AKC17 v Minister for Immigration - [2017] FCCA 2282

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKC17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2282

Catchwords:
MIGRATION – Immigration Assessment Authority – not accepted that no reasonable Authority could refuse to exercise the power under s.473DC(3) – no legally unreasonable failure to exercise power – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DC, 473DD, 476

Cases cited:

DVE16 v Minister for Immigration & Anor [2017] FCCA 2084

DZU16 v Minister for Immigration & Border Protection [2017] FCCA 851

Applicant:

AKC17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 282 of 2017

Judgment of:

Judge Street

Hearing date:

19 September 2017

Date of Last Submission:

19 September 2017

Delivered at:

Sydney

Delivered on:

19 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Rasan T Selliah & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Minter Ellison

ORDERS

Grant leave to the applicant to file in Court the amended application dated 6 September 2017 and the Court dispenses with the need for the electronic filing of the same.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 282 of 2017

AKC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision made by the Immigration Assessment Authority (“the Authority”) under Part 7AA on 12 January 2017, affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 10 October 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise Class XE visa on 10 March 2016.
The applicant claimed to fear harm because of his ethnicity, religion and for being from the east of Sri Lanka. The applicant claimed to fear harm as a Tamil from the East, previously domiciled in an LTTE controlled/active area and as a person who was previously suspected of LTTE involvement in 1999 when he was detained, questioned and mistreated. The applicant also alleged his ex-wife and her family, one of whom is a police officer, because of the breakdown of his marriage with his ex‑wife may harm him and the applicant fears harm by reason of his illegal departure and as a failed asylum seeker, including as a Tamil.
On 12 September 2016 a delegate found the applicant failed to meet the criteria for the grant of the visa and made adverse credibility findings in relation to the applicant’s claims. The delegate found that the applicant was not an excluded fast track applicant.

The Authority’s decision

On 16 September 2016, the Authority wrote the applicant identifying that the matter had been referred to the Authority for review. The Authority’s letter identified that there were limited circumstances in which the Authority could consider new information and provided a fact sheet and practice direction giving the applicant an opportunity to put on new information and evidence. Submissions were provided by the applicant to the Authority and those submissions were expressly referred to in the Authority’s reasons. The Authority identified that it did not regard the material provided as new information and had regard to the same.
The Authority made express reference to a submission advanced on behalf of the applicant that a hearing (interview) may be required. That was clearly a reference to the letter sent to the Authority on behalf of the applicant making submissions on 3 October 2016. The submissions concluded referring to the proposition that the applicant was a person who would come to the adverse attention of the Sri Lankan security forces on arrival and posited the following propositions:
I trust that you will contact him if any concern arises before you make a decision on your IAA review.
I trust this review application will be accorded with natural justice.
Please provide us with an opportunity to provide any information you think relevant before you make a decision on your Review.
He is willing to attend to the IAA hearing and I will represent him during the IAA hearing. He trusts that IAA will invite him to appear before the IAA to give further evidence and present his oral evidence if only any issue/issues arise, even after this submission, when the IAA review matter before it make a decision
Should you have any queries in respect of this review generally and/or in respect of this submission please do not hesitate to contact my client or me.
The Tribunal engaged in a real and meaningful consideration of those submissions and concluded that it was satisfied that the applicant’s submissions engaged with any concerns the applicant may have with regard to the delegate’s decisions and findings. Having considered those submissions and taking into account all the circumstances, the Authority was not satisfied that an interview was necessary or required. The reference to an interview was clearly a reference engaging with and responding to the request made in the submissions provided to the Authority on behalf of the applicant. The Authority in its reasons identified having regard to the material referred to the Authority under s.473CB of the Act and provided reasons identifying consideration of the request to exercise a power under s.473DC of the Act, and provided reasons consistent with having considered that request.
Section 473DC of the Act is as follows:
(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.
I accept the submissions of the first respondent that s.473DC(2) of the Act is of considerable significance in evaluating any argument of the kind that is raised in the present case of alleged legal unreasonableness in a failure to exercise a power under s.473DC(3) of the Act.
The Authority correctly identified the applicant’s claims. The Authority correctly identified the relevant law. The Authority set out the applicant’s claims and evidence. The Authority accepted that the applicant was detained, questioned and mistreated in 1999. The Authority did not accept that the applicant was arrested in 2006, 2007 or that his wife was able to bail him out of the police station because she was Singhalese.
The Authority did not accept the applicant’s claim that he was seriously suspected for being associated or involved with the LTTE, whether directly or through any relative, or that there is an ongoing case against him.
The Authority found it significant that the applicant was able to obtain at least two passports from the Sri Lankan authorities and travel between Sri Lanka and Abu Dhabi, Qatar, and India over a period of nearly 13 years. The Authority observed that the applicant’s ability to obtain travel documents, travel overseas several times and return to the country unhindered strongly indicates that the applicant was not assessed by the Sri Lankan authorities as being a security risk or having a profile connected to the LTTE whether directly or indirectly. The Authority found that this indicates that there was not an open or ongoing file in relation to the applicant.
The Authority rejected the applicant’s claims that he is suspected of LTTE involvement or connection whether directly through his past detention and arrest, or indirectly through any relative who may have been involved with the LTTE. The Authority did not accept the applicant’s family is or has been under any threat because of his claimed profile. The Authority was satisfied the applicant would return to Sri Lanka and not be considered as having a profile connected to the LTTE that would put him, or his family, at a real chance or real risk of being seriously harmed.
The Authority took into account country information concerning the applicant being a Tamil. The Authority made reference to having found that the applicant had no connection to the LTTE and no adverse profile with the Sri Lankan authorities. The Authority observed beyond the applicant’s ethnicity, religion, profile and residency in the east, the applicant has not claimed to have any direct LTTE involvement and the Authority did not accept the applicant’s claims to have a family member who was involved.
The Authority did not accept the applicant’s claim that he would be a person of interest for the authorities on return or that there is a real chance of him or his family being harmed for these reasons.
The Authority made reference to societal discrimination against Tamils but found that this was at a low level. The Authority accepted the applicant may encounter the Sri Lankan authorities and that he may face a degree of societal discrimination, questioning, or monitoring on return but was no satisfied these factors would separately or cumulatively constitute serious harm or that there is any real chance of him being seriously harmed in that context.
The Authority found that there is not a real chance of the applicant being harmed for reasons of his ethnicity as a Tamil, as a Tamil from a former LTTE controlled area in the east, any actual or imputed connected to the LTTE, any adverse political or security profile from the incident in 1999 or for any of the other reasons claimed.
The Tribunal took into account the applicant being a Tamil Hindu. The Authority was satisfied the applicant faced no real chance of being seriously harmed for reasons of his faith as a Hindu or because he comes from a Hindu-Christian family.
The Authority made reference to the applicant’s claims raised for the first time at the visa interview that he feared harm from his ex-wife’s family. The Authority made reference to an alleged complaint made on 23 July 2010. The Authority found the report contradicts the applicant’s evidence at the interview that he was threatened by his ex-wife’s family due to the divorce proceedings. The Authority found the report also contradicts the applicant’s oral evidence that he was hiding in the residence of a local priest. The Authority found the report states that the applicant had been living in houses of his relatives.
The Authority also made reference to a letter from the priest which stated that the applicant and his younger brother had been living in church for the past year as they feared harm from unknown persons and that the applicant should not return home. The Authority observed that the letter made no reference to the applicant previously living with the priest.
The Authority accepted that the applicant is divorced, and that the divorce may have been acrimonious with tension and enmity between the families. The Authority did not accept the applicant or his family were at threat from the ex-wife’s family or unidentified persons. The Authority observed that the applicant made no reference to these claims in his visa application, and that he made no reference to fearing harm from his wife’s family at the arrival interview.
The Authority made express reference to the fact that at that interview the applicant was asked whether anything happened to him other than the 1999 incident, and that he made no reference to his wife, his divorce or threats from her family or other persons. The Authority was not satisfied that there is a real chance of the applicant or his family being harmed by ex-wife, her family or any other unknown persons in connection with the demise of their marriage or otherwise.
The Authority made reference to the applicant’s illegal departure and was satisfied the applicant would be identified as having no adverse political or security profile. The Authority found there was not a real chance the applicant would suffer ill treatment between any questioning on return or otherwise be harmed or mistreated because he sought asylum, or due to his status as a returnee, as a Tamil, or as someone who left Sri Lanka illegally.
The Authority accepted that the applicant may be punished under Sri Lankan law. The Authority accepted there is a real chance the applicant would be charged under the Immigrants and Emigrants Act and that if the applicant were to plead guilty, the Authority found it likely that he would be bailed on personal surety. The Authority found that there was no information to indicate the applicant was involved in organising or facilitating people smuggling, and on that basis were satisfied there is no prospect of the applicant being given a custodial sentence.
The Authority was satisfied the applicant may be fined, but based on the information before the Authority found that any fine could be paid by instalment and did not accept this would adversely impact on the applicant, cause him economic hardship or otherwise threaten his capacity to subsist. The Authority was not satisfied that any fine imposed or bail requirement would amount to serious harm.
The Authority made reference to the poor prison conditions, but found they were not the result of any systemic or intentional conduct on part of the authorities. The Authority accepted that the applicant would be questioned and detained but found that that would be relatively brief and not amount to serious harm. The Authority was satisfied that any harm the applicant may face upon return to Sri Lanka on the base of his illegal departure in terms of any questioning, fine or detention would not constitute serious harm.
The Authority made reference to the provisions and penalties of the Immigrants and Emigrants Act being laws of general application, which were not discriminatory on their terms, and that the law is not applied in a discriminatory manner or selectively enforced. The Authority was satisfied the applicant may be fined, detained or questioned and that this would be the exercise of laws of general application that apply to all Sri Lankans equally.
The Authority found there is not a real chance of the applicant being serious harmed on the basis of his illegal departure, or for seeking asylum in Australia. The Authority was not satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure or as an asylum seeker would constitute persecution for the purpose of the Act.
The Authority was not satisfied the applicant will face a real chance of serious harm on return to Sri Lanka on the basis of any actual or imputed connection to LTTE, any adverse political or security profile from the incident in 1999, or any other interaction with Sri Lanka authorities, his ethnicity as a Tamil, as a Tamil from a former LTTE controlled/combat area in the east, his religion, as a result of departing Sri Lanka illegally, and seeking asylum in Australia, or any harm from his ex-wife or her family in connection with their divorce or for any other reason.
The Authority found the applicant did not meet the definition of a refugee in s.5H(1) of the Act and found the applicant failed to meet the criteria under s.36(2)(a) of the Act.
The Authority was not satisfied that there is a real risk the applicant will face significant harm upon return to Sri Lanka for the reasons claimed. The Authority was not satisfied there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka there is a real risk the applicant would suffer significant harm. 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

Ground 2 of the amended application is follows:
Ground 2
The Second Respondent's failure to invite the applicant in writing or at an interview under the s.473DC(3) of the Migration Act, was legally unreasonable, when such a request was specifically made by the representative, in the particular circumstances of this case.
Particulars
(a) The IAA at paragraphs 3 and 4 of the decision took into account the translation of the applicant's divorce judgment of 23 November 2010. In fact it was a new information because the translation was not available to the delegate. At paragraph 36, IAA accepted that “on the basis of that detail, I accept that the relationship had broken down and was acrimonious.” Delegate at CB page 165 paragraph 7 did not accept the claim of divorce. Delegate said that “considering that I have not accepted the applicant was divorced I do not accept that his wife's family are after him and they wanted to kill him because of divorce. However, IAA found at paragraph 36 that “the judgment makes no reference to violence or threats, other than harassment and nagging".
(b) The IAA at paragraph 4 (CB227) took into account two new documents namely (1) an “Extract from the information book of Batticaloa station" (2) a letter from a priest at St.Peter's church, Vakarai in Sri Lanka as a new information. In relation to the “Extract” the IAA said at paragraph 3 8 that the report contradicts the evidence at the interview that he was threatened by his ex-wife's family due to the divorce proceedings, where as the police report states he has been receiving threats since the inception of his. I also note that the applicant made no reference to concern about his wife's fidelity in his interview with the delegate, nor did he claim that persons went to his home and threatened him. The report also contradicts his oral evidence that he was hiding in the residence of the local priest. The report instead states he has been living in the houses of his relatives"
(c) The IAA at paragraph 39 took into account information provided by a letter from the priest. It said it provides no details or clarity about the current threat faced by his family, or any past threats to the applicant. It also makes no reference to the applicant previously living with the priest.
(d) The IAA made the finding at paragraph 41 that “I do not accept the applicant or his family are at threat from his ex-wife's family or unidentified persons. The applicant made no reference to these claims in his written visa application. He also made no reference to fearing harm from his wife's family at the arrival interview. At that interview, 1 note he was asked whether anything happened to him other than the 1999 incident. He made no reference to his wife, his divorce or any threats from her family or other persons.

Consideration

Mr Zipser of counsel for the applicant, confirmed that ground 1 was abandoned. Mr Zipser of counsel took the Court to authorities dealing with the concept of legal unreasonableness as well as the statutory power of s.473DC(3) of the Act. Mr Zipser took the Court to the submissions and submitted that the reference in the Authority’s reasons to having considered the same did not deal with the whole of the submissions in terms of request to respond in writing.

The Authority’s reasons are not to be read with a fine eye for error. The Authority’s reasons patently reflect an engagement with the submissions that were advanced and provided, and reflect a real and meaningful consideration of those submissions by reason of which the argument of legal unreasonableness is flawed.
Section 473DC of the Act is as follows:
(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.
I accept the submissions of the first respondent that s.473DC(2) of the Act is of considerable significance in evaluating any argument of the kind that is raised in the present case of alleged legal unreasonableness in a failure to exercise a power under s.473DC(3) of the Act.
The Authority’s reasons were the subject of analysis by Mr Zipser referring to particular paragraphs suggesting a disparity or inconsistency between particular documents and the Authority’s reasons. I do not accept that the Authority’s reasons reflect any such inconsistency or error. Mr Zipser also took the Court to the transcript in relation to the applicant’s claims concerning the wife’s family or someone else threatening the applicant and the police report, and submitted that there was an inconsistency in the Authority’s reasoning. I do not accept that there was any such inconsistency in the Authority’s reasons referrable to the applicant’s claim.
On the face of the material before the Court, the Authority correctly understood the applicant’s claims and made adverse findings dispositive of the applicant’s claims that were open on the material before the Authority. There are no circumstances in the present case by reason of which the Court should find that no reasonable Authority could refuse to exercise the power under s.473DC(3) of the Act.
The first respondent drew the Court’s attention to the nature of the scheme of the provisions of Part 7AA of the Act, where the provisions of Division 3 are of particular importance in that ordinarily the review by the Authority is to be on the papers, unless the Authority takes into account new information of the kind identified in s.473DE of the Act or exercises the power under s.473DC(3) of the Act, as well as the restriction in relation to new information identified in s.473DD of the Act.
The Court’s attention has been drawn to a conflict of Authority between DVE16 v Minister for Immigration & Anor [2017] FCCA 2084 and what was said in DZU16 v Minister for Immigration & Border Protection [2017] FCCA 851. The facts in the present case are a long way removed from that identified in DZU16 v Minister for Immigration & Border Protection [2017] FCCA 851 and the decision is clearly distinguishable. In these circumstances, it is not necessary for this Court to determine the extent to which s.473DC(2) of the Act excludes an assessment of legal unreasonableness in relation to s.473DC(3) of the Act.
That provision does, however, at the very least identify that the mere making of a request such as found in the submissions of the applicant in the present case where that request has been considered is not sufficient to engage an obligation to conduct a hearing or to provide an opportunity to provide further information in writing. It was not legally unreasonable for the Authority not to take any such step as requested in the submissions. The Authority’s reasons for not exercising the power are not unreasonable and cannot be said to lack an evident and intelligible justification. No jurisdictional error is alleged in ground 2 of the amended application is made out.
Accordingly, the amended application is dismissed

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 12 October 2017