Alm17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 85
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 85
File number(s): MLG 229 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 17 February 2022 Catchwords: MIGRATION – Safe Haven Enterprise (Subclass 790) visa – whether the Immigration Assessment Authority (‘Authority’) failed to constructively review the First Respondent’s decision – whether the Authority denied the Applicant procedural fairness – where the Applicant did not particularise or expand upon the grounds of review set out in the Application – no jurisdiction error – Application dismissed. Legislation: Migration Act1958 (Cth), ss.473DC, 473DD Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 25 January 2022 Place: Melbourne Advocate for the Applicant: In person Solicitor for the Applicant: None Solicitor Advocate for the Respondents: Ms Nyabally Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 229 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALM17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
17 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Application filed on 3 February 2017 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $5,500.
3.The title of the proceeding be amended so that the name of the first respondent is ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority ('Authority') on 16 January 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. He was born on 30 October 1987. He arrived in Australia on 14 October 2012 as an unauthorised maritime arrival. He participated in an entry interview on 31 December 2012.
The Applicant applied for the visa under cover of letter dated 12 March 2016. On 22 November 2016, the Applicant attended a Protection Visa interview ('PV interview'). On 30 November 2016, a delegate of the Minister ('delegate') refused to grant the Applicant the visa.
On 5 December 2016, the decision of the delegate to refuse the Applicant the visa was referred to the Authority for a review.
On 21 December 2016, the Applicant's representative sent an email to the Authority enclosing a submission from the Applicant and other supporting documents.
On 16 January 2017, the Authority affirmed the decision not to grant the Applicant the visa.
The Applicant filed an Application for review in this Court on 3 February 2017. He also filed an affidavit in support of the Application for review.
Procedural orders were made by this Court on 2 August 2017 and 22 November 2019. Despite those orders, the Applicant has not filed any amended application, further affidavit or outline of submissions. The Minister filed a written outline of submissions and a Court Book.
THE DECISION OF THE AUTHORITY
The Authority commenced its review by noting, among other things, the submission received from the Applicant's representative on 21 December 2016. At paragraph [3], the Authority determined to have regard to the submission. The Authority, however, determined not to have regard to two articles attached to the submission because neither of the articles were put before the delegate, they predated the delegate's decision, and no explanation had been included as to why they were not provided to the Minister before the decision of the delegate, or why the articles may be considered to be credible personal information. The Authority also determined that there were not exceptional circumstances to justify considering the articles.
The Applicant's claims for protection were set out in his application for a protection visa (Court Book [26]-[84]) and in particular, in a document entitled 'Statutory Declaration' commencing at Court Book [69]. The Authority summarised the Applicant's claims for protection at paragraphs [5] - [6] of its reasons.
From paragraphs [8]-[12] of its reasons, the Authority considered the Applicant's claim that he was, among other things, abducted in 2005. The Authority accepted that the Applicant was kidnapped for around 10 days in 2005 (at [10] of its reasons), but did not accept his claim that the abductors were searching for him during a period of five months when he stayed with his uncle (at [12] of its reasons).
In paragraph [13] of its reasons, the Authority considered the Applicant's claim that he had been assaulted in 2011 when he returned to Sri Lanka for his sister's wedding. The Authority accepted the incident occurred, but was not satisfied it was anything other than a random criminal attack.
At paragraphs [14]-[18] of its reasons, the Authority considered the Applicant's claim that in 2012, some unknown men came to the family home to search for him and took his passport and national identity card. After considering all the evidence, the Authority found that the Applicant had fabricated this claim to correlate with his decision to leave Sri Lanka, and did not accept that the event occurred. The finding of the fabrication is based on the view of the Authority that the Applicant's evidence was inconsistent (at [14] of its reasons) and its examination of those inconsistencies in some detail at paragraphs [14] - [18] of its reasons.
At paragraphs [19]-[20] of its reasons, the Authority considered whether the Applicant was likely to be of any ongoing interest. Among other things, the Authority was not satisfied the Applicant was assisted to evade airport authorities in order to depart Sri Lanka (at [19] of its reasons) and also did not accept that a group of men have been searching for him since his arrival in Australia (at [20] of its reasons).
At paragraphs [22]-[36] of its reasons, the Authority considered whether the Applicant was a refugee. Among other things:
(a)at [23], the Authority was not satisfied that the Applicant had a well-founded fear of persecution due to any imputed pro LTTE/and anti Sri Lankan government political opinion arising from his Tamil race;
(b)at [24], the Authority indicated, among other things, that it was not satisfied that the Karuna Group or any other pro-government paramilitary group would target the Applicant for extortion or kidnapping. The Authority considered that the chance of the Applicant being harmed on account of his Tamil race, or imputed Sri Lankan government political opinion arising from his Tamil race, or profile, or perceived LTTE links, to be remote;
(c)the Authority accepted that the Applicant departed Sri Lanka illegally and will be returning as a Tamil asylum seeker at [25];
(d)the Authority considered the treatment of Sri Lankan returnees from Australia and other Western countries at paragraphs [26]-[35] of its reasons before concluding, inter alia, that any treatment the Applicant may face is not persecution within the meaning of the Migration Act 1958 ('Act') (at [31] of its reasons), the Applicant's claim that Sri Lankan authorities will suspect he has been speaking badly of them simply because he is returning from Australia is unsubstantiated (at [32] of its reasons), and that it is not satisfied the Applicant has a well-founded fear of persecution as a Tamil and/or failed Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future;
(e)at [35], the Authority considered the Applicant's claims cumulatively and concluded that it was not satisfied there is a real chance the Applicant will face harm upon return to Sri Lanka, now or in the foreseeable future;
(f)concluded that the Applicant does not meet the requirements of the definition of refugee in the Act at [36].
At paragraphs [37]-[45] of its reasons, the Authority considered whether the Applicant would face a real risk of significant harm under the criteria for complementary protection. Ultimately, the Authority was not satisfied there is a real risk of significant harm to the Applicant upon return to Sri Lanka (at [44] of its reasons), and considered that there are not substantial grounds for believing that there is a real risk that the Applicant will suffer significant harm (at [45] of its reasons).
THE APPLICATION
The Application for review contains the following grounds:
1.The Second Respondent constructively failed to review the First Respondent's decision, denied the Applicant's procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.
2.The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
3.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
The Applicant appeared before me unrepresented and with the assistance of an interpreter. Among other things, he made the following submissions:
(a)that he was not able to return to Sri Lanka because his life was in danger;
(b)that he could not understand the reasons why his claims for protection had been rejected; and
(c)that he has not seen his parents, could not go back home, has no education or money and that a lawyer did not represent him adequately.
I accept the Applicant does not speak English and requires the assistance of an interpreter. That may go some way toward explaining why the Applicant says he cannot understand the reasons why his claims for protection have been rejected. The Authority, however, provided detailed reasons for rejecting the Applicant's claims. I have endeavoured to summarise those reasons earlier, in part, for the benefit of the Applicant.
To some extent, the Applicant's oral submissions may be understood as an invitation to the Court to reconsider the merits of the decision of the Authority. It is well accepted that the Court is not to reconsider the merits of a decision in a review of this type: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259.
Turning then to the grounds of review in the Application. The Applicant did not particularise or expand upon, in any meaningful way, the grounds of review set out in the Application. The Grounds of review are not particularised. That is a sufficient basis upon which to dismiss the Application: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760.
Doing the best I can to understand the grounds of review, and recognising that the Applicant is unrepresented, the central premise contained within the Grounds of Review is that the Applicant has been denied procedural fairness. In particular, the Applicant takes issue with what he says was the failure to afford him a real opportunity to reply to adverse information, and a refusal by the Authority to schedule an oral interview.
There are two matters to note in relation to the submission above. The first is that it appears that the Applicant never asked for an interview. On 11 December 2016, the Applicant's representative indicated his client wanted to make a submission, however nothing was said about an oral submission or interview. Subsequently, on 21 December 2016, the written submission and supporting documents were given to the Authority. As is apparent from what I have set out above, the Authority considered the submission (but not the attached articles).
The second matter and more substantive matter to observe is that the Authority is required to conduct its review without accepting or requesting new information. There exists no obligation on the Authority to interview the Applicant: section 473DC of the Act. There does not appear to be any error in the way the Authority dealt with the articles attached to the submission given the terms of section 473DD of the Act.
Ground 3, when properly considered, is not a ground of review but simply an indication as to the Applicant's pursuit of Legal Aid.
CONCLUSION
The Application for Review must fail for the reasons set out above. It will be dismissed. I will make an order for costs in favour of the Minister. I will also make an order that the title of the First Respondent, be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Dated: 17 February 2022
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