AEW18 v Minister for Home Affairs

[2018] FCCA 1842

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEW18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1842

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection (subclass 785) visa – whether the Authority made an unreasonable finding determinative of the applicant’s claimed fear of harm – whether there was a non-compliance with s 67 of the Act – no jurisdictional error made out – further amended application dismissed.

Legislation:
Migration Act 1958 (Cth), ss. 5H, 36, 67, 473BC, 473CB, 473CD, 473DC, 473DD, 476

Applicant: AEW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 118 of 2018

Judgment of: Judge Street

Hearing date: 6 July 2018

Date of Last Submission: 6 July 2018

Delivered at: Sydney

Delivered on: 6 July 2018

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Labour Pains Legal

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the further amended application filed 19 June 2018.

2. The further amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 118 of 2018

AEW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 19 December 2017 affirming a decision of the delegate not to grant the applicant a Temporary Protection (subclass 785) visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claimed to fear harm by reason of persecution for reasons of his Tamil ethnicity and imputed political opinion based on a perception that he was involved with the Liberation Tigers of Tamil Eelam (“LTTE”), an imputed political opinion that he is opposed to the Sri Lankan government because he has sought asylum, and a perception that he is wealthy because he has worked overseas.

3. The applicant arrived in Australia on 3 September 2012 as an unauthorised maritime arrival. The applicant lodged an application for a Temporary Protection (subclass 785) visa on 30 January 2017. On 5 May 2017, the delegate found the applicant failed to meet the criteria for the grant of a Temporary Protection (subclass 785) visa.

The Authority

1. By letter dated 17 May 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The applicant provided submissions to the Authority, which were received by the Authority on 28 May 2017. The Authority, in its reasons, after referring to the background to the visa application and having regard to the criteria referred under s 473CB of the Act, addressed the applicant’s submissions and, insofar as they engaged with the delegate’s submissions, had regard to the same and the Authority then otherwise identified new information and taking into account both limbs of s 473DD of the Act, found there were not exceptional circumstances to consider what was identified as the new information. The Authority’s reasons do not support any misconstruction of s 473DC or s 473DD of the Act in the determination of whether there were exceptional circumstances to justify considering the information and no argument to the contrary was advanced.

3. The Authority identified the applicant’s claims of evidence and accepted the applicant’s claim that in December 2006 he was abducted by men in a white van. The Authority was satisfied the abductors did not have the same level of interest in the applicant as his friend who was killed, and that the main reason for the abduction was for extortion.

4. The Authority found that the applicant went to Dubai in August 2007 and between August 2007 and November 2011 the applicant worked in Iraq for two years, and Afghanistan for 18 months. The Authority found the applicant returned to Sri Lanka three times to organise further work overseas when his contracts ended, and to recover from a workplace injury. The Authority accepted the applicant’s uncle paid people at the airport between August 2007 and November 2011 and in that regard, the Authority took into the account the existence of country information supporting corruption at that time. The Authority found the applicant did not have a profile with the Sri Lankan authorities as an LTTE member or a supporter who posed a threat to national security and who needed to be stopped from departing at an airport during the war or stopped after the war, and sent to a rehabilitation camp or charged with terrorist related offences, or detained and questioned on return at the airport, regardless of the payment of the bribes to airport staff.

5. The Authority accepted in December 2011, a month after the applicant returned to Sri Lanka for a third time, he was abducted from near home by four officers whom he thought were the Criminal Investigation Department (“CID”). The Authority had taken took into account country information and accepted that the applicant was mistreated and released the following morning. The Authority accepted that the applicant was abducted a second time and that the abduction was sponsored by Sri Lankan authorities, whether it was the CID or Special Task Force (“STF”) or paramilitary groups. The Authority was not satisfied that the applicant was abducted in 2011 because he was perceived to be involved with the LTTE. The Authority found that as the applicant had been working overseas and was a business owner in Sri Lanka, he would have been considered a target for extortion. The Authority took into account the applicant’s information from the transferee interview about the main reason for the abduction being money to be convincing when also considered with the fact that the applicant was released after paying five lakhs and cautioned again about reporting to them whenever they requested it.

6. The Authority found that if the applicant was of any genuine interest or had perceived LTTE connections, the applicant would not have been released from payment of a bribe. The Authority accepted the applicant was questioned about the LTTE and found the applicant was not genuinely perceived to have any LTTE connections because he was released after having being held for one night and after paying money for his release. The Authority found the reason for the abduction in December 2011 was for extortion.

7. The Authority accepted that the applicant’s wife was threatened and extorted for money on three occasions, with the last incident occurring in 2015. The Authority found the applicant’s family continues to own and run three shops and it is plausible that in 2013 and 2015 she was targeted for money by men in a white van who claimed to be CID officers, and who claimed her husband had connections with the LTTE. The Authority noted that someone saying they had connections to the LTTE and demanding money does not necessarily equate to a true belief that the person has connection to the LTTE. The Authority accepted it is also plausible that it is a convenient form of threat designed to instil fear and extort money in a post‑conflict country. The Authority noted the applicant claimed that the CID asked his wife about his insurance for the accident he had while working in Iraq, although he did not explain how they might have known this. The Authority was satisfied the applicant and his wife were considered to have money and were targeted for extortion for this reason, rather than any genuine perception they were involved in the LTTE. The Authority noted the applicant never claimed to have been a member of the LTTE.

8. The Authority referred to country information in relation to the practice of abductions in white vans and disappearances being now seldom reported. The Authority also referred to country information indicating that white van abductions are mostly a thing of the past and should be understood in this sense. The Authority referred to the 2017 Department of Foreign Affairs and Trade (“DFAT”) assessment that the number of incidents of extra‑judicial killings, disappearances and abductions for ransom, including incidents of violence involving former LTTE members, has significantly reduced since the end of the conflict. The Authority referred to DFAT in that regard that disappearances are no longer a common occurrence.

9. The Authority referred to the UK Home Office’s opinion that a person being of Tamil ethnicity would not warrant international protection, as at March 2017, unless a certain profile is perceived. The Authority referred to the country information referring to a real risk of ill-treatment or harm for persons detained by the Sri Lankan security services. The Authority referred to the DFAT January 2017 report for Sri Lankans that the monitoring, harassment, arrest and detention of Tamils has significantly decreased post‑conflict, particularly since 2015 under the Sirisena Government.

10. The Authority noted the finding that the applicant was not an LTTE member and does not claim to have had any real connection with the LTTE. The Authority referred to having made a finding that the applicant was not of interest to the Sri Lankan authorities in terms of any perceived LTTE connection when lawfully departing from and returning to Sri Lanka between December 2006 and August 2012. The Authority found that when the applicant was abducted on two occasions, he was released after paying bribes. The Authority found there was no evidence that the applicant had been engaged in Tamil separatist activities since departing Sri Lanka in August 2012 and coming to Australia, which conduct would raise his profile with the authorities.

11. The Authority referred to finding, based on the information cited above, that the applicant lacks an LTTE profile and found there is only a remote chance of him being subject to a ‘white van abduction’ or other form of harm by Sri Lankan authorities or persons sponsored by Sri Lankan authorities or vigilantes. The Authority also found, based on country information, referring in particular to the DFAT report of 2017, that the Authority was not satisfied there is a real chance that the applicant would be subject to any harm including for reasons, of extortion, or based on his Tamil ethnicity.

12. The Authority then referred to having found that the applicant had been the subject of extortion in December 2006 and December 2011. The Authority considered that if the applicant returned to Sri Lanka, given the family has continued to run three stores and he still owns one of them, and he has been living and working in Australia and worked in three other countries before coming to Australia, the applicant may be perceived as wealthy. The Authority then referred to DFAT reporting from January 2017 about the significant reduction in the incidents of abductions for ransom and since 2015 the applicant’s wife has not been the subject of further demands for money. It was in those circumstances, the Authority found there is not a real chance that the applicant will again be subjected to extortion or any other harm because of his Tamil ethnicity or for being perceived as wealthy.

13. The Authority then turned to the applicant’s claims in relation to concern as to an imputed political opinion. The Authority found that there is not a real chance the applicant will face harm because he has sought asylum in Australia. The Authority found the applicant failed to meet the definition of “refugee” in s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) of the Act.

14. The Authority referred in relation to complementary protection, to the family having a business and income from the business to support the applicant on return and that his wife and daughter continued to live in a particular location and are financially supported by the income from the applicant’s grocery store. 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

1. The grounds in the further amended application are as follows:

   The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:

   1. The Authority’s finding at [32] that there was not a ‘real chance’ the applicant would again be subjected to extortion for being perceived wealth, was lacking an evident and intelligible justification and was unreasonable.

   Particulars:

   a. In the light of the Authority’s findings:

   at [16] and [20] accepting that the applicant was subject to white van abductions for extortion in December 2006 and in December 2011 (post conflict);

   at [22] accepting that the applicant’s wife was threatened and extorted for money three times by men in a white van claiming to be CID in 2013 and 2015;

   at [32] accepting that on return the applicant ‘may be perceived as wealthy – the impugned finding at [32] was not open from the DFAT country information at [28] and [32] upon which the Authority relied to support its conclusion at [32].

   b. This country information was in respect of the ‘significant reduction’ of incidents of abductions for ransom since the end of the civil conflict in 2009 from their ‘frequent occurrence’ during the conflict.

   c. In the light of the Authority’s findings set out at 1. a., the finding that the applicant’s wife had not been subjected to further demands for money since 2015 also did not amount to an evident and intelligible justification for the impugned conclusion, either considered separately from or cumulatively with the country information.

   In the alternative:

   2. The Authority did not have authority to review the delegate’s decision under s 473CC Migration Act 1958 (the Act) as the Minister had not validly referred the decision to the Authority under s 473CA of the Act.

   Particulars

   a. Section 473CA requires the Minister to refer a fast track reviewable decision to the Authority as soon as practicable after the decision is made.

   b. Section 67 of the Act requires the Minister to make a record of a decision to refuse to grant a visa, and that the record must state the day and time of its making, and that the decision is deemed to have been made on the day and at the time the record is made, such that the Minister is functus officio only after the Minister has stated the day and time on the decision record.

   c. The delegate’s decision did not comply with s 67(2) in that it did not state the time of its making.

   d. The valid exercise of the Minister’s obligations under s 473CA to refer a fast track reviewable decision was conditional upon the Minister’s compliance with s 67.

   Further or in the alternative:

   3. As a result of the Minister’s failure to comply with s 67(2), the Authority could not determine whether any material provided to it by the Secretary under s 473CB(1)(c) of the Act was ‘new information’, and as a result it was not in a position to comply with s 473DD of the Act not to consider any ‘new information’; nor was it able properly to consider the exercise of the discretions otherwise available to it to consider ‘new information’ within the parameters set out in s473DD; nor was it able to determine its obligations under s 473DE of the Act in relation to giving certain ‘new information’ to the applicant for comment.

   Particulars

   a. Section 473DC(1) of the Act defines ‘new information’ to be documents or information that were not before the Minister when the Minister made the decision under s 65.

   b. Section 67(3) provides the Minister’s decision is taken to have been made on the day and at the time the record is made.

Ground 1

1. Mr Gormly on behalf of the applicant, in relation to ground 1, submitted that the Authority had unreasonably made a finding determinative of the applicant’s claimed fear of harm of extortion based on the DFAT country information report. Mr Gormly submitted that the DFAT country information report was an inadequate foundation for the adverse finding and that the adverse finding was unreasonable and lacked an evident and intelligible justification. Mr Gormly contended that the absence of further demands to the wife did not adversely impact on the illogicality or unreasonableness that the applicant advanced in respect of this adverse finding in paragraph 32 of the Authority’s reasons.

2. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s adverse finding in respect of the applicant’s claim to fear harm from extortion was not confined to the DFAT report of 2017. I accept the first respondent’s submission that even if that was, it could not be said to be illogical or unreasonable or irrational, given the improved situation. In the present case, it is clear the Authority took into account, as it expressly referred to, the limited demands that have been made on the applicant’s wife in circumstances where the wife and daughter continue to run the grocery store which had given rise to circumstances where the earlier extortion had occurred. That was logical and reasonable to do so.

3. The Authority’s reasons for rejecting the applicant’s claimed fear of harm based on extortion were not confined to paragraph 32. The Authority was taking into account the findings that it had made in relation to the incidents that had occurred concerning extortion in paragraphs 20 to 22, and also the country information that it had referred to in paragraphs 26 and following the adverse finding in relation to the applicant’s claim in terms of not being the subject of any harm was made in fact in paragraph 31, which the Authority expanded upon in its reasons in paragraph 32. The reasons of the Authority read as a whole were logical and rational as summarised above and were open to the Authority for the reasons given by the Authority. No jurisdictional error is made out by ground 1.

Grounds 2 and 3

1. In relation to grounds 2 and 3, the Court raised with Mr Gormly that the argument sought to be advanced was confronted with a difficulty in terms of s 67(5) of the Act. At the commencement of the hearing Mr Gormly indicated that he wished to cross‑examine a witness, Mr Crawford, about the records annexed to the decision, for the purpose of developing further the arguments in grounds 2 and 3.

2. Grounds 2 and 3 are dependent upon a proposition that non‑compliance with s 67(2) of the Act impacts on the review procedure under Part 7AA of the Act and/or in relation to the determination of material under s 473CB, s 473CD and s 473DD of the Act in the present case. There is no basis for the assertion of any impact at all in the circumstances on the present case in respect of information before the Secretary or information the subject of s 473BC or s 473DD of the Act. Further, it was apparent from the material that was put on that there was a record electronically created that identified the date and time of the making of the record. Nothing said by Mr Gormly identified any basis upon which cross‑examination of Mr Crawford could be said to advance any relevant issue for the determination of the application in the present case, regardless of any dispute about the actual timing.

3. It is apparent from s 67(5) of the Act that non‑compliance with s 67(2) of the Act could not give rise to any invalidity in the decision and therefore could not impact on the review under Part 7AA of the Act in the circumstances of the present case. Mr Gormly did not identify any rational or logical basis upon which his cross‑examination of Mr Crawford would have been of relevance and for these reasons no such cross‑examination was allowed.

1. Mr Gormly also sought to call on a notice to produce to explore other issues concerning metadata and alleged inconsistencies with some other affidavit, none of which identified any relevant issue to the determination of whether there was some jurisdictional error in the decision making by the Authority under Part 7AA of the Act

2. The provisions of Part 2 division AC of the Act must be read in their context and as part of the Act as a whole. The provisions make clear that there is a difference between the concept of notification of decision, reasons for the decision and the making of a record. In the present case, the copy of the reasons notified to the applicant contained no time of making. The absence of a time of making on the notification of the decision was not a non‑compliance with s 67(2) of the Act.

3. I accept the first respondent’s submission that the making of the record under s 67 of the Act is concerned with the making of the record internally by the first respondent. It is apparent from Mr Crawford’s affidavit that there was a date and time of making of the record in the present case by the delegate. The actual time has no consequence whatsoever in the present case.

4. Further, I accept the first respondent’s submission that on its natural, ordinary reading, the consequence of s 67(3) of the Act is that the notification of the reasons sent to the applicant is deemed to include the time and date that the record was made. In these circumstances, quite apart from s 67(5) of the Act, grounds 2 and 3 cannot succeed. Accordingly, no jurisdictional error is made out by grounds 2 and 3 of the further amended application

Conclusion

1. As the further amended application fails to make out any jurisdictional error, the further amended application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  31 August 2018