AFB17 v Minister for Immigration
[2019] FCCA 478
•4 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFB17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 478 |
| Catchwords: MIGRATION – Application for review of a decision of the Immigration Assessment Authority – protection visa – whether Authority failed to consider the Applicant’s claims – whether there is a real chance of serious or significant harm – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CB, 473DB, 473DC, 473DD |
| Cases cited: Applicant WAEE v Minister for Immigration and Citizenship (2003) 236 FCR 593 |
| Applicant: | AFB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 85 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 25 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 4 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the First Respondent: | Mr Minson |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 85 of 2017
| AFB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application filed on 16 January 2017 seeking judicial review of a decision of the Second Respondent (‘the Authority’) dated 21 December 2016. By that decision, the Authority affirmed a decision of a delegate of the First Respondent dated 26 October 2016 to refuse to grant the Applicant a temporary protection visa (‘the visa’). On 29 January 2019 the Applicant filed an amended application, on which the Applicant proceeded at the hearing of this matter.
The grounds of amended application are:-
“1. The Authority erred in the exercise of its power under section 473DC of the Migration Act 1958 and thereby erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of the delegate of the First Respondent.
Particulars
(a) The Authority did not exercise its power under section 473DC of the Migration Act 1958 to invite the Applicant to an interview or otherwise to get new information from the Applicant about his claims, when the credibility of the Applicant was critical to the Authority’s decision, the Applicant’s representative put no written submissions before the delegate or the Authority, and some of the Applicant’s evidence referred to the Authority was perceived by it as “inconsistent” and “vague and conflicting”. (Authority’s Decision and Reasons, [22], Court Book (“CB”) 149)
2. The Authority erred in the exercise of its power under section 473DC of the Migration Act 1958 and thereby denied the Applicant natural justice or procedural fairness.
Particulars
(a) The Applicant refers to and repeats Particular (a) to Ground 1 of this application.
3. The Authority failed to have regard to relevant considerations, including relevant information.
Particulars
(a) The Authority referred to material about the situation in Sri Lanka from the Department of Foreign Affairs and Trade (DFAT: footnotes 1, 4, 6, 8-13, 15-22), the United Nations High Commissioner for Refugees (UNHCR: footnotes 2, 35, 7, 14), and the United Kingdom Home Office (footnote 9), but it failed to have regard to other information about abuses of human rights (including torture) cited by the delegate and in the referred material, from Human Rights Watch (HRW: CB 118, note 18), Tamils Against Genocide (TAG: CB 118, note 18), and Freedom From Torture (FFT: CB 118, notes 18 and 19).
4. The Authority fell into jurisdictional error in that it was unreasonable or acted without logically probative evidence.
(a) The Applicant refers to and repeats Particular (a) to Ground 1 of this application.
(b) The Authority accepted many of the Applicant’s claims about his and his family’s history, including:
- his brother’s and cousin’s membership of the LTTE;
- his having been detained in 1997;
- his having been abducted after the death in April 2008 of his cousin, a member of the LTTE, interrogated about the LTTE and assaulted;
- his accompanying of that brother when the brother was released, and when he reported to the authorities after his rehabilitation and release;
- the [Sri Lankan] authorities may have periodically visited the applicant’s brother for further questioning”.
Yet it did not accept the Applicant’s claim that his father was assaulted by the Sri Lankan authorities on an occasion when they came to question the Applicant further about LTTE involvement, although this claim was not inherently implausible, nor was it logically inconsistent with the Applicant’s claim that he had earlier obtained a passport, or with the routine renewal of his fishing pass.”
Section 473DC of the Migration Act 1958 (Cth) (‘the Act’) is 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.”
Section 473DD of the Act is as follows:-
“Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”
The grounds of amended application when read with the Applicant’s submissions essentially complain that the Authority unreasonably failed to exercise its discretion under s.473DC of the Act because it did not invite the Applicant to an interview or otherwise get new information from him about his claims. This failure to invite the Applicant to an interview was described as, under ground 1(a) of the application, an error of law; under ground 2(a) of the application, as a failure to give procedural fairness; and under ground 4(a) of the application, as being not reasonable.
The First Respondent seeks dismissal of the application and costs.
There is before the Court the evidence as contained in the Court Book filed 28 June 2017 and each of the First Respondent and Applicant have filed submissions on which they rely.
Background
The Applicant is a national of Sri Lanka from Jaffna in the Northern Province. He is of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival on 19 October 2012.
On 7 January 2013 the Applicant participated in an entry interview. He claimed he had left Sri Lanka because his brother was a member of the Liberation Tigers of Tamil Eelam (‘LTTE’). He himself was therefore suspected of supporting the LTTE. His father was killed by the Sri Lankan Army (‘SLA’) and his cousin was shot dead by an unknown person.
On 4 March 2016 the Applicant lodged an application for an Class XD (subclass 785) temporary protection visa (’TPV’). He had a migration agent to assist him with the application.
In a statutory declaration dated 22 February 2016 and provided with his TPV application, the Applicant claimed to fear harm for reasons of his Tamil ethnicity, his brother’s involvement in the LTTE, his own imputed political opinion as an LTTE supporter, and as a failed asylum seeker who departed Sri Lanka illegally. In support of his visa application, the Applicant provided various documents, including identity documents.
By a letter dated 13 September 2016 the Applicant was invited to attend an interview with the delegate on 6 October 2016 (‘TPV interview’). The Applicant attended the TPV interview and provided further documents to the Department of Immigration and Border Protection (‘the Department’) in support of his claims and claimed identity.
The delegate refused to grant the Applicant the visa. The delegate was not satisfied the Applicant faced a real chance of serious harm or a real risk of significant harm due to his actual or perceived LTTE links, his Tamil ethnicity or his origins in the Northern Province of Sri Lanka. The delegate accepted the Applicant would be considered to be a failed asylum seeker if returned to Sri Lanka but relied on country information about the processes and penalties for returnees who departed illegally and was not satisfied the Applicant faced a real chance of serious harm or a real risk of significant harm on this basis.
The Authority
On 10 November 2016 the matter was referred to the Authority. The Applicant appointed the same migration agent to represent him before the Authority.
On 29 November 2016 the Authority received a written statement from the Applicant dated 26 November 2016 which, in essence, explained why the Applicant disagreed with the delegate’s decision. The Authority found the Applicant’s statement responded to issues arising from the delegate’s decision and was not new information. The Authority therefore had regard to that statement as acknowledged in paragraph four of the Decision and Reasons of the Authority (‘the Decision Record’) dated 21 December 2016, being a decision which affirmed the delegate’s decision to refuse the Applicant a TPV.
The Decision Record of the Authority
The Authority noted, as set out in paragraph three of the Decision Record, that it had regard to the material referred to the Authority by the secretary under s.473CB of the Act under the heading “Information before the IAA”.
The Authority set out the Applicant’s claims for protection as they then were before the Authority in paragraph five of the Decision Record as follows:-
“…On account of the civil war in Sri Lanka, the applicant was displaced on several occasions;
- In 1995, the Sri Lankan Army (SLA) took control of his village (Kurunagar, Jaffna) from the Liberation Tigers of Tamil Eelam (LTTE). As a result, the applicant’s movements were limited due to ongoing round ups and checkpoints;
- When the applicant returned to Kurunagar in 1997, he was taken to a temporary SLA camp for around 10 to 15 days. He was interrogated under suspicion of having links to the LTTE;
- A [sic] times during the civil conflict, the applicant was forced to transport goods for the LTTE;
- The applicant’s brother [S] joined the LTTE in 2004;
- The applicant’s cousin [VL] was an LTTE member who was killed by an unknown person/group in April 2018;
- Following his cousin’s death, the applicant was abducted, physically assaulted and interrogated in relation to his and his family members’ LTTE involvement;
- At the end of the civil conflict, the applicant’s brother was sent for rehabilitation and was released in September 2011. Following his brother’s release, the applicant and his brother were required to report to an SLA camp on a weekly basis for a period of three months;
- Three months later, the SLA began visiting the applicant’s home once or twice a month. During these visits, the SLA questioned the men in the family about the LTTE’s activities;
- During one visit, the applicant’s father was physically assaulted by the SLA and later died as a result of his injuries. The SLA - threatened to kill all the men in the applicant’s family if they did not reveal the location of LTTE arms;
- Following the death of his father in July 2012, the applicant decided to leave Sri Lanka, departing by boat in October 2012;
- Since arrival in Australia, the SLA have visited the applicant’s home four times to look for him. He has been threatened with death if he returns.
The applicant fears he will be harmed by the Sri Lankan authorities due to:
- his ethnicity as a Tamil;
- his brother’s connection to the LTTE;
- his illegal departure from Sri Lanka;
- his asylum application abroad.”
Findings of the Authority
The Authority accepted that the Applicant was a Tamil from the Jaffna district in the north of Sri Lanka and that he was displaced on several occasions due to the military conflict in the country. Further, that he was detained and interrogated in an SLA camp in 1997 and that he was forced to provide support for the LTTE by transporting goods by boat.
The Tribunal also accepted that the Applicant’s cousin and brother were LTTE members and that following the death of his cousin the Applicant was abducted, assaulted and interrogated because of his actual or perceived LTTE involvement and/or that of his cousin or brother. In addition, it accepted that the Applicant’s brother was a LTTE combatant and was released from rehabilitation in September 2011.
The Authority was not satisfied, however, that the Applicant was of ongoing interest to the unknown group who abducted him in 2008 because he was released after one day and did not come to the adverse attention of anyone in Sri Lanka until more than three years later when he was required to report to the authorities in connection with his brother’s release from rehabilitation in September 2011.
The Authority accepted the Applicant’s claim that he was required to accompany his brother to weekly reporting as claimed and that, on the basis of country information, the authorities may have periodically visited the Applicant’s brother for further questioning. The Authority, however, had:-
“…concerns regarding the applicant’s evidence in relation to the circumstances that led him to leave Sri Lanka in 2012.”[1]
[1] Decision Record, 21.
The Authority said at paragraph 22 of the Decision Record the following:-
“Firstly, I find that the applicant obtained his first passport on 19 June 2012 to be inconsistent with his evidence that he decided to leave Sri Lanka after the death of his father on 19 July 2012 and/or that he first made arrangements to leave in August 2012. I further note the oral submission by the applicant’s representative that he applied for a fishing pass in September 2012 because he was seeking ways to not raise suspicion that he was intending to leave Sri Lanka; however, applying for a passport at least three months earlier demonstrates an intention to the government that he was planning to travel. The applicant’s evidence that his father died of a heart‑related condition as a direct result of being assaulted indicates that the applicant applied for the passport prior to his father’s assault, which further indicates that it was not the assault or death of the applicant’s father that was the applicant’s motivation for leaving Sri Lanka, as claimed. Secondly, given his claimed circumstances, I find the applicant’s explanation as to why he obtained his first passport at 32 years of age not plausible. I consider that the applicant applied for a passport for no other reason than he intended to travel overseas for reasons different to what he has claimed in the TPV application. Thirdly, I find that the applicant’s ability to obtain a government issued passport in June 2012 and a government issued fishing pass in September 2012 indicative that the applicant was not someone who was of adverse interest to the Sri Lankan authorities prior to his departure in September 2012. Finally, I have considered the applicant’s inconsistent evidence in relation to being in hiding prior to his departure from Sri Lanka and the vague and conflicting evidence provided regarding the departure of his other brothers to Qatar. It was not claimed by the applicant, nor is there any evidence before me, that the applicant’s brothers departed Sri Lanka illegally or that they had any difficulty departing Sri Lanka. This indicates that the applicant’s brothers were not persons who had an adverse profile with the Sri Lankan authorities, including the applicant’s brother [S] who was known to the authorities as a combatant in the LTTE for several years and went through the rehabilitation process. While I accept that the applicant’s father has passed away, I consider the above the matters cast considerable doubt on the applicant’s claim that he was personally subjected to monitoring following the end of the mandatory three month reporting period, that he and his father were involved in a physical altercation with the SLA in 2012, that his father died as a result of injuries sustained in that altercation, that the SLA threatened the applicant that he would be killed, and that he was having to sleep elsewhere prior to his departure from Sri Lanka. As noted above, during a period where he claimed to be in fear of the authorities the applicant appeared to be going about his normal daily life, such as going to work. Without difficulty, the applicant directly or indirectly interacted with the Department of Immigration and Emigration to obtain a passport and I note his fishing pass was issued by the Sri Lankan Navy, which indicates that the applicant was not someone of concern to the Sri Lankan authorities. I am not satisfied that the applicant or his father came to adverse attention of the Sri Lankan authorities in 2012 as claimed.”
Thereafter, the Authority made findings that it did not accept that authorities had visited the Applicant’s house four times in search of the Applicant after he arrived in Australia; and on the basis of its assessment of relevant country information and the Applicant’s profile, the Authority found the Applicant would not face a real chance of serious harm on return to Sri Lanka due to his Tamil ethnicity or his actual or imputed LTTE profile.
The Authority accepted that on return, the Applicant would be identified as a failed asylum seeker who had departed Sri Lanka illegally. It acknowledged country information reports of returnees of being harmed if they had substantial links to the LTTE or were suspected of committing serious crimes. However, the Authority found that the Applicant did not have such a profile and it was therefore not satisfied that he faced a real chance of serious harm as a failed asylum seeker from Australia.
After considering relevant country information, the Authority found that on his return to Sri Lanka, the Applicant may be questioned and briefly detained at the airport; charged with an offence under the Sri Lankan Immigrants and Emigrants Act because of his illegal departure; and fined if he pleaded guilty or released on bail if he pleaded not guilty. The Authority did not accept that the Applicant would face a real chance of serious harm during any brief period of detention or that the imposition of any fine, surety or guarantee would of itself constitute serious harm. It was also satisfied that the Immigrants and Emigrants Act was not discriminatory in its terms or in its application.
It found relevantly in paragraph 33 of the Decision Record that:-
“…On the evidence before me, I find the imposition of any fine, surety or guarantee would not of itself constitute serious harm. I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees. In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, in the absence of any profile that would elevate the penalty the applicant would face, I find there is not a real chance that the applicant would face imprisonment.”
Having considered the Applicant’s claim individually and cumulatively, the Authority was not satisfied that the Applicant met the requirements of s.36(2)(a) of the Act and, further, upon its considerations did not accept that the Applicant met the requirements of s.36(2)(aa) of the Act.
Grounds 1(a), 2(a) and 4(a)
The Applicant did, in fact, appoint a migration representative before the Authority and, through that representative, provided a written statement to the Authority which was clearly considered by the Authority. In oral submissions, Counsel for the Applicant conceded that matter, but claimed that the Applicant was before the Authority effectively unrepresented. That claim takes the Applicant nowhere in the circumstances.
The Applicant argued that the Authority committed jurisdictional error in not inviting the Applicant to an interview in circumstances where that was essential given that the Applicant’s credibility was critical to the decision of the Authority. This argument cannot succeed. The bare fact that credibility is in issue before the Authority is not determinative of an invitation to an interview with the Authority.
The Authority made findings in respect of the Applicant’s application on almost identical grounds to that of the delegate. The Applicant and his representative were expressly put on notice by the Authority’s information sheet and practice direction about the restricted review the Authority could undertake and the very limited circumstances legislatively in which it could consider new information or hold an interview. The Applicant made no request to the Authority for it to conduct an interview with, or to obtain further information from him.
The Applicant was clearly put on notice by the delegate’s decision that some of his claims and evidence had not been accepted by the delegate and therefore might not be accepted by the Authority. In particular, the inconsistent evidence provided by the Applicant throughout was an issue for the delegate. As noted by the First Respondent, the Applicant, in his submissions to the Authority, addressed various findings of the delegate, but did not address matters going to the consistency and credibility of his claims.
The findings made by the Authority were clearly open to it on the basis of the evidence which was before it. Whilst the Authority accepted some of the Applicant’s claims, it doubted the veracity of others. Importantly, as submitted by the First Respondent, those of the Applicant’s claims that the Authority did not accept were materially the same as those the delegate also rejected. It was open to the Authority to find that the Applicant’s evidence was “vague”, “conflicting” and/or “inconsistent”. I agree with the First Respondent that such findings do not indicate that the Authority did not understand, or needed to obtain clarity around, the Applicant’s evidence.
Section 473DB of the Act required the Authority to review the delegate’s decision by considering the material provided to it by the Secretary without accepting or requesting new information and without interviewing the Applicant unless the Authority chose to exercise its discretion to get new information under s.473DC of the Act. The fact that the Applicant’s credibility was in issue does not mean it was unreasonable of the Authority not to exercise the discretion to get new information.[2] Further, at no stage has the Applicant identified what “new information” the Authority should have got or considered getting from the Applicant.
[2] DCG16 v Minister for Immigration and Another [2017] FCCA 285, [34] – [36]; DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580, 17; DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222, 74.
This ground must fail. It was not legally unreasonable of the Authority not to exercise its discretion under s.473DC of the Act.
Ground 3(a)
By ground 3(a), the Applicant submits that although the Authority in its Decision Record referred to the Department of Foreign Affairs and Trade, the United Nations High Commissioner for Refugees and the United Kingdom Home Office reports, it did not refer to other country information reports that were relied upon by the delegate and thus did not have regard to those other country information reports. In that failure, the Authority is alleged by the Applicant to have failed to take into account “relevant considerations, including relevant information”. The Applicant’s submissions further alleged that in not having regard to the specified material, the Authority failed to consider an “integer” of the Applicant’s claim and failed to discharge its duty under s.473DB(1) of the Act to review the delegate’s decision “by considering the review material provided to the Authority under section 473CB.”
This ground cannot succeed. The Authority expressly stated under the heading “Information before the IAA” that it had regard to the material referred to it under s.473CB of the Act, as well as the Applicant’s statement to the Authority. Further, as submitted by the First Respondent, when the Authority came to make its finding about the risk of harm the Applicant faced if returned to Sri Lanka as a failed asylum seeker, the Authority expressly stated that it had regard “to the country information in the referred material and in particular in the 2015 DFAT report.”[3] It was not necessary for the Authority to express itself in any more specific way by referring to each and every piece of evidence before it. [4] It simply cannot be inferred that whatever material the Authority did not specifically refer to, it did not consider for the purposes of s.473DB(1) of the Act.
[3] Decision Record, 30.
[4] Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, 423, [79]; Applicant WAEE v Minister for Immigration and Citizenship (2003) 236 FCR 593, 604
On a fair reading of the Decision Record, it is clear that the Authority considered the range of country information before it, and in that regard it expressly considered that country information supportive of the Applicant’s claims. As is said many times, the weight given to country information is a matter for the Authority. The findings of fact made by the Authority on the evidence and materials before it, for the reasons it gave, were clearly open to it.
Ground 4(b)
Ground 4(b) provides that the Authority’s finding that the Applicant’s father was not assaulted by the authorities in 2012 was “unreasonable” in light of those of the Applicant’s claims that it did accept and/or it was made “without logically probative evidence”.
This ground must also fail. This finding was not a conclusion that no rational or logical decision-maker could have arrived at on the same evidence.[5]
[5] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647 - 648 [130]
The Authority identified various inconsistencies in the Applicant’s claims about the circumstances that led him to leave Sri Lanka in 2012 which commenced at paragraph 22 of the Decision Record and which are referred to above in these reasons. I agreed with the First Respondent that the fact that the Applicant applied for and was issued a passport approximately one month before his father died, was probative of and rationally undermined the Applicant’s claim that he decided to leave Sri Lanka after and on account of his father’s death. Further, that it was open to the Authority to conclude that the Applicant and his father were not of interest to the authorities in 2012 on the basis that the Applicant was able to obtain a passport and a fishing pass from the authorities without any apparent difficulty.
This ground really goes to impermissible merits review of factual findings of the Authority and thus cannot succeed.
Jurisdictional error not attending the decision of the Authority, the application will be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 4 March 2019
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