In summary, the applicant claimed to fear harm by reason of his Tamil ethnicity, his status as a returnee to Sri Lanka, the court case allegedly against him because the CID suspected he is an LTTE member, his illegal departure from Sri Lanka, the instability of his village and that he could not relocate as he would need to register with authorities.
The applicant provided a number of documents in support of his claims and then included additional claims during the interview, seeking to explain that it was his cousin and not his brother-in-law who had asked him to deliver the parcel with a gun in it. The applicant claimed that he had delivered parcels several times on behalf of his cousin however, he was caught by the CID on one occasion only in October 2009, and when the CID beat the applicant in relation to the gun they found in his possession, they beat him more because he had accompanied his friend, X, to the CID on some occasions and because he is a supporter of the Tamil National Alliance (“TNA”). The applicant also raised before the delegate the reason the CID did not require the applicant to report any further after three weeks was because they referred his case to the police under the Prevention of Terrorism Act (“PTA”). The applicant alleged he was held in police custody for 14 days and that upon being released on bail, he was required to appear in court for the parcel matter. The applicant alleged he did not appear in court on three occasions, and as a result, an arrest warrant was issued against him.
The applicant claimed that he moved to Colombo through the assistance of the Eelam People’s Democratic Party (“EPDP”) by paying them money. The applicant claimed that he remained in hiding in Colombo due to the arrest warrant issued and that the arrest warrant still remains in place. The applicant alleged that his brother works in Qatar and is unable to return as he would be targeted on account of the applicant.
The applicant left Sri Lanka on 20 October 2012. On 9 June 2016, the applicant lodged an application for a Safe Haven Enterprise visa, and on 20 January 2017 the delegate found the applicant failed to meet the criteria for the grant of the visa.
The delegate did not consider the applicant to be a credible witness but accepted as plausible the applicant’s claims from his birth until the event when the CID asked him not to report to them any further to be plausible. The delegate accepted the applicant’s claims as credible that he was not a member of the Liberations Tiger of Tamil Eelam (“LTTE”) and the CID may have asked him for favours such as driving their vehicle for them. The delegate accepted that if the applicant returned, the applicant would be a failed asylum seeker who departed the country illegally.
The delegate had major concerns about the applicant’s version of events said to have taken place after the CID told him they were not acting on his gun parcel matter anymore, which was most likely in October/November 2009, allegedly three weeks after he was caught with a parcel in October 2009. The delegate noted the applicant’s changing and incoherent evidence with respect to that period, his failure to mention the claims at his entry interview and in his written claims, and the implausibility of his claims generally.
Towards the end of the interview, the applicant showed the delegate various Facebook posts, in the particular name Y, dated from 6 July 2015, which the applicant said were his personal Facebook page, and were glorifying former LTTE cadres and pro-LTTE. The delegate referred to further, post-hearing submissions about the Facebook details. However, on the basis of the claims that the delegate accepted, the delegate was not satisfied the applicant faced a real chance of serious harm, or real risk of significant harm, in the reasonably foreseeable future.
The Authority
On 25 January 2017, the Authority wrote to the applicant identifying that the application for a protection visa had been referred to the Authority for review. The Authority explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.
The applicant took advantage of that opportunity in respect of submissions made on 11 February 2017. The Authority had regard to the submission so far as it engaged with the delegate’s decision. The Authority identified new information that was provided, and found the information that was not before the delegate was new information, and that the new information referred to by the Authority in terms of the extracts pre-dated the delegate’s decision, and that no explanation had been provided as to why it could not have been provided before the decision, or why it should be regarded as credible personal information. The Authority was not satisfied in that regard, that there were exceptional circumstances to justify considering the identified new information.
The Authority then referred to the submission stating that because the applicant was a moneylender he could be imputed to be wealthy, and there were risks involved in such activity, which were not assessed by the delegate. The Authority noted there is no indication in the material that the applicant fears harm on the basis of his money lending and/or a perception that he might be wealthy, and that in his oral evidence in the Safe Haven Enterprise visa interview, the applicant did not raise any claim around his activities as a moneylender. The Authority found this to be new information.
The Authority then referred to the Safe Haven Enterprise visa interview, where the applicant described in general terms, one or more transactions in which people who borrowed money from him would not repay him, and would blackmail him by saying that they would report him to the CID, and thereby avoided paying him and that he lost 35 to 40 lakhs. The applicant did not provide any detail around these incidents, and the broader suggestion that he feared harm because of his role as a moneylender, or a perception that he was wealthy, was not made, nor did the applicant claim that he was in fact wealthy, or that he would be perceived to be. The Authority noted that the new information pre-dated the delegate’s decision, but no explanation had been provided as to why it was credible personal information. The Authority found the applicant had not satisfied the Authority in respect of the matters identified in s.473DD(b) of the Act.
The Authority referred to the information given to the applicant at the time of the protection interview, that there were limits on the Authority’s ability consider information that was not provided, and that the applicant and his migration representative were informed that the delegate would consider any information provided before the decision was made. It was in those circumstances the Authority was not satisfied there were exceptional circumstances to justify considering the new information. The Authority identified other new information to which the Authority had regard, consistent with s.473DE(3)(a) of the Act.
The Authority summarised the applicant’s claims, and set out the relevant law. The Authority identified having significant concerns about the applicant’s credibility. The Authority noted that the applicant’s claims developed over the course of the protection process, and at almost every stage he sought to make new protection claims regarding his experiences in Sri Lanka. The Authority referred to a submission that there were shortcomings in the way the applicant’s statement was compiled, and that this would account for some of the problems identified by the delegate. Even if that proposition was accepted, which the Authority did not, the Authority found the applicant’s statement would not adequately account for the vague, frequently contradictory, and inconsistent evidence the applicant provided at the interview. The Authority found that the applicant was not a credible witness, and that he has fabricated, exaggerated or embellished incidents in his past in order to enhance his profile as a person to whom Australia might owe protection obligations.
However, the Authority was prepared to accept that the applicant, once, in October 2009, was detained by the Sri Lankan Army (“SLA”) and that three months later, he was taken into custody and asked to identify people from photographs. The Authority found the other aspects of the applicant’s claims to be problematic. The Authority referred to the applicant’s claim that he was detained on two consecutive days in 2 October 2009, because he was intercepted while delivering a parcel for his cousin, which contained a gun. The Authority gave detailed reasons in support of the adverse finding in that regard. The Authority was not satisfied the applicant was detained, beaten and tortured on two consecutive days in October 2009 because he was caught carrying a parcel for his cousin which contained a gun, or that he did carry a parcel, for his cousin, which contained a gun.
The Authority found the applicant was not at risk of harm from the EPDP. The Authority referred to the applicant’s claims that there now was an arrest warrant issued for him. The Authority provided detailed reasons for rejecting the applicant’s claims in respect of the arrest warrant. Those reasons included the applicant’s ability to obtain a passport.
The Authority was not satisfied the applicant was a member of the TNA, or that he had experienced any harm from authorities because of his support for the TNA or friendship with someone called Y, or that he was at risk of adverse attention from authorities on that basis.
The Authority rejected the applicant’s claims in relation to his brother as fabrications. The Authority considered the applicant’s Tamil ethnicity and imputed political opinion, and was not satisfied the applicant is at risk of harm on return to Sri Lanka because of his ethnicity, age, gender or being from the north, his imputed political opinion, family associations, or because of his previous interactions with the authorities.
In that regard, the Authority expressly referred, in paragraphs 43, 44 and 45, to conduct that the applicant had engaged in in Australia, and the requirements of s.5J(6) of the Act. The Authority found, the applicant had either fabricated or embellished aspects of the Facebook claims, and had sought throughout the protection process, to add new claims. The Authority found the applicant had not satisfied the Authority that the conduct engaged in Australia in posting pro-LTTE material on his Facebook page was engaged in otherwise than for the purpose of strengthening his claim to be a refugee and in the circumstances, found that conduct had to be disregarded in relation to the assessment of whether the applicant met the criteria under the Refugees Convention.
The Authority turned to the issue of the applicant’s illegal departure and being a failed asylum seeker. The Authority was not satisfied the applicant is at risk of serious harm on the basis of being a returnee asylum seeker or illegal departee.
The Authority was not satisfied, considering the applicant’s claims in their totality that the applicant will be at risk of serious harm now or in the reasonably foreseeable future if he is returned to Sri Lanka. The Authority found the applicant did not meet the criteria under the definition of “refugee” in s.5H(1) of the Act and did not meet the criteria under s.36(2)(a) of the Act.
The Authority then turned to the issue of complementary protection. The Authority expressly acknowledged the conduct engaged in Australia, which had been disregarded for the purpose of the Refugees Convention. The Authority made reference to having found that the applicant was not a person of interest at the time he left Sri Lanka, and found the chance that he would come to the attention of the authorities on return as a result of his Facebook material to be remote.
The Authority found that it did not accept that because of the applicant’s attendance at commemoration events, he would be perceived to have a significant role, or indeed any real role, in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka in relation to the country information that identifies what would place a person at risk of attention on return.
The Authority was satisfied there is no real risk that the applicant will suffer significant harm if returned to Sri Lanka because of his activities on Facebook or his attendance in Australia at two Hero’s Day commemorations. The Authority found there are 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 that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The proposed grounds in amended application are as follows:
Ground 1
The Authority failed to consider a claim that was made out on the facts.
Particulars
1. The Authority states at [CB 463.7) that “in his SHEV interview he described in general terms one or more transactions in which people who borrowed money from him wouldn't repay him and would blackmail him by saving they would report him to the CID, they thereby avoided paying him and he lost 35-40 lakhs”.
2. The reason the Authority states it did not consider the claim raised in the SHEV interview was because the Applicant "did not provide any detail around these incidents and the broader suggestion that he feared harm because of his role as a moneylender or a perception that he was wealthy was not made...” [7].
3. Notwithstanding the Authority's assessment (CB 463, 7) of the submissions [CB 454. 2] regarding money lending and imputation of being wealthy, there was an obligation to assess the claim raised by the Applicant in his SHEV interview.
4. The Authority erred as it failed to assess a claim that was put to the delegate.
Ground 2
The Authority’s reasoning at [CB 463, 7] to not consider submissions put to the Authority is affected with legal error.
Particulars
1. The Authority states at [CB 463,7] that the applicant "in his SHEV interview he described in general terms one or more transactions in which people who borrowed money from him wouldn’t repay him and would blackmail him by saying they would report him to the CID they thereby avoided paying him and he lost 35-40 lakhs”.
2. What the Applicant raised during the SHEV interview described by the Authority at (CB 463, 7] was that.
2.1 he lent money to one or more persons and
2.2 that persons who he lent money blackmailed him saying they will report him to the CID and
2.3 that he lost 35 - 40 lakhs
3. On this basis it is clear that the Applicant squarely raised the claim before the delegate that he was a money lender who had been blackmailed (synonyms of blackmailed are being "threatened'' / "extort'') by those who borrowed money from him.
4. The IAA fell into error at [CB 463, 7] when it inferred that the Applicant did not satisfy the Authority “as to the matters set out in s.473DD(b) of the Act because the claim referred at 2 above was raised at the SHEV interview, therefore the information in the submission [CB454, 2] was not new information in its entirety.
Ground 3
The Authority erred in that it failed to identify the full extent of the conduct in Australia and the risks to the Applicant due to conduct by third parties when it disregarded the Applicant's conduct in Australia (i.e. posting pro L TIE material on his Facebook page)
Particulars
Limb 1 - Failed to identify the full extent of the conduct
1. The Applicants first Facebook post was on 6 July 2015 [CB 472, 44] & [CB 345].
2. The Facebook posts that was before the IAA could be found at [CB 345- CB 367] and a repetition of the same posts at [CB 147 - CB 169].
3. All of the Facebook posts was shared by the Applicant on Facebook on a "regular basis” since 6 July 2015.
4. The Applicant provided evidence of posts posted by him prior to the delegate’s interview on 16 November 2016 [CB 396] and subsequently after [CB 321].
5. When considering the "bad faith” provisions (i.e. s5(6)), the Authority ought to have had regard that the term "engaged in” can be construed as meaning "carried on".
6.The Authority did not consider the fact that though the Applicant may have commenced to post material onto his Facebook account and share videos posted on Facebook by someone else [CB 403] over time, the Applicant may "become a genuine adherent" and due to this would suffer a real risk of harm if returned to Sri Lanka. See: SZGYT v Minister for Immigration & Anor [2007] FMCA 883 (6 June 2007).
Limb2 - Risks to the Applicant due to conduct by third parties
1. Amongst the material that was before the Authority there were links, posts and videos shared by the Applicant which were links, posts and videos posted by others [CB 345].
2. Prior to the Applicant engaging in the conduct that was disregarded by the Authority the links, posts and videos posted by others, were viewed by several others [CB 345 -CB 367]
3. The act of "others” viewing links, posts and videos amounts to "third party conduct” and conduct by third parties cannot be disregarded. See: SZNCT & SZNCU v Minister for Immigration & Anor [20091 FMCA 233 (20 March 2009).
4. After the Applicant engaged in the conduct that was disregarded it cannot be said that "third party conduct” did not occur.
5. The consequence of third party conduct (i.e. others viewing sharing links, posts and videos that the Applicant had shared) would mean the Applicant could be at a heightened level of risk. 6.
6. Therefore the Authority failed to consider the risks to the Applicant of being harmed due to third party conduct.
Application for an extension of time
In the present case, the applicant is seeking an extension of time under s.477 of the Act and the Court takes into account the principles as identified in SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252, relevantly at [46] and [47]. The extent of the delay in the present case is not insubstantial and was 34 days. However, the applicant’s explanation for the delay, which refers to his desire to obtain representation and to listen through material and the applicant’s dispute in relation to the receipt of the email communication from the Authority, does not provide a satisfactory explanation for the delay. Whilst no particular prejudice is identified or suggested to have been suffered by the first respondent, the more material issue in the present case are the merits of the proposed grounds.
Proposed ground 1
In relation to ground 1, Mr Tambimuttu took the Court to paragraph 7 of the Authority’s reasons and also to what was said in the applicant’s submissions in paragraph 3 of page 454 of the Court Book asserting a failure to consider a claim or an essential integer of a claim in which there is a suggestion, that the applicant was a money lender and that that claim had not been assessed by the delegate. Those submissions stated that the consequences and risks for money lending is an integer that should have been assessed, as well as the applicant being imputed to be wealthy. The Authority was correct in its reasons in paragraph 7 to identify in considering whether the new information being the new claim met the criteria under s.473DD(b) of the Act, that no such claim fairly arose on the material before the Authority. Proposed ground 1 lacks sufficient merit to identify an arguable case of jurisdictional error to warrant an extension of time.
Proposed ground 2
In relation to proposed ground 2, Mr Tambimuttu acknowledged that this was in part related to the proposed ground 1. For the reasons already given, no such claim as advanced by the applicant of being a money lender or fearing extortion fairly arose on the material before the Authority. Further, there is no substance in the assertion that the Authority failed to have an active intellectual engagement with the submissions advanced on behalf of the applicant in relation to the money lending. The Authority expressly considered the same in the summary of the Authority’s reasons referred to above. Further, the proposition that the claim advanced was not new information within s.473DD of the Act is also lacking in merit. On the face of the material before the Court, the Authority was correct in identifying alleged blackmail, being wealthy and alleged fear of extortion as being new information. No sufficiently arguable case of jurisdictional error is raised by proposed ground 2 to warrant an extension of time.
Proposed ground 3
In relation to proposed ground 3, Mr Tambimuttu submitted that there was a risk in relation to the applicant’s claims in respect of Facebook posts involving the conduct of third parties. No such claim was raised by the applicant. No such claim fairly arises on the material before the Authority. Mr Tambimuttu suggested that the Authority should have considered what might occur as a result of the conduct of third parties and as a result of the applicant’s conduct. The Authority’s reasons reflect taking into account the applicant’s claims advanced in relation to complementary protection concerning his conduct in Australia in posting material on Facebook. No claim was made to fear harm due to the conduct of third parties and the Authority was not required to assess such a claim, either under the Refugees Convention or under the complementary protection, which did not fairly arise on the material. No sufficient arguable case on the merits is identified by proposed ground 3 to warrant an extension of time.
Conclusion
Taking into account the inadequate explanation of the delay and the insufficient merits and prospects of success in relation to the proposed grounds, the Court is not satisfied that it is necessary in the interests of the administration of justice to extend time under s.477 of the Act. Accordingly, the application for an extension of time under s.477 of the Act is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 17 July 2018
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