Aeq18 v Minister for Home Affairs

[2018] FCCA 3475

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3475

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CC, 473DD

Cases cited:

BVZ16 v Minister for Immigration [2017] FCA 958

Minister for Immigration v BBS16 [2017] FCAFC 176
Minister for Immigration v Yusuf (2001) 206 CLR 323
Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16
SZTOG v Minister for Immigration [2018] FCA 112

Applicant: AEQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 116 of 2018

Judgment of: Judge Driver

Hearing date: 28 November 2018

Delivered at: Sydney

Delivered on: 28 November 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S He of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 116 of 2018

AEQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 20 December 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 November 2018. 

3. The applicant is a male citizen of Sri Lanka who claimed to fear harm from the Sri Lankan authorities arising from his Tamil ethnicity, his imputed pro-LTTE political opinion and his status as an illegal departee and failed asylum seeker.  He arrived in Australia at Christmas Island on 20 September 2012 as an unauthorised maritime arrival on vessel GABI and participated in an Irregular Maritime Arrival Entry Interview on 9 January 2013.[1]

   [1] Court Book (CB) 1-18

4. The applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) on 5 October 2016.  In support, he provided a statutory declaration dated 29 August 2013[2] and a supplementary statement dated 14 September 2016.[3]

   [2] CB 70-75

   [3] CB 158-159

5. In his statutory declaration, the applicant claimed that his brother (N) was abducted from their family in 2009 by armed men wearing police uniform and remained missing.[4]  The applicant claimed that about a month after N went missing, he was asked to report to a nearby army camp by the Sri Lankan Army (SLA) and the Criminal Investigation Department (CID) and was interrogated, beaten and detained for two days.  The applicant was told that N had confessed that the applicant knew where LTTE weapons were stored.  He denied any involvement. After his release from the camp, SLA and CID officers came in search of him several times.[5]

   [4] CB 75, [6]-[8]

   [5] CB 71, [9]-[12]

6. The applicant also claimed that the authorities came to his house every two or three months to question him about where the LTTE weapons were stored until his departure from Sri Lanka in September 2012.[6]  SLA and CID officers came to his home in August 2012 while he was at work and told his wife if he did not co-operate with the authorities and give them details about where the weapons were stored he would suffer the same fate as N.[7]

   [6] CB 71, [13]

   [7] CB 71, [14]

7. In his supplementary statement, the applicant claimed that N had been abducted because he was suspected of working with the LTTE,[8] in or around 1995 he provided support to the LTTE by purchasing clothes for them,[9] and after he departed Sri Lanka the authorities visited his mother and his wife a number of times and asked about his whereabouts.[10]  He also claimed that another brother (S) was arrested and spent eight months in jail in 2014, and was arrested, detained and tortured at a CID camp for approximately six months in 2015 because he was suspected of having knowledge of where LTTE weapons were stored.[11]

   [8] CB 158, [5]

   [9] CB 158, [6]

   [10] CB 158, [7]

   [11] CB 158, [8]

8. The applicant also claimed that in 2015 he met with two men at a café in Parramatta who introduced themselves as being from the Australian Government and asked about his family members and whether they were involved in the LTTE.  The applicant claimed he did not know who those men were but feared that they could be associated with the LTTE.[12]

   [12] CB 159, [9]

The delegate

1. The applicant attended a SHEV interview before the delegate on 16 February 2017.  At his SHEV interview, the applicant claimed that his brother N helped the LTTE in the final phase of the war by providing them with places to stay and also that his cousin’s husband (R) was involved with the LTTE and had been shot dead in 2000 or 2001.

2. In a decision dated 3 March 2017, the delegate refused to grant the applicant a SHEV[13] essentially on the basis of its assessment of independent country information and adverse credibility findings.

   [13] CB 206‑227

3. The delegate was not satisfied that the applicant faced a real chance of serious or significant harm for the reasons that he: was a Tamil from the East who lived in a former LTTE controlled area;[14] had any real or imputed political association or involvement with, or family links to the LTTE;[15] had assisted the LTTE;[16] was a supporter of the TNA;[17] or as a failed asylum seeker who departed illegally.[18]  The delegate was not satisfied the applicant met the refugee or complementary protection criteria for the grant of a SHEV.[19]

   [14] CB 218-220

   [15] CB 220-222

   [16] CB 222-223

   [17] CB 223

   [18] CB 223-226

   [19] CB 227

The Authority

1. On 9 March 2017, the matter was referred to the Authority.[20]  On 30 March 2017, the applicant provided a submission to the Authority.[21]

   [20] CB 233-234

   [21] CB 243-248

2. On 20 December 2017, the Authority affirmed the delegate’s decision.[22]

   [22] CB 254-272

3. The Authority identified that a submission had been made to it and found that two pieces of country information referenced and extracted in the submission, which were not before the delegate, were new information. The Authority found further that the new information did not relate to the applicant personally and was published before the date of the delegate’s decision. The Authority found the applicant had not provided reasons why the new information could not have been provided to the delegate before a decision was made. Accordingly, the Authority was not satisfied s.473DD(b) of the Migration Act 1958 (Cth) (Migration Act) was met.[23]

   [23] CB 255, [4]

4. The Authority also considered whether exceptional circumstances existed to justify considering the new information for the purposes of s.473DD(a). It acknowledged that the applicant was not represented before the Minister’s Department, but found this did not necessarily mean that a person would be disadvantaged in the protection process or that they did not have an adequate opportunity to put forward the information relevant to their claims for protection. The Authority noted that the applicant was informed at the end of his interview that any additional information he wished to provide would be considered and the applicant indicated that he understood this. The Authority considered the applicant’s submission that the DFAT report and the 2010 report by the International Commission of Jurists relied on by the delegate were outdated but did not accept this submission. The Authority found that the delegate had considered the most recent DFAT report and that the new information referred to by the applicant was not significantly different either in publication dates or in the various assessments of the situation in Sri Lanka from the range of information that was already before the delegate. Accordingly, the Authority was not satisfied there were any exceptional circumstances to justify considering the new information.[24]

   [24] CB 255, [5]

5. The Authority comprehensively summarised the applicant’s claims.[25]  On the basis of the documents provided by the applicant, the Authority accepted that he was a Sri Lankan of Tamil ethnicity and Hindu faith from the northern province of Sri Lanka.[26]

   [25] CB 180-181, [6]

   [26] CB 257, [9]

6. The Authority found that although the applicant had consistently claimed his brother, N, had been abducted in 2009 and remained missing, it identified other aspects of his claims about this incident had evolved throughout his SHEV application process, such as the applicant claiming for the first time at his SHEV interview that N helped the LTTE in the final phase of the war by providing them with places to stay, whereas he previously said that N did not work for the LTTE.  The Authority was concerned by these significant changes in the applicant’s evidence.[27]  The Authority also found that the applicant’s evidence about the incident in which he said N was taken was vague and his inability to provide much in the way of detail around such a significant event led it to believe that he was not speaking from first-hand experience.[28]

   [27] CB 257, [10]

   [28] CB 257-258, [11]

7. On the basis of its assessment of documents and evidence provided by the applicant that N was “arrested”,[29] the Authority accepted that N went missing in 2009 and his family had not heard of him since.  However, in view of discrepancies, inconsistencies and other problems in the evidence that the applicant provided, the Authority was not satisfied that N was kidnapped by the Sri Lankan authorities from his mother’s home.  The Authority also did not accept the applicant’s claims that N provided assistance to the LTTE at the end of the war or that an LTTE defector provided information to the authorities that N had weapons on the basis that these claims had not been made before.  The Authority considered these claims were fabrications designed to enhance N’s profile, and in turn the applicant’s profile.[30]

   [29] At CB 258, [12]-[13]

   [30] CB 258, [14]

8. Based on the consistency of the applicant’s evidence,[31] and its assessment of relevant country information,[32] the Authority was prepared to accept that N had disappeared and that N’s suspected of LTTE affiliations may have been the reason for N’s disappearance,[33] and also that the applicant was detained and beaten in 2009, questioned about weapons and released on the condition that he report when required.[34]

   [31] CB 258, [15]

   [32] CB 258, [16]

   [33] CB 259, [17]

   [34] CB 259, [18]

9. The Authority had regard to the applicant’s evidence about what happened after he was released in 2009,[35] but found that the evidence did not support the claim the applicant made in his 2013 statement that the authorities came in search of him several times and did not accept they had demonstrated such a high level of interest in him.  Accordingly, it did not accept the CID or SLA came to his home asking about him and considered that these claims were exaggerations intended to bolster the applicant’s claims for protection.[36]

   [35] CB 259, [19]

   [36] CB 259, [20]

10. The Authority accepted that following his detention in 2009, the applicant was required to attend the camp one further time.  However, in light of the applicant’s evidence that he did not experience any further interest over the following three years, the Authority did not find it was plausible that in August 2012, the authorities suddenly renewed their interest in him and required him to attend the camp again.[37]  Accordingly, the Authority was not satisfied that the authorities visited his home in August 2012 and spoke to his wife or that the applicant was required to report to the SLA camp in August 2012.  It followed that it also did not accept that he went into hiding or that he “fled” Sri Lanka in September 2012 due to the interest displayed in him by the authorities or that the authorities cautioned him not to leave Sri Lanka.[38]

    [37] CB 259, [21]

    [38] CB 259, [22]

11. The Authority accepted that the applicant bought sarongs for the LTTE on one occasion in 1995, but found there was nothing before it to indicate that the authorities were aware of this and that there was no more than a remote chance that this one incident would ever come to light or that any action would be taken against the applicant.  Accordingly, the Authority was not satisfied there was any risk of harm to the applicant for providing that one-off assistance to the LTTE.[39]

    [39] CB 260, [23]

12. The Authority also considered claims raised for the first time at his SHEV interview that his cousin’s husband, “R” was involved with the LTTE and had been shot dead in 2000 or 2001 but did not accept the applicant’s explanation regarding why he had only mentioned it for the first time at his SHEV interview.  Although the Authority accepted that R had been killed, it did not accept that the applicant had experienced any interest from the authorities as a result.[40]

    [40] CB 260, [25]

13. The Authority also considered the claim raised in the applicant’s supplementary statement that his brother, S, was arrested twice after the applicant left Sri Lanka but found the applicant’s evidence about this claim was unsatisfactory.  The Authority noted that at the SHEV interview, the applicant was unable to provide much detail about these incidents.[41]  The Authority found the applicant’s inability to provide dates or further information about such significant events gave it the impression he was not telling the truth.[42]  The Authority had regard to documentary evidence provided by the applicant to support these claims including a copy of a complaint made by the applicant’s sister-in-law to the Human Rights Commission of Sri Lanka (HRCSL) and a “detention document”.[43]  However, the Authority identified several reasons to question the authenticity of the detention document and accordingly did not afford that document any weight.[44]  In relation to the HRCSL complaint slip, the Authority found it corroborated the applicant’s claims about S’s second arrest in 2015 but found that S was not currently subject to reporting conditions in relation to a weapons incident (in 2015) or because of his association with N.

    [41] CB 260, [26]

    [42] CB 261, [27]

    [43] CB 261, [28]

    [44] CB 261, [29]

14. The Authority noted that the applicant also claimed for the first time at his SHEV interview that he had been involved in campaigning for Tamil political parties.[45]  However, it found that his evidence about this claim was “vague and unconvincing” because he did not cite reasons for his involvement and his responses were generalised which did not persuade it that he had in fact had the political involvement he claimed to have had over a number of years.  On the basis of the “unsatisfactory nature” of his evidence, together with his failure to make the claim earlier and the Authority’s general credibility concerns about the applicant, it was not satisfied that the applicant was involved in Tamil politics between 2010 and 2012.[46]

    [45] CB 261-262, [31]

    [46] CB 262, [32]

15. The Authority also found the applicant’s claim that the authorities visited his mother and his wife a number of times after he left Sri Lanka was not credible.  It identified that the applicant’s evidence about this at the SHEV interview, that there were two visits to his wife after he left Sri Lanka (the latest of which was in 2015), was inconsistent with the claim made in the applicant’s 2016 statement that the most recent visits to his wife and mother were in 2016.[47]  On the basis of these identified inconsistencies, and the Authority’s overall finding that the applicant was not of any interest to the authorities when he left Sri Lanka, it concluded that these claims were not credible and had been fabricated in order to enhance the applicant’s claims for protection.[48]

    [47] CB 262, [34]

    [48] CB 262, [35]

16. The Authority considered the applicant’s new claim in his 2016 statement that around July or August 2015, he met some men in Parramatta at a café who claimed to be from the Australian Government and asked him questions about his involvement with the LTTE. The Authority also referred to the delegate’s findings that this claim was not credible and noted the applicant had failed to mention it at his interview.[49]  The Authority considered the applicant’s contention in his submission provided to it on 30 March 2017 that just because he did not refer to the claim in an earlier interview, it did not mean it should not be considered.[50]  However, the Authority found since the applicant had not provided any evidence about why he had failed to mention this claim when interviewed by the Minister’s Department, it also did not find this claim was credible.  The Authority considered that if the claimed incident had occurred, it would have been of such significance to the applicant that he would have referred to it in his SHEV interview and provided evidence about it and its relevance to his claims for protection. Accordingly, the Authority did not accept the incident had occurred.[51]

    [49] CB 262, [36]

    [50] CB 262, [37]

    [51] CB 262-263, [38]

17. On the basis of its assessment of independent country information (ICI), the Authority accepted that although certain real or perceived links to the LTTE may give rise to a need for protection, the simple fact of being a Tamil did not of itself give rise to a well founded fear of persecution. Although the Authority had accepted that the applicant was questioned, detained and mistreated on one occasion in 2009, it found this was an isolated incident and did not accept that he would now be imputed with LTTE involvement including on the basis of his family members.[52]

    [52] CB 263, [39]

18. In considering the applicant’s claim to fear harm on the basis of his Tamil ethnicity, the Authority cited and relied on ICI which indicated that the overall situation for Tamils in Sri Lanka had improved under the Sirisena Government; the monitoring and harassment of Tamils had significantly decreased; and that Tamil ethnicity was not, of itself, cause for a person to warrant international protection unless the person was perceived to have had a significant role with the LTTE or have family links to a person with this adverse profile.[53]  The Authority referred to its earlier findings and concluded that applicant did not have a profile that ICI suggested would place him at risk of harm, now or in the foreseeable future, for any real or perceived LTTE links, for any imputed political views or as a Tamil male from the Eastern Province, or for any other reason. Accordingly, the Authority was not satisfied that the applicant would face a real chance of harm if he was returned to Sri Lanka now or in the reasonably foreseeable future.[54]

    [53] CB 263-264, [40]-[44]

    [54] CB 264, [45]

19. The Authority accepted that the applicant had departed Sri Lanka illegally by boat and could be perceived to be a returning asylum seeker from the West.[55]  The Authority had regard to ICI about entry procedures upon arrival in Sri Lanka and was satisfied that upon return the applicant would be held on remand for a number of hours and then released or discharged upon payment of a fine or bail.[56]  The Authority was not satisfied that the payment of a fine or provision of a surety amounted to serious harm, nor was it satisfied that the payment of a fine, being held in detention for a short period of time and questioning cumulatively amounted to serious harm.  The Authority also made a finding that the process and treatment to which the applicant would be subject as an illegal departee under the Immigrants and Emigrants Act 1949 (Immigrants & Emigrants Act) was not discriminatory nor would be applied in a discriminatory manner. The Authority concluded that the treatment the applicant would face as a consequence of the Immigrants & Emigrants Act was not persecution within the meaning of s.5J(4).[57]  The Authority also found that the applicant did not face a real chance of persecution from Sri Lankan authorities as a returning asylum seeker.[58] It followed that the applicant did not meet the criteria in s.36(2)(a).[59]

    [55] CB 265, [46]

    [56] CB 265, [48]-[49]

    [57] CB 266, [51]-[53]

    [58] [54]

    [59] CB 267, [55]-[56]

1. The Authority outlined its earlier findings under the refugee criterion and found it was also not satisfied there was a real risk of significant harm for the same reasons.[60]

   [60] CB 267, [59]

2. The Authority accepted that the applicant would be subject to a series of administrative processes and identified as an illegal departee and a returning asylum seeker.  It accepted that the applicant would likely be investigated and detained for several hours at the airport, and depending on the availability of a magistrate, might be detained for a number of days pending bail and fined for his illegal departure.  Since the Authority found he was not a person of interest to the Sri Lankan authorities, it did not accept there was a real risk of torture or that he would be mistreated while being held and investigated at the airport or in remand, or face a total period of detention of longer than a few days in the worst case scenario.[61]

   [61] CB 267-268, [60]

3. The Authority accepted that conditions in prisons and on remand were poor but was not satisfied that there was a real risk the applicant would face significant harm as a result of conditions he may face upon return to Sri Lanka as a returning asylum seeker or an illegal departee.[62]  The Authority concluded that the applicant did not face a real risk of significant harm on the basis of his claims, individually or cumulatively.[63]

   [62] CB 268, [61]

   [63] CB 268, [62]

The present proceedings

1. These proceedings began with a show cause application filed on 15 January 2018.  The applicant continues to rely upon that application.  There are four grounds in the application:

   1.IAA erred in rejecting the New Information submitted

   2.IAA erred in not being satisfied I will be at risk of serious harm now or in the reasonably foreseeable future if returned to Sri Lanka

   3.IAA erred in finding I do not … meet S 5H (1) or S 36 (2)(a) of the Migration Act

   4.IAA erred in not granting me a protection visa, such errors amounting to errors in law.

2. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the court book filed on 10 April 2018.  Only the Minister filed written submissions prior to today’s hearing. 

3. I invited oral submissions from the applicant this morning.  He told me a number of things.  First, he claimed that he had made a fresh application which the Authority had not accepted.  This turned out to be the submission referred to by the Authority at [3] – [5] of its decision record.[64] 

   [64] CB 255

4. Secondly, the applicant asserts that at the interview with the delegate he gave information concerning the abduction of his brother and was invited to furnish further information.  The applicant asserts that that information, while provided, was not considered or not properly considered.  There was confusion in the applicant’s submissions as to whether he was referring to the delegate or the Authority.  In the course of oral argument, it transpired that the applicant is concerned in relation to the Authority’s decision about its examination of his claims concerning his brother N, who he described as a half-brother, and his brother S. 

5. The Authority discussed the applicant’s claims concerning his half-brother N between [10] and [22].  That consideration concerned not just what happened to N, but also what happened to the applicant following Ns disappearance.  While the Authority had concerns about elements of the applicant’s factual claims, the Authority accepted that N had disappeared in 2009 and that that disappearance was probably connected to the imputed association between N and the LTTE. 

6. At [18], the Authority accepted that the applicant was detained and beaten for two days in around May 2009.  At [21], the Authority accepted that following his initial questioning in 2009 there was one further occasion in 2009 when the applicant was required to attend along with his wife and daughter.  He was released without further questioning.  The Authority concluded that notwithstanding those events, there were no ongoing consequences leading to a real chance or real risk of serious or significant harm to the applicant. 

7. The applicant’s claims concerning his brother S were addressed by the Authority from [26] – [30].[65]  The Authority rejected those claims.  The applicant is dissatisfied with that rejection, particularly insofar as it was supported by documentation.  His submissions, however, did not rise above a dispute over the merits of the Authority’s reasons. 

   [65] CB 260-261

8. The applicant’s grounds of review are otherwise adequately addressed in the Minister’s written submissions.  I agree with those submissions. 

Ground 1

1. This ground contends that the Authority “erred in rejecting the new information submitted”. No particulars are provided to explain how the Authority is alleged to have erred in this regard. Relevantly, on 30 March 2017, the applicant provided a submission to the Authority which took issue with the delegate’s decision and provided extracts from two pieces of ICI that were not before the delegate. In assessing whether to have regard to new information under s.473DD(a), the Authority was required to make an evaluative judgment as to whether, in all the relevant circumstances, exceptional circumstances justified it considering the new information.

2. The Authority made such a judgment, considering the content of the new information; the relevance of the information to the applicant’s claims; the applicant’s explanation for why the new information was not provided to the delegate; and whether the information was personal credible information or of any probative value to its assessment of the applicant’s claims.[66]

   [66] CB 255, [4]-[5]

3. As outlined above at [15], the Authority provided reasons to support its findings concerning the new information and did not fall into error in the manner identified in BVZ16 v Minister for Immigration[67] or Minister for Immigration v BBS16.[68]  Accordingly, this ground cannot be made out.

   [67] [2017] FCA 958

   [68] [2017] FCAFC 176

4. Although the Authority did not expressly state that the applicant had not satisfied it that s.473DD(b)(i) and (ii) were met using the language of those provisions, in light of the Authority’s findings that the information did not relate to the applicant personally, and that it pre-dated the delegate’s decision, it is clear that the Authority considered the information against both limbs of s.473DD(b) and was not satisfied those requirements were met.

Grounds 2 and 3

1. These grounds generally contend that the Authority erred by not being satisfied that the applicant would be at risk of serious harm now or in the reasonably foreseeable future if returned to Sri Lanka and finding that that the applicant did not meet s.5H or s.36(2)(a) of the Migration Act.

2. No particulars have been provided in support of these contentions to make them meaningful and these grounds simply seek impermissible merits review of the Authority’s decision.  Insofar as these grounds are an allegation that the Authority provided a “wrong test”, the applicant has not provided any particulars to demonstrate how the Authority identified a wrong issue or asked the wrong question in such a way that its exercise or purported exercise of power is affected.[69]  In the absence of any particulars, these grounds are meaningless and cannot succeed.[70]

   [69] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ

   [70] SZTOG v Minister for Immigration [2018] FCA 112 at [23]-[31] per Flick J

Ground 4

1. Ground 4 alleges the Authority erred in “not granting me a protection visa”. This ground fundamentally misunderstands the role of the Authority in reviewing the delegate’s decision. Section 473CC of the Migration Act obliges the Authority to review and either to affirm or remit the decision to the Minister for reconsideration. The Authority, unlike the Tribunal, does not have the power to set aside the decision of a delegate and substitute its own decision to grant the applicant a visa.[71]  Accordingly, this ground cannot be made out.

   [71] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 at [17]

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was granted.  The applicant enquired about the extent of the costs, its connection with these proceedings and the consequences of a costs order.  He did not oppose the making of a costs order.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       30 November 2018